1501 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 XII 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. 1502 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. 1503 1 I N D E X - VOLUME XII 2 TESTIMONY OF CHARLES SHERER 3 Direct Examination by Mr. Osborne 1504 Cross Examination by Ms. Marshall 1544 4 Cross Examination by Mr. Townsend 1561 Recross Examination by Ms. Marshall 1571 5 Redirect Examination by Mr. Osborne 1573 6 TESTIMONY OF MICHELLE FETTERS 7 Direct Examination by Mr. Osborne 1577 Cross Examination by Ms. Marshall 1601 8 Redirect Examination by Mr. Osborne 1606 9 TESTIMONY OF TAMARA TRIMBLE 10 Direct Examination by Mr. Osborne 1612 11 VIDEOTAPED DEPOSITION OF KELLY PIPKIN GREGG 12 Direct Examination by Mr. Osborne 1630 Cross Examination by Mr. Townsend 1668 13 Cross Examination by Ms. Petro 1677 Redirect Examination by Mr. Osborne 1680 14 15 E X H I B I T S 16 Plaintiff's Exhibit No. 15 1505 Plaintiff's Exhibit No. 16 1518 17 Plaintiff's Exhibit No. 17 1524 Plaintiff's Exhibit No. 18 1524 18 Plaintiff's Exhibit No. 19 1534 Plaintiff's Exhibit No. 20 1621 19 Plaintiff's Exhibit No. 21 1630 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 1504 1 THE COURT: I did provide the three jurors the 2 letters to their employers. And from earlier 3 discussion, I will just confirm that you have no 4 objection to the Court taking that step? 5 MS. MARSHALL: No. 6 (Whereupon the Jury entered the courtroom.) 7 THE COURT: Everyone please be seated 8 Mr. Osborne, call your next witness. 9 MR. OSBORNE: Thank you, Your Honor. I call 10 Charles Sherer. 11 CHARLES SHERER, 12 having been first duly sworn testified as follows: 13 DIRECT EXAMINATION 14 BY MR. OSBORNE: 15 Q Good afternoon. 16 A Good afternoon. 17 Q State your full name for the Jury, please. 18 A Charles R. Sherer. 19 Q What is your profession or occupation, please? 20 A I am an administrator, nursing home 21 administrator. 22 Q You worked at Sunbelt from 1998 to 2000? 23 A That's correct. 24 Q Previously you had worked at other nursing 25 homes, correct? CENTRAL FLORIDA REPORTERS, INC. 1505 1 A Yes. 2 Q And you're licensed as an administrator by the 3 State of Florida, aren't you? 4 A Yes. 5 Q Your employer in 1999 was Adventist Care 6 Center? 7 A Employer was Sunbelt Healthcare and Subacute. 8 Q Okay. Let me show you what I'm going to mark 9 as our next exhibit. 10 MR. OSBORNE: Any objection by counsel? 11 MS. MARSHALL: No objection. 12 THE COURT: You're going to have that marked? 13 MR. OSBORNE: Yes, I am, Your Honor, into 14 evidence. 15 THE COURT: It'll be admitted as Plaintiff's 16 next exhibit. 17 THE CLERK: It will be Plaintiff's Exhibit No. 18 15. 19 THE COURT: You have no objections, Counsel? 20 MR. TOWNSEND: I'm sorry, Your Honor, no. 21 (Plaintiff's Exhibit No. 15 was marked into 22 evidence.) 23 BY MR. OSBORNE: 24 Q Let me show you, Mr. Sherer, this document in 25 evidence as No. 15, and just tell me if you recognize CENTRAL FLORIDA REPORTERS, INC. 1506 1 that. 2 A Yes. 3 Q What is it? 4 A It's a W-2. 5 Q And what does the W-2 indicate your employer's 6 name to be? 7 A SHCC, doing business as Adventist Care Center. 8 Q And again, what does SHCC stand for? 9 A Sunbelt Health Care Centers. 10 Q Let me show you a demonstrative aid that I put 11 together here, the corporate structure. And tell me if 12 you can find on this visual aid who your employer was. 13 The choices you have, here or here. 14 A Well, my employer was Sunbelt Health Care 15 Centers. 16 Q Inc.? 17 A Inc. 18 Q Okay. So that would be this -- at this 19 juncture on the hierarchy, correct? 20 A It would be down at the Rollins Bedford 21 Corporation. Sunbelt Healthcare Subacute Center, doing 22 business as Sunbelt Health Care Centers. 23 Q That's not what your W-2 says, does it? 24 A W-2 says Sunbelt Health Care Centers, doing 25 business as Adventist Care Center. CENTRAL FLORIDA REPORTERS, INC. 1507 1 Q And you would go with what you told Uncle Sam, 2 wouldn't you? 3 A Correct. 4 Q So your employer was Sunbelt Health Care 5 Centers, Inc., doing business as Adventist Care Center, 6 correct, as per your W-2? 7 A Yes. 8 Q Okay. Your immediate supervisor in 1999 was 9 Michelle Fetters, correct, who is seated in the 10 courtroom behind counsel table? 11 A Yes. 12 Q Michelle Fetters was a corporate person whose 13 office was physically at the corporate offices, correct? 14 A That's correct. 15 Q She was the regional director at that time? 16 A Yes. 17 Q Michelle Fetters reported to a man named Van 18 Camp, correct? 19 A That's correct. 20 Q First name Van, last name Camp, correct? 21 A Correct. 22 Q Okay. He was the president of Adventist Care 23 Centers, correct? 24 A Yes. 25 Q Rachel Bean was terminated by Michelle CENTRAL FLORIDA REPORTERS, INC. 1508 1 Fetters, wasn't she? 2 A I don't know. It was my understanding and 3 belief that she was terminated, but I was not part of 4 that process. Michelle Fetters was handling that 5 process while I was out of town or vacation. 6 Q But that was your understanding, wasn't it, 7 Mr. Sherer, that Rachel Bean was terminated by Michelle 8 Fetters? 9 A Yes. 10 Q Normally -- you were on vacation in Hawaii, 11 weren't you, or were you on vacation? 12 A No. That would be nice but, no, I was not. 13 Q You were working somewhere out of town? 14 A No. I was on vacation visiting my parents. 15 Q Okay. If you'd been in town, you would have 16 been the one who terminated Rachel Bean, correct? 17 A Yes. 18 Q You recall, sir, do you not, that Carolina 19 Destefano was a resident at Sunbelt in 1999? 20 A I do recall that. 21 Q You first learned about her and her son from 22 Rachel Bean and Mary Thornton, didn't you? 23 A Yes. 24 Q They came to you that morning and told you 25 that they had seen him kissing his mother passionately CENTRAL FLORIDA REPORTERS, INC. 1509 1 and stated shouldn't that be reported? 2 A That's correct. 3 Q You asked Rachel Bean if she was sure that she 4 saw that because it was such an unusual event? 5 A That is correct. 6 Q She didn't say that any other staff had seen 7 any inappropriate conduct, did she? 8 A Not that I recall. 9 Q Just she and Mary Thornton? 10 A That's correct. 11 Q Okay. You told her that if she was sure that 12 she saw that kissing, that it should be reported to the 13 DCFS? 14 A That is correct. 15 Q And you told her to report it to DCFS, 16 correct? 17 A Yes. I said if this is indeed what she saw 18 then, yes, it should be reported. 19 Q Okay. And you're aware that she called in the 20 report to DCFS? 21 A I am. 22 Q She told you she'd made the call, correct? 23 A I don't recall, but I'm sure she did. 24 Q Okay. Later that same day you learned there 25 had been a trespass warning issued to Larry Destefano, CENTRAL FLORIDA REPORTERS, INC. 1510 1 didn't you? 2 A Yes. I knew that there was a trespass warrant 3 against him, and I could not sit here and tell you I 4 recall which day it was. I mean, it was the same day. 5 Q Okay. And the way trespass warnings work, 6 Mr. Sherer, is that if you are managing an institution 7 like you were, that if someone -- you don't want 8 somebody on your premises, you call the police and a 9 warning is issued and you, the -- basically the occupant 10 or the owner of the property tell people not to come on 11 your property, correct? 12 A I'm assuming that's correct. I don't know the 13 process. I've not done that before. 14 Q You were not in the building when you learned 15 about this trespass warning, were you? 16 A No. 17 Q Rachel Bean did not tell you about the 18 trespass warning at the time she told you about the 19 passionate kiss, did she? 20 A No, not that I can recall. 21 Q You were not involved in the decision to call 22 the police and have the trespass warnings issued, were 23 you? 24 A No, sir. 25 Q By the time you learned of the passionate CENTRAL FLORIDA REPORTERS, INC. 1511 1 kiss, Mr. Destefano had already been removed from the 2 building? 3 A I don't recall, but I believe so. 4 Q Okay. Your understanding of the reporting 5 obligation to DCFS is that when there is abuse, neglect 6 or exploitation of someone you called DCFS, correct? 7 A When there is a suspicion of abuse, neglect or 8 exploitation. 9 Q And regarding the alleged passionate kiss, do 10 you know one way or the other if that is abuse? 11 A I do not. 12 Q You didn't analyze it to be abuse or 13 exploitation yourself, did you? 14 A No, actually would not have been my 15 responsibility to. That would be DCF. 16 Q But in terms of -- in terms of the reporting 17 situation, you just categorized this as an unusual 18 incident rather than abuse or exploitation, didn't you? 19 A I don't remember categorizing it any way. 20 Q Let me just ask you if this refreshes your 21 memory. This is from your deposition on page -- August 22 2002. And I'd like you to start, Mr. Sherer, at line 25 23 and go through line nine on the next page full, please. 24 MR. TOWNSEND: What page? 25 MS. MARSHALL: Page? CENTRAL FLORIDA REPORTERS, INC. 1512 1 THE WITNESS: 45. 2 MR. OSBORNE: Page 45, Ms. Marshall. 3 A Starting at line 25? 4 Q Wherever the question starts at the bottom of 5 the page, and then go up to line nine on the next page, 6 please. 7 A Question, "How about" -- 8 Q No, no, just read it to yourself, please. 9 A Oh, okay. 10 Q Now, you did categorize it there as an unusual 11 event, didn't you? 12 A Yes, I did. 13 Q Thank you. 14 A You're welcome. 15 Q So you didn't draw any conclusion yourself 16 about whether or not this was abuse or exploitation, but 17 you allowed Rachel Bean to call DCFS to report this? 18 A Yes. I told her if that's what she saw, then 19 that's what she -- that it should be reported. 20 Q Okay. All of the information you had, 21 Mr. Sherer, about Larry Destefano's conduct came from 22 Rachel Bean, didn't it? 23 A During what time? 24 Q During the time -- in and around the time of 25 the timing of this reported passionate kiss. CENTRAL FLORIDA REPORTERS, INC. 1513 1 A Yes. 2 Q You don't know how long this supposed kiss 3 took place or if there was more than one kiss, do you? 4 A I do not. 5 Q You don't recall having conversations with 6 others that day regarding the incident other than Rachel 7 Bean, do you? 8 A Do not recall. 9 Q You never spoke to a Carol Boze about this 10 incident, did you? 11 A I don't believe so. 12 Q You did report this incident to Ms. Fetters, 13 didn't you, Michelle Fetters? 14 A At some point. 15 Q You didn't do anything yourself to investigate 16 this incident, did you? 17 A I had -- there were statements that were made 18 of what people saw. And then we, the building -- Rachel 19 Bean called DCF and turned it over to them, which is the 20 correct procedure. 21 Q Let me ask you if you remember this question 22 and answer, sir, at page 54 of your deposition on August 23 20, 2002. Question, line 20. "Okay. Now, did you at 24 any time do your own investigation into what happened?" 25 Answer, "No." CENTRAL FLORIDA REPORTERS, INC. 1514 1 I might have confused you. I was asking you 2 about just investigation you did. You didn't do any 3 investigation yourself, did you? 4 A No, not per se. I mean, there were -- there's 5 not a lot of investigating to do in a situation like 6 that. It's basically you get statements from people 7 that said they saw what they saw and then turn it over 8 to Department of Children and Families. 9 Q Rachel Bean got those statements, not you, 10 though, correct? 11 A I believe so. 12 Q Okay. You recall Mrs. Destefano being 13 transferred to ORHS, but you weren't involved in that 14 decision, were you? 15 A No. 16 Q You learned about the bloody pad either that 17 day or shortly after, correct? 18 A Correct. 19 Q You were told by Rachel Bean? 20 A That is correct. 21 Q She told you it was bright blood? 22 A Yes. 23 Q And you presumed that to be fresh blood? 24 A That was my presumption. 25 Q And Rachel Bean told you that the bleeding was CENTRAL FLORIDA REPORTERS, INC. 1515 1 why Mrs. Destefano needed to be transferred to ORHS? 2 A I don't recall her telling me why she needed 3 to be transferred, but that would -- that would be the 4 reason. 5 Q Pardon me? 6 A That would be the reason. Something unusual 7 like that, a resident would need to be checked out. 8 Q Okay. There came a time when you spoke to 9 Larry Destefano, and he asked you if you had -- or would 10 investigate his situation, and you told him that it was 11 up to DCFS and not you, correct? 12 A I think so. Yes, I had a conversation with 13 him. 14 Q In fact, it was really Rachel Bean that had 15 decided to call DCFS, and you just were concerned with 16 that -- you just were involved with that based upon what 17 she told you, correct? Was Rachel Bean's decision -- 18 A Yes. Would you please clarify the question? 19 Q Yeah, yeah. That was a bad question. 20 It was really Rachel Bean that had decided to 21 call DCFS, correct, already before she talked to you? 22 A She came to my office and said what she said 23 she saw. And I clarified that, asked her is she sure 24 that that's what she saw. And she said, well, shouldn't 25 we call that in? And if I remember correctly, I think I CENTRAL FLORIDA REPORTERS, INC. 1516 1 asked her again, because that's an unusual situation, 2 and she said yes. And I said, well, then we need to 3 call it in. 4 Q So my question is -- sort of basically 5 said you concurred with her decision that she had 6 already made, correct? You concurred with her in that? 7 A I think I would be really speculating to know 8 what went through her mind, whether she had made that 9 decision or not. I mean, she was predisposed to that. 10 That's what she suggested. 11 Q Okay. Thank you. You yourself are a 12 Seventh-Day Adventist, are you not? 13 A Yes. 14 Q Rachel Bean did not tell you that late entries 15 were being made in the chart, did she? 16 A I don't recall her telling me that. 17 Q You did eventually learn about all of the late 18 entries, though, didn't you? 19 A I'm aware of a late entry. 20 Q Just one? By whom? 21 A By Ms. Boze I believe. 22 Q Okay. One late entry by Ms. Boze? 23 A That is what I can remember. 24 Q Okay. And you were told that by Rachel Bean, 25 weren't you? CENTRAL FLORIDA REPORTERS, INC. 1517 1 A I don't know. 2 Q And just to be -- to clarify, other than 3 Rachel Bean or Mary Thornton, nobody else ever told you 4 that they saw any inappropriate conduct by -- any 5 inappropriate conduct by Mr. Destefano? 6 A That is correct. 7 Q Nobody ever told you that they saw 8 Mr. Destefano disimpacting his mother? 9 A No. 10 Q You recall a conversation with Ivan Maldonado 11 from DCFS? 12 A Yes, I remember a visit with him. 13 Q And he requested records and contact 14 information for Rachel Bean and Mary Thornton, correct? 15 A That's correct. 16 Q You told him that he had to make that request 17 in writing? 18 A In a roundabout way, yes. I said I wanted to 19 have that in writing. 20 Q You got his letter and faxed it over to 21 Michelle Fetters, correct? 22 A I did at some point. I responded to the 23 request and then apprised her of it. 24 MR. OSBORNE: I move this in and the 25 next -- this is not -- this was a part of a CENTRAL FLORIDA REPORTERS, INC. 1518 1 composite pre-marked. Any objection, Counsel? 2 MS. MARSHALL: No objection. 3 MR. TOWNSEND: No objection. 4 THE COURT: It'll be admitted as Plaintiff's 5 next numbered exhibit, No. 16. 6 (Plaintiff's Exhibit No. 16 was marked into 7 evidence.) 8 BY MR. OSBORNE: 9 Q Mr. Sherer, let me show you what has been put 10 into evidence as Exhibit 16 and ask you if you recognize 11 that letter? 12 A Yes, I do. 13 Q This is a letter written by you to Mr. 14 Maldonado, correct? 15 A Yes, sir. 16 Q And I'd like for you if you would, sir, to 17 just read what you wrote on -- first, tell us the date 18 of the letter and read what you wrote to Mr. Maldonado. 19 A The date of the letter is March 10, 2000. 20 "Dear Mr. Maldonado, this is in response to your request 21 for Rachel Bean's and Mary Thornton's addresses and 22 phone numbers" -- 23 Q Slow down a little bit, please. I'm fast, 24 you're faster. Just talk a little slower. 25 A Okay. -- "and phone numbers with regard to CENTRAL FLORIDA REPORTERS, INC. 1519 1 the Department's investigation of the Carolina Destefano 2 case. Rachel Bean, as director of nursing, was 3 considered a corporate employee and as such I do not 4 have access to her address at this time. Her phone 5 numbers are" -- 6 Q You can skip the phone numbers. Just go back 7 to if you still need her address. 8 A "If you still need her address, please call me 9 and I will get it from our corporate office." 10 Q And then you go ahead and you give Mary 11 Thornton's address and phone number, correct? 12 A Yes. 13 Q Now, this letter is written on Sunbelt 14 Healthcare and Subacute Center Orlando stationery, 15 correct? 16 A Yes, sir. 17 Q Now, when you said Rachel Bean was a corporate 18 employee, you were talking about Sunbelt Health Care 19 Centers, Inc., weren't you? 20 A Quite frankly I don't know. I mean, to me it 21 is -- it is or was what I was calling corporate. 22 Basically corporate would be a home office, somebody 23 that each of the facilities would report to. 24 Q Well -- 25 A So legally I don't know what entity I was CENTRAL FLORIDA REPORTERS, INC. 1520 1 reporting to or referring to. 2 Q All right. But we know -- you had Mary 3 Thornton's address and phone number there at the Rollins 4 Bedford facility, didn't you? 5 A That's correct. 6 Q And Rollins Bedford is -- was the nursing 7 home? Well, was -- 8 A Well -- 9 Q -- was one of five nursing homes that Rollins 10 Bedford had, correct, at the time? 11 A I don't know. I'm -- 12 Q Okay. But you had Mary Thornton's information 13 there because she was an employee of the nursing home, 14 correct? 15 A That's correct. 16 Q Okay. But you didn't have Rachel Bean's 17 address there and phone number because she was not an 18 employee of the nursing home, she was an employee of 19 corporate, which is up the ladder from the nursing home, 20 correct? 21 A I don't know if I'd classify her as an 22 employee of the corporate. I mean, it was -- the 23 corporate office kept the administrative files of the 24 DON and the administrator. 25 Q Well, read what you said -- read what you said CENTRAL FLORIDA REPORTERS, INC. 1521 1 in the second paragraph of your letter. 2 A I said she was considered a corporate employee 3 as such. 4 Q You said that Rachel Bean, as director of 5 nursing, was considered a corporate employee -- 6 A Yes. 7 Q -- correct? That's different than a 8 Sunbelt -- than a nursing home employee, isn't it? 9 A There's some differentiation. 10 Q Well, if she had been a nursing home employee, 11 one, you would have had her file right there on the 12 premises, wouldn't you? 13 A Yes. 14 Q So she wasn't an employee for that reason, was 15 she? You didn't have -- you didn't have her personnel 16 file there? 17 A That's correct, I did not, but I think we may 18 be splitting hairs as to whose employee she was. I 19 mean, she was my employee. 20 Q Right. But you were not an employee of 21 Sunbelt Healthcare and Subacute Center, you were an 22 employee of Sunbelt Health Care Centers, Inc., weren't 23 you? 24 A That is where my check came from. 25 Q Well, that's what you told the IRS every year, CENTRAL FLORIDA REPORTERS, INC. 1522 1 wasn't it? 2 A Yes, that's where my check came from. 3 Q And you wouldn't tell the IRS anything that 4 was false, would you? 5 A No, I don't do that. 6 Q Okay. Your personnel file was also kept at 7 the corporate offices, wasn't it? 8 A Yes, sir. 9 Q So you and Rachel Bean had the same employer? 10 A Yes. 11 Q Her W-2 to your knowledge would have had the 12 same employer listed here as you had, as SHCC d/b/a 13 Adventist Care Center, correct? 14 A I imagine so. I haven't seen her W-2. 15 Q Let's go back to these events that were 16 occurring in September of 1999. The next time you saw 17 Mr. Destefano is when he was picketing the facility, 18 correct? 19 A Yes. 20 Q On December 30, 1999, you wrote a memo 21 regarding your contact with him, didn't you? 22 A I don't know. I'm -- if you have something 23 you'd like me to look at, I'll be happy to look at it. 24 I don't recall the date I wrote a memo. 25 Q You recall doing a memo, though? CENTRAL FLORIDA REPORTERS, INC. 1523 1 A Yes. 2 Q And that was a memo -- a copy of that memo was 3 sent to Michelle Fetters, correct? 4 A Well, if you'll show that to me. 5 Q I'm just going to -- what I would like to do 6 is refresh your memory with your deposition where that 7 letter was discussed. 8 A That's fine. 9 Q Let me find a good place to start here. 108, 10 line 18 is where it starts -- where you start talking 11 about the letter. Just take -- just read a couple of 12 pages, see if it refreshes your memory. 13 A Yes, they're talking about the document. 14 Q Okay. I just wanted to refresh your memory. 15 That does refresh your memory? 16 A Regarding the phone call? 17 Q Yes, sir. 18 A Yes. 19 Q Okay. Thank you. 20 A Yes, sir. 21 Q You called Ina Edders, did you not? 22 A I spoke with Ms. Edders. 23 Q And she is in risk management for Adventist 24 Health Systems? 25 A That's my -- yes, that's my understanding. CENTRAL FLORIDA REPORTERS, INC. 1524 1 Q You were also in communication with a Steve 2 Kritner (ph) of risk management? 3 A I know that name, but I do not remember 4 conversing with him. 5 Q Michelle Fetters asked you to keep a record of 6 all events, didn't she? 7 A Yes. 8 Q Let me talk about a couple -- a couple of 9 these. I'm going to mark these in sequence. 10 MR. OSBORNE: This is the first one I'm going 11 to mark if there's no objection. 12 MS. MARSHALL: Is that 17? 13 MR. OSBORNE: I think it'll be 17, yes. 14 MS. MARSHALL: No objection. 15 MR. TOWNSEND: No objection, Judge. 16 THE COURT: It will be admitted as 17. 17 (Plaintiff's Exhibit No. 17 was marked into 18 evidence.) 19 MR. OSBORNE: And I'll show you No. 18 as 20 well. Any objection, Counsel? 21 MS. MARSHALL: No objection. 22 MR. TOWNSEND: No objection. 23 THE CLERK: This will be Plaintiff's Exhibit 24 No. 18. 25 (Plaintiff's Exhibit No. 18 was marked into CENTRAL FLORIDA REPORTERS, INC. 1525 1 evidence.) 2 BY MR. OSBORNE: 3 Q Let me show you Exhibit 17 and 18 and ask you 4 if you recognize those, Mr. Sherer? 5 A Yes, I recognize -- I recognize both -- all 6 three pieces of paper. 7 Q Now, these are your notes, are they not? 8 A That is correct. 9 Q Which one is -- which notes are first in time, 10 17 or 18? And if you don't know, that's fine, it 11 doesn't matter. 12 A I dated one, but I do not see where I dated 13 the other. 14 Q Let's talk about the one-page document, No. 15 18, first. That does have a date on it, correct? 16 A Yes, sir. 17 Q Why don't you tell the Jury what the date is 18 and just publish what your notes say on your note? 19 A Okay. There is a card of Judy Simms, she was 20 a protective investigator from Department of Children 21 and Families, and it's copied on this piece of paper. I 22 put underneath came 9/22/99. This would be when this 23 lady came to our facility. And then dash, Rachel spoke 24 with. 25 And then my note of the -- the summary note CENTRAL FLORIDA REPORTERS, INC. 1526 1 that I put down was investigative, Carolina Destefano 2 case that we, and then in parenthesis I put Rachel, 3 called in on 9/21/99. That was case number 0021. And 4 then a Donna took the report. Department of Children 5 and Families has an intake -- has several intake people 6 and they identify themselves, and it was a Donna that 7 took this report. Son Lawrence kissing mother 8 intimately on lips. On top of her kissing her. 9 Q Okay. Do you remember -- I think we've 10 already established that the only person you talked to 11 about these allegations was Rachel Bean, correct, about 12 the allegations such as that are found in the note here 13 about Mr. Destefano's mother? 14 A Yes, sir. 15 Q And so Rachel Bean -- 16 A And possibly Mary Thornton. 17 Q Or Mary Thornton, you corrected me. And one 18 or both of them told you that they -- that Larry 19 Destefano was on top of his mother as per this -- your 20 notes here, correct? 21 A Yes. 22 Q Let's look at the second, No. 17, the two-page 23 one. And why don't you just publish what's on the first 24 page of that one, please? 25 A All right. It's a number -- it's my CENTRAL FLORIDA REPORTERS, INC. 1527 1 handwriting. Police, and then up above, OPD, for 2 Orlando Police Department, called, called facility. In 3 parenthesis, spoke with Rachel about 7:00 p.m. asking 4 about bloody pad. In parenthesis, is in Mary T's 5 office, closed parenthesis. Indicating to Rachel that 6 they were going to probably arrest the son this evening. 7 Q Now, let me ask you this, Mr. Sherer. As you 8 look at your note, who was it that told you -- if you 9 remember or if the note will give you any indication, 10 who told you that the bloody pad was in Mary Thornton's 11 office? 12 A I don't remember. The note -- my note would 13 indicate that it was probably Rachel. 14 Q Okay. Take a look at the second page. And 15 really what I want you to go through here, not publish 16 all this, but just tell me what the note reflects about 17 who the people are you talked to, and I'm assuming about 18 these events, as reflected in your contemporaneous 19 notes. 20 A All right. My notes are very -- at times very 21 helter-skelter and I'll write all over a page and I'll 22 draw arrows. That's what I've done here, so I'll need 23 to take a look at it. 24 Q Go right ahead. 25 A It's basically a fairly disorganized list of CENTRAL FLORIDA REPORTERS, INC. 1528 1 some people's names and their phone numbers. Most of 2 the people would be affiliated with Florida Hospital. 3 Q And there is a Steve Kritner in there, is 4 there not? 5 A Steve Kritner, attorney, is down -- yes, down 6 at the bottom. 7 Q And I'd ask you -- 8 A This does not refresh my memory if I spoke 9 with these people. 10 Q Okay. I understand. 11 A I had their numbers and that is basically it. 12 Q Okay. Thank you. In regard to Larry 13 Destefano's picketing, Michelle Fetters told you to 14 contact John Amick, who was head of security for Florida 15 Hospital, to request security coverage, correct? 16 A Yes, we talked about that. 17 Q You also notified Van Camp of these events 18 relating to the picketing and the DCFS investigation? 19 A I don't recall. You may want to refresh my 20 memory if was in depo. It's been probably a couple of 21 years since I gave a deposition and five or six years 22 since the incident happened. 23 Q Fair enough. 24 A I spoke with Michelle Fetters I believe. 25 Q Let's take a look at page 128, starting at CENTRAL FLORIDA REPORTERS, INC. 1529 1 line 28, just over to -- just to the bottom, 28 -- page 2 128, lines 23 to 25. 3 A Yes. I indicate or I testified that -- it 4 says Van, but that would be Camp, Van Camp, and I put -- 5 I said yes. 6 Q Okay. Thank you. 7 A So I must have related it to him. 8 Q When Larry Destefano resumed picketing in 9 January of 2000, you notified Steve Kritner and Ina 10 Edders with risk management and John Amick with Florida 11 Hospital security and Michelle Fetters, didn't you? 12 A Yes. 13 Q Okay. You also called Ivan Maldonado at DCFS 14 to request that they assist in getting Mr. Destefano, 15 quote, off your front doorstep, close quote? 16 A That's correct. 17 Q On September 22, 1999 when Mrs. Destefano was 18 at ORHS, you got a call from them asking you or the 19 facility to take her back? 20 A What date, please? 21 Q September 22nd, 1999. Does that ring a bill 22 with you? 23 A Yes, it does. I don't know the date. 24 September 21st, September 22nd. 25 Q In that ballpark? CENTRAL FLORIDA REPORTERS, INC. 1530 1 A Yes. 2 Q You do recall the phone call from ORHS asking 3 you -- the facility to take her back, correct? 4 A Yes. 5 Q Which facility, Florida Hospital or the 6 nursing home? 7 A The nursing home. 8 Q Okay. You talked to Ina Edders about that, 9 and she told you she was going to call Mike Estes. Do 10 you remember that? 11 A No, I don't. 12 MS. MARSHALL: Your Honor, I'm going to object 13 at this point. This is getting into their phone 14 calls to their attorneys and I think that's 15 privileged. 16 THE COURT: Not at this time. Overruled. 17 BY MR. OSBORNE: 18 Q Let's take a look to refresh your memory. And 19 I agree with you, it's been a while so I certainly have 20 no problem with that. Go ahead and start with 141, line 21 21 through 142, line 21. 22 A Okay. 23 Q Does that refresh your memory? 24 A Yes. Well, I still had to refresh my memory. 25 I stated that after reviewing some of the other papers CENTRAL FLORIDA REPORTERS, INC. 1531 1 you've shown me, the third bullet, Ina dash called Mike 2 Estes. So I believe that I was looking at something 3 that I had written that said Ina called Mike Estes. 4 Q And just while we're there, it does mention 5 Mr. Estes is an attorney, correct, on page 142? 6 A The question was asked, "Who is Mike Estes?" 7 And my response was, "I know Mike Estes. I believe he's 8 an attorney." 9 Q Okay. Thank you. You talked to Michelle 10 Fetters about Mr. Destefano's picketing at 6:15, did you 11 not? 12 A Did I speak with her about -- yes. 13 Q Yes? 14 A Yes. 15 Q At 6:30 you told Dr. Young at ORHS that you 16 wouldn't take Mrs. Destefano back at Sunbelt, correct? 17 A Correct. 18 Q You also became aware that the police had been 19 called that day and they had spoken to Rachel Bean, 20 correct? 21 A Yes. 22 Q And we know from your note that they were 23 coming to take the bloody pad for evidence, correct? 24 A That was the context of the conversation, yes. 25 Q And it was Rachel that told you that the CENTRAL FLORIDA REPORTERS, INC. 1532 1 police are probably going to arrest Larry Destefano that 2 evening, wasn't it? 3 A Yes. 4 Q Now, on that date you had first spoken to 5 Michelle Fetters at 11:00 o'clock in the morning, 6 correct? 7 A I don't know what time. 8 Q Okay. Let me see if we can refresh your 9 memory again. I think this is probably you looking at 10 your notes in your last deposition, but take a look at 11 page 147, line 15. 12 A Thank you. 13 Q You're welcome. 14 A Notified Michelle 11:00 a.m -- 15 Q Okay. 16 A -- in parenthesis. And, yes, I was referring 17 to a note that I had written myself. 18 Q Okay. Thanks. 19 A Yes, sir. 20 Q She told you that you were doing everything 21 right, correct? 22 A Yes. I remember that we had talked, and 23 everything seemed to be taken care of that we were 24 supposed to have done. 25 Q And you spoke to her again at 1:45, and she CENTRAL FLORIDA REPORTERS, INC. 1533 1 told you that you could go to Adventist Health System 2 public relations and speak with a Kim. Do you remember 3 that? 4 A Upon review of some of my notes, I remember 5 that. 6 Q Okay. You also talked to a Roy Read, who was 7 vice-president of marketing and public relations? 8 A Yes. 9 Q And you also talked to Steve Kritner, who is 10 an attorney with risk management? 11 A I don't remember speaking with Mr. Kritner, I 12 still don't. 13 Q We know from your note, however, that you have 14 Steve Kritner's name down on your note that we just 15 talked about, correct? 16 A Correct. 17 Q So we can probably presume you did, you just 18 don't remember doing it, because it's in your notes, 19 correct? 20 A I don't believe I'd want to go that far to 21 presume. As I said -- earlier testified that this is a 22 pretty disorganized list of just some names. And 23 there's nothing beside his name other than Steve 24 Kritner, attorney. I don't even have his number there. 25 Q And if we go back to No. 18 in evidence, which CENTRAL FLORIDA REPORTERS, INC. 1534 1 is the one-page note, I want to talk one more thing 2 about that. The information about son Lawrence kissing 3 mother intimately on the lips, on top of her kissing her 4 came only from Rachel Bean, did it not? 5 A Yes. 6 Q Okay. 7 MR. OSBORNE: Any objection, Counsel? 8 MS. MARSHALL: No objection. 9 MR. TOWNSEND: No objection. 10 THE COURT: It'll be admitted as 18. 11 THE CLERK: Actually 19. 12 THE COURT: 19? Okay. 13 (Plaintiff's Exhibit No. 19 was marked into 14 evidence.) 15 BY MR. OSBORNE: 16 Q Let me show you what's in evidence as No. 19, 17 Mr. Sherer, and see if you see your name on that 18 document. 19 A Yes, sir, I do. 20 Q Before we get to this letter, let me ask you 21 some background questions here. As the administrator 22 of -- and I'll just call it Sunbelt Nursing Home. As an 23 administrator there, you knew what the term provider 24 agreement meant, didn't you? 25 A Yes. CENTRAL FLORIDA REPORTERS, INC. 1535 1 Q What is a provider agreement? 2 A A provider agreement is a -- is an agreement, 3 a contract, if you will, between a provider, a health 4 care provider and a government entity. 5 Q And Sunbelt Nursing Home had such agreements 6 with Medicare and Medicaid in 1999, didn't they? 7 A Yes, sir. 8 Q And these agreements were kept at Sunbelt 9 corporate offices on Courtland Street, weren't they? 10 A Ask that again. 11 Q Yeah. The provider agreements were kept at 12 Sunbelt corporate offices on Courtland Street? 13 A No, I believe they were in my office. That 14 would be typical for them to be in the administrator's 15 office. It may have been a copy of it. 16 Q Okay. 17 A Excuse me, can I have a Kleenex? 18 MR. OSBORNE: Anybody have a Kleenex? 19 BY MR. OSBORNE: 20 Q Do you recall that there was a policy and 21 procedures manual from Sunbelt? 22 A Yes, sir. 23 Q It was in four binders, each about three 24 inches thick? 25 A Yes. CENTRAL FLORIDA REPORTERS, INC. 1536 1 Q Okay. Now, in talking about your -- the 2 letter I gave you that's in evidence as No. 19, you're 3 familiar with the term survey, are you not? 4 A Yes, sir. 5 Q A survey is when the State of Florida annually 6 sends its inspectors from AHCA to ensure compliance with 7 Medicare and Medicaid regulations, correct? 8 A That's correct. 9 Q And AHCA is the Agency for Health Care 10 Administration? 11 A Correct. 12 Q This is a very detailed process, isn't it? 13 A Correct. 14 Q They come in and talk to residents, they 15 observe and they review charts? 16 A Yes. 17 Q And they generate a detailed report within ten 18 days? 19 A Yes. 20 Q And when the written survey report is 21 received, you have ten days to prepare a Plan of 22 Correction, correct? 23 A That's correct. 24 Q And if no correction is made, the State can 25 impose sanctions? CENTRAL FLORIDA REPORTERS, INC. 1537 1 A Yes. 2 Q And those sanctions can range from fines, 3 denial of admission of new patients or even closure of a 4 facility? 5 A Yes. 6 Q These surveys were done annually? 7 A Yes, at least annually. 8 Q And the document in evidence as No. 19 9 references the survey that occurred beginning in June of 10 1999, correct? 11 A Yes. 12 Q June 18 to be correct, is that correct? 13 A Yes, sir. 14 Q Now, just turning back to the second and third 15 pages. The survey identifies, this specific one, 16 16 different problems that were in existence at the Sunbelt 17 Subacute Center, the nursing home, correct? Feel free 18 to count them. 19 A Yes. 20 Q Now, these problems are called tags, aren't 21 they? 22 A Yes, sir. 23 Q And one of the tags that's referenced -- that 24 is contained in this document in front of you was the 25 failure to have sufficient nursing staff on a 24-hour CENTRAL FLORIDA REPORTERS, INC. 1538 1 basis, wasn't it? 2 A I don't know. I can't identify it by just a 3 tag. 4 Q If you had the actual survey and you could see 5 what the codes were that are referenced on this letter, 6 would that assist you in locating that? 7 A Well, the survey is a verbal report so I could 8 read the report. 9 MR. OSBORNE: Let me see Exhibit AG marked for 10 identification, please, Plaintiff's AG. It's AG. 11 I think they must have gone past the 26 in 12 alphabet. That's all I can figure. 13 MS. MARSHALL: Your Honor, may we approach? 14 May I approach? 15 THE COURT: Yes. 16 (Whereupon there was had a discussion at the 17 Bench out of the hearing of the Jury.) 18 MS. MARSHALL: This is the document that 19 Mr. Osborne represented to me was not going to be 20 marked. It's not on the original exhibit list. 21 THE COURT: You're not going to introduce it 22 into evidence? 23 MR. OSBORNE: I'm not. 24 THE COURT: Okay. Go ahead. 25 MS. MARSHALL: Okay. He hasn't CENTRAL FLORIDA REPORTERS, INC. 1539 1 established -- I'll let him try to form the -- 2 (Whereupon the discussion at the Bench was 3 concluded, and the following proceedings were had.) 4 BY MR. OSBORNE: 5 Q I don't want you to publish any part of this 6 document, sir. I just want you to look at the codes 7 that are contained in Exhibit 19 and compare them to the 8 codes that are found in this document and see if that 9 refreshes your memory as to what the codes are. 10 A You want me to look at this survey from six 11 years ago and try to -- 12 Q No, sir. I want you to go -- take a look at 13 No. 19 in evidence and take a look to the tag you've 14 identified where it's got different numbers. 15 A Yes. 16 Q Like first one on left corner, 165. 17 A Um-hum. 18 Q I want you to go and find 165 in this document 19 and see if that refreshes your memory as to what that 20 specific violation was or tag. 21 A Just 165? 22 Q I'll do them -- I'm going to do a few. 23 A This is going to take quite a while. 24 Q Let me look at that real quick and I'll see if 25 I can help you out. CENTRAL FLORIDA REPORTERS, INC. 1540 1 A I'll sit here, but I haven't seen that 2 document. 3 MS. MARSHALL: Objection, Your Honor. This is 4 not proper refreshment of a witness's recollection. 5 A This is catching me off guard. I mean, I 6 haven't -- 7 Q I understand, sir. 8 A -- seen a survey from six years ago. 9 Q I know. I'm going to show you -- 10 THE COURT: I'm going to sustain that 11 objection if you want to show him something in an 12 effort -- first of all, I'd ask you to rephrase the 13 question, there's been so many in the meantime. 14 Restate the question that you're asking. 15 And if you can ask him by a document to 16 refresh his recollection you can do that, but what 17 I'm not going to permit is this calculation of look 18 at this and look at this and then decide. That's 19 sustained. 20 BY MR. OSBORNE: 21 Q All right. Mr. Sherer, turn to your Exhibit 22 19 and look at the prefix FO-165. And I'm going to ask 23 you to look at this document and see if that refreshes 24 your memory as to what FO-165 is. 25 A Okay. I've read it. CENTRAL FLORIDA REPORTERS, INC. 1541 1 Q Does it refresh your memory? 2 A No, I mean, not to that survey. I mean, I 3 know that's a regulation -- I know that's a tag. 4 Q Does it refresh your memory as to what was 5 going on during that survey in 1999? 6 A No. 7 Q Same question as to FO-323. 8 A 323? 9 Q Yes, sir. 10 A Okay. 11 Q Does that refresh your memory as to what 12 FO-323 was? 13 A No, sir. 14 Q Same question as to FO-353. 15 A Okay. 16 Q Does that refresh your memory? 17 A No. 18 Q Same question as to FO-514. 19 A Okay. 20 Q Does that refresh your memory? 21 A No, sir. 22 Q All right. Thank you. In regard to these 16 23 tags or problems, sir, AHCA came back out on July 23rd 24 of '99 to inspect again, did they not? 25 A I imagine so. I mean, I'm not looking at CENTRAL FLORIDA REPORTERS, INC. 1542 1 anything to tell me they did. 2 Q Take a look at the document that's in evidence 3 as 19 and tell me if you see some correction completions 4 noted for July 23rd of 1999. 5 A Yes, I do. 6 Q And there's some other corrections. The 7 remaining tags were not corrected until September 16th 8 of 1999, isn't that true? 9 A That's correct. According to this, it looks 10 like about two. 11 Q It looks like, if you turn to the front of 12 this page, you didn't know that these tags had been 13 cleared. Take a look at the front -- the first page of 14 your document. You didn't know that these tags had been 15 cleared until the 24th of September of 1999, correct? 16 A Correct. I received a letter it looks like on 17 the 24th. 18 Q Okay. And the period of time around 19 September -- between September 16 and September 24th was 20 a period of time that Mrs. Destefano was a patient at 21 Sunbelt Nursing Home, correct? 22 A Between what date? 23 Q September 16th and September 24th of 1999. 24 A I don't know. She wasn't there that long I 25 don't think. CENTRAL FLORIDA REPORTERS, INC. 1543 1 Q Okay. I will assert to you that she was there 2 on the 19th and the 20th. 3 A If you said -- you said the 16th. 4 Q I didn't say during the entire period of time. 5 I was talking about during that period of time she was 6 there, not the entire time, but was in that span of time 7 from the 16th through the 24th. Let me just rephrase. 8 A Okay. 9 Q The 19th and the 20th and 21st are within the 10 period of time of the 16th through the 24th, correct? 11 A That period of time is included in that period 12 of time, yes. 13 Q Yes, sir, right. Now, you left the employ of 14 Adventist Health Centers in 2000, correct? 15 A Correct. 16 Q And one of the reasons you left was the 17 feeling that you were not being supported as the 18 administrator, correct? 19 A Yes. 20 Q You didn't feel you had the support of your 21 supervisor, Michelle Fetters? 22 A I think that that was part of that. There 23 were -- there was another situation -- another issue why 24 I left. 25 Q One of the issues was you didn't feel you had CENTRAL FLORIDA REPORTERS, INC. 1544 1 the support of your supervisor, Michelle Fetters, 2 correct? 3 A Somewhat. 4 Q You had discussions with her on this issue, 5 didn't you? 6 A Some, nothing formal. 7 Q And you had a meeting with Van Camp to address 8 one of those issues, too, didn't you? 9 A No. I know what you're referring to, but 10 that's not referring to your request. 11 Q Okay. Ms. Fetters put a nursing consultant in 12 the facility, and you felt that she was undermining your 13 usefulness as administrator, isn't that what happened? 14 A Somewhat, yes. 15 Q And based on that feeling you resigned as the 16 administrator, correct? 17 A Well, as I said just a minute ago, not -- that 18 wasn't the sole purpose. That was kind of something 19 that just -- I said, well, okay, I'm going to turn over 20 a new page. 21 Q Thank you, sir. I have no further questions. 22 THE COURT: Cross-examine, Ms. Marshall? 23 MS. MARSHALL: Thank you. 24 - - - - - 25 CROSS EXAMINATION CENTRAL FLORIDA REPORTERS, INC. 1545 1 BY MS. MARSHALL: 2 Q Good afternoon, Mr. Sherer. 3 A Good afternoon. 4 Q How long has it been since you worked at 5 Sunbelt? 6 A Rough -- five years. 7 Q Okay. And you resigned from there in around 8 2000, correct? 9 A In the year 2000. 10 Q Okay. During the time that you worked for 11 Sunbelt, where did -- where did you go to work every 12 day? 13 A Sunbelt Healthcare and Rehab on Rollins. 14 Q Okay. And that's the facility that is owned 15 by Rollins Bedford Corporation, is that correct? 16 A Yes. 17 Q Okay. Did you ever go work in another nursing 18 home, any of the other nursing homes that are owned or 19 that are affiliated with Sunbelt Health Care Centers? 20 A No. 21 Q You always worked at that one facility? 22 A During that time period, yes. 23 Q Okay. And does every nursing home have to 24 have a licensed administrator on staff? 25 A Yes, that's correct. CENTRAL FLORIDA REPORTERS, INC. 1546 1 Q And during the time that you were working at 2 the Sunbelt Nursing Home, you were the licensed 3 administrator, correct? 4 A Yes. 5 Q Can you -- I think you mentioned during your 6 direct-examination that your paycheck -- your W-2 that's 7 issued actually came from -- I think it says on there 8 SHCC, doing business as Adventist Care Centers, is that 9 correct? 10 A Yes. 11 Q Okay. What is your understanding of why your 12 paycheck came from Adventist Care Centers? 13 A Well, the administrators and the DONs of the 14 various facilities, they were on a different pay scale 15 and also a different benefit package. And so I don't 16 get tripped up and so we know what we're talking about, 17 I'm just going to say corporate, and then y'all can 18 argue as to what corporate means. 19 Q That's what you would refer to it? 20 A I'm going to say corporate. And so corporate 21 kept the records and administered the pay program and 22 everything for -- and the checks came from there for the 23 administrator and the director of nursing. 24 Q Okay. Do you know whether the -- all of the 25 expenses of your salary and the DONs' salary are charged CENTRAL FLORIDA REPORTERS, INC. 1547 1 back to the individual -- in this case the Sunbelt 2 Subacute Center? 3 A Yes. 4 Q All of your expenses were charged back to 5 Rollins -- Rollins Bedford Corporation, doing business 6 as Sunbelt Subacute Center? 7 A That's correct, the expenses were charged back 8 to that facility. 9 Q Mr. Osborne asked -- was talking to you about 10 Exhibit No. 19, which is the letter to you from the 11 Agency for Health Care Administration. 12 A Yes. 13 Q Were you informed prior to receiving this 14 final -- this written notification that all of the tag 15 items had been resolved? 16 MR. OSBORNE: Object, hearsay. 17 THE COURT: Sustained. 18 BY MS. MARSHALL: 19 Q Mr. Sherer, is there -- do you have exit 20 interviews with the people who come in and survey the 21 facility from AHCA? 22 A Yes. 23 Q What is the general purpose of those exit 24 interviews? 25 A The exit interview is in broad terms the CENTRAL FLORIDA REPORTERS, INC. 1548 1 findings of the survey verbally spoken by the surveyors. 2 Q And can you just tell us in general terms what 3 this annual survey process is? 4 A Yes. As already been mentioned, it is an 5 annual process every nursing home in the state of 6 Florida goes through. Pardon me. And in summary it is 7 a report card, if you will, and it's -- there's over 8 500, 600 tags that can be cited. It's quite voluminous. 9 Q So is it -- 10 A And once the survey is over, it's generally a 11 three, four-day process, there's an exit interview 12 generally had. And then also, it's already been 13 mentioned by Mr. Osborne, AHCA submits that report back 14 to the facility within ten days. Then the facility has 15 ten days to write a Plan of Correction and submit it to 16 AHCA for approval and implementation. 17 Q And then does AHCA come back -- 18 A Yes. 19 Q -- and look at the facility again to make sure 20 those items have been dealt with? 21 A Yes, that's correct. 22 Q Is this kind of a state-mandated quality 23 assurance program? 24 A Yes, it's a -- well, it's state and federal, 25 Medicare -- Medicare federal and Medicaid state. CENTRAL FLORIDA REPORTERS, INC. 1549 1 Q Now, as the administrator at the Sunbelt 2 Nursing Home, do you have an understanding of how the 3 time keeping system for the employees worked? 4 A Yes. 5 Q Please explain to the Jury the 6 procedure -- let me ask you this first. Was there a 7 procedure for clocking in and clocking out? 8 A Yes. 9 MR. OSBORNE: Object beyond the scope of 10 direct. 11 MS. MARSHALL: Your Honor, I thought we had an 12 agreement. 13 THE COURT: Approach the Bench. 14 (Whereupon there was had a discussion at the 15 Bench out of the hearing of the Jury.) 16 THE COURT: Are you going to make her recall 17 him? 18 MR. OSBORNE: I withdraw my objection. 19 THE COURT: Thank you. 20 (Whereupon the discussion at the Bench was 21 concluded, after which the following proceedings 22 were had.) 23 BY MS. MARSHALL: 24 Q Mr. Sherer, was there a procedure for clocking 25 in and out? CENTRAL FLORIDA REPORTERS, INC. 1550 1 A Yes. 2 Q Okay. Who was required to use the time clocks 3 or punch in and out? 4 A Well, it would be those employees that were 5 hourly employees -- 6 Q Okay. Were there also -- 7 A -- as opposed to not salaried. 8 Q Were there some employees that were salaried? 9 A Yes. 10 Q Was -- do you recall whether Mary Thornton was 11 a salaried employee? 12 A Yes, she, she was. 13 Q She was -- so she didn't have to use the time 14 clock? 15 A No. 16 Q Can you explain just generally for the Jury 17 what the procedure was for clocking in and out? 18 A Each employee has a time card, or actually it 19 was a name badge, and then on the back was a magnetic 20 strip with their information on it. And when they 21 reported for work they would swipe, and then when they 22 left work they would swipe. And the time clock, of 23 course, would tabulate their hours and figure their 24 paycheck. 25 Q And what would happen if they forgot to punch CENTRAL FLORIDA REPORTERS, INC. 1551 1 in or punch out, swipe the time clock? 2 A If they forgot to swipe in, swipe out? 3 Q Correct. 4 A There was -- well, first of all, obviously 5 there wouldn't be any time recorded for them. And then 6 it was -- the system, the payroll system would generate 7 a missed punch report, meaning that they didn't punch. 8 And then there would be names, a couple of names, 9 whatever. And then it was up to the employee then to 10 get their supervisor to go and say, well, I worked from 11 7:00 to 3:00 and have the supervisor approve that. 12 If I recall, there was maybe even a piece of 13 paper -- I believe there was a piece of paper called a 14 Missed Punch, and they would have to sign that they 15 worked those hours. And then the supervisor would sign 16 off on it and it would go to payroll. And it would be 17 manually input into the system and the -- I guess 18 that's -- 19 Q Okay. That answers my question. And so if 20 there was a -- if there were any kind of -- well, let me 21 back up for a second. 22 Do you remember Connie Standish? 23 A Yes. 24 Q When did -- or what did Connie Standish do at 25 Sunbelt? CENTRAL FLORIDA REPORTERS, INC. 1552 1 A She was -- an MDS care plan nurse was her 2 title. 3 Q Okay. And do you recall when she was there at 4 Sunbelt? 5 A I can't recall dates. I mean, she was there 6 while I was there. She left before I left if I recall. 7 Q Okay. Do you recall whether or not she worked 8 on weekends ever? 9 A Her job, that job being an MDS care plan 10 coordinator, typically was a Monday through Friday job. 11 However, there was some flexibility in that position, 12 and I believe Connie would work some weekends. 13 Q Do you remember how many times she worked on 14 the weekends? 15 A Not exactly, no. Probably, probably would not 16 be unusual for her to work once a month on a weekend 17 day, come in on a Saturday or Sunday. 18 Q Okay. Now, do you know when Connie Standish 19 resigned from Sunbelt? 20 A It was in fall -- probably the fall of 1999. 21 I don't know, maybe October or somewhere in there. 22 Q Okay. And do you know whether she was 23 eligible for rehire? 24 A Excuse me. My recollection was that she was 25 not. CENTRAL FLORIDA REPORTERS, INC. 1553 1 Q Do you know why? 2 A She did not give a notice. Staff members that 3 would not give a full notice would not be eligible for 4 rehire. 5 Q They were required to give two weeks' notice? 6 A For that position, it would have been a 7 two-week notice. 8 Q So to the best of your recollection, she 9 didn't give her full two-week notice and that's why she 10 wasn't eligible for rehire? 11 A Yes. 12 Q You testified -- do you know when Rachel Bean 13 left Sunbelt? 14 A She left in December of '99. 15 Q And what about Mary Thornton, do you remember 16 when she left? 17 A She left before Rachel but still fairly close. 18 Probably December. 19 Q Now, you testified a little bit about your 20 involvement with Mrs. Destefano. Do you recall that 21 testimony with Mr. Osborne when you were discussing what 22 your involvement was with calling the Department of 23 Children and Families in September of 1999? 24 A Yes. It was minimal involvement, but I was 25 informed by Ms. Bean of what she saw. I questioned her CENTRAL FLORIDA REPORTERS, INC. 1554 1 twice, is she sure, and she said yes. And I concurred 2 that she needed to call it in then. 3 Q Okay. You had -- 4 A The administrator is supposed to be apprised 5 of those kind of situations. 6 Q Excuse me? 7 A The administrator would be apprised of those 8 kind of situations. 9 Q You said that there was -- as far as an 10 internal investigation, what did -- what, if anything, 11 did the Sunbelt Nursing Home do? 12 A Statements were taken. 13 Q From who? Who were the statements -- 14 A I think Rachel Bean wrote one and I think 15 Ms. Thornton wrote one. I'm not sure. I can't say. 16 Possibly Ms. Boze, I don't remember. 17 Q Okay. Do you recall if there was some nurse's 18 aides who also wrote some statements? 19 A I don't recall. 20 Q Do you remember what was done with the 21 statements? 22 A No, I don't. 23 Q Were they furnished to the Department of 24 Children and Families? 25 A Yes, I'm sure they were. I mean, anything CENTRAL FLORIDA REPORTERS, INC. 1555 1 that the facility would have found out, that's part of 2 the law, would be given to DCF. But here again, I'd 3 like to stress there wasn't much -- you know, it wasn't 4 necessary for -- it's like if you have an unknown -- an 5 injury of unknown origin, that's kind of serious in a 6 nursing facility. You want to know -- you want to make 7 sure your residents are cared for. 8 So if there's something that's not known how 9 that injury occurred, then there would be an 10 investigation. This was something that was seen and was 11 called in to Department of Children and Families. So 12 the extent of the investigation was receiving statements 13 from people who said they saw what they saw. 14 Q And did the Department of Children and 15 Families do an investigation? 16 A Yes. 17 Q Now, Mr. Osborne also inquired to you about 18 some phone numbers that were written on I think it was 19 Exhibit No. 17. Do you have that in front of you? 20 A Yes, ma'am. 21 Q And are those people that you kept informed or 22 apprised about what was going on with Mr. Destefano's 23 picketing outside of the building? 24 A I would say some, maybe a couple are. There's 25 others that I do not remember, I just have their name CENTRAL FLORIDA REPORTERS, INC. 1556 1 written down. 2 Q What was the reason that you were asked to 3 keep a log or a list of the happenings with regard to 4 the picketing out in front of the Sunbelt Nursing Home? 5 A Well, I think it's just prudent. It's just 6 good business practice in any business, if there's an 7 unusual occurrence, that you keep yourself some notes 8 and that's what I did. And that's what Ms. Fetters and 9 I -- she had directed me to do. 10 Q Do you recall when -- or let me ask you it 11 this way. When did Mr. Destefano start picketing in 12 front of the nursing home? 13 A The best of my recollection, it was a few days 14 after the incident or after she was transferred from our 15 facility to the hospital. 16 Q And how long to the best of your knowledge was 17 he out there, did he picket in front of the building? 18 A Oh, I don't know. I mean, overall the 19 picketing probably went on, I don't know, a year. 20 Q And when -- 21 A And sometimes it was off and on. 22 Q When did you leave? 23 A 2000. I think it was possibly the middle of 24 2000. 25 Q Okay. Do you recall whether he was still CENTRAL FLORIDA REPORTERS, INC. 1557 1 picketing when you left? 2 A I really don't. I don't recall. 3 Q Okay. Did you ever speak to him while he was 4 picketing? 5 A Yes. 6 Q And what happened? 7 A Well, one occasion actually I had residents 8 and families that came and, you know, were complaining 9 to me that Mr. Destefano was blocking the -- 10 MR. OSBORNE: Objection, hearsay. 11 THE COURT: Sustained. 12 BY MS. MARSHALL: 13 Q Without telling me what anybody else said to 14 you, other than what Mr. Destefano may have said to you, 15 can you tell me what happened? 16 A I don't quite understand. 17 Q Well, did you have any conversations with 18 Mr. Destefano -- 19 A Yes, I did. 20 Q -- while he was picketing? 21 A Yes. 22 Q Okay. And can you -- 23 A I went out to the parking lot where he was, 24 the complaint was that he was blocking the parking lot, 25 and asked him to stand aside, stay aside. And he told CENTRAL FLORIDA REPORTERS, INC. 1558 1 me he didn't give a shit what I thought, told me to go 2 fuck myself. And as I was walking away, he hollered 3 that Adventists fuck their children. 4 Q Did you have any other conversations with 5 Mr. Destefano? 6 A Over the phone. 7 Q And what happened? What was that -- 8 A If I recall, I think a couple of 9 conversations. And something that's been submitted as 10 evidence is basically a summary of one of those 11 conversations. 12 Q Was that attached to your deposition? Was 13 that one of the -- those documents -- 14 A Yes. 15 Q -- that you're referring to? Would that 16 refresh your memory about what the conversation was? 17 A Yes. Excuse me. 18 Q Just a minute, Mr. Sherer, I have your 19 deposition here. Mr. Sherer, let me show you a copy of 20 your -- is that what you were looking for? 21 A Yes. 22 Q Can you tell me what your -- what your 23 conversation -- or what Mr. Destefano relayed to you. 24 A Okay. It was on -- asked to speak with me on 25 12/30/99. CENTRAL FLORIDA REPORTERS, INC. 1559 1 MR. OSBORNE: Your Honor, I think the proper 2 way is to read the document, close the book and see 3 if it refreshes his memory, not to read from the 4 document. 5 MS. MARSHALL: I agree. 6 BY MS. MARSHALL: 7 Q Could you, Mr. Sherer, let that document 8 refresh your memory, and then testify if your memory is 9 so refreshed as to what happened? 10 A Okay. I've read it. There's a lot in there. 11 Q That's not what you were looking for? 12 A Yeah, yeah, that's it. 13 Q Okay. Does that refresh your memory about 14 your further contact with Mr. Destefano? 15 A I remember -- I remember receiving the phone 16 call and this refreshes my memory. 17 Q Okay. Can you tell us what, what, what 18 further conversations or encounters that you had with 19 Mr. Destefano after the one that you just told us about? 20 MR. OSBORNE: Your Honor, he needs to close 21 it. Thank you, sir. 22 A The phone call was -- he had asked to speak 23 with me so I took the call. He said he appreciated me 24 taking the call, you know, so we could talk man to man. 25 He wanted to talk about Rachel Bean. He asked about CENTRAL FLORIDA REPORTERS, INC. 1560 1 her, asked about an investigation. 2 I responded that basically the 3 investigation -- we did what we had to do. It's 4 incumbent upon any health care provider to -- when 5 there's suspicion of something, abuse to call it in. 6 And I explained that's what we did. And the 7 conversation was fairly cordial. 8 He said that since I had taken the call, that 9 he probably wasn't going to come back and picket again 10 in the first of the year. He was asking if his actions 11 had hurt the facility. And I said, yeah, it had caused 12 us problems. And so he seemed to be pleased that -- or 13 that was my feeling, that he had some satisfaction that 14 he had defended his mother's honor. That's my 15 interpretation, you know, it's kind of how he felt. He 16 brought some kind of closure to it. 17 And then he said he had a customer come in. I 18 heard something in the background, and he said he had a 19 customer he had to go tend with so we said goodbye. 20 Q Okay. Did he in fact come back after that? 21 A Yes, ma'am. 22 Q Okay. Did he ever call you at home? 23 A Yes. 24 Q Okay. And what, what happened when he called 25 you at home? Why was he calling you at home? CENTRAL FLORIDA REPORTERS, INC. 1561 1 A If my memory serves me, it was after I left 2 Sunbelt Health Care Subacute. And my child answered the 3 phone, and he identified himself as somebody -- not his 4 name, somebody else. And so she said -- you know, she 5 brought me the phone, said so and so, and then I picked 6 up and it was Larry. 7 Q And what did he say to you? 8 A And something to the effect that -- and I 9 didn't make any notes on this, but something to the 10 effect that he was wanting to show, show me something, 11 could he come over and show me something and I said no. 12 And I said I didn't have anything further to discuss 13 with him. In fact, that I had left that facility and 14 didn't have anything else to say to him. 15 MS. MARSHALL: I have no further questions, 16 Your Honor. 17 MR. TOWNSEND: Just briefly, Your Honor. 18 THE COURT: Yes. 19 - - - - - 20 CROSS EXAMINATION 21 BY MR. TOWNSEND: 22 Q Mr. Sherer, I believe you testified that -- 23 you told Mr. Osborne you were not involved in the 24 original directing of the transfer of Mrs. Destefano out 25 of the nursing home, correct? CENTRAL FLORIDA REPORTERS, INC. 1562 1 A Right. 2 Q And you really only had that you can recall 3 one conversation with somebody at ORHS that had 4 something to do with taking her back to the nursing 5 home, correct? 6 A That's correct. 7 Q And I don't know if this was an intentional -- 8 I don't mean intentional but a misspeaking. You said 9 you called a Dr. Young at ORHS. You don't know that 10 Dr. Young is at ORHS, do you? 11 A I said I called a Dr. Young? When did I say 12 that? 13 Q I think it was read to you and I think you 14 agreed. And it may have -- it may have been a 15 misspeaking. 16 A Okay. 17 Q To clarify -- 18 A No, I didn't call Dr. Young. 19 Q -- you didn't call a Dr. Young at ORHS? 20 A Not that I remember. If you want to me show. 21 Q I'm not saying you did. I don't believe you 22 did. I want to clarify for the record, you did not call 23 anybody called Dr. Young? 24 A No. 25 Q Your only conversation with anybody at ORHS CENTRAL FLORIDA REPORTERS, INC. 1563 1 was with an ER doctor around 6:00 about taking 2 Ms. Destefano back to Sunbelt? 3 A That's correct. 4 Q And you never spoke to a lady called Lillian 5 Folley? 6 A Not to my knowledge. 7 Q You don't know who she is? 8 A No, I don't know that name. 9 Q You never spoke to a lady called Kelly Pipkin 10 Gregg, did you? 11 A Not that I remember. 12 Q You don't even know who that is, do you? 13 A No. 14 MR. TOWNSEND: That's all I have. Thanks. 15 THE COURT: Redirect? 16 MR. OSBORNE: None, Your Honor. 17 THE COURT: Ladies and Gentlemen of the Jury, 18 do you have any questions for this witness? You 19 have one question? I'd ask Counsel to approach the 20 Bench. Mr. Sherer, in just a moment I'm going 21 to -- may read a question to you that's from a 22 juror and ask that you turn and direct your answer 23 to the Jury. 24 COURT DEPUTY: All rise for the Jury. 25 THE COURT: No. I'm sorry, Clint, I just want CENTRAL FLORIDA REPORTERS, INC. 1564 1 you to get the question and read it to me. They're 2 just having a stretch. 3 COURT DEPUTY: My fault. I apologize. 4 THE COURT: That's okay, no problem, Clint. 5 (Whereupon there was had a discussion at the 6 Bench outside the hearing of the Jury.) 7 THE COURT: Here we go. Okay. How did Larry 8 Destefano obtain your phone number at home? No 9 objection? 10 MS. MARSHALL: No objection. 11 THE COURT: Why was Rachel Bean terminated? 12 No objection? 13 MR. OSBORNE: No objection. 14 THE COURT: Okay. Did you receive complaints 15 from other nurses regarding Rachel's professional 16 behavior? You have no objection? 17 MS. MARSHALL: I have no objection. 18 MR. TOWNSEND: No objection. 19 MS. MARSHALL: I don't know that he knows it. 20 That's okay. The termination, that's okay. 21 THE COURT: Okay. Did Constance Standish 22 complain about Rachel Bean? If so, what did he do? 23 MR. OSBORNE: That's fine. 24 THE COURT: Other than terminating her for not 25 giving proper notice, is there any other reason CENTRAL FLORIDA REPORTERS, INC. 1565 1 why, I assume Standish, should have been 2 terminated? 3 MS. MARSHALL: She wasn't terminated, she 4 resigned. 5 THE COURT: The question I guess -- 6 MR. EVANS: They're probably asking about why 7 she couldn't be rehired. 8 THE COURT: The objection I guess is assumes 9 facts not in evidence? 10 MS. MARSHALL: Correct. 11 MR. OSBORNE: Correct. 12 THE COURT: That's not proper. I'm not going 13 to give that. Wait, wait, there's -- were the 14 departure of Constance, Mary and Rachel in such a 15 close time frame as a result of this case? 16 MS. MARSHALL: That's, that's fine. 17 THE COURT: Okay. Why did salaries -- why did 18 salaried employees punch in? 19 MS. MARSHALL: They didn't punch in. He 20 testified they don't punch in. 21 MR. TOWNSEND: I think that's a proper 22 question 'cause he can then clarify it. 23 THE COURT: No objection? 24 MS. MARSHALL: No objection. 25 MR. OSBORNE: No objection. CENTRAL FLORIDA REPORTERS, INC. 1566 1 THE COURT: Okay. 2 (Whereupon the discussion at the Bench was 3 concluded, after which the following proceedings 4 were had.) 5 THE COURT: Okay. Mr. Sherer, I'm going to 6 ask you these questions. Direct your answers to 7 the Jury, then I'll give them an opportunity to ask 8 further questions if they like, okay? 9 THE WITNESS: Yes, Your Honor. 10 THE COURT: How did Larry Destefano obtain 11 your phone number at home? Answer to the Jury, 12 please. 13 THE WITNESS: I don't know. It was in the 14 phone book. 15 JUROR: In the public -- 16 THE WITNESS: Yes, in the phone book. 17 THE COURT: Okay. If you got any follow-up 18 questions, I'll let you write them down. I know 19 you have an urge to do that, but let's resist the 20 urge. Why was Rachel Bean terminated? 21 THE WITNESS: I don't know all the details on 22 that. And the reason -- I mean, normally I was -- 23 because I was the administrator, she worked for me, 24 but I was on vacation. And it's typical in our 25 business that when an administrator goes on CENTRAL FLORIDA REPORTERS, INC. 1567 1 vacation, there's a regional that -- whoever the 2 administrator reports to, the director of nursing 3 is in charge. And in this case it was Michelle 4 Fetters, Ms. Fetters. 5 And you'll need to probably question 6 Ms. Fetters about any details. I was out of town. 7 And Ms. Fetters and I spoke on the phone, and we 8 basically concurred that, you know, that's what 9 should happen. 10 THE COURT: Okay. Did you receive complaints 11 from other nurses regarding Rachel's professional 12 behavior? 13 THE WITNESS: No, not that I can recall. 14 THE COURT: Did Constance Standish complain 15 about Rachel Bean? 16 THE WITNESS: To me? 17 THE COURT: Did Constance Standish complain 18 about Rachel Bean? If so, what did you do? 19 THE WITNESS: She did not that I can recall, 20 no. 21 THE COURT: Were the departures of Constance, 22 Mary and Rachel in such a close time frame as a 23 result of this case? 24 THE WITNESS: I'm sorry, were the departures 25 of -- CENTRAL FLORIDA REPORTERS, INC. 1568 1 THE COURT: Constance, Mary and Rachel in such 2 a close time frame a result of this case? 3 THE WITNESS: I can't -- I don't recall that. 4 I don't think so. Going back, trying to reach back 5 five or six years and remember how things played 6 out is pretty difficult. But Constance, or Connie, 7 she resigned. And quite frankly I don't remember 8 why she resigned. 9 I got a copy of the resignation letter and she 10 was appreciative of the opportunities of the 11 company and blah, blah, blah. It was a cordial 12 resignation. And Ms. Thornton resigned to 13 Ms. Bean, who was her direct supervisor. And then 14 Ms. Bean resigned to Ms. Fetters, if that's what 15 happened. I'm a little bit unclear as to if it was 16 a termination or a resignation. 17 THE COURT: Why did salaried employees punch 18 in? 19 THE WITNESS: Why did they? 20 THE COURT: Why did salaried employees punch 21 in? 22 THE WITNESS: Why did they or did not? 23 THE COURT: Did they. 24 THE WITNESS: I'm not familiar with them 25 punching in. Salaried employees would not have CENTRAL FLORIDA REPORTERS, INC. 1569 1 punched in. They would have kept a time record 2 but -- 3 THE COURT: Okay. Any follow-up questions, 4 Ladies and Gentlemen? One? Okay. Let's approach, 5 please. 6 (Whereupon there was had a discussion at the 7 Bench outside the hearing of the Jury.) 8 THE COURT: Mary Thornton showed missing time 9 on her time sheet for one week. Did she use other 10 means of time keeping? 11 MR. OSBORNE: That's fine. 12 THE COURT: No objections? 13 (Whereupon the discussion at the Bench was 14 concluded, after which the following proceedings 15 were had.) 16 THE COURT: Mr. Sherer, Mary Thornton showed 17 missing time on her time sheet for one week. Did 18 she use other means of time keeping? Do you want 19 me to repeat the question? 20 THE WITNESS: Yes, please. 21 THE COURT: Mary Thornton showed missing time 22 on her time sheet for one week. Did she use other 23 means of time keeping? 24 THE WITNESS: To the best of my recall she was 25 salaried. So I don't -- I don't know that a piece CENTRAL FLORIDA REPORTERS, INC. 1570 1 of paper or whatever that y'all have seen or 2 someone's seen that you're referring to. If I saw 3 it, maybe I could clarify it. But if she was 4 asking for PTO or paid time off, then it would be 5 customary for her to put that in writing. 6 THE COURT: Any other questions from the Jury? 7 THE WITNESS: Your Honor? 8 THE COURT: Yes, sir? 9 THE WITNESS: May I clarify something? 10 THE COURT: No, sir, not unless it's in 11 response to that last -- do you have further 12 response to that last question? 13 THE WITNESS: Not that last question, no. 14 THE COURT: Okay. Thank you. 15 MS. MARSHALL: I have a follow-up question. 16 THE COURT: Okay. We got one more question 17 from the Jury. 18 MS. MARSHALL: Oh, I'm sorry. 19 THE COURT: And counsel would please approach. 20 (Whereupon there was had a discussion at the 21 Bench outside the hearing of the Jury.) 22 THE COURT: Since you hired Rachel Bean, 23 wouldn't you request -- I think that must be more 24 detail regarding her dismissal from the nursing 25 home? Is that what that says? CENTRAL FLORIDA REPORTERS, INC. 1571 1 MR. OSBORNE: Yes. Yes. 2 THE COURT: And no objection? 3 MS. MARSHALL: No objection. 4 MR. TOWNSEND: No, ma'am. 5 (Whereupon the discussion at the Bench was 6 concluded, after which the following proceedings 7 were had.) 8 THE COURT: Mr. Sherer, since you hired Rachel 9 Bean, wouldn't you request more detail regarding 10 her dismissal from the nursing home? 11 THE WITNESS: As I said earlier, Ms. Fetters 12 and I spoke about it so we had conversation about 13 it during that conversation. When I came back from 14 vacation, to the best of my recall she was gone, 15 but we spoke about it on the phone while I was out 16 of town. 17 THE COURT: Anything further from the Jury? 18 Mr. Osborne, do you have anything? 19 MR. OSBORNE: Nothing further. 20 THE COURT: Ms. Marshall? 21 MS. MARSHALL: I just have a quick follow-up. 22 - - - - - 23 RECROSS EXAMINATION 24 BY MS. MARSHALL: 25 Q Mr. Sherer, there has been discussion about CENTRAL FLORIDA REPORTERS, INC. 1572 1 these time punch records. And I'm going to just pull a 2 page out so you don't have to -- so you don't have to 3 find it in there. But there is a -- for the week of -- 4 or the pay period of September 19th, for that two-week 5 time period, 10-day time period, Mary Thornton's entry 6 doesn't show any time entered for that two weeks. Do 7 you see that? 8 A Mary -- oh, I'm sorry, I was looking at the 9 wrong employee. Yes. 10 Q And would a salaried person have to punch in 11 and punch out like other staff nurses? 12 A No. 13 Q Okay. And was Mary Thornton a salaried 14 employee? 15 A To the best of my recall she was. Her 16 position was such that I'm pretty -- that I remember it 17 was a salaried position. 18 Q Is there -- well, let me show -- this is out 19 of her personnel files that have been marked as 20 Plaintiff's Exhibit U, if I could show you that. Does 21 that refresh your recollection as to Mary Thornton's 22 status? 23 A Yes, it states the reason was salaried hours 24 were not input for that pay period. 25 Q Okay. CENTRAL FLORIDA REPORTERS, INC. 1573 1 A So that would be what the manual request was 2 for. 3 MS. MARSHALL: Okay. Thank you. I have no 4 further questions. 5 MR. OSBORNE: I have one. 6 MR. TOWNSEND: I have nothing. 7 THE COURT: Okay. Go ahead, Mr. Osborne. 8 - - - - - 9 REDIRECT EXAMINATION 10 BY MR. OSBORNE: 11 Q On that packet of pay records that you just 12 got, I want you to look through there and see if Rachel 13 Bean's name appears anywhere in that packet. While 14 you're at it, look for your name in there, too. 15 MS. MARSHALL: Your Honor, I'm going to 16 object. This wasn't related to that last question. 17 The last question and the follow-up had to do with 18 one juror's question as to Mary Thornton. 19 THE COURT: Overruled. 20 BY MR. OSBORNE: 21 Q You done looking? 22 A It's overruled? 23 THE COURT: You can answer. 24 A No, I'm not done looking. 25 THE COURT: Anything else, Mr. Osborne? CENTRAL FLORIDA REPORTERS, INC. 1574 1 BY MR. OSBORNE: 2 Q Did you finish looking, sir? 3 A No, sir. 4 Q All right. I'd like you to assume then for 5 the sake of my question, to keep you from looking, that 6 Rachel Bean's not in there. 7 A Well, I'm not going to assume anything. You 8 asked me -- 9 Q Okay. 10 THE COURT: Ladies and Gentlemen, at this time 11 let's take about a five-minute recess. And I'll 12 have the witness continue looking at the document 13 while we're in five-minute recess. 14 (Whereupon the Jury exited the courtroom.) 15 THE COURT: Mr. Osborne, you don't expect to 16 be longer with this witness, do you? 17 MR. OSBORNE: No, ma'am. 18 THE COURT: Okay. Mr. Sherer, can you hang in 19 there for another few minutes or do you need a 20 break? 21 THE WITNESS: I'm fine. 22 THE COURT: Okay. You lawyers can take a 23 five-minute recess if you need to. 24 (Whereupon, there was had a recess from 2:15 25 o'clock p.m., to reconvene at 2:20 o'clock p.m.) CENTRAL FLORIDA REPORTERS, INC. 1575 1 THE COURT: Everybody here? 2 MR. TOWNSEND: Yes, ma'am. 3 THE COURT: Bring them in. 4 (Whereupon the Jury entered the courtroom.) 5 THE COURT: Please be seated. Mr. Osborne. 6 MR. OSBORNE: Thank you, Your Honor. 7 THE COURT: Recognize the Jury. 8 BY MR. OSBORNE: 9 Q Mr. Sherer, have you completed your review of 10 those time sheets? 11 A I have, sir. 12 Q Is your name in there? 13 A No, sir. 14 Q Is Rachel Bean's name in there? 15 A I did not see it. 16 Q And you're not in there because you are not an 17 employee of the Sunbelt Health Center of the employees 18 listed there, correct? 19 A I don't know. 20 Q But that's a good reason for you not being in 21 there, isn't it? 22 A Yes, it is. I think there's -- here again, I 23 don't want to give an opinion, because I'm not qualified 24 to do so, on what entity owned what entity, owned what 25 entity that I worked for. CENTRAL FLORIDA REPORTERS, INC. 1576 1 Q Are you saying you don't know who you worked 2 for? 3 A Yes. 4 Q Okay. 5 A I'm saying I got my W-2 from who we talked 6 about earlier. 7 Q Okay. And just so I'm clear, the punch sheet 8 is a listing of all time entries when your badge goes 9 by? As you come in it punches you in and out, correct? 10 A You have to swipe. You take -- 11 Q You got to swipe? 12 A Yeah. 13 Q And Mary Thornton's name is in there because 14 she has to swipe, correct? Otherwise, her name wouldn't 15 be in that list of people, would it, in the punch detail 16 list? Why would her name be there if she didn't have to 17 swipe? 18 A I don't recall the system that much to where 19 if there was -- I mean, there were I saw a couple of 20 other names that were salaried people who were on there 21 but no time, just like Mary Thornton. So the system 22 itself I would imagine -- well, I don't even want to 23 suppose because I don't remember. 24 Q If you don't suppose about who your employer 25 is, I don't want you to suppose about how the punch CENTRAL FLORIDA REPORTERS, INC. 1577 1 clock works. 2 A Fair enough. 3 MS. MARSHALL: Objection, argumentative. 4 THE COURT: Sustained. 5 BY MR. OSBORNE: 6 Q If Mary Thornton said that she swiped her 7 badge, would you have any way to disagree with that? 8 A If she swiped her badge? 9 Q Yes, when she came in and out. 10 A I don't understand your question. 11 Q All right. I'll withdraw it. 12 MR. OSBORNE: No further questions. 13 THE COURT: Do you want to ask some further 14 questions? 15 MS. MARSHALL: No further questions, Your 16 Honor. 17 THE COURT: All right. So, Mr. Sherer, you're 18 excused. 19 THE WITNESS: I'm sorry? 20 THE COURT: You're excused. 21 THE WITNESS: Thank you. 22 THE COURT: Mr. Osborne, call your next 23 witness. 24 MR. OSBORNE: Michelle Fetters. 25 MICHELLE FETTERS, CENTRAL FLORIDA REPORTERS, INC. 1578 1 having been first duly sworn testified as follows: 2 DIRECT EXAMINATION 3 BY MR. OSBORNE: 4 Q Good afternoon, ma'am. 5 A Good afternoon. 6 Q You've had the benefit of sitting in and 7 listening to Mr. Sherer's testimony, haven't you? 8 A Yes. 9 Q In 1999 you were the regional director of 10 Sunbelt, correct? 11 A Correct. 12 Q You reported to Van Camp, who was president of 13 Rollins Bedford? 14 A Correct. 15 Q You are presently president of Rollins 16 Bedford? 17 A Correct. 18 Q You took Mr. -- you took Van Camp's position 19 when he retired? 20 A Yes. 21 Q You began working for Sunbelt in 1993? 22 A Yes, sir. 23 Q You are a Seventh-Day Adventist? 24 A Yes. 25 Q Your first job was at Walker Memorial Hospital CENTRAL FLORIDA REPORTERS, INC. 1579 1 in Pasco County? 2 A No, I believe that's in Highland County. 3 Q Okay. Highland County? 4 A I believe so. 5 Q Other than that, my question was correct? 6 A No, your question wasn't correct. 7 Q I mean other than the county. 8 A Yes. The hospital is correct, yes. 9 Q Okay. And that is an Adventist Health Systems 10 hospital as well? 11 A Yes. 12 Q Your mother and your father both worked there 13 at the time you went there, correct? 14 A Yes. I was a teenager. 15 Q And your father is now a nursing home 16 administrator? 17 A Yes. 18 Q And you are a -- you are licensed as a nursing 19 home administrator as well? 20 A Yes. 21 Q In fact, in 1998 before Chuck Sherer was hired 22 at Rollins Bedford, you were the administrator there? 23 A I was the interim administrator. 24 Q That means you were the administrator there? 25 A Correct. CENTRAL FLORIDA REPORTERS, INC. 1580 1 Q Okay. You graduated from Southern Adventist 2 University? 3 A With one of my degrees, yes. 4 Q And you did your internship at Florida 5 Hospital? 6 A No. 7 Q Where did you do your internship? 8 A I did my internship with Florida Living 9 Nursing Center. 10 Q Okay. Is that related to Florida Hospital? 11 A It's a sister company, it's not -- it's not 12 the same company, no. 13 Q In 1999 Rollins Bedford owned several nursing 14 home, did they not -- it not? 15 A I believe so. 16 Q Why then did you testify in your deposition in 17 this case that Rollins Bedford was a stand-alone 18 licensee that operated a single nursing home? 19 A As I recall in my deposition, we were speaking 20 of a specific facility, a specific incident and a 21 specific time frame. And it's been several years since 22 I've given it or a great while. I believe that when I 23 said that, I had been asked to speak directly to that 24 facility Sunbelt Health Care Centers, Orlando. And that 25 is a free-standing facility with a license that is its CENTRAL FLORIDA REPORTERS, INC. 1581 1 own. 2 Q The actual title of your employer is Sunbelt 3 Health Care Centers, Inc., correct? 4 A At the date of that incident? 5 Q Yes. 6 A Yes. 7 Q And they use -- a d/b/a is used for a doing 8 business as a fictitious name of Adventist Care Centers? 9 A Yes. 10 Q Now, in 1999 all of the administrators of the 11 Sunbelt Nursing Homes -- did you tell me -- strike that. 12 In 1999 all administrators of the Sunbelt 13 Nursing Home were SHCC employees, correct, Sunbelt 14 Health Care Centers employees? 15 A They were employees of Sunbelt Health Care 16 Centers, Inc., not SHCC Services, Inc. 17 Q Right. I meant the Inc., not the Services. 18 A Okay. Yes. 19 Q And in September of 1999, Chuck Sherer was an 20 employee of Sunbelt Health Care Centers, Inc.? 21 A Check Sherer received his paycheck from 22 Sunbelt Health Care Centers, Inc. However, he worked at 23 Rollins Bedford Corporation. 24 Q I know his physical location was at Rollins 25 Bedford but his employer, as reported to the United CENTRAL FLORIDA REPORTERS, INC. 1582 1 States government, was Sunbelt Health Care Centers, 2 Inc., isn't that true? 3 A Yes. Sunbelt Health Care Centers, Inc., 4 processed the paychecks and benefit packages for the 5 administrators and DONs for all of our facilities. They 6 were a payroll processing -- it was all charged back to 7 the individual facilities for which they worked. 8 Q My question was very simple. As far as Uncle 9 Sam was concerned, his employer was Sunbelt Health Care 10 versus Inc., isn't that true? 11 A Yes. That is who would have provided the 12 941s. 13 Q And since -- in September of 1999, all the 14 directors of nursing were also employees of Sunbelt 15 Health Care Centers, Inc., just like Mr. Sherer, 16 correct? 17 A Yes, the same arrangement where they process 18 their paychecks and their benefits. 19 Q Let's talk about September 21st of 1999. 20 A Okay. 21 Q You were out of the country and on vacation? 22 A Correct. 23 Q You were the one that was in Hawaii? 24 A I was. 25 Q Okay. I knew I got it from somewhere. You CENTRAL FLORIDA REPORTERS, INC. 1583 1 received a call from Mr. Sherer telling you about the 2 incident with Larry Destefano? 3 A Correct. 4 Q You were told that nurses had reported 5 inappropriate behavior and a minimal amount of blood on 6 a bed pad? 7 A As I recall, he reported to me that there was 8 inappropriate behavior, some aggressive-type behavior, 9 as well as a minimal amount of blood or belligerent 10 behavior, somewhere along those lines. I recall there 11 being three issues. 12 Q And you instructed him to get documentation? 13 A Didn't instruct him. I advised him and asked 14 what he had done and had he already -- they were already 15 working on that, and I advised him that that was the 16 correct thing to do. 17 Q You weren't told during this phone call that a 18 trespass warning had been issued on Larry Destefano, 19 were you? 20 A I do not recall. That was six years ago. 21 Q You instructed him to call -- strike that. 22 You instructed him to call her physician and 23 to send her to the hospital if the doctor so directed, 24 correct? 25 A As I recall, I instructed him that if there CENTRAL FLORIDA REPORTERS, INC. 1584 1 were any questions about the minimal amount of blood on 2 the pad, that they -- that I would advise them to 3 contact the physician who could do an evaluation and/or 4 make a decision to send the patient to a hospital for 5 further evaluation. 6 Q Now, you mentioned the belligerent behavior 7 you were told about. 8 A Yes. 9 Q You weren't really concerned about that 10 because that happens quite often at a nursing home, 11 doesn't it? 12 A That is correct. 13 Q And nobody expressed to you that there was any 14 concern about the safety of your employees at that time 15 either, did they? 16 A I don't believe that's correct. I believe 17 there was some fear from the employees that was 18 expressed to me, but I, I don't recall exactly who 19 expressed that and to who extent. 20 Q And let me see if this refreshes your memory. 21 I'm going to look at page 19 of your first deposition. 22 And to put it in context, Ms. Fetters, just read from 23 line 12 to line 20. 24 A Okay. 25 Q And I think you're talking about your CENTRAL FLORIDA REPORTERS, INC. 1585 1 conversation with Mr. Sherer. 2 MS. MARSHALL: What page? 3 MR. OSBORNE: Is it 19, Ms. Fetters? Yes, 19. 4 A Yes. Yes, it says that that was not my 5 primary concern, and that I didn't give him any advice 6 on the belligerent behavior. 7 Q And he hadn't expressed anything to you about 8 any concern about safety as well, correct? 9 A My answer was unless it escalates to a degree 10 of safety, and he didn't express a large degree of 11 safety issues. 12 Q Okay. Well, actually you said -- your 13 testimony was unless it escalates to a degree of safety, 14 which at that moment he had not expressed that, correct? 15 A To a high degree of safety, yes. But the 16 primary concern when he called me and when I was 17 answering that question was the patient. That's our 18 primary concern. It's correct I was not primarily 19 concerned with the belligerent behavior. 20 Q My only question was you didn't say that he 21 hadn't expressed anything about a high degree of safety, 22 you said he expressed nothing about any safety concerns, 23 correct? 24 A He had expressed some concerns of fear, but he 25 did not express that he felt our employees were unsafe CENTRAL FLORIDA REPORTERS, INC. 1586 1 at that time. 2 Q He did talk about belligerent behavior, you 3 mentioned that. 4 A Yes. 5 Q He talked about blood? 6 A A minimal amount of blood. 7 Q A minimal amount of blood? And he talked 8 about inappropriate behavior? 9 A Yes. 10 Q Where did he say anything about fear? You 11 said nothing in your deposition that he expressed there 12 was fear on the part of the employees, did you? 13 A Well, perhaps I wasn't asked. It's been a 14 long time since I gave that deposition. 15 Q The first call that was made to you was about 16 11:00 o'clock in the morning local time in Orlando? 17 A I believe. I couldn't recollect for sure. 18 Q You got a second call about 1:45 local time in 19 Orlando? 20 A Once again, I couldn't recollect. 21 Q The first call you understood was mainly about 22 concern for the resident, correct? 23 A Correct. 24 Q When you were observed -- what you were told 25 is that the son was observed kissing his mother CENTRAL FLORIDA REPORTERS, INC. 1587 1 inappropriately and lying in her bed, correct? 2 A I don't recall the exact words but, yes, it 3 was somewhere along those lines. 4 Q Let me ask you to look at page 21 of your 5 first deposition, lines 13 and 17, and see if that 6 refreshes your memory, ma'am. 7 A Yes. 8 Q Okay. So that's what you were told? 9 A Along the lines of kissing and lying in the 10 bed, yes. 11 Q Okay. And you told Mr. Sherer to interview 12 the witnesses and get written statements, correct? 13 A I asked him if he had done that and advised 14 him that that would be an appropriate thing to do. And 15 he said that they were in the process of doing that as I 16 recall. 17 Q And you instructed him to investigate the 18 incident? 19 A That would have been the statements that they 20 were getting, which I advised him to get. 21 Q And you did an internal investigation as well, 22 didn't you? 23 A I don't understand the question. 24 Q Did you do an internal investigation? 25 A That would have been the statements from those CENTRAL FLORIDA REPORTERS, INC. 1588 1 who expressed an observation. 2 Q Okay. And you also told him to have a report 3 made to DCFS, didn't you? 4 A I advised him that that was the appropriate 5 thing to do when he said that that is what they were 6 planning to do. 7 Q You got a second call later that day relating 8 to picketing by Larry Destefano, didn't you? 9 A I don't recall if it was that day. It may 10 have been. 11 Q You testified in your deposition in this case 12 that was fine so long as it was on public property? 13 A Yes, as long as it was on public property, I 14 didn't mind. 15 Q In fact, you also told Mr. Sherer to contact 16 Florida Hospital security, risk management, public 17 relations and Mr. Worner's office, correct? 18 A I would have to deal with them all 19 individually 'cause there was a reason for each one. 20 Q All right. Let's talk about -- you told him 21 to contact Florida Hospital security about the 22 picketing? 23 A Yes, because it affected their property as 24 well. 25 Q You told him to contact risk management? CENTRAL FLORIDA REPORTERS, INC. 1589 1 A I told him to contact risk management, which 2 for our division would have been the claims manager, 3 simply to report an incident that was reportable. 4 Q You told him to contact public relations? 5 A Yes, since we had an incident occurring in 6 front of not only our facility but the -- our sister 7 facility as well. 8 Q You told him to contact Mr. Worner's office? 9 A Yes, so that he would be aware -- if he heard 10 something through the grapevine, that he was aware of 11 what subsidiaries of his were being affected by the 12 picketing. 13 Q The investigation that you ordered Mr. Sherer 14 to do or instructed him to do would have been handled by 15 Sherer, the nurses and social services, correct? 16 A I did not order them to do an investigation. 17 I advised them to. And they said they were already 18 obtaining statements, which would have been the correct 19 investigation in this situation. 20 Q Social services never got involved with any 21 investigation, did they? 22 A I'm not aware. 23 Q You instructed Mr. Sherer to keep a log of 24 events as well, correct? 25 A I advised him that that would be a wise thing CENTRAL FLORIDA REPORTERS, INC. 1590 1 to do. 2 Q You yourself never took any steps to 3 investigate this matter at the time or since? 4 A I reviewed the statements of the -- of those 5 who gave statements, and in this situation the 6 statements were an appropriate investigation. I 7 personally didn't go take statements or do an 8 investigation, no. 9 Q Isn't it a fact you never have read or -- at 10 least at the time of your deposition, 2003, you never 11 read any of the statements by the nurses involved? 12 A I haven't read them. They were read to me. I 13 was away, as you recall. 14 Q When you got back from Hawaii, you never read 15 any of these statements that the nurses had written, did 16 you? 17 A No. They had been read to me. I have since 18 read them. 19 Q You have since read them? 20 A Yes. 21 Q Rachel Bean was terminated by you, wasn't she? 22 A No, sir, she was not terminated. She 23 resigned. 24 Q You disagree with Mr. Sherer about that, don't 25 you? CENTRAL FLORIDA REPORTERS, INC. 1591 1 A I do. 2 Q Mary Thornton was terminated, was she not? 3 A I do not recall. 4 Q You advised Mr. Sherer to contact risk 5 management on 9/21/99, and that person would have been 6 Ina Edders, correct? 7 A Correct. She was our claims adjustor. 8 Q And her office is at the offices of Adventist 9 Health Systems on 17-92? 10 A I believe she's in an office next door to 11 their office. 12 Q At that time? 13 A I believe. 14 Q Okay. 15 A To the best of my recollection. 16 Q The risk management for Adventist Health 17 Systems handled the claim regarding issues for Rollins 18 Bedford as well, did it not? 19 A Can you repeat that question? 20 Q Yeah. The risk management for Adventist 21 Health Systems handled claims on issues dealing or 22 related to Rollins Bedford? 23 A Adventist Health Systems risk managers served 24 as claims managers for Sunbelt Health Care Centers, Inc. 25 They simply handled the reporting to insurance CENTRAL FLORIDA REPORTERS, INC. 1592 1 companies, if necessary. Any reportable event was 2 reported to them, and they would have to make a decision 3 on reporting the incident to insurance for future claims 4 against the incident. 5 Q That 17-92 office you referred to, the offices 6 of Adventist Health Systems, Mr. Worner's office is 7 there as well? 8 A Yes. 9 Q And who is Mr. Worner? 10 A He's the president of Adventist Health 11 Systems. I couldn't tell you the legal -- the whole 12 legal name of it but -- 13 Q You go to that building at least monthly to 14 drop off financial statements for SHCC and Rollins 15 Bedford, don't you? 16 A Correct. 17 Q You use their conference room facilities as 18 well? 19 A On occasion. 20 Q Let's talk about some other issues related to 21 your job in 1999. When Van Camp took over in 1998, he 22 appointed you head of the quality assurance committee, 23 did he not? 24 A No. 25 Q Were you appointed to the quality assurance CENTRAL FLORIDA REPORTERS, INC. 1593 1 committee? 2 A We do not have a quality assurance committee 3 at Sunbelt Health Care Centers, Inc. 4 Q Is there a quality assurance manual at Sunbelt 5 Health Care Centers? 6 A Not at Sunbelt Health Care Centers, Inc., no, 7 not that I'm aware of. 8 Q Doesn't a nursing home at -- every nursing 9 home that's within the system of Adventist Health 10 Systems have a quality assurance or a policy and 11 procedure manual at every nursing home, every nursing 12 station? 13 A Are you asking about quality assurance or 14 policies and procedures? 15 Q Policies and procedures manual. 16 A The facilities, yes, would have policies and 17 procedures. Those are different than a QA manual or 18 whatever you're referring to. 19 Q Let me get on your vernacular. The policies 20 and procedures manual, let's talk about that. One of 21 the policies in place in 1999 required weekly reports on 22 all residents with pressure sores, correct? 23 A Within the facility, not anyone outside of the 24 facility. 25 Q That's what I'm talking about. Weekly reports CENTRAL FLORIDA REPORTERS, INC. 1594 1 had to be generated? 2 A I don't recall the exact policy, no. 3 Q You know there was a policy in general that 4 required weekly reports on all residents with pressure 5 sores within the facility, correct? 6 A Yes, because the policies were just a 7 summary -- summarization of the state and federal regs 8 which was required. 9 Q And these pressure sores are commonly called 10 bedsores, aren't they? 11 A Correct. 12 Q And in each nursing home, the director of 13 nurses was required to submit these weekly reports, 14 correct? 15 A I don't understand the question. To the 16 administrator? 17 Q To you. 18 A No, I did not receive weekly reports from the 19 director of nursing. 20 Q To Van Camp? 21 A I am not aware. 22 Q To Chuck Sherer? 23 A I'm assuming as the administrator he would 24 have reviewed things with his DON. I can't tell you 25 what those were. CENTRAL FLORIDA REPORTERS, INC. 1595 1 Q Okay. Bedsores and the care of bedsores was a 2 very important and sensitive issue for the company in 3 1999, wasn't it? 4 A I don't understand the question. 5 MR. OSBORNE: Read it back, please. 6 (The record was read back as requested.) 7 A It was an important issue. I wouldn't call it 8 a sensitive issue. 9 Q Well, let's talk about it this way. Florida 10 Hospital or Sunbelt Health Care Centers, Inc., had been 11 involved in several lawsuits that were -- allegations 12 were made about improper treatment of bedsores in the 13 1990's, correct? 14 A I can't -- I don't recall specific lawsuits 15 from the '90's. 16 Q You're familiar with the case of Gertrude 17 Riley against your company? 18 A I'm familiar with the name, yes. 19 Q You were deposed in that case? 20 A Yes, sir, I was. 21 Q You're familiar with the Figuerora case 22 against your company? 23 A I'm familiar with the name. It's been many 24 years ago. 25 MS. MARSHALL: Objection, Your Honor, CENTRAL FLORIDA REPORTERS, INC. 1596 1 relevancy. 2 THE COURT: Sustained. 3 BY MR. OSBORNE: 4 Q You're aware of AHCA surveys? 5 A The AHCA surveys? 6 Q AHCA surveys. 7 A Yes. 8 Q And when you were the interim administrator at 9 Rollins Bedford, you would have been directly involved 10 with the AHCA surveys, wouldn't you? 11 A For the period of time I was the interim, yes. 12 Q And you were the interim administrator in 1998 13 when the AHCA inspection was done, correct? 14 A I believe so. I would have to look at the -- 15 Q Well, you would know how important that 16 process was and how critical it was to do well when the 17 State of Florida comes in and checks your facility on an 18 AHCA survey? 19 A Certainly you want to do well when they come 20 in. 21 Q In fact, you wrote an article about an 22 unannounced survey that occurred at your facility, did 23 you not? 24 A This was actually not an AHCA survey. 25 Q I didn't say it was. I said it was an CENTRAL FLORIDA REPORTERS, INC. 1597 1 unannounced survey or a Medicaid fraud control unit came 2 to your hospital, correct? 3 A Not to the hospital, to a skilled nursing 4 facility, yes. 5 Q Okay. And you talk about this being an 6 unscheduled inspection at night, correct? 7 A This was an inspection, not the normal survey 8 process that you're referring to. 9 Q No, I'm not referring to that. I'm referring 10 to this article. This was an unscheduled inspection at 11 night, was it not? 12 A This was an operation spot check, which was 13 new to the State of Florida -- 14 Q And you were concerned -- 15 A -- around this time. 16 Q And you were concerned that there was a 17 potential of being arrested if major problems were 18 found, weren't you? 19 A I asked them the question simply because of 20 the people that came with the survey. It was not just 21 AHCA, it was eight or nine or -- I'd have to read the 22 article to remember. 23 It was several agencies from the State of 24 Florida, which certainly you wonder why in the middle of 25 the night the police are there and everybody else is CENTRAL FLORIDA REPORTERS, INC. 1598 1 there. In this situation they were -- they all came and 2 found absolutely nothing wrong at the facility. 3 Q My question was really not anything other than 4 you were afraid you were going to jail at the time they 5 came there, weren't you? 6 A No, I wasn't afraid. 7 MS. MARSHALL: Objection, relevancy. 8 THE COURT: Sustained. 9 BY MR. OSBORNE: 10 Q Your staff was shaking with fear after the 11 inspections were done, weren't they? 12 MS. MARSHALL: Objection, relevancy. 13 THE COURT: Approach the Bench. 14 (Whereupon there was had a discussion at the 15 Bench outside the hearing of the Jury.) 16 THE COURT: Are you talking about the AHCA 17 survey? 18 MS. MARSHALL: This is an article that she 19 wrote in 2001, two years after the events in 20 question. 21 THE COURT: What survey are you talking about? 22 MR. OSBORNE: It was a Medicaid fraud survey 23 for inspection. 24 THE COURT: Sustained. 25 (Whereupon the discussion at the Bench was CENTRAL FLORIDA REPORTERS, INC. 1599 1 concluded, and the following proceedings were had.) 2 BY MR. OSBORNE: 3 Q You know in this case, do you not, Ms. Fetters 4 that there was an issue about whether a bedsore had a 5 proper wound dressing on it? 6 A I was not aware of that at the time of the 7 incident, no. 8 Q You are today, aren't you? 9 A I am today, yes. 10 Q And we talked about -- you said that wasn't a 11 sensitive issue, but it was an important issue about 12 whether bedsores are properly treated, correct? 13 A Yes. 14 Q This facility had just undergone an AHCA 15 survey, you just heard that from Mr. Sherer, correct? 16 A I would assume that you're correct in that. 17 Q And the last compliance was on the 16th of 18 September of 1999, correct, you heard that, too? 19 A If what you and he were looking at is 20 accurate, yes. 21 Q And given the nature of bedsores and their 22 treatment and how important that is, and the fact that 23 one of your nurses had signed a note documenting her 24 failure to timely put a dressing on a wound, combined 25 with the reporting requirements that you have within the CENTRAL FLORIDA REPORTERS, INC. 1600 1 facility about bedsores, does it surprise you that a 2 director of nursing would react in such a manner, an 3 extreme manner when a bedsore was not properly managed? 4 A I'm not aware of the situation. 5 MS. MARSHALL: Objection, compound question. 6 THE COURT: Just a minute, please. Sustained. 7 BY MR. OSBORNE: 8 Q Let me break that down a little bit. We 9 talked about the critical nature of bedsore treatment at 10 a nursing home, correct? 11 A Correct. 12 Q We talked about the failure of one of your 13 nurses to document that a bedsore had been properly 14 bandaged. 15 A You asked about it. I am not -- I was not 16 aware of it, and it wasn't one of my nurses. It was one 17 of the facility nurses from what I can tell. 18 Q And we talked about that type of a failure to 19 treat a patient can -- if that were to occur when AHCA 20 came in to do a survey, that could result in one of 21 these tags or problems that they would come up with? 22 A I don't know that it failed to be done. That 23 would be an assumption on my part. 24 Q You know Carol Boze signed a note that said 25 that there was no wound dressing on Carolina Destefano CENTRAL FLORIDA REPORTERS, INC. 1601 1 on 9/19 of '99, don't you? 2 A I know that now. I didn't know at that time. 3 Q And you know that Rachel Bean was furious that 4 she signed that note, didn't you? 5 A I know that now. 6 Q So the question is does it surprise you that 7 this director of nurses, Rachel Bean, acted in such an 8 extreme manner when she learned that note had been 9 signed by Carol Boze? 10 A I don't think that she reacted -- 11 MS. MARSHALL: Objection. 12 THE COURT: Just a minute. Just a minute. 13 Let the lawyer -- 14 MS. MARSHALL: Assumes facts not in evidence. 15 THE COURT: Sustained. 16 MR. OSBORNE: Your Honor, Judge -- or Your 17 Honor -- 18 THE COURT: Sustained. Move on. 19 MR. OSBORNE: No further questions. 20 THE COURT: Cross-examination? 21 MS. MARSHALL: Thank you, Your Honor. 22 - - - - - 23 CROSS EXAMINATION 24 BY MS. MARSHALL: 25 Q Ms. Fetters, did Rachel Bean resign to you? CENTRAL FLORIDA REPORTERS, INC. 1602 1 A Yes, ma'am, she did. 2 Q Why was she -- why did she contact you to 3 resign? 4 A She contacted me one evening when I was 5 filling in for her facility and she was -- she was 6 stressed, she was tearful. She said -- 7 MR. OSBORNE: Object, hearsay. 8 MS. MARSHALL: She's not testifying to 9 anything she said. She's testifying that she was 10 upset and tearful. 11 THE COURT: Sustained. 12 BY MS. MARSHALL: 13 Q Okay. Ms. Fetters, did Rachel Bean resign or 14 was she fired? 15 A She resigned. 16 Q Okay. Did she resign because of anything to 17 do with this lawsuit? 18 A No. 19 Q And do you recall approximately when she 20 resigned? 21 A I couldn't tell you the date. It was late 22 '99, early 2000, I want to say around the holidays. 23 Q Okay. Do you remember Connie Standish? 24 A I'm aware of who she is, yes. 25 Q Okay. And do you know she worked at Sunbelt CENTRAL FLORIDA REPORTERS, INC. 1603 1 Orlando, the Sunbelt Nursing Home? 2 A Yes, at the nursing home. 3 Q And did she resign or do you know if she 4 resigned from that facility? 5 A I believe she resigned. 6 Q Do you know when? Do you remember when? 7 A I don't recall when. I believe it was 8 sometime in the fall of '99. 9 Q Was she eligible for rehire at Sunbelt? 10 A No, she was not because she did not give an 11 adequate notice with her resignation. 12 Q And what does that mean if -- she voluntarily 13 resigned from Sunbelt, correct? 14 A She voluntarily resigned and then just left 15 instead of working out a notice in a clinical position, 16 leaving us high and dry, would cause you to be 17 ineligible for rehire because experience tells us it 18 will happen again if you hire them back. 19 Q Okay. Has she applied for employment at any 20 nursing home that -- or nursing home that is under the 21 Sunbelt Health Care Centers' corporate umbrella? 22 A Yes, I believe she has since she left Orlando. 23 Q Okay. And did they hire her? 24 A No, they did not. 25 Q Now, I believe that you -- for a period of CENTRAL FLORIDA REPORTERS, INC. 1604 1 time you acted as the interim administrator at Sunbelt 2 Nursing Home Orlando, is that correct? 3 A That is correct. 4 Q And in your position as interim director, and 5 later in your position as regional director of 6 operations for Sunbelt Health Care Centers, did you have 7 the occasion to go to the nursing home in Rollins -- on 8 Rollins Bedford -- on Bedford? 9 A Yes, on occasion. 10 Q And have you in fact gone to that facility and 11 visited room 307? 12 A Yes, ma'am. 13 Q Why did you go there? 14 A Well, after hearing all the testimony about 15 could you or could you not see in that doorway, I went 16 to see for myself. 17 Q Okay. Ms. Fetters, if you could -- we've got 18 some pictures that have been entered into evidence as 19 Plaintiff's Exhibit No. 3 -- 20 A Yes. 21 Q -- which is room 307 at Sunbelt. Okay. Is 22 that the room that you went to? 23 A It looks like it, yes. 24 Q All right. Now, can you describe when you're 25 standing -- well, describe where you went and what you CENTRAL FLORIDA REPORTERS, INC. 1605 1 saw, and use these pictures to the extent that you can. 2 A Well, when I went there I wanted to -- I 3 wanted to see what you could see after I heard testimony 4 both ways for can you see the head of the bed, can you 5 not. And I entered the doorway. And I considered the 6 doorway -- I mean, to me there's the threshold. That's 7 where the door closes into. And then there's a doorway, 8 which is the area that it swings in. 9 And when you step into the doorway, just one 10 step into the doorway, which is about half the width of 11 the door, in that room you can see the head of the bed. 12 This is a private room, and so the bed -- now, I don't 13 know where the bed was that exact -- I don't know if 14 this is exactly where the bed was at the date of the 15 incident, but the bed is on wheels and can easily be 16 moved. 17 And there was -- I could see along that wall. 18 So that if the bed would have been almost anywhere, I 19 would have seen the head of the bed in the doorway as I 20 define the doorway. 21 Q Okay. Thank you. 22 MS. MARSHALL: I have no further questions. 23 MR. TOWNSEND: No questions, Judge. 24 THE COURT: Redirect? 25 - - - - - CENTRAL FLORIDA REPORTERS, INC. 1606 1 REDIRECT EXAMINATION 2 BY MR. OSBORNE: 3 Q Ms. Fetters, this facility is now torn down, 4 isn't it? 5 A Yes, it is. 6 Q And you didn't see this room in September of 7 1999, did you? 8 A No. It was not -- but it was the same room. 9 Nothing had changed about the room. 10 Q My question was very simple. You didn't see 11 this room in September of 1999, did you? 12 A No. 13 Q You don't know if that picture accurately 14 depicts the room that -- and the placement of the bed 15 that was there when Carolina Destefano was there in 16 September of 1999, do you? 17 A That is correct. That's why I looked to see 18 what I can see on the wall. 19 Q Ma'am, you answered my question. You did not 20 see the room, you do not know if this -- these pictures 21 accurately depict the room as it looked in September of 22 1999 when Carolina Destefano was there, do you? 23 A Correct. I know that that is the room and how 24 it looks. 25 Q You just said you didn't know if the bed was CENTRAL FLORIDA REPORTERS, INC. 1607 1 in the same position or not as when you saw it, didn't 2 you? 3 A You asked about the room. That is the room. 4 Q Can you see through doors? 5 A Not when they're closed. 6 Q Can you see through walls? 7 A No. 8 MR. OSBORNE: No further questions. 9 THE COURT: Ladies and Gentlemen of the Jury, 10 if any of you have a question for this witness, 11 please write it down. I see one. Anyone else at 12 this time? Two questions. Approach the Bench. 13 (Whereupon there was had a discussion at the 14 Bench outside the hearing of the Jury.) 15 THE COURT: Thank you. Rachel Bean declares 16 that she resigned from Sunbelt because of, quote, 17 missing drugs. If so, were any investigations 18 carried out? Is she eligible for rehire? 19 MS. MARSHALL: Judge, that was in the video. 20 And I thought that that might slip by without 21 anybody noticing it, but that was just an error in 22 the editing that that wasn't edited out. And I 23 think that in this -- 24 THE COURT: What are we going to do now? 25 MS. MARSHALL: I think that an instruction is CENTRAL FLORIDA REPORTERS, INC. 1608 1 appropriate that that's not -- 2 THE COURT: They're to disregard that? 3 MS. MARSHALL: Yes. I mean, she can -- she 4 can -- 5 THE COURT: I thought that was the subject of 6 Mr. Osborne's -- wasn't that a question? 7 MS. MARSHALL: It was -- 8 THE COURT: Didn't you ask a question? 9 MR. OSBORNE: No. 10 MS. MARSHALL: It was in -- it was in the 11 video. 12 THE COURT: Her video? 13 MR. TOWNSEND: It didn't get edited. 14 MS. MARSHALL: It was a line that didn't get 15 edited out yesterday. 16 THE COURT: And it should have been edited 17 out? It was stipulated to not be in there? 18 MS. MARSHALL: It was the subject of a Motion 19 in Limine about all the missing drugs. 20 MR. TOWNSEND: If you leave that question, 21 they're under the impression that she was fired 22 because of drugs. 23 MS. MARSHALL: Yeah, and she wouldn't -- 24 THE COURT: What do you want to do? 25 MR. TOWNSEND: You might ask that question of CENTRAL FLORIDA REPORTERS, INC. 1609 1 Ms. Fetters, if she was fired because of drugs and 2 she has to say no. 3 THE COURT: Do you want me to ask that 4 question? 5 MS. MARSHALL: Yeah. 6 THE COURT: No objection? No objection? 7 MR. TOWNSEND: I think you have to. 8 THE COURT: Okay. 9 MR. TOWNSEND: Without waiving the prior 10 Motion in Limine. 11 THE COURT: Well, then it would be a waiver. 12 I mean -- 13 MR. TOWNSEND: Not to open anything more after 14 that unless it's on case-by-case basis, 15 situation-by-situation basis. 16 THE COURT: Are you going to follow up on 17 that? 18 MR. OSBORNE: No. 19 THE COURT: Okay. What kind of fear that the 20 nurses feared from Mr. Destefano? Did he send 21 notes to their homes or did he follow them home? 22 And if so, was that reported to the police? 23 Objection? 24 MR. OSBORNE: No. 25 THE COURT: Objection? CENTRAL FLORIDA REPORTERS, INC. 1610 1 MS. MARSHALL: No. 2 THE COURT: Objection? 3 MR. TOWNSEND: No. 4 THE COURT: Anybody else? We got everybody? 5 (Whereupon the discussion at the Bench was 6 concluded, and the following proceedings were had.) 7 THE COURT: Ms. Fetters, I'm going to ask 8 you -- same deal. I'm going to ask you the 9 question from the Jury. Please turn and direct 10 your answers to the Jury. 11 Rachel Bean declares that she resigned from 12 Sunbelt because of, quote, missing drugs. If so, 13 were any investigations carried out? 14 THE WITNESS: To my recollection, Rachel 15 didn't resign at the time of the missing drugs. 16 There was an investigation into some missing drugs 17 totally unrelated to this, which does happen on 18 occasion in the skilled nursing facility where you 19 are missing some drugs or the count is not accurate 20 or something. 21 That was not the reason she gave me for 22 resigning, but it was -- she was stressed. And 23 that could have led -- obviously could have led to 24 that. It's stressful when you're in charge of all 25 the medications and some show up missing. That's CENTRAL FLORIDA REPORTERS, INC. 1611 1 your license that's at risk and it's a stressful 2 situation. 3 THE COURT: Is she eligible for rehire? 4 THE WITNESS: Rachel Bean? 5 THE COURT: Yes. Well, I assume. Yes. 6 THE WITNESS: Yes, Rachel Bean would be 7 eligible for rehire. 8 THE COURT: What kind of fear that the nurses 9 feared from Mr. Destefano? Did he send notes to 10 their homes or did he follow them home? And if so, 11 was that reported to the police? That's a bit 12 compound but I'm going to -- if you don't 13 understand it I'll repeat it. 14 THE WITNESS: I'm not aware on that exact day. 15 The fear was that they felt that was -- it was a 16 generality of fear that was expressed to me, not 17 specific situations. I can give a personal 18 example. 19 When I returned from my trip and came to the 20 facility, Mr. Destefano confronted me on the 21 sidewalk, tried to hand me papers. I didn't take 22 them and he used profanity, asked me when was the 23 last time, he used the F word, and then my mother. 24 Just profane, loud and vulgar, that type of thing. 25 And some people may be -- that may make them CENTRAL FLORIDA REPORTERS, INC. 1612 1 fearful, some people it may not. It may just cause 2 offense, I don't know. 3 THE COURT: Are there any follow-up questions, 4 Ladies and Gentlemen? Any other questions? Seeing 5 none, Mr. Osborne, do you have any follow-up 6 questions. 7 MR. OSBORNE: No, Your Honor. 8 MS. MARSHALL: No, Your Honor. 9 MR. TOWNSEND: No, ma'am. 10 THE COURT: Ms. Fetters, you may step down. 11 Mr. Osborne, call your next witness. 12 MR. OSBORNE: Tamara Trimble. 13 THE COURT: Say the name again for me. 14 MR. OSBORNE: Tamara Trimble. 15 THE COURT: Thank you. 16 TAMARA TRIMBLE, 17 having been first duly sworn testified as follows: 18 DIRECT EXAMINATION 19 BY MR. OSBORNE: 20 Q State your full name for the Court and the 21 Jury, please. 22 A Tamara L. Trimble. 23 Q And, Ms. Trimble, were you sitting in the 24 courtroom this afternoon listening to some testimony? 25 A Yes, sir. CENTRAL FLORIDA REPORTERS, INC. 1613 1 Q Mr. Sherer's testimony? 2 A Whoever was on the witness stand about 1:30. 3 MR. OSBORNE: Can we approach the Bench, 4 please? 5 (Whereupon there was had a discussion at the 6 Bench outside the hearing of the Jury.) 7 MR. OSBORNE: Is this person a corporate 8 representative? 9 MS. MARSHALL: Well, I mean, she should 10 certainly qualify. 11 THE COURT: Do you need to send the Jury out? 12 MR. OSBORNE: Yeah, we need to send the Jury 13 out. 14 THE COURT: I think so, too. Ladies and 15 Gentlemen, we're going to take a brief recess for 16 some discussions. If you would, just go to the 17 jury room. We'll call you back as soon as 18 possible. 19 (Whereupon the Jury exited the courtroom.) 20 THE COURT: Be seated. Mr. Osborne? 21 MR. OSBORNE: Your Honor, I have a concern. 22 This witness is not a corporate representative, and 23 she was in the courtroom in violation of the Rule 24 of Sequestration. 25 THE COURT: You called her. What do you want CENTRAL FLORIDA REPORTERS, INC. 1614 1 to do? 2 MR. OSBORNE: Judge, I think the Jury should 3 be instructed that this witness violated the Rule 4 of Sequestration and they should take that into 5 consideration when they consider her testimony, and 6 that she improperly listened to testimony of 7 another witness in a case where there's a -- the 8 Rule's been invoked. 9 THE COURT: I don't know yet what she did. 10 MS. MARSHALL: Your Honor, Ms. Trimble would 11 be qualified to be a corporate representative. We 12 have four or five defendants. We would be entitled 13 to have four or five different representatives of 14 the different Adventist entities, and we can 15 establish which one of those Ms. Trimble would be a 16 corporate representative of. 17 But she inadvertently -- she came into the 18 courtroom. I wasn't aware that she was in here 19 until I think Ms. Petro looked back and saw her, 20 and then immediately said that she needed to leave 21 the courtroom because another witness was 22 testifying. She also gave the corporate rep depo 23 in this case, and so Mr. Osborne should be well 24 aware that she is in fact a corporate 25 representative. CENTRAL FLORIDA REPORTERS, INC. 1615 1 THE COURT: So now she was -- she's not 2 previously designated as a corporate 3 representative, but because she could have been, 4 then the Rule of Sequestration does not prohibit 5 her from having been in the courtroom, that's your 6 reasoning? 7 MS. MARSHALL: Yes, Your Honor. 8 THE COURT: Okay. Mr. Osborne? 9 MR. OSBORNE: Judge, we were told there were 10 two corporate representatives for trial. They're 11 both here. I don't think you can put on one in the 12 middle of a trial. 13 MS. MARSHALL: If I may, Your Honor, state one 14 more thing. 15 THE COURT: Ms. Trimble, you've been placed 16 under oath. You've taken the oath. 17 THE WITNESS: Yes, ma'am, Judge. 18 THE COURT: The time that you -- can you state 19 how long you were in the courtroom previously? You 20 said that you were in from about 1:30, around 1:30? 21 THE WITNESS: That was my recollection. 22 Someone called my office yesterday -- 23 THE COURT: I don't want to know about that. 24 I just want to know how long you were in the 25 courtroom. CENTRAL FLORIDA REPORTERS, INC. 1616 1 THE WITNESS: I think about 1:30. I told them 2 I'd try to be here about 1:15, so that's why I 3 think it was 1:30. 4 THE COURT: You think you came into the 5 courtroom at 1:30? 6 THE WITNESS: Yes. 7 THE COURT: And how long do you think you 8 stayed? 9 THE WITNESS: 2:00, 2:00 -- probably about 10 2:15 it seems like the first time I looked at my 11 watch while I was there. 12 THE COURT: So you're saying 15 minutes or 13 until 2:00? 14 THE WITNESS: Until 2:00 at least. I was here 15 from the time the gentleman was talking about when 16 he last was employed. That's the first question I 17 remember, for what it's worth, when he had left our 18 employ or something like that. 19 THE COURT: The gentleman, being Mr. Sherer? 20 THE WITNESS: Yes. 21 THE COURT: Okay. Do you know Mr. Sherer? 22 THE WITNESS: I probably have talked to him on 23 the phone when he worked for us, but I didn't know 24 that was who he was. 25 THE COURT: Do you recall the substance of his CENTRAL FLORIDA REPORTERS, INC. 1617 1 testimony? 2 THE WITNESS: Well, I remember the question 3 about when he left. He said sometime about 2000. 4 I remember some conversation -- I mean, I do 5 remember him testifying about that he had talked to 6 the Plaintiff and a phone call at home. I was 7 paying attention. I apologize. I wish somebody 8 had told me not to come in the courthouse. 9 THE COURT: I'm not asking you these questions 10 to fuss at you. I just want to know -- I just want 11 to know what you heard. 12 THE WITNESS: I remember all of that. 13 THE COURT: Okay. 14 THE WITNESS: That's the last I remember. I 15 don't think I walked right out after that 16 conversation about a phone call from Larry, but it 17 was shortly thereafter. 18 THE COURT: Did you have any conversations 19 with anyone on the defense side of this case about 20 whether you should or should not come into the 21 courtroom prior to? 22 THE WITNESS: I don't recall ever anyone 23 instructing me one way or the other. There wasn't 24 a sign out there. I thought I was late so I came 25 in to let people know I was here. CENTRAL FLORIDA REPORTERS, INC. 1618 1 THE COURT: Okay. Do you want to ask any 2 questions of the witness along those lines, 3 Mr. Osborne? 4 MR. OSBORNE: Did you hear any questions and 5 answers, ma'am, about -- Mr. Sherer's testimony 6 about his understanding of the corporate structure 7 of Adventist Health System? 8 THE WITNESS: No, I don't. 9 MR. OSBORNE: That's all I have, Judge. 10 THE COURT: Ms. Marshall, do you have any 11 questions? 12 MS. MARSHALL: I have no questions. I was 13 just going to point out that she's -- 14 THE COURT: Excuse me. 15 MR. TOWNSEND: I have nothing, Your Honor. I 16 have no position in this. 17 MS. MARSHALL: I was going to point out that 18 she's not being called as a fact witness on any of 19 the incidents. It's all on corporate structure. 20 THE COURT: Well, I don't intend to do 21 anything at this point in time. I'm not going to 22 give the Jury any particular instructions that 23 would do nothing more than confuse them and cause 24 them to ask more questions and take more time. I 25 want to proceed with her testimony. CENTRAL FLORIDA REPORTERS, INC. 1619 1 If at the conclusion of her testimony there's 2 been some material change between her deposition 3 testimony which she testifies here about, then I'll 4 consider any further motions or further requests 5 for instructions to cure or any other orders that 6 you believe are appropriate. I don't intend to do 7 anything at this point in time. Bring the Jury 8 back in. 9 MS. MARSHALL: Thank you, Your Honor. 10 THE COURT: Let me just also say for the 11 record that the Court concludes based on the 12 testimony that there was no knowing violation of 13 the Rule with the consent or knowledge, procurement 14 of defense counsel, that this was not intended and 15 that the testimony that was overheard is unlikely 16 to infringe on this witness' ability to testify 17 fully about the matters that the Court anticipates 18 and has been advised that she will be testifying 19 about. So in that case no relief will be granted 20 at this time. 21 (Whereupon the Jury entered the courtroom.) 22 THE COURT: Be seated, please. Mr. Osborne. 23 MR. OSBORNE: May it please the Court. 24 THE COURT: Yes, sir. 25 BY MR. OSBORNE: CENTRAL FLORIDA REPORTERS, INC. 1620 1 Q Ms. Trimble? 2 A Yes. 3 Q You are an attorney? 4 A I am. 5 Q And you're employed by Adventist Health 6 Systems Sunbelt Corporation? 7 A Sunbelt Health Care Corporation, yes, sir. 8 Q Health Care Corporation? 9 A Yes, sir. 10 Q You've been employed with Adventist Health 11 related entities since October of 1981? 12 A Correct. 13 Q And you're the head of the legal department? 14 A That's correct, too. 15 Q You were hired by Don Well, who was president 16 at that time, is that correct? 17 A That's correct. 18 Q You never met him in person, but your father 19 had worked at Adventist and knew Don Well, correct? 20 A I might have met him before he hired me, but 21 generally speaking, I didn't know about the company 'til 22 I talked to him. 23 Q You're here, Ms. Trimble, because frankly I'm 24 a little confused about the corporate structure of 25 Adventist Health System. CENTRAL FLORIDA REPORTERS, INC. 1621 1 MR. OSBORNE: Any objection, Counsel? 2 MS. MARSHALL: No objection. 3 MR. TOWNSEND: No objection. 4 THE CLERK: Plaintiff's 20. 5 (Plaintiff's Exhibit No. 20 was marked into 6 evidence.) 7 BY MR. OSBORNE: 8 Q Let me show you what's in evidence as Exhibit 9 20, Ms. Trimble. 10 A Thanks. 11 Q What is Exhibit 20? 12 A Exhibit 20 is an organizational chart of 13 Adventist Health System that the legal department 14 maintains. 15 Q This comes from your department then, right? 16 A That's correct. 17 Q Adventist Health System is a fictitious name 18 for Adventist Health System Sunbelt Health Care? 19 A Corporation. 20 Q Corporation? 21 A Yes, sir. 22 Q Okay. And Rollins Bedford appears on Exhibit 23 3 in this document, correct? 24 A That is correct. 25 Q Okay. Sunbelt Health Care Centers, Inc., is a CENTRAL FLORIDA REPORTERS, INC. 1622 1 Tennessee not-for-profit corporation? 2 A That's correct. 3 Q And Sunbelt Health Care provides management to 4 nursing homes that include Rollins Bedford? 5 A Sunbelt Health Care Centers, Inc., provides 6 management services to its subsidiaries, one of which is 7 Rollins Bedford Corporation. 8 Q So that is a yes, but there's other people 9 involved, too? 10 A Yes. 11 Q Okay. And if we look at what SHCC Services 12 is -- and I've got the Jury looking at a chart over 13 here. That's not on here so I take it back. That 14 corporation is not on this chart. 15 What is SHCC Services, Inc.? 16 A SHCC Services, Inc., is another subsidiary of 17 Sunbelt Health Care Centers, Inc. SHCC Services, Inc., 18 leases Florida Living Nursing Center out in Forest Lake, 19 Florida, and it also provides personnel. 20 Q And did it have a relationship with Rollins 21 Bedford at one time? 22 A I believe it entered into a personnel lease. 23 Q What does that mean? 24 A Personnel lease? 25 Q Yeah. What does that mean? CENTRAL FLORIDA REPORTERS, INC. 1623 1 A Well, it provided workers that staffed nursing 2 homes that were located in Florida that were owned or 3 leased by Rollins Bedford Corporation. 4 Q Okay. Of the five corporations that are 5 Defendants here, except for Orlando Regional Medical 6 Center or Health Care Services, you are the registered 7 agent for service of process? 8 A I believe that's correct. 9 Q Okay. 10 A The five that you're mentioning is Rollins 11 Bedford, SHCC Services, Inc., Adventist Health System, 12 Adventist Health System/Sunbelt, Inc., and which other 13 one? 14 Q Let's take a look here. How about -- did we 15 get Adventist Health System/Sunbelt, Inc., Florida 16 Hospital? 17 A Oh, the one we didn't mention, I'm sorry, sir, 18 is Sunbelt Health Care Centers, Inc. I've got the five 19 and you're correct. 20 Q Okay. And Tom Warner was president -- is, is 21 president of the Adventist Health System, correct? 22 A Yes. 23 Q In 1999 he was president of Florida Hospital? 24 A Correct. 25 Q And you have spoken generally with risk CENTRAL FLORIDA REPORTERS, INC. 1624 1 management about this case, too, as the corporate 2 lawyer, correct? 3 A A little, yes. 4 Q Okay. At the time of this incident in 1999, 5 Rollins Bedford had no risk management department, did 6 it? 7 A Not to my knowledge. 8 Q And in 1999 you worked for Florida Hospital in 9 risk management, didn't you? 10 A No, in 1999 I worked for Adventist Health 11 Systems. 12 Q Okay. You're correct. I gave you a bad 13 question -- 14 A Okay. 15 Q -- okay? In 1999 they owned the nursing 16 operation but did not own the building, is that correct? 17 A That was my recollection. I would have to say 18 that the land and the building are sold. The exact date 19 they were sold I'm not aware. I mean, off the top of my 20 head I'm not aware. 21 Q Rollins Bedford had no chief financial 22 officer, did it? 23 A I do not believe they did. 24 Q And SHCC did not have a chief financial 25 officer either, did it? CENTRAL FLORIDA REPORTERS, INC. 1625 1 A SHCC did. If you mean Sunbelt Health Care 2 Center, Inc. -- 3 Q That's who I'm talking about. Did they have 4 one? 5 A Yes, sir. 6 Q Okay. And the entire corporate structure as 7 you know it was set up -- the Adventist was set up as 8 time -- as property and facilities were acquired, this 9 mushroomed into many different entities, is that 10 correct? 11 A That's correct. 12 Q Which is why we have a multi-page 13 organizational chart? 14 A We have acquired quite a bit. 15 Q And the corporate structure was done for ease 16 of management, to have administrative services and to 17 have -- because you have multi-state reporting 18 requirements that you need to centralize and not have 19 everybody doing it in different locations, correct? 20 A No. I think in my deposition I said, when the 21 question was asked me as to why we had so many different 22 corporations, that many of our facilities are located 23 across state lines, and, therefore, it's easier to have 24 a corporation that's located in a particular state 25 instead of centralizing. CENTRAL FLORIDA REPORTERS, INC. 1626 1 Q Okay. And the organizational chart was not 2 done to limit liability in your opinion? 3 A No, no. 4 Q And was not done with any intent to insulate 5 any entity from claims such as this one or malpractice 6 or anything else? 7 A No. 8 Q And just walk the Jury through, if you would, 9 what the chain -- going back to Exhibit 3, from 10 Rollins -- tell us, first of all, what Rollins Bedford 11 Corporation -- back at the time this organizational 12 chart was -- what it was involved with, Rollins Bedford 13 Corporation, how many institutions. 14 A Well, we acquired Rollins Bedford Corporation 15 in 1990, just so you know. And so at the time we 16 acquired it, it only had one facility. And that was 17 located at -- well, between Rollins and Bedford Road. 18 Between 1990 and 1999 what did it do? Well, it 19 continued to operate that same facility. Somewhere 20 between -- 21 Q I'm sorry. I didn't mean to interrupt you. 22 Go ahead. 23 A I was just going to tell you, somewhere 24 between 1997 and 1999 it also began to lease other 25 facilities, several of which were located in Kentucky. CENTRAL FLORIDA REPORTERS, INC. 1627 1 Q Okay. 2 A I don't know the exact date. 3 Q All right. How many -- in 1999 how many 4 facilities were affiliated with Rollins Bedford 5 Corporation other than the one at Rollins and Bedford 6 here in Orlando? 7 A I'm going to have to say approximately because 8 I don't know for sure. 9 Q That's okay. 10 A But I would say approximately four. 11 Q Okay. When we go then up the corporate chain 12 from Rollins Bedford in the corporate chart here, what's 13 the next entity that's above Rollins Bedford? 14 A The sole member -- because Rollins Bedford 15 Corporation is a not-for-profit corporation. So in 16 Florida you can form a not-for-profit that doesn't have 17 members or you can form them that have members. 18 And so in its case it was formed as a 19 membership company. And it has one corporate member, 20 and that's Sunbelt Health Care Centers, Inc. 21 Q That's the next up the chain on the corporate 22 hierarchy? 23 A That's correct. 24 Q And what's above Sunbelt Health Care Centers, 25 Inc.? CENTRAL FLORIDA REPORTERS, INC. 1628 1 A Sunbelt Health Care Centers, Inc., is also 2 formed as a not-for-profit member company. Its sole 3 member is Adventist Health Systems Sunbelt Healthcare 4 Corporation. 5 Q Okay. And is Florida -- is Adventist Health 6 System/Sunbelt, Inc., Florida Hospital also under the 7 umbrella of Adventist Health System Sunbelt Healthcare 8 Corporation? 9 A Yes. Its sole member is Adventist Health 10 System. 11 Q Thank you, ma'am. 12 MR. OSBORNE: I have no further questions. 13 THE COURT: Ms. Marshall? 14 MS. MARSHALL: No questions. 15 MR. TOWNSEND: No questions, Your Honor. 16 THE COURT: Ladies and Gentlemen of the Jury, 17 do any of you have a question for this witness? 18 Seeing no questions, Ms. Trimble, you are excused. 19 Mr. Osborne, do you wish to make any motions? 20 MR. OSBORNE: No, Your Honor. Your Honor, we 21 now have a deposition of Kelly Gregg. 22 THE COURT: Thank you. And, Mr. Osborne, this 23 deposition I believe you previously stated is about 24 an hour and ten minutes? 25 MS. MARSHALL: I think it was an hour and ten CENTRAL FLORIDA REPORTERS, INC. 1629 1 minutes. 2 MR. OSBORNE: That's what I recall. 3 THE COURT: About there? 4 MR. OSBORNE: Yes. Actually it says one hour 5 on it, Judge. 6 THE COURT: Okay. Well -- 7 MR. OSBORNE: Judge, I would like 8 to -- there's going to be a picture -- a room she 9 talks about and that we have it identified as an 10 exhibit. I'd like to put it on an easel so that 11 when she's talking about the room and she's looking 12 at the small pictures, the Jury can see the big 13 pictures that she's referencing. 14 THE COURT: Any objection to that? 15 MR. TOWNSEND: No objection, Your Honor. 16 MS. MARSHALL: No. 17 THE COURT: All right. Go ahead. Can I see 18 that picture? 19 MR. OSBORNE: Yes, ma'am. 20 THE COURT: That's not already in evidence? 21 MR. OSBORNE: No. This is the Orlando 22 Regional. 23 THE COURT: ORHS, got you. Are you going to 24 move that in? 25 MR. OSBORNE: Yes, I might as well move it in CENTRAL FLORIDA REPORTERS, INC. 1630 1 now. 2 THE COURT: Is there an objection to that? 3 MR. TOWNSEND: No objection, Your Honor. 4 MS. MARSHALL: No objection. 5 THE COURT: It'll be admitted as 21 I believe. 6 MR. OSBORNE: Actually it's already marked. 7 The small pictures are marked in another exhibit. 8 THE CLERK: For identification? 9 MR. OSBORNE: For identification. We'll tell 10 you which one it is. 11 (Plaintiff's Exhibit No. 21 was marked into 12 evidence.) 13 (Whereupon the videotaped deposition of Kelly 14 Pipkin Gregg was played for the Jury.) 15 KELLY PIPKIN GREGG, 16 having been first duly sworn testified as follows: 17 DIRECT EXAMINATION 18 BY MR. OSBORNE: 19 Q State your full name for the Court and the 20 Jury, please. 21 A Kelly Gregg. 22 Q What is your profession or occupation? 23 A Registered nurse. 24 Q Have you ever been known by any other name 25 than Kelly Gregg? CENTRAL FLORIDA REPORTERS, INC. 1631 1 A Kelly Pipkin. 2 Q We're going to be talking about some records 3 from Orlando Regional Medical Center, ORHS. Were you 4 known as Kelly Pipkin during that time period? 5 A Yes, sir. 6 Q Okay. What is your present employment? 7 A Registered nurse. 8 Q Who's your employer? 9 A Osceola Regional Medical Center. 10 Q And was there a period of time that you worked 11 at Orlando Regional Medical Center? 12 A Yes, sir. 13 Q In September of 1999, were you an employee of 14 Orlando Regional Medical Center? 15 A Yes, sir. 16 Q And you recall in September of 1999 that 17 Carolina Destefano was a patient in the emergency room 18 at ORMC? 19 A I recall that I took care of that patient. I 20 would have to look at my records for the exact date. 21 Q You're welcome to if your counsel has got your 22 records. I'm going to be showing you some records. You 23 can go right ahead and look. 24 A 9/21/99. 25 Q All right. And just going back to the CENTRAL FLORIDA REPORTERS, INC. 1632 1 question, that would have been the time period that 2 Carolina Destefano was a patient in the emergency room 3 at ORMC? 4 A According to the records, yes, sir. 5 Q And you worked as a nurse in the emergency 6 room at that time, did you not? 7 A Yes, sir. 8 Q I'm going to be marking some exhibits, some of 9 which are in the composite that you have there. But 10 just for ease of our -- my asking you questions, I'm 11 going to just identify certain pages of those documents. 12 I'll show you what I'm marking as Exhibit 1. Is Exhibit 13 1 customarily referred to as a triage form? 14 A Yes, sir. There is a triage section on this 15 form, yes, sir. 16 Q And there is a notation by you on here, is 17 there not, that states nursing home staff reports bright 18 red blood on bed at rectum, correct? 19 A Yes, sir. 20 Q Okay. And what's the last part of that word? 21 A Abdomen non-soft. 22 Q Okay. And that is your signature? 23 A Yes, sir. 24 Q And the information that you put on the triage 25 form came from a nursing home staff report, did it not? CENTRAL FLORIDA REPORTERS, INC. 1633 1 A That was the report that I listed here. I'm 2 not sure if that came verbally or from a written note 3 from the nursing home. 4 Q But you actually talked to someone at the 5 nursing home, didn't you? 6 A Yes, sir. 7 Q Okay. You just don't recall who it was that 8 you spoke with to get that information? 9 A No, sir. 10 Q Okay. As an emergency room nurse, you were 11 assigned that room and that patient, meaning Carolina 12 Destefano, on September 21st of 1999, correct? 13 A Yes, sir. 14 Q Customarily the transferring facility calls a 15 report to the receiving nurse when you get a new 16 patient, correct? 17 A Correct. 18 Q And you were that receiving nurse on September 19 21 of 1999? 20 A Yes, sir. 21 MR. OSBORNE: Mark as Exhibit 2 the next 22 exhibit. 23 BY MR. OSBORNE: 24 Q Exhibit No. 2 is entitled Adult Emergency 25 Department Data Record, correct? CENTRAL FLORIDA REPORTERS, INC. 1634 1 A Yes, sir. 2 Q And that is your handwriting on there from the 3 times of 1310 to 1805, correct? 4 A Yes, sir. 5 Q And for those members of the Jury who aren't 6 used to military time, what time is that in regular 7 time? 8 A 1:10 p.m. to 6:05 p.m. 9 Q Okay. Would you be so kind, ma'am, as to 10 publish for the Jury what you noted at the 1:10 or 1310 11 time frame? 12 A Read this entry? 13 Q Yes, ma'am. 14 A Patient transported from nursing home with 15 reports of finding bright red blood -- 16 MR. TOWNSEND: Excuse me. Please read it 17 verbatim as opposed to your interpretation. In 18 other words, bright red blood, it doesn't say 19 bright red blood. 20 THE WITNESS: Oh, abbreviations? 21 MR. TOWNSEND: Yes, ma'am. If he wants to ask 22 you what those abbreviations mean he can, but he 23 asked you to read verbatim. 24 A I'm sorry. Patient transported from NH with 25 reports of finding BRB on sheets of bed. SP discussion CENTRAL FLORIDA REPORTERS, INC. 1635 1 with son by nursing home staff. Para reports per NH 2 staff, quote, her son disimpacted her Sunday, unquote. 3 PMH, dementia fecal impactions. 4 Chronic and decubitus ulcer to buttocks. 5 Glasgow coma score seven over ten. Patient non-verbal. 6 WD to pain. Opens eyes only to pain. WD non-labored. 7 And that's my initials. 8 Q All right. And I'm going to have to go back 9 and ask you what all those initials mean. What's NH? 10 A Nursing home. 11 Q And what's the next symbol after that? 12 A With. 13 Q With reports of finding -- and what does BRB 14 mean? 15 A Bright red blood. 16 Q And it goes, on sheets of bed, and goes S/P. 17 What is that? 18 A Status post. 19 Q And para reports, who are the paras? 20 A Paramedics. 21 Q Okay. And those are your initials at the end 22 of the 1310 time? 23 A Yes, sir. 24 Q And it's customary for a nurse who makes a 25 notation on the chart to initial so that someone looking CENTRAL FLORIDA REPORTERS, INC. 1636 1 at the chart knows who made the entry, correct? 2 A Correct, sir. 3 MR. OSBORNE: Let me mark another document 4 here. I'm marking it as Plaintiff's Exhibit No. 3. 5 BY MR. OSBORNE: 6 Q What is Exhibit 3? 7 A Rural/Metro patient care report. 8 Q And when you are talking about paramedic 9 reports, is this a document that you would have referred 10 to to obtain that information? 11 A Yes, sir. 12 Q Okay. And the -- let me just publish the part 13 of this I can read, and if you can help me out, if you 14 can read more than I can, with this writing. Just so 15 we're clear, this is a note made from the paramedics in 16 transport, and then this is part of the charting at ORMC 17 that you would have reviewed prior to making your 18 notations, correct? 19 A Either with the written statement or the 20 verbal report from the paramedics and/or both. 21 Q Okay. And it says transported 71-year-old 22 female to ORMC for eval, evaluation, of bowel impaction. 23 Patient has history of bowel obstruction. Possibly -- 24 is that neurogenic in nature? 25 A I can't -- I can't read that, sir. CENTRAL FLORIDA REPORTERS, INC. 1637 1 Q Okay. Nursing staff reports son did a digital 2 removal. And can you read the next part there? 3 A No, I can't. 4 Q Me neither. Then I can go on. It is believed 5 that this might be the cause of trauma. Son was 6 trespassed from facility having becoming irate. Please 7 read addendum in chart. Is that the best you can read 8 that, too? 9 A That's the best I can read it, yes, sir. 10 Q And let me show you what I believe the 11 addendum in chart was referring to, and see if you 12 remember this document. 13 MR. OSBORNE: I'll mark this as No. 4. 14 BY MR. OSBORNE: 15 Q Have you ever seen this document before? 16 A No, sir. 17 Q Okay. Do you know what the paramedic was 18 referring to from, from your recollection back at that 19 time, as to what he was referring to when he said read 20 addendum in chart? 21 A No, sir. 22 Q Okay. Then I'm not going to ask you about 23 that. You wrote down what the paramedics told you about 24 the son disimpacting her on Sunday as a part of the 25 report or the assessment from the nursing home staff, CENTRAL FLORIDA REPORTERS, INC. 1638 1 correct? 2 A Correct. 3 MR. OSBORNE: Let me mark as No. 5 another 4 part of the chart of Mrs. Destefano. 5 BY MR. OSBORNE: 6 Q This is another page of the Adult Emergency 7 Department Data Record, is it not? 8 A Yes, sir. 9 Q And read for me what your notations are on 10 this page, please. 11 A NH staff reports, it looks like questionable 12 impactions, RT to BRB found on bed linen. 13 Q Okay. 14 A PMH, impactions. 15 Q Now, read with the explanation of the 16 abbreviations, please. 17 A NH is nursing home. RT is related to. BRB is 18 bright red blood. PMH is primary medical history. 19 Q So nursing home staff reports questionable 20 impaction related to bright red blood found on bed 21 linen, primary medical history, impaction? 22 A Correct. 23 Q And again, this is noted at the same time as 24 your first page of the document, 1310, correct? 25 A Correct. CENTRAL FLORIDA REPORTERS, INC. 1639 1 Q Questionable impaction means that it was not 2 determined that that was a completed -- that the impact 3 was completed, is that correct? 4 A Repeat that, please. 5 Q A questionable impaction means it was not 6 determined that the impaction was completed? 7 A Correct. 8 Q Okay. As a registered nurse, the patient's 9 chart is, is a legal document, is it not? 10 A Yes, sir. 11 Q And in any type of unusual event, if that 12 happens to a patient, you would chart that, wouldn't 13 you? You can answer. 14 A You'll have to clarify. I'm not sure your 15 question, sir. 16 Q All right. Let me clarify it this way. If 17 there was any type of attack upon a patient, a physical 18 attack by anybody, that would be something that you 19 would chart? 20 A Not necessarily in the medical record, no, 21 sir. 22 Q Okay. In fact, an event doesn't have to be 23 unusual in order for it to be charted, does it? 24 A Clarify, please. 25 Q What types of things do you chart on a medical CENTRAL FLORIDA REPORTERS, INC. 1640 1 record? 2 A Primary medical history, allergies, 3 medications, condition of the patient, nursing 4 assessment. 5 Q You also registered events that occur, don't 6 you? 7 A As far as medical exams. 8 Q Non-medical events that occur are also 9 charted, aren't they? 10 A I'm not understanding your question, sir. 11 Q Well, let's look at your chart, 1620. Take a 12 look at that charting. Daughter-in-law here inquiring 13 about patient's condition. That's not a medical event, 14 is it? 15 A No. 16 Q You're just charting something that occurred, 17 an event that occurred while you were on shift 18 witnessing what was occurring, correct? 19 A Correct. 20 Q That would not be an unusual event, having 21 someone from the family come to visit someone at the 22 hospital, is it? 23 A Correct. 24 Q Okay. So that would be something that you 25 would -- just a usual event that you would chart in the CENTRAL FLORIDA REPORTERS, INC. 1641 1 medical record such as you did here, correct? 2 A Correct, sir. 3 Q Okay. Now, let's contrast something unusual. 4 What would you consider to be something unusual that you 5 would chart? 6 A I'm not understanding your question. 7 Q What is it about my question that you don't 8 understand? 9 A Unusual, meaning medical condition? 10 Q No, not a medical condition, just something 11 that happens unusual as it relates to the patient. Is 12 that something you would chart? 13 A Potentially. 14 Q Okay. You have reviewed this full chart 15 before your deposition here, have you not, today? 16 A With Mr. Townsend, yes, sir. 17 Q Okay. So you recognize this as another part 18 of the chart I have given you as Exhibit No. 6? 19 A Yes, sir. 20 Q And these are notes -- the first note here at 21 1630, or 4:30, is a note from Lillian Folley, correct? 22 A According to the signature, that looks like 23 the signature, yes, sir. 24 Q And you do remember Lillian Folley as the case 25 manager on September 21 of 1999? CENTRAL FLORIDA REPORTERS, INC. 1642 1 A I remember of her, yes, sir. 2 Q As being the case manager? 3 A Yes, sir. 4 Q Okay. And she says on here, received consult 5 from nursing staff for discharge planning, correct? 6 A Yes, sir. 7 Q And that was you, wasn't it, that would 8 have -- that would have given her the consult regarding 9 discharge plan? 10 A I don't recall. 11 Q Okay. Was there any other nurse besides you 12 who was assigned to Carolina Destefano? 13 A Not that I recall, sir. 14 Q Can we then by association believe that that 15 would be you who received the -- who gave the consult to 16 the case manager about discharging this patient? 17 A I don't recall the procedure for Orlando 18 Regional. Certain hospitals have different procedures 19 for discharging the patients. The nurse that's 20 responsible for the patient sometimes does it, and then 21 other times the supervision nursing staff would make 22 that -- would make that consult. 23 Q Was there anybody else from your review of 24 this chart who was involved in this care and treatment 25 of Carolina Destefano from time of admission until 4:30 CENTRAL FLORIDA REPORTERS, INC. 1643 1 in the afternoon? 2 A No, sir. 3 Q So was there anybody else that -- from your 4 review of the chart that Lillian Folley could have been 5 referring to when she says received consult from nursing 6 staff for discharge planning? Unless he instructs you 7 not to answer, you can answer the question. 8 A Not according to the notes that there is 9 anyone else named, but nursing staff is a broad group of 10 individuals. 11 Q Isn't it true based upon your training and 12 experience that if a nursing -- if someone was giving 13 care and treatment to this patient, that they would have 14 put something in the chart to indicate that they had 15 done so? 16 A Repeat that, please. 17 MR. OSBORNE: Can you read it back please? 18 (The record was read back as requested.) 19 A Yes, sir. 20 Q And there was no other notation by anyone 21 except you before 4:30, was there? 22 A Correct, sir. 23 Q So again, can we then assume that you are the 24 nurse who gave the consult to Lillian Folley? 25 A According to the records, that's all I can CENTRAL FLORIDA REPORTERS, INC. 1644 1 say. I do not remember giving a consult. 2 Q But according to the records, who do you think 3 she was referring to -- strike that. 4 According to the records, who do you believe 5 gave a consult to Lillian Folley? 6 A I don't remember, but according to the 7 records, I'm supposing I would be the nursing staff. I 8 can't clarify that. I do not remember. I do not know. 9 Q Okay. Your testimony in this case has been 10 that you witnessed Larry Destefano leaning over and 11 kissing his mother, correct? 12 A Correct. 13 Q We can probably also -- by looking at Lillian 14 Folley's charting here, we can also conclude that you 15 probably didn't -- this probably didn't occur until 16 after 4:30, correct, as far as your witnessing 17 Mr. Destefano leaning over and kissing his mother? 18 A I don't recall the time, sir. 19 Q Well, if you had done a consult at 4:30 with 20 Lillian Folley and you had witnessed Mr. Destefano 21 leaning over and kissing his mother, wouldn't you have 22 told Lillian Folley about that event? 23 A I don't recall that I spoke with Lillian 24 Folley directly about that situation. 25 Q Did you review the police statement Lillian CENTRAL FLORIDA REPORTERS, INC. 1645 1 Folley gave in this case? 2 A Previously with Mr. Townsend, yes. 3 Q Do you recall that Lillian Folley talks about 4 a discussion you had with her about you reporting to her 5 the son kissing his mother on the lips with his mouth 6 open? 7 A I don't recall. 8 Q All right. Let's see if we can refresh your 9 memory about what you reviewed here. Just read -- if 10 you don't mind, read the entire thing, review -- just 11 review the entire thing. 12 Does that -- in terms of what Mrs. Folley 13 said, does it appear that she confirms in here, first of 14 all, that your consult to facilitate that, that the 15 consult was from you? 16 A Yes, sir. 17 Q All right. And that consult, according to 18 Lillian Folley, again on this document indicates that 19 that was done at 4:30, correct? 20 A Correct. 21 Q What Lillian Folley then relates is that she 22 has a phone call with Rachel Bean on this document, 23 correct? After you had the consult with her at 4:30, 24 she then had a phone call with Rachel Bean? 25 A That Lillian did, yes, sir. CENTRAL FLORIDA REPORTERS, INC. 1646 1 Q That Lillian did, that's correct. And then 2 after Ms. Folley notes the phone call with Rachel Bean, 3 she then says I returned to the nursing station at ORMC 4 emergency department. There Kelly Pipkin reported 5 witnessing the son kissing his mother on the lips with 6 his mouth open. 7 And then Lillian Folley said, then she 8 reported to the OPD officer stationed in the nursing 9 department. As you review this, does this appear to be 10 a fair tracking of the time as to how these events 11 occurred on the 21st of September, 1999? 12 A I personally do not recall the time that this 13 happened, but according to your records here, that would 14 be correct. 15 Q If Lillian Folley correctly charted this or 16 wrote this down, then you would have had two 17 conversations with her? One would have been a consult, 18 and then there would have been another conversation 19 where you would have related to her the kissing, 20 correct? 21 A I do not personally remember, sir. This could 22 have been in the -- according to the written statement, 23 yes, it would have been two conversations. 24 Q All right. Let me go back and recap a little 25 bit. You saw, in terms of Mr. Destefano, nothing other CENTRAL FLORIDA REPORTERS, INC. 1647 1 than him kissing and leaning over his mother, correct? 2 A Correct. 3 Q You didn't see him lying in bed with his 4 mother? 5 A No, sir. 6 Q You didn't see him lying on top of his mother? 7 A No, sir. 8 Q And if you had seen those things, you would 9 have remembered that, wouldn't you? 10 A Yes, sir. 11 Q You just walked in the doorway and saw it? 12 A Yes, sir. 13 Q And you observed Mr. Destefano and his mother 14 for a matter of minutes, didn't you? 15 A Yes, sir, according to my police department 16 record. I don't independently remember. 17 Q Well, let me see if I can refresh your memory 18 a little bit. Do you remember when your deposition was 19 taken on April 18th, 2002? 20 A Yes, sir. 21 Q Have you reviewed your deposition before 22 today? 23 A Yes, sir. 24 Q With Mr. Townsend? 25 A Yes, sir. CENTRAL FLORIDA REPORTERS, INC. 1648 1 Q Okay. I'd like to refresh your memory back on 2 page 68, line ten. Here's the question. "Do you recall 3 how long you stayed either in the doorway -- in the 4 doorway or in the room so you could observe 5 Mr. Destefano and his mother?" Answer, "No, sir. 6 Question, "Okay. Are we talking about seconds 7 or minutes or longer?" Answer, "From my recollection, 8 it would have been minutes." 9 I'll show you that just to show you I did a 10 fair reading of it. Did I correctly publish your 11 statement? 12 A You did. 13 Q Did that refresh -- does that refresh your 14 memory that you recall observing Mr. Destefano and his 15 mother for a matter of minutes? 16 A In that deposition, yes, which would have been 17 a legal recollection that was six years ago, sir. I'm 18 not -- I can't independently remember at this moment. 19 Q You would agree with me that your recollection 20 was better in 2002 about these events than they are in 21 2005? 22 A Yes, sir. 23 Q And that you, you would also agree with me 24 that you remembered in 2002 that was for a matter of 25 minutes, didn't you? CENTRAL FLORIDA REPORTERS, INC. 1649 1 A Yes, sir. 2 Q And you stand by that testimony, don't you? 3 A Yes, sir. 4 Q When you saw Mr. Destefano kissing his mother, 5 you didn't say anything to Mr. Destefano, did you? 6 A Not that I remember. 7 Q And you don't recall why you didn't say 8 anything to him either, do you? 9 A No, sir. 10 Q When you came into the room, Mr. Destefano 11 would have been on the opposite side of the bed, 12 correct? 13 A Correct. 14 Q In other words, he was facing you? 15 A Correct. 16 Q Did not have his back to you? 17 A No, sir. 18 Q And just to be clear, your observation was for 19 these minutes that Mr. Destefano was leaning over his 20 mother in close contact and kissing his mother on her 21 open mouth, correct? 22 A Correct. 23 Q And you consider this to be inappropriate 24 behavior? 25 A Yes, sir. CENTRAL FLORIDA REPORTERS, INC. 1650 1 Q You consider this to be inappropriate kissing 2 because it was open mouth to open mouth? 3 A Correct. 4 Q And if you had seen bright red blood on or 5 near or coming from Carolina Destefano, you would have 6 absolutely charted that, wouldn't you? 7 A Absolutely. 8 Q But you didn't chart this inappropriate 9 behavior by Mr. Destefano, did you? 10 A No, sir. 11 Q Did you consider this inappropriate behavior 12 to be a physical attack by Mr. Destefano on his mother? 13 A No, sir. 14 Q And you would agree with me that if there was 15 a physical attack, you would also not chart that in the 16 medical record either, would you? 17 A If it were an episode where I felt there was 18 harm being done to the individual, yes, I would. 19 Q Do you think in this case this inappropriate 20 behavior was resulting in harm being done to 21 Mrs. Destefano? 22 A No, sir. 23 Q I'd like to go to your deposition, page 60, 24 line four. This is in regard to your last answer where 25 I'd asked you about -- you said under some circumstances CENTRAL FLORIDA REPORTERS, INC. 1651 1 that you would chart a physical attack because -- if 2 there was harm being done to the patient, correct? 3 A Correct. 4 Q Here's what you said at your deposition on 5 April 18th of 2002. Question, "If there was any type of 6 an attack upon the patient, physical attack by somebody, 7 would that be something you would chart?" Answer, "No." 8 Is that still your testimony today? 9 A It would be relevant to the situation. If the 10 patient was in immediate harm -- it would -- it would 11 depend on the situation. If the patient was being 12 harmed at the time that I witnessed the attack, yes, 13 more than likely I would have charted it. 14 Q How many years have you been a nurse? 15 A 12 years. 16 Q And aren't you trained initially and also 17 continually as a nurse to watch out for patient abuse? 18 A Yes, sir. 19 Q And as a matter of fact, there's a lot of 20 government regulations you have to comply with in terms 21 of that, in terms of reporting? 22 A Yes, sir. 23 Q But your testimony is that if you saw any type 24 of abuse visited upon a patient, you wouldn't chart that 25 either, would you? CENTRAL FLORIDA REPORTERS, INC. 1652 1 A It would be reported, which is -- which is 2 what the guidelines are in the procedure. 3 Q You wouldn't chart it, though, would you? 4 A Probably not. 5 Q Even if you witnessed it you wouldn't chart 6 it, would you? 7 A Probably not. 8 Q And if there was any type of inappropriate 9 conduct with the patient, you wouldn't chart that 10 either, would you? 11 A No, sir. 12 Q Your testimony is that you reported this to 13 somebody, but you don't remember who you reported it to, 14 correct? 15 A Correct. 16 Q You don't recall whether you told Lillian 17 Folley because you did not document that anywhere, 18 correct? 19 A Correct. 20 Q Did Lillian Folley relate to you the contents 21 of her discussion, her phone call with Rachel Bean? 22 A Not that I recall, sir. 23 Q In terms of the chart for Carolina Destefano 24 or anyone else, where is the chart kept? 25 A In medical records -- you mean after the CENTRAL FLORIDA REPORTERS, INC. 1653 1 patient is discharged or -- 2 Q While the patient -- while the patient is 3 there. 4 A In close contact with the nurse that is caring 5 for the patient. 6 Q That would be you in terms of Carolina 7 Destefano? 8 A Correct. 9 Q I show you what is marked as Exhibit No. 8. 10 A That's the same as Exhibit 6, sir. 11 Q Let me see. 12 MR. OSBORNE: I'll get that one back from you, 13 Larry. 14 BY MR. OSBORNE: 15 Q All right. Let's look at No. 6. The charting 16 from Lillian Folley at 4:30 was at a time that you were 17 still on duty and caring for Carolina Destefano, 18 correct? 19 A According to my notes, yes, sir. 20 Q And this would have been something that you 21 would have read while you were -- you would have 22 reviewed while you were caring for Mrs. Destefano, 23 wouldn't you? 24 A Not necessarily. 25 Q Well, you went back there at -- you know, CENTRAL FLORIDA REPORTERS, INC. 1654 1 we've got you in there at 1805 at a time after this 2 charting occurred, correct? 3 A Correct. 4 Q Is there any reason you can think of that you 5 wouldn't have reviewed the entry? 6 A Ancillary charting is not necessarily reviewed 7 by the nurses at the time of the care of the patient 8 because it's two different areas of the care of the 9 patient. Ancillary is usually like social working, 10 nutrition, dietary. And nursing is the nursing and the 11 medical part of taking care of a patient. So not 12 necessarily would we read the ancillary report, no, sir. 13 Q And I think -- forgive me if I'm being 14 repetitious, but I asked you, I think, did Lillian 15 Folley relate to you what Rachel Bean told her as 16 related on her police statement? 17 A That she told me there was a problem? 18 Q That -- did she tell you about the contents of 19 her phone call with Rachel Bean? 20 A Not that I recall. 21 Q Okay. But would you agree with me that in 22 general you don't have much of a recollection of these 23 events that occurred back in 1999 as you sit here today? 24 A Correct, sir. 25 Q You really had to rely on the charting to see CENTRAL FLORIDA REPORTERS, INC. 1655 1 what happened, haven't you? 2 A Yes, sir. 3 Q Okay. So if, if you were told by Lillian 4 Folley about Rachel Bean's -- what Rachel Bean told her, 5 that would be in the same category of everything else 6 you don't recall six years later, correct? 7 A Exactly. 8 Q Okay. Let me show you what I'm marking as 9 Exhibit 8. I direct your attention to -- first of all, 10 what is Exhibit 8? What type of document is this? 11 A Triage care record. 12 Q I would direct your attention to the notation 13 in the left corner in the bottom, 1700, or 5:00 o'clock, 14 where it says informed that son is with patient in her 15 room and nurse witnessed inappropriate kissing between 16 son and mother. Security and police have been notified. 17 You see that? 18 A Yes, sir. 19 Q And would you agree with me that this, this 20 5:00 o'clock, that's a half an hour later than the 4:30 21 time that you reported as giving your consult to Ms. 22 Foley? 23 A Yes, sir. 24 Q Do you know whether you were the source of 25 this information contained here by Dr. Wilson, do you CENTRAL FLORIDA REPORTERS, INC. 1656 1 recall? 2 A Are you talking about the 1700? 3 Q Yes, ma'am. 4 A No, sir, I do not know. It's not signed or 5 witnessed or abbreviated. 6 Q Okay. You never charted -- let's go back to 7 your charting on the Adult Emergency Data -- Department 8 Data record. You never charted that Mr. Destefano 9 entered his mother's room, did you? 10 A No, sir. 11 Q You charted that the daughter-in-law did but 12 you never charted whether he did? 13 A Yes, sir. 14 Q Okay. I gave you a compound question. Let me 15 take that back. You charted the daughter-in-law 16 arriving at 4:20? 17 A Correct. 18 Q You did not chart if or when Mr. Destefano 19 arrived? 20 A Correct. 21 Q Okay. And you never charted whether or not 22 the daughter-in-law left the room either, correct? 23 A Correct. 24 Q Would you agree with me that given the records 25 that you've been shown here today, that given the fact CENTRAL FLORIDA REPORTERS, INC. 1657 1 you gave your consult at 4:30 and didn't say anything in 2 the record to Mrs. Folley, that the time you witnessed 3 this inappropriate kissing would have been between 4:20 4 and 5:00 o'clock? Excuse me, between 4:30 and 5:00 5 o'clock? 6 A I do not remember, sir. 7 MR. OSBORNE: Okay. Let me mark a couple more 8 exhibits here. I'm going to show these to 9 Mr. Townsend first before I mark them. For the 10 record, I'm skipping No. 9 because I mismarked No. 11 8. So this will be 10. 10, 11, 12 and 13. 12 BY MR. OSBORNE: 13 Q I'm going to show you Exhibits 10 through 13, 14 ma'am, and ask if you recognize those -- what's pictured 15 there? 16 A It appears to be the room -- a room at a 17 hospital. I'm supposing it's Orlando Regional, rooms 22 18 and 23. 19 Q Does the charting tell you what room 20 Mrs. Destefano was in at the time you were treating her? 21 A 22. It's at the top of the Adult Emergency 22 Data Record. 23 Q Okay. So would you agree these appear to be 24 the pictures -- the pictures of the room that 25 Mrs. Destefano was in? CENTRAL FLORIDA REPORTERS, INC. 1658 1 A Yes, sir. 2 Q And these pictures depict the bed closer to 3 the door, correct? 4 A Correct. 5 Q Which was Mrs. Destefano's bed, correct? 6 A Correct. 7 Q Would you agree with me that this is a 8 relatively small, confined area where her bed is in the 9 emergency room? 10 A Yes, sir. 11 Q So when you saw -- when you looked in the 12 door, your view was not obstructed -- 13 A Correct. 14 Q -- for the minutes that you were observing 15 Mr. Destefano with his mother? 16 A Correct. 17 Q You don't say whether in your noting to 18 Mrs. Folley or in your testimony about where the 19 daughter-in-law was when you observed this. 20 A My recollection, there was no one in the room 21 but the patient and the son. 22 Q You would agree with me that if this -- if 23 what you saw occurred after 4:20, or 1620, 4:20, that 24 the daughter-in-law according to the charting was in the 25 room? CENTRAL FLORIDA REPORTERS, INC. 1659 1 A Correct. 2 Q And you don't have a recollection of the 3 daughter-in-law leaving? 4 A Correct. 5 Q You didn't chart that she left? 6 A Correct. 7 Q So according to the chart the daughter-in-law 8 was in the room, correct? 9 A At the time at 1620, yes, sir. 10 Q And thereafter as far as you know from the 11 chart? 12 A Correct, correct. 13 Q So would that mean that you would have had to 14 have seen Mr. Destefano before 4:20 in the afternoon 15 because -- to explain why the daughter-in-law wasn't 16 there? 17 A Again, I do not remember the time that I 18 witnessed the event, sir. 19 Q I know that. I'd like you to try to answer my 20 question. 21 MR. OSBORNE: If you could read it back, 22 please. 23 A That it would have happened before 1620? 24 Q Yes. 25 A I'm assuming, yes. CENTRAL FLORIDA REPORTERS, INC. 1660 1 Q Okay. Because otherwise you would have seen 2 the person you note to be the daughter-in-law in the 3 room with him, correct? 4 A Correct. 5 Q The answer again? I think the answer got 6 obliterated a little bit there. 7 A Correct. 8 Q Thank you. You would agree with me that if it 9 occurred after 14 -- after 4:20 and the daughter-in-law 10 was there, given the confines of the room, you wouldn't 11 have missed her, would you? 12 A No, sir. 13 Q Next I'm going to show you another document. 14 This is a document, another document you reviewed with 15 Mr. Townsend before your deposition today, correct? 16 A Correct. 17 Q This is the statement that you gave to OPD at 18 1817, or 6:17 p.m., on 9/21/99, correct? 19 A Correct. 20 MR. TOWNSEND: What number was that exhibit, 21 please? 22 MR. OSBORNE: That was No. 14. 23 MR. TOWNSEND: What happened with 9? I was 24 confused. 25 MR. OSBORNE: I skipped it because it waS CENTRAL FLORIDA REPORTERS, INC. 1661 1 mismarked. See, there is no 9. 2 BY MR. OSBORNE: 3 Q I'd like you, if you would, Ms. Pipkin, to 4 publish -- read just word for word. And when you get to 5 abbreviations like PT apostrophe S, you're allowed to 6 say what that means so I don't have to do it twice. So 7 if you would, go ahead and publish what you told OPD on 8 9/21/99, please. 9 A Okay. Patient's son noted as standing over 10 patient, leaning down over face, kissing mother with 11 mouth open multiple times with duration of kiss 12 occurring times three to five seconds. As I stood at 13 the edge of the curtain of a semi-private room, son 14 repeated act times three to four times. 15 No verbal conversation occurred between staff 16 and son. The patient is a comatose patient in a 17 cachectic state of being with contractures of all 18 extremities. Response of patient is only to painful 19 stimuli. Non-verbal to verbal or painful stimuli. 20 Patient's normal state is with mouth open, and son's 21 lips surrounded mother's lips in open position during 22 noted episode. This episode was considered to be a 23 passionate kiss as a romantic couple would kiss one 24 another. 25 Q Now, you didn't tell the police that this went CENTRAL FLORIDA REPORTERS, INC. 1662 1 on for a matter of minutes, did you? 2 A No, sir. 3 Q And if you look at your time estimates in 4 here, the most time it would have been would have been 5 20 seconds, correct? 6 A Correct. 7 Q The least time would have been nine seconds? 8 A Correct. 9 Q That's significantly different than observing 10 these behaviors for minutes, is it not? 11 A Yes, sir. 12 Q Okay. This statement does not clarify any of 13 your memories of the events today either, does it? 14 A No, sir. 15 Q This is still a recorded recollection of what 16 you did, but you don't have a current memory? 17 A Correct, sir. 18 Q You didn't tell the police that Mr. Destefano 19 was lying in bed with his mother? 20 A No, sir. 21 Q You didn't tell the police Mr. Destefano was 22 lying on top of his mother? 23 A No, sir. 24 Q You never told Lillian Folley that 25 Mr. Destefano was lying on top of his mother either, did CENTRAL FLORIDA REPORTERS, INC. 1663 1 you? 2 A Not that I recall, no, sir. 3 Q And you never told Lillian Folley that Larry 4 Destefano was lying in bed with his mother either? 5 A Not that I recall, sir. 6 Q Okay. When you were watching Mr. Destefano 7 for those minutes, at no time did you alert 8 Mr. Destefano that you were present, did you? 9 A No, sir. 10 Q At no time did you tell him to stop? 11 A No, sir. 12 Q And you didn't tell him to stop because you 13 felt that was not your place, correct? 14 A Correct. 15 Q Actually you felt it was not your 16 responsibility, correct? 17 A Correct. 18 Q As an RN in charge of a comatose patient, when 19 you were witnessing what you acknowledged to be 20 inappropriate sexual behavior, you say you have no 21 responsibility? 22 A I have a responsibility to report it to 23 someone in my chain of command, but as a nursing 24 individual, I also had other patients to respond to at 25 that time. And I didn't feel it was my responsibility CENTRAL FLORIDA REPORTERS, INC. 1664 1 to stop the act. I did feel it was my responsibility to 2 report it to people in the chain of command who have 3 responsibilities to stop and prevent those things from 4 happening. 5 Q You have a responsibility as a nurse in charge 6 of care of a patient to prevent abuse, do you not? 7 A Yes, sir. 8 Q And you didn't -- it didn't enter your mind to 9 say what are you doing, stop what you're doing? 10 A No, sir. 11 Q Let me show you what I'm marking as No. 15. 12 MR. TOWNSEND: Let's go off the record, 13 please. 14 (Off the record discussion was had.) 15 BY MR. OSBORNE: 16 Q Okay. I think I just gave you No. 15. This 17 is another document you reviewed before your deposition 18 with Mr. Townsend, is that correct? 19 A Yes, sir. 20 Q And you are reported in this document as 21 making certain statements to the police officer, 22 correct? 23 A Yes, sir. 24 Q And you have no recollection, other than 25 what's in this document, about what you said, correct? CENTRAL FLORIDA REPORTERS, INC. 1665 1 A Correct, sir. 2 Q But you don't dispute that you made these 3 statements either on your statement or to the OPD 4 officer as related in the case narrative, do you? 5 A No, sir. 6 Q Okay. Upon arrival, it states, I met with 7 Nurse Pipkin. Pipkin advised that a 71-year-old white 8 female subject was in room number 22. Pipkin claimed 9 that she saw son/subject French kissing. I asked Pipkin 10 what a French kiss was. After a short explanation, 11 Pipkin decided that she had not seen a French kiss 12 occur. 13 Pipkin provided a sworn written statement. 14 Pipkin ended the statement by writing in part episode 15 was considered to be a passionate kiss as a romantic 16 couple would kiss one another. Did I correctly publish 17 that? 18 A Yes, sir. 19 Q Just so I'm clear, you have no recollection of 20 telling the police officer that you witnessed a French 21 kiss? 22 A Correct. 23 Q You have no recollection of telling the 24 officer you had not seen a French kiss? 25 A Correct. CENTRAL FLORIDA REPORTERS, INC. 1666 1 Q But you would agree with me that you 2 retracted -- according to the document here that you 3 retracted that you'd seen a French kiss? 4 A Correct. 5 Q The statement that you'd seen it, correct? 6 A I clarified. 7 Q Okay. Thank you. That's a fair statement. 8 And you have no recollection of telling the police 9 officer that this episode was considered to be a 10 passionate kiss as a romantic couple would kiss one 11 another? 12 A No, sir, other than what is stated here. 13 Q Okay. This document references that the 14 officer responded to ORMC in reference to a possible sex 15 crime or abuse of the elderly. Is that how you would 16 characterize what you described in your statement, and 17 what you put in this OPD report that's reported in here, 18 that this was a possible sex crime or abuse of the 19 elderly? 20 A I don't remember using either of those 21 statements, no, sir. 22 Q And you were the only one -- from your review 23 of the records, you were the only one that saw anything 24 that was reported to the police as a -- that resulted in 25 this visit by OPD, correct? CENTRAL FLORIDA REPORTERS, INC. 1667 1 A Correct. 2 Q Okay. In September of 1999, you had a duty as 3 a licensed practical -- medical provider to cooperate in 4 any investigation conducted by law enforcement in the 5 potential or suspected abuse of an elderly person, 6 correct? 7 A Correct. 8 Q As a nurse taking care of an elderly person 9 who is in a semi-comatose state in the emergency room at 10 ORMC, you had an obligation to report anything that was 11 untoward or in any way improper with regard to that 12 person? 13 A Correct. 14 Q You also had the duty to chart the occurrence, 15 didn't you? 16 A I had the duty to report the situation. 17 Q Isn't the patient's chart a legal document 18 maintained by ORHS so that someone can look and 19 scrutinize that chart at a later time to see what the 20 course of treatment has been with the patient? 21 A Yes, sir. 22 Q And if something occurs, such as an abuse such 23 as you reported, that is not something you would chart 24 as being a part of the -- of an event that occurred 25 during the course of the treatment of the patient? CENTRAL FLORIDA REPORTERS, INC. 1668 1 A I didn't consider the act to be abuse. I 2 considered it to be inappropriate. 3 Q Okay. There's an adage among nurses, isn't 4 there, if you didn't chart it, it didn't happen? 5 A Correct. 6 MR. OSBORNE: No further questions. 7 - - - - - 8 CROSS EXAMINATION 9 BY MR. TOWNSEND: 10 Q Ms. Gregg, my name is Larry Townsend. I 11 represent Orlando Regional Healthcare System. I just 12 have a few questions for you here this morning. Give me 13 the benefit of your educational training, please, in 14 nursing. 15 A I have a Bachelor's degree as a registered 16 nurse. 17 Q Bachelor's degree, meaning four-year college 18 nursing degree? 19 A Yes, sir. 20 Q Now, you testified that you were 21 Mrs. Destefano's nurse that evening, correct? 22 A Correct. 23 Q And as an RN, you would have been in charge of 24 her nursing medical care, correct? 25 A Correct. CENTRAL FLORIDA REPORTERS, INC. 1669 1 Q What was your understanding of what Lillian 2 Folley's role was in Mrs. Destefano's admission to ORMC 3 that evening? 4 A She was a case manager. 5 Q Are case managers involved in the medical care 6 of a patient? 7 A No, sir. 8 Q Mr. Osborne asked you if your recollection 9 when you gave your deposition on April 18th, 2002, was 10 better than your recollection today and you answered 11 yes, is that correct? 12 A Yes, sir. 13 Q Would you agree that your recollection on the 14 evening you wrote the -- gave your statement to the 15 Orlando Police Department was better than your 16 recollection in your deposition on April 18th, 2002, 17 almost two and a half years after the incident? 18 A Yes, sir. 19 Q Is it your testimony that generally unusual 20 events not related to medical care are reported outside 21 of the chart? 22 A Yes, sir. 23 Q And the chart is primarily for medical care 24 and treatment of the patient? 25 A Yes, sir. Any unusual medical or nursing CENTRAL FLORIDA REPORTERS, INC. 1670 1 condition that would have occurred would have been in 2 the chart. 3 Q Okay. Looking at Exhibit 2, which is your -- 4 if you will, your nursing narrative notes. Let me back 5 up and ask you, Mrs. Destefano was not your only patient 6 that night, correct? 7 A No, sir. 8 Q And as Mrs. Destefano's nurse, your role would 9 not have been to be in her room and stay there every 10 minute of the time from the time she got there until the 11 time she was discharged, would it? 12 A No, sir. 13 Q And as such, you would not be aware of the 14 comings and goings of people into that room when you 15 were not present in that room, is that correct? 16 A Correct. 17 Q If you are not aware of the comings and 18 goings, you would not be able to chart that, correct? 19 A Correct. 20 Q Is it the standard practice of nurses in the 21 emergency rooms to chart the comings and goings of all 22 visitors to the patient in a room? 23 A No, sir. 24 Q If a person was in a room visiting a patient 25 and decided to go out to the bathroom, would you chart CENTRAL FLORIDA REPORTERS, INC. 1671 1 left at such and such a time to go to bathroom, returned 2 at such and such a time? 3 A No, sir. 4 Q How about if they went out to have a smoke 5 outside the hospital? 6 A No, sir. 7 Q Your note at 1620 that the daughter-in-law is 8 there, is that just an observation you made at that 9 moment? 10 A Yes, sir. 11 Q And you didn't mean by that that the 12 daughter-in-law was in the room at 1620 until your last 13 note of 1805, did you, ma'am? 14 A No, sir. 15 Q You would have no way of knowing if the 16 daughter-in-law came and went during that period of 17 time, would you? 18 A No, sir. 19 Q And you would have no way of knowing whether 20 Mr. Destefano came and went during that period of time, 21 would you? 22 A No, sir. 23 Q And so having stated that, would you agree 24 that the fact that the daughter-in-law was noted to be 25 in the room at 1620, and there's no other notes about CENTRAL FLORIDA REPORTERS, INC. 1672 1 her coming and going, would have no bearing on what time 2 you saw Mr. Destefano acting inappropriately with his 3 mother, is that correct? 4 A That's correct. 5 Q You can't make a logical assumption from 6 that -- 7 A Correct. 8 Q -- that it occurred before 1620? 9 A Correct. 10 Q And just so the record's absolutely clear, you 11 don't recall what time you observed that? 12 A No, sir, I do not. 13 Q And the observation time is not noted in your 14 chart, correct? 15 A No, sir. 16 Q And you did not view what Mr. Destefano was 17 doing as abusive to his mother at the time? 18 A No, sir, I did not. 19 Q You thought it was inappropriate, correct? 20 A That's correct. 21 Q And you made a nursing judgment as to how to 22 handle that inappropriate behavior, correct? 23 A Correct. 24 Q And your nursing judgment was to not confront 25 him but to report it up your chain of command? CENTRAL FLORIDA REPORTERS, INC. 1673 1 A Correct. 2 Q And that's what you did? 3 A Correct. 4 Q Prior to Mrs. Destefano being assigned to your 5 care on the evening of September 21st or the afternoon 6 of September 21st, had you ever heard the name Carolina 7 Destefano before? 8 A No, sir. 9 Q Did you know anything about the lady? 10 A No, sir. 11 Q Did you know the lady? 12 A No, sir. 13 Q Did you know anyone in her family? 14 A No, sir. 15 Q Do you have any independent recollection as to 16 who you spoke to at the nursing home to get the initial 17 report? 18 A No, sir. 19 Q Prior to your being assigned to take care of 20 Mrs. Destefano that evening or that afternoon, had you 21 ever heard the name Rachel Bean? 22 A No, sir. 23 Q Do you know Rachel Bean? 24 A No, sir. 25 Q Did you know Rachel Bean prior to your CENTRAL FLORIDA REPORTERS, INC. 1674 1 assuming the care of Mrs. Destefano? 2 A No, sir. 3 Q Other than what is reflected in the records, 4 including the statement of Lillian Folley, do you have 5 any recollection of being involved in any way in the 6 attempts to transfer Mrs. Destefano back to the nursing 7 home? 8 A No, sir. 9 Q Are you aware of any direct contact you had 10 with anyone at the nursing home or Florida Hospital that 11 evening, other than the initial telephone report that 12 you took at around 1:00 o'clock in the afternoon? 13 A No, sir. 14 Q Mr. Osborne had you read your handwritten 15 statement to the Orlando Police Department into the 16 record, and there is a -- what part of that record is in 17 your handwriting? 18 A From the part where it says is it coercion, 19 offer of benefit or favor -- or favor by any persons 20 whomsoever, to where I signed it down at corner of the 21 right-hand side. 22 Q Anything above your printed name there in the 23 middle of the page yours? 24 A No. 25 Q Is the statement that you've written there for CENTRAL FLORIDA REPORTERS, INC. 1675 1 the OPD that evening a true and accurate account of what 2 you observed there that evening? 3 A Yes, sir. 4 Q Did you ever have any contact with the 5 Department of Children and Families in connection with 6 this matter? 7 A No, sir. 8 Q Did you call the OPD in connection with the 9 inappropriate behavior that you observed? 10 A No, sir. 11 Q Prior to the evening in question, September 12 21st, 1999, had you ever met Mr. Destefano? 13 A No, sir. 14 Q Did you know anything about Mr. Destefano 15 prior to that time? 16 A No, sir. 17 Q Did you even know he existed? 18 A No, sir. 19 Q On that evening, or even today, did you or do 20 you have any ill will toward Mr. Destefano? 21 A No, sir. 22 Q Did you have any reason on September 21st, 23 1999, to injure Mr. Destefano in any way? 24 A No, sir. 25 Q Or to harm him in any way? CENTRAL FLORIDA REPORTERS, INC. 1676 1 A No, sir. 2 Q Do you know -- or to the best of your 3 knowledge have you ever talked to Dr. John Steely? 4 A No, sir. 5 Q How about a gentleman named Chuck Sherer? 6 A No, sir. 7 Q How about a lady named Deborah Jarrell? 8 A No, sir. 9 Q Margarita Walters? 10 A No, sir. 11 Q Mary Thornton? 12 A No, sir. 13 Q Rachel Bean? 14 A No, sir. 15 Q Ms. Gregg, have you at any time conspired with 16 Rachel Bean or anyone else to do anything whatsoever to 17 make false statements about Mr. Destefano for any reason 18 whatsoever? 19 A Absolutely not. 20 Q Has anyone ever asked you to do that? 21 A No, sir. 22 Q Have you ever done that? 23 A No, sir. 24 MR. TOWNSEND: That's all the questions I 25 have. CENTRAL FLORIDA REPORTERS, INC. 1677 1 - - - - - 2 CROSS EXAMINATION 3 BY MS. PETRO: 4 Q Good morning, Ms. Gregg. My name is Dyana 5 Petro. I'm here on behalf of Adventist Health Systems 6 and several of their affiliates and subsidiaries today. 7 Mr. Townsend just asked you about several people of 8 whether you knew them or whether you had ever spoken to 9 them. In addition to Mary Thornton, Deborah Jarrell, 10 Margarita Walters, Chuck Sherer, John Steely and Rachel 11 Bean, have you ever spoken with a woman named Carol 12 Boze? 13 A No, sir -- no, ma'am. 14 Q Did anyone from Sunbelt Healthcare and 15 Subacute Center or Florida Hospital ask you to try and 16 discredit Mr. Destefano in any way? 17 A No, ma'am. 18 Q Did anyone from Sunbelt or Florida Hospital 19 ask you to write anything at all in the medical records 20 of Mrs. Destefano? 21 A No, ma'am. 22 Q Did anyone at Sunbelt or Florida Hospital ask 23 you to create a document that contained false statements 24 about Mr. Destefano? 25 A No, ma'am. CENTRAL FLORIDA REPORTERS, INC. 1678 1 Q Did anyone at Sunbelt or Florida Hospital ask 2 you to report Mr. Destefano to security at ORMC? 3 A No, ma'am. 4 Q Did anyone at Sunbelt or Florida Hospital ask 5 you to report Mr. Destefano to the Orlando Police 6 Department? 7 A No, ma'am. 8 Q Has anyone ever asked you to file a false 9 statement for any reason? 10 A No, ma'am. 11 Q Have you ever filed a false statement for any 12 reason? 13 A No, ma'am. 14 Q And just to confirm, you have no recollection 15 of ever speaking with Rachel Bean? 16 A No, ma'am. 17 Q Ms. Gregg, you've testified that when you 18 observed Mr. Destefano kissing his mother in an 19 inappropriate way, you followed the chain of command, 20 correct? 21 A Correct. 22 Q And you've testified that you don't remember 23 who you reported it to but that you did report it, 24 correct? 25 A Yes, ma'am. CENTRAL FLORIDA REPORTERS, INC. 1679 1 Q And as a result of following the chain of 2 command, was security called? 3 A According to the documents, yes. 4 Q And as a result of that, was the Orlando 5 Police Department called? 6 A Again, according to the records, yes, ma'am. 7 Q And as a result of the Orlando Police 8 Department being called, did you give them a written 9 statement? 10 A Yes, ma'am. 11 Q And did you understand your statements to the 12 police to be a legal document? 13 A Yes, ma'am. 14 Q Similar to the medical records being a legal 15 document? 16 A Yes, ma'am. 17 Q So I'm correct in stating that you did 18 document what you saw in a legal document? 19 A Yes, ma'am. 20 Q And that was your personal observation that 21 you put in that legal document? 22 A Yes, ma'am. 23 MS. PETRO: I have no further questions. 24 MR. OSBORNE: Just a couple follow-up 25 questions. CENTRAL FLORIDA REPORTERS, INC. 1680 1 - - - - - 2 REDIRECT EXAMINATION 3 BY MR. OSBORNE: 4 Q If you don't mind, Ms. Gregg, go back to your 5 charting on the Adult Emergency Department Record. I 6 just want to pull one entry. 7 A No. 2? 8 Q That's correct, 1805, 6:05. And I think -- 9 tell me if I'm reading this right. Transfer to nursing 10 home attempted without success. Case management 11 involved. 12 A Yes, sir. 13 Q Do you have any recollection of what those 14 events were as far as how did you know that 15 Nurse -- that the transfer had been attempted without 16 success, do you recall? 17 A I do not. 18 Q You do not recall? 19 A No, sir. 20 Q And to your knowledge, was case management 21 involved before the transfer was attempted, do you 22 recall? 23 A I have no recollection. 24 MR. OSBORNE: Thank you, ma'am. I have no 25 further questions. CENTRAL FLORIDA REPORTERS, INC. 1681 1 THE WITNESS: Thank you. 2 (Whereupon the videotaped deposition of Kelly 3 Pipkin Gregg was concluded, after which the 4 following proceedings were had.) 5 THE COURT: Any questions about the date or 6 time or any of the particulars of that deposition? 7 Okay. It is 4:30. I would say let's press ahead. 8 MR. OSBORNE: Can we approach on that? 9 THE COURT: Yes, certainly. 10 (Whereupon there was had a discussion at the 11 Bench outside the hearing of the Jury.) 12 MR. OSBORNE: Judge, I think we're doing fine 13 on our time in the case. Dr. Krop, as the expert 14 witness on damages, I'd rather not bifurcate. If 15 we're going to do him, we should do it 'til we're 16 done. 17 THE COURT: If it's an hour and a half, we can 18 do it at 4:30. 19 MS. MARSHALL: He's two hours and 40 minutes. 20 THE COURT: Is it longer? 21 MS. MARSHALL: It's two and a half hours or 22 something like that. 23 MR. OSBORNE: We have two more witnesses. 24 THE COURT: That's fine. You don't have any 25 objection at this time? CENTRAL FLORIDA REPORTERS, INC. 1682 1 MS. MARSHALL: No. 2 THE COURT: You think that that won't 3 jeopardize our schedule? 4 MR. OSBORNE: No. 5 MS. MARSHALL: You only have how many? 6 MR. OSBORNE: I have Folley and Officer 7 Padilla, he's not going to be that long, three lay 8 damage witnesses, my client and Dr. Krop. 9 THE COURT: Lay damage witnesses? 10 MR. OSBORNE: They're 15-minute witnesses. 11 THE COURT: Well, for you, but what do you 12 think? 13 MR. TOWNSEND: I think we'll be all right. 14 Two of the lay damage witnesses -- there's one that 15 I'll have a few questions for, Ms. McNeill, but -- 16 THE COURT: Okay. 17 MS. MARSHALL: I still think we're doing okay. 18 THE COURT: Okay. 19 (Whereupon the discussion at the Bench was 20 concluded, after which the following proceedings 21 were had.) 22 THE COURT: Okay. Ladies and Gentlemen, after 23 conferencing with the lawyers, it appears that 24 they're pretty confident in the progress that we're 25 making. And we've pushed real hard, and I CENTRAL FLORIDA REPORTERS, INC. 1683 1 appreciate so much your dedication and time spent 2 with this case. But the lawyers believe, and 3 they're the best judge of that, that we can finish 4 and won't have to start this deposition, which is 5 two and a half hours, and then cut it in half and 6 then start again on Monday with the same thing. 7 So why don't we just start with this -- either 8 maybe a live witness but just do this on Monday, 9 and we'll leave a little early today. And again, I 10 want to express my sincere gratitude on behalf of 11 the lawyers and their clients and the Bench for 12 your time spent and your attention today. You've 13 really done a remarkable job. 14 So I would ask that you come back on Monday 15 morning, weather permitting, to reconvene. And 16 let's try to get started at quarter 'til 9:00. I 17 can't start real early Monday. I have other 18 matters to attend to downstairs, but I would ask 19 that you be here ready to go at quarter 'til 9:00. 20 And I thank you very much. 21 (Whereupon the Jury exited the courtroom.) 22 THE COURT: Okay. Let's -- all right. Let's 23 just look at our schedule. Then tell me again who 24 you anticipate calling on Monday, Mr. Osborne. 25 MR. OSBORNE: Judge, Lillian Folley first. CENTRAL FLORIDA REPORTERS, INC. 1684 1 THE COURT: And -- okay. 2 MR. OSBORNE: And I would suggest she's 3 probably about the same length as Nurse Pipkin, 4 maybe a little longer but not much longer. Officer 5 Padilla. 6 THE COURT: You've got him coming Monday 7 morning? 8 MR. OSBORNE: I've got a message to get him 9 here at 9:30, right. 10 THE COURT: And Padilla you expect will last 11 an hour total maybe? 12 MR. OSBORNE: Total maximum, correct. Brenda 13 McNeill. 14 THE COURT: I beg pardon? 15 MR. OSBORNE: Brenda McNeill. 16 THE COURT: And who is that? 17 MR. OSBORNE: That is -- she is 18 Mr. Destefano's girlfriend. She is a 19 before-and-after witness. And she's also a fact 20 witness of just a couple of events, not lengthy. 21 THE COURT: Okay. 22 MR. OSBORNE: And then Mr. Destefano. He's 23 about a ten-minute witness. And then two lay 24 damage witnesses, Phil Massey, Mieko Koller and 25 then Dr. Krop. CENTRAL FLORIDA REPORTERS, INC. 1685 1 THE COURT: Is that who you would like to put 2 on last is Krop? 3 MR. OSBORNE: Yes, Your Honor. Yes, Your 4 Honor. 5 THE COURT: And how long did you say that 6 deposition edited is? 7 MS. MARSHALL: It's two hours, 40 minutes. 8 THE COURT: And your two lay damages, Massey 9 and Koller, that may take you anticipate 15 10 minutes? And your cross of this, you anticipate 11 that is going to be lengthy? 12 MS. MARSHALL: Not -- no, not very lengthy. 13 THE COURT: Okay. So maybe we can get through 14 Folley, Padilla and McNeill Monday morning? 15 MR. OSBORNE: I would think so, Judge. 16 THE COURT: Okay. If you -- if we get through 17 them with some time left, we may get started then 18 with your client and then plan on going the rest of 19 the afternoon with him, and if necessary Tuesday 20 morning as well. 21 And then other before-and-after witnesses and 22 Dr. Krop. And that should take us, depending on 23 how long you say your direct with Mr. Destefano may 24 be, three hours, depending on how long the cross 25 takes and redirect. CENTRAL FLORIDA REPORTERS, INC. 1686 1 MR. OSBORNE: Yes, Your Honor. 2 THE COURT: But it certainly looks -- I'm 3 optimistic that we may be able to finish the 4 presentation of the Plaintiff's case on Tuesday. 5 And then depending on when that is, when that 6 concludes, hearing directed verdict motions maybe 7 Tuesday afternoon and into the evening, maybe 8 Wednesday morning. Any thoughts on that you all 9 have, concerns? And then perhaps thereafter -- 10 MS. MARSHALL: I think -- 11 THE COURT: -- where necessary wrestling with 12 the jury instructions. 13 MS. MARSHALL: Right. And I think our 14 witnesses, you know, take a total of six hours, 15 seven hours. 16 THE COURT: Okay. So if we were to get 17 started with your witnesses Wednesday afternoon, 18 we're still doing okay? 19 MS. MARSHALL: Right. 20 MR. OSBORNE: Can I know who your witnesses 21 are? 22 MS. MARSHALL: Yeah. We're going to call 23 Kendra Blythe, Danielle Daley, Alexa Clark, David 24 Sylvester, Dr. Anderson, and Dr. Danziger. 25 MR. TOWNSEND: Doctor who? CENTRAL FLORIDA REPORTERS, INC. 1687 1 MS. PETRO: Danziger. 2 MS. MARSHALL: And I believe it will be in 3 that order but -- 4 MR. OSBORNE: Kendra Blythe, Danielle Daley, 5 and what was her first name? 6 MS. MARSHALL: Alexa Parker Clark, David 7 Sylvester, Dr. Anderson, Dr. Danziger, just 8 depending on scheduling. I'll let you know if that 9 order changes. 10 THE COURT: Anything else as far as scheduling 11 is concerned? 12 MR. TOWNSEND: I don't think we'll have 13 anybody at all, Your Honor. 14 THE COURT: Any other concerns, issues for the 15 good of the order, such as it is? 16 MS. MARSHALL: I don't think so. 17 THE COURT: Okay. All right. Well, we've 18 made very impressive progress here, and we will be 19 in recess until Monday morning. 20 (The proceedings were adjourned at 4:38 21 o'clock p.m.) 22 Continued to Volume XIII 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 1688 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 23rd day of May, 2006. 9 10 11 ___________________________________ 12 SHARON L. TRAMONTE, R.M.R. 13 14 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC.