2328 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 XVII 15 (Pages 2328 through 2402) 16 Continued transcript of proceedings held before the 17 Honorable Renee Roche, Judge of the Circuit Court, Orange 18 County, Florida, on Wednesday, October 26, 2005, 19 beginning at 8:50 a.m., at the Orange County Courthouse, 20 Orlando, Florida, before Laura J. Landerman, R.M.R., 21 C.R.R., and Notary Public, State of Florida at Large. 22 23 24 25 2329 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 2330 1 I N D E X 2 RENEWAL OF MOTION FOR MISTRIAL AND SANCTIONS 2331 3 DEFENDANTS' MOTIONS FOR DIRECTED VERDICT Re: Adventist Health System 2339 4 Sunbelt Health Care Corporation, Adventist Health System/Sunbelt, 5 Inc., doing business as Florida Hospital, Sunbelt Health Care Centers, 6 Inc., and SHCC Services, Inc. 7 Re: Battery claim 2339 8 Re: Count V - conspiracy claim 2370 9 Re: Qualified privilege 2380 10 Re: Punitive damages 2382 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2331 1 (Continued from Volume XVI) 2 THE COURT: Ms. Marshall? 3 MS. MARSHALL: Yes, Your Honor. First of all, 4 Your Honor, we would like to renew our motion for a 5 mistrial. I have reviewed the court reporter's 6 taking down of what this witness said, and the sum 7 of it was that he pointed over here and said it 8 doesn't matter what happens over here 9 (indicating) -- 10 THE COURT: You need to be specific through 11 your direction. He pointed to -- in the direction 12 of -- 13 MS. MARSHALL: First of all, he pointed to the 14 jury box and says that it doesn't matter what 15 happens over here. 16 THE COURT: Indicating the jury. 17 MS. MARSHALL: Indicating to the jury. He 18 says I still have to continue to -- I can't remember 19 the exact words that he said -- to deal with them 20 over there (indicating). 21 THE COURT: Indicating? 22 MS. MARSHALL: Indicating to my counsel table, 23 my client, ORHS counsel, ORHS client. And then he 24 said that's the kind of action that gets people 25 killed. And, Your Honor, as well as moving for a 2332 1 mistrial, I would also like to request the Court -- 2 and we can brief this and bring a memo tomorrow -- 3 but to consider sanctions of dismissing the 4 plaintiff's case in this matter. 5 This goes back to a history before -- way 6 before when I got involved in the case, but there 7 has been a continuing history in this case of 8 intimidating witnesses, harassing witnesses. Judge 9 Hauser entered a protective order to keep 10 Mr. Destefano from contacting witnesses. Despite 11 the protective order, witnesses were contacted. 12 And now, Your Honor, after spending and taking 13 everybody's -- almost two weeks of everybody's time, 14 the plaintiff has threatened me, my client -- 15 THE COURT: By the action you just indicated. 16 MS. MARSHALL: It was not only that. It was a 17 specific reference to me where he says you're 18 smiling, Mrs. Marshall, and you have been smiling 19 this whole trial. And that was right before the 20 statements were made by the defendant with his hands 21 waving to defense counsel's table with myself, my 22 partner, my clients, ORHS and their clients, and 23 saying that this is what gets people killed. 24 And I believe that, you know, this plaintiff 25 has come in here with the privilege of being in 2333 1 front of the Court. He has been warned several 2 times to keep his actions in check, and I think he's 3 gone over the line. And I think that the Court has 4 the power to enter sanctions. I don't have the 5 cases with me. I'll be glad to get them, but I know 6 that that was being pursued previously, and I think 7 this has pushed it over the line. 8 MR. TOWNSEND: Your Honor, we would join in 9 that motion. 10 THE COURT: The Court would reserve on the 11 motion for mistrial and the motion for sanctions 12 pending further briefing on at least the motion for 13 sanctions. 14 MR. OSBORNE: Judge, I do have a point of 15 inquiry, and I think it might be appropriate to make 16 it now. It's our understanding, talking to Brad 17 Conway, that a deputy who was not in the room is the 18 one that signed the affidavit that got Mr. Destefano 19 Baker Acted, and the statement was that 20 Mr. Destefano stated that he was going to kill 21 somebody today. 22 And I would like -- I would like to have the 23 paragraph published by the court reporter that we're 24 talking about so we're not doing what we remember. 25 It's only one paragraph, if we can get the court 2334 1 reporter to go back. I would like to make that a 2 part of the record. 3 THE COURT: For the benefit of this Judge. 4 MR. OSBORNE: For the benefit of this Judge, 5 Your Honor. 6 THE COURT: You've got your record. You'd 7 like for me to remember and recall specifically what 8 was said. Sure, that's fine. 9 THE REPORTER: (Reading from notes.) "My 10 fight is with them. It's taking up my time, and 11 it's taking up my life. And I'm still going -- 12 whatever happens here, I'm still going to make sure 13 they never do this to anyone else again. That's my 14 only focus in life because that will destroy 15 someone. That will get people killed. You say that 16 to the wrong person, that's going" -- 17 MR. OSBORNE: Judge, I would like to inquire 18 if someone that's associated with this trial talked 19 to the deputy that did sign the statement to give 20 him information that would change the content of 21 what's in the -- in the record of that will get 22 people killed to saying I'm going to kill somebody 23 today. If the deputy didn't see it, I would like to 24 know if anybody told the deputy something that's 25 contrary to what -- 2335 1 THE COURT: I don't think this is the forum 2 for you to take that up in, Mr. Osborne. This 3 was -- the only focus of this Court is whether it's 4 appropriate right now. What's before the Court is a 5 motion for mistrial and motion for sanctions. I 6 intend to reserve on that. I would not rule on that 7 before hearing from you fully. 8 MR. OSBORNE: Thank you. 9 THE COURT: With respect to your other 10 inquiry, the Court has no knowledge of the 11 circumstance of that, and I don't intend to conduct 12 some kind of inquiry or investigation. If that's to 13 be done, that needs to be done separately from this. 14 What else do you have? 15 MS. MARSHALL: If I may continue, Your Honor. 16 We have five motions for directed verdict. If I 17 could just explain briefly what the five different 18 motions are, and I'll let the Court know how I 19 intend to argue them. And if you would rather that 20 I address them in a different order, I'd be happy to 21 do that. 22 The first motion for directed verdict has to 23 do with -- 24 THE COURT: Are you going to give me an 25 outline first? 2336 1 MS. PETRO: Your Honor, may I approach the 2 bench? 3 THE COURT: Yes. I know you have your written 4 motion, but are you going to tell me what you're 5 going to tell me and then tell me? 6 MS. MARSHALL: That's what I was planning on 7 doing unless you tell me differently. 8 THE COURT: No, it's fine. Just give me an 9 outline. 10 MS. MARSHALL: The first motion for directed 11 verdict is directed to the entities other than the 12 entity that owned this facility. So that is 13 directed towards the -- 14 THE COURT: So other than Rollins Bedford? 15 MS. MARSHALL: Correct. 16 THE COURT: And that would be? 17 MS. MARSHALL: Adventist Health System Sunbelt 18 Health Care Corporation, Adventist Health 19 System/Sunbelt, Inc., doing business as Florida 20 Hospital, Sunbelt Health Care Centers, Inc., and 21 CHCC Services, Inc. I'm sorry, it's SHCC Services, 22 Inc. 23 THE COURT: SHCC, Inc., and SHCC Services, 24 Inc.? 25 MS. MARSHALL: Correct. 2337 1 THE COURT: Before we get geared up into the 2 substance of -- well, no, let's continue. Give me 3 your -- I'm sorry. I derailed you. Let's go ahead 4 with your outline. 5 MS. MARSHALL: The second motion is for a 6 directed verdict regarding the battery claim. 7 THE COURT: And the third? 8 MS. MARSHALL: On the conspiracy count, which 9 was Count V. 10 THE COURT: The fourth? 11 MS. MARSHALL: Is on the issue of qualified 12 privilege. 13 THE COURT: And the fifth? 14 MS. MARSHALL: On punitive damages, Your 15 Honor. 16 THE COURT: Before we proceed, with respect to 17 the first motion, that being the entities -- well, 18 let me ask it this way. Are there any aspects of 19 these motions -- you haven't read the motions, 20 Mr. Osborne? 21 MR. OSBORNE: No. 22 THE COURT: So you're not in a position to 23 concede on any of these? 24 MR. OSBORNE: I haven't read them, Judge, so 25 I'm in the dark. 2338 1 THE COURT: Okay. Let's hear what you've got, 2 then. If we could talk first about the entities, 3 and those entities other than the entity Rollins 4 Bedford, which was the -- I expect you would 5 maintain the evidence has shown was the employer of 6 these individuals? 7 MS. MARSHALL: Yes, Your Honor. As to 8 Adventist -- 9 THE COURT: Mr. Osborne, do you have something 10 to say? 11 MR. OSBORNE: I can shortcut one of these, 12 Judge. I don't think there is any evidence as to 13 Adventist Health System/Sunbelt Healthcare 14 Corporation, they refer to as Healthcare Corp., 15 which, I think, is the top of the tier on the 16 corporate hierarchy. 17 THE COURT: Adventist Healthcare -- let's just 18 be real specific about what you're stipulating to 19 then. Adventist Health System/Sunbelt Healthcare 20 Corporation. 21 MR. OSBORNE: Correct. 22 THE COURT: You would stipulate to the entry 23 of a directed verdict as to that defendant? 24 MR. OSBORNE: Correct. 25 THE COURT: And that leaves then three related 2339 1 entities, that being Adventist Health 2 System/Sunbelt, Inc. Is that d/b/a Florida 3 Hospital? 4 MS. MARSHALL: That is correct, Your Honor. 5 THE COURT: And then the two SHCC entities? 6 MS. MARSHALL: That is correct. 7 THE COURT: Okay. 8 MS. MARSHALL: And let me just specify it 9 more. As to Florida Hospital over here, which is 10 the Adventist Health -- 11 THE COURT: Bring that close for me and put it 12 up so I can see it better, please, because I never 13 really have had a chance to look at that all that 14 well. It was shown to the jury quite a bit. 15 I do have some questions. Well, if you 16 want -- let's see if we can't move that so I can see 17 both you and the board. 18 MS. MARSHALL: Your Honor, as to Florida 19 Hospital, we are moving for a directed verdict as 20 to -- 21 THE COURT: I'm going to stand, if you don't 22 mind. 23 MS. MARSHALL: That's all right. Your Honor, 24 as to Florida Hospital, we don't believe that there 25 has been any evidence whatsoever showing that anyone 2340 1 from Florida Hospital battered Mrs. Destefano. 2 THE COURT: That being Adventist Health 3 System/Sunbelt, Inc., d/b/a Florida Hospital. 4 MS. MARSHALL: That is correct. And that 5 there is no evidence of any conspiracy as to Florida 6 Hospital which requires evidence of an act in 7 furtherance of the conspiracy as well as separate 8 and distinct damages that are over and above the 9 damages from the unlawful act that they're acting in 10 furtherance of. 11 The other reason that I believe that a 12 directed verdict with regard to Florida Hospital is 13 appropriate is that the only statement that is 14 attributed to Florida Hospital as being defamatory 15 is a note that's contained in a -- I believe it's a 16 doctor's order that says nursing and PT, physical 17 therapy, to provide care. Social services 18 evaluation for possible or potential abuse. And 19 that statement by itself is just not defamatory as a 20 matter of law. There's nothing defamatory about 21 that that would expose anyone to hatred or suffer 22 effect on reputation based on that statement alone. 23 Now, there have been some allegations or some 24 allusion to documents being created after the fact, 25 backdated in order to support the claims of Rachel 2341 1 Bean over at Sunbelt, but there has not been any 2 proof to show that that, in fact, did occur. It's 3 just, as before, an innuendo. 4 And in order to get by a directed verdict at 5 this point, they have to have produced evidence to 6 show that there was a defamatory statement made and 7 that it was published, and I don't believe, as to 8 Florida Hospital, there has been any kind of such 9 evidence that has been presented. 10 Now, I believe that Mr. -- 11 THE COURT: I'm sorry. Say that again. 12 MS. MARSHALL: The statements that have been 13 attributed to Florida Hospital, we talked about 14 these -- there's actually three different -- 15 THE COURT: These are the allegedly backdated 16 entries, late entries? 17 MS. MARSHALL: Correct, which there hasn't -- 18 THE COURT: Manufactured -- 19 MS. MARSHALL: First of all, there hasn't been 20 any evidence that they were backdated. That's just 21 something that's been thrown out there. And the 22 other thing is that what is noted in the doctor's 23 note is "Son needs considerable supervision and 24 instruction in giving care to patient." At most, 25 that is an opinion. That is not defamatory as a 2342 1 matter of law. 2 Second statement that is referenced is 3 "Nursing and PT to provide care. Social service 4 evaluation for potential abuse and family 5 situation." As to this statement that is contained 6 in the physician's order, there is -- it's not 7 attributed to Mr. Destefano. And even if it was, it 8 is an order, not an accusation or attributing some 9 trait to Mr. Destefano. It is merely a direction to 10 the nursing staff and to social services, and that, 11 again, is not defamatory. 12 The third note that is attributed to Florida 13 Hospital is "Son has power of attorney and has 14 provided care for past eight months in Arizona, 15 recently moved back to Orlando. No home, was living 16 off of disability of mom. Nursing believes son 17 providing inappropriate care from not knowing how 18 and interfering with care of patient in hospital." 19 Again, pure opinion. It's the opinion of the 20 author of this note that nursing believes son 21 providing inappropriate care. That is not a 22 defamatory remark. 23 And, again, the September 22nd letter that had 24 been talked about quite a bit which was authored by 25 Dr. John Steely, I believe, it was the day after the 2343 1 Department of Children and Family Services was 2 called. Again, what this letter references is that 3 nursing staff reported that Mr. Destefano was 4 interfering with his mother's care, and the care he 5 provided seemed inappropriate. 6 Again, as to the Florida Hospital statements, 7 they are all opinion and are not defamatory, and 8 there has been no evidence that they were falsified 9 or created after the fact. 10 Now I'll move on to the next entity that I 11 want to address -- 12 MR. OSBORNE: Your Honor, should we take these 13 one at a time or do you want to -- 14 THE COURT: Yeah, that's fine. 15 MR. OSBORNE: It would be easier for me. 16 THE COURT: That's fine, Mr. Osborne. 17 MR. OSBORNE: Just so I'm clear, the only 18 thing we're talking about here is Florida Hospital 19 and defamation, correct? 20 THE COURT: No. She's moved for directed 21 verdict on battery and conspiracy as to battery and 22 defamation, correct? 23 MS. MARSHALL: Correct. 24 MR. OSBORNE: Let me tell you, first of all, 25 who the Florida Hospital employees are we're dealing 2344 1 with, and that's Dr. Steely and Frances Wiegand are 2 the main ones here. And we note that -- and a lot 3 of this does have to do with Dr. Steely's to whom it 4 may concern letter, but we note that the only person 5 that reported the statement that Mr. Destefano 6 followed his mother to the hospital and made her 7 walk and drug her around the floor until the bandage 8 came off was Rachel Bean when she told that to DCFS 9 in Defendants' Exhibit No. 4. 10 And we know that we have -- and the only 11 person also, Judge, that reported he forced her 12 mouth open and pours water in her mouth trying to 13 force her to drink was Rachel Bean during her video 14 deposition and Rachel Bean in her report to DCFS on 15 the 4:12 in the afternoon phone call. 16 Dr. Steely, in his to whom it may concern 17 letter, stated that he was approached by -- and 18 there was another Florida Hospital employee, the 19 director of the family residency program, 20 Dr. Milholm, and Frances Wiegand, and they sat him 21 down and they told him to write up a memo. And he 22 had no knowledge of which nurse told him about these 23 contents in here about, for example, the two I'm 24 talking about, that he would literally drag his 25 mother until she became exhausted and her heel also 2345 1 began to bleed and that he poured water in her mouth 2 until she began to gag so she would reflexively 3 swallow. 4 And that information in this case only came 5 from Rachel Bean, and it shows up in Dr. Steely's 6 memo that is sent by Rachel Bean to DCFS. It's got 7 the fax number right on the top there. 8 So we've got a situation where Florida 9 Hospital employees, Frances Wiegand and Dr. Steely 10 and Dr. Milholm bring this memo together, and they 11 incorporate statements only attributable to Rachel 12 Bean. One, that's a conspiracy. They did an act in 13 furtherance of Rachel Bean's statements that she had 14 made, and they put it in another document, a to whom 15 it may concern document, that was not even a part of 16 the chart. 17 And while this is not backdated, it is forward 18 dated to supposedly reflect events that occurred in 19 a hospitalization earlier where there was no 20 reference in the hospital chart to anybody talking 21 about dragging his mother around until her ulcer 22 began to bleed or putting water in her mouth until 23 she began to gag. That only came from Rachel Bean 24 who was at Rollins Bedford. 25 And in terms of other folks involved with 2346 1 that, I think that in terms of Florida Hospital and 2 the conspiracy and Florida Hospital and the 3 defamation, I think that that puts them into the 4 fold. If there's not a direct statement, there's a 5 strong inference that that's what happened. 6 There's a strong inference that you don't 7 discredit a to whom it may concern letter. 8 Dr. Steely didn't know why he was writing a letter, 9 but he said when you're a two-month resident, you do 10 what your director says, and you do what the Florida 11 Hospital risk manager says. 12 And we've got evidence in this case that risk 13 management got involved as early as 11:00 in the 14 morning when Chuck Sherer called them and he got 15 them involved. He called them again at 1:15, and 16 these thing were all happening. 17 So I think in terms of Florida Hospital and 18 the conspiracy, that they acted in furtherance of 19 that by putting Rachel Bean's allegations in a 20 doctor's note and sending it to DCFS, that that is a 21 continuation or an act in furtherance of a 22 conspiracy, and that these are acts -- 23 THE COURT: Conspiracy to do what? 24 MR. OSBORNE: To defame Mr. Destefano. He 25 says he never dragged her across the floor until her 2347 1 heel bled. He said he never gave her water until 2 she gagged or walked her until she became exhausted 3 and the heel began to bleed. The fact that these -- 4 THE COURT: Are those statements defamatory? 5 MR. OSBORNE: Judge, they were reported to 6 DCFS as being -- 7 THE COURT: So what? You can report anything 8 to DCFS. 9 MR. OSBORNE: Those statements are defamatory, 10 Your Honor. Put it in context with the remaining 11 allegations being made about the other aspects. 12 You've got to put the whole package together about 13 the other aspects, and this is an attempt to 14 buttress other supposed inappropriate care with the 15 sexual allegations made also. 16 You can't -- you can't separate them out 17 because when Rachel Bean reported to DCFS, she 18 didn't separate them all out. She reported this as 19 abuse. All of this was reported by Rachel Bean as 20 abuse to DCFS, and all of that resulted in the 21 investigation, which is a major part of this case. 22 THE COURT: Well, why isn't this qualified 23 privileged, and how do you overcome that? 24 MR. OSBORNE: Because, Judge, to have a 25 qualified privilege -- before you even get to the 2348 1 qualified privilege under the standard jury 2 instruction -- you have to prove both truth and good 3 motives before you even get to that under the 4 standard jury instruction. 5 THE COURT: That's certainly not my 6 understanding of the law. I think the qualified 7 privilege attaches as a matter of law that certain 8 communications, including communications to law 9 enforcement, investigators of abuse within the 10 confines of the healthcare system, it attaches to 11 communications and notes in hospitals of nursing 12 homes, and that those are -- that's a qualified 13 privilege that can be overcome with evidence of 14 malice. 15 And the malice can be discerned from the 16 context in the nature of the words themselves, but 17 these words, I would suggest, don't give rise to 18 such an aprobius and extreme and egregious reaction 19 as to imply malice, and where's the malice? 20 MR. OSBORNE: Judge, all you have to show is 21 that they did so -- they have to do it with proper 22 motives. The burden is on them to show proper 23 motives for putting this in the record. And you 24 can't dissect all these statements. You have to 25 take them as a whole. 2349 1 All the statements that were being made were 2 made in an attempt to backfill, and the first 3 statements that were made were the statements about 4 sexual inappropriateness. Then as the thing 5 escalated, more and more statements were made to 6 show that he was inappropriate in general. 7 Our contention is all these statements were 8 made up after the sexual allegations were made. 9 That didn't seem to be sufficient enough, so when 10 the second phone call was made to DCFS, other 11 allegations were made in addition to the 12 disimpacting and the kissing in an attempt to load 13 up DCFS with other inappropriate behavior to lend 14 support to the sexual allegations that had been made 15 in the first phone call at 12:09. 16 And the burden is on them, Judge, and they 17 have to show that there's not one inference in this 18 case that they did not have good motives, and 19 there's a lot of inferences in this case that it all 20 started with Rachel Bean and Mary Thornton and it 21 went upstairs from there and other people assisted 22 them from that point forward to attempt to bolster 23 their case that Mr. Destefano did wrong. 24 THE COURT: I don't know that that's a proper 25 articulation of the burden of proof in a defamation 2350 1 case. It seems to me that it's your burden to 2 overcome the presumption of a qualified privilege 3 and demonstrate malice. I don't know that they have 4 to -- they have any burden, the defendant, of coming 5 forward and showing the absence of malice. 6 MR. OSBORNE: At this juncture, Judge, it's 7 their burden on directed verdict to show there's not 8 one inference, not one suggestion of any evidence to 9 show that they acted without, you know, without 10 malice. At this juncture, the burden's on them. I 11 agree with you when it comes to the jury time, the 12 burden's on me to prove that, but not at this 13 corner. 14 THE COURT: Well, let me ask you this 15 question, Mr. Osborne. What is, then, your -- that 16 would be your position also with respect to the 17 defamation claim aside from the conspiracy claim? 18 MR. OSBORNE: Right. I think that the 19 conspiracy was due to defamation. 20 THE COURT: I think I understand your 21 position. Anything else? 22 MR. OSBORNE: No, Your Honor, not on that 23 point. 24 MS. MARSHALL: May I briefly respond to that? 25 THE COURT: Yes. 2351 1 MS. MARSHALL: Your Honor, the conspiracy 2 claim -- you have to go back to the complaint, and 3 they have not -- they chose to lump all the 4 Adventist entities in their complaint as one entity. 5 They just say Adventist without any distinguishing 6 between the different corporate entities. 7 And the conspiracy is not that they conspired 8 among themselves. The only allegations in the 9 complaint is that Adventist, everybody grouped 10 together, conspired with ORMC or ORHS. So the 11 conspiracy theory -- what Mr. Osborne is saying is 12 that there was evidence of the conspiracy among 13 these different corporations. That has not been how 14 it -- how the complaint is framed. 15 THE COURT: Why don't you read me what the 16 conspiracy count says. 17 MS. MARSHALL: It says: Defendants, 18 Adventist/Sunbelt, in a continuing effort to cover 19 up their own negligence and to retaliate against and 20 to discredit the plaintiff, maliciously conspired 21 with Defendant ORHS to defame the plaintiff by 22 accusing him of being a sexual predator. 23 Defendants, Adventist/Sunbelt and ORHS, did, in 24 fact, maliciously defame the plaintiff by publishing 25 to staff members and patients at Orlando Regional 2352 1 Medical Center, Sunbelt Health Care and Subacute 2 Center of Orlando, Florida Hospital Orlando and 3 other facilities where Carolina Destefano was a 4 patient prior to her death, and to the Orlando 5 Police Department and the State of Florida 6 Department of Children and Family Services and to 7 members of the general public that plaintiff had 8 sexually abused his mother. Specific defamation has 9 heretofore been alleged in the preceding counts, and 10 then it just goes on to say that defendants, 11 grouping everybody together, conspired to and did 12 publish the above libelous and slanderous allegation 13 knowing they were totally false. 14 MR. OSBORNE: I could respond to ORHS on that 15 if you'd like me to. 16 THE COURT: Beg your pardon? 17 MR. OSBORNE: I could respond to the ORHS 18 segment of that, but I didn't think ORHS was on the 19 table right now. 20 THE COURT: Okay. I'll get back to you if I 21 need to. Go ahead. 22 MS. MARSHALL: And then the other thing is 23 that as to the standard, under 415.1036, which is 24 the Adult Protective Services Act, it says that "Any 25 person who participates in making a report under 2353 1 Section 415.1034 or participates in a judicial 2 proceeding resulting therefrom is presumed to be 3 acting in good faith, and unless lack of good faith 4 is shown by clear and convincing evidence is immune 5 from any liability, civil or criminal, that 6 otherwise might be incurred or imposed." 7 So the standard to get by the qualified 8 privilege and the immunity that's granted under this 9 statute is, first of all, there's a presumption that 10 they were acting in good faith; and second, lack of 11 good faith must be shown by clear and convincing 12 evidence. 13 THE COURT: Well, wouldn't Mr. Osborne say 14 there was more than just this publication? 15 MS. MARSHALL: Well, the elements of a 16 defamation is a false statement -- so you can assume 17 it's a false statement, not privileged, meaning that 18 he has to show lack of good faith by clear and 19 convincing evidence with a -- 20 THE COURT: When you're talking about 21 publication to DCFS, is that what you're focusing 22 on? The statute relates to publication of reports 23 of elder abuse to DCFS, right? 24 MS. MARSHALL: Well, it's any person who 25 participates in the -- 2354 1 THE COURT: Yeah, read me the breadth of the 2 statute again. 3 MS. MARSHALL: "Any person who participates in 4 making a report under Section 415.1034 or 5 participates in a judicial proceeding resulting 6 therefrom is presumed to be acting in good faith, 7 and unless lack of good faith is shown by clear and 8 convincing evidence, is immune from any liability, 9 civil or criminal, that otherwise might be incurred 10 or imposed." 11 THE COURT: So you would say that this reaches 12 all of the -- certainly all of the staff who are 13 affiliated with Florida Hospital? 14 MS. MARSHALL: This is -- yeah, and this is 15 what was sent -- this letter was what was faxed to 16 DCF, and any statements made by any employee at 17 Florida Hospital, they were participating in the 18 making of a DCF report. That was solely their -- 19 their participation in publishing any of these notes 20 or letters were to either Sunbelt in furtherance of 21 making a report under 415 or in making that 22 publication directly to DCFS. 23 And then lastly, again, the statements 24 themselves have to be a false statement that would 25 cause them to be seen in a negative light. And the 2355 1 parts of this that they have complained upon are 2 pure opinion regarding the care that was provided by 3 Mr. Destefano. I believe that that's all I have for 4 Florida Hospital. 5 The next one is as -- 6 THE COURT: Mr. Osborne, I'll give you just 30 7 seconds to respond to that, if you'd like to. 8 MR. OSBORNE: Thank you, Your Honor. Judge, 9 you are correct, Chapter 515 only refers to calling 10 the Central Abuse Hotline. Anything that is found 11 in the doctor's to whom it may concern letter or any 12 of the charting is not within that particular 13 standard. That's under common law, and that's what 14 we're dealing with on those. 15 And, certainly, Dr. Steely's letter, he didn't 16 know where it was going. He just said to whom it 17 may concern when he did that, and I would contend 18 that the contents in there echo what Rachel Bean 19 says, and they are false and they are defamatory. 20 Thank you. 21 THE COURT: Before you go on, I guess with 22 respect to -- some of these I'm going to rule as we 23 go along. On Florida Hospital's motion for directed 24 verdict, I'm going to grant that motion finding that 25 there is no evidence of battery here by any of the 2356 1 agents or employees of Florida Hospital; that there 2 are -- there's insufficient evidence of a 3 conspiracy. 4 The first problem with that is it was not 5 properly pled. Second, the statements that are 6 attributed to these agents are not in and of 7 themselves defamatory. And in any event, the 8 privilege, which either arises statutorily or by 9 common law, is not overcome here either by the 10 greater weight of the evidence or certainly not by 11 clear and convincing evidence. So with respect to 12 that entity, I would grant your motion. What else? 13 MS. MARSHALL: Thank you, Your Honor. The 14 next one is Sunbelt Health Care Centers, Inc., and 15 that is doing business as Adventist Care Centers. 16 That is the parent company of Rollins Bedford 17 Corporation. 18 There has been a lot of discussion about where 19 is Rachel Bean employed, and I believe that the 20 evidence and the only evidence that was submitted on 21 that issue was that her paycheck stub comes from 22 Sunbelt Health Care Centers, Inc., doing business as 23 Adventist Care Centers. 24 THE COURT: The pay in benefits covered by 25 SHCC d/b/a Adventist, and then there's some kind of 2357 1 reimbursement by Rollins Bedford. 2 MS. MARSHALL: That's correct. 3 THE COURT: That was the testimony, I believe. 4 Was it Fetters that said that? 5 MS. MARSHALL: I believe that came from 6 Ms. Fetters as well as from Chuck Sherer. 7 THE COURT: Yeah. 8 MS. MARSHALL: But the important -- 9 THE COURT: And is that the only connection 10 between those entities that the evidence 11 demonstrated? 12 MS. MARSHALL: I believe that that's the only 13 evidence as to the connection between Rachel Bean 14 and Sunbelt Health Care Centers, Inc., correct, so 15 that they -- can they be held liable for her acts? 16 Mary Thornton, Carol Boze are just staff nurses. I 17 don't think that there's been any kind of suggestion 18 that -- they're not employees of Rollins Bedford. 19 But the question is not where your paycheck 20 comes from but who is the agent and who is the 21 principal. Who is the master? Who is the servant? 22 And there hasn't been any testimony other than that 23 Bean worked at this facility over on Bedford Street. 24 THE COURT: Do you mind -- I kept a very close 25 eye on this issue. I'd like to hear from 2358 1 Mr. Osborne on this. 2 MR. OSBORNE: Judge, there are actually two 3 pieces of evidence on this issue. One is the W-2 4 which indicated that SHCC was the employer of both 5 Mr. Sherer and Ms. Bean, but there was also the 6 letter that Chuck Sherer wrote. And this is in 7 evidence as Plaintiff's 16. He wrote to Ivanhoe 8 Maldonado. 9 This is in response to your Rachel Bean and 10 Mary Emory. Rachel was considered a corporate 11 employee. And that's SHCC, Judge. That's the 12 corporation he's talking about. Now, that is direct 13 evidence that she was an employee of the 14 corporation, and he referred to corporate at SHCC 15 several times during his testimony. So there is 16 direct evidence that she was an employee of the 17 corporation and not of Rollins Bedford. 18 MS. MARSHALL: May I respond briefly, Your 19 Honor? As I was saying, the test is not whether 20 there is a label of employee. The test -- if I may 21 approach the bench -- the test is whether there is 22 control and whether the master has the ability and 23 the authority to direct and control the pertinent 24 acts of the employee. 25 And it says in this case that you don't -- 2359 1 just because you're labeled as an employee, there's 2 not strict liability that the employer is in all 3 instances liable for the acts of its, quote, 4 Employees. 5 The question for tort liability and imposing 6 vicarious liability on a principal or a master is 7 whether or not there is sufficient enough control by 8 the master, by the, I guess, what's loosely employer 9 in order to fairly hold them liable for the acts of 10 the servants -- for the acts of the servants. And 11 simply producing evidence of a paycheck without any 12 evidence whatsoever as to control by Sunbelt Health 13 Care Centers, Inc., over the acts of the employees 14 or the individuals that we're talking about is not 15 sufficient to meet their burden of proof or the 16 burden at this stage of the game. 17 MR. OSBORNE: Judge, I do have one more piece 18 of evidence I forgot to tell you about, if you don't 19 mind. 20 THE COURT: Okay. 21 MR. OSBORNE: Judge, if we're talking about 22 control, Chuck Sherer testified that Michelle 23 Fetters, who's president of SHCC, terminated Rachel 24 Bean. And if that's not control, that's the 25 ultimate act of control that a corporation can have 2360 1 is firing somebody, and that's the testimony, and 2 that's in the evidence, and I think the Court 3 probably remembers that. 4 THE COURT: The motion for directed verdict as 5 to Sunbelt Health Care Centers, Inc., is granted. 6 Let's hear about SHCC Services, Inc. 7 MS. MARSHALL: Your Honor, as to SHCC 8 Services, Inc., the only evidence that has been 9 presented is that that entity processes the payroll 10 for the staff nurses at Rollins Bedford Corporation. 11 I think the testimony was that they don't have any 12 offices. They don't have any employees. They are 13 simply a company that performs services for some of 14 its sister companies. And that in and of itself is 15 insufficient to show any kind of control by SHCC 16 Services over any of the individual nurses at 17 Rollins Bedford. 18 THE COURT: Mr. Osborne? 19 MR. OSBORNE: Judge, there was testimony from 20 Tamara Trimble that SHCC Services, Inc., provides 21 employees to Rollins Bedford. 22 THE COURT: Your motion as to SHCC Services, 23 Inc., is granted. 24 MS. MARSHALL: Your Honor, our next motion is 25 as to the battery claim. Your Honor, as to the 2361 1 battery claim, there's, I think, a couple of 2 important things going on here. First, there has 3 been no evidence of an intentional tort being 4 committed. There's no evidence as to harmful or 5 offensive conduct. There is no evidence as to any 6 damages that resulted from that conduct. And this 7 is the cause of action of Mrs. Destefano. It's 8 not -- damage to Mr. Destefano doesn't count. 9 There is no identification of who, what, when, 10 where, how. We don't even know who the alleged 11 batterer is. And I think that the case law, and 12 specifically the Kelly versus Kinsey case and the 13 Neilson case, suggest that it is not proper to use 14 expert testimony to try to fill in where you don't 15 have any facts to support your cause of action. 16 In other words, I think what these cases say 17 is not permissible is to take an expert opinion or 18 inference, which in this case the inference is that 19 Stuart James testified that I can -- this blood 20 stain was easily duplicated by artificial means, and 21 that just begs the question of where did it come 22 from. 23 And I have the -- for the Court's 24 consideration, if you would like to see it, the 25 rough draft of his testimony because I think it's 2362 1 very important to see what he actually testified to. 2 Mr. Osborne tried to get him to say that it was his 3 opinion that -- let me just get the right page 4 number. I'm sorry. I believe it's at page 51, 5 which is actually on -- okay. It's actually on page 6 60 which is redirect. 7 And the question is asked: And you also have 8 the opinion, that is, based upon your training, 9 experience and the experiments that you did, that 10 this particular pristine blood stain was created 11 artificially and not naturally, correct? And the 12 answer is, which I think is very -- Mr. Osborne 13 wanted him to say that so bad, but Stuart James 14 says, well, based on my experiments, it's easily 15 duplicated artificially. 16 And on cross-examination, he admitted that 17 isn't it true that you do not have an opinion about 18 whether or not these stains were a result of a 19 naturally occurring event or not? Your testimony is 20 limited to what you've been able to do mechanically 21 to get a stain that's similar in appearance to the 22 one that's on the bed pad? Answer: That's what I 23 did, yes. 24 And I said: So it's true that you don't have 25 an opinion about whether or not these stains are a 2363 1 result of a naturally occurring event? He says yes. 2 And the significance of that, Your Honor, is I 3 think it's building inference upon inference. The 4 first inference is, well, I can create it by 5 artificial means, and then it's taken to the next 6 step is because I can create it by artificial means; 7 therefore, it must be planted. And the only time 8 you're not permitted to do that under -- I think the 9 case law that I -- that I cited, unless your very 10 first inference, which in this case is that they 11 can, you know, that is it similar in appearance or 12 they can create it by artificial means, only if that 13 is to the exclusion of all other possibilities. 14 So when you're starting from this kind of 15 expert building inference on inference to try to put 16 together your cause of action when you don't have 17 any facts, the only way that you can do that is when 18 you have an inference to start with that you can 19 exclude all other possibilities. 20 And Stuart James clearly testified that that 21 was not what his opinion was. And that I think he 22 admitted on a question from the jury that it could 23 have been from a bloody heel. So he has not 24 excluded all other possibilities. It's just an 25 opinion or a statement that he can duplicate the 2364 1 stain, and they can't build their cause of action on 2 that expert testimony without any other facts to 3 support or to set forth the battery itself. 4 THE COURT: Mr. Osborne? 5 MR. OSBORNE: Judge, I'd like to direct you to 6 page -- to another section of Stuart James' 7 testimony starting at page 67 where I asked him: 8 "Do you have an opinion as to whether or not 9 you said this was an elongated passive blood stain, 10 correct, whether or not that elongated passive blood 11 stain is consistent with drainage of blood from the 12 rectum of an individual lying on the bed pad?" 13 And he says: "Based on my work, it is not 14 consistent for the reasons I've stated. Again, I 15 wasn't there. 16 "Question: What do you mean you weren't 17 there? 18 "Answer: I wasn't there so I can't be 19 definitive. 20 "Question: You can't say a hundred percent? 21 To say a hundred percent, you'd have to be there to 22 see it? 23 "Answer: Right. When I said no opinion, you 24 have to take my findings with others, the findings 25 of others to get a total picture here. I'm only 2365 1 providing you part of the data. 2 "Question: But is your finding, your opinion 3 that this blood stain is not consistent with blood 4 coming from the rectum of an individual lying on a 5 bed, based upon reasonable scientific probability 6 based upon your training and experience? 7 "Answer: In my opinion, yes. 8 "Question: So what you're saying is that you 9 have to get the whole picture. You have to look at 10 the medical evidence to see if there is any source 11 of bleeding, correct? That's the bottom line, take 12 the two of those together? 13 "Answer: Correct. 14 "Question: And your other opinion -- so the 15 one opinion is that within reasonable scientific 16 probability this blood stain did not come from the 17 rectum of an individual lying in a bed? 18 "Answer: Correct. Based upon my experience 19 and based upon this experiment, it's inconsistent 20 with rectal bleeding or from that particular 21 source." 22 Then I said, "So when you get rectal bleeding, 23 it's a different pattern? He says yes, and we go 24 through that a little bit. And then I asked him at 25 page 60: "You also have the opinion, based upon 2366 1 your training, experience and the experiments you 2 did, that this particular pristine blood stain was 3 created artificially and not naturally?" And he 4 says yes. 5 Judge, the fact of this case is there are 6 circumstantial evidence. We don't have a witness 7 that saw anybody create the blood stain. We have 8 circumstantial evidence. Rachel Bean tells DCFS 9 that there was bright red blood -- this is at 10 12:09 -- on the pad. The son was present at the 11 time. 12 She also says that -- tells DCFS that Carolina 13 was medically checked out and found to be bleeding 14 from her rectal area. She says at 12:09 it is 15 suspected that the son disimpacted her, his mother, 16 this morning causing bleeding from her hemorrhoid. 17 Of course, there was no hemorrhoid. 18 She says at 4:12, she revs up her case a 19 little bit, and says that he was kissing her 20 passionately when the staff entered the room and 21 surprised him and he stopped. Later blood was found 22 on the underpad, which she complained as being 23 caused by him -- his disimpacting her on a weekly 24 basis. 25 The point, Judge, is this, in terms of the 2367 1 issue of the blood; and that is, that the blood in 2 the bed pad has been stipulated to be that of 3 Carolina Destefano. Dr. Black, Wilson and Brennan 4 examined Carolina Destefano and found no source of 5 bleeding from a natural occurrence. That would 6 leave only an artificial occurrence as being a 7 natural -- the natural basis for that. 8 But Bean and Thornton testified that they saw 9 no visible source of bleeding, and we've got Stuart 10 James, who said the most likely source of the 11 bleeding or cause of the blood was artificial 12 application by a syringe without needle or pipette. 13 And there's no medical device or procedure in 14 evidence that would explain any blood stain of 15 Carolina Destefano, so the only inference one can 16 draw, particularly since Carolina Destefano was 17 under the exclusive control of these defendants, is 18 that someone -- and I'm going to suggest that the 19 inference is Rachel Bean, since she's making all 20 these statements -- drew blood from Carolina 21 Destefano and created this blood stain in an effort 22 to get her removed from the facility. 23 They needed a medical reason to remove her 24 from Sunbelt nursing. Larry Destefano testified I'm 25 going -- I've gotten rid of you, and I'm going to 2368 1 get your mother the hell out of here, and that's 2 what she was doing. 3 So there is a clear inference, and certainly 4 what all Stuart James was doing was he was 5 confirming what the medical evidence already is 6 based on his experience as a blood stain analyst 7 that when he sees blood coming from a rectum under a 8 body, it pools, tends to conform and saturate to the 9 shape of the body. That's everything there to 10 assist the jury in that regard, and that the only 11 inference you can draw if it wasn't factually 12 occurring, is it was artificially occurring, and 13 somebody had to do it. And the only people that had 14 control of her really were Rachel Bean and Mary 15 Thornton after Larry Destefano was trespassed. 16 MS. MARSHALL: Briefly, Your Honor. The error 17 of Mr. Osborne's logic is if you find no rectal 18 bleeding, that does not equal planting of blood 19 through a syringe. What Mr. Osborne is arguing is 20 the expert says no rectal bleeding or this isn't 21 consistent -- this blood stain isn't consistent with 22 rectal bleeding. Records say no rectal bleeding. 23 And you can't from that testimony then draw the -- 24 unless that testimony is no rectal bleeding; 25 therefore, syringe, that is not a logical step. 2369 1 If he could say if it's not rectal bleeding, 2 then to the exclusion of all other possibilities 3 it's a syringe, if that was the testimony, then you 4 might be able to make that inference. But from the 5 no rectal bleeding, you do not get to they've 6 established their different elements for a battery. 7 They've alleged in their complaint that one or 8 more of the employees, agents or representatives of 9 Sunbelt without authorization or consent took blood 10 from the decedent through the use of a syringe for 11 the purpose of planting her blood on the bed pad. 12 And the only evidence that they have on that is this 13 blood spatter expert who can't exclude everything 14 else. He can't go from the logical -- he can't go 15 from this is inconsistent to rectal bleeding; 16 therefore, it must be a blood from a syringe. 17 That's not his testimony. In fact, he says there 18 are other possibilities of a naturally occurring 19 event. 20 So that cannot form the foundation for their 21 battery claim. They are -- a battery claim consists 22 of harmful or offensive conduct, no evidence of 23 that, intent to cause such contact or the 24 apprehension that such contact is imminent and 25 damages that result. 2370 1 They have not produced anything that would 2 show all of those elements that are necessary to 3 prove a battery. And the inference that they want 4 drawn from this expert testimony is insignificant, I 5 think, under the cases that we've cited you to. 6 THE COURT: Motion for directed verdict on the 7 battery claim is granted. What do we have next? 8 MS. MARSHALL: Your Honor, the next one is on 9 the conspiracy claim. 10 MR. TOWNSEND: Your Honor, we have a very 11 similar motion on the conspiracy claim also. I 12 don't know if you want to hear them both together. 13 I think they'll be very similar arguments. 14 May I then approach the bench? I'd like to 15 file our motion for directed verdict and a 16 memorandum of law, and I have a bench copy for the 17 Court. 18 THE COURT: Are these the original motions for 19 directed verdict that you gave me? This is an 20 original from you. 21 MR. TOWNSEND: Mine is. 22 THE COURT: Somebody going to argue? 23 MR. TOWNSEND: I was just going to tag on, but 24 I'm happy to go first if you want me to. 25 MS. MARSHALL: Yeah, why don't you go first. 2371 1 I thought that's what you were doing. I'm sorry. 2 MR. TOWNSEND: Catch your breath. Your Honor, 3 Orlando Regional Healthcare System moves for 4 directed verdict on the civil conspiracy count. The 5 undisputed facts show no liability exists on the 6 part of defendant ORHS, and the facts are undisputed 7 as shown by the evidence, and there is no room for a 8 difference of opinion between reasonable persons as 9 to the facts established by the evidence nor as to 10 the inferences that might be drawn from those facts. 11 And no evidence has been presented by the plaintiff 12 on which the jury could lawfully find a verdict on 13 Count V for civil conspiracy. 14 As has been pointed out, the conspiracy claim 15 is in Count V of the complaint. And paragraph 49 16 specifically alleges that defendant, 17 Adventist/Sunbelt, is continuing an effort to cover 18 up their own negligence and to retaliate against and 19 to discredit the plaintiff -- I think there's a 20 typo, it says mostly -- maliciously conspired with 21 defendant ORHS to defame the plaintiff by accusing 22 him of being a sexual predator. 23 It is our position that the plaintiff has 24 submitted no evidence of any alleged conspiracy 25 between Kelly Pipkin Gregg or Lillian Folley and 2372 1 Rachel Bean or anyone else. The focus of the 2 evidence has been regarding conversations allegedly 3 between Kelly Pipkin Gregg and some unknown nurse at 4 the nursing home who gave report. 5 The testimony was they discussed the 6 transferring facility to call report to the 7 receiving facility, and Kelly Pipkin Gregg received 8 that report and made entries in the chart 9 accordingly regarding the history given to her in 10 that report. 11 The other alleged evidence of conspiracy, if 12 you will, would be the conversation between Lillian 13 Folley and Rachel Bean which was -- occurred when 14 Lillian Folley called Rachel Bean and to assist in 15 placement of Mrs. Destefano after it was determined 16 that she needed to be discharged and Florida 17 Hospital was refusing to take her back. 18 Conspiracy cannot be based on mere 19 speculation. No conspiracy took place between Kelly 20 Pipkin Gregg and Rachel Bean, and no conspiracy took 21 place between Lillian Folley and Rachel Bean, and 22 there is no proof of any such conspiracy. 23 The evidence presented is merely that this 24 report of this unnamed nurse at 1:00 and the 25 conversation between Lillian Folley and Rachel Bean, 2373 1 that somehow a conspiracy occurred in those 2 conversations. Some proof of knowledge of 3 conspiracy and participation in and by the alleged 4 tort feasor must be shown in order to survive 5 motions for summary judgment with regard to 6 conspiracy. That's Menendez versus Beach Acceptance 7 at 531 So.2d 178, a Florida 3rd District case, 1988. 8 Probably the most -- the case most closely on 9 point is Rami versus Furlong at 702 So.2d 1273, 10 another Florida 3rd DCA case 1997. That was a 11 nonjury equitable action in which there was a will 12 contest, and there was a claim for civil conspiracy 13 in that to deprive the decedent of her money and 14 assets during her lifetime through undue influence 15 and/or breach of fiduciary duty. 16 The plaintiff in that case was the decedent's 17 daughter, and her whole proof of the conception of 18 the conspiracy was a telephone conversation between 19 two of the alleged conspirators that one of them 20 would contact the decedent to render assistance to 21 her after her late husband's death. The lower court 22 found that there had been a conspiracy. That ruling 23 was reversed on appeal based upon a determination 24 that the lower court's finding was not supported by 25 competent substantial evidence. 2374 1 The appellate court noted that the two alleged 2 conspirators were the only parties privy to the 3 telephone conversation, and the plaintiff had no 4 direct proof of any agreement to use undue influence 5 to deprive the decedent of her assets. The 6 appellate court stated that the circumstantial 7 evidence could only be used to prove a conspiracy, 8 quote, When the inference sought to be created by 9 such circumstantial evidence outweighs all 10 reasonable inferences to the contrary. That's kind 11 of similar to the inference on inference argument 12 that Ms. Marshall just made on the battery claim. 13 The appellate court went on to state that it 14 cannot be said that the inference of conspiracy 15 outweighed all reasonable inferences to the 16 contrary. For instance, in that case, the sole 17 reason for the telephone conversation was the 18 concern for the well-being of the elderly widow. 19 The finding of the formation of a conspiracy during 20 this telephone conversation would be pure 21 speculation at best and insufficient to sustain the 22 civil judgment. That's at page 1285 of Rami. 23 Just as in Rami, the sole evidence that's been 24 presented in this case of any alleged conspiracy are 25 telephone conversations between Kelly Pipkin Gregg 2375 1 and this unnamed nurse and Rachel Bean. There's no 2 other evidence presented of a conspiracy. 3 The plaintiff is asking the Court to infer the 4 existence of this conspiracy between two competing 5 healthcare systems, between individuals who 6 testified they never met each other and hardly, as 7 to Rachel, I mean, Kelly Pipkin and Lillian Folley, 8 hardly knew each other. 9 The telephone conversations from which the 10 Court is asked to infer the existence of the 11 conspiracy are the type that are routinely made in 12 this situation; that is, the first telephone 13 conversation was for report, so that there is no 14 written -- there is a perfectly good reason for that 15 telephone conversation. 16 The second telephone conversation was for the 17 purpose of finding a way to place Mrs. Destefano 18 after she was discharged from ORHS. Lillian Folley 19 is a healthcare provider or a case manager, and she 20 was attempting to facilitate this transfer of 21 Carolina Destefano back to the nursing home. 22 This is -- the inference they're asking the 23 Court to make continues on that these nurses would 24 risk their nursing licenses and their jobs and 25 possible criminal prosecution at ORHS, as an 2376 1 example, to help nurses that they didn't know at the 2 nursing home in furtherance of some sort of an 3 attempt to violate Mr. Destefano in some way. And 4 this would be to protect a competitor from alleged 5 AHCA violation, possible malpractice suit or 6 picketing by Mr. Destefano. 7 Those things would not even have involved ORHS 8 even if they had been possibilities. So there's no 9 basis for believing that these nurses would have 10 conspired to protect those interests. And as I 11 pointed out in the Rami case, the conspiracy can 12 only be inferred from circumstantial evidence if 13 inference outweighs all other reasonable inferences. 14 So for that reason we believe that ORHS should be 15 entitled to a direct verdict on the issue of 16 conspiracy. 17 THE COURT: Ms. Marshall, you want to add 18 anything to that? 19 MS. MARSHALL: No. We would just join in 20 that. I think that we have -- we would cite to the 21 same cases and make the same argument, Your Honor. 22 THE COURT: Mr. Osborne? 23 MR. OSBORNE: Judge, the evidence is 24 undisputed that when Lillian Folley on the tape told 25 the security folks that Mr. Destefano was lying on 2377 1 top of his mother, the only source of that 2 information was Rachel Bean. She did not see that. 3 Kelly Pipkin did not see that. And I think that 4 there's no question that she was republishing the 5 very defamation that had started over at Sunbelt. 6 And I think that is the only inference one can draw 7 from that because there's no basis whatsoever for 8 what occurred at ORHS to support anything else. 9 She took Rachel Bean's statement, made it her 10 own and said this was happening here before her very 11 eyes, and I think that's -- 12 THE COURT: But does that constitute a 13 conspiracy? 14 MR. OSBORNE: I think there is a tacit 15 agreement there, Judge, that -- Judge, we don't 16 have -- nobody's going to come forward and say we 17 have this agreement. I think you can draw an 18 inference from that given the circumstance that 19 that's the only source of information that she had. 20 THE COURT: Well, maybe that's something else, 21 but is that a conspiracy? 22 MR. OSBORNE: She took an overt act, after 23 talking to Rachel Bean, an overt act in furtherance 24 of the conspiracy by telling the security people 25 that that act occurred at ORHS when it, in fact, had 2378 1 not occurred. It had occurred allegedly at Sunbelt, 2 and she used Rachel Bean's statement and adopted it 3 as her own. 4 THE COURT: Okay. Who's going to respond to 5 that? 6 MR. TOWNSEND: Your Honor, the issue is not 7 what she said. The issue is, is there evidence of a 8 conspiracy, and they're trying to make an inference 9 here, and that inference under the Rami case does 10 not outweigh all the reasonable inferences of what 11 took place in those telephone calls. 12 They're just trying -- it's an issue where 13 they're trying to say they don't believe what she -- 14 what she says she saw; therefore, it has to be a 15 conspiracy, but there is no evidence of a 16 conspiracy. 17 THE COURT: Well, Mr. Osborne says that 18 Folley, the only way she would have known about the 19 lying on top of is from Bean, so from that he 20 extrapolated to a conspiracy, an agreement to 21 perpetuate this information. 22 MR. TOWNSEND: That's an inference, and 23 it's -- it can't be used, unless it's to the 24 exclusion of all other reasonable inferences of what 25 happened in that telephone call. The conspiracy 2379 1 allegedly took place during the telephone call, and 2 there had to be an agreement between Lillian Folley 3 and Rachel Bean, that didn't even know each other, 4 that says, yeah, I'll back you up and I'll put 5 something false in our records. 6 It has to be an agreement between two or more 7 parties to perform an unlawful act or to perform a 8 lawful act by unlawful means, and there's just no 9 evidence of any agreement here. 10 MS. MARSHALL: And if I just may add one 11 thing, Your Honor, what Mr. Osborne argued is that 12 Lillian Folley heard this statement from Rachel Bean 13 and then adopted it as her own. That's not a 14 conspiracy. Even if she did exactly what 15 Mr. Osborne said, got something planted in her ear 16 about that lying in bed and adopted that statement 17 of her own, that is not a conspiracy between Rachel 18 Bean and Lillian -- and Lillian Folley. So as I 19 think Mr. Townsend argued, that is not an inference 20 that outweighs all other reasonable inferences to 21 the contrary. 22 THE COURT: I guess I want to read your -- I 23 want to read the Rami case, and I'll take a look at 24 that tonight and let you know how I'm going to rule 25 on this one tomorrow. 2380 1 What else do you have? 2 MS. MARSHALL: Your Honor, the second to last 3 motion that we have is on a qualified partial 4 directed verdict as to the issue of qualified 5 privilege. If you recall, ORHS had moved earlier 6 for motion for partial summary judgment as to the 7 existence of the qualified privilege, which, of 8 course, can be defeated under certain circumstances, 9 if there is a finding of malice. 10 And we believe that Rollins Bedford is 11 entitled -- entitled to the same qualified 12 privilege. There is -- I don't think that there's 13 been any testimony that any of these statements have 14 been published to anyone outside of other medical 15 providers, DCFS, and the police department, and in 16 the medical records of Rollins Bedford themselves. 17 Therefore, I think as a matter of law, they are 18 entitled at least at this stage to a qualified 19 privilege unless and until the plaintiffs can rebut 20 that. 21 THE COURT: Mr. Osborne? 22 MR. OSBORNE: Judge, I think we need to 23 separate, first of all, the privilege is different 24 depending on who you report to. You know, whether 25 it's DCFS, that's different than if you -- 2381 1 THE COURT: At a minimum, there's a common law 2 qualified privilege. 3 MR. OSBORNE: I think they're entitled to a 4 jury instruction on that, but -- 5 THE COURT: So you don't dispute that Rollins 6 Bedford -- the communications by Rollins Bedford 7 were within the medical community to DCFS and to OPD 8 and a qualified privilege, whether that's statutory 9 to be overcome by clear and convincing evidence or 10 it's a common law privilege to be overcome by some 11 other -- by some other standard exists? 12 MR. OSBORNE: I think it's a jury issue. I 13 think it does exist. Judge, not an issue -- 14 THE COURT: Whether it's overcome is a jury 15 issue, but the privilege exists? 16 MR. OSBORNE: I agree. 17 THE COURT: So you have no opposition to -- 18 MR. OSBORNE: But, Judge, I don't know what 19 they're asking for here. I mean -- 20 THE COURT: I think she's asking for a finding 21 from the Court that the communications in this case 22 were made within this area of protection, if you 23 will; i.e., all of the communications were cloaked 24 with a qualified privilege. 25 MR. OSBORNE: And we then have the -- the jury 2382 1 would decide whether or not that was done with the 2 proper motives, and that's not a part of this. 3 THE COURT: Whether malice has been 4 demonstrated such as to overcome the privilege. 5 MR. OSBORNE: I agree there was a privilege 6 under common law and under the statutes, under 415. 7 THE COURT: Motion then is granted. 8 MS. MARSHALL: Thank you, Your Honor. 9 THE COURT: That motion previously -- that 10 determination having previously been made as to 11 ORHS. 12 MR. TOWNSEND: Yes, ma'am, in summary 13 judgment. 14 THE COURT: Yes. And finally, Ms. Marshall? 15 MS. MARSHALL: Finally, Your Honor, we have a 16 motion for a directed verdict as to the punitive 17 damage claim. And I know that Your Honor is very 18 familiar with this issue because we've spent a lot 19 of time on it on the motion to amend -- if I may 20 approach -- to add punitive damages. 21 We have -- there is insufficient evidence for 22 a jury to find that Rachel Bean, Carol Boze or Mary 23 Thornton were managing agents of Rollins Bedford 24 Corporation. 25 THE COURT: I'm sorry. Start again, please. 2383 1 I missed those names. Say that -- give me that 2 laundry list again. 3 MS. MARSHALL: Okay. Our motion for directed 4 verdict as to the punitive damages -- 5 THE COURT: Yes, I got you. 6 MS. MARSHALL: -- is based on the fact there 7 is insufficient evidence to show that Rachel Bean, 8 Mary Thornton or Carol Boze themselves are managing 9 agents of Rollins Bedford Corporation first and 10 foremost. I mean, that's one way to get punitive 11 damages is to show that the bad actor itself, 12 herself, amself is a managing agent of the 13 corporation. That's one way you can hold the 14 corporation liable for the punitive damages. 15 THE COURT: Bean was the director of nursing. 16 MS. MARSHALL: She was director of nursing of 17 that facility. And there has been no -- what Tamara 18 Trimble testified was that Rollins Bedford 19 Corporation actually had several nursing homes, and 20 so there has been -- there were no question. There 21 was no evidence as to Rachel Bean's position within 22 the corporation. 23 We know what her position was as to that 24 facility, but there was no testimony brought out, 25 there were no questions asked as to what is her 2384 1 position vis-a-vis the big, you know, Rollins 2 Bedford Corporation as a corporation that owns 3 several different nursing home facility. So I don't 4 believe that they have sustained their burden to 5 show any evidence that Rachel Bean was a managing 6 agent of Rollins Bedford Corporation. 7 I think the Law Review or the Florida Bar 8 Journal article that we've cited to you makes it 9 clear that when you're talking about a managing 10 agent, and the cases that they cite, that it is 11 supposed to be a fairly limited number of people who 12 can be managing agents of a corporation. It is 13 supposed to be the upper echelon of the corporate 14 structure of the people who qualify for or that 15 would be considered a managing agent. 16 And I think that -- and this is in our memo at 17 page 8, and I think that these were some of the 18 cases that were relied upon in allowing the 19 plaintiffs to amend to state a claim for punitive 20 damage. The cases that, I believe, were cited -- 21 let me see if I can find it real quick. 22 The Winn-Dixie case and the Montgomery Ward 23 case, which I think the plaintiffs relied on heavily 24 in the motion to amend for punitive damages, if you 25 really look at what those cases held, there 2385 1 certainly were discussions of what is a managing -- 2 a managing agent. 3 And in the Winn-Dixie case, what they were 4 talking about was an assistant manager of a local 5 store. But the case didn't actually -- did not 6 actually hold that that assistant manager was, in 7 fact, a managing agent for the purpose of impuding 8 punitive damages to the -- to the corporation. 9 It has to be a person who is responsible for 10 making policy decisions on behalf of the defendant. 11 That is what a managing agent is, and that is 12 actually what the Florida Standard Jury Instruction 13 suggests that they have -- it has to be a person 14 responsible for making policy decisions on the 15 behalf of the defendant. 16 And I believe that the testimony that has been 17 brought out in the plaintiff's case has only been 18 certain duties and functions of Rachel Bean as to 19 the Sunbelt Subacute Center facility itself. 20 There's been no evidence, no testimony as to her 21 overall role within the corporation. And as such, I 22 don't think that they can say that she had any 23 policy-making decision on behalf of the defendant. 24 I think if you look at the case law that does 25 actually address who and who has not been considered 2386 1 to be a managing agent, presidents, chief executive 2 officers, members of the board of directors are 3 clearly managing agents. But there's the cases that 4 look at and have held who is not a managing agent 5 have identified people such as security officers, a 6 job foreman, a bank vice president, a manager who is 7 also an assistant vice president and a director of 8 future credit -- and this was in a banking case -- 9 were considered not to be managing agents. 10 In the Pier 66 versus Poolus case, the 4th DCA 11 held that acts committed by -- it was a sales 12 director, personnel director, president of the hotel 13 and the staff attorney for the corporation were not 14 sufficient -- they were not managing agents 15 sufficient enough to hold the corporate owner, 16 Phillips Petroleum, liable for the tortious acts of 17 those employees. 18 If you don't have Rachel Bean as a managing 19 director, then you have to find some independent 20 fault or negligence on the part of the corporation 21 itself in order to hold the corporation liable in 22 punitive damages for the intentional torts or 23 misconduct of their employees. 24 In this case, there has not been any evidence 25 sufficient to show that level of culpability on the 2387 1 part of Rollins Bedford. They have to show that the 2 employer itself actively and knowingly participated 3 in the conduct, and knowingly is important because 4 they would have had to have known that Rachel Bean 5 was lying in order for the corporation to be held 6 vicariously liable for punitive damages for the acts 7 of Rachel Bean. 8 The other way that they can get it is that if 9 they knowingly condoned -- again, knowingly 10 condoned, ratified or consented to such conduct. 11 And in order for it to be knowingly, they would have 12 had to have known that what Rachel Bean was saying 13 at the time was false, and there has been no 14 evidence that anybody at that level or the Rollins 15 Bedford itself condoned or ratified or participated 16 in any of the alleged false statements that were 17 made by Rachel Bean. Thank you, Your Honor. 18 THE COURT: With respect to the first part of 19 your argument, that is, that Rachel Bean did not 20 have the requisite authority to bind the 21 corporation, that motion -- your motion is denied. 22 That's -- I just don't believe that's appropriate 23 for a directed verdict. 24 I'm not sure whether you're asking me 25 separately to consider directing a verdict on your 2388 1 alternative theory, the alternative theory under the 2 law, which is active malfeasance by -- in support of 3 or in ratification of the conduct of a lower-echelon 4 employee. 5 MS. MARSHALL: Well, I believe that would be 6 relevant as to any acts of Carol Boze and Mary 7 Thornton. If you find that Rachel Bean for the 8 purposes of this -- 9 THE COURT: Yes. 10 MS. MARSHALL: -- is sufficient enough up in 11 the echelon to be a managing agent, that kind of 12 ends the inquiry as to Rachel Bean. But as to Carol 13 Boze and Mary Thornton, then they're not managing 14 agents. 15 THE COURT: Is this something that needs to be 16 resolved now or is this a charge conference issue? 17 MS. MARSHALL: Well, I think it's kind of both 18 because the way that the -- the way that the jury 19 instructions will be laid out does have a bearing on 20 what you find. 21 THE COURT: I don't think that it's 22 appropriate to grant your motion for directed 23 verdict on Bean's authority to bind the corporation 24 on her own, but with respect -- I guess I would hear 25 from Mr. Osborne with respect to the ratification or 2389 1 confirmation of any wrongful act by Thornton or 2 Boze. Is that hair splitting clear to you, 3 Mr. Osborne? 4 MR. OSBORNE: Let me try it. If you're 5 talking about Rachel Bean as a director of 6 nursing -- 7 THE COURT: No, I've denied their motion in 8 that respect. 9 MR. OSBORNE: I know, but I'm sort of 10 ratchet -- I don't mean by ratchet I'm going to take 11 her over. That's a Freudian slip. I'm going to 12 take her over to her ratification of the acts of 13 Mary Thornton and Carol Boze, and I think clearly 14 that she did that because there's evidence that she 15 orchestrated the actions of Carol Boze and directed 16 her to -- 17 THE COURT: So the ratification of the 18 wrongful conduct or the tortious conduct that you 19 think gives rise to punitive damages comes through 20 Bean? 21 MR. OSBORNE: And two others, Judge. Chuck 22 Sherer testified that Rachel Bean told them what she 23 was going to do. He agreed to that course of 24 action, and Michelle Fetters said you are doing 25 everything right, and she made no investigation into 2390 1 anything that was going on or with any of these 2 nurses, whether it was Boze, Thornton or Bean. That 3 was their testimony. 4 THE COURT: Uh-huh. The failure to conduct an 5 investigation you would say is tantamount to 6 ratification of this malfeasance. 7 MR. OSBORNE: It's also -- it's tantamount to 8 the -- a failure to investigate, if that's -- that's 9 what it is, Judge. It's not a ratification. It is 10 just -- it is negligence not to -- not to 11 investigate it. 12 THE COURT: Okay. 13 MR. OSBORNE: Let me see if I have anything 14 else on that issue. Judge, it is ratification 15 because they approved and adopted their acts by 16 accepting that as being gospel and not being forward 17 and looking into it. 18 THE COURT: I disagree with that. I don't 19 think that that -- that you can -- you can imply the 20 kind of wrongful conduct at the corporate management 21 level based upon what the evidence has shown those 22 two, Fetters and, I'm sorry, Chuck Sherer. 23 MR. OSBORNE: Chuck Sherer. 24 THE COURT: Sherer, Dr. Steely, Sherer. But I 25 guess I'd be interested in hearing from Ms. Marshall 2391 1 about the ratification -- their argument that Bean 2 ratified Thornton and Boze. 3 MS. MARSHALL: Well, I think that what the 4 statute, the punitive statute requires is either a 5 knowing participation and ratification, and to be 6 knowing, it would have to be with knowledge of its 7 falsity; or it requires under 468.72 sub (3)(C), it 8 requires gross negligence. 9 And, you know, obviously, if Rachel Bean is 10 deemed as a participant, then -- and from, you know, 11 and if the jury finds that she was, in fact, a 12 manager, then I think that that would be sufficient. 13 But if it's coming through, you know, Chuck Sherer 14 or anybody else, then I think that the knowing -- it 15 has to be knowing of its falsity. 16 THE COURT: I agree with that. And to the 17 extent that that constitutes an order directing a 18 verdict in that respect, I would say that the 19 evidence is not sufficient to create an issue for 20 the jury that Sherer or Fetters through their 21 conduct bound the corporation, that the basis on 22 which the jury can hear about punitive damages is 23 through Bean directly and then through Bean as a 24 manager ratifying the conduct of Thornton and Boze. 25 Is there anything else? 2392 1 MR. TOWNSEND: Yes, ma'am. ORHS has one more. 2 Your Honor, ORHS would move for directed verdict on 3 the defamation counts against it in the complaint. 4 That would be counts Roman numeral III and IV. 5 The plaintiff -- as you will recall, on 6 September 23rd, the Court -- of 2004 -- the Court 7 entered an order granting ORHS a partial summary 8 judgment regarding a qualified privilege, which then 9 shifts the burden over to the plaintiffs under Nodar 10 versus Galbredth, 462 So.2d 803, Supreme Court, 11 1984. 12 Once it is determined that a qualified 13 privilege exists, a further examination is necessary 14 to determine whether the speaker lost the privilege 15 because of express malice. This has been described 16 as ill will, hostility, evil intention to defame and 17 injure, where a person speaks upon a privileged 18 occasion, but the speaker is motivated more by a 19 desire to harm the person, defame than by a purpose 20 to protect the personal or social interest giving 21 rise to the privilege, then it can be said that 22 there was express malice and the privilege is 23 destroyed. 24 In Rakes -- that was a cite from Nodar or that 25 was a quote from Nodar but cited in Kay Publications 2393 1 versus Rakes. In Rakes, the Fifth District Court of 2 Appeals found that statements made in that case were 3 privileged, qualified privilege, and further found 4 that there's no showing of malice. The significance 5 of that was that the Fifth District in Rakes reached 6 that finding despite a jury verdict to the contrary 7 and reversed a judgment in favor of the plaintiffs. 8 Based upon the evidence introduced, there has 9 been no evidence that the medical record, that ORHS 10 ever republished any of this to anybody. The 11 alleged slanderous comments referred to in Count IV 12 are based solely upon statements by Kelly Pipkin 13 Gregg and Lillian Folley -- 14 THE COURT: Right. I don't think that's in 15 dispute. I don't think they went out and put it in 16 the newspaper. 17 MR. TOWNSEND: All right, Your Honor. The 18 bottom line is the end -- 19 THE COURT: So the privilege -- qualified 20 privilege exists. 21 MR. TOWNSEND: Yes, ma'am. And the case 22 law -- the evidence presented is that there is no 23 evidence that there was any sort of malice or any 24 intent to injure Mr. Destefano. The legitimate 25 purpose in this case was to protect the interest of 2394 1 a patient, Mrs. Destefano at that time, and the 2 other employees and patients of ORHS with regard to 3 possible inappropriate behavior. 4 The frame of mind of Lillian Folley at the 5 time was what she had heard had happened at Sunbelt. 6 She had no reason to disbelieve that. Kelly Pipkin 7 said she saw some inappropriate behavior. That was 8 her perception. Lillian Folley saw some 9 inappropriate behavior which was her perception. 10 In Nodar, the Court stated that strong, angry 11 or intemperate words do not alone show express 12 malice; rather, there must be a showing that the 13 speaker abused his privileged position to gratify 14 his malevolence. If the occasion of the 15 communication is privileged because of a proper 16 interest to be protected, and the defamer is 17 motivated by desire to protect that interest, he 18 does not forfeit the privilege merely because he 19 also in fact feels hostility or ill will toward the 20 plaintiff. The incidental gratification of personal 21 feelings of indignation is not sufficient to defeat 22 the privilege where the primary motivation is within 23 the scope of the privilege. 24 And I think it's clear that these -- that no 25 matter what they felt about it personally, the 2395 1 testimony has been they did what they did to protect 2 the interest of Mrs. Destefano. They called in 3 security, which was certainly an appropriate thing 4 to do. And, once again, strong, angry and 5 intemperate words do not alone show express malice 6 and do not overcome the privilege. 7 MR. OSBORNE: Judge, this is a jury issue, and 8 the standard jury instructions is what the jury is 9 going to hear. And the issue for the jury is 10 whether ORHS made the statements with improper 11 motives that diffuses that qualified privilege. One 12 makes a false statement about another with improper 13 motives if someone's primary goal is to gratify 14 one's ill will, hostility and intent to harm the 15 other rather than to advance or protect the interest 16 or duty to speak to OPD on that subject or to 17 protect the interest of Carolina Destefano. And 18 that's MI4.3D. That's what the law is. 19 And clearly, Mr. Townsend makes a good closing 20 argument, and I think the jury's entitled to hear 21 that, but what we have in evidence is we have 22 Lillian Folley, who admitted that the source of her 23 statement was Rachel Bean, and that this was -- and 24 she passed that off as being a statement made at 25 ORHS that he was seen lying on top of his mother 2396 1 there. And we have also in the record the sequence 2 of events that Kelly Pipkin did not report this to 3 the -- to Lillian Folley until after Rachel Bean had 4 called and talked to Lillian Folley. 5 So, Judge, I think there is ample evidence 6 here that the jury is entitled to hear arguments on 7 what the motives would be, but certainly it's not an 8 issue for a directed verdict. 9 THE COURT: This is the way I see it. I 10 disagree with your analysis in terms of your 11 allocation in the burden of proof. I think that 12 it's your burden to overcome the presumption or the 13 qualified privilege by a demonstration of malice, 14 but the cases that bother me are the cases that say 15 that you can impugn malice from the words 16 themselves. And when the words are such that they 17 are sufficiently -- and I don't recall now the 18 language in the case and I'm going to go back and 19 read these cases because what I'm going to do is 20 reserve. 21 When the language is such that it is so 22 humiliating and egregious and outrageous and so 23 forth that that is some evidence of malice, 24 imputation of malice, then it becomes a jury 25 question. So I want to read your case and your 2397 1 memo, and I'm going to reserve on this issue. I'm 2 going to go back and read those cases because I've 3 got some real reservations about what ORHS, whether 4 they need to stay in this case, but I have some 5 concerns about the instruction of those defamation 6 cases that I'm thinking of. 7 What I would like from all of you, less so I 8 guess from you, Mr. Townsend, because I'm reserving 9 on yours, so you're sort of in a pickle here. 10 You're not really sure what I'm going to do. But 11 Rollins Bedford and the plaintiff, I think I've 12 ruled on all your motions, haven't I? 13 MS. MARSHALL: Yes, Your Honor. 14 THE COURT: So I'd like to see a new set of 15 jury instructions from both of you tomorrow. 16 MS. MARSHALL: I'm sorry. You've reserved on 17 conspiracy. 18 THE COURT: Okay. Aside from conspiracy, 19 taking into account that may go either way, I would 20 like to see a new set of jury instructions from you 21 tomorrow. 22 MS. MARSHALL: Thank you, Your Honor. 23 THE COURT: Understand, Mr. Osborne? 24 MR. OSBORNE: Yes, Your Honor. 25 THE COURT: Is there anything else to take up 2398 1 before we adjourn for the evening? 2 MR. OSBORNE: When do you want these 3 instructions, morning or sometime tomorrow? 4 THE COURT: Well, is it -- 5 MR. OSBORNE: I've got to try to martial some 6 staff together is what I'm -- 7 THE COURT: I know. I understand if it's a 8 hardship and you need to get this stuff typed or put 9 together, so I don't mind if I could get it at noon. 10 MR. OSBORNE: Very good. 11 MS. MARSHALL: Your Honor, I have one other 12 issue. I'd like to -- I have the tapes, the 13 complete ones that we would like to put in tomorrow. 14 THE COURT: Where is that going to put us -- 15 that's going to take a lot of time? 16 MS. MARSHALL: Yes, Your Honor. How do you 17 want us to -- there's some materials that are on 18 there that are hearsay statements from -- 19 THE COURT: It's just going to be a tremendous 20 pain in the neck now. And believe me, I have sat 21 through all of those many hours of those things. 22 I'd like -- Mr. Osborne, I'd like for you to play 23 the edited version. If you can't agree to it, then 24 that's fine, I've sustained your objection, but 25 maybe you'll reconsider after looking at it. 2399 1 MR. OSBORNE: If I get a copy of it, I'll be 2 glad to look at it. 3 MS. MARSHALL: I'll give you our extra copy. 4 I think the other copy has already been marked. 5 THE COURT: Otherwise, you're just going to 6 put these people seriously to sleep. There's a 7 whole lot of stuff on there that's just, you know, I 8 just -- I just wonder whether you really are going 9 to be accomplishing what you want to accomplish by 10 making them play the whole thing. I don't know what 11 your choice is. 12 Clearly I sustained your objection. They can 13 play the whole thing, so if there's some 14 accommodation that can be made. So your question 15 was what do I want you to do about the hearsay on 16 those things? 17 MS. MARSHALL: Do we need to be posed to push 18 pause? 19 THE COURT: Just with that remote in hand. 20 MS. MARSHALL: Okay. I haven't gotten a lot 21 of practice with the remote so I'm not very quick 22 with it, so -- 23 THE COURT: Maybe you can get some help with 24 that. I don't know. Wow, that's going to be maybe 25 a lot of starting and stopping. Do you have any 2400 1 suggestions? 2 MS. MARSHALL: I mean, I know where they are 3 in there and I know when somebody appears that it's 4 one that I would have an objection on, but it is 5 going to be a little cumbersome. I mean, if 6 Mr. Osborne -- I can tell you with the excerpts 7 what, at least for the picketing, what we tried to 8 do is cut out any kind of dialogue between people 9 that were just driving along where they were 10 actually having a conversation. 11 THE COURT: The other thing -- 12 MS. MARSHALL: So it's mostly just 13 Mr. Destefano's voice other than, you know, a couple 14 of times. We would also be willing if he wants to 15 come back and address any -- 16 THE COURT: Sure. 17 MS. MARSHALL: -- deletions, obviously. 18 MR. OSBORNE: Judge, I'm seriously handicapped 19 by not knowing about and not seeing it. I will look 20 at it, but I'm not making any promises. 21 THE COURT: I'm not asking you for any 22 promises. I've sustained your objection. But 23 here's the thing. If you -- yeah, well, okay. If 24 you can get to it and come up with some compromise, 25 then that's fine; but otherwise, I think we're just 2401 1 going to have to start and stop the thing. 2 MS. MARSHALL: And just for Mr. Osborne, so 3 you know, the three that I would play are the 4 disorderly arrest, the one that was labeled 5 sprinkler/cop. This one didn't have a label, but it 6 starts out with Rachel Bean's car, and it has the 7 filming of the mailing of the letters at the end. 8 THE COURT: The Court is now in recess. 9 (The proceedings were recessed at 5:45 p.m.) 10 (Continued to Volume XVIII) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2402 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