1689 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.: CI-00-7265 DIVISION: 32 6 ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE 7 CORPORATION; ADVENTIST HEALTH SYSTEM/SUNBELT, INC.; SUNBELT 8 HEALTH CARE CENTERS, INC.; ROLLINS BEDFORD CORPORATION, 9 d/b/a SUNBELT HEALTHCARE & SUBACUTE CENTER; SHCC 10 SERVICES, INC., and ORLANDO REGIONAL HEALTHCARE SYSTEM, 11 INC., 12 Defendants. 13 ------------------------------------------------------ 14 VOLUME XIII 15 (Pages 1689 through 1861) 16 Continued transcript of proceedings held before the 17 Honorable Renee Roche, Judge of the Circuit Court, Orange 18 County, Florida, on Tuesday, October 25, 2005, beginning 19 at 8:51 a.m., at the Orange County Courthouse, Orlando, 20 Florida, before Laura J. Landerman, R.M.R., C.R.R., and 21 Notary Public, State of Florida at Large. 22 23 24 25 1690 1 A P P E A R A N C E S: 2 WILLIAM G. OSBORNE, ESQUIRE TERRY McCULLOUGH, Legal Assistant 3 Law Offices of William G. Osborne, P.A. 538 East Washington Street 4 Orlando, Florida 32801 and 5 BRADLEY CONWAY, ESQUIRE 390 North Orange Avenue 6 Orlando, Florida 32801 7 For the Plaintiffs, 8 TRACY A. MARSHALL, ESQUIRE DYANA L. PETRO, ESQUIRE 9 Gray Robinson 301 East Pine Street -- Suite 1400 10 Orlando, Florida 32801 11 For the Defendant, Adventist Health System, 12 LARRY J. TOWNSEND, ESQUIRE 13 DAVID EVANS, ESQUIRE Mateer & Harbert 14 Landmark Center II -- Suite 600 225 East Robinson Street 15 Orlando, Florida 32801 16 For the Defendant, Orlando Regional Healthcare System, Inc., 17 18 19 20 21 22 23 24 25 1691 1 I N D E X 2 TESTIMONY OF LILLIAN FOLLEY, R.N. 3 Direct Examination by Mr. Osborne 1693 Cross-Examination by Ms. Petro 1732 4 Cross-Examination by Mr. Townsend 1745 5 TESTIMONY OF RAMFUS PADILLA 6 Direct Examination by Mr. Osborne 1769 Cross-Examination by Mr. Evans 1778 7 Cross-Examination by Ms. Petro 1784 8 TESTIMONY OF LINDA KAY McNEILL 9 Direct Examination by Mr. Osborne 1792 Cross-Examination by Ms. Marshall 1826 10 Proffered testimony by Mr. Osborne 1843 Cross Examination by Mr. Townsend 1852 11 Redirect Examination by Mr. Osborne 1857 12 E X H I B I T S (In Evidence) 13 Plaintiff's Exhibit No. 22 1707 14 15 16 17 18 19 20 21 22 23 24 25 1692 1 (Continued from Volume XII) 2 N E X T D A Y S E S S I O N 3 (Tuesday, October 25, 2005) (8:53 a.m.) 4 (Appearances same as heretofore noted previously:) 5 THE COURT: Good morning. 6 MR. OSBORNE: Good morning. 7 MR. TOWNSEND: Good morning, Judge. 8 MS. MARSHALL: Good morning. 9 THE COURT: All right. Where we left off was 10 the completion of Kelly Pipkin Gregg's testimony by 11 video deposition, and I believe this morning we are 12 going to have Lillian Folley; is that correct? 13 MR. OSBORNE: Yes, Your Honor. 14 THE COURT: And then Officer Padilla? 15 MR. OSBORNE: Correct. 16 THE COURT: And then do you intend to -- well, 17 then we'll see. We'll see where we go from there. 18 Are you prepared to begin, Mr. Osborne? 19 MR. OSBORNE: Yes, Your Honor. 20 THE COURT: Anything from the defense? 21 MS. MARSHALL: No, Your Honor. 22 MR. TOWNSEND: No. 23 THE COURT DEPUTY: We're missing two jurors. 24 THE COURT: Can you approach, please? 25 (Bench conference held outside the presence of the 1693 1 court reporter.) 2 THE COURT: Apparently, the line downstairs is 3 quite long. We're missing two jurors, so we have no 4 choice other than to wait for them. 5 THE COURT DEPUTY: They're all here. 6 THE COURT: Bring in the jury. 7 (Jury enters.) 8 THE COURT: Please be seated. Ladies and 9 gentlemen, thank you for returning this morning 10 after our unexpected day off yesterday. I trust 11 that court administration got in touch with all of 12 you and gave you directions and that none of you 13 were standing at the door yesterday asking to come 14 in. 15 We will proceed as planned with the 16 presentation of the plaintiff's case this morning. 17 Mr. Osborne, call your next witness. 18 MR. OSBORNE: Plaintiff calls Lillian Folley. 19 - - - - - 20 LILLIAN FOLLEY, R.N. 21 having been first duly sworn testified as follows: 22 DIRECT EXAMINATION 23 BY MR. OSBORNE: 24 Q State your full name for the Court and the 25 jury, please. 1694 1 A Lillian Velma Folley. 2 Q What is your profession or occupation? 3 A At the current time, I'm an advanced 4 registered nurse practitioner. 5 Q What is the level of your nurse training? 6 A Master's. 7 Q Are you an RN? 8 A Yes. 9 Q What was your level of nurse training as of 10 September of 1999? 11 A I was an RN with a bachelor's degree. 12 Q And where did you work in September of 1999? 13 A In the emergency department at ORMC. 14 Q And you were the RN case manager? 15 A Correct. 16 Q What does that mean? 17 A As a case manager, my duties included 18 facilitating patient through the emergency department and 19 through care; in other words, getting the patients 20 through the emergency department, arranging outpatient 21 followup, you know, arranging admission to the hospital, 22 if that's what the disposition was to be. 23 Q Thank you. I'm going to show you what's in 24 evidence, and to assist you with the next series of 25 questions, part of the ORMC records. This is called the 1695 1 initial discharge planning assessment, correct? 2 A Yes. 3 Q And what this means is when you're talking 4 about -- the top of this where we're talking about the 5 admitting diagnosis, information source, you say medical 6 record. That means you checked the medical record to 7 obtain this information? 8 A Correct. 9 Q And it also -- the other box checked in terms 10 of other source of information, you have Sunbelt, Rachel, 11 898-5051, correct? 12 A Correct. 13 Q That means in filling this out, you spoke with 14 Rachel at Sunbelt, correct? 15 A Correct. 16 Q And what you learned from the medical record 17 and from speaking to Rachel at Sunbelt was the admitting 18 diagnosis was rectal bleeding? 19 A Correct. 20 Q And when we go down on this form a little bit 21 here, when we got into identify problems and barrier, 22 you've got social support, son inappropriate, see notes, 23 correct, ma'am? 24 A Yes. 25 Q And the notes you're referring to are the 1696 1 notes found below here, correct, at the bottom on the 2 comment section of this document? 3 A Well, this in addition to there's another -- 4 another form with ancillary notes. 5 Q We'll get to those in a minute. 6 A (Nods head.) 7 Q Which would you have filled out first, the 8 notes here or the ancillary notes? 9 A Likely these notes. 10 Q Because ancillary means following, correct, 11 secondary or following? 12 A Correct. 13 Q In regard to these notes, you only recall 14 speaking with a person named Rachel Bean, correct, in 15 terms of the bottom of this initial discharge planning 16 statement? 17 A Correct. 18 Q I'd like you to -- Ms. Folley, I'd like you to 19 go ahead and publish, read your writing here on the 20 bottom of the initial discharge planning assessment for 21 me. 22 A You want me to read this aloud? 23 Q Yes, ma'am. Read it aloud for the jury. 24 A Received consult from the nursing staff 25 through discharge planning. Patient is a 71-year-old 1697 1 white female with history of end-stage Alzheimer's 2 disease, parentheses, per nursing supervisor skilled 3 nursing facility, end parentheses. Presented with rectal 4 bleeding after patient's son was witnessed disimpacting 5 her, parentheses, states Rachel, RN, end parentheses, at 6 Sunbelt. 7 Sunbelt is refusing to take the patient back, 8 states Rachel, because of son's inappropriate behavior, 9 parentheses, see ancillary notes, end parentheses. 10 Sunbelt has trespassed the son from their facility and 11 has reported to 1800-96ABUSE, and then my signature and 12 the date. 13 Q So it's clear from this, is it not, 14 Mrs. Folley, that the person that told you that the son 15 was witnessed disimpacting his mother was Rachel, RN, at 16 Sunbelt, correct? 17 A Correct. 18 Q So if Rachel Bean denied telling you that, she 19 would be wrong, wouldn't she? 20 A Well, according to my notes, yes. 21 Q And this is a note that you made 22 contemporaneous to the time that Rachel told you this 23 statement that the son was witnessed disimpacting his 24 mother, correct? 25 A I don't specifically remember when I filled 1698 1 this out, but it should have been immediately after. 2 That was most likely. 3 Q That would have been your customary practice? 4 A Correct. 5 Q You don't recall if Rachel Bean told you who 6 it was that witnessed Larry Destefano disimpacting his 7 mother, do you? 8 A No, I don't remember her telling me anyone 9 specific. 10 Q At this time, again, according to your note, 11 Sunbelt was refusing to take the patient back because of 12 the son's inappropriate behavior. That's what you were 13 told, correct? 14 A Correct. 15 Q When Rachel Bean told you that Sunbelt was 16 refusing to take the patient back because of the son's 17 inappropriate behavior, Rachel explained to you that the 18 inappropriate behavior was that the son was witnessed 19 lying on top of his mother, kissing her with his mouth 20 open in the way a son would not kiss his mother, correct? 21 A That was part of what she said, yes. 22 Q Let's talk about ancillary notes. All right? 23 Now, tell the jury again what an ancillary note is. 24 A Ancillary notes are generally filled out by 25 support staff, support nursing staff, either social 1699 1 services, case management, pastoral care, and it's a 2 supplement to the medical record. 3 Q If you would, Mrs. Folley, I'd like you to go 4 ahead and publish your ancillary note. First of all, 5 what time is it noted that these events occurred? 6 A 1630. That would be 4:30 in the afternoon. 7 Q Publish for the jury what it is you wrote in 8 the ancillary note -- just so we're clear, the event 9 occurred at 4:30 -- you might have put it in later, but 10 the event would have occurred about 4:30? 11 A Correct. 12 Q Publish that for the jury, please. 13 A This is dated 9/21/1999, 4:30 in the 14 afternoon. Received consult from the nursing staff for 15 discharge planning. See initial discharge planning 16 assessment. Per telephone call to Sunbelt skilled 17 nursing facility, slash, Rachel, RN, nursing supervisor, 18 then phone number. Patient's son was witnessed lying on 19 top of patient, parentheses, who has a Glascow coma score 20 of 7, end parentheses, kissing her with his mouth open, 21 quote, In a way a son would not kiss his mother, unquote. 22 Sunbelt sent the patient to ORMC because of 23 rectal bleeding. Rachel, RN, semicolon, quote, We sent 24 her to ORMC as neutral ground because the son doesn't 25 want the patient at Sunbelt and Sunbelt is associated 1700 1 with Florida Hospital, end quote. 2 Patient's primary care provider is at Florida 3 Hospital. Rachel has spoken with Donna, ID No. 0021, at 4 HRS regarding the situation with son, period, and then my 5 signature. 6 Q As we go down on this ancillary note chart, 7 Mrs. Folley, there's another entry at 1650 and 1745. I'd 8 like you to publish for the jury what those two entries 9 are, then I'll ask you a question about it. 10 A Okay. Telephone call to 1-800-96ABUSE, 11 parentheses, Elder Abuse. Return call from Elder Abuse, 12 slash, Christy Greenslate (ph). I requested assistance 13 from HRS regarding placing patient. Christy states we'll 14 investigate in the morning and cannot be involved until 15 then. States will not help with placement. Son at 16 patient's bedside. Hospital security present asking son 17 to leave. 18 Q So in terms of the first notation on the 1650, 19 is that when you called HRS or Elder Abuse? 20 A According to the note, yes. 21 Q And then the 1745 call was when they called 22 you back, correct? 23 A According to the note, yes. 24 Q And we've got into the 1830, which is -- what 25 time is that, 6:30? 1701 1 A Yes. 2 Q And that was when the son was at the patient's 3 bedside and security was present asking son to leave, 4 correct? 5 A Yes. 6 Q While we're going through here, let's go right 7 down to the next charting which, I think, is also your 8 charting as well, the 1915 charting. 9 A Correct. 10 Q Publish that for the jury, please. 11 A Received telephone call from Sunbelt, 12 parentheses, corporate, end parentheses, Judy O'Bansik 13 (ph) states the patient is still at ORMC in the morning. 14 She'll help place the patient in a skilled nursing 15 facility. Given Nancy Grimmell's phone number, MSW, and 16 my signature. 17 Q Mrs. Folley, you don't remember why HRS would 18 not help you with placement, do you? 19 A Not specifically, no. 20 Q And you don't actually recall, even though 21 there's a notation there for 1830, you don't actually 22 recall the hospital security being present asking the son 23 to leave, do you? 24 A I remember the general situation, but as far 25 as times and them standing there, I don't specifically 1702 1 recall that, no. 2 Q Okay. And just in terms of this last -- this 3 last notation here at 1915, we're talking Sunbelt did 4 call you back and said that if she was still there in the 5 morning, they would help you with placement, correct? 6 A Yes. 7 Q You were trying to place Mrs. Destefano 8 because no rectal bleeding had been found upon 9 examination at ORMC, correct? 10 A No, I never said that. I was trying to place 11 her because the skilled nursing facility was not willing 12 to take her back, and part of my duties were to make sure 13 that people had follow-up care. 14 Q Follow me on this one, Mrs. Folley. The fact 15 was that Mrs. Destefano could not be admitted to a room 16 at ORMC because there was no medical reason to keep her 17 at the hospital, correct? 18 A That's correct. 19 Q Because there was -- she came in with an 20 admitting diagnosis -- according to your first charting 21 here, she came in with an admitting diagnosis of rectal 22 bleeding, correct? 23 A Correct. 24 Q But no rectal bleeding was found; isn't that 25 correct? 1703 1 A You know, without reviewing the medical 2 record, I really don't know. I would assume not just 3 because she -- she wasn't admitted, but -- 4 Q You wouldn't have been involved in trying to 5 place her if she had had a medical reason for staying at 6 ORMC, would you? 7 MR. TOWNSEND: Object to the form, calls for 8 speculation. 9 THE COURT: Overruled. 10 Q Do you remember my question, ma'am? 11 A Yes. I just wasn't sure if I was supposed to 12 answer it or not. 13 Q You can answer it. 14 A I only would have been involved in her 15 disposition if she wasn't going to be admitted to the 16 hospital, yes. 17 Q Okay. During Mrs. Destefano's stay at the 18 hospital, it's your testimony that you saw Mr. Destefano, 19 Larry Destefano, in bed with her, correct? 20 A Correct. 21 Q You saw him from the doorway? 22 A Yes. 23 Q She was on her back, and he was on his left 24 side facing her, correct? 25 A Correct. 1704 1 Q Their bodies were not touching, according to 2 your testimony, correct? 3 A According to my testimony, correct. 4 Q As the RN case manager, you felt that this was 5 inappropriate for Mr. Destefano to be lying in bed with 6 his mother, didn't you? 7 A Correct. 8 Q His posture struck you as being a sexual 9 posture, didn't it? 10 A Correct. 11 Q When you were in the doorway, Mr. Destefano's 12 front was facing you, correct? 13 A Yes. 14 Q You felt this was a sexual posture because you 15 believed plaintiff was acting in a flirtatious manner, 16 didn't you? 17 A No, not necessarily. It was just something 18 about his posture just struck me that way. 19 Q Let me ask you if you remember your deposition 20 being taken on May 1 of 2002. Do you remember that? 21 A I remember being deposed, yes. 22 Q And you were under oath? 23 A Correct. 24 Q See if you -- I'd like you to listen to this 25 question and answer, page 27 -- 1705 1 MR. TOWNSEND: Can you give me just a second, 2 please, to get there? And can you show her a copy 3 of it? 4 MR. OSBORNE: This is not for refreshment 5 purposes, Mr. Townsend. This is for impeachment 6 purposes. 7 Q Line 9. 8 "Question: Okay. Now, you said a sexual 9 posture. I mean, can you describe that and what -- 10 how would you define a sexual posture? 11 "Answer: Well, it would be very difficult to 12 do. I mean, but it's, you know, like the way people 13 look at you sometimes or whatever as flirtatious. I 14 mean, how can you describe it? I don't know. It 15 was just when I saw it, it appeared sexual." 16 Is that your testimony? 17 MR. TOWNSEND: Your Honor, may I request he 18 read down to line 28 and put it in context? 19 THE COURT: Go ahead. 20 BY MR. OSBORNE: 21 Q Line 17: 22 "Okay. Did -- was it the way he was looking 23 at his mother that appeared sexual? 24 "Answer: My recollection was that was the 25 overall picture. I mean, his posture, just the 1706 1 totality of it." 2 You did use the word "flirtatious" when you 3 were describing why you thought it was a sexual posture, 4 did you not, ma'am? 5 A That was my best recollection at that time, 6 which was two and a half years after the episode, but 7 yes. 8 Q I understand. You thought what you observed 9 was gross, didn't you? 10 A Yes. 11 Q You didn't -- you don't remember if you 12 immediately went and told somebody, don't you? 13 A I -- I don't have specific recollection, no. 14 Q We know you didn't chart this inappropriate, 15 gross event, did you? 16 A I don't have specific recollection of that. 17 Q Okay. Well, you've got your chartings up 18 there in front of you. Were there any other chartings 19 you did other than those chartings in Mrs. Destefano's 20 note? 21 A Nothing else that went on the chart, no. 22 Q And there's nothing in this charting that 23 we've got here, these two pages of chartings that we've 24 talked about, where you mention anything about this 25 inappropriate, gross event that you witnessed; is that 1707 1 correct? 2 A That's correct. 3 Q When you saw Larry Destefano lying in bed with 4 his mother, you didn't confront him at all, did you? 5 A No, I did not. 6 Q As the case manager, you would not have been 7 the person to address that, correct? 8 A Not if I felt threatened or that it was -- if 9 I felt that the patient was being threatened in any way, 10 no. 11 Q I didn't understand your answer. In terms of 12 your position as the case manager, your testimony is that 13 even though you saw this gross event, you're not the 14 person that would have been there to address that issue, 15 as far as your job and your responsibility, correct? 16 A If I felt that there was a threat, I would 17 have gotten security. I wouldn't have been the case 18 manager, no. 19 Q When you looked in the doorway, the curtain 20 was not drawn at any point covering any part of the bed, 21 was it? 22 A Correct. 23 Q There were two beds in the room, correct? 24 A Correct. 25 Q Just while we've got it here in evidence as 1708 1 Plaintiff's 21, does this appear to be a fair and 2 accurate depiction of the room that Mrs. Destefano was 3 in? 4 A There's kind of a glare on it. 5 Q Sure, go right ahead. 6 A Yes. 7 Q Mrs. Destefano was in the bed closest to the 8 door, correct? 9 A Yes. 10 Q And the bed was fully visible? 11 A Yes. 12 Q I'm going to ask you if you can identify this 13 next document as the statement that you gave to the 14 Orlando Police Department. 15 A Yes, it is. 16 MR. OSBORNE: I would move this into evidence, 17 judge. It's a part of Plaintiff's E for 18 identification. 19 THE COURT: Objection? 20 MR. TOWNSEND: No objection, Your Honor. 21 MS. PETRO: No objection, Your Honor. 22 MR. OSBORNE: I've got an extra copy for the 23 clerk. 24 THE CLERK: Plaintiff's 22. 25 (Plaintiff's Exhibit No. 22 was admitted.) 1709 1 BY MR. OSBORNE: 2 Q Let's talk about your statement. We're going 3 to get into it in a minute, but you are the person that 4 called security on Mr. Destefano, correct? 5 A Correct. 6 Q Now, the time of your statement is indicated 7 as being 5:30, 1730, on the top? 8 A That's not my writing. I don't know whose 9 writing that is. That's the time someone wrote on there. 10 Q That was my mistake, ma'am. If you go down to 11 the next line, 1817, does that refresh your memory as to 12 the time you would have given the statement? 13 A Yes, that was more likely the time. 14 Q Okay. And I think I would represent to you 15 that the 1730 might have been the time the police were 16 called. But I'd like you to go through here, and I'd 17 like you to publish the statement you gave to OPD for the 18 jury, please. Just take your time and read it loudly for 19 them. 20 A I received a consult to facilitate discharge 21 of the patient from the hospital. Kelly Pipkin, RN, 22 notified me that the patient came from Sunbelt skilled 23 nursing facility with rectal bleeding and Sunbelt refused 24 to accept the patient back. 25 I phoned Sunbelt regarding this and spoke to 1710 1 Rachel, RN, parentheses, nursing supervisor, end 2 parentheses. Rachel confirmed the above and added that 3 the patient's son displayed inappropriate behavior when 4 visiting his mother at Sunbelt, including kissing his 5 mother in the way, quote, You don't kiss your mother, 6 unquote, lying fully on top of his mother, kissing her on 7 the lips with his mouth open and disimpacting her, 8 parentheses, inserting a finger into the rectum and 9 digitally breaking up and removing stool, end 10 parentheses, yelling at the nursing staff, period. 11 Rachel, RN, states all the above were 12 witnessed in her facility. Rachel, RN, stated she and 13 her staff felt very threatened by and scared of the son, 14 which makes healthcare decisions for the patient. Rachel 15 indicated she had trespassed the son based on the above 16 from Sunbelt and had reported the above to 1-800-96ABUSE, 17 slash, Donna. 18 Following this phone conversation with Rachel, 19 RN, I returned to the nursing station at ORMC emergency 20 department where Kelly Pipkin, RN, reported witnessing 21 the son kissing his mother on the lips with his mouth 22 open. At this time, I reported this to the OPD, Officer 23 Young, parentheses, stationed in the emergency 24 department, end parentheses, and ORMC security. At the 25 time I received the consult, parentheses, at the 1711 1 beginning of the statement, end parentheses, was 2 approximately 4:30 p.m. 3 Q Now, Mrs. Folley, in this statement you gave 4 to OPD around 6:17 p.m., you make no mention to OPD of 5 Mr. Destefano's alleged lying in bed with his mother, do 6 you? 7 A Correct. 8 Q You make no mention to OPD of this behavior 9 you believe to be inappropriate, do you? 10 A Correct. 11 Q You make no mention of Mr. Destefano's alleged 12 sexual posture or flirtatious manner, do you? 13 A Not that I saw, no. 14 Q And you make no mention to OPD of this alleged 15 behavior you deem to be gross, do you? 16 A Correct. 17 Q And, in fact, the first time you ever mention 18 that Mr. Destefano was lying on top of his mother is when 19 your deposition was taken on May 1st of 2002; isn't that 20 correct? 21 A I don't have specific recollection, but 22 looking at the notes, it appears to be that way, correct. 23 Q We know, Mrs. Folley, you didn't put it in the 24 chart, correct? 25 A Correct. 1712 1 Q You didn't tell OPD in your statement, 2 correct? 3 A Well, it's not in the statement, but I believe 4 it was on the phone call, but it wasn't in the statement. 5 Q Okay. We're going to get to the phone call in 6 a minute. So your recollection is that you told the 7 police in the phone call that Mr. Destefano was lying in 8 bed with his mother? 9 A That's my best recollection at this time, six 10 years later. 11 Q Other than the phone call, you would agree 12 with me that the first time it's written anywhere or you 13 have testified anywhere that Mr. Destefano was lying in 14 bed with his mother was in your deposition on May 1st of 15 2002, correct? 16 A Correct. 17 Q Now, let's talk a little bit about what you 18 told the police here in terms of what Rachel Bean told 19 you. It says Rachel Bean told you the patient's son 20 displayed inappropriate behavior when visiting his 21 mother, including kissing his mother on the lips in a way 22 you don't kiss your mother, lying fully on top of his 23 mother kissing her on the lips with his mouth open and 24 disimpacting her, inserting a finger into the rectum and 25 digitally breaking up and removing stool, yelling at 1713 1 nursing staff, and Rachel Bean states that all the above 2 were witnessed in her facility. 3 Isn't it a fact, Mrs. Folley, when you take 4 your statement there, that it appears that all these 5 things were occurring at one time? Mr. Destefano was 6 kissing his mother, lying on top of her and disimpacting 7 her and yelling at the staff at one time in one event? 8 A It doesn't appear that way to me, no. 9 Q You didn't mention to OPD that rectal bleeding 10 had been reported by Rachel Bean as well, did you? 11 A I did or did not? 12 Q You did not, in terms of your statement to the 13 police, you didn't -- you failed to mention to them that 14 Rachel Bean told you there was rectal bleeding? 15 A I would need to read this to refresh my memory 16 because I don't have specific recollection. 17 Q Go right ahead and do that, please. 18 A (Reviewing document.) Well, I've got on the 19 police report that Rachel told me that. Is that -- is 20 that what you're asking? 21 Q Maybe I missed that. I was looking on here to 22 see. Where in here does it say that you -- I take it 23 back. You do say that at the top, rectal bleeding. 24 Kelly Pipkin notified you about the rectal bleeding. 25 That's what it was. Okay. Thank you. 1714 1 You would agree with me, Mrs. Folley, that in 2 terms of the sequence of events, starting with the 3 consult with Kelly Pipkin and the phone call with Rachel 4 Bean, and then Kelly Pipkin telling you she observed 5 Mr. Destefano passionately kissing his mother, that this 6 is the sequence of events, as you recalled it, as it 7 occurred on that date in September of 1999? 8 A Correct. 9 Q Okay. You would also agree with me, would you 10 not, that you had two different conversations with Kelly 11 Pipkin. You had the first one, which was just a consult 12 to facilitate discharge with Kelly Pipkin, correct? 13 A Correct. 14 Q And she said nothing to you at that initial 15 time, which I think you relate as being, on the back, 16 that time as being 4:30, correct? Take a look at the 17 second page when you go back and relate the time of the 18 consult. 4:30 was when you had the initial consult 19 with -- 20 A Correct. 21 Q -- Kelly Pipkin? 22 A Correct. 23 Q And she didn't tell you anything at 4:30 about 24 Mr. Destefano kissing his mother passionately, did she? 25 A Not according to the note. 1715 1 Q Because you would have charted it that way if 2 she had told you that, wouldn't you? 3 A Correct. 4 Q So in the sequence, we've got consult with 5 Kelly Pipkin regarding discharge, and then the phone call 6 with Rachel Bean? 7 A Correct. 8 Q Because this also correlates with your other 9 ancillary note where you also state that it was at 4:30 10 that you had the consult -- the phone consult with Rachel 11 Bean, correct? 12 A Correct. 13 Q Okay. And isn't it true that the first time 14 you became aware that Carolina Destefano was even in the 15 emergency room was when you were notified about the 16 patient by the nursing home? 17 A According to the note, I was notified by Kelly 18 Pipkin. 19 Q Okay. You also have testified that you were 20 contacted by a nurse that said she saw Larry Destefano in 21 bed with his mother, other than you, another nurse, 22 correct? 23 A Yes. 24 Q And this nurse contacted you before you saw 25 Mr. Destefano in bed with his mother? 1716 1 A Correct. 2 Q And this nurse came over to you and said that 3 she had seen Mr. Destefano in bed with his mother at 4 about 4:30? 5 A Are you asking me if she told me at 4:30 or if 6 she said that she saw it at 4:30? 7 Q She came over to you and said that she saw 8 Mr. Destefano in bed with his money -- his mother at 9 about 4:30? 10 A I don't have specific recollection of her 11 mentioning a time. 12 Q I'd like you to look at page 19, if you would, 13 of your deposition, line 16 through 19, and see if this 14 refreshes your recollection, ma'am. 15 MR. TOWNSEND: Can you give me just a second, 16 please? Page 19. 17 MR. OSBORNE: Page 19. 18 MR. TOWNSEND: Lines what? 19 MR. OSBORNE: 16 through 19. 20 A (Reviewing transcript.) 21 Q Does that refresh your memory? 22 A Well, it refreshes my memory about what I 23 remembered at that time, which was two and a half years 24 later, but, yes. 25 Q And basically, what you said back then was 1717 1 that it was at 4:30 that you had this conversation with 2 the nurse, correct? 3 A Correct. 4 Q And there was only one nurse that reported to 5 you that Mr. Destefano was lying in bed with his mother, 6 correct? 7 A Correct. 8 Q And that nurse was Kelly Pipkin, to your 9 recollection? 10 A Correct. 11 Q And Kelly Pipkin told you that Mr. Destefano 12 was lying on top of his mother, didn't she? 13 A According to the notes, yes. 14 Q Well, where in the notes does it say that 15 Kelly Pipkin told you that Mr. Destefano was lying on top 16 of his mother? What you told the police was that Kelly 17 Pipkin reported witnessing the plaintiff kissing his 18 mother on the lips with his mouth open. 19 Where is it reported that Kelly Pipkin told 20 you that she had seen Larry Destefano lying on top of his 21 mother? 22 A (Reviewing document.) Looking at the notes, I 23 stand corrected. It looks like Rachel was the one that 24 told me that. 25 Q Rachel is the only source of information you 1718 1 had, isn't that true, that Rachel Bean was the only 2 source of information you had that Mr. Destefano had been 3 seen, witnessed lying on top of his mother? Isn't that 4 true? 5 A (Reviewing transcript.) 6 Q Your ancillary note, 4:30, Rachel Bean is 7 reported as telling me the son was witnessed lying on top 8 of the patient, correct? 9 A I see that, yes. 10 Q You told the police, in your statement in 11 terms of inappropriate behavior, that she was told -- 12 Rachel Bean told you that he was lying fully on top of 13 his mother, correct? 14 A (Reviewing transcript.) Yes. 15 Q So the only source of information you had 16 about Larry Destefano lying on top of his mother came 17 from Rachel Bean, correct? 18 A According to the note, Kelly Pipkin told me 19 about him kissing her, and it doesn't -- it doesn't 20 mention Kelly Pipkin telling me that he was on top of 21 her, so, yes, you're correct. 22 Q So just so we're clear, the only source of 23 information you had about Larry Destefano lying on top of 24 his mother was Rachel Bean, correct? 25 A According to the notes, yes. 1719 1 Q And you stand by these notes, do you not, that 2 were created back in 1999? 3 A Well, they were my best recollection at that 4 time, which was immediately, you know, following the 5 events, so yes. 6 Q Now, we've talked about the fact that you 7 thought that -- refreshed your memory of the events about 8 him lying in bed with his mother occurred about 4:30. Do 9 you remember that a couple minutes ago? 10 A Yes. 11 Q Did you know that at 4:20 that 12 Mrs. Destefano's daughter-in-law was reported as being at 13 the bedside with the patient? 14 A No, I don't have any recollection of that. 15 Q Did you ever see a female there with 16 Mrs. Destefano -- and I'll report to you she really 17 wasn't the daughter-in-law, but she was Mr. Destefano's 18 girlfriend. Did you ever see anybody at the area when 19 you saw Mr. Destefano allegedly lying next to his mother 20 in bed? 21 A No. 22 Q You never saw Mr. Destefano kissing his 23 mother, did you? 24 A I don't have any specific recollection of 25 that, no. 1720 1 Q That's something you would remember if it had 2 occurred and you had seen it; isn't that true? 3 A Probably. 4 Q And you don't recall if you contacted 5 Mrs. Destefano's nurse after you witnessed Mr. Destefano 6 lying in bed with his mother, do you? 7 A I would need to refer to my notes. I don't -- 8 I don't have any specific recollection of that at this 9 time, no. 10 Q And you don't recall contacting security after 11 you witnessed Mr. Destefano lying in bed with his mother 12 either, do you? 13 A I did contact security. 14 Q That had nothing to do with your allegedly 15 seeing Mr. Destefano lying in bed with his mother, 16 though, did it? 17 A Well, yes, it did. 18 Q Well, let's talk about that. When you went 19 and talked to the police, if this had something to do 20 with your calling security who then called the police, 21 you didn't tell the police in your statement anything 22 about lying in -- Mr. Destefano lying in bed with his 23 mother, did you? 24 A No, I did not. 25 Q It appears that what prompted your phone call 1721 1 was two things. One was the phone call from Rachel Bean, 2 and two, was Nurse Pipkin telling you purportedly that 3 she witnessed Mr. Destefano kissing his mother on the 4 lips, correct? 5 A Well, I had several sources of information. I 6 had Kelly Pipkin, what she had told me. I had Rachel, 7 what she had told me. And I had what I saw. And all 8 those things put together is what prompted me to contact 9 security. 10 Q But what you saw never shows up on your OPD 11 statement, does it? 12 A That's correct. 13 Q You don't recall if Mr. Destefano was ever 14 removed from the ORMC emergency room, do you? 15 A My notes reflect that hospital security was 16 there asking him to leave. I don't have specific 17 recollection at this time of that, though, no. 18 Q You don't recall whether he ever actually 19 left, though, do you? 20 A No, at this time, I don't, no. 21 Q It was after your phone call with Rachel Bean 22 at 4:30 and your discussion with Kelly Pipkin shortly 23 thereafter that you decided to call OPD, correct? 24 A Could you say that again, please? 25 Q Yes, ma'am. It was after your phone call from 1722 1 Rachel Bean at 4:30 and your discussion with Kelly Pipkin 2 shortly thereafter that made -- that gave you the 3 decision -- that led to your decision to call OPD; isn't 4 that true? 5 A Well, I -- according to my notes, I spoke to 6 HRS first. 7 Q That was only for placement purposes. I'm 8 talking about your call to security. What about your 9 call to security? It was only the phone call from Rachel 10 Bean at 4:30 and your discussion with Kelly Pipkin that 11 led you to call OPD; is that correct? 12 A Well, and then according to my notes, I went 13 by and saw the patient too before -- before I called 14 security. 15 Q But your notes don't reflect anything about 16 reporting Mr. Destefano lying with his mother in bed, do 17 they? 18 A No, they don't. 19 Q I would like at this time to play that tape 20 and have you listen to this, first of all, for the 21 content so you can tell this jury whether or not this is 22 your voice and if you said these things to security. 23 (Whereupon, an audiotape was played for the 24 jury.) 25 UNKNOWN MALE SPEAKER: This is John. 1723 1 MS. FOLLEY: John, hi. This is Lillian in the 2 emergency department. I've got a situation I need 3 someone to come over here about right away. 4 UNKNOWN MALE SPEAKER: Over here where? 5 MS. FOLLEY: The emergency department. 6 UNKNOWN MALE SPEAKER: Where in the -- 7 MS. FOLLEY: Room 22. 8 UNKNOWN MALE SPEAKER: Room 22? 9 MS. FOLLEY: Uh-huh. 10 UNKNOWN MALE SPEAKER: And your name? 11 MS. FOLLEY: Lillian. 12 UNKNOWN MALE SPEAKER: What's the problem? 13 MS. FOLLEY: There is a man in there that 14 is -- he's -- he's kissing his mother. He's French 15 kissing his mother. She's nearly comatose, and 16 she's in her 70s. She came here from the nursing 17 home, and he's laying on top of her kissing her. 18 UNKNOWN MALE SPEAKER: Okay. I'll send 19 somebody over. 20 MS. FOLLEY: Okay, thanks. Bye. 21 (Audiotape is concluded.) 22 MR. OSBORNE: Stay there, Mr. McCollough. 23 BY MR. OSBORNE: 24 Q That is your voice, is it not? 25 A I believe it is, yes. 1724 1 Q And you used words "he was laying on top of 2 his mother at ORHS," correct? 3 A Yes. 4 Q You sounded a little disgusted there, didn't 5 you? 6 A Yes. 7 Q I'd like you to listen to this again, and 8 let's listen for the emotion in your voice and what you 9 were feeling at the time. 10 MR. OSBORNE: Go ahead, Mr. McCollough. 11 (Audiotape was again played for the jury.) 12 UNKNOWN MALE SPEAKER: This is John. 13 MS. FOLLEY: John, hi. This is Lillian in the 14 emergency department. I've got a situation I need 15 someone to come over here about right away. 16 UNKNOWN MALE SPEAKER: Over here where? 17 MS. FOLLEY: The emergency department. 18 UNKNOWN MALE SPEAKER: Where in the -- 19 MS. FOLLEY: Room 22. 20 UNKNOWN MALE SPEAKER: Room 22? 21 MS. FOLLEY: Uh-huh. 22 UNKNOWN MALE SPEAKER: And your name? 23 MS. FOLLEY: Lillian. 24 UNKNOWN MALE SPEAKER: What's the problem? 25 MS. FOLLEY: There is a man in there that 1725 1 is -- he's -- he's kissing his mother. He's French 2 kissing his mother. She's nearly comatose, and 3 she's in her 70s. She came here from the nursing 4 home, and he's laying on top of her kissing her. 5 UNKNOWN MALE SPEAKER: Okay. I'll send 6 somebody over. 7 MS. FOLLEY: Okay, thanks. Bye. 8 BY MR. OSBORNE: 9 Q You sounded disgusted, didn't you? 10 A I sounded like I was searching for words. 11 Q Now, Mrs. Folley, isn't it a fact that Kelly 12 Pipkin did not tell you that Mr. Destefano was French 13 kissing his mother? Read what it says. Reported 14 witnessing the son kissing his mother -- 15 A What form are you -- 16 Q I'm looking at the statement to OPD that Kelly 17 Pipkin reported witnessing the son kissing his mother on 18 the lips with his mouth open. That's what was reported 19 to you, correct? 20 A According to the note, yes. 21 Q And you said to the police security that this 22 was French kissing, didn't you? 23 A Yes. 24 Q And you interpreted, then, that if 25 Mr. Destefano was kissing his mother with his mouth open 1726 1 that that's French kissing, your interpretation? 2 A Yes. 3 Q French kissing is when you put your tongue in 4 somebody's mouth and do things, isn't it? 5 A That's correct. 6 Q What was it about this statement from Kelly 7 Pipkin that led you to believe that that was French 8 kissing? 9 A I have no specific recollection of that right 10 now, but likely it was her gestures and her -- the 11 inflection in her voice. 12 Q That's speculation, isn't it? You said you 13 don't recall. That's speculation you just gave this 14 jury, isn't it? 15 A Well, that's what most likely happened, but I 16 don't specifically recall. 17 Q All right. That's speculation if you don't 18 remember, is it not? 19 A (Witness shrugs.) Yes. 20 Q And you told security that -- going back to 21 that tape, you told security that Mr. Destefano was 22 laying on top of his mother while she was in her room at 23 ORHS, didn't you? 24 A On the police report? 25 Q No, ma'am. On that tape. You told the 1727 1 police, you said, he's kissing his mother, French kissing 2 his mother, ah, he's laying on top of her. That's what 3 you said, isn't it? 4 A Yes. 5 Q And you told the police he was laying on top 6 of his mother at ORHS, didn't you? 7 A I would need to look at my notes to refresh my 8 memory. 9 Q You want me to play the tape again for you? 10 Let's play it again, Mr. McCollough. 11 A Well, that phone call went to security, and 12 you just said the police department, correct? 13 Q All right. Let's talk about the phone call to 14 security. 15 A Because this is the police department and 16 that's security. They work together in the ER, so 17 it's -- 18 Q You told security who then contacted the 19 police department, correct? Isn't that how it went? 20 A Well, I told -- I contacted security, and they 21 work with the police department. I mean, the police -- 22 they have a podium. They stand right there. They -- 23 Q You've got an off-duty officer there all the 24 times, don't you? 25 A Correct. 1728 1 Q But you told security knowing it would go to 2 OPD that Mr. Destefano was lying -- laying on top of his 3 mother was your words -- lying on top of his mother while 4 she was in her room at the emergency room at ORHS, didn't 5 you? 6 A Correct. 7 Q And the only source information you had about 8 Mr. Destefano laying on top of his mother was Rachel 9 Bean. We just established that, didn't we? 10 A Well, she was one source, and I saw, and -- 11 Q Your testimony is you saw Mr. Destefano lying 12 next to his mother. That's your testimony, isn't it? 13 A Well, yes. 14 Q And Kelly Pipkin said nothing to you about 15 Mr. Destefano laying on top of his mother, did she? 16 A I -- I don't have specific recollection. 17 Q Well, look at your statement to the police 18 department, which you said was an accurate rendition of 19 the sequence of events as they occurred on the 21st of 20 September, and tell me did Kelly Pipkin tell you that she 21 had seen Mr. Destefano laying on top of his mother? 22 A No. 23 Q Only source of information that you had about 24 Mr. Destefano lying on top of his mother was Rachel Bean; 25 isn't that true? 1729 1 MR. TOWNSEND: Your Honor, this has been asked 2 and answered. It's becoming argumentative. 3 THE COURT: Sustained. Move along. 4 BY MR. OSBORNE: 5 Q No one ever saw Larry Destefano, to your 6 knowledge, lying on top of his mother while at ORHS; 7 isn't that a true statement? 8 A According to the notes, that's -- that's 9 correct. 10 Q And according to what you told the OPD as 11 well, correct? 12 A Well, recalling what you just played there -- 13 oh, you said OPD. You didn't say security. The tape, 14 right. 15 Q I'm talking about OPD, correct. You didn't 16 tell OPD about anybody at ORHS seeing Mr. Destefano lying 17 on top of his mother, did you? 18 MR. TOWNSEND: Your Honor, once again, he's 19 gone over this about -- 20 THE COURT: Sustained. Move along. 21 BY MR. OSBORNE: 22 Q Since you were told by Rachel Bean that 23 Mr. Destefano was lying on top of his mother, at that 24 time you considered that to be a physical danger to 25 Mrs. Destefano, didn't you? 1730 1 A Correct. 2 Q And that's why you told OPD or that's why you 3 told security that Mr. Destefano was lying on top of his 4 mother, wasn't it? 5 A Well, I spoke with Kelly, I spoke with Rachel, 6 and I went by and saw, so I -- I mean, to the best of my 7 recollection today, six days or six years later, I 8 believe that it was everything. I mean, all these 9 reasons is why -- 10 Q But the reason that you considered 11 Mrs. Destefano to be in physical danger was only because 12 Mr. Destefano had been reported to be lying on top of his 13 mother; isn't that your testimony? 14 A No, I wouldn't say that. I mean, it was -- it 15 was all these reasons. 16 Q Page 53, line 19. 17 MR. TOWNSEND: Let me get there, please. 18 Q (Reading:) 19 "Question: Assuming you were told that 20 Mr. Destefano was lying on top of his mother, at 21 that time, did you consider that to be a danger, a 22 physical danger to Mrs. Destefano? 23 ""Answer: Yes. 24 Is that your testimony? 25 MR. TOWNSEND: Your Honor, that's improper 1731 1 impeachment. She said she thought it was a danger. 2 THE COURT: Sustained. Move along, please, 3 Mr. Osborne. 4 BY MR. OSBORNE: 5 Q You called security because the patient had 6 come to the ER with rectal bleeding, and you'd received a 7 phone call from Sunbelt saying that she had rectal 8 bleeding caused by the son, and that to you implicated 9 some kind of danger if he was in bed with her, correct? 10 A Correct. 11 MR. TOWNSEND: Your Honor, could I ask him to 12 also -- never mind, Your Honor. That's fine. 13 A If I may add -- 14 Q No, ma'am. I don't have a pending question. 15 Thank you. 16 We do know, do we not, Mrs. Folley, from the 17 triage form -- and I'm just going to show you this so you 18 know what I'm referring to. 19 A Yes. 20 Q We do note from the triage form regarding an 21 examination by Dr. Wilson that there was no evidence of 22 rectal bleeding on Mrs. Destefano, correct? 23 A Well, I would need to look at it again and 24 read the full thing to be able to answer that question, 25 but -- 1732 1 Q Let me show you a copy of it. 2 MR. TOWNSEND: Your Honor, once again, I 3 object. This is repetitive. This line of 4 questioning has been -- 5 THE COURT: Sustained. 6 MR. OSBORNE: Your Honor, I'm going -- 7 THE COURT: Sustained, Mr. Osborne. If you 8 want to go somewhere, go somewhere. We've been over 9 this ground. 10 MR. OSBORNE: No further questions, ma'am. 11 THE COURT: Cross-examine? 12 - - - - - 13 CROSS-EXAMINATION 14 BY MS. PETRO: 15 Q Good morning, Ms. Folley. My name is Dyana 16 Petro. I'm here on behalf of Adventist Healthcare and 17 Sunbelt nursing home. 18 A Good morning. 19 Q Ms. Folley, you were a registered nurse for 20 over 20 years, correct? 21 A That's roughly correct, yes. 22 Q And as a registered nurse, you were required 23 to be licensed by the State of Florida? 24 A Correct. 25 Q And you're currently a licensed nurse 1733 1 practitioner, correct? 2 A Yes. 3 Q And before you became a registered nurse, you 4 were a medic in the Army, weren't you? 5 A Correct. 6 Q And how many years' experience did you have in 7 the Army? 8 A I was in the Army 20 years between reserves 9 and active duty. 10 Q Initially your role with regard to 11 Mrs. Destefano's care was the consult for discharge 12 planning, correct? 13 A Correct. 14 Q And in assisting with the discharge of 15 Mrs. Destefano, you had to call the nursing home who had 16 sent her to ORMC, correct? 17 A I had what -- 18 Q So you initiated that call to Sunbelt, 19 correct? 20 A Yes. 21 Q And when you called Sunbelt, who did you speak 22 to? 23 A Rachel, who identified herself as the nursing 24 supervisor. 25 Q Okay. If I tell you that her name is Rachel 1734 1 Bean, does that ring a bell or do you believe that's 2 correct? 3 A Just from the notes. 4 Q Okay, yes. I'll tell you that the nursing 5 supervisor, actually the director of nursing at Sunbelt, 6 was Rachel Bean. 7 A (Nods head.) 8 Q Had you ever spoken to Ms. Bean before that 9 day? 10 A No. 11 Q Have you spoken to Ms. Bean since that day? 12 A No. 13 Q Do you know -- did you know Ms. Bean before 14 speaking to her on the afternoon of September 21st, 1999? 15 A No. 16 Q How about some other Sunbelt employees, I'm 17 going to read you some names. Did you know Deborah 18 Jarrell? 19 A No. 20 Q Did you ever speak with Deborah Jarrell? 21 A No. 22 Q Did you know Carol Boze? 23 A No. 24 Q Did you ever speak with Carol Boze? 25 A No. 1735 1 Q Did you know Mary Thornton? 2 A No. 3 Q Did you ever speak with Mary Thornton? 4 A No. 5 Q Did you know Margarita Walters? 6 A No. 7 Q Did you ever speak with Margarita Walters? 8 A No. 9 Q Did you know Chuck Sherer, the administrator? 10 A No. 11 Q Did you ever speak with Chuck Sherer? 12 A No. 13 Q Did you know a Dr. John Steely? 14 A No. 15 Q Did you ever speak with Dr. John Steely? 16 A No. 17 Q Had you ever met Mr. Destefano before seeing 18 him on September 21st, 1999? 19 A No. 20 Q Did you ever have an argument, a disagreement 21 or a fight with Mr. Destefano prior to that date? 22 A No. 23 Q Have you ever had an argument, disagreement or 24 fight with him since that date? 25 A No. 1736 1 Q Do you have any reason to try to discredit him 2 in any way? 3 A No. 4 Q Did Rachel Bean ask you to try to discredit 5 Mr. Destefano in any way? 6 A No. 7 Q Did Rachel Bean ask you to write anything in 8 your file that was not true? 9 A No. 10 Q Did anyone from Sunbelt or Florida Hospital 11 ask you to write anything at all in your file? 12 A No. 13 Q Did anyone from Sunbelt or Florida Hospital 14 ask you to create a document that created a false -- I'm 15 sorry -- that contained a false statement about 16 Mr. Destefano? 17 A No. 18 Q And placing a false statement in a patient's 19 file would put your nursing license in jeopardy, wouldn't 20 it? 21 A Yes. 22 Q And if you were to lose your license, you 23 could no longer work as a nurse, could you? 24 A Correct. 25 Q Did anyone at Sunbelt or Florida Hospital ask 1737 1 you to report Mr. Destefano to hospital security? 2 A No. 3 Q Did anyone at Sunbelt or Florida Hospital ask 4 you to call the Orlando Police Department? 5 A No. 6 Q Ms. Folley, have you at any time conspired 7 with Rachel Bean or anyone else to make false statements 8 about Mr. Destefano? 9 A No. 10 Q Have you ever conspired with Rachel Bean or 11 anyone from Sunbelt on anything? 12 A No. 13 Q And in giving your testimony here today, you 14 relied on the notes you took on September 21st, 1999, 15 correct? 16 A Correct. 17 Q And did you write down every word that 18 somebody told you about Mr. Destefano that day? 19 A No. 20 Q So if something's not in your notes doesn't 21 mean it didn't happen that day, correct? 22 A Correct. 23 Q And do you have a special form that you use to 24 keep these notes? 25 A Yes. 1738 1 Q And what is that form called? 2 A The Case Management Initial Discharge Planning 3 Assessment Form and the Ancillary Services Progress 4 Notes. 5 Q And where are these notes kept while you're 6 working on discharging the patient? 7 A They usually were kept in my office where I 8 work, which was separate from the patient care area. 9 Q And at some point, were they incorporated into 10 the chart? 11 A Yes, but after I was done with them. 12 Q So at the end of your workday or after the 13 patient was discharged? 14 A Right, right. 15 Q So the nurses caring for the patient would not 16 have access to those and be aware of conversations you 17 were having about that patient, would they? 18 A Correct. 19 Q And your notes indicate that you had a 20 conversation with Rachel from Sunbelt? 21 A Yes. 22 Q And you indicated that you were not taking 23 these notes while you were on the phone with her, 24 correct? 25 A Most likely I did them as soon as I got off 1739 1 the phone. I mean, I don't have specific recollection, 2 but it's -- I really doubt that I was writing it, you 3 know, as I was talking to her. 4 Q So could you have done it five minutes later 5 or ten minutes later? 6 A Yes. 7 Q And so you were not writing things down word 8 for word when you spoke with her? 9 A Correct. 10 Q And a couple of statements in your ancillary 11 notes, if you could look at those, have quotations around 12 them. 13 A Correct. 14 Q What was the purpose of putting those 15 quotations around those statements? 16 A I was trying to give a summation of everything 17 that had happened, and if there were particular words or 18 phrases that were used that captured that communication 19 and that stuck in my mind as being a quote, I put 20 quotation marks around them. 21 Q So if it had quotation marks, you were trying 22 to indicate that was something Rachel had -- those were 23 Rachel's words when she told them to you? 24 A Yes. 25 Q Would you read the only two statements that 1740 1 you have written in quotes? I'm sorry. I put up the 2 wrong statement for the jury to look at. If you could go 3 ahead and read those for the jury. 4 A The first one, quote, In a way a son would not 5 kiss his mother, unquote. 6 Q And then what was the second one? 7 A We sent her to ORMC as neutral ground because 8 the son did not want the patient at Sunbelt and Sunbelt 9 is associated with Florida Hospital. 10 Q Thank you. And you've indicated the rest of 11 your statements are your summarizations of what Rachel 12 Bean told you? 13 A Correct. 14 Q And that was the best you remembered them when 15 you wrote them down sometime after you got off the phone? 16 A Yes. 17 Q And Rachel Bean provided you with a lot of 18 information during that conversation, didn't she? 19 A Yes. 20 Q And Ms. Bean informed you that Mr. Destefano 21 had a history of disimpacting his mother, correct? 22 A Correct. 23 Q But you don't actually recall Rachel Bean 24 telling you that he was witnessed disimpacting her, do 25 you? 1741 1 A I don't have specific recollection of that, 2 but I think I wrote in the notes that she told me that he 3 was witnessed, but I don't have specific recollection of 4 that, no. 5 Q And that's not something you put in direct 6 quotes, is it? 7 A Correct. 8 Q And when you noted that Mr. Destefano was seen 9 at Sunbelt lying on top of his mother kissing her with 10 his mouth open, that information would not have been 11 available to the nurses that were caring for 12 Mrs. Destefano, correct? 13 A Correct. 14 Q And did you share with Kelly Pipkin that 15 information prior to her telling you she had seen 16 Mr. Destefano kissing his mother? 17 A I don't have specific recollection of that, 18 no. 19 Q Would there have been any reason for you to 20 share that with her? 21 A No, no. 22 Q Now, Ms. Folley, you actually witnessed 23 Mr. Destefano in bed with his mother, correct? 24 A Correct. 25 Q And this happened while she was still a 1742 1 patient at ORMC? 2 A Yes. 3 Q And no one at Florida Hospital or Sunbelt 4 asked you to state that you saw Mr. Destefano lying in 5 bed with his mother, did they? 6 A No, they did not. 7 Q And was seeing a grown man lying in bed with 8 his elderly mother something you were used to seeing? 9 A No. 10 Q Even with your many years of nursing and 11 military experience? 12 A No. 13 Q So this was unusual for you, wasn't it? 14 A Yes. 15 Q And did it bother you? 16 A Yes. 17 Q And then you heard from Kelly Pipkin that he 18 had been seen kissing his mother? 19 A Yes. 20 Q You may actually have already heard that Kelly 21 Pipkin had seen him kissing his mother. You indicated 22 you didn't recall which came first. 23 A Right, right. 24 Q And that's why you called security, isn't it? 25 A Yes. 1743 1 Q You called security because it was an unusual 2 occurrence? 3 A Yes. 4 Q And you wanted to make sure that 5 Mrs. Destefano was okay, didn't you? 6 A Yes. 7 Q And you actually by calling security did 8 report this to someone, didn't you? 9 A Yes. 10 Q So when Mr. Osborne indicated to you that you 11 didn't report it, he was incorrect, wasn't he? 12 A Correct. 13 Q And you weren't calling the police because of 14 the things that Rachel Bean had told you, were you? 15 A No. 16 Q You were calling the police because of the 17 things you had seen and because of what Kelly Pipkin told 18 you she saw at ORMC, correct? 19 A Yes, and all the information that I had, yes. 20 Q And you had information from Rachel, but you 21 called security after you witnessed things with your own 22 eyes, didn't you? 23 A Yes. 24 Q And you gave a statement to the Orlando Police 25 Department in this case, correct? 1744 1 A Yes. 2 Q Mr. Osborne has gone through that statement 3 with you, and he pointed out a list of things that you 4 learned from Rachel Bean. 5 A Correct. 6 Q Correct? And the first one of those things 7 that was -- was that Mr. Destefano was kissing his mother 8 on the lips in a way you don't kiss your mother, correct? 9 A Correct. 10 Q And, once again, you put that in quotes, 11 didn't you? 12 A Yes. 13 Q And the second item is that Mr. Destefano was 14 lying -- I'm sorry. The second item was that 15 Mr. Destefano was lying fully on top of his mother and 16 kissing her on the mouth with his mouth open, correct? 17 A Correct. 18 Q And the third item was a disimpaction? 19 A Yes. 20 Q And the fourth item was that Mr. Destefano was 21 yelling at the nursing staff, correct? 22 A Yes. 23 Q And Rachel Bean never told you that 24 Mr. Destefano was seen doing all those things at the same 25 time, did she? 1745 1 A No, no. 2 Q So that was not your intention to imply that 3 he was doing all those things at once, was it? 4 A Correct. It was not my impression from the 5 conversation with her that all these things were 6 happening at once. 7 MS. PETRO: Your Honor, may I have a moment? 8 THE COURT: Yes. 9 MS. PETRO: We have no further questions. 10 THE COURT: Thank you. Mr. Townsend? 11 MR. TOWNSEND: Yes, ma'am. 12 - - - - - 13 CROSS-EXAMINATION 14 BY MR. TOWNSEND: 15 Q Good morning, Ms. Folley. 16 A Good morning. 17 Q Let me first ask you to refer to your 18 ancillary service progress note which is timed at 1630. 19 The fact that that's timed at 1630, does that indicate 20 that all of those things were accomplished at 1630 on the 21 dot or prior to 1630? 22 A No. 23 Q 1630 represents what, ma'am? 24 A A general time when the events started. 25 Q All right. So that's when they started? 1746 1 A Yes. 2 Q And then your notes there indicate things that 3 occurred beginning at 1630 going on into the future, 4 correct? 5 A Correct. 6 Q As an example, you were called here to testify 7 at 9:00 this morning, but it's taken an hour, correct? 8 A Yes. 9 Q So if you put testified 9:00, that would be 10 when you started your testimony? 11 A Correct. 12 Q And based upon the sequence of events that you 13 see in this chart, the first thing you did -- well, let 14 me back up. 15 You got a consult from the nursing staff 16 regarding discharge planning. If Kelly Pipkin had 17 informed you at the time she consulted you for discharge 18 planning that she had seen Mr. Destefano being 19 inappropriate, would that have been charted by you at 20 that time? 21 A Likely, but I don't -- I don't have specific 22 recollection, but likely, yes. 23 Q All right. And your note indicates that the 24 only thing that you did with Kelly Pipkin at about 1630 25 was receive a consult for discharge planning, correct? 1747 1 A Correct. 2 Q And then if you go back to your -- if you go 3 to your police department statement, it says, following 4 the phone call to DCF, you returned to the nursing 5 station, and that's when Kelly reported witnessing 6 Mr. Destefano being inappropriate, correct? 7 A Correct. 8 Q So based upon the sequence of events in your 9 police department report and looking at your other notes, 10 you got the consult for discharge planning, which was a 11 normal part of your job, correct? 12 A Yes. 13 Q And one of the first things you did when you 14 had been told that the nursing home wasn't going to take 15 her back was to call the nursing home and find out why? 16 A Correct. 17 Q And the reasons and what you were told by the 18 nursing home are clearly set forth in your notes, are 19 they not? 20 A Correct. 21 Q And then, once again, looking at your 22 ancillary progress notes, it says -- and you were advised 23 prior to that call ending with Rachel Bean that she had 24 already notified DCF, correct? 25 A Correct. 1748 1 Q And then you've got 1650 you called DCF for 2 assistance in discharge planning, correct? 3 A Correct. 4 Q All right. So we know that it took at least 5 between 1630 and 1650 before you finished up your 6 telephone calls, correct? 7 A Yes. 8 Q All right. And then you would have gone to 9 the nursing station and been told by Kelly about the 10 inappropriate activity by Mr. Destefano, according to the 11 sequence of events in your police report? 12 A Yes. 13 Q Now, at some point in time -- let me just ask 14 you to talk about what information that you had at the 15 time you telephoned security at about 5:17 in the 16 afternoon. You had been told of all of the acts that 17 occurred at Sunbelt by Rachel Bean, correct? 18 A Yes. 19 Q You knew that information? 20 A Yes. 21 Q You had no reason to doubt any of that 22 information, correct? 23 A Correct. 24 Q And you had been told that the nursing staff 25 at the nursing home was afraid of Mr. Destefano? 1749 1 A Correct. 2 Q And that he had been trespassed? 3 A Yes. 4 Q This all goes into what you knew and what your 5 frame of mind was, correct? 6 A Correct. 7 Q And at that point in time, you find out from 8 one of our own nurses that she witnessed inappropriate 9 activity by Mr. Destefano? 10 A Correct. 11 Q And at some point in time, you personally 12 observed that he was in bed with her? 13 A Yes. 14 Q Now, there is a technical distinction between 15 being on top of and being in bed with, correct? 16 A Yes. 17 Q But you did see him in bed with her if not on 18 top of her, correct? 19 A Yes. 20 Q So at that point, there's been a question 21 about why you didn't confront Mr. Destefano. Did you 22 feel that it would be safe to confront him based upon all 23 the information you had about what had happened earlier 24 that day? 25 A No. 1750 1 Q Did you feel it was safer to let security 2 handle it? 3 A Yes. 4 Q And did you phone security at that point in 5 time? 6 A Yes. 7 Q All right. And we talked about -- you heard 8 your call and about the emotion in your voice. You were 9 emotional, weren't you? 10 A Yes. 11 Q All right. You didn't think that what you had 12 witnessed or what Kelly Pipkin had witnessed or what 13 Rachel Bean had told you happened earlier was 14 appropriate, did you? 15 A Correct. 16 Q Now, you use the term "you were searching for 17 words." Did you -- when you were asked what's the 18 problem, this is nothing you'd ever seen before, was it? 19 A No. 20 Q Did you have a difficult time describing to 21 the security officer what you had seen? 22 A Yes. 23 Q Did you do the best you could at that point 24 under that pressure? 25 A Yes. 1751 1 Q Your statement to the Orlando Police 2 Department, the sworn statement, that appears to be a 3 summary of what occurred that evening; is that correct? 4 A Correct. 5 Q Did you give the police officer the best 6 statement that you thought he was looking for at that 7 time? 8 A Yes. 9 Q Do you remember independently one way or the 10 other whether Kelly Pipkin used the term "French kissing" 11 when she advised you of what she had witnessed in 12 Mrs. Destefano's room? 13 A I don't have specific recollection of that at 14 this time, I mean, without referring to notes. 15 Q Why did you leave ORMC? 16 A Because I got my master's degree, and I was 17 looking for a position as a nurse practitioner. They 18 didn't have a suitable position open that I was 19 interested in. 20 Q You were studying for your master's when all 21 this was going on? 22 A Yes. 23 Q You had career plans to better yourself in 24 your career, correct? 25 A Yes. 1752 1 Q Tell the jury about what your career plans 2 were at that point in time. 3 A To be a nurse practitioner. My current 4 position I work in cardiology, so I had something in mind 5 along the lines of internal medicine or cardiology. 6 Q And what is a nurse practitioner compared to 7 an RN? 8 A It's kind of hard to explain. A nurse 9 practitioner, obviously, has a master's degree. We see 10 and assess patients. We diagnose. We write 11 prescriptions. I round on patients in the hospital, and 12 a doctor follows behind me, usually several hours later. 13 And I see patients in the hospital. I can diagnose and 14 treat chronic and low-acuity conditions, whereas, 15 physicians, you know, take the higher acuity illnesses. 16 Q It's basically a step above an RN, correct -- 17 A Correct, yes. 18 Q -- in the hierarchy of what nurses can do? 19 A Yes, yes. 20 Q And you have to have a master's degree? 21 A Correct. 22 Q And I believe you indicated that prior to the 23 call you made to Rachel Bean beginning shortly after 24 4:30, you had never spoken to her in your life, as far as 25 you know? 1753 1 A Correct. 2 Q And you didn't know her then? 3 A Right. 4 Q And you don't know her now, do you? 5 A Correct. 6 Q You haven't spoken to her since you spoke to 7 her on the phone that time? 8 A No, I haven't. 9 Q Were you present when Kelly Pipkin was 10 interviewed by the OPD officer? 11 A I don't have any recollection of that, no. 12 Q And was she present when you wrote your 13 statement? 14 A No, I don't believe so. 15 Q Since writing that statement, have you had 16 any -- up until this lawsuit, had you had any involvement 17 at all with this matter, these issues? 18 A Just through the deposition. 19 Q Other than involving this lawsuit -- 20 A No. 21 Q -- and surrounding that? 22 A No. 23 Q You weren't involved in the DCF investigation 24 at all, correct? 25 A No, no, I'm not. 1754 1 Q On September 21st, 1999, did you have any ill 2 will personally towards Mr. Destefano? 3 A No. 4 Q Did you have any reason to injure him? 5 A No. 6 Q Did you have any reason to harm him in any 7 way? 8 A No. 9 Q Did you ever conspire with Rachel Bean or 10 anyone else to make false statements about Mr. Destefano 11 for any reason? 12 A No. 13 Q Has anyone ever asked you to do that? 14 A No. 15 Q You never did that, did you? 16 A No. 17 Q All the activities and actions you took on 18 September 21st, 1999, were to protect the safety of 19 Mrs. Destefano and the other staff and patients at 20 Orlando Regional Healthcare System or Medical Center, 21 correct? 22 A Correct. 23 MR. TOWNSEND: One moment, Your Honor. That's 24 all I have, Your Honor. Thank you. 25 THE COURT: Redirect? 1755 1 - - - - - 2 REDIRECT EXAMINATION 3 BY MR. OSBORNE: 4 Q Ms. Folley, take a look at your initial 5 discharge planning assessment with me, if you would. You 6 were asked some questions about paraphrasing versus 7 quoting, but let's talk about -- and I'd like you to 8 publish again where it starts with "presented" and 9 there's some symbols here, just very slowly read that for 10 me. Presented, is that with -- 11 A Yes. 12 Q -- rectal bleeding? And what's the next 13 symbol? 14 A After. 15 Q After plaintiff's son was witnessed 16 disimpacting her states Rachel, RN, correct? 17 A Well, that's actually patient's son. I think 18 you said plaintiff, but -- 19 Q Patient's son. Thank you. That's a Freudian 20 slip. 21 So in terms of -- there is no doubt this is 22 what Rachel Bean told you, even though it's not in 23 quotes, correct? 24 A Correct. 25 Q And this is not relating that there's a 1756 1 history of Mr. Destefano disimpacting his mother in the 2 past, is it? That's not what this says? 3 A Correct. 4 Q What this is saying is, as you attribute it to 5 Rachel Bean, that the rectal bleeding occurred after 6 Mr. Destefano was witnessed disimpacting his mother, 7 correct? 8 A Correct. 9 Q That's a cause/effect situation, isn't it, the 10 way you've written it down there, that the disimpacting 11 that was witnessed caused rectal bleeding as per Rachel 12 Bean; isn't that true? 13 A Correct. 14 Q Now, let's talk about -- ORHS's lawyer talked, 15 and his words were technically there's a distinction 16 between lying next to somebody and lying on top of 17 somebody. That's a lot more than a technical 18 distinction, isn't it, Mrs. Folley? 19 A Yes. 20 Q Because your concern with lying on top was 21 that was going to cause physical injury to 22 Mrs. Destefano, wasn't it? 23 A Mostly, yes. 24 Q Mrs. Destefano was, according to the records, 25 5 feet tall, 118 pounds in a cachectic state, 1757 1 semi-comatose state, and Mr. Destefano, who at the time 2 I'll tell you was 6 foot 2, 230, there is a big 3 difference between somebody like him lying on top of 4 somebody like his mother versus lying next to her, 5 correct? 6 A Yes. 7 Q And your concern with this lying on top was 8 that that would cause physical injury to Mrs. Destefano, 9 and that's why you called security, correct? 10 A That was one of the reasons I called. 11 Q Okay. Mr. Townsend also asked you that you 12 would only report, I think his words, what you had seen. 13 Do you remember that question? 14 A No, I don't. 15 Q Okay. You weren't reporting what you had seen 16 because you never saw Mr. Destefano lying on top of his 17 mother, had you? 18 A My best recollection is through the notes 19 which happened at that time, and then the deposition was 20 two and a half years later. 21 Q That's not my question, ma'am. Can you answer 22 my question? 23 A Repeat it, please. 24 Q Yeah. You weren't reporting what you had seen 25 because you had never seen Mr. Destefano lying on top of 1758 1 his mother, had you? 2 A Oh, on top of her, no. 3 Q The only source of information you had about 4 Mr. Destefano lying on top of his mother was from Rachel 5 Bean; isn't that true? 6 A That's correct. 7 Q So what you did when you called security is 8 you made it look like you yourself had seen Mr. Destefano 9 lying on top of his mother while she was at ORHS; isn't 10 that a true statement? 11 A No. 12 Q Your statement was this man is French kissing 13 his mother. He's lying on top of her. That was your 14 statement, correct? 15 A I believe so, without it typed out in front of 16 me. 17 Q You didn't say it was reported to me that he 18 was lying on top of his mother by Rachel Bean at Sunbelt 19 nursing facility, did you? 20 A Correct. 21 Q You said he's lying on top of his mother, the 22 inference clearly being while she was at the emergency 23 room at ORHS; isn't that a true statement? 24 A Correct. 25 Q And that's a false impression, wasn't it? 1759 1 A No, I wouldn't say so. 2 Q It was an accurate statement to imply or infer 3 that Mr. Destefano had been seen lying on top of his 4 mother while she was at ORHS ER room? 5 A My best recollection right now, as I sit here 6 today six years later, is that he was lying on his side 7 with, I mean, kind of like leaning, you know, like the 8 one leg. 9 Q I know that's what you said. You said nothing 10 about him touching her, did you, in earlier testimony? 11 A I would need to go back and look. I don't 12 have any specific recollection. 13 Q You certainly didn't testify that you had seen 14 him lying on top of his mother, did you? I'm talking 15 about your testimony here today, not those notes, your 16 testimony here today. You never said Mr. Destefano was 17 seen by you lying on top of his mother, did you? 18 A Correct. 19 Q You said he was lying next to her but not 20 touching her, correct? 21 A I don't remember if I said that he wasn't 22 touching her. I said he was lying next to her, yes. 23 Q In any event, you would agree with me that 24 telling security that you had seen him lying on top of 25 his mother was a false impression to them that he was 1760 1 doing it and you saw it happen at Orlando Regional; isn't 2 that true? 3 MR. TOWNSEND: Object, argumentative. 4 MR. OSBORNE: She's never answered it, Judge. 5 THE COURT: Overruled. 6 A I didn't say that I saw it. I said he was. 7 Q Well, who saw it, if you didn't, at ORHS? 8 A As I sit here today, my best recollection is 9 that I -- I went by the room, and I saw it. And I know 10 that Kelly spoke to me. 11 Q Ma'am, my question is very simple. When you 12 told security on that tape that Mr. Destefano was lying 13 on top of his mother, you've already admitted that the 14 inference is while at ORHS, that was a lie, wasn't it? 15 A No. I wouldn't do that. I wouldn't lie. 16 Q Well, you didn't see him lying on top of his 17 mother, did you? 18 A My best recollection today six years later is 19 that I saw him lying next to her leaning over her, and in 20 my mind, that's kind of like, you know, I mean, if your 21 leg is up over, that's kind of like on top of. It might 22 not be fully on top of, but it's on top of. 23 Q I'm going to ask you to go back to your 24 deposition, May 1, '02, starting at page 24. 25 A Will I have a copy of that to look at or -- 1761 1 Q I'm going to publish it. If you want to look 2 at it, I'll show to it you. Line 8: 3 "Question: Okay. All right. When you came 4 in, when you saw Mr. Destefano lying in bed with his 5 mother, tell me, was he lying next to her or was he 6 lying on top of her or was he -- well, let me ask 7 that question first. 8 "Answer: She was on her back, and he was on 9 his left side facing her like on, let's see, that 10 would have been her right, and he was on her left 11 side turned over like that towards her. Okay? 12 "Question: All right. So -- 13 "Answer: Not on top of her. 14 "Question: Okay. Were their bodies touching? 15 "Answer: I don't have specific recollection 16 of that." 17 That's your testimony, isn't it, Mrs. Folley? 18 They weren't touching. He wasn't lying on top of her, 19 was he? 20 A Two and a half years after the incident, that 21 was my best recollection at that time. 22 Q Well, is your recollection better today three 23 and a half years after your deposition or two and a half 24 years after your deposition? 25 A My best recollection was immediately after it 1762 1 happened. 2 Q So your testimony you just tried to give to 3 this jury on redirect that maybe you did see him lying on 4 top of his mother, that's not the truth at all, is it? 5 A That's the best way I remember it today. 6 That's to the best of my memory. 7 Q You didn't remember that back in May of '02, 8 did you? 9 A I would need to have that in front of me to be 10 able to say exactly how I remembered it at that date. 11 Q All right. I'm going to give it to you, then. 12 I'm going to show you page 24, lines 8 through 20. 13 A (Reviewing transcript.) 14 Q So now that you've reviewed, you would agree 15 with me that your testimony back in 2002 was they were 16 not touching each other, correct? 17 A I said at that time that I didn't have 18 specific recollection. 19 Q Well, let me ask you this. Page 24, line 25: 20 "Question: Okay. Well, that would be 21 something that you would remember, wouldn't it? 22 "Answer: I would think so." 23 That was also your testimony, wasn't it? 24 A If you're telling me that it was, then I'm 25 sure it was. 1763 1 MR. TOWNSEND: Your Honor -- 2 THE COURT: Just a minute, please. 3 MR. TOWNSEND: -- I think he needs to read the 4 question at 21 -- 5 THE COURT: Sustained. You may read the 6 context, Mr. Townsend. The question was: 7 "All right. Did -- okay. So when you -- then 8 you did not see Mr. Destefano kissing his mother? 9 "Answer: I don't have any specific 10 recollection of that. 11 "Question: Okay. Well, that would be 12 something you would remember, wouldn't it? 13 "Answer: I think so." 14 So that was a different question. 15 MR. OSBORNE: I stand corrected. 16 THE COURT: Objection sustained. 17 MR. OSBORNE: That's correct. 18 BY MR. OSBORNE: 19 Q You would agree with me that if you had seen 20 Mr. Destefano lying on top of his mother, you would have 21 remembered that back in 2002, wouldn't you, when you were 22 asked a question about whether he was on top of her and 23 you said no? You said, answer, not on top of her. 24 That's what you said, correct? 25 MS. PETRO: Objection, speculation, Your 1764 1 Honor. 2 THE COURT: Overruled. 3 A That was my best recollection at the time. 4 Q All right. Just so we're clear, when you 5 answered that he was not on top of her, that is not 6 ambiguous, is it? You specifically recalled he was not 7 on top of her, didn't you? 8 A If that's what you're telling me that the 9 words say, then that's what they say. I don't have 10 specific recollection. 11 Q So let me go back to the question I asked you 12 before. The question is if you told security that you 13 had seen Mr. Destefano lying on top of his mother while 14 at ORHS, that would be a lie, wouldn't it? 15 MS. PETRO: Objection, Your Honor. 16 MR. TOWNSEND: Join. This is repetitive and 17 argumentative. 18 THE COURT: Sustained. 19 MR. OSBORNE: No further questions. 20 THE COURT: Ladies and gentlemen of the jury, 21 do any of you have questions of this witness? If 22 so, please write it down, and I'll ask counsel to 23 approach. 24 (Bench conference.) 25 THE COURT: Two questions. Do you feel you 1765 1 were predisposed to find inappropriate behavior in 2 Mrs. Destefano's room based on the information 3 already provided to you by Rachel Bean and Kelly 4 Pipkin? 5 MR. OSBORNE: (Nods head.) 6 THE COURT: Two, in other words, had you not 7 received the history of events behind 8 Mr. Destefano's sexually inappropriate behavior, 9 would you have felt the same when you saw -- when 10 you saw Mr. Destefano lying, quote, Next to his 11 mother? Could he just possibly have been trying to 12 comfort her? 13 Any objections? 14 MR. OSBORNE: No objections. 15 MR. TOWNSEND: No. 16 (Open court.) 17 THE COURT: I'm going to ask you a couple of 18 questions that were asked by the jury. I'm going to 19 read them to you, and when you give your answer, 20 turn and face the jury. They are the jury's 21 questions. 22 THE WITNESS: Yes, ma'am. 23 THE COURT: Do you feel you were, quote, 24 Predisposed, closed quote, to find, quote, 25 Inappropriate behavior, closed quotes, in 1766 1 Mrs. Destefano's room based on the information 2 already provided to you by Rachel Bean and Kelly 3 Pipkin? 4 Turn and address your answer to the jury. 5 THE WITNESS: I suppose that's always a 6 possibility, but I don't really think so because 7 after as many years of nursing as I've had, you 8 pretty much have your own opinion when you see 9 something. You learn to rely on yourself because, 10 you know, sometimes people tell you their impression 11 of something and it's not the way that you would 12 interpret it. 13 THE COURT: Okay. Here's another question for 14 you. In other words, had you not received the 15 history of events behind Mr. Destefano's, quote, 16 Sexual inappropriate behavior, closed quotes, would 17 you have felt the same when you saw Mr. Destefano 18 lying, quote, Next to his mother, closed quotes? 19 Could he just possibly have been trying to comfort 20 her? 21 THE WITNESS: I don't think my level of 22 suspicion would have been quite as high, but the 23 posture and the position that he was in would have 24 still struck me as being very odd. I think key here 25 is that the patient was comatose and not able to 1767 1 interact with her surroundings. I mean, she wasn't 2 someone that could say she wanted this or she wanted 3 that or please don't do this or whatever. She was 4 in a coma. She could not interact. 5 So a patient in that situation relies on 6 nursing, doctors, you know, other healthcare 7 providers to look out for her. So given what I 8 already heard, what I went by the room and saw, I 9 think, yes, to answer the question, the information 10 that I had already been given coupled with what I 11 saw put my, you know, level of suspicion a little 12 bit higher, yes. 13 THE COURT: Any follow-up questions to that, 14 ladies and gentlemen? Any follow-up questions from 15 any other jurors? Mr. Osborne, do you wish to 16 follow up? 17 MS. PETRO: No, Your Honor. 18 MR. OSBORNE: No, Your Honor. 19 MR. TOWNSEND: May I have just a moment, Your 20 Honor? 21 THE COURT: Yes. 22 MR. TOWNSEND: Just one quick one, Your Honor. 23 THE COURT: Let's go. 24 - - - - - 25 CROSS-EXAMINATION 1768 1 BY MR. TOWNSEND: 2 Q Ms. Folley, I want you to assume you had never 3 talked to Rachel Bean that night, and I want you to 4 assume that you saw Mr. Destefano lying in bed with his 5 mother, and you had been advised also by Kelly Pipkin 6 that she saw him kissing his mother inappropriately. 7 Would those two things been enough in themselves to raise 8 your suspicion level high enough that you felt it was 9 necessary to call security? 10 MR. OSBORNE: Object, calls for speculation. 11 THE COURT: Sustained. Ms. Folley, thank you 12 very much. You're excused. You may leave. 13 THE WITNESS: Thank you. 14 THE COURT: Ladies and gentlemen of the jury, 15 let's take about a five, if we can keep it as close 16 to five minutes as possible, recess. I'll ask you 17 to step back with the corporal, please. 18 (Jury exits.) 19 MR. TOWNSEND: Your Honor, may this witness be 20 excused? 21 THE COURT: Yes, the witness may be excused. 22 Who would like to make the arrangements for the 23 jurors lunch today? You all talk among yourselves 24 and reach some kind of agreement about that, please. 25 MR. TOWNSEND: I think it's our lunch. Lunch 1769 1 is ours, Your Honor. 2 THE COURT: Thank you. We'll take a 30-minute 3 lunch today. Let's take about five minutes. 4 (A 7-minute recess was had.) 5 (Jury enters.) 6 THE COURT: Mr. Osborne, call your next 7 witness. 8 MR. OSBORNE: I call Officer Padilla. 9 - - - - - 10 Officer RAMFUS PADILLA 11 having been first duly sworn testified as follows: 12 DIRECT EXAMINATION 13 BY MR. OSBORNE: 14 Q Good more than, officer. 15 A Good morning, sir. 16 Q State your full name for the Court and the 17 jury, please? 18 A Ramfus Padilla. 19 Q And who are you employed by? 20 A The Orlando Police Department. 21 Q How long have you been with OPD? 22 A Ten years. 23 Q I'm going to show you what is in evidence. Do 24 you recognize this police report with the witness 25 statements, Officer Padilla? 1770 1 A Yes, sir. 2 Q Would I be correct in stating that your memory 3 of the events that occurred on September 21, 1999, are 4 contained in this report with the statements? 5 A Yes, sir. 6 Q This report was dictated by you, was it not? 7 A Yes, it was. 8 Q And you received the initial report from 9 dispatch and arrived at ORMC at about what time? 10 A It appears -- it doesn't say here, but it was 11 in the afternoon of the 21st. 12 Q Okay. There's a 5:24 time on -- you got 13 report occurred, and then you've got -- that's not the 14 time that you got there. It's the time it was reported 15 to you, correct? 16 A Exactly. 17 Q Okay. And there's a notation here about -- 18 when it says date and time occurred, what does that 19 generally mean on a report like this, Officer? 20 A We try to get the in-between times from the 21 time that someone made a 911 call to the time that we can 22 push it back to whenever the first allegation occurred. 23 Q And the first allegation, according to your 24 report, occurred at 9:00 a.m. on the 21st of September, 25 correct? 1771 1 A Yes, sir. 2 Q So even though OPD wasn't called until 5:24 3 p.m., your first report states that the first time that 4 the occurrence began that you came there on was at 9:00 5 in the morning, correct? 6 A Correct. There was a separate incident 7 involving another officer at the nursing home. 8 Q Okay. This was classified, was it not, as an 9 investigation of a possible sex crime? 10 A Yes, sir, it was. 11 Q And the primary unit that was assigned was the 12 sex crimes unit, correct? 13 A I was primary, and then I conferred with 14 Detective O'Hern of sex crimes. 15 Q You were the reporting officer? 16 A Yes, sir. 17 Q And you conferred with someone who actually 18 was with the sex crimes unit? 19 A Correct. 20 Q You met with Nurse Pipkin? 21 A Yes. 22 Q Feel free to look at your report. 23 A Yes, sir. 24 Q Now, Nurse Pipkin initially stated to you that 25 she saw him French kissing, correct? 1772 1 A Correct. 2 Q You put that statement in quotes in your 3 report because it was a verbatim quote from her, wasn't 4 it? 5 A Yes, it was. 6 Q Later when she completed her written sworn 7 statement, she backtracked on that, didn't she? 8 A Somewhat, yes. 9 Q You also spoke to Lillian Folley that day? 10 A I'm sure I did. I don't see the name right 11 now. 12 Q Take a look at the second page of your report, 13 Officer. 14 A That would be Lillian Folley? 15 Q Yes. 16 A Okay, yes. Yes, I did. 17 Q And she also gave a written statement, 18 correct? 19 A Yes, sir. 20 Q And her statement which you've got there in 21 front of you details the information that she received 22 from the nursing home, correct? 23 A That is correct, sir. 24 Q And that, again, goes back to the information 25 relating to the 9:00 in the morning situation you were 1773 1 talking about, correct? 2 A Yes. 3 Q So, in effect, you were investigating a 4 potential sex crime that started at 9:00 in the morning 5 and had gone up to 5:24 in the afternoon at the time you 6 were called, correct? 7 A Based on that day's events, not including 8 allegations of previous conduct that I guess the nursing 9 home found objectionable. 10 Q Okay. And her statement that she gave you 11 does detail the information that she received from the 12 nursing home, correct? 13 A Correct. It's a two-page statement, page and 14 a half. 15 Q Now, Mr. Destefano, you hadn't met prior to 16 that day of September 21st, 1999, had you? 17 A That's correct. 18 Q And he had left the hospital before you got 19 there, correct? 20 A Yes. 21 Q You never did speak to him about this reported 22 alleged sex crime, did you? 23 A No, I did not. 24 Q You also spoke to Rachel Bean who was the 25 director of nursing at the nursing home, correct? 1774 1 A Yes. She was present at the hospital. 2 Q And take a look at your report, if you would, 3 the bottom of the page on the first page talking about 4 what nurse Bean told you. She told you that Dr. Black at 5 the nursing home claimed that a hemorrhoidal tissue was 6 extruding from Carolina's anus causing the blood, 7 correct? 8 A Yes. 9 Q She also said that Dr. Black allegedly stated 10 that this extruding hemorrhoid may have been caused by 11 digital penetration? 12 A Yes. 13 Q And you must have spoken to her over the phone 14 because there's no written statement from her, correct? 15 A Actually, I think she escorted the patient to 16 the hospital, so there was -- no, I can't remember. I 17 may be able to tell you here in a minute. 18 Q Just look at your report and see if that helps 19 you. 20 A It doesn't. 21 Q If you had spoken to her directly in person, 22 would you have made a witness statement? 23 A Yes. 24 Q The fact that there is no witness statement 25 but only a reference to a phone call, does that probably 1775 1 mean that you talked to her by phone? 2 A That's probably true. 3 Q Okay. And it was Rachel Bean that had told 4 you that Mr. Destefano had been witnessed displaying 5 inappropriate behavior, correct? 6 A Yes. 7 Q And you asked Ms. Bean, Nurse Bean, if the son 8 was the sole caregiver, provider for Carolina Destefano, 9 didn't you? 10 A Yes, I did. 11 Q And she answered affirmatively to that, 12 correct? 13 A Yes, uh-huh. Yes, it was over the telephone. 14 Q Did you find something to refresh your memory 15 there? 16 A Yes, sir. 17 Q All right. And you never did speak to 18 Dr. Black as a part of your investigation, did you? 19 A No, I did not. 20 Q And crime seen technician Ron Rogers picked up 21 the bloody pad from Sunbelt at your direction, correct? 22 A Yes, sir. 23 Q And that pad was put in evidence, wasn't it? 24 A Yes. 25 Q After you received all the statements and 1776 1 spoke with Rachel Bean, you talked to Detective O'Hern? 2 A Yes, I did. 3 Q Who is the specialist in sex crimes 4 investigation, correct? 5 A Yes, he is. 6 Q And after you spoke to him and reviewed with 7 him the evidence and the statements, you determined there 8 was no probable cause to believe that a crime had been 9 committed, correct? 10 A Correct. 11 Q Now, when you spoke with Lillian Folley, she 12 was angry when you spoke with her, wasn't she? 13 A I really -- I don't remember the tone of the 14 people that were there. 15 Q I know it's been a long time. 16 A Yes, sir. 17 Q Let me see if this will refresh your memory. 18 This is at your deposition, which was taken January 15th 19 of '03. 20 A Okay. 21 Q I'm going to reference you to page 76, line 7. 22 Just read 7 through 16 and see if that helps you. 23 A (Reviewing transcript.) Okay, yes. 24 Q Does that refresh your memory? 25 A Yes. 1777 1 Q Was she angry that day? 2 A Yes. 3 Q What was she angry about? 4 A As I stated then, apparently she was with 5 ORMC, and she wanted the patient to be back in the 6 nursing home, but the nursing home didn't want the 7 patient back until there was a medical clearance. 8 Q Okay. Thank you. So what she told you -- 9 what she told you and what you observed was she was angry 10 because she wanted to put the nursing -- put 11 Mrs. Destefano back in a nursing home, and they didn't 12 want to take her, correct? 13 A Yes, sir. 14 Q After filing your report, you did nothing 15 further because you believed no crime had been committed, 16 correct? 17 A Yes, sir. 18 MR. OSBORNE: Thank you, Officer. I have no 19 further questions. 20 THE COURT: Cross-examine? 21 MS. PETRO: I do as well, Your Honor. 22 Mr. Evans was going to go first since Officer 23 Padilla -- 24 THE COURT: Okay. 25 MR. EVANS: May it please the Court. 1778 1 THE COURT: Yes. 2 MR. EVANS: Did you put this document into 3 evidence? 4 MR. OSBORNE: We put it in with the last 5 witness. It was Exhibit E for identification. It 6 was moved in. 7 MR. EVANS: Thank you. 8 - - - - - 9 CROSS-EXAMINATION 10 BY MR. EVANS: 11 Q Good morning, Officer Padilla. 12 A Hello, sir. 13 Q The report you're looking at is the official 14 documentation of the Orlando Police Department with 15 respect to this incident, is it not? 16 A Yes, sir. 17 Q And that report indicates that you spoke with 18 two Orlando Regional Medical Center employees, Kelly 19 Pipkin and Lillian Folley? 20 A Okay, yes. 21 Q And are any other Orlando Regional employees 22 listed in the your report? 23 A No. 24 Q And you verbally interviewed both Ms. Pipkin 25 and Ms. Folley before you took their written statements? 1779 1 A Yes. 2 Q And you understood them both to be medical 3 professionals, correct? 4 A Yes. 5 Q And these statements both show that Ms. Pipkin 6 and Ms. Folley swore to the truth of those statements; is 7 that correct? 8 A Yes. 9 Q These are sworn legal documents, sworn 10 statements taken by you in your official capacity as an 11 Orlando Police Department law enforcement officer? 12 A Yes. 13 Q And, Officer Padilla, you would agree that 14 there's a law against furnishing false sworn statements 15 to a law enforcement officer, correct? 16 A Yes, sir. 17 Q And that they could have faced criminal 18 charges had they not told the truth in their statements, 19 correct? 20 A Yes. 21 Q And based on them being medical professionals 22 with knowledge of the situation, was there anything about 23 their behavior, what they said, that caused you to 24 believe that they had not seen what they reported to you? 25 A No. They seemed sincere. Otherwise, I would 1780 1 have questioned their testimony both in writing and 2 verbally. I believe they believe that they saw what they 3 saw. 4 Q Now, let me turn your attention, Officer, to 5 your discussion with Nurse Pipkin. Now, when she first 6 spoke you to, she described what she had seen as a French 7 kiss; is that correct? 8 A Yes. 9 Q And then you took the opportunity, Officer, to 10 discuss the definition of a French kiss with Nurse 11 Pipkin, didn't you? 12 A Yes, I did. 13 Q And then you asked her if she had actually 14 been able to see with her own eyes any tongues involved 15 in this kiss, correct? 16 A I'm pretty sure I would have asked that. 17 Q And she told you no; is that correct? 18 A Correct. 19 Q And when she completed her sworn written 20 statement, she didn't put anything in there about French 21 kissing, did she? 22 A No. 23 Q And she had clarified her statement to refer 24 to what she had seen as being what the report says, a 25 passionate kiss as a romantic couple would kiss one 1781 1 another, correct? 2 A That is correct, yes. 3 Q And she also stated, I think, as in her 4 statement that the patient's normal state because of her 5 advanced Alzheimer's was with her mouth open? 6 A I don't know. Oh, contraction of all the 7 extremities -- I couldn't say. Oh, yes. Patient's 8 normal state is with mouth open. 9 Q Yes, sir. And that what she had seen was that 10 the son's lips surrounded the mother's lips in an open 11 position? 12 A That is what she swore to, yes. 13 Q So the only difference between her initial 14 verbal statement to you about the French kiss and what 15 she put in her report was she couldn't see any tongue, 16 correct? 17 A That's -- it appears that way, yes. 18 Q And you also interviewed Lillian Folley, who 19 was the ORHS case manager dealing with the efforts to 20 transfer Ms. Destefano back to Sunbelt? 21 A Yes, I did. 22 Q And I believe you testified earlier that she 23 seemed a bit concerned that the nursing home would not 24 take the patient back? 25 A Exactly. 1782 1 Q Did she seem angry about anything else other 2 than that? 3 A No. I think as we said earlier, these people 4 all appeared to be professional and so forth, and, I 5 mean, there's always human emotion involved in anything 6 that you do, but I couldn't really say. It's been such a 7 long time. 8 Q Yes, sir. And I believe you testified you did 9 not interview Mr. Destefano. He was never arrested, 10 never charged with any crime? 11 A No. There was no need to. 12 Q And you didn't follow up with him because 13 Detective O'Hern had concluded that because of the 14 conflicting medical testimony and that the son was the 15 primary medical provider, OPD determined that it would 16 not pursue a criminal investigation? 17 MR. OSBORNE: Object, calls for hearsay. 18 THE COURT: Sustained. 19 Q Sir, I would like to call your attention to 20 the last paragraph of your report. Do you have that in 21 front of you, sir? 22 A Yes, I do. 23 Q Could you please publish to the jury; that is, 24 read the last paragraph of your official report on this 25 incident? 1783 1 A I spoke to Detective O'Hern. O'Hern advised 2 to complete a report but that no crime appears to have 3 been committed due to conflicting opinions from the 4 doctors and also due to the fact that the son appears to 5 be a medical provider for Carolina. Subject Lillian 6 advised the abuse hotline concerning this matter. 7 Q Officer Padilla, you found the behavior of 8 Mr. Destefano as reported to you in this situation to be 9 weird, didn't you? 10 A I think I used that word in the deposition. 11 Q And you would agree, Officer, that healthcare 12 providers just like law enforcement officers have an 13 obligation to report things that they consider to be 14 weird in the context of treating an elderly person who 15 cannot protect themselves? 16 MR. OSBORNE: Object, no predicate, also 17 ultimate issue for the jury. 18 THE COURT: Sustained. 19 Q And Ms. Pipkin and Ms. Folley completely 20 cooperated with you and provided a full and complete 21 statement to you? 22 A It appeared that way, yes. 23 MR. EVANS: I have no further questions. 24 Thank you, Officer. 25 THE COURT: Ms. Petro? 1784 1 - - - - - 2 CROSS-EXAMINATION 3 BY MS. PETRO: 4 Q Good morning, Officer Padilla. My name is 5 Dyana Petro, and I'm here on behalf of the Florida 6 Hospital defendants in this case. 7 Officer, isn't it true that this case was not 8 actually investigated as a sex crime? 9 A Correct. 10 Q It was not investigated as -- 11 A It was not. 12 Q It was not. It was investigated as elder 13 abuse, wasn't it? 14 A No. 15 THE COURT: I didn't hear -- sorry. 16 Q It was not investigated as elder abuse? 17 A There was a possibility that it could have 18 been both, but we have a very narrow selection of report 19 names that we can go with, and so you have to fit -- when 20 the operator asks you what do you want to call this 21 report, sometimes it's a toss up, and in this particular 22 case, I picked sex crimes, but it was no crime. 23 Q Officer, can I please direct you to the 24 statement of Kelly Pipkin that was attached as part of 25 your report? 1785 1 A All right. 2 Q And the witnesses have testified that the only 3 portion of this statement that they fill out starts under 4 the words "coercion and offer benefitter favored by any 5 persons whomsoever"; is that correct? 6 A Yes. 7 Q So the top portion of the report is filled out 8 by who? 9 A Normally by the officer taking the statement. 10 Q Okay. So the officer taking the statement 11 filled out the top of Ms. Pipkin's report? 12 A Yes. 13 Q Did that officer also fill out the top of 14 Ms. Folley's report? 15 A Yes. 16 Q And can you please look at Ms. Folley's 17 report? 18 A Yes, ma'am. 19 Q Could you please read for the jury what it 20 says next to offense at the top of Ms. Folley's report? 21 A Abuse of the elderly, slash, disabled. 22 Q So you were investigating a potential abuse of 23 the elderly, weren't you? 24 A Yes, that was part of the open mind as to 25 where this was going to go. I did not take the 1786 1 statement, and the officer that did wrote that there. 2 Q Okay. Officer Padilla, you have testified 3 that you sent crime scene technician Ron Rogers over to 4 the nursing home to pick up a bed pad, didn't you? 5 A Yes, ma'am. 6 Q And did you direct Mr. Rogers to do that 7 yourself? 8 A I'm pretty sure, yes. 9 Q And would you have had to provide Mr. Rogers 10 with information so he could fill out his report? 11 A Yes, ma'am. 12 MS. PETRO: May I approach the witness, Your 13 Honor? 14 THE COURT: Yes. 15 Q Officer Padilla, I'm showing you what is 16 Officer, I guess, or crime scene technician Ron Rogers's 17 report in this case after he picked up the bed pad. 18 A Right. 19 Q Could you please read at the top of that 20 report what is written under "offense"? 21 MR. OSBORNE: This is not in evidence. If she 22 wants to move it in, I have no objection, but this 23 document is not in evidence. 24 THE COURT: Are you moving this document into 25 evidence? 1787 1 MR. OSBORNE: I think it is in the composite 2 exhibit. I take it back. It is in there. 3 MS. PETRO: It is. 4 THE COURT: Go ahead. 5 BY MS. PETRO: 6 Q Could you please read for the jury what it 7 says next to offense? 8 A Elder abuse. 9 Q So you -- and you provided that information to 10 Mr. Rogers? 11 A Yes. 12 Q Okay. Now, Officer Padilla, your deposition 13 in this case was taken about three years after the 14 incident occurred, correct? 15 A Yes, ma'am. 16 Q And when you were initially questioned by 17 Mr. Destefano's counsel, you couldn't recall the incident 18 at all, could you? 19 A No. I had a difficult time. 20 Q And you didn't recall you were the 21 investigating officer, did you? 22 A It's possible. 23 Q It's possible? 24 A Yes, ma'am. 25 Q That you did not? 1788 1 A Recall. 2 Q And isn't it true that once you realized you 3 were the investigating officer, you felt you needed to 4 start remembering? 5 A Yes, ma'am. 6 Q And you did not recall being told about any 7 alleged inappropriate sexual behavior at the nursing home 8 when you were dispatched to ORMC, did you? 9 A Could you say that again? 10 Q Did you recall being told about any 11 inappropriate sexual behavior at the nursing home -- did 12 the dispatcher tell you about any inappropriate sexual 13 behavior at the nursing home when she sent you to ORMC? 14 A No, ma'am. 15 Q And that was one of the reasons that this was 16 being investigated as an elder abuse case, wasn't it? 17 You had no information regarding any sexual behavior? 18 A Oh, I see, yes, ma'am, yes. As I approached 19 the hospital, that would have been my first thought was 20 that it involved the elderly and some type of abuse. 21 Q Because that's what you were dispatched 22 regarding, wasn't it? 23 A I couldn't say. I could find out, though. 24 Q Did you ever go over to the Sunbelt nursing 25 home while you were conducting your investigation in this 1789 1 case? 2 A No, ma'am. 3 Q But you did speak to Rachel Bean on the phone? 4 A Yes. 5 Q Who was the director of nursing from that 6 facility? 7 A Yes, ma'am. 8 Q And you would have written down what she told 9 you in your report, correct? 10 A Yes. 11 Q Can you please take a look at your report? In 12 the last paragraph of the front page, actually, I guess, 13 the two paragraphs where you talk about what Ms. Bean 14 told you -- 15 A Yes. 16 Q -- does anything in there indicate that 17 Ms. Bean told you Mr. Destefano was witnessed 18 disimpacting his mother at the nursing home? 19 A If anyone had witnessed the son, no. 20 Q Could you actually read the last -- I'm going 21 to have you turn to page 2 of your report. There's the 22 top paragraph. Could you please read the last sentence 23 that begins with "Nurse Bean"? 24 A "Nurse Bean told me that the son claims that 25 he routinely evacuates his mother's rectum due to her 1790 1 constipation." 2 Q So that's the information Nurse Bean provided 3 you regarding Mr. Destefano disimpacting his mother? 4 A Yes, ma'am. 5 Q I'm going to follow up on something that 6 Mr. Evans was asking you about. As a police officer, you 7 have an obligation to report potential abuse to DCFS, 8 correct? 9 A Yes, ma'am. 10 Q And that is the same reporting obligation that 11 healthcare professionals have? 12 MR. OSBORNE: Object, no predicate, calls for 13 speculation. 14 THE COURT: Sustained. 15 BY MS. PETRO: 16 Q Is it your understanding that healthcare 17 professionals have a similar reporting obligation? 18 MR. OSBORNE: Same objection. 19 THE COURT: Sustained. 20 BY MS. PETRO: 21 Q Officer Padilla, if you were investigating a 22 crime and you found that it wasn't a crime but you still 23 suspected potential abuse had happened, do you have an 24 obligation to report that? 25 A Yes. 1791 1 MR. OSBORNE: Object -- 2 Q You don't have to wait until a crime has been 3 found before you have an obligation to report to DCFS, do 4 you? 5 MR. OSBORNE: Object as to the predicate as to 6 him or somebody else. 7 THE COURT: Overruled. I think the question's 8 clear. 9 MS. PETRO: Could you read back the question, 10 please? 11 (The record was read back as requested.) 12 A That is true. 13 Q And that's so DCFS can investigate the 14 behavior since your investigation might be completed? 15 MR. OSBORNE: Object, no predicate. 16 THE COURT: Overruled. 17 A Yes. 18 MS. PETRO: Thank you, Officer. I have no 19 further questions. 20 THE COURT: Mr. Osborne? 21 MR. OSBORNE: Nothing further, Your Honor. 22 THE COURT: Ladies and gentlemen of the jury, 23 do any of you have a question for this witness? 24 THE JURORS: (Shakes head.) 25 THE COURT: Officer Padilla, thank you. You 1792 1 may stand down. You're excused. Mr. Osborne, call 2 your next witness. 3 MR. OSBORNE: Linda Kay McNeill. 4 - - - - - 5 LINDA KAY MCNEILL 6 having been first duly sworn testified as follows: 7 DIRECT EXAMINATION 8 BY MR. OSBORNE: 9 Q State your full name for the Court and the 10 jury, please. 11 A Brenda Kay McNeill. 12 Q And do you live in town? 13 A I do. 14 Q And who lives there with you? 15 A Larry. 16 Q Mr. Destefano? 17 A Mr. Destefano. 18 Q And who else? 19 A Well, my daughter used to, but she's in 20 college now. 21 Q Okay. Generally, tell the jury what your 22 background is in terms of your training and experience 23 and the types of jobs you've done. 24 A Mostly office work. I've worked as a bank 25 teller, a receptionist at a brokerage firm. I work for a 1793 1 doctor now. 2 Q And how long have you known Larry Destefano? 3 A Eight years. 4 Q How did you meet Mr. Destefano? 5 A I was a teller at the bank he used to come 6 through. 7 Q And how was it that you began dating? 8 A He aggressively pursued me. 9 Q How did he do that? 10 A He swooned me. 11 Q How did he do that? 12 A Well, he was funny and charming. He was a 13 client at the bank, and that's how I met him. 14 Q And at some point in time, you and 15 Mr. Destefano began dating? 16 A Yes. 17 Q And have you been dating since that time 18 continuously? 19 A Uh-huh, yes, sir. 20 Q Tell the jury what type of a person Larry 21 Destefano was before the events that occurred in 22 September of 1999. 23 A He was outgoing and charming. He was funny, 24 and he was very popular. Everyone always wanted to be 25 around Larry. He was very athletic. He's competitive. 1794 1 He played a lot of sports, and he was just a nice guy. 2 Q Did you know his mother, Carolina Destefano? 3 A For a brief period of time. 4 Q And when was that? 5 A When she returned to Orlando from Arizona. 6 Q What year was that? 7 A 2002, I believe. 8 Q Well, the events that occurred in the hospital 9 at Sunbelt at Florida Hospital and at ORMC were 1999. 10 A Okay. 11 Q So what year do you think it was that he 12 brought her back from Arizona? 13 A Maybe 2000, '99. I can't remember the date. 14 I left the bank in '98, so it was after that. 15 Q Okay. What did Larry Destefano do for a 16 living before 1999? 17 A He had a shop where he repaired and 18 refurbished antique furniture and custom furniture. 19 Q And did there come a time that Mr. Destefano 20 had to go out to Arizona? 21 A Yes. 22 Q Why was that? 23 A They called him and told him that they found 24 his mother wandering around the streets and that she 25 needed someone to come -- well, actually he went out 1795 1 there to get her, you know, to get her to take her home 2 to see what exactly was the problem and why she was -- I 3 don't think he realized she had Alzheimer's at the time. 4 Q How long did Larry Destefano stay out in 5 Arizona with his mother? 6 A Approximately a year. 7 Q And did you keep in touch with him during this 8 time period? 9 A Yes. 10 Q What was your understanding of what his 11 activities were -- his daily activities were with his 12 mother during this time period? 13 A Well, at first she wasn't as far gone as 14 towards the end. She could still get around. He just 15 stayed at the home with her. I know he refinished the 16 floor for her there. He would call me and tell me he was 17 going to take her out to eat. He had met some friends 18 out there, neighbors that they socialized with. 19 So she was still able to go out. And I'm not 20 sure if she knew what she was doing, but she was still -- 21 he would take her out and about and make sure, you know, 22 sure -- he fed her. That was hard for him. He used to 23 call me and ask me how he to do this or that. 24 Q During the time that you knew Larry Destefano 25 before he went out to Arizona to be with his mother, did 1796 1 he talk to you about how he felt about his mother? 2 MS. MARSHALL: Objection, hearsay. 3 THE COURT: Overruled. 4 A He didn't talk about her a lot. We had only 5 been together about a year before that all happened 6 anyway, so we didn't really, you know, I know he cared 7 about her. He told me where she lived. I knew about 8 her. He was real busy working. He, you know. 9 Q You mention that there came a time when he 10 brought her back to Florida? 11 A Correct. 12 Q How long was she in town before Larry 13 Destefano had to hospitalize her at Florida Hospital, if 14 you remember? 15 A Maybe three weeks. 16 Q And where did they stay during that time 17 period? 18 A At my home. 19 Q And are you in College Park, is that where you 20 are? 21 A Yes. 22 Q Did you have a chance -- an opportunity to 23 observe Larry Destefano with his mother during that 24 three-week time period before she had to be hospitalized? 25 A Oh, yes. 1797 1 Q Tell the jury what his behavior was with his 2 mother, what types of things did he do, what types of 3 things did she do, that type of thing. 4 A Well, she didn't do much because she couldn't. 5 She was in the final stages of the Alzheimer's. She sat 6 in the chair. We had the TV on for her. I'm sure she 7 didn't know, but, you know, we just basically took care 8 of her. 9 She wasn't in the hospital bed at that time. 10 She -- just keeping her clean and cared for, keeping her 11 hair up and brushing her teeth. Those were -- those were 12 time consuming and daily chores, you know, keeping her 13 fed. She was hard to feed. 14 Q Why was that? 15 A Well, she just didn't know that she needed to 16 eat, you know, she had to be coaxed like a child almost, 17 you know, because she was towards the end of that 18 illness. 19 Q Did Larry Destefano brush her teeth? 20 A Oh, yeah. 21 Q Did Larry comb her hair, do her hair? 22 A He'd try. 23 Q Did you have to help him out once she got back 24 here to Florida? 25 A I did. 1798 1 Q How about Mr. Destefano doing her nails, 2 toenails and fingernails, had he been doing that, to your 3 knowledge, too? 4 A He had polished her fingernails. He was 5 always trying to make her look nice. She was a beautiful 6 woman, and I think it was hard for him to see -- she was 7 very drawn and small and, you know, deteriorating. I 8 think he, in his own mind, wanted to keep her as she was, 9 but -- 10 Q Did you have an understanding as to whether or 11 not Larry Destefano was her power of attorney? 12 A I knew that. 13 Q Did you know about -- anything about a do not 14 resuscitate? 15 A Yes. 16 Q And in terms of Carolina Destefano, was she 17 able -- at the time she got to your house in College 18 Park, was she able to verbalize? 19 A No. 20 Q Want to take a moment? 21 A I'm okay. 22 Q Did Larry Destefano show affection to his 23 mother? 24 A He loved her you could tell. 25 Q When she was in your house in his care, did he 1799 1 show affection to his mother? 2 A It was like, oh, momma sita. And, you know, 3 we had medicines to give her. We had to coax her a lot. 4 I mean, she was very frail, you know, so it was hard to. 5 But he -- he would kiss her on the cheek and squat down 6 to her level and try to talk to her to get, you know, 7 some type of response. 8 Q At the time Mrs. Destefano was in your house, 9 did she respond to voice? 10 A I think she did. And even after that, you 11 know, because she would know -- when she ended up in the 12 nursing home in Maitland, she recognized when I'd come in 13 to take care of her and feed her every morning. She 14 would smile, you know. 15 Q Did she respond to touch? 16 A I think so. 17 Q If you held her hand, did you -- 18 A I think so because sometimes she might have 19 been in pain because she would moan or -- so I'm sure she 20 did. 21 Q If you held her hand, did she squeeze back 22 when she's in your house? 23 A I think she knew that somebody was there, you 24 know. 25 Q And when she was in your house, did you or 1800 1 Larry Destefano, one of you try to be with her at all 2 times? 3 A Oh, yeah. I had quit my job at the bank so I 4 could stay at home with her. 5 Q Now, you had mentioned that Larry would kiss 6 his mother. Where would he kiss his mother? 7 A On the side right in this area (indicating), 8 you know. 9 Q Corner of the mouth? 10 A Yeah. 11 Q Cheek? 12 A Her mouth was always open, you know, that's 13 how they get towards the end. They just kind of 14 (indicating), you know, sit. That was a problem. She 15 always was very parched and dry. That was an issue, you 16 know, she had cracked lips. 17 Q Did she have to be given fluids? 18 A Oh, yes. 19 Q Was there any discussion between you and Larry 20 Destefano in terms of his mother's intentions in terms of 21 whether she would ever be tube fed? 22 A No. She had a do not resuscitate or a DNR. I 23 don't think she -- she also had that do not feed part of 24 that. 25 Q So in terms of the necessity to give her 1801 1 fluids manually -- 2 A Yeah. 3 Q -- that was in keeping with the do not 4 resuscitate and the -- 5 A Right. 6 Q -- not being artificially maintained, correct? 7 A Correct. 8 Q During the time that Mrs. Destefano was at 9 your house with Larry Destefano, did you ever get her 10 out? Was she able to go out and do things or was she 11 pretty much homebound at that point? 12 A She was homebound unless we put her in the 13 wheelchair. And we would walk her around the block and 14 get her outside for air and sunshine. I mean, our 15 neighbors -- I don't see any of them here -- they would 16 see us walking her around or pushing her around. 17 Q Was there a time -- did a time come when she 18 had to go to the emergency room? 19 A Yes. She got ill. I think she had a urinary 20 tract infection is what it ended up being. She might 21 have been feverish. 22 Q And who took her to the emergency room? 23 A Larry did. 24 Q And that was Florida Hospital? 25 A Yes. 1802 1 Q Did you -- did you see her while she was in 2 the hospital at Florida Hospital? 3 A The first time on the fifth floor? 4 Q Yes, ma'am. 5 A Yes. 6 Q And was there anything unusual or was that 7 just a routine hospital stay, to your knowledge? 8 A It was a routine hospital stay. 9 Q Okay. 10 A They actually admired how Larry cared about, 11 you know, the care of his mother. 12 MS. MARSHALL: Objection, speculation. 13 THE COURT: Overruled. 14 BY MR. OSBORNE: 15 Q Let's talk about that, Ms. McNeill. How often 16 would you see Larry Destefano interacting with his mother 17 and the nursing staff at the first hospitalization at 18 Florida Hospital? 19 A I can't remember how long she was there. He 20 was there a lot. I know he had a mattress on the floor. 21 They had put it there for him. I know he interacted a 22 lot with the staff. They liked Larry. 23 Q This is something you observed in terms of -- 24 A Yes. 25 Q -- his interaction? This mattress on the 1803 1 floor, did he stay there? And I'll represent to you she 2 went in on the 15th and was there until the 19th. Did he 3 stay there the whole time, sleep there every time? 4 A I can't remember. I know he was there some of 5 the time, though. 6 Q Did you ever see him actually caring for his 7 mother while she was in Florida Hospital on the first 8 visit? 9 A Only the usual get her hair out of her face. 10 She had a lot of hair. Wiping her mouth down, you know, 11 the usual wanting to get her to drink something. 12 Q Was that the same type of activity he had done 13 at your house as far as trying to get her to drink? 14 A Yes. 15 Q And what was the procedure that he would do to 16 try to do that? How did he do that? 17 A He'd try to coax her. He'd speak Spanish to 18 her. Momma sita, you know, drink your water, you know, 19 and it would run down. But you do things for people you 20 love, you know, sometimes that aren't always easy for you 21 because you need to. 22 Q Well, let's talk about that a little further 23 going back to when you were at your house. Did there 24 ever come a time when Mrs. Destefano, staying at your 25 house, when she had to be disimpacted? 1804 1 A Just once because it had been a couple weeks 2 since she had been there. 3 Q Tell the jury about that. 4 A Well, it was -- I've thought about this, and I 5 remember one time with my daughter when she was five and 6 she was very constipated, and I had to give her an enema. 7 And I want to tell you how traumatizing that was for -- 8 MS. MARSHALL: Objection, unresponsive to the 9 question. 10 THE COURT: Sustained. The jury will 11 disregard the prior statement. 12 A Yes. He disimpacted her. 13 Q What you were relating was you had a similar 14 experience with your daughter? 15 A Yes. You do things to people that you care 16 about that you don't necessarily enjoy or want to do. 17 Q And had you known that there were times before 18 that Larry Destefano had to disimpact his mother because 19 of constipation? 20 A He had -- yeah, when he was in Arizona, he had 21 told me a couple times. And he also had visiting nurses 22 out there in Arizona that helped him out and actually 23 trained him, I believe, in how to -- that's not something 24 you just know how to do or just take on. 25 Q Did there come a time when Mrs. Destefano was 1805 1 discharged from Florida Hospital? 2 A Yes. 3 Q And where did she go from there? 4 A She went back to my home. 5 Q I'm talking about the first hospitalization at 6 Florida Hospital from the 15th of September to the 19th 7 of September of 1999. 8 A Uh-huh. 9 Q Did she go to Sunbelt nursing home after that? 10 A The first time? 11 Q After the first hospitalization when she had 12 the urinary tract infection. 13 A I thought she came back home first. I thought 14 she went back to the hospital one more time before she -- 15 Q I'm not talking about the hospital. I'm 16 talking about the nursing home. 17 A Right. 18 Q Did there come a time when she went into the 19 Sunbelt nursing home? 20 A From Florida Hospital, correct. 21 Q That's the one I'm talking about. 22 A I thought it was right after that. It's hard 23 to remember exactly when. 24 Q Let's go back to the nursing home visit. Did 25 you ever see Mrs. Destefano or Larry Destefano during the 1806 1 time she was at Sunbelt nursing home from September 19th 2 to the 21st of 1999? Were you ever there? 3 A Oh, yeah. 4 Q When did you go there the first time? 5 A The day they took her over there. 6 Q And what happened on that occasion as far as 7 what you -- 8 A We just saw the room that she was in. She was 9 in the fetal position by this time, you know, it was just 10 dark and dreary there and I didn't like it. I told Larry 11 I didn't want her to stay there. I didn't understand 12 really why she was there. 13 Q Did Larry tell you why she was there? 14 A Well, he said they said it was for 15 rehabilitation, but I never understood how you 16 rehabilitate an Alzheimer's patient. 17 Q So other than that -- was that first night 18 that she was there that you were there? 19 A Yes. 20 Q And did you see her at any time other while 21 she was admitted to the nursing home? 22 A No. I think I only was there the first day. 23 I had a daughter. She was young back then. That was on 24 a weekend day, I believe, and she wasn't there very long. 25 I did come back after the fact to get her things, but 1807 1 that was -- 2 Q I'll talk to you about that in a minute here. 3 Did you become aware at some point in time that Carolina 4 Destefano had been transferred to Orlando Regional 5 Medical Center, ORHS? 6 A Yes. 7 Q How did you become aware of that? 8 A Larry called me on the phone and told me that 9 she had been taken to ORMC and to please go down there 10 and find out what was wrong and why. 11 Q And did you go to ORMC? 12 A Yes. 13 Q What time -- what time did you get there, to 14 your best recollection? 15 A It was after I picked my daughter up from 16 school, so I'm going to say 4:00 or 4:15. 17 Q Okay. And was Larry Destefano there when you 18 got there at 4:00 to 4:15? 19 A No. 20 Q How did you identify yourself to the staff 21 there when you went there to ORMC? 22 A As Larry's wife, so they would let me see her. 23 Q As basically Carolina Destefano's 24 daughter-in-law? 25 A That's what I said, daughter-in-law. 1808 1 Q Why did you think if you didn't say that you 2 couldn't see her? 3 A Because over the years I knew that just 4 through other experiences with family and the hospital 5 that they wouldn't let you see her unless you were, you 6 know, related. 7 Q And did you talk to any doctors -- let's talk 8 about the first doctor. Did you see any doctors as you 9 were there in Carolina Destefano's room? 10 A I was in there with her by myself originally 11 and the lady that was in the bed next to her, and 12 Dr. Wilson came in, the female doctor. 13 Q Okay. Now, you said there was a lady in the 14 next bed? 15 A Uh-huh. 16 Q "Yes"? 17 A Awake, yes, sir. 18 Q So in terms of this room that we've been 19 seeing here that's in evidence, the depiction of Rooms 22 20 and 23, there was someone in the other bed? 21 A Yes. 22 Q And would you -- we can see that in the 23 upper -- 24 A Right, yes. 25 Q -- upper right picture there that there was 1809 1 another bed in there. 2 A Right. 3 Q That person was awake you said? 4 A Yes. 5 Q Was that a man or a woman? 6 A Female. 7 Q Anybody visit with her that you recall? 8 A No. But I said hello to her and told her I 9 hope we weren't disturbing her, and she said, no, 10 everything was fine. She wasn't comatose or anything. 11 Q Was that lady there the whole time that you 12 were there on the evening -- on this evening of -- 13 A The whole time. 14 Q The whole time? And did Dr. Wilson talk to 15 you about anything when she was there? 16 A Well, she came in and she was on one side of 17 the bed and I was on the other. And I asked her why 18 Mrs. Destefano had been brought her, and she said for 19 rectal bleeding. I'm like, oh, is she bleeding from the 20 rectum, and she said no. I'm like, oh. And at that time 21 I was just happy to hear that. 22 Q Was Larry Destefano present when you had the 23 talk with Dr. Wilson? 24 A No. 25 Q Now, you say you got there between 4:00 and 1810 1 4:15. How long were you there before you left? What 2 time did you leave? 3 A Before dark. It was still daylight savings 4 time. Probably 7:15, 7:30. 5 Q And between the 4:00 time and the 7:00 to 7:15 6 time, were you there in and around Carolina Destefano's 7 room the entire time? 8 A Yes. 9 Q Did you ever leave the floor? 10 A Not the floor. I left the room. 11 Q And when you left the room, where would you 12 go? 13 A Just outside. I'd lean against the wall, kind 14 of watch people come and go, see if there's anyone I 15 could talk to. 16 Q Outside meaning outside the room? 17 A Outside the room door. 18 Q Tell the jury the configuration of where 19 you're talking about versus in terms of the rooms so we 20 know what the distance is that you said you went outside. 21 A Maybe 20 feet, you know, between it and the 22 nursing station and the big double doors that were always 23 open. 24 Q Why did you go to the nursing station? 25 A To just see when she -- what was going to 1811 1 happen to her, like where they were going to take her or 2 see if anyone knew what the next step was or how long she 3 would be there or -- 4 Q This was after Dr. Wilson told you there was 5 no -- 6 A Right. 7 Q -- rectal bleeding? 8 A Right. 9 Q And did Dr. Wilson say anything about because 10 there was no rectal bleeding, she could leave? 11 A No. 12 Q Now, in terms of Larry Destefano, did he come 13 to ORMC at some point in time? 14 A After I got there, I guess, maybe around 5:00 15 or so, not too long afterwards. I had already spoken to 16 Dr. Wilson and had been by myself for a while. 17 Q Okay. How long had you been there before 18 Dr. Wilson came in? 19 A Not too long, maybe 20 minutes. 20 Q Okay. And was Larry Destefano there when you 21 were trying to find a nurse to give you some guidance as 22 to discharge of Mrs. Destefano? 23 A Yes. 24 Q And when you were trying to find a nurse, how 25 long would you hang around at the nursing station to do 1812 1 that? 2 A Just for a few minutes. It seemed busy and 3 hectic there and nobody seemed to be able to help me, so 4 I'd just go back. 5 Q Back into the room? 6 A Yeah. 7 Q And when you went back into the room -- how 8 many times did you go out to the nursing station? 9 A Maybe two or three times. 10 Q And other than that, from 4:00 to 7:00 or so, 11 were you in the room pretty much continuously? 12 A Yes. 13 Q At any time that you were in the room, did you 14 see a nurse either in the room or standing 20 or 30 feet 15 away at the nursing station, did you ever see a nurse 16 looking into the room for a matter of minutes? 17 A Never saw a nurse. 18 Q Never saw a nurse at all? 19 A Never could get a nurse. 20 Q Is that why you're out looking for one? 21 A Yeah. 22 Q Now, at some point in time -- 23 A A couple doctors came in then. 24 Q What were these doctors doing; do you 25 remember? 1813 1 A They were just checking her, I think. They 2 weren't there very long. They came in and out. I don't 3 even remember their names. I don't recall what, you 4 know, we talked about really. 5 Q And during the time that you were there from 6 4:00 or 4:15 until 7:00 to 7:15, did you ever see a nurse 7 in or about Larry Destefano's room? 8 A No. 9 Q Was there a point in time -- well, did Larry 10 Destefano's mother ever go to a private room? 11 A No. 12 Q And did you ever have an opportunity to 13 observe, once Larry got there, how the nurses and the 14 staff were treating him? 15 A They wouldn't talk to us, him or myself. 16 Q What do you mean -- 17 A We didn't really give it much thought at the 18 time. We didn't -- they were very aloof and -- 19 Q What do you mean they wouldn't talk to you? 20 A They just, you know, no one would talk -- they 21 actually, you know, treated us like we had rabies or 22 something, you know. They seemed like kind of they knew 23 something we didn't know or something, you know, I don't 24 know what it was. It was kind of a weird feeling, made 25 me feel uncomfortable. 1814 1 Q And is that more than one staff or do you 2 recall? 3 A I don't recall. It was just I could never get 4 anyone to help. The two men doctors seemed kind of rude. 5 Q But let me ask you this. In terms of the time 6 you were there at ORMC from 4:00 to 7:00 and after 5:00 7 when Larry Destefano got there, did you ever see Larry 8 Destefano doing anything inappropriate with his mother? 9 A No. 10 Q Had you ever seen Larry Destefano kissing his 11 mother full on the mouth? 12 A No. 13 Q Full on the mouth passionately? 14 A No. 15 Q Full on the mouth passionately for an extended 16 period of time? 17 A No. 18 Q When Ms. Destefano was in your home, did Larry 19 go to bed with her, sleep in the same bed with her? 20 A No. She had a hospital bed -- well, I had a 21 twin bed originally in the extra room in the back, but 22 then they brought a hospital bed later. 23 Q You mentioned that after you -- at some point 24 in time you went back to the nursing home. What was that 25 all about? You had to go back to the nursing home. 1815 1 A To pick up her glasses and her shoes. 2 Q So after she was transferred to ORMC, they had 3 left her glasses and shoes at the nursing home? 4 A Right. 5 Q And where was Carolina Destefano transferred 6 to after ORMC? 7 A To the ninth floor, I think it was, at Florida 8 Hospital. 9 Q And did you go visit her over there as well? 10 A Oh, yes. 11 Q And was Larry Destefano also visiting his 12 mother there? 13 A Well, that was the day that we realized there 14 was some -- there was an issue, you know, Larry called me 15 and told me that I should go see his mother that morning, 16 so I went down there. I live nearby. And when I got to 17 the room, it was full of people, and it was -- everything 18 was really strange, you know. 19 Q What people were there when you got there? 20 What time of day was it, first of all? 21 A In the morning, 9:00-ish maybe. 22 Q And when you got there, where did you go at 23 Florida Hospital; do you remember? 24 A Straight to her room. 25 Q And what people were there? 1816 1 A A police officer, a DCFS person, a lady, like 2 a baby-sitter sitting next to her bed, maybe a doctor or 3 a nurse. There was at least six people it seemed like 4 around. 5 Q Was Larry there? 6 A He came in -- I was there first. 7 Q You said this was the first time that you knew 8 something was going on. What do you mean by that? 9 A I'm, like, what's going on? 10 Q What happened next? 11 A She kept trying -- the DCF person, I think her 12 name's Judy, kept trying to hand me this yellow pamphlet. 13 I'm, like, what is, you know, I didn't have any idea what 14 was -- 15 Q Did you look at the yellow pamphlet? 16 A No. 17 Q What happened next? 18 A Larry came in, and he wanted to know what was 19 going on. And he was upset. And when he found out that 20 it was the DCFS person there, he's, like, what's going on 21 here? What's this about? And then that's when the 22 officer -- I'll never forget this. He's, like, do you 23 want to air your dirty laundry here or take it somewhere 24 else? And Larry was, like, what dirty laundry. 25 MS. MARSHALL: Objection, hearsay as to the 1817 1 officer. 2 THE WITNESS: It's not. 3 THE COURT: Sustained. Ma'am, don't respond 4 whenever a lawyer makes an objection. 5 THE WITNESS: Okay. 6 BY MR. OSBORNE: 7 Q Did you go to a different place then? 8 A Yes, we did. 9 Q Where did you go? 10 A To a meeting room. 11 Q Who was there at the meeting room? 12 A Well, the officer that was there, the DCFS 13 person, a doctor, and maybe someone from their management 14 staff maybe at Florida Hospital, a higher-up person. 15 Q And you were there? 16 A Yes. 17 Q And Mr. Destefano was there? 18 A Yes. 19 Q What happened then? 20 A The DCFS lady wanted to discuss some 21 questions, and Larry -- well, Larry, I can't speak for 22 him. I was thinking what kind of questions, you know. 23 And I can't remember how it all came about, but Larry 24 wanted to know if those were generic questions that were 25 asked to anyone that they might question or if these were 1818 1 specific questions, you know, just regarding him and his 2 activity. 3 Q And what was he told? 4 A That they were general questions, I think. 5 Q Okay. 6 A I can't really remember. I was in shock about 7 that time. I was, you know, very uncomfortable. 8 Q Did the DCFS lady ask questions? 9 A Yes. 10 Q What was the first question she asked? 11 MS. MARSHALL: Objection, Your Honor, hearsay. 12 (Bench conference.) 13 THE COURT: What's the hearsay exception? 14 MR. OSBORNE: State of mind of the DCFS 15 investigator. And I need to do a proffer at this 16 time. 17 THE COURT: And what is that relevant to? 18 MR. OSBORNE: Because she was reacting to 19 statements made by Rachel Bean to DCFS, and she was 20 asking questions to these people, her state of mind 21 and response to the allegations made by Rachel Bean 22 to DCFS. 23 THE COURT: Objection is sustained. If you 24 want to do a proffer, you can do it after they go 25 out. I'd ask you to complete your examination of 1819 1 her. 2 MR. OSBORNE: Thank you. 3 (Open court.) 4 BY MR. OSBORNE: 5 Q What was your reaction to these questions that 6 had been asked by Judy, the DCFS person? 7 A I was shocked and appalled. 8 Q What about Larry Destefano's reaction, what 9 was his reaction? 10 A He was more angry, but he was in shock, I 11 think. 12 Q What happened then? What happened next? 13 A Well, they asked their questions. They asked 14 us to -- 15 Q Don't say what they asked you. 16 A I know. I don't remember exactly what they 17 asked, I mean, I -- the exact way they asked it. 18 Q So what happened next? What was the next 19 thing -- 20 A They asked us to demonstrate -- 21 Q No, I don't want you to talk about what they 22 asked you to do. What was the next thing you did after 23 you had this conversation with the DCFS person, you and 24 Larry Destefano? 25 A In the room with -- outside of his mother's 1820 1 room? 2 Q Did anything happen in the room or did you 3 leave the room and do something else at that point? 4 A Well, we finished up the questions. 5 Q And then what happened? 6 A Then we left the room. 7 Q Okay. In terms of Larry's response to these 8 questions, his reaction to these questions, what did he 9 do or what acts did he take after he had this meeting 10 with DCFS? 11 A I think that's when he started picketing. 12 Q Okay. And tell the jury what you remember 13 about his picketing, how long did he do it and for how 14 many hours a day and that sort of thing. 15 A He did it from the early shift when everyone 16 would be coming in so early in the morning till late, 17 till dark every day. 18 Q For how long? 19 A I can't remember how long. Probably a year at 20 least. 21 Q Did he ever tell you why he was picketing? 22 A I knew why he was picketing, yes. 23 Q Why? 24 A I think -- and I -- well, he was afraid, you 25 know, for what they had accused him of. And I think it 1821 1 was his way of protecting himself kind of, you know. 2 Q Okay. Let me ask you this. 3 A Or letting out some of the -- everything that 4 was inside of him, you know, it was a window, you know. 5 Q Before these events happened in September of 6 1999, did you have an impression as to how Larry 7 Destefano felt about himself in terms of his dignity and 8 his name and that sort of thing? 9 A He was a real -- he's a man's man, you know? 10 Those kind of things are very -- they always were, you 11 know, he's very honorable, and, you know, he holds people 12 accountable. And he wasn't just, you know, he's -- he 13 was real emotionally secure, and, you know, he was 14 just -- he was kind of like the warrior would have been 15 back hundreds of years ago. He's one of those kind of 16 men. 17 Q How was he after these events? Did he change 18 from the time that you described to the jury before these 19 events? 20 A You want to know what he was like after all 21 this? 22 Q I do. 23 A And how he is now? 24 Q Yes. Let's talk about the time immediately 25 after. Let's talk about the first year after this event. 1822 1 A Immediately, I think he was afraid, you know, 2 I think he was in shock, I'm sure. I can't talk for him, 3 but he seemed to be. He was -- 4 Q After the picketing, after the year of 5 picketing, what was going on with Larry at that point in 6 time, say, from mid-2000 thereabouts? 7 A He had changed. He had become preoccupied and 8 kind of emotionally drained and non, you know, in a 9 normal sense like nonproductive and restless, kind of 10 angry, definitely. 11 Q And did he -- did he express to you any desire 12 to clear his name? 13 A Oh, absolutely. That's what this was all 14 about. 15 Q What do you mean what this is all about? 16 A The picketing and everything, you know, that 17 was hard. I can't imagine -- I can't imagine, you know, 18 because it wouldn't happen to me. I can tell you what I 19 saw. 20 Q What'd you see? 21 A Somebody who was afraid -- he had been 22 arrested a couple of times too. They'd take him down to 23 the police station whenever they felt like it, you know. 24 MS. MARSHALL: Objection, Your Honor. This 25 goes beyond the witness's personal knowledge. 1823 1 THE COURT: Is that a predicate -- overruled. 2 BY MR. OSBORNE: 3 Q You were aware that he had been arrested more 4 than once? 5 A (Nods head.) 6 Q "Yes"? 7 A Yes, sir. 8 Q For picketing? 9 A I think one of the times it was for picketing. 10 Q And what happened to those charges, to your 11 knowledge? 12 A They were dropped. 13 Q Let's go back to your relationship with Larry 14 Destefano. I'm going to have to ask you a personal 15 question or two. 16 A Okay. 17 Q Before September of 1999, did you and Larry 18 Destefano have sexual intercourse? 19 A Yes. 20 Q Have you had any sexual intercourse with Larry 21 Destefano since September of -- these events of September 22 of 1999? 23 A No. Due to the type of allegation it was, he 24 hasn't been able. 25 Q What do you mean the type of allegation you're 1824 1 talking about? 2 A You know, what he was accused of, you know, 3 the anatomy and what it was all about has caused Larry, 4 you know, a lot of damage. 5 Q So what is your -- what is how I would 6 categorize your normal sexual relations with Larry 7 Destefano today as compared to 1999? 8 A I still refer to him as my boyfriend. I still 9 love and respect him. I stand by him. I cook for him. 10 I care about him. 11 Q How is Larry Destefano different today than he 12 was before these allegations were made between he and his 13 mother? 14 A The best way I can put it, I mean, besides 15 being restless and he paces and he's nonproductive and 16 he's preoccupied, he's distant. And he's not 17 affectionate, and he doesn't really like it when I try to 18 be affectionate to him. He's almost claustrophobic like. 19 But I was thinking if you ever saw the movie 20 Groundhog Day. He's locked in that one day, and he can't 21 move forward. He's just -- like every day he wakes up 22 he's living that day again, you know, it's just over and 23 over and over. That's the best way I can describe it. 24 Q Tell the jury, in terms of Larry's activities, 25 exercise activities, what was he like before September 1825 1 1999 in terms of things he did physically? 2 A He played tennis every day. He weighed about 3 30 pounds more than he does now, and he was all muscle, 4 and he was very athletic. He has a weight thing. He 5 worked out on weights all the time. He worked 12 hours a 6 day just on the furniture. And he was just a guy guy. 7 He had a motorcycle. He sold that. He got rid of that. 8 He never drove it after that. 9 Q Has he been exercising since these events of 10 September -- 11 A No. 12 Q -- 1999? 13 A (Shakes head.) 14 Q "No"? 15 A No. He doesn't do anything of that sort 16 anymore. 17 Q He had closed down his business to take care 18 of his mother, right? 19 A Right. 20 Q Has he ever started up his furniture 21 refinishing business? 22 A No. He's nonproductive. I told you he 23 can't -- he just doesn't, you know, he can't -- he's 24 preoccupied. He's still living in that one time. He 25 can't move forward. He can't concentrate, you know. It 1826 1 worries me even when he drives sometimes. 2 Q What's he like -- just one last question. If 3 you had to sum up the differences between Larry Destefano 4 back before September of '99 and to date, what would you 5 say? 6 A That he's emotionally damaged, that he's 7 trapped in that time. 8 Q What's he like personality -- 9 A He's hard to be around at times, you know. 10 Q Why is that? 11 A He has a short fuse. He's very guarded. I 12 mean, but I can understand that, you know, he's very 13 guarded and distant. 14 MR. OSBORNE: Thank you, ma'am. No further 15 questions. 16 - - - - - 17 CROSS-EXAMINATION 18 BY MS. MARSHALL: 19 Q Good morning, Ms. McNeill. 20 A Good morning. 21 Q Now, you met Mr. Destefano in August of '97; 22 is that correct? 23 A That's correct. 24 Q And was he still married at the time that you 25 met him? 1827 1 A Yes. 2 Q And who was he married to? 3 A Mieko. 4 Q And you said that you used to be a bank teller 5 at SunTrust; is that correct? 6 A During that time, yes. 7 Q And you quit working at SunTrust in 1996, 8 correct? 9 A No. It was after that. 10 Q Do you recall having your deposition taken on 11 November 1st, 2002? 12 A I remember being deposed. That sounds about 13 right. 14 Q Okay. Let me just show you your deposition 15 that's -- 16 A I don't have my glasses on. Can you just tell 17 me? 18 Q Oh, sure. When you were deposed on November 19 1st, 2002, I believe you stated or you were asked the 20 question on -- at page 16 at line 11: 21 "Question: What did you do? 22 "Answer: I was a teller at SunTrust. 23 "Question: Starting approximately '92? 24 "Answer: Let me think what year did I start? 25 No. It was like '93 to '96." 1828 1 A I worked at SunTrust from '96 to '98, I think, 2 it was. 3 Q Okay. In your deposition, Ms. McNeill, didn't 4 you say that you worked at SunTrust from 1993 to '96? 5 A I don't remember. I was wrong if I did. 6 Q And isn't it true that you didn't work at all 7 for anybody between the time that you left SunTrust in 8 1996 till the time you began with A.G. Edwards in April 9 of 2001? 10 A '98 -- no, because I worked at Sleepy Hollow 11 Tea Room for four years. 12 Q Ms. McNeill, when you had your deposition 13 taken on -- 14 A Wait. That was before SunTrust, that's right. 15 Q -- November 1st -- 16 A So after that -- I've had four jobs. I worked 17 at the tea room, then I went to work for SunTrust, then I 18 didn't work for a couple years. 19 Q My question is between the years of '96 and 20 2001, you were not employed, correct? 21 A No. I worked from SunTrust from about '96 to 22 '98. You can ask them. I don't remember. 23 Q The question was asked to you on page 18 of 24 your deposition at line 6, did you work for anyone -- 25 anybody at all between the time you left SunTrust in 1996 1829 1 and the time you began with A.G. Edwards -- 2 A No. 3 Q Excuse me, ma'am. 4 A No. I thought you were -- 5 MS. MARSHALL: Could you instruct the witness 6 not to interrupt me when I'm -- 7 THE COURT: Do you understand now that you 8 need to let her finish her question? 9 THE WITNESS: Okay. 10 BY MS. MARSHALL: 11 Q (Reading:) 12 "Question: Did you work for anyone at all 13 between the time you left SunTrust in 1996 and the time 14 you began with A.G. Edwards in April of 2001? 15 "Answer: No." 16 A No. I agree. 17 Q So when you stated in your direct that you had 18 quit your job so that you could stay home with 19 Mrs. Destefano, that wasn't exactly true, was it, because 20 you had actually quit three years prior in 1996? 21 A No. I worked with SunTrust from '96 till '98. 22 I was working at SunTrust when I met Larry in 1997. I 23 continued to work there for a year after that. I was 24 working there while he was in Arizona, I believe. 25 Q Do you believe that you just misstated in your 1830 1 deposition, when you testified on page 17, that after you 2 left SunTrust in '96, you stayed home with your daughter? 3 A Yes. 4 Q So you think that was a mistake? 5 A Yes, because I worked for SunTrust from 1996 6 to 1998. I met Larry Labor Day of 1997, the weekend that 7 Princess Diana was killed in the accident. That's why I 8 can remember. 9 Q All right. So you made a mistake in your 10 deposition? 11 A I made a couple of mistakes in my deposition. 12 It was so -- 13 Q That wasn't an intentional -- 14 MR. OSBORNE: Your Honor, she's talking over 15 the witness before she can finish her answer. 16 THE COURT: Overruled. 17 BY MS. MARSHALL: 18 Q You made a mistake in your deposition, 19 correct, Ms. McNeill? 20 A Yes. 21 Q And that wasn't an intentional -- 22 A No. 23 Q You weren't intentionally trying to mislead 24 us, were you? 25 A No. 1831 1 Q It was just an accident trying to remember 2 what happened several years ago, right? 3 A Correct. 4 Q Just an honest mistake? 5 A Right. It was a long, you know, day or couple 6 hours. 7 Q Well, trying to remember back what happened 8 several years ago is difficult, isn't it? 9 A Depending on what it is. I remember the space 10 shuttle blowing up. I remember John Kennedy getting 11 killed. I remember where I was the day the Twin Towers 12 came down. It depends on how important it is. 13 Q You've never been married, correct? 14 A No. 15 Q And you live in College Park? 16 A Correct. 17 Q And you've lived there for 14 years, correct? 18 A Correct. 19 Q And you have a daughter? 20 A Correct. 21 Q And Mr. Destefano lives with you some of the 22 time; is that correct? 23 A Most of the time, 90 percent. 24 Q And when he doesn't live with you, he goes and 25 lives at his ex-wife's house, correct? 1832 1 A With her husband. 2 Q And his ex-wife, correct? 3 A Right. He divorced her shortly after we met. 4 Q That was in '98 -- shortly after you met in 5 '97? 6 A Uh-huh. 7 Q Okay. 8 A We're all friends. 9 Q Now, at the time that you had your deposition 10 taken in 2002, Mr. Destefano had been living with you for 11 approximately three to four months; is that correct? 12 A When -- November of what was the depo? 13 Q November of 2002. 14 A He still had his own place after we met in 15 September of '97 for some time, but he'd be at my house. 16 It was not even a mile away, his big warehouse where he 17 had an apartment and his place where he worked. My 18 daughter was young then, so -- 19 Q My question was from -- when you had your 20 deposition taken in 2002 -- 21 A Right. 22 Q -- he had been living with you for three to 23 four months prior to that, correct? 24 A He had lived with me for a while, yeah. 25 Q And then -- and before that, going back longer 1833 1 than four months, he had been living at Mark and Mieko 2 Koller's for the three or four months prior to that, 3 correct? 4 A I can't really remember, to be honest with 5 you. I know he had his business. He stayed with me 6 some. He went to Arizona for a year. 7 Q Ms. McNeill, I'm talking about in 2002, 2002. 8 A He was with me most of the time in 2002. My 9 daughter was young. She was in middle school. She was 10 having a lot of problems, and it was hard for him to be 11 around me and her. We were going through, you know, our 12 middle school mother-daughter growing up. 13 Q Ms. McNeill, for at least three or four months 14 during November or during the year of 2002, Mr. Destefano 15 did not live with you? 16 A No. 17 Q But instead he lived with his ex-wife and her 18 husband; is that correct? 19 A Yes, yes, I guess, if you say so. I don't 20 remember. 21 Q In January of 1999, he went out to Arizona to 22 visit his mother; is that correct? 23 A I wouldn't say visit. I'd say rescue. The 24 police called and said she was wandering the streets. 25 Q Okay. 1834 1 A He was -- 2 Q And then he brought her back in September of 3 1999, correct? 4 A That was about right, yes, September. 5 Q So he was out there about eight months? 6 A (Nods head.) I guess. Seemed longer. I 7 guess that's about right. 8 Q And when Mr. Destefano and his mother arrived 9 in Florida, you picked them up from the airport, correct? 10 A Yes. 11 Q And you all came back to your home in College 12 Park, correct? 13 A Correct. 14 Q And Mrs. Destefano stayed at your house with 15 you and Mr. Destefano, correct? 16 A And my daughter. 17 Q And your daughter, correct? 18 A Correct. 19 Q And that was for about a week to ten days? 20 A About that, yeah, a couple weeks. 21 Q And is it your understanding that she went to 22 the hospital from your house with a urinary tract 23 infection? 24 A Yes. 25 Q Mr. Destefano wasn't living in a hotel at that 1835 1 time, was he? 2 A I think he had gotten a room when she was put 3 into the hospital right across the street near the 4 hospital so he could kind of come and go and rest when he 5 needed to. 6 Q But at the time that she was checked into the 7 emergency room or was taken to the emergency room at 8 Florida Hospital the first time, he was living with you 9 and not in a hotel room; is that correct? 10 A As far as -- yeah, as far as I can recall, 11 yeah. He didn't get a room until he needed one until she 12 was in the hospital, I believe. 13 Q Okay. And you said that you visited her at 14 Florida Hospital when she was there between the 15th and 15 the 19th of September, correct? 16 A The first time she was at Florida Hospital, 17 fifth floor, yes. 18 Q And when she was admitted to Sunbelt Nursing 19 Home on the 19th, you also visited her at Sunbelt, 20 correct? 21 A Once the day she was brought over there just 22 to see where she was and where to, you know, find her and 23 why she was there really. 24 Q So the answer is yes? 25 A Yes. 1836 1 Q You and Larry left that evening and went back 2 to your house, correct? 3 A Correct. 4 Q He didn't say overnight at the nursing home, 5 did he? 6 A No. He was uncomfortable, though, with her 7 there. 8 Q There's no pending question. 9 A Okay. 10 Q Now, you've also talked about some events that 11 occurred after Mrs. Destefano was taken to Florida 12 Hospital for the second time; do you remember that? 13 A Right, uh-huh. 14 Q And at the time that he called you -- let me 15 back up for a second. 16 When Mr. Destefano called you to go to ORMC, 17 do you remember that, on the 21st of September? 18 A Yes, right. 19 Q He was out picketing, was he not? 20 A Yes. That's why he couldn't go. 21 Q So this was the day after she or the day that 22 she was transferred from Sunbelt to the ORMC emergency 23 room, he asked you to go to the emergency room because he 24 was out picketing? 25 A Right. And he said he'd be there as soon as 1837 1 he could get a ride. I think I had his car. I don't 2 really remember. 3 Q And then after -- now, going back to then, she 4 was transferred to Florida Hospital, correct? 5 A Right. 6 Q And you testified about some questions that 7 were asked to him by an investigator with DCFS; do you 8 remember that? 9 A Yes. 10 Q And Larry had called you and said to get down 11 there immediately to Florida Hospital because there was a 12 mob in his room, and he didn't know what was going on, 13 but he had a feeling it wasn't good for him, and he 14 wanted you to be there as a witness; is that correct? 15 A That would be correct. 16 Q And after he was questioned that day by the 17 DCF investigators, that's when he got really mad, 18 correct? 19 A Yes. I'd say yes. 20 Q And that's when he went out and made the great 21 big sign, correct? 22 A That's when the sign changed. Originally it 23 was just about nursing homes in general. 24 Q And if I could just show you this picture. Is 25 this what you mean when you say the big sign? 1838 1 A Yes. 2 Q This is the one that says "I picketed Florida 3 Hospital affiliate Sunbelt Nursing Home for neglect and 4 abuse of Mom. In return, they called HRS alleging I 5 sodomized my dying 71-year-old mom. You are disgusting 6 perverts," correct? 7 A Correct. 8 Q Okay. And after he started picketing, was it 9 the next day after the DCF investigators had questioned 10 him? 11 A I think it was. 12 Q And -- 13 A I know he worked all night on the sign. 14 Q And you would go visit his mom while he was 15 out picketing, correct? 16 A Correct. 17 Q Now, I want to take you back to when we were 18 talking about ORMC. When you arrived at ORMC, 19 Mr. Destefano was not there yet, was he? 20 A No. 21 Q I'm sorry? 22 A No. 23 Q And he eventually got there at some time that 24 evening after he was done picketing? 25 A Shortly after I got there. 1839 1 Q Shortly after you got there? 2 A I was there about 45 minutes before he got 3 there. I had spoke to Dr. Wilson and the lady next to 4 her kind of waiting for him. 5 Q And you actually were not in the room the 6 entire time, were you? 7 A No. 8 Q You walked out and you were at the nurse's 9 station for at least 40 minutes, correct? 10 A No. I'd come and go. I'd go up there for a 11 few minutes and everyone would seem busy, so I'd go back. 12 And then I'd go back again and just see if I could get, 13 you know, just see if things would change. 14 Q On page 37 of your deposition beginning at 15 line 13, you were asked the question: 16 Question: The male doctor left? 17 Answer: Right. I never really spoke to him 18 about much. We were just speaking in general terms 19 about Alzheimer's disease. And let's see, I went 20 out to try to find someone who would talk to me 21 about what was going on, like were we going to move 22 her back or what were we going -- were we going to 23 admit her or what. I stood around the nurse's 24 station probably 40 minutes at least trying to get 25 someone, and everyone just kept kind of putting me 1840 1 off and looking at me strangely too." 2 A Okay. Well, yeah, that's correct, but the 3 nursing station and the door to her room was all of from 4 here where I'm sitting to maybe the door at the back 5 there. 6 Q So you were out of her room for at least 40 7 minutes? 8 A But there was just this hallway and the double 9 doors so I could see what was going on. Larry was 10 leaning against the wall. They wouldn't talk to him. He 11 thought I'd have a better chance. 12 MS. MARSHALL: Your Honor, could you instruct 13 the witness to answer my question? 14 THE COURT: I think she is. 15 A I am trying to. You may not be hearing what 16 you want to hear, but I'm trying to tell you -- 17 THE COURT: Ma'am, ma'am, that's 18 inappropriate. Let me ask counsel to approach the 19 bench. 20 (Bench conference.) 21 THE COURT: I'm going to yank her chain in a 22 minute if she continues to argue with this lawyer. 23 I don't want her answering the question. I was 24 prepared to allow her to do that, but when she 25 starts mouthing off like that, I'm going to really 1841 1 jerk her chain in front of the jury. 2 MR. OSBORNE: Can I talk to her about that? 3 THE COURT: Do you know if lunch is here? 4 MR. TOWNSEND: It should be, but I don't know 5 for sure. Why don't I have Evans go out -- can we 6 take a ten-minute break? 7 THE COURT: No. I want to keep going and 8 break for lunch, but I don't want to break now if 9 lunch isn't here. She's going to check right now. 10 MR. TOWNSEND: Since my associate's here, I'm 11 going to assume he's the one that brought it. 12 THE COURT: Okay. Let's break. 13 (Open court.) 14 THE COURT: Ladies and gentlemen, we have 15 lunch for you. It's going to be brought back to the 16 jury room here in just a moment. If you all will 17 take 30 minutes, then we will continue with this 18 witness and conclude this witness upon your return. 19 Thank you. 20 (Jury exits.) 21 MR. TOWNSEND: I just want an instruction to 22 the witness about conversation -- 23 THE COURT: I'm going to deal with that right 24 now. I'm going to let you do -- where is 25 Mr. Osborne? I'm going to let you do your proffer 1842 1 now, if that's convenient for you. 2 MR. OSBORNE: That will be fine. 3 THE COURT: And I've said to Mr. Osborne 4 privately at the bench but I will say this openly 5 now with the jury being outside, the witness is -- 6 of course, all witnesses are to answer only the 7 questions posed to them. The kind -- and I don't 8 mind some leeway with respect to whether you're 9 answering the question or not, but this you may not 10 like my answer kind of thing, if I hear that kind of 11 thing out of a witness, this witness again, I'm 12 going to really call her down in front of the jury, 13 which you don't want, Mr. Osborne, and your client 14 doesn't want. 15 So I know I said that, but I just say it now 16 openly to underscore that I mean it. And I'll stop 17 it and I'll really get on the witness in front of 18 the jury. So you can talk to her privately, but go 19 ahead and proceed with your proffer now. 20 MR. TOWNSEND: Your Honor, could she also be 21 reminded not to discuss her testimony with anyone 22 during the lunch break? 23 THE COURT: Yes. The witness is not to 24 discuss her testimony with any person while we are 25 on the break. Go ahead. This needs to be on the 1843 1 record. Mr. Osborne? 2 - - - - - 3 PROFFERED TESTIMONY 4 BY MR. OSBORNE: 5 Q We talked about the conversation you had with 6 Judy. What was the first question you recall Judy saying 7 to you and Larry Destefano? 8 A The only question I recall was asking -- when 9 she asked him at -- this is hard for me. 10 Q Try to do it. What did she ask? 11 A If he'd ever stuck any part of his body into 12 his mother's vagina or -- 13 Q Is that the question you remember? 14 A I think so. 15 Q Any other questions you remember? 16 A How did he kiss her? How did he sit on the 17 bed, you know, next to her? 18 Q Anything else? 19 A I can't remember. 20 MR. OSBORNE: That's all, Judge, to be on the 21 proffer. 22 THE COURT: All right. Ladies and gentlemen, 23 let's take a 30 minute -- approximately now 24 25-minute recess. I know I'm pushing real hard 25 here. We've got some time to make up. I appreciate 1844 1 your cooperation. I'll be back in the room at 2 approximately 12:30. 3 (A 28-minute recess was had.) 4 THE COURT: Bring the jury, Sarah. 5 (Jury enters.) 6 THE COURT: Be seated. Counsel. 7 MS. MARSHALL: Thank you, Your Honor. 8 BY MS. MARSHALL: 9 Q Ms. McNeill, we were -- before the lunch 10 break, we were talking about the time when you were at 11 ORMC in the emergency room; do you recall that? 12 A Yes. 13 Q And you stood around the nurse's station 14 probably for 40 minutes at least trying to get someone to 15 talk to you; is that correct? 16 A Back and forth to the nurse's station. I was 17 only there maybe 40 more minutes after Larry had gotten 18 there, you know, 5:15 to 7:00-ish, so I had come back and 19 forth a few times. 20 Q It was about 40 minutes that you were at the 21 nurse's station, correct? 22 A Not at one time, no. I'd go back and forth. 23 Q And during that 40-minute period, you didn't 24 have any conversation with any of the nurses, did you? 25 A No. 1845 1 Q Now, when Mrs. Destefano was released from 2 ORMC, Mr. Destefano didn't want her to go back to 3 Sunbelt, did he? 4 A No. 5 Q In fact, his biggest concern after she left 6 ORMC was getting her back to Florida Hospital, correct? 7 A He wanted her to go back to Florida Hospital, 8 yes. 9 Q He wanted her to go back to Florida Hospital 10 and not to Sunbelt, correct? 11 A Correct. 12 Q And she was, in fact, transferred back to 13 Florida Hospital, wasn't she? 14 A Yes. 15 Q Now, Ms. McNeill, you said in your direct 16 testimony that Larry took her to the emergency room the 17 first time she went to Florida Hospital, correct? 18 A Yes. 19 Q Okay. And in your deposition that was taken 20 November 1st of 2000, you were asked a question at line 21 10 on page 24. 22 "Question: Do you remember how she was taken 23 to Florida Hospital ER on September 15th, 1999? 24 "Answer: I don't remember. I think an 25 ambulance came for her." 1846 1 Line 14, "Question: Okay. 2 "Answer: Yes. I think an ambulance came for 3 her." 4 MR. OSBORNE: Judge, that's improper 5 impeachment. She said she didn't remember. 6 A The ambulance did come -- 7 THE COURT: Just a minute, please. Overruled. 8 Go ahead. 9 Q Now, Ms. McNeill, in your deposition, were you 10 confused about whether the ambulance came or whether 11 Mr. Destefano took her? 12 A No. The ambulance -- I wasn't confused that 13 it came. It did come, but he told her that she could 14 just be driven. She didn't have to go in an ambulance. 15 I think that's what it was. 16 Q You weren't intentionally trying to mislead 17 anybody when you were giving your deposition testimony, 18 were you? 19 A No. 20 Q Now, Mrs. Destefano died on November 10th, 21 1999, correct? 22 A Correct. 23 Q And Mr. Destefano had told you that Rachel 24 Bean worked at Sunbelt and that she was the one that had 25 trespassed him, correct? 1847 1 A Correct. 2 Q And a few days after Mrs. Destefano died, you 3 went to Sunbelt looking for Rachel Bean, correct? 4 A Correct. 5 Q And you went inside the facility and asked to 6 see Rachel Bean, correct? 7 A Correct. 8 Q And when you found Mrs. Bean, you confronted 9 her; isn't that true? 10 A Well, I went and there was a staff person 11 outside her office, and I asked to speak to her and she 12 said I couldn't, but then I think she came out from 13 behind her door when she realized who was out there. 14 Q So you did speak to Rachel Bean that day, 15 correct? 16 A Yes. 17 Q And you told her that Mrs. Destefano had died, 18 correct? 19 A Correct. 20 Q And you told her that it was her fault that 21 Mr. Destefano had spent all of his time picketing while 22 his mother was on her death bed, correct? 23 A I don't remember the exact words, but I told 24 her she had made it difficult for Larry. 25 Q And you told her that she had caused problems 1848 1 for you and Mr. Destefano, correct? 2 A Yes. 3 Q And you told her that she was not one of your 4 favorite people, correct? 5 A Probably. 6 Q And you were screaming at her, weren't you? 7 A After she called my boyfriend a pervert. 8 Q And you also confronted her outside of 9 Sunbelt, didn't you? 10 A When I was standing there with the policeman, 11 yes. 12 Q And she came outside the building, correct, to 13 go home? 14 A No. 15 Q When you were outside, you called her a little 16 trouble-making bitch, correct? 17 A I was standing in the street at the trunk of 18 the police car with him, and her and another girl were 19 standing up by the door, which was aways away, watching. 20 And that's when it bothered me. I said something to her 21 like you don't have anything better to do than stand here 22 and watch, you know, and cause more trouble or -- 23 Q Didn't you scream to her that she was a 24 fucking slut whore? 25 A Maybe. I don't remember the exact words. 1849 1 Q And you were trespassed from the Sunbelt 2 facility, were you not? 3 A Yeah. That's why he was there, the policeman. 4 Q And when you were outside of Sunbelt, didn't 5 you tell Mr. Destefano that you'll take care of her 6 yourself? 7 A I don't remember that. 8 Q Now, you described Mr. Destefano as a macho 9 guy, correct? 10 A A man's man, yeah. 11 Q And isn't it true that after these events 12 occurred, you still don't find him to be moody, do you? 13 A Moody? I'm not sure of the definition of that 14 word. I told you, you know, preoccupied is more the 15 word, just kind of numb. He can be -- 16 Q On page 80 of your deposition, the question 17 was asked of you at line 19: 18 "Question: All right. Let's talk about his 19 depression a little bit. Do you find him to be 20 moody? Do you find him to be sullen, quiet? 21 Describe to me how you think that's changed. 22 "Answer: I don't find him to be moody and 23 sullen and quiet. I find it hard for him to focus 24 on anything else other than this. He's consumed 25 with what is happening to him." 1850 1 Do you recall that testimony? 2 A Uh-huh. 3 MR. OSBORNE: Your Honor, I would like for her 4 to publish the rest of the answer taken out of 5 context. 6 THE COURT: Sustained. Go ahead. 7 MS. MARSHALL: (Reading:) 8 "Having it not happen to me I can't really 9 understand that. It would be like losing a parent. 10 I can't say to someone I know how that feels because 11 I have never lost my parent. I can only imagine, 12 though. But he's been all consumed with what has 13 happened. I don't think he's ever got to grieve for 14 his mother." 15 THE WITNESS: Uh-huh. 16 BY MS. MARSHALL: 17 Q Now, you also testified in direct that you 18 have not had sexual relations with Mr. Destefano since 19 these incidents, correct? 20 A Correct. 21 MR. OSBORNE: Object, misspeaks. She said she 22 didn't have sexual intercourse since these events. 23 THE COURT: Overruled. 24 THE WITNESS: Right. I explained that 25 earlier. 1851 1 MS. MARSHALL: I didn't hear you, Your Honor. 2 THE COURT: Overruled. 3 BY MS. MARSHALL: 4 Q Ms. McNeill, when you had your deposition 5 taken on page -- taken in 2002, the question was asked to 6 you on page 81, line 17: 7 "Question: Well, here we are in 2002. Are 8 you still intimate with Larry? 9 "Answer: Yeah. 10 "Question: And do you engage in normal sexual 11 relations with Larry? 12 "Answer: Yeah." 13 A That was -- 14 Q There's no question. 15 A Oh, okay. 16 Q There's no question. 17 MS. MARSHALL: I have no further questions, 18 Your Honor. 19 THE COURT: Mr. Townsend? 20 MR. TOWNSEND: Just very briefly, Your Honor. 21 - - - - - 22 CROSS-EXAMINATION 23 BY MR. TOWNSEND: 24 Q Good afternoon, Ms. McNeill. 25 A Hello. 1852 1 Q When you left Orlando Regional the evening of 2 the 21st, security had not come down and confronted 3 Mr. Destefano yet, had they? 4 A No, sir. 5 Q And if the record reflects that security was 6 in his room at approximately 6:30 in the afternoon, you 7 would have left before 6:30, not at 7:00 or 7:15, 8 correct? 9 A I couldn't really tell. The sun -- it was 10 getting dusky. 11 Q Okay. You haven't reviewed any medical 12 records in this case, have you? 13 A No, sir. 14 Q Do you recall having reviewed some parts of 15 the medical records, though, at some time? 16 A I've heard things over the years, but I never 17 really sat down and looked at them. 18 Q To the extent that you've looked at any 19 medical records, they were provided to you by 20 Mr. Destefano; is that correct? 21 A What's the question? 22 Q To the extent that you've reviewed any medical 23 records in this case, they would have been provided to 24 you to review by Mr. Destefano, correct? 25 A I don't know if Brad might have talked to me 1853 1 about it or Joe, the previous lawyer. I can't remember. 2 Q As of the date of your deposition, no one 3 other than Mr. Destefano had shown you a medical record; 4 is that correct? 5 A I don't remember really about that. I just 6 have heard so much about it. I don't really remember how 7 and why or who. 8 Q Do you recall in your deposition on November 9 1st, 2002, at page 30 being asked -- 10 MR. OSBORNE: Your Honor, proper refreshment 11 is to show the witness the statement, have her look 12 at it. 13 MR. TOWNSEND: This is not for refreshment. 14 It's for impeachment. 15 MR. OSBORNE: She said she didn't remember. 16 MR. TOWNSEND: I'm going to impeach her that 17 she did remember. 18 THE COURT: Let me say, do you have your 19 glasses with you, now, ma'am? If he shows you 20 something, will you be able to see it? 21 THE WITNESS: I do. 22 THE COURT: Overruled. Go ahead. 23 THE WITNESS: They're in my purse. Can I -- 24 THE COURT: Can you see without your glasses? 25 THE WITNESS: Not close up. 1854 1 THE COURT: Get her her glasses. 2 THE WITNESS: I didn't know I was going to 3 read anything. 4 MR. OSBORNE: (Handing glasses to witness.) 5 THE WITNESS: Thank you. 6 BY MR. TOWNSEND: 7 Q Would you please read page 30, line 23 through 8 31, line 7, and see if that refreshes your recollection 9 about reviewing medical records? 10 A (Reviewing transcript.) Like I said, yeah, I 11 guess he would have been the one that showed them to me. 12 I don't really recall, you know, the same answer. Okay. 13 Is anybody other than -- no. Like I said, I guess that's 14 who would have showed them to me. 15 Q Does that refresh your recollection that no 16 one other than him showed you any of the records? 17 A Yeah. Like I just said, I don't really 18 remember how I saw them, and I never really paid a lot of 19 attention to it. 20 Q Just to clarify something, with regard to the 21 issue of when you left SunBank, whether it was 1996 or 22 1998, your testimony regarding the fact that you quit 23 SunBank to take care of Mrs. Destefano when she returned 24 in November, I mean, in September of 1999 would have been 25 incorrect; is that right? 1855 1 A Well, I had quit to take care of my daughter, 2 but she was back then also, you know, there was a lot 3 going on right in that time. 4 Q So you did -- 5 A My daughter was having trouble with school. 6 Q You didn't quit to take care of 7 Mrs. Destefano, correct? She wasn't even back in Florida 8 then. 9 A Right. But I did take care of -- it was 10 shortly thereafter, though, because I think it was July 11 when I left SunTrust. It was only like a month or so 12 that I had been out. 13 Q You learned for the first time that 14 Mr. Destefano had been asked by security to leave when he 15 called you after you had left Orlando Regional that 16 night, correct? 17 A Yes. 18 Q And he told you that he did not know why they 19 were asking him to leave? 20 A Right. 21 Q After you left Orlando Regional that night, 22 did you ever go back there? 23 A No. 24 Q And you have testified that you did come and 25 go from the room that Mrs. Destefano was in, correct? 1856 1 A Yes. 2 Q You've never spoken to Kelly Pipkin nor had 3 any conversations with her before or after that night, 4 correct? 5 A Correct. 6 Q Never spoken to Lillian Folley before or after 7 that night, correct? 8 A Correct. 9 MR. TOWNSEND: That's all I have, Judge. 10 THE COURT: Redirect? 11 - - - - - 12 REDIRECT EXAMINATION 13 BY MR. OSBORNE: 14 Q Ms. McNeill, in 2002, what were your normal 15 sexual relations with Larry at the time your deposition 16 was taken? What were your normal sexual relations? 17 A When my deposition was taken? 18 Q In 2002, that was the question you were asked, 19 what was normal regarding your sexual relationship with 20 Larry Destefano. 21 A Just that he was my boyfriend still. I told 22 you already that I took care of him, you know, we still 23 lived together. 24 Q In 2002, did your normal sexual relations 25 include sexual intercourse? 1857 1 A No. 2 MR. OSBORNE: Nothing further. 3 THE COURT: Ladies and gentlemen of the jury, 4 do any of you have a question for this witness? 5 MS. RODRIGUEZ: (Raises hand.) 6 THE COURT: Yes, I see one question, one 7 question only. Approach the bench. 8 (Bench conference.) 9 THE COURT: Two questions. Does Larry 10 Destefano have any brothers and sisters? Objection? 11 MR. TOWNSEND: No. 12 MR. OSBORNE: No. 13 THE COURT: Did any other family member assist 14 him with his mother during her illness? 15 MR. OSBORNE: No problem. 16 MR. TOWNSEND: Fine. 17 THE COURT: What was the relationship between 18 Larry Destefano and your daughter? 19 MS. MARSHALL: No objection. 20 MR. OSBORNE: No objection. 21 MR. TOWNSEND: No objection. 22 THE COURT: Would you trust your daughter with 23 Larry even after the allegations about his mother? 24 MR. TOWNSEND: Relevance -- it's okay. 25 THE COURT: Okay. I'll ask all these 1858 1 questions. 2 (Open court.) 3 THE COURT: I'm going to ask you some of these 4 questions. They come from the jury so turn and 5 answer to the jury. There are really about three or 6 four here together. I'm going to ask them one at a 7 time for you. 8 Does Larry Destefano have any brothers and 9 sisters? 10 THE WITNESS: He has one brother older than 11 him. 12 THE COURT: Did any other family members 13 assist him with his mother during her illness? 14 THE WITNESS: No. His brother wasn't around. 15 THE COURT: What was the relationship between 16 Larry Destefano and your daughter? 17 THE WITNESS: They get along okay. She was at 18 school a lot. She understood that his mom was sick. 19 She was young then. She was maybe 12 or 13 at the 20 time. 21 THE COURT: Would you trust -- 22 THE WITNESS: They're a lot closer now. They 23 had not spent a lot of time together, you know, he 24 had been gone for a year. And it was always just me 25 and my daughter since I had never been married, you 1859 1 know, so we were real close, her and I. 2 And at first, you know, she didn't want to let 3 anybody into our little me and her, but she liked 4 Larry. She's always -- she thinks of him as her dad 5 now, as she has her dad and his spouse, and so I 6 always told her she's lucky she has two sets of 7 people who care about her. 8 THE COURT: Would you trust your daughter with 9 Larry even after all the allegations about he and 10 his mother? 11 THE WITNESS: Absolutely. 12 THE COURT: Okay. Any other questions from 13 the jury, any follow-up questions to that? 14 Mr. Osborne, any questions from you? 15 MR. OSBORNE: No, Your Honor. 16 THE COURT: Ms. Marshall? 17 MS. MARSHALL: Yes. 18 THE COURT: Go ahead. 19 CROSS-EXAMINATION 20 BY MS. MARSHALL: 21 Q Ms. McNeill, is it fair to say that all of 22 these allegations haven't had any effect on how you feel 23 about Larry? 24 A Yeah, I'd say it's fair to say except that I 25 respect him, you know, for what he's been through, and I 1860 1 hurt for him. 2 Q So you haven't changed your mind about him in 3 any way whatsoever? 4 A Oh, no. I'll be with him forever. 5 MS. MARSHALL: Thank you. No further 6 questions. 7 THE COURT: Mr. Townsend? 8 MR. TOWNSEND: Nothing further, Your Honor. 9 THE COURT: Thank you, ma'am. You may stand 10 down. You're excused. Mr. Osborne, call your next 11 witness. 12 (Continued to Volume XIV) 13 14 15 16 17 18 19 20 21 22 23 24 25 1861 1 C E R T I F I C A T E 2 STATE OF FLORIDA) 3 COUNTY OF ORANGE) 4 I, LAURA J. LANDERMAN, R.M.R., C.R.R., certify that 5 I was authorized to and did stenographically report the 6 foregoing proceedings and that the transcript is a true 7 and accurate record. 8 Dated this 16th day of June, 2006. 9 10 11 ___________________________________ 12 LAURA J. LANDERMAN, R.M.R., C.R.R. 13 14 15 16 17 18 19 20 21 22 23 24 25