2403 1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND 2 FOR ORANGE COUNTY, FLORIDA 3 LAWRENCE M. DESTEFANO, 4 Plaintiff, 5 vs. CASE NO.: 48-2000-CA-007265-O 6 ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE 7 CORPORATION; ADVENTIST HEALTH SYSTEM/SUNBELT, INC.: ROLLINS 8 BEDFORD CORPORATION, d/b/a Sunbelt Healthcare & Subacute 9 Center; SHCC SERVICES, INC., and ORLANDO REGIONAL 10 HEALTHCARE SYSTEM, INC., 11 Defendants. 12 ------------------------------------------------------ 13 VOLUME XVIII 14 The transcript of the proceedings held on 15 Thursday, October 27, 2005, beginning at 8:45 o'clock 16 a.m., at the Orange County Courthouse, Orlando, Florida, 17 Courtroom 19-D, before the Honorable Renee A. Roche, 18 Judge of the Circuit Court. 19 A P P E A R A N C E S: 20 WILLIAM G. OSBORNE, ESQUIRE 21 538 East Washington Street Orlando, Florida 32803 22 For the Plaintiff. 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2404 1 A P P E A R A N C E S: - CONT. 2 BRADLEY CONWAY, ESQUIRE 390 North Orange Avenue, Suite 3 Orlando, Florida 32801 4 For the Plaintiff. 5 TRACY MARSHALL, ATTORNEY and DYANA PETRO, ATTORNEY of 6 Gray Robinson, P.A. 301 East Pine Street, Suite 1400 7 Orlando, Florida 32801 8 For the Defendant/Adventist. 9 LARRY J. TOWNSEND, ESQUIRE and DAVID EVANS, ESQUIRE of 10 Mateer and Harbert, P.A. 225 East Robinson Street, Suite 500 11 Orlando, Florida 32801 12 For the Defendant/ORHS. 13 14 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2405 1 I N D E X - VOLUME 2 RULING ON DIRECTED VERDICT MOTIONS 2412 3 TESTIMONY OF DANIELLE DALEY 4 Direct Examination by Ms. Marshall 2416 Cross Examination by Mr. Osborne 2424 5 Redirect Examination by Ms. Marshall 2437 6 TESTIMONY OF ALEXA PARKER CLARK 7 Direct Examination by Ms. Marshall 2440 Cross Examination by Mr. Osborne 2461 8 Redirect Examination by Ms. Marshall 2468 9 TESTIMONY OF DR. WILLIAM ANDERSON 10 Direct Examination by Ms. Marshall 2471 Voir Dire Examination by Mr. Osborne 2478 11 Direct Examination by Ms. Marshall - Cont. 2481 Cross Examination by Mr. Osborne 2503 12 Redirect Examination by Ms. Marshall 2531 13 14 E X H I B I T S 15 Plaintiff's Exhibit No. 27 2511 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2406 1 THE COURT: Okay. Couple of things. The 2 first is that I guess I would ask the -- Deputy 3 Cordray indicates that apparently the Jury has sent 4 a message through him to the Court saying that they 5 all -- it's very important that they talk to me. 6 Of course, you know, I wasn't going to do that 7 without your consent. 8 It can either be that way, or if you would 9 consent to me going back there and at least finding 10 out what they wanted. It may be that they're 11 worried about going late tonight or going late 12 tomorrow night, I don't know, or we can ask them to 13 write it down and/or we can bring them in here. 14 What do you want to do? 15 MR. OSBORNE: Judge, I think perhaps the Jury 16 saw Mr. Destefano being taken away by the deputies 17 yesterday. He thinks they might have been in the 18 hallway when he was taken by four deputies in 19 handcuffs. 20 THE COURT: Well, what do you want me to do 21 here, Mr. Osborne? Do you want me to go back and 22 see what they want to talk to me about, and do I 23 have your permission to do that, to at least 24 investigate their concern and then advise you of 25 what that is to the best of my ability? You have CENTRAL FLORIDA REPORTERS, INC. 2407 1 no objection to that? 2 MR. OSBORNE: I have no objection to that, 3 Judge. 4 MS. MARSHALL: I have no objection to that. 5 Are you going to bring the court reporter? 6 THE COURT: No. Do you have any objection to 7 me going back there under those circumstances? 8 MS. MARSHALL: I have no objection. 9 MR. TOWNSEND: No objection, Your Honor. 10 THE COURT: Okay. Court will then be in brief 11 recess. 12 (Whereupon a brief recess was had.) 13 THE COURT: The only concern of the Jury is 14 when we're going to finish. And they just want to 15 know how they need to plan for next week, and I 16 told them -- Mr. Destefano, nice to see you this 17 morning. 18 MR. DESTEFANO: Nice to see you, Your Honor. 19 THE COURT: I told them that I had to be -- I 20 didn't expect to go next week. I didn't think that 21 was realistic and we hope they have -- and we 22 thought it was realistic to finish 23 today -- tomorrow, finish the Defense case. And 24 all we discussed was scheduling, nothing further at 25 all. CENTRAL FLORIDA REPORTERS, INC. 2408 1 MR. OSBORNE: Mr. Destefano does say that when 2 he came up the elevator yesterday at the end of 3 lunch, that the Jury was standing where they 4 usually stand up there and there were like eight 5 deputies. And Mr. Destefano says the Jury saw him 6 being handcuffed and taken away. 7 THE COURT: What are you asking me to do about 8 that, Mr. Osborne? 9 MR. OSBORNE: Judge, I'd like you to 10 individually voir dire the -- which is like we did 11 before, to see if they saw anything and it would -- 12 that would affect their judgment. 13 THE COURT: That's going to take so much time. 14 I have a problem doing that. What's your position? 15 MS. MARSHALL: Your Honor, well, my position 16 is the case should be dismissed with prejudice. I 17 have a motion and the case law that I've given 18 opposing counsel. I would like to present that to 19 the Court, if I may. 20 THE COURT: I need to read this. I don't have 21 time to read this. 22 MS. MARSHALL: I understand. 23 THE COURT: It's an extreme sanction. I'm not 24 going to do that without due and careful 25 consideration. I guess what I'm asking you is what CENTRAL FLORIDA REPORTERS, INC. 2409 1 you would like for me to do. What's your position 2 on Mr. Osborne's suggestion? 3 MS. MARSHALL: I don't mind you doing that. 4 From a scheduling standpoint, we have three 5 witnesses and then the videotapes. I'm not sure 6 what Mr. -- if we do the full version -- 7 THE COURT: Here's the -- 8 MS. MARSHALL: I think we're going to get done 9 today, though, no matter what. 10 THE COURT: My recommendation is bring them 11 all in here, ask them if any of them saw anything 12 yesterday involving any parties in this case or any 13 lawyers outside of this courtroom. And if they 14 did, if any of them say yes, then I will excuse 15 them and voir dire those individuals one at a time. 16 Because it's been reported to me that no one 17 observed this. So let's just see if any of them 18 say they saw it. 19 MR. OSBORNE: And I do have the copy of the 20 transcript if you'd like that the motion -- this is 21 what was said -- what I had typed up last night 22 about what was said by Mr. Destefano that's the 23 subject matter of this motion to -- 24 THE COURT: Oh, okay. 25 MS. MARSHALL: It's attached to the motion, CENTRAL FLORIDA REPORTERS, INC. 2410 1 too. 2 THE COURT: Okay. All right. Let's -- so 3 what we should do then is bring the Jury in, I'll 4 inquire, and then in a few minutes you'll be ready 5 to get started? 6 MS. MARSHALL: Correct, Your Honor. 7 THE COURT: Okay. Bring the Jury. 8 (Whereupon the Jury entered the courtroom.) 9 THE COURT: Be seated. Ladies and Gentlemen 10 of the Jury, thank you for your concern about the 11 scheduling. And I actually think we're doing 12 pretty well here on scheduling. And again, we all 13 hope to finish this trial on Friday. 14 Let me ask you all a different question. In 15 the course of the proceedings yesterday and during 16 your lunch break, did any of you have any 17 encounters at all or any observations at all of any 18 of the lawyers or litigants in this case? 19 Did any of you see anything involving any 20 party, Plaintiff, Plaintiff's counsel, Defense, 21 Defense counsel during your lunch break? 22 JUROR: Just when coming back in. 23 THE COURT: Just raise your hand and indicate. 24 Two? Anybody else? Okay. All right. I'm going 25 to ask all of you then to step out, except for you, CENTRAL FLORIDA REPORTERS, INC. 2411 1 ma'am, first and then you, sir, and we'll inquire. 2 (Whereupon the remainder of the Jury exited 3 the courtroom.) 4 THE COURT: Okay. Ma'am, you want to tell us 5 what you saw? 6 JUROR: I really don't think it was much of a 7 concern. I mean, it was just walking back into the 8 building and -- I'm sorry, I don't know his name. 9 MR. CONWAY: Mr. Conway. 10 JUROR: When I was coming through downstairs, 11 that was it. 12 THE COURT: You saw -- that is all you saw? 13 JUROR: Yeah, that's all I saw. 14 THE COURT: Any other questions of this juror? 15 MR. OSBORNE: No, ma'am. 16 THE COURT: Thank you. You're excused. Would 17 you bring the gentleman in the red shirt in, 18 please? Have a seat, sir. Do you want to tell us 19 what you saw here? 20 JUROR: All I saw yesterday was just the 21 Plaintiff's lawyers as we were all waiting 22 downstairs together, some of the members were in 23 the restroom. And I saw them coming through 24 talking. Didn't hear anything they were discussing 25 and -- but I did see them as we were departing. CENTRAL FLORIDA REPORTERS, INC. 2412 1 THE COURT: Is that all you saw? 2 JUROR: That is all I saw. I didn't see 3 anything else involved. 4 THE COURT: Any other questions? 5 MR. OSBORNE: No, Your Honor. 6 MS. MARSHALL: No, Your Honor. 7 THE COURT: All right, sir. You're excused. 8 (Whereupon the remaining Juror exited the 9 courtroom.) 10 THE COURT: Anything else on that? 11 MR. OSBORNE: No, Your Honor, I think you 12 covered it well. 13 MS. MARSHALL: No, Your Honor. 14 THE COURT: All right. Let me address one 15 thing, and that is the remaining Motion for 16 Directed Verdict on the conspiracy count. After 17 reviewing the case law and giving consideration to 18 the evidence that has been presented, the Court is 19 prepared to grant the Motion for Directed Verdict 20 on the conspiracy count and -- by both Defendants. 21 With respect to the Motion of the Defendant 22 ORHS for Directed Verdict on the defamation count, 23 that motion will be denied. Let's take a 24 five-minute restroom break and then we'll get 25 started. CENTRAL FLORIDA REPORTERS, INC. 2413 1 (Whereupon, there was had a recess from 9:05 2 o'clock a.m., to reconvene at 9:10 o'clock a.m.) 3 THE COURT: Please be seated. Nothing further 4 before we bring in the Jury? 5 MS. MARSHALL: No, Your Honor. 6 MR. OSBORNE: No, Your Honor. 7 MR. EVANS: Could we talk a little bit about 8 scheduling so that we'll know when the closings are 9 going to be? We had spoken yesterday afternoon 10 and -- among counsel, and we were hoping that we 11 would be able to start closings tomorrow instead 12 of, if we should finish a little earlier today, 13 splitting them up. 14 THE COURT: We're not going to split up 15 closings. 16 MR. EVANS: I'm sorry? 17 THE COURT: We're not going to split up 18 closings. The only way we would start closings 19 today is if the presentation of the evidence 20 concluded early enough in the afternoon if you 21 reasonably thought you could get it done by, you 22 know, 5:30, 6:00 o'clock, something like that. 23 So I'm not going to split up your closings. I 24 don't think that's appropriate. It doesn't give 25 them really the flavor of the whole case. CENTRAL FLORIDA REPORTERS, INC. 2414 1 MR. OSBORNE: And one other thought we had, 2 Judge, is that just -- I just learned now, as the 3 rest of us did, what the status of the parties are 4 in the DVs. And I would ask that we start at 9:00 5 o'clock, or whatever time tomorrow morning you want 6 to start regardless, because I need to prepare, I 7 think as other counsel do, given the status of the 8 pleadings we just now learned. And I think -- 9 given the fact that we will have time tomorrow, 10 just as a concession. 11 THE COURT: So regardless of when we finish 12 today, you'd ask to start tomorrow -- close 13 tomorrow? I think that's reasonable. I don't want 14 undue pressure on you. 15 MR. OSBORNE: Thank you. 16 MR. EVANS: Thank you, Your Honor. 17 MS. MARSHALL: Just also for scheduling, what 18 is your position on the -- we gave them the edited 19 version of the videotapes. 20 MR. OSBORNE: I do not agree that the edited 21 version -- and there are six tapes. We've got them 22 all here, and they should all be played if they 23 want to play them. 24 THE COURT: If we do all -- 25 MS. MARSHALL: All six of them, I don't know. CENTRAL FLORIDA REPORTERS, INC. 2415 1 THE COURT: No, she doesn't have to play all 2 six. 3 MS. MARSHALL: There's three of them that I 4 would want to play. 5 THE COURT: As long as they were on the list, 6 she can play whatever unedited portions she wants 7 to play, and then you can play whatever you'd like 8 to play. 9 MR. OSBORNE: All right, Judge. 10 THE COURT: We're not going to sit through all 11 six of them. 12 MS. MARSHALL: I think that'll take about two 13 hours with the three unedited ones that we wanted 14 to play. 15 THE COURT: And then do you have portions that 16 you would play in response? 17 MR. OSBORNE: No, Your Honor. 18 THE COURT: Okay. Do you think you might have 19 rebuttal testimony? 20 MR. OSBORNE: Not at this time. 21 THE COURT: Okay. All right. Well, that's 22 fine. If you change your mind, that's fine. And 23 it's still the position of ORHS that you do not 24 intend to call any witnesses? 25 MR. TOWNSEND: No, Your Honor. We would CENTRAL FLORIDA REPORTERS, INC. 2416 1 probably seek to publish some stipulations and some 2 Interrogatories. Other than that, no. 3 THE COURT: Okay. 4 MS. MARSHALL: That is one thing that we need 5 to do because we have stipulations that the parties 6 agreed to. And we do need to read those either 7 with the jury instructions or at the end of the 8 case. 9 THE COURT: Okay. Anything else? Bring in 10 the Jury, please. 11 (Whereupon the Jury entered the courtroom.) 12 THE COURT: Please be seated. Ladies and 13 Gentlemen of the Jury, the Plaintiff having rested, 14 at this point in time, it is now the opportunity -- 15 the Defense now has the opportunity to present 16 their case. And I would ask the Defense to call 17 their first witness. 18 MS. MARSHALL: We call Danielle Daley. 19 DANIELLE DALEY 20 having been first duly sworn testified as follows: 21 DIRECT EXAMINATION 22 BY MS. MARSHALL: 23 Q Good morning. 24 A Good morning. 25 Q Could you please state your name? CENTRAL FLORIDA REPORTERS, INC. 2417 1 A Danielle Daley. 2 Q And what is your occupation? 3 A I'm a licensed practical nurse. 4 Q Are you currently employed? 5 A Yes. 6 Q And where is that? 7 A Life Care of Orlando. 8 Q And have you worked in the past at Vitas? 9 A Yes, I did. 10 Q What is Vitas? 11 A It's a Hospice. It provides Hospice care for 12 patients. 13 Q And where, where did they physically operate 14 out of? 15 A I operated out of Winter Park Hospital. It 16 was a Hospice unit. 17 Q Okay. Did they -- what was the Vitas' -- did 18 they have any affiliation with the Winter Park Hospital? 19 A No, they leased space. 20 Q Okay. And how long did you work at Vitas? 21 A I worked for Vitas -- I don't remember exact 22 dates. Meaning specifically for just the unit or for 23 the entire time? I did more than just work at the unit, 24 you know, it was -- 25 Q Do you recall how long you were with that CENTRAL FLORIDA REPORTERS, INC. 2418 1 employer, just in general how long? 2 A I don't recall specifically. 3 Q Okay. 4 A It's too long ago, I'm sorry. 5 Q Were you there in November of 1999? 6 A Yes. 7 Q Okay. And when -- while you were there in 8 November of 1999, what were your job duties and 9 responsibilities? 10 A At that time I was on the unit, working at the 11 unit, basically it was kind of set up the same way as a 12 hospital floor would be set up. You had a certain 13 amount of patients that you took care of. It was set 14 up, like I said, the same way as a hospital floor would 15 be set up. 16 Q And did you take care of patients? 17 A Yes. 18 Q Okay. Do you remember Carolina Destefano? 19 A Yes, I do. 20 Q Okay. And did you take care of Carolina 21 Destefano? 22 A Yes, I did. 23 Q Do you remember how many days that she was in 24 Vitas? 25 A No, I don't remember exact days. CENTRAL FLORIDA REPORTERS, INC. 2419 1 Q Okay. Do you recognize Mr. Destefano? 2 A Yes, I do. 3 Q Okay. I'm going to show you what's already 4 been marked as Exhibit -- Defendant's Exhibit No. 1, if 5 you would take a moment to review. 6 THE COURT: Excuse us, Ms. Marshall, we have 7 to replenish our yellow pads here. 8 MS. MARSHALL: Oh, I'm sorry. 9 COURT DEPUTY: We need one more. 10 THE COURT: We'll call upstairs or downstairs 11 and have it brought over. Thank you, we got one. 12 BY MS. MARSHALL: 13 Q Are those the records from Vitas for 14 Mrs. Destefano? 15 A Yeah. 16 Q And do you recognize those documents? 17 A They look like typical notes that we use and 18 they have her name on it but, yeah. I recognize them, 19 yeah. 20 Q Okay. Does the note appear in your 21 handwriting with your signature, in-patient nursing note 22 dated November 9th, 1999? 23 A That's what I was looking for actually. 24 Q Let me just -- to speed things up, I think I 25 have it -- single page of it that's in the back. CENTRAL FLORIDA REPORTERS, INC. 2420 1 A Yeah, this is mine. Yes. 2 Q Now, do you remember -- I have it blown up for 3 the Jury. Do you remember caring for Mrs. Destefano 4 that day? 5 A I remember -- I remember caring for, you know, 6 Ms. -- you know, the patient. I remember this 7 situation, yes. 8 Q Okay. Can you tell us what you remember? 9 A Okay. I remember that, you know, there was a 10 video camera in the room. I remember coming into the 11 room. 12 Q Coming into Mrs. Destefano's room? 13 A Yeah, coming into the patient's room. The 14 son, you know, was laying in the bed with the patient. 15 The -- I had put the body language, you know, anger and 16 despair because of the way he was laying in the bed with 17 the patient. 18 Q Can you tell us how he was laying in bed with 19 the patient? 20 A It was in the way of almost what you would 21 describe as a fetal position beside the patient, 22 stroking her hair, and the video camera was taping him. 23 Q Did you know -- the video camera, do you know 24 whether it was on or not? 25 A The red light was flashing so I would assume CENTRAL FLORIDA REPORTERS, INC. 2421 1 that it was on, but can I say for 100 percent? No. 2 Q Okay. 3 A You know, he -- that was the body language 4 that I got when I spoke with him, so that's why I tried 5 to put it that way. 6 Q Did you say anything to Mr. Destefano upon 7 observing him in bed with his mother? 8 A No, I didn't speak of it. 9 Q And was there a reason for that? 10 A There was no reason simply because -- you 11 know, had it been -- you know, I wasn't going to say 12 anything to him about it. If that was the way he wanted 13 to handle his emotions then, you know, so be it. 14 Q Okay. Did -- in your line of working at 15 Hospice, was that an unusual situation? 16 A Yes. 17 Q Had you ever seen a grown man in bed with his 18 mother in -- while you worked at the Hospice unit? 19 A Not in that type of manner, no. I had seen, 20 you know, different family members come in and sit 21 straight up in the bed and, you know, like lay -- put 22 their legs on the bed. But they'd be sitting up in the 23 bed, you know, kind of talking with their family member 24 in the final stages. But not in that type of manner, 25 no. CENTRAL FLORIDA REPORTERS, INC. 2422 1 Q Okay. Do you know Rachel Bean? 2 A I knew her from the Hospice unit, yes. 3 Q Okay. Do you know when she came to work for 4 the Hospice unit? 5 A Recollection would serve me that she came 6 shortly after the passing of this particular patient. I 7 don't specifically recall when she came. 8 Q Okay. 9 A You know -- 10 Q There's been testimony that she left Sunbelt 11 in December and started working at Vitas in February. 12 Does that comport with your memory? 13 A Possibly, you know. 14 Q You just don't recall dates? 15 A I don't recall specific dates. It was so long 16 ago, you know. Her employment record, you know, would 17 have to be pulled or whatever. I really don't recall. 18 Q Okay. And prior to Rachel Bean coming to work 19 at Vitas, did you know her? 20 A No. 21 Q So -- 22 A No. 23 Q -- the first time you met her was when she 24 started working at Vitas? 25 A Yes. CENTRAL FLORIDA REPORTERS, INC. 2423 1 MR. OSBORNE: Object, leading. 2 THE COURT: Sustained. 3 BY MS. MARSHALL: 4 Q Well, when was the first time you met Rachel 5 Bean? 6 A Was when she started working at Vitas. 7 Q Okay. And did you know Mary Thornton? 8 A No, I did not prior to her working at Vitas. 9 Q So Mary Thornton worked at Vitas as well? 10 A Yes. 11 Q And do you recall when she started working 12 there? 13 A No, I don't recall her -- when she initially 14 started working either. 15 Q Do you know whether it was before or after 16 Mrs. Destefano was there? 17 A I don't recall. I honestly don't recall. I 18 mean, my recollection would say that it was after. 19 Q Okay. Do you recall -- did you ever have any 20 discussions with Mary Thornton about Mrs. Destefano? 21 A Not that I recall. 22 Q Okay. Were you friends with Rachel Bean after 23 she started working at Vitas? 24 A I was associates with her. We, we never did 25 anything outside of work. CENTRAL FLORIDA REPORTERS, INC. 2424 1 MS. MARSHALL: Okay. I have no further 2 questions. 3 THE COURT: Just hold on a second. Do you 4 have any questions for this witness? 5 MR. EVANS: We have no questions of the 6 witness. 7 THE COURT: Go ahead, Mr. Osborne. 8 - - - - - 9 CROSS EXAMINATION 10 BY MR. OSBORNE: 11 Q Good morning, Ms. Daley. 12 A Good morning. 13 Q You are an LPN? 14 A Correct. 15 Q And the first time you saw Mrs. Destefano was 16 on the 8th of November, 1999? 17 A The very first time that I took care of her 18 would be the first time I saw her. 19 Q Were you still at Vitas when Florida Hospital 20 acquired the Vitas unit? 21 A Yes, I was. 22 Q Now, let's talk about Mrs. Destefano and her 23 stay there. You were told by your supervisor in regard 24 to Mrs. Destefano to write down anything abnormal, 25 weren't you? CENTRAL FLORIDA REPORTERS, INC. 2425 1 A Correct, I was. 2 Q And this was the only abnormal thing that you 3 say you observed, Mr. Destefano lying in bed with his 4 mother, correct? 5 A Correct. 6 Q And you only worked two shifts while she was 7 there, didn't you? Do you recall? 8 A If that's what my documentation shows, 9 then -- 10 Q And to your knowledge, during the entire 12 11 days that Mrs. Destefano was there, you only made two, 12 two notations for two different shifts, correct? 13 A You'd have to look at my documentation. I 14 don't recall. 15 Q Okay. Mr. Destefano would call and check on 16 Mrs. Destefano and would speak to you, wouldn't he, 17 during these shifts? 18 A I know that we did speak while I was there. 19 Q And to your knowledge, there's no other nurse 20 that wrote anything down about anything being, quote, 21 abnormal other than you, correct? 22 A I have not looked at their documentation so I 23 could not tell you. 24 Q Isn't it a fact that Rachel Bean did work with 25 you on this very Hospice unit that Mrs. Destefano was CENTRAL FLORIDA REPORTERS, INC. 2426 1 in? 2 A We did work in that unit together, yes, we 3 did. 4 Q In fact, your testimony previously was that 5 she was working there -- that Rachel Bean was working 6 there when Mrs. Destefano was admitted on October 30th 7 of 1999, wasn't it? 8 A I believe that it was. You know, the time, it 9 was so long ago back when the -- when it happened and 10 when my deposition was given. And, you know, like I 11 said, her employment record would have to be pulled. I 12 don't -- I don't recall dates. 13 Q Let me ask you this. Do you recall when you 14 were under oath on July 31st of 2003? 15 A Yes, I do. 16 Q And do you recall testifying then that you had 17 a recollection that she was there when Carolina 18 Destefano was there? 19 A Yes, I do recall saying that. 20 Q And it's only after you were shown some 21 records by these lawyers that you're changing your 22 testimony here today, isn't it? 23 A No. 24 MS. MARSHALL: Objection, Your Honor. If he's 25 going to inquire about her testimony, he needs to CENTRAL FLORIDA REPORTERS, INC. 2427 1 show her the page and exactly what she said. 2 THE COURT: Overruled. 3 A No, in all actuality I was given a copy of my 4 own deposition. And because I was told that I was 5 actually being called to court, I decided to read over 6 my deposition myself. 7 Q Okay. So you haven't seen any records of 8 anything other than your deposition? 9 A Correct. 10 Q So if you're going by your deposition, your 11 recollection was that Rachel Bean was there at the time 12 of Carolina Destefano's staying there, correct? 13 A Correct. I, I don't -- I can't say for sure 14 whether or not Rachel was there at the time she was 15 there so I'm not going to give a definite. 16 Q All right. Let me see if you remember this 17 question and answer on page 16, line 18. Question, 18 "There was something else that I wanted to ask you, 19 okay? Uh-huh. Just hear me out. So just -- yeah, 20 that's fine. So she would have been there -- let me ask 21 you this. Was she there at the time", and talking about 22 Rachel Bean, "That Carolina Destefano was there?" 23 Answer, "I know she must have been because of 24 talk, you know, of things that were going on. So she 25 must have been there. My recollection is that she was CENTRAL FLORIDA REPORTERS, INC. 2428 1 there." 2 Is that still your testimony? 3 A Um-hum. That was -- 4 Q Ma'am, is that still your testimony? 5 A I don't recall whether or not she was there at 6 the time. 7 Q You knew that Rachel Bean had been the 8 director of nursing for Sunbelt, correct? 9 A Correct. 10 Q Everybody knew that, didn't they, at that 11 facility? 12 A I can't speak for everybody. 13 Q You remember that because when Mrs. Destefano 14 was admitted, there was a big meeting with management 15 and attorneys from Vitas and the staff regarding 16 Mrs. Destefano coming there, wasn't there? 17 A There was a big meeting with management, 18 correct. 19 Q And some higher-ups in management came up and 20 spoke to the entire team, didn't they? 21 A Yes, they did. 22 Q And that's when you were told by your 23 supervisor, because of this big meeting with management 24 and attorneys, to write everything down that would be 25 abnormal about Mrs. Destefano, correct? CENTRAL FLORIDA REPORTERS, INC. 2429 1 A She had told us that prior to, but the big 2 meeting with management came down when Rachel was told 3 to leave the unit. 4 Q Okay. The big meeting occurred. Mrs. 5 Destefano is there, correct, was a patient there during 6 the time of this big meeting, correct? 7 A No. I believe my testimony was that the 8 meeting came down when Rachel was told to leave. 9 Q Right. And Rachel was told to leave the 10 facility because of Mrs. Destefano being in the facility 11 at the same time as her, it might cause a problem, 12 correct? 13 A No. 14 MS. MARSHALL: Objection, Your Honor. 15 A It was -- 16 THE COURT: Excuse me just a -- 17 MS. MARSHALL: I may approach? 18 THE COURT: Yes. 19 (Whereupon there was had a discussion at the 20 Bench outside the hearing of the Jury.) 21 MS. MARSHALL: Your Honor, these -- 22 THE COURT: Just a minute. 23 MS. MARSHALL: This line of questioning is in 24 violation of Florida Bar rules that say that 25 attorneys should not try to elicit testimony that CENTRAL FLORIDA REPORTERS, INC. 2430 1 he knows is inaccurate. There is -- out of the 2 employment records he knows that she was not -- she 3 was not working at Vitas, and he is trying to 4 confuse -- 5 THE COURT: He knows who was not working? 6 MS. MARSHALL: Rachel Bean did not work at 7 Vitas until February, the employment records show 8 that. There is -- and this is an intentional 9 misleading of the Jury, and his client knows that 10 because the video that we're going to present, 11 which was on November 23rd, 1999 -- 12 THE COURT: What are you asking me to do? 13 MS. MARSHALL: Not allow them to present this 14 because I think it's a Bar violation. And I can 15 get the rule for you if you want. 16 THE COURT: Overrule your objection. If you 17 want to point out that in your redirect, argue it 18 to the Jury and take whatever action you feel is 19 appropriate under the Bar rules, then you may do 20 so. 21 MS. MARSHALL: Thank you, Your Honor. 22 (Whereupon the discussion at the Bench was 23 concluded, after which the following proceedings 24 were had.) 25 MR. OSBORNE: Would you read back last CENTRAL FLORIDA REPORTERS, INC. 2431 1 question, please? 2 (The record was read back as requested.) 3 BY MR. OSBORNE: 4 Q Isn't it true, ma'am, that the management 5 there removed Rachel Bean when Mrs. Destefano was 6 admitted? 7 MS. MARSHALL: Objection, asked and answered. 8 THE COURT: Overruled. 9 A No. As I recall, that wasn't the reason that 10 she was told to leave. 11 Q Let me ask you if -- this question and answer 12 starting at page 16, line 25 of your deposition. 13 Question, "Tell me -- when you say talk, tell me about 14 that." Answer, "We all knew that she had been a DON for 15 Sunbelt, and we really didn't know all the details of 16 it. I just recall -- what I recall was that our lawyer 17 team from Vitas had her removed from the unit because of 18 something to do with Sunbelt. So that was really --" 19 Question, "You say your lawyer?" Answer, The Vitas, 20 yes. The Vitas lawyer had her removed?" Answer, "Yes, 21 from Vitas, from the in-patient unit." 22 That's your answer. 23 MS. MARSHALL: I would like for him to 24 continue to read. 25 MR. OSBORNE: I will, I wasn't stopping. CENTRAL FLORIDA REPORTERS, INC. 2432 1 BY MR. OSBORNE: 2 Q Question, "From the in-patient unit because of 3 something she had done at Sunbelt or allegedly done?" 4 Answer, "No, not that she had done anything. It is what 5 we were told as being -- because we were questioning 6 what was going on. We were told it was for -- due to 7 harassment from Mr. Destefano to Rachel." 8 Do you recall those -- 9 A Right. It wasn't -- it wasn't that she was 10 removed. You asked me if she was removed when the 11 patient was admitted, and I said no. 12 Q But she was removed at the time Mr. Destefano 13 was on the premises visiting his mother, correct? 14 A Not that I recall. She was -- she -- my 15 recollection was that her being removed did not have 16 anything to do with the patient herself. My 17 recollection was that Rachel was removed from the 18 premises because of the patient's son. 19 Q Okay. That's -- 20 A It didn't have anything to do with the patient 21 herself, that the involvement with Rachel in this 22 particular situation had absolutely nothing to do with 23 the patient. It had -- it was whatever transpired 24 between Rachel and the son, that was -- that was what 25 the entire situation was about, had absolutely nothing CENTRAL FLORIDA REPORTERS, INC. 2433 1 to do with the patient. 2 Q Okay. I accept that, ma'am. I just wanted to 3 ask you who -- this big meeting then dealt with 4 Mr. Destefano, the concern about Mr. Destefano on the 5 premises is why you had the big meeting with management 6 about writing anything that might be, quote, abnormal, 7 correct? 8 A The management had told us that there was a 9 DCF case, so that we were told that we -- you know, we 10 needed to, you know, write anything that was abnormal or 11 whatever. So it was just doing what we were told to do. 12 You know, whether or not -- you know, when -- whether or 13 not there was a DCF case or what was going on, whatever, 14 you know, the only -- our only concern at the time was 15 taking care of the patient, making sure the patient was 16 comfortable, doing whatever. And then whatever had 17 transpired between Rachel and the son, that was the 18 problem. 19 Q I understand, ma'am. My question is really 20 very simple. The reason that the Vitas lawyer had 21 Rachel Bean removed was because of concern that while 22 Mr. Destefano was there seeing his mother, that there 23 might be some harassment that he would give to Rachel? 24 That was the concern according to your testimony, 25 correct? CENTRAL FLORIDA REPORTERS, INC. 2434 1 MS. MARSHALL: Objection, mischaracterization 2 of testimony. 3 THE COURT: Sustained. 4 BY MR. OSBORNE: 5 Q I just published in your deposition that you 6 were told that Rachel was removed more due to harassment 7 from Mr. Destefano to Rachel. Do you remember that? 8 A That was at the time -- 9 Q No. Do you remember that that's the question? 10 MS. MARSHALL: Your Honor, I'd ask that he let 11 the witness answer. 12 THE COURT: Sustained. 13 BY MR. OSBORNE: 14 Q Do you remember stating that Rachel Bean was 15 removed because of -- due to harassment from 16 Mr. Destefano to Rachel? 17 A Are you asking me if I remember stating that, 18 that's what's stated in the deposition? 19 Q Yes, ma'am. 20 A Okay. That's what's -- that would have been 21 what I had stated. 22 Q Okay. And the only -- and the concern there 23 in terms of your testimony was that -- the concern was 24 that while Mr. Destefano was on the premises visiting 25 his mother, that you didn't want -- they didn't want to CENTRAL FLORIDA REPORTERS, INC. 2435 1 have Rachel Bean on premises at the same time, is that 2 true? 3 MS. MARSHALL: Objection, it's a 4 mischaracterization of her testimony. 5 THE COURT: Sustained. 6 A Okay. The problem is is that -- 7 Q There's no pending question, ma'am. Thank 8 you. 9 You got along well with Rachel Bean, didn't 10 you? 11 A We got along fine. 12 Q And at the time that Mrs. Destefano was 13 admitted, Mary Thornton was also working there at Vitas, 14 wasn't she? 15 A I don't recall Mary Thornton's employment 16 dates. I don't recall whether she was there at the time 17 or not. 18 Q Okay. You weren't as close with Mary Thornton 19 as you were with Rachel Bean, were you? 20 A I was just as close with Mary as I was with 21 Rachel. We were work associates. None of us did 22 anything outside of work together. 23 Q Let me ask you if you remember this question 24 and answer at page 21, line 18. "And how would you 25 describe your relationship with Mary?" Answer, "I CENTRAL FLORIDA REPORTERS, INC. 2436 1 wasn't as close with Mary as I was with Rachel, but 2 again, we got along." 3 Is that your testimony? 4 A Probably because I didn't work as much -- as 5 close with Rachel -- I mean with Mary as did I with 6 Rachel. 7 Q Okay. Ms. Daley, let's talk about the note 8 you did. You never saw anything sexual about what 9 Mr. Destefano was doing, did you? 10 A No. 11 Q You never saw anything that you would consider 12 to be abuse, did you? 13 A No. 14 Q You didn't say anything to him, did you? 15 A No, I did not say anything. 16 Q You didn't see any behavior that you felt you 17 should intervene to stop? 18 A No. 19 Q You did not report this to your supervisor? 20 A No. 21 Q And as far as you were aware, during this time 22 period Mr. Destefano did nothing wrong regarding his 23 mother either, did he? 24 A No. 25 Q And but for your supervisor telling you to CENTRAL FLORIDA REPORTERS, INC. 2437 1 write down regarding Mr. Destefano's mother anything 2 abnormal, you wouldn't have written this down at all, 3 would you? 4 A No, I probably would have still written it 5 down, yes. 6 Q Okay. As near as you could tell, his emotions 7 at the time you saw him were consistent with other 8 situations when someone is coping with the impending 9 death of a loved family member, correct? 10 A Correct. 11 Q Because it's one of those situations where 12 there's nothing you can do except just wait for it to 13 come to an end in terms of your loved one? 14 A Right. 15 Q And when you wrote anger with despair, that 16 was a very typical response that one -- that you would 17 expect under the circumstances when a son is with a 18 dying mother, correct? 19 A Yes. 20 Q Okay. No further questions, ma'am. Thank 21 you. 22 THE COURT: Redirect? 23 - - - - - 24 REDIRECT EXAMINATION 25 BY MS. MARSHALL: CENTRAL FLORIDA REPORTERS, INC. 2438 1 Q Ms. Daley, in the preceding -- the note that 2 was preceding yours in the file, was there any other 3 notes from nurses regarding Mr. Destefano being in bed 4 with his mother -- 5 A I'd have to look at the -- 6 Q -- on November 9th, 1999? 7 A I'd have to look at the -- 8 Q I believe the nurses' notes are in the back. 9 A You said November 9th? 10 Q Correct. 11 A Yes. 12 Q Do you -- whose note is that? 13 A It looks like Kathy Wagner's note. 14 Q Is that somebody that you worked with? 15 A Yes. 16 Q And was she on the shift prior to you? 17 A Yes, she was. 18 Q Okay. In cross-examination Mr. Osborne asked 19 you about a harassment situation with Rachel Bean. 20 A Yes. 21 Q Could you tell us about that, please? 22 A Rachel had told me about while she was 23 dealing -- 24 MR. OSBORNE: Object, hearsay. 25 THE COURT: Sustained. CENTRAL FLORIDA REPORTERS, INC. 2439 1 BY MS. MARSHALL: 2 Q Okay. Ms. Daley, you testified about Rachel 3 Bean being removed from the facility or from your unit, 4 correct? 5 A Correct. 6 Q Okay. Do you recall what the situation was? 7 A Yes. 8 Q And without telling us what -- any discussion 9 between you and Rachel, just tell us what happened. 10 MR. OSBORNE: Object, unless I can voir dire 11 the witness as to the source of her information, 12 Your Honor. 13 THE COURT: Sustained. 14 BY MS. MARSHALL: 15 Q Ms. Daley, you testified about Ms. Bean being 16 removed from your unit, is that correct? 17 A Yes. 18 Q Was she transferred to another unit or what? 19 A No. 20 Q What happened? 21 A As far as I can recall, she basically was 22 just -- she just basically stayed home. 23 Q For a couple of days? 24 A Right. She was just told just to stay away 25 for a little while. CENTRAL FLORIDA REPORTERS, INC. 2440 1 Q Okay. And was that -- what was that due to? 2 MR. OSBORNE: Objection. Same objection. 3 THE COURT: Sustained. 4 BY MS. MARSHALL: 5 Q Did that occur -- this situation, this 6 harassment situation occur at the same time as her 7 mother was in -- Mr. Destefano's mother was at Vitas or 8 sometime after that? 9 A My recollection is that it was after. 10 Q Okay. Thank you. No further questions. 11 THE COURT: Nothing from you, Counsel? 12 MR. EVANS: No, Your Honor. 13 THE COURT: Ladies and Gentlemen of the Jury, 14 do any of you have a question for this witness? 15 Seeing no questions, Ms. Daley, you are excused. 16 Thank you. Defense will call your next witness. 17 MS. MARSHALL: Our next witness is Alexa 18 Parker Clark. 19 THE COURT: Say that name again, please. 20 MS. MARSHALL: Alexa Parker Clark. 21 ALEXA PARKER CLARK, 22 having been first duly sworn testified as follows: 23 DIRECT EXAMINATION 24 BY MS. MARSHALL: 25 Q Could you please state your name? CENTRAL FLORIDA REPORTERS, INC. 2441 1 A Alexa Clark. 2 Q And what is your occupation? 3 A I'm a registered nurse. 4 Q And how long have you been a registered nurse? 5 A Since -- 1966 is when I was first licensed. 6 Q And what type of work do you do? 7 A Currently I do a variety of things. I do 8 consulting and I also do some hands-on care. I work in 9 acute rehab units in acute care hospitals in Largo, 10 Florida. 11 Q When you say acute care, what does that mean? 12 A Well, I differentiate acute being hospital 13 based as opposed to long-term care or more subacute-type 14 care. 15 Q Okay. And what is your educational 16 background? 17 A Excuse me. I initially did my nurse's 18 training, which is the word they used to use, I don't 19 think they do that anymore, at a hospital-based, 20 three-year diploma program, of which I'm not sure there 21 are really any of those left. Got a nursing diploma 22 and -- which qualified you to take the state board, 23 which I did and passed, and became a registered nurse. 24 I then went on to additional schooling at the 25 University of Pennsylvania and got my Bachelor of CENTRAL FLORIDA REPORTERS, INC. 2442 1 Science degree in nursing from Penn. 2 Q Do you have any professional designations? 3 A I'm also a certified rehabilitation nurse and 4 a nursing -- and a licensed nursing home administrator 5 in the state of Florida. 6 Q Are all of these licenses and certificates -- 7 certifications current and in good standing with the 8 State of Florida? 9 A Yes. 10 Q Are you the member of any professional 11 associations? 12 A Yes, several. The American Nurses' 13 Association and, therefore, the Florida Nurses' 14 Association, the Association of Rehabilitation Nurses, 15 the Florida Council on Aging, Florida Health Care 16 Association, and the Wound Continence -- or Wound, 17 Ostomy and Continence Society. It's a bizarre name 18 but -- 19 Q Do you sit on any committees or boards within 20 those organizations? 21 A Not within those organizations. Well, 22 actually I do. I'm sorry, I apologize. At the Florida 23 Health Care Association, I'm on the risk management 24 committee. 25 Q What does that mean? CENTRAL FLORIDA REPORTERS, INC. 2443 1 A It's a committee that reviews current issues, 2 sometimes regulatory issues that they receive, sometime 3 queries from the membership or are there new regulations 4 being proposed. And we as a group review those make 5 recommendations sometimes to the licensure body, 6 sometimes back to the membership. 7 Q Okay. Can you briefly describe your work 8 experience for the Jury? 9 A When I graduated from nursing school, for the 10 first half of my career before I moved to Florida, I 11 worked essentially in acute care. I was a head nurse in 12 a pre and post-op surgical unit at the Medical College 13 of Pennsylvania in Philadelphia. And I also taught at 14 several different schools of nursing in med/surg, which 15 has been my area, which is basically adult -- the care 16 of the adult at the University of Michigan in Ann Arbor 17 and the University of South Carolina in Columbia, South 18 Carolina, and also another three-year diploma program in 19 Wilkes Barre, Pennsylvania. 20 Q Do you have any experience working with 21 Alzheimer's patients? 22 A Yes. Once I came -- moved to Florida in about 23 the mid-'80's I guess, from that point on my work 24 experience has been almost entirely in long-term care 25 working with geriatric patients and have worked in a CENTRAL FLORIDA REPORTERS, INC. 2444 1 variety of long-term care skilled nursing facilities, 2 nursing homes. 3 And several of those have had specialized 4 dementia care units, in addition to the fact that a 5 large part of that geriatric population had a diagnosis 6 of Alzheimer's and other types of dementia. 7 Q What is a skilled nursing facility? 8 A Skilled nursing facility is probably what the 9 public refers to as a nursing home, provides, you know, 10 skilled nursing, physical therapy to an adult 11 population. 12 Q Okay. Have you ever worked as a director of 13 nursing? 14 A Yes, probably -- I first became a director of 15 nursing I think was in 1986 and continued to be a 16 director of nursing until about 1988 in five different 17 facilities in the Pinellas County area. 18 Q What does a director of nursing usually do? 19 A Director of nurses is in charge of the nursing 20 department, which means you hire and fire all staff. 21 You provide for any in-service education that's 22 required. You take care of getting all the supplies for 23 the staff, any disciplinary action. You're responsible 24 for the care provided to the residents by that nursing 25 staff. CENTRAL FLORIDA REPORTERS, INC. 2445 1 Q Okay. Do directors of nursing usually provide 2 hands-on care? 3 A No. 4 Q Are you required to be familiar with rules and 5 regulations imposed by the State on health care 6 facilities? 7 A Yes. There are very specific federal and 8 state regulations that are specific to skilled nursing 9 facilities and the care of the impaired elderly, if you 10 will. And if you are the director of nurses in the 11 nursing home, you are intimately familiar with those 12 regs. 13 Q Have you ever testified in court before? 14 A Yes. 15 Q Approximately how many times? 16 A I'd say about six times. 17 Q And have you been accepted by a court of law 18 as an expert witness regarding skilled nurse facilities? 19 A Yes. 20 Q Approximately how many times? 21 A A number of times I've testified. I've never 22 not been qualified when I've testified. 23 Q Okay. And in what area have you been 24 qualified? 25 A I've testified usually and qualified in the CENTRAL FLORIDA REPORTERS, INC. 2446 1 standards of professional nursing practice. 2 Q Okay. Have you ever been employed for -- by 3 Rollins Bedford Corporation or any other Adventist 4 Health System facility? 5 A No. 6 Q Have you ever worked as an expert on behalf or 7 from an attorney that worked for Adventist or one of 8 its -- 9 A I believe that I've been hired by attorneys in 10 the past, probably on less than a handful of occasions, 11 to provide some litigation support in reviewing those 12 records, but those cases involved necessarily never went 13 to -- never entailed my having to testify. 14 Q Okay. Have you ever testified in a 15 administrative proceeding? 16 A Yes. 17 Q In what capacity? 18 A Several different things. I've testified, for 19 example, in front of a State Board of Nursing on behalf 20 of a nurse whose license was in jeopardy. I've also 21 testified in front of an administrative hearing for the 22 process whereby a nursing home can appeal a survey 23 deficiency decision. 24 THE COURT: Counsel, approach the Bench. 25 (Whereupon a discussion was held at the Bench CENTRAL FLORIDA REPORTERS, INC. 2447 1 outside the hearing of the Jury.) 2 THE COURT: Are you going to ask her to opine 3 and give expert opinions? 4 MS. MARSHALL: Yes. 5 MR. OSBORNE: Yes. 6 THE COURT: Okay. Go ahead, go ahead. 7 (Whereupon the discussion at the Bench was 8 concluded, after which the following proceedings 9 were had.) 10 BY MS. MARSHALL: 11 Q Now, getting back to your familiarity with the 12 rules and regulations imposed by the State on health 13 care facilities. Can you tell me specifically what 14 your -- what your familiarity with those rules and 15 regulations are? 16 A Well, one of the responsibilities you have as 17 the director of nurses, for example, would be to 18 implement those rules and regulations as they apply to 19 the skilled nursing facility. So you're responsible to 20 see that those regulations are in fact implemented 21 appropriately. 22 And on an -- at least an annual basis you are 23 surveyed by the State. And they come in and they 24 inspect your facility to make sure you are, in fact, in 25 compliance with those rules and regulations. So if CENTRAL FLORIDA REPORTERS, INC. 2448 1 you're not -- 2 Q Okay. Are you familiar with the regulations 3 regarding the protection of elderly and vulnerable 4 adults? 5 A Yes. There's a specific -- that's also 6 addressed in the federal guidelines, but it's also a 7 specific Florida Administrative Code that addresses the 8 same issue. I'm familiar with those. 9 Q Okay. And as a DON, why are -- why do you 10 have to be familiar with that act or with that -- those 11 regulations? 12 A Well, you're really charged with -- I think a 13 good part of the purpose of those regulations is to 14 provide for the protection of what are largely 15 vulnerable and impaired adults who are really not able 16 to speak for themselves and communicate, so that it's 17 your responsibility to speak for them essentially. 18 So that you have to be aware of what those 19 regulations are, what you're reporting responsibilities 20 are and be familiar -- and I've had to utilize those 21 regulations on numerous occasions actually as director 22 of nurses. 23 Q Are there any special concerns with an 24 Alzheimer's patient in regards to the protection of 25 elderly or vulnerable adults? CENTRAL FLORIDA REPORTERS, INC. 2449 1 A I think one of the -- I think that I sort of 2 alluded to one of the primary things with any patient 3 with Alzheimer's or dementia is that they're really 4 unable to provide consent or to speak and communicate 5 their needs or their concerns or their complaints or 6 their discomfort to anybody, so that you have to be 7 particularly vigilant and observant to make sure that 8 they aren't being mistreated or abused or in any way 9 mishandled. 10 Q Can you describe for us what -- within your 11 profession what kind of protections vulnerable adults 12 are provided with? 13 A Well, the definition of -- in both the federal 14 and the state regulations there are definitions of the 15 term abuse; physical, mental, sexual, et cetera, 16 whatever that entails, what that description is and what 17 your responsibilities are should there be a suspicion of 18 abuse of that nature. 19 And also probably a lot of people are familiar 20 with the term resident's rights. And that is also 21 incorporated into both state and federal regulations as 22 they apply to nursing homes, which spell out the rights 23 that residents of nursing homes are entitled to the 24 right to privacy, for example, the right to adequate and 25 appropriate health care, the right to dignity, the right CENTRAL FLORIDA REPORTERS, INC. 2450 1 to communicate with family, all of those -- there's a 2 very long list. 3 And we're very familiar with those. And it's 4 our responsibility to make sure we have policies and 5 procedures in place to support those rights and to see 6 that they are available to all the residents. 7 Q Okay. You were talking about suspicion of 8 abuse in the reporting requirements. 9 A Yes. 10 Q Can you tell us about that? 11 A Well, it identifies in the regulation specific 12 to abuse that there are mandatory reporters. 13 Q What does that mean? 14 A That means those are people who -- if they 15 personally observe or have a suspicion of abuse, that 16 they are required to report that. And nurses and 17 employees of health care facilities are mandatory 18 reporters. 19 Q Okay. And based on your experience, what kind 20 of things rise to the level of a suspicion of abuse? 21 MR. OSBORNE: Your Honor, may we approach on 22 this point? 23 (Whereupon there was had a discussion at the 24 Bench outside the hearing of the Jury.) 25 THE COURT: I've already ruled on this case. CENTRAL FLORIDA REPORTERS, INC. 2451 1 MR. OSBORNE: Judge, my objection -- 2 THE COURT: You just tell me what your 3 objection is. 4 MR. OSBORNE: This is the -- whether or not 5 under these facts or similar facts a report should 6 be made is a legal question for the Court to decide 7 and give the Jury instruction. And if you look at 8 this case, I think where we're going with this is 9 to have this witness look at these facts and say 10 under these facts, this gave rise to a duty to 11 report. 12 And that simply is not the province of a 13 witness to opine on that issue. It is only for the 14 Court to determine what the statute says and for 15 the Jury to decide. And if you look at the 16 highlighted part coming up in there, Judge, you'll 17 see that that's exactly what they're saying on 18 this -- in this First District case, that you can't 19 look at regulations and codes as an expert and 20 opine that under these facts the duty to report 21 arose. 22 MS. MARSHALL: I haven't asked her that. I've 23 asked her in her experience what rises to the level 24 of suspicion. 25 THE COURT: Overruled as to this question. CENTRAL FLORIDA REPORTERS, INC. 2452 1 (Whereupon the discussion at the Bench was 2 concluded, after which the following proceedings 3 were had.) 4 BY MS. MARSHALL: 5 Q In your experience, Mrs. Clark, what rises to 6 the level of suspicion of abuse? 7 A Largely what happens -- I mean, I've reported 8 a huge variety of kinds of things myself personally. I 9 would say one of the things that would particularly 10 raise a level of suspicion would be something for which 11 you don't have a cause. For example, a large bruise 12 that you can't relate back to a specific incident, that 13 type of thing. 14 Behavior that would be clearly outside the 15 norm, either staff to resident or resident to resident, 16 that type of thing could be -- it could be considered 17 abusive. Failure to provide care, the complaint by a 18 resident or a family member regarding the lack of care 19 or harm to a patient or resident, unnecessary 20 restraining of a resident, isolation of a resident, 21 those kinds of things. 22 Q Okay. And have you had to personally report 23 suspicions of abuse? 24 A Yes. 25 Q Okay. Tell us what kind of -- what kinds of CENTRAL FLORIDA REPORTERS, INC. 2453 1 things you have reported as a suspicion of abuse. 2 A Unexplained bruises is one thing that I 3 probably reported a fair amount of. Some unusual 4 behaviors. I had, for example, a staff member who 5 looked a resident in a bathroom as a form of punishment 6 was reported. Residents who have complained that a 7 staff member was either rough or physically mishandled 8 them, that kind of thing I have reported. 9 Q Approximately how many times have you reported 10 a suspicion of abuse? 11 A Hard to know, but I would say probably dozens 12 at least, three or four dozen times probably at least. 13 Q And you mentioned staff members. Have you 14 ever reported a suspicion of abuse about a family 15 member? 16 A Yes. 17 Q Okay. How many times? 18 A Probably not as often as staff members, but 19 certainly I can think just offhand of probably at least 20 a half dozen times that I've had to report family 21 member. 22 Q And who do you report to? 23 A I report -- we usually call the 1-800-ABUSE 24 hotline. That's the mode that's generally considered 25 appropriate. CENTRAL FLORIDA REPORTERS, INC. 2454 1 Q Okay. In your -- in your profession and in 2 implementing these -- the mandatory reporting 3 requirement, do you have to have proof of abuse before 4 you call the 800 number? 5 A No, not at all. You just have to have a 6 suspicion or something that's out of the ordinary that 7 raises your index of concern. And you call that in to 8 the -- then they decide how immediate their concern is, 9 for example, and they will send a team out. They are 10 the -- they're the investigator, we just report. 11 Q Okay. Now, with -- well, let me ask you this. 12 Are you familiar with the term disimpaction? 13 A Yes. 14 Q What is that? 15 A Usually it's the manual removal of fecal 16 material from the rectum. 17 Q And is that a procedure that you have 18 performed on patients? 19 A Yes. 20 Q Okay. Is that something that you have 21 performed on patients for successive months at a time? 22 A No, that's -- 23 Q Why not? 24 A Disimpaction is kind of like the mode of last 25 resort. Usually you do that if something else has CENTRAL FLORIDA REPORTERS, INC. 2455 1 failed. Generally speaking, if a patient becomes 2 impacted to the point that that's required, that would 3 definitely raise my level of concern about whether the 4 care that's being given to -- for a bowel regimen is 5 appropriate. 6 Q Why is that? 7 A Normally patients who are either elderly or 8 paralyzed, whatever, have loss of bowel function usually 9 are put on what we would call bowel regimen. That can 10 entail a combination of different kinds of drugs. It 11 might even entail, you know, stimulants. It depends on 12 what the patient's problem is. And it might even entail 13 periodically using like a Fleet enema, something along 14 those lines. 15 But in my experience as a rehab nurse and as a 16 long-term -- long-term care, you know, taking care of 17 the elderly, it's never been my experience that 18 disimpaction is the method of choice for a bowel 19 regimen. 20 Q Well, when you say method of choice, would it 21 be a usual thing for a patient to have to be disimpacted 22 for eight months every five to six days? 23 A No. 24 Q That would not be unusual? 25 A Oh, I'm sorry, it would be unusual. CENTRAL FLORIDA REPORTERS, INC. 2456 1 Q It would be unusual? 2 A Yes. 3 Q Okay. If a patient is constipated, what do 4 you do? 5 A Usually what the facilities do is monitor very 6 carefully. And the rule of thumb in a facility is that 7 if the patient goes three days without having a bowel 8 movement, then an intervention is required. And so all 9 facilities that I'm familiar with have a method by which 10 they observe and record bowel movements on a daily 11 basis. 12 So that if three days go by when there isn't, 13 then there's usually a series of interventions that are 14 already pre-ordered if that were to happen. If they 15 weren't, then the nurse would notify the physician and 16 receive an order, which would usually entail a laxative 17 or some sort of medication intervention. 18 Q Okay. Kind of in the steps that you would 19 take, what are they? I mean, you said intervention is 20 required or there are certain levels of intervention you 21 do. 22 A Yeah. And it depends on the patient. So you 23 can't really say this is always the way you would do it. 24 It might be something as mild as Milk of Magnesia. That 25 is usually -- CENTRAL FLORIDA REPORTERS, INC. 2457 1 Q And if that doesn't work, what do you do? 2 A Then you would probably go for a suppository. 3 You would put the patient on a daily stool softener. 4 You would want to encourage them to drink water, to make 5 sure they had sufficient water, that that wasn't 6 contributing to the cause. You might have dietary come 7 and take a look and make sure they have fiber, and 8 sometimes that's also added. 9 Sometimes -- we call it a super cereal where 10 they do bran and fiber and that sort of thing, like a 11 morning cereal. There's lot of different things you can 12 do, sometimes by themselves or in combination, depending 13 upon what the specific issue with that specific patient 14 is. 15 Q Have you ever experienced a patient that for 16 eight months straight had to be disimpacted every five 17 to six days? 18 MR. OSBORNE: Object, irrelevant. 19 THE COURT: Overruled. 20 A No. 21 Q Do you know what a swallow study is? 22 A Yes. 23 Q What is that? 24 A Swallow study is -- usually it's a video 25 thoracoscope-type of study where the patient is -- CENTRAL FLORIDA REPORTERS, INC. 2458 1 Q A what? 2 A I'm getting there. -- where they would 3 swallow like a radioactive material, radiopaque material 4 so that you could see on a videoscope -- I'm not a 5 radiologist, but where you can look and see when they're 6 swallowing whether they're actually able to protect 7 their airway and what they're swallowing is going into 8 the stomach or in fact going to the lungs, what we call 9 aspirate. 10 Q If a patient fails a swallow study, what does 11 that mean? 12 A That means that they're aspirating, that 13 they're not able to protect their air. We just do that 14 automatically. When we eat a little piece of tissue, 15 the epiglottis, automatically closes over the trachea. 16 The food goes where it's supposed to go. 17 One of the pretty typical eventual 18 complications of Alzheimer's is they would develop 19 aphagia, which is their inability to swallow normally 20 and to protect their airways. So that the food, instead 21 of going from the, you know, mouth to the esophagus into 22 the stomach, some of it can and often does go directly 23 into the trachea and goes into the lung. And they 24 develop what we call an aspiration pneumonia as a 25 result. CENTRAL FLORIDA REPORTERS, INC. 2459 1 Q What are the eventual signs of someone who 2 can't swallow correctly or do not have those automatic 3 reflexes? 4 A Well, usually you'll see the patients will 5 choke. Their face will get red. They're obviously 6 having difficulty handling that fluid because it's going 7 to their lungs. If it's very pronounced and progressed, 8 they might actually be able to swallow that liquid or 9 food directly into their lung and not really show any 10 visible signs. The only way you would know is by a 11 video thoracoscope study. 12 Q And is that a concern? 13 A It's always a concern in the patients in a 14 nursing home, especially with a dementia diagnosis. 15 Q Now, again going back to the mandatory 16 reporting and the suspicions of abuse. You said that 17 you had called the 1-800 -- you've called the 1-800 18 number dozens of times with Department of Children and 19 Family Services, correct? 20 A Correct. 21 Q And what were the outcomes? 22 A They vary. They -- it'll end up in one of 23 three categories. Either unfounded, which means they 24 came, they investigated, they found no evidence of 25 abuse. Number two is that they find that there is some CENTRAL FLORIDA REPORTERS, INC. 2460 1 reason to suspicion abuse or that they suspect abuse but 2 they were not able to identify a perpetrator. And 3 number three is that, yes, there's abuse and, B, they've 4 identified a perpetrator. 5 I'd say the majority of times that I've 6 reported it, at least half, if not more than half of the 7 times, they come back unfounded. 8 Q Are there ramifications to nurses for filing a 9 false report with the Department of Children and Family 10 Services? 11 A If a report is filed with Children and Family 12 Services that results in unfounded, that's not 13 considered a false report. The majority of reports are 14 usually ruled unfounded. The only time that there would 15 be any repercussions was if somebody intentionally filed 16 something they knew to be untrue. 17 Q And what are the -- if you do that, are there 18 any ramifications or any penalties? 19 A Well, the Chapter -- the Florida 20 Administrative Code that governs nurses' licensure 21 clearly identifies that making a false report will lead 22 to disciplinary action against your nursing license. 23 Q So any nurse that files a false report would 24 be at risk for losing their nursing license? 25 A Yes, they would. CENTRAL FLORIDA REPORTERS, INC. 2461 1 Q What about placing a false statement in a 2 patient's medical records, is it okay for a nurse to do 3 that? 4 A Never. 5 Q Okay. And are there ramifications for placing 6 a false statement in a patient's medical record? 7 A If the nurse intentionally put false 8 information with the intention of misleading, we're not 9 talking an honest mistake, we're talking about something 10 that she knew to be false and put that in the record, 11 fraudulent charting, purposeful fraudulent charting 12 would certainly endanger her license and certainly her 13 job. 14 MS. MARSHALL: I have no further questions. 15 THE COURT: Anything from you, Counsel? 16 MR. EVANS: Your Honor, we do not have any 17 questions. 18 THE COURT: Cross-examination? 19 - - - - - 20 CROSS EXAMINATION 21 BY MR. OSBORNE: 22 Q Good morning. 23 A Good morning. 24 Q You're a self-employed consultant in the 25 health care industry? CENTRAL FLORIDA REPORTERS, INC. 2462 1 A Yes. 2 Q You were retained in this matter in June of 3 2004? 4 A That sounds right. 5 Q Okay. About 50 percent of your time is spent 6 on litigation versus AHCA issues? 7 A I'm not sure I understand -- I understand the 8 question. 9 Q How much of your time is spent on litigation? 10 A You mean -- 11 Q Just in terms of your professional practice. 12 A In terms of working with attorneys and that, 13 what we're doing? Okay. I would say 30 to 50 percent. 14 I don't work full time. So of the time that I do work, 15 I would say it's probably 40 percent or so, 30 percent 16 maybe. 17 Q And in terms of -- at the time of your 18 deposition on August 27th of 2004, did you testify that 19 50 percent of your time was spent on lawyer-related 20 matters versus health-related matters? 21 A Yeah, based on a full-time schedule. Normally 22 my answer to that question would be 50 percent, give or 23 take ten percent. And when I sat down to actually 24 calculate, I realized I don't work 40 hours a week so I 25 sort of downgraded it. So it's still probably 50 CENTRAL FLORIDA REPORTERS, INC. 2463 1 percent of the time I work, but I don't work a full-time 2 schedule. 3 Q Okay. You also do risk management assessments 4 for skilled nursing facilities, don't you? 5 A Yes, occasionally. 6 Q And you have made presentations on legal 7 defenses, protect your residents, your facilities, your 8 license -- 9 A Correct. 10 Q -- in Tampa? 11 A I think the one you're referring to is the 12 all-day long seminar. I gave four different seminars. 13 Q Tampa, Ft. Lauderdale, Panama City and 14 Tallahassee? 15 A That's correct. 16 Q Is that an all-day seminar on behalf of 17 Florida Health Care? 18 A Actually they provided a full-day program. 19 They selected the title, and I spoke for two to three 20 hours at those seminars. 21 Q You've been deposed, at least at the time of 22 your deposition, 53 prior times, correct? 23 A That is probably true. 24 Q And only four of those times did you ever 25 testify for a plaintiff, correct? CENTRAL FLORIDA REPORTERS, INC. 2464 1 A That's correct. 2 Q How much are you being paid for your time here 3 today? 4 A $125 an hour. 5 Q Two-thirds of your income is lawsuit oriented 6 or related, isn't it? 7 A That is probably true. 8 Q And you previously had worked for the Grower 9 firm, which was Ms. Marshall's predecessor in this case, 10 correct, on other cases? 11 A Are you talking about like Grower, Ketcham? 12 Q That's the firm, yes, ma'am. 13 A Yes, sir, I do occasionally work for them. 14 Q Okay. 15 A I didn't realize Ms. Marshall used to work for 16 them. 17 Q I didn't say she did. I said before her firm 18 got involved in this case, the Grower firm -- 19 A Oh, I did not realize that. 20 Q Okay. And in terms of the swallow -- you were 21 asked about the swallow situation. Did you know whether 22 or not Mrs. Destefano was on a puree diet? 23 A She was on a puree diet with thick liquid. 24 Q And did you know that as a part of the 25 comprehensive nursing assessment that she was on PO-type CENTRAL FLORIDA REPORTERS, INC. 2465 1 of nutrition? 2 A Yes, she was. 3 Q Which is what, per mouth? 4 A Correct. 5 Q And that's versus not per mouth, correct? 6 A Correct. 7 Q NPO? 8 A Correct. 9 Q And PO means that you -- the only way 10 Mrs. Destefano was going to take in food or liquid or 11 water was through the mouth? 12 A Correct, because -- 13 Q That was her course of treatment? 14 A Because Mr. Destefano had signed a waiver that 15 despite her risk, he elected to maintain her on regular 16 consistency liquid. 17 Q Right. Because he didn't want to have any 18 tubes put in. Isn't that the option if you go the other 19 route? 20 A That's the alternative, yes. 21 Q Okay. And wasn't it also true from your 22 review of the records that speech language pathology did 23 a consult? 24 A Yes. 25 Q And they talk about the goal was to have -- CENTRAL FLORIDA REPORTERS, INC. 2466 1 within one week have Mrs. Destefano consume 50 percent 2 or greater of all her meals with staff assistance? 3 MS. MARSHALL: I'm going to object, Your 4 Honor. It's beyond the scope of direct. 5 THE COURT: Overruled. 6 BY MR. OSBORNE: 7 Q Is that correct, ma'am? 8 A To be honest with you, I don't really remember 9 the specifics of the speech therapy. 10 Q Let me show you -- 11 A Sure. 12 Q I've got it highlighted right here. Why don't 13 you just publish that part that I've got highlighted? 14 A You want me to read it? 15 Q Yes. 16 A In one week resident will, one, consume more 17 or less 50 percent of all meals with staff assistance. 18 Two, tolerate 90 degree lemon ice all meals to increase 19 safety of PO intake. Three, oh, speech to complete 20 caregiver education. 21 Q Okay. So the speech pathology was going to 22 complete the care giver education on the intake of 23 fluids, correct? 24 A Correct. 25 Q And in fact, you recall from your review of CENTRAL FLORIDA REPORTERS, INC. 2467 1 the records that on the 20th of September, that it's 2 noted that the caregiver education was given to 3 Mr. Destefano on how to feed his mother fluids? Do you 4 want me to show you the document? 5 A Yeah. Oh, you want me to read that? 6 Q No. I just want you to confirm for me that 7 that charting says that the speech language pathologist 8 trained the caregiver on this intake of fluids that we 9 just talked about. 10 A Correct. There's specifics here as to what 11 that entailed. 12 Q Okay. You have no knowledge as to what any 13 doctors in this case had previously tried in terms of 14 other methods other than disimpaction regarding 15 Mrs. Destefano, do you, in terms of other modes of 16 treatment? 17 A Prior -- eight months prior, you mean prior 18 to -- 19 Q Prior to -- prior to the hospitalization at 20 Florida Hospital. 21 A She wasn't in the facilities very long. I do 22 know that post her admission to Sunbelt, they were able 23 to regulate her on oral medication and disimpaction was 24 no longer required. 25 Q I'm asking about previous to that. Do you CENTRAL FLORIDA REPORTERS, INC. 2468 1 know what any doctors had previously tried in regard to 2 the constipation? 3 A I don't recall that, no. 4 Q You would agree with me it's up to the doctor 5 to make a decision as to what the treatment is for a 6 patient regarding the treatment for constipation, the 7 doctor to give orders in that regard? 8 A If the patient's under his care, exactly. 9 Q Okay. You did say, did you not, in terms of 10 the reasonable -- the suspicion had to be a reasonable 11 suspicion before it was reported to the abuse hotline? 12 A I think that's a matter of semantics but, yes, 13 I think that's true. 14 Q And you certainly wouldn't condone anybody 15 intentionally filing something they knew to be untrue, 16 would you? 17 A No, I would not. 18 Q That would be wrong, wouldn't it? 19 A Yes, it would. 20 MR. OSBORNE: No further questions. 21 THE COURT: Redirect? 22 - - - - - 23 REDIRECT EXAMINATION 24 BY MS. MARSHALL: 25 Q Ms. Clark, you mentioned that you had reviewed CENTRAL FLORIDA REPORTERS, INC. 2469 1 all of Mrs. Destefano's medical records, correct? 2 A Correct. 3 Q Okay. And you mentioned something about -- 4 when she left Florida Hospital about disimpaction no 5 longer being necessary. 6 A Yes. 7 Q Could you explain that to us? 8 A Yes. After she left Sunbelt, she subsequently 9 was successfully put on a bowel regimen. I think it 10 was -- I mean, I actually remember it was Colace, Peri 11 Colace, Senokot. And that regimen eventually was able 12 to control her bowel movements so that disimpaction no 13 longer became necessary. 14 Q Thank you. 15 MS. MARSHALL: No further questions. 16 THE COURT: Ladies and Gentlemen of the Jury, 17 any of you have any questions of this witness? No 18 questions? Ms. Clark, you are free to go. 19 THE WITNESS: Thank you. 20 THE COURT: Would the Defense please call your 21 next witness? 22 MS. MARSHALL: Our next witness is 23 Dr. Anderson. We're going to need a few minutes to 24 set up because he has a Power Point. 25 THE COURT: Anderson? CENTRAL FLORIDA REPORTERS, INC. 2470 1 MS. MARSHALL: Dr. Anderson, William Anderson. 2 THE COURT: Ladies and Gentlemen, you want to 3 stretch and go into the jury room for a few 4 minutes? Let's do that. Take about five minutes, 5 please. 6 (Whereupon the Jury exited the courtroom.) 7 THE COURT: This is your third witness? 8 MS. MARSHALL: Correct. 9 THE COURT: Third and final witness? 10 MS. MARSHALL: Yes, Your Honor. 11 THE COURT: And then you rest? 12 MS. MARSHALL: Yes, Your Honor. 13 THE COURT: Let's take about five minutes, get 14 your witness set up and be ready to go. 15 (Whereupon, there was had a recess from 10:23 16 o'clock a.m., to reconvene at 10:34 o'clock a.m.) 17 THE COURT: All right. Please be seated. 18 They're very curious about scheduling. Those were 19 all the questions that were asking. They wanted to 20 know if you're doing closing arguments today. I 21 told them no. But think about whether you're in 22 agreement, we can start at 8:00 in the morning. 23 They seem to be in favor of that. 24 And they wanted to know how long they'll have 25 to deliberate. I said we'll take that up as is CENTRAL FLORIDA REPORTERS, INC. 2471 1 necessary. And we didn't talk about any of that 2 with them. Are you ready now? Do you have your 3 witness ready to come in? 4 MS. MARSHALL: Yes. 5 THE COURT: Let's bring in the Jury, please. 6 You got your equipment set up and ready to go? 7 MS. MARSHALL: Yes. 8 THE COURT: Are you going to put your witness 9 in the box? 10 MS. MARSHALL: For now, yes, yes. 11 THE COURT: Do you need to go through his 12 qualifications? Do you want to? 13 MS. MARSHALL: Yes. 14 (Whereupon the Jury entered the courtroom.) 15 THE COURT: Okay. And please be seated. 16 Ms. Marshall, your next witness is? 17 MS. MARSHALL: Dr. William Anderson. 18 WILLIAM ANDERSON, M.D, 19 having been first duly sworn testified as follows: 20 DIRECT EXAMINATION 21 BY MS. MARSHALL: 22 Q Would you please state your name? 23 A William Robert Anderson, A-n-d-e-r-s-o-n. 24 Q And what is your educational background, sir? 25 A I am a physician. I practice in the area of CENTRAL FLORIDA REPORTERS, INC. 2472 1 pathology. I attended medical school at the University 2 of Miami. I did residency at the medical school in the 3 area of pathology, which is sort of the basic science of 4 medicine. We look at tissues, we do autopsies, 5 biopsies, look at cells under the microscope. 6 I did that training at the University of 7 Rochester in New York and Duke at the University of 8 North Carolina. And when I also was at Duke I did an 9 area of pathology study of disease, specifically of the 10 heart. And then I did two years of laboratory medicine. 11 When you go to the laboratory and get a test done, it's 12 a pathologist that actually does the testing, reads 13 results, gives you the results and so forth. And I did 14 that at the University of North Carolina. 15 And in addition, I did a year of medical/legal 16 or forensic pathology. And I did that at Chapel Hill, 17 University of North Carolina as well. 18 Q So you are a licensed medical doctor, correct? 19 A Yes, I'm licensed in Florida and North 20 Carolina at the present time. 21 Q Do you have any professional certifications? 22 A In the area of pathology, which as I mentioned 23 before, I did the studies after medical school. I'm 24 Board-certified in anatomic pathology, which is the 25 tissue part, clinical pathology, which is the laboratory CENTRAL FLORIDA REPORTERS, INC. 2473 1 part, and forensic, which is the medical/legal, sort of 2 the CSI part. That's what forensic pathologists do. 3 Q Okay. What does that mean to be 4 Board-certified? 5 A Well, after residency training each specialty, 6 surgery, medicine, pediatrics, all the various 7 specialties have examinations that after you complete 8 your training, you take an examination that is called 9 the medical boards. And if you pass those boards, then 10 you are called Board-certified. So you have to go 11 through the training program. 12 First you have to go through medical school, 13 then you have to go through the training program, which 14 in my case was about six years. And then you have to 15 take and pass the examination in the areas that you are 16 interested in taking. I did anatomic, clinical and 17 forensic pathology. 18 Q What is your current occupation? 19 A Presently I'm practicing -- private practice 20 of forensic pathology in the Central Florida area. And 21 in that I do autopsies, I do consultations in 22 medical/legal issues primarily, and some educational 23 teaching at the paramedics groups at Valencia Community 24 College. 25 Q What is forensic pathology? CENTRAL FLORIDA REPORTERS, INC. 2474 1 A Well, forensic pathology is an area of 2 pathology where we use our knowledge as pathologists to 3 interface with issues that come before the courts. I 4 was for a long time medical examiner, and I'm still 5 doing the same thing but in a private basis now. And 6 the medical examiner's job was to determine cause and 7 manner and mechanism of death and injury. 8 And in doing that we study what happened to 9 the individual, what we find on the individual, what we 10 find on looking at the outside, items that come with the 11 individual, elements at the scene of an incident, then 12 autopsy and toxicology, which is poisons and drugs and 13 so forth, and then looking under the microscope to 14 further analyze. 15 And then we come up with what happened to the 16 individual, what diseases may have been present and so 17 forth. And we do that basically through analyzing the 18 tissues, both with the naked eye and the microscope. 19 Q You mentioned that you were a medical 20 examiner. Where were you a medical examiner? 21 A Well, I practiced forensic pathology in 22 California and Georgia, South Florida and the Orlando 23 area. And I was with the office in Orlando from about 24 1990 'til 2002. I practiced on the west coast in 25 Sarasota for a year, and then went into private practice CENTRAL FLORIDA REPORTERS, INC. 2475 1 completely. 2 Q Can you tell us how many autopsies and 3 clinical patient examinations you've done? 4 A Well, I have probably done over the years 5 6,000, 7,000 autopsies. When I was with the medical 6 examiner's office, we also did the sexual assault 7 examinations for Orange County. We did that from about 8 1990 to about 1997. So we probably did several hundred, 9 probably individually maybe 80 to 90 per year over that 10 period of time, so quite a few examinations. 11 Q You mentioned looking at tissues and things 12 under a microscope. How much of your work is done 13 utilizing microscopes? 14 A Well, as far as autopsy examinations, every 15 autopsy that I do includes looking with the naked eye 16 and then taking sections of tissue to look at under the 17 microscope. Sometimes we also take fluids. That area 18 is called cytology, which you usually associate with PAP 19 smears, but it's also looking at any type of fluid. And 20 I look at that under a microscope as well. 21 So I would say virtually every autopsy that I 22 do, and I'm probably now doing 150 a year, but we look 23 at complete tissue examinations on all those. 24 Q Okay. Have you ever testified in a court of 25 law? CENTRAL FLORIDA REPORTERS, INC. 2476 1 A Well, as a forensic pathologist, that is what 2 we do. Medical examiners are constantly testifying and 3 usually in criminal, sometimes in civil cases. Private 4 practice pathologists -- which I must point out, most 5 forensic pathologists around the country who are medical 6 examiners also do private consulting work as well. 7 Virtually everybody does that. So in that -- in that 8 situation, yes. 9 Q How many times have you testified in court? 10 A Actually in court? Well over 100 I'm sure at 11 this point with criminal case. And we usually went to 12 court probably six, seven times a year in the medical 13 examiner's office on criminal cases and, of course, many 14 more depositions. But that's what we do as forensic 15 pathologists, we interface what we know. So a forensic 16 pathologist is going to do a lot of testifying. 17 Q Was there anything in particular about your 18 experience or background or education which was helpful 19 to you, particularly helpful for you in your assignment 20 in this case? 21 A Well, I don't know if it was an assignment. I 22 was asked to look at the stain on the bed pad but, yes, 23 I've done clinical examinations on many autopsies. In 24 our forensic practice in the medical examiner's office, 25 we frequently look at items of clothing or other items CENTRAL FLORIDA REPORTERS, INC. 2477 1 that come with the people that come into the medical 2 examiner's office. I'm used to looking at and going 3 through the steps of analyzing what these things might 4 be. 5 Q Have you ever done any work for Florida 6 Hospital or any of the Adventist Health affiliates? 7 A No, I have not done any -- as far as I can 8 recall, I've not done any consulting work. I do 9 autopsies with Trans Life, which is the organ 10 procurement organization that is a branch of Florida 11 Hospital. But as far as doing consulting work for them, 12 no, I don't believe I've done any before. 13 Q Okay. Now, how did you get involved in this 14 case? 15 A Well, I was asked by your office to look at 16 this bed pad and see if we could -- if I could figure 17 out what the stain was specifically by going through 18 various methods that we use as pathologists and then 19 what my conclusions would be. 20 MR. OSBORNE: I'd like to voir dire the 21 witness on his qualifications at this time. 22 THE COURT: At the proper time you may do 23 that. You may conclude your examination of his 24 qualifications. 25 MS. MARSHALL: I think we are done with his CENTRAL FLORIDA REPORTERS, INC. 2478 1 qualifications. 2 - - - - - 3 VOIR DIRE EXAMINATION 4 BY MR. OSBORNE: 5 Q Good morning, Dr. Anderson. 6 A Good morning. 7 Q You're an expert on injury patterns, aren't 8 you? 9 A Correct. 10 Q Wrote a book on it? 11 A Right. 12 Q And that's -- in trauma pathology, that's 13 where you look at a body and look at the distribution of 14 injuries? 15 A Correct. 16 Q Could happen in automobile accidents, for 17 example? 18 A Well, any type of trauma, correct. 19 Q Such as impact of the human body with a 20 dashboard, that's one thing you look at? 21 A Yes, correct. 22 Q Or a moving head versus a stationary head in 23 terms of injuries? 24 A Correct. 25 Q But it's generally looking at the distribution CENTRAL FLORIDA REPORTERS, INC. 2479 1 of injuries and then determining the mechanism of the 2 injury or how the injury occurred, correct? 3 A Correct. 4 Q Now, blood spatter or blood pattern analysis 5 is part of the Academy of Forensic Sciences, isn't it? 6 A It's part of the criminalistics section, 7 correct. 8 Q And a blood spatter expert looks at the way 9 blood is distributed following specific types of 10 situations, isn't that true? 11 A Among other things, yes. 12 Q And you are not an expert in blood pattern 13 analysis, are you? 14 A No. I do not do the criminalistics of blood 15 spatter. 16 Q You're not an expert in that field, are you? 17 A No. I'd say we look at plenty of patterns of 18 blood but, no, I would say I'm not qualified as a blood 19 spatter. 20 Q Okay. 21 A Actually I don't think the Academy recognizes 22 that as a specific entity but it's part of 23 criminalistics. 24 Q Well, whatever it is, you're not an expert in 25 that field, are you? CENTRAL FLORIDA REPORTERS, INC. 2480 1 A No. 2 Q You're not qualified to have any opinion as to 3 how the blood is distributed on this pad, are you? 4 A Well, if -- the number one question was is 5 this blood or not or is it something else. That was the 6 first thing I looked at. 7 Q I'm sorry, Doctor, go ahead. I didn't mean to 8 cut you off. 9 A Well, but indeed this isn't a simple blood 10 spatter pattern because we have done the analysis and 11 shown, as I'll show you in a minute with a Power Point, 12 that this isn't just blood. 13 Q Well, my question was simpler than that, 14 Doctor. You are not qualified to have an opinion as to 15 how this blood was distributed on the pad, are you? 16 A Well, you asked about the blood, and I'm 17 indicating that we have shown that this is not blood. 18 Q I'm talking about the way the blood is 19 distributed on the pad as you look at the pad. You are 20 not qualified to have an opinion as to how this blood is 21 distributed on the pad, are you? 22 A Well, you keep asking me about the blood. I 23 keep telling you that it's not blood. We'll demonstrate 24 how we went through the whole process and -- 25 THE COURT: Counsel, approach the Bench. CENTRAL FLORIDA REPORTERS, INC. 2481 1 (Whereupon there was a had a discussion at the 2 Bench outside of the Hearing of the Jury.) 3 THE COURT: Okay. You need to sit down and 4 wait until the question is asked before you object 5 to whether he's qualified to answer the question. 6 MR. OSBORNE: Okay, Judge. 7 - - - - - 8 DIRECT EXAMINATION - CONT. 9 BY MS. MARSHALL: 10 Q Dr. Anderson, what did -- what did you do in 11 this case? 12 A Well, I -- to summarize, then we'll go through 13 the Power Point together so I can show you exactly what 14 we did. We looked at the -- with the naked eye looked 15 at it under two levels of microscope. We looked first 16 under the dissecting microscope, which is the one you 17 see on TV with them looking -- when they look at fibers 18 or they look at items more or less you can hold in your 19 hand. 20 And then in addition, there were areas on this 21 stain that we then sampled, as we would a regular 22 cytology specimen, fluid from the chest or fluid from 23 the abdomen or anything like that. And then we actually 24 looked at that -- or I looked at that under the 25 microscope and determined what specific findings those CENTRAL FLORIDA REPORTERS, INC. 2482 1 were under the microscope, the regular microscope, in 2 other words, looking up to 400 magnification. 3 The dissection microscope allows you to look 4 about 20 or 30 times magnification. If you want to go 5 higher than that, then you have to make a specific 6 preparation, which is the way we always do histology, 7 tissue diagnosis. When we look at tissue we have a 8 regular microscope. So we did that also to determine 9 what this material was and what its characteristics were 10 and then took photos of that. And that's what we're 11 going to show you and explain to you this morning. 12 Q Okay. Do you know what -- Mr. Osborne was 13 asking you questions about a blood spatter expert. Do 14 you recall those questions? 15 A Correct. 16 Q And are you familiar with what a blood spatter 17 expert does? 18 A Well, a blood spatter expert is part of -- 19 blood spatter is part of criminalistics. Some people 20 don't really recognize it as a sub -- as a total 21 specialty but as a subspecialty clearly. And the blood 22 spatter expert is usually involved in crime scenes 23 and -- to try to determine which way the blood has gone. 24 When somebody is hit or shot or there's 25 bleeding at the scene, that's when you have the typical CENTRAL FLORIDA REPORTERS, INC. 2483 1 blood spatter expert, and they're looking at just the 2 patterns basically of blood. 3 Q Did you -- did you believe this assignment to 4 be a blood spatter assignment? 5 A No. One of the things we needed to do was, 6 first of all, determine what specifically it was. 7 Because just looking at it with the naked eye, one 8 cannot assume that it's blood. So that was why first we 9 examined it, and then we did the subsequent testing. 10 Because if it is other than pure blood and it's other 11 material, it's important to determine what that material 12 is. 13 And in order to do that, you have to look at 14 the cells present, the characteristics microscopically. 15 And clearly that's something a pathologist is qualified 16 to do but not a -- certainly not a criminalist or what 17 types of cells because that's what we do. That's how 18 pathologists make diagnoses. 19 Q Okay. Let's go into -- first of all, what, 20 what did you review or what materials were you provided 21 when you first started your assignment? 22 A Well, when I first started the assignment, I 23 had some photos of the bed pad, some DNA testing reports 24 and I believe some reports from -- one or two of the 25 blood spatter analysis reports on the -- on the stain CENTRAL FLORIDA REPORTERS, INC. 2484 1 itself. 2 Q Did you also have -- you said that you had 3 some DNA records? 4 A Right. I had the DNA records from Reliagene 5 where various areas of this stain in this bed pad were 6 tested. 7 Q Okay. And what -- what did the DNA reports 8 tell you, if anything? 9 A Well, there was the presumptive test for 10 blood. The TechDetect, HemDetect showed the presence of 11 blood in some of the stains. And in some of the stains 12 there was blood. In some of the areas of the stains 13 there was no blood. The -- 14 Q What significance does that have? 15 A Well, it means there's other material there. 16 And the fact of the matter is that to test positive, 17 blood has to -- there has to be some red blood cells 18 there, but they can be intermixed with other material. 19 It doesn't have to just be pure blood. And the fact 20 that some of these areas tested negative indicated that 21 there was other material there. 22 So that certainly was something to look into. 23 And at that point I felt we needed to progress further 24 to characterize, well, is this blood or is this 25 something else or is it a combination. And then went CENTRAL FLORIDA REPORTERS, INC. 2485 1 about how we would do that and were there any 2 characteristics of this that would indicate that 3 although there may be some blood present, that there was 4 other material present as well. 5 Q Now, when you were retained, were you able to 6 start this analysis of the stain right away? 7 A You know, I don't recall. I think -- I think 8 I was contacted initially in June of '04, and we did 9 the -- we did the testing actually somewhat later. I 10 can't recall the exact dates we did it. It wasn't 11 immediately. 12 Q Okay. Did you recall if you got -- or if the 13 attorneys got permission from the Court to actually take 14 a stain sampling from the pad? 15 A Well, I think, yeah, that's why we -- that's 16 why we took it. We had permission of the Court to do 17 that. 18 Q And did you -- why was that necessary? 19 A Why was it necessary to get the permission? 20 Q Why was it necessary to take a sampling from 21 the bed pad itself? 22 A Well, what we wanted to do -- when we first 23 looked at it, I wasn't sure if I was going to have to do 24 that or not because I hadn't actually seen the bed pad. 25 But I think I had asked the attorneys to go ahead and CENTRAL FLORIDA REPORTERS, INC. 2486 1 allow us to do that if we needed to when we first looked 2 at the pad. 3 And in the center of the pad initially, there 4 was a small area of particulate material which I felt 5 needed to be sampled. And that's what we actually took 6 and used to prepare and put under the microscope, so we 7 could look at the microscopic slides of that portion of 8 the specimen. 9 Q Okay. Let's stop for a moment and I'd like to 10 have you step down. 11 MS. MARSHALL: I'm going to offer Defendant's 12 Exhibit -- since I'm going to use the boards, can I 13 have these marked with new exhibit numbers? 14 Because I think the eight-and-a-half-by-11s are the 15 ones that are pre-marked. 16 THE COURT: Marked for identification? 17 MS. MARSHALL: Correct. 18 THE COURT: Yes. 19 MS. MARSHALL: Okay. 20 MR. OSBORNE: Your Honor, can we approach? 21 THE COURT: Sure. 22 (Whereupon there was had a discussion at the 23 Bench outside of the hearing of the Jury.) 24 MR. OSBORNE: Judge, since you have DV'd the 25 battery claim, I object to the relevance of this CENTRAL FLORIDA REPORTERS, INC. 2487 1 testimony. 2 THE COURT: Overruled. Go ahead. 3 MS. MARSHALL: These were -- do you have any 4 objection to these? These are the -- 5 MR. OSBORNE: As demonstrative aids? I don't 6 think they were listed on the exhibit as 7 demonstrative aids. 8 MS. MARSHALL: We'll just mark them as 9 demonstratives. 10 (Whereupon the discussion at the Bench was 11 concluded, after which the following proceedings 12 were had.) 13 MS. MARSHALL: May the witness step down, Your 14 Honor? 15 THE COURT: Yes. 16 BY MS. MARSHALL: 17 Q Dr. Anderson, if you could step down. And I 18 believe what you were talking about is the observation 19 of the bed pad with the naked eye. 20 A Yes. 21 Q Would these exhibits be helpful for you in 22 giving this testimony? 23 A Yes. 24 Q Okay. Would another easel be helpful? 25 A Yes. CENTRAL FLORIDA REPORTERS, INC. 2488 1 Q Okay. This has been marked as Plaintiff's 2 Exhibit No. 6. And is this the bed pad that you 3 examined? 4 A Yes. 5 Q Okay. Could you tell us what your first 6 observation was or what you just did? 7 A Well, there's several. First, I looked at it 8 with the naked eye at this point. And there are several 9 things which became clear in particular with regard to 10 this stain. This is smudging. This is some smudging 11 here. Clearly it's yellowish and it's not bloody 12 looking. 13 Now, this area -- I then took a close-up, and 14 this is a close-up photo. And what I -- what I noticed 15 was that whereas a liquid will tend to diffuse when it's 16 put on an absorbable surface, it diffuses rather 17 uniformly. We have here a relatively irregular border, 18 almost looking more like a smudge rather than a 19 diffuse -- 20 MR. OSBORNE: Your Honor, I would object to 21 this testimony as beyond the scope of the expert's 22 expertise as far as distribution of blood on the 23 bed. 24 THE COURT: Overruled. 25 BY MS. MARSHALL: CENTRAL FLORIDA REPORTERS, INC. 2489 1 Q You may proceed. 2 A Now, a liquid would basically diffuse out. 3 You put a glass of water on the table, it's going to 4 diffuse out uniformly. This to me looked more formed. 5 This looked more like a smear and something that was 6 semi-solid rather than a pure liquid. 7 Now, in addition you notice these areas, and 8 this is the little seam along this pad. Where these 9 areas had been spared, this would not be consistent with 10 a liquid because it would have filled up everything. In 11 fact, it would follow the path of least resistance. It 12 would tend to flow out, but here this one was spared. 13 So we know we have something that more or less 14 has some form to it rather than just a liquid. So this 15 then led to the next step. We had this area here and we 16 took a swab, saline swab. 17 Q Are you showing -- 18 A We swabbed several areas here. 19 Q Okay. 20 A This area, this area, and we made a 21 preparation to look at it under the microscope. In 22 addition, this small area here appeared to be 23 particulate. It was a particle. So that was what I 24 took. And then we processed that, and that's what I 25 looked at under the microscope. And I'll show you the CENTRAL FLORIDA REPORTERS, INC. 2490 1 pictures of that. 2 Now, so there's two elements here. There's 3 something here that might tell us is there something 4 here? What is this substance here? If it's blood it 5 looks a certain way. If it's fecal material it looks a 6 certain way. If it's sputum it looks a certain way. So 7 then we analyzed to see what that was. So we use the 8 naked eye, then the dissection microscope and then the 9 actual regular microscope. 10 Q How many swabs did you actually take? 11 A I think we took two or three swabs. We put 12 them in fluid, we did cytology and then the cell block, 13 which is -- the little button in the bottom is then 14 processed as a biopsy would be and we look at that under 15 the microscope. And that's what I'm going to show you 16 in a minute. 17 Q You need to speak a little bit louder when we 18 have the boards up. The court reporter is having a hard 19 time getting down everything that you're saying. 20 Was there anybody with you when you did the 21 testing? 22 A I think there were attorneys from the Defense, 23 your group and this gentleman, I can't -- I'm sorry. 24 MR. CONWAY: Mr. Conway. 25 A Mr. Conway, right. In fact, we showed them CENTRAL FLORIDA REPORTERS, INC. 2491 1 exactly what we were looking at at the time. So both 2 the attorneys got to see the area of sparing and the 3 smudging. And I sort of explained to them basically 4 what I'm explaining to you. 5 Q And the slides were made available to them as 6 well? 7 A Well, nobody, nobody asked me for any slides. 8 I would -- in this situation I would basically -- since 9 it's a pathology problem, I would really -- you know, 10 I'd share them with other pathologists, we'd give them 11 pictures of everything, but no pathologist ever called 12 and asked to look at them. 13 Q All right. Did -- have you prepared a Power 14 Point that will assist you in walking through the next 15 steps of what you do? 16 A Yes. 17 Q Okay. Let's take these down for now. 18 MS. MARSHALL: Did the Jury -- is this going 19 to be able to -- can I have the witness talk from 20 here since it's behind him? Thank you. 21 THE COURT: Sure. 22 BY MS. MARSHALL: 23 Q Can you see that or -- 24 A We might want to turn these lights down. 25 THE COURT: Do you want to turn the lights CENTRAL FLORIDA REPORTERS, INC. 2492 1 down a little bit? Let's turn the lights down. 2 BY MS. MARSHALL: 3 Q Can you tell us what you -- what you did to 4 analyze the stain on the bed pad? 5 A Well, this is basically the sequence I went 6 through and the methods I used to finger it out. Here 7 we looked at the bed pan -- the bed pad and took photos 8 of it. We took photos at various distances. And 9 what -- it appeared to be localized, as I said, a 10 smaller smudge, and then this area which seemed to have 11 some form to it. 12 So at this point, after looking at it with the 13 naked eye, I felt that we needed to do, you know, some 14 more to determine what specifically this was, not just 15 assume it's blood or assume it's fecal material or 16 assume anything. Part of what we do is to, you know, 17 get the -- do as many studies as we can to see if we can 18 come up with some factual data regarding the process. 19 Q Okay. And what did you do next? 20 A Well, an examination. We showed this 21 tadpole-shaped area, which as I indicated on the photo 22 we just looked at, the board we just looked at has some 23 form. It does not diffuse out. And it's important to 24 look at the edges of that. You can see it's not 25 diffusing out. It's more or less -- CENTRAL FLORIDA REPORTERS, INC. 2493 1 Q Let's use the board that you have 'cause I 2 think it's a little clearer than the Power Point. What 3 do you mean by not diffusing out? 4 A Well, as we went through before, a liquid is 5 going to diffuse out uniformly. And here we have areas 6 of sparing really all the way through here, and that's 7 not consistent with a liquid. You have this area along 8 the seams. That's clearly not consistent with a liquid 9 diffusing outward. 10 Q Let me show you what has been marked as 11 Plaintiff's Exhibit 12, which are from Mr. Stuart's 12 testimony. And you had a photo -- these photographs 13 when you did your work, correct? 14 A I had -- yeah, I had the black-and-whites 15 actually. I didn't have the color photos. 16 Q Okay. Can you tell us what you mean by 17 diffusing out? Just explain that a little better. 18 MR. OSBORNE: Object, no predicate. 19 THE COURT: Overruled. 20 A Well, diffusion simply means the process of 21 spreading, if you will. If you put a drop of water onto 22 cotton, it's going to -- it's not going to just stay in 23 a single area. It's going to get wet around. Now, if 24 you look at the difference here, this is -- the margins 25 here are very well confined. CENTRAL FLORIDA REPORTERS, INC. 2494 1 So this indicates that there's some form to 2 this material and it's not doing what this one is doing. 3 Look at this. See how it's diffusing out and filling up 4 everything? It's sort of a feathery moving out. We 5 don't see the sharp margins. We certainly don't see 6 anything close to this. This is diffusing out here. So 7 it's sort of a feathery -- and you see it's lighter and 8 lighter as it goes out, but this has pretty clear 9 margins. 10 Q Okay. What did you do next? 11 A So that was what -- it didn't look like just 12 simple blood, okay, so -- but it could be. So the next 13 thing we did was we took the -- this is a close-up 14 showing what we just showed you actually, how this is 15 confined to this area. It's well formed. But, you 16 know, to be sure, maybe something strange happened and 17 it was -- there was some blood in there. 18 But when you do a scientific evaluation, 19 there's some things you got to do. And you got to look 20 at the characteristics as we did with the naked eye. 21 Then we looked at it under the low-powered microscope to 22 look at areas that are not apparent to the naked eye. 23 And then we did the samples and analyzed those to see if 24 we could tell what this material actually was. 25 Q Now, when you examine it to see what this CENTRAL FLORIDA REPORTERS, INC. 2495 1 material actually is, are you -- you're looking at it 2 under a microscope? 3 A Right. Now, this is under the dissecting 4 microscope. 5 Q What does that mean? What's a dissecting 6 microscope? 7 A Well, as I explained, it's a microscope that 8 you see in the TV when they're looking at -- when 9 they're putting an object underneath it so they can get 10 a close-up view. It's not at microscope that you look 11 at a tissue sample under. It's not higher powered. 12 It's a medium-type microscope. So it's giving you a 13 better view than just the naked eye. 14 So it's a -- magnifying probably up to 40 15 times magnification. This is about ten to 20 times 16 magnification. And we can see very clearly that these 17 areas that look like they were spared really are. So 18 there's areas along that seam that are not involved. 19 Q Okay. 20 A Again, characteristically when you have a 21 liquid, it'll spread uniformly. It doesn't appear that 22 we have that. Now, I did tests also with the blood and 23 you can see what happens, it feathers out. First of 24 all, the coloration is significantly different from this 25 which does not feather out, and it's an area of sparing. CENTRAL FLORIDA REPORTERS, INC. 2496 1 And you can see there's no sparing here. It 2 just diffuses out and becomes less and less, but that's 3 because you're running out of the fluid as it goes 4 further out. In fact, this creates a much more sharp 5 margin and to me indicates that there's actually form to 6 this process, form to this substance that's on the bed 7 pad. 8 Q Okay. 9 A Now, I'm going to show it under the 10 microscope. This is a tissue sample in an area of a 11 different patient, this is a trauma patient, but this 12 shows you what blood actually looks like. This is 13 blood, pure blood. There are a few white cells. They 14 are rare when you look at it under the microscope. And 15 you can see this red coloration is uniform red blood 16 cell content. 17 Now, the red blood cells -- actually when you 18 do DNA testing, you don't actually use the red blood 19 cells because they don't have a nuclei. The nucleus of 20 the cell is where the DNA is. So when you're doing DNA 21 on, quote, blood, you're doing it on the white cell 22 nuclei that are present or anything else that happens to 23 be present. So you may see a few white cells here, 24 small basically circular-type cells. 25 Now, this is a section of intestine from the CENTRAL FLORIDA REPORTERS, INC. 2497 1 same part. And I wanted to show you that because look 2 at -- these are the glands that line the bowel. These 3 are called epithelium. The epithelium is similar to the 4 skin, although it's on the inside of the tract, and it's 5 a gland-type epithelium. These are glandular 6 structures. 7 And you can see there's a little bit of 8 cytoplasm in these blood stain nuclei, which are the 9 nucleus of those glandular cells. 10 Q Now, you say that there's also epithelial 11 cells on the outside on your skin? 12 A Well, they're the same type of cells. Any 13 lining or covering is called epithelium. So 14 epithelium -- skin is an epithelium. Inside of your 15 mouth is an epithelium. There's just different types. 16 Inside the bowel is epithelium. Stomach, respiratory 17 tract is all lined by epithelium, anything that opens to 18 the outside essentially. 19 Q Do they look different under the microscope? 20 A Definitely. These are glandular. Each area 21 has different looks to it, but they have this same 22 pattern in that they're cells with nuclei that are 23 present at these various areas. 24 Q Okay. Then what did you do? What did you 25 look at? CENTRAL FLORIDA REPORTERS, INC. 2498 1 A Then I took the -- remember, I said when we 2 took the sample, we put it in a preparation and made a 3 microscopic section so we could look at it under the 4 microscope, and that is what we see. Now, in pure 5 blood, you are only going to see the red blood cells and 6 a few scattered white blood cells from time to time. 7 White blood cells are small and round. 8 One of the things we looked at here was this 9 was distinctly not blood. These are those 10 epithelial-type cells that we saw in the section of 11 bowel wall and these are large numbers of them. They're 12 cigar-shaped. We have an enormous material that these 13 are within, just some degenerated cells and also yellow 14 stain material, which is very consistent -- in my 15 experience in looking at many gastric -- 16 gastrointestinal biopsies, this is fecal material. And 17 that's what that stain looks like. 18 So we have all these cigar-shaped cells which 19 in my estimation represent epithelial cells, which means 20 this is not -- there may be some red blood cells in 21 here, but this is the primary make-up of this material. 22 Now, I believe that this is fecal material and that 23 these are epithelial cells. And you can see the 24 difference. These are almost all red cells. 25 Q So -- CENTRAL FLORIDA REPORTERS, INC. 2499 1 A And here we have -- virtually all of these 2 cells are epithelial cells scattered through this 3 material. 4 Q The bottom is all blood, a blood -- 5 A Correct. That was blood from another patient 6 and this is the Destefano case, tissue that we took at 7 the -- 8 Q That's -- the top is the swabbing from the bed 9 pad, the material from the bed pad? 10 A Right, and the cell blocking we prepared. 11 Now, you can see comparison now between the blue nuclei 12 and pink cytoplasm and the shape of these cells. And 13 see how some of them come out into the fecal material? 14 This is very characteristic of a bowel biopsy or at 15 autopsy. And here we see these same cells. 16 And this simply is not blood, it's -- my 17 opinion is it's fecal material with epithelial cells 18 very prominent within the material. And I think the 19 fecal material was probably semi-liquid when it was -- 20 when it got on to the bed pad and -- but it definitely 21 is not pure blood. 22 Q All right. And what was -- what was your 23 conclusions? 24 A It was pretty much what we just went through, 25 epithelial cells most likely from the GI tract. It's CENTRAL FLORIDA REPORTERS, INC. 2500 1 fecal material. All those cells are there. It means 2 it's not blood. And the other characteristics of the 3 stain were basically what led me to keep looking to see 4 if we could figure out what it actually was. And my 5 opinion is it was semi-liquid, semi-solid fecal 6 material. 7 Q Okay. Is there also blood in with that 8 material? 9 A Oh, probably. Anybody that's had any 10 irritation to the gastrointestinal tract, I believe 11 there was history of impactions with this patient, is 12 going to have some blood in there. But the issue is -- 13 one of the things I was asked, well, is this pure blood 14 that's just been put on there like when we did -- like I 15 did with my experiment, the blood spatter gentleman did 16 with his, was it pure blood put on to the material? And 17 it's clearly not, it's fecal material. 18 Q All right. If you could -- is that the end of 19 your Power Point? 20 A That's it. 21 Q Okay. Why don't you take your -- do you want 22 to shut that down first? 23 If a stain was -- on a bed pad was created by 24 taking blood from an arm and putting it in a syringe and 25 then placing it on the bed pad, would it have fecal CENTRAL FLORIDA REPORTERS, INC. 2501 1 matter in it? 2 A No, there would be -- obviously there would be 3 no fecal matter in blood. There would be no epithelial 4 cells in blood. Epithelial cells are the lining. And 5 blood doesn't have any epithelial cells in it clearly 6 because it's from the inside of the blood vessels. And 7 the epithelial cells are the lining cells so we don't 8 have any of that. 9 Now, another possibility was, well, could 10 there have been a piece of fecal material there and 11 blood put on it? But we don't have that diffusion that 12 took place, and that spreading still would have taken 13 place even -- if you can imagine that on any of those 14 samples either I did or the other gentleman did, if 15 there was any material there and the blood was put on 16 top of it, we would see that same diffusion, and we 17 don't see that. 18 In fact, we see similar coloration and similar 19 pattern throughout the whole stain. So in my opinion 20 the whole stain had some substance to it. It wasn't 21 just liquid blood. 22 Q Okay. Is it possible that there were layers 23 or there were traces of fecal matter on the bed cell 24 (sic) and cells from the skin, and that's what you were 25 looking at when you looked under your microscope? CENTRAL FLORIDA REPORTERS, INC. 2502 1 A Well, as I just indicated, that's a 2 possibility. And to rule that out, then we have to go 3 back and look at the character of the stain. And the 4 stain shows that it's not a liquid material because it's 5 not diffusing out into that area. 6 Q Okay. Is there anything that you observed 7 about the stain that would indicate that it was 8 artificially placed there? 9 MR. OSBORNE: Object, no predicate. 10 THE COURT: Sustained. 11 BY MS. MARSHALL: 12 Q Let me ask it a different way. Dr. Anderson, 13 after you observed the stain and looked at it under the 14 microscope, did you come to a conclusion as to whether 15 or not this stain could be blood taken from a syringe 16 and deposited on a bed pad? 17 MR. OSBORNE: Same objection. 18 THE COURT: Overruled. 19 A No. This was not blood from a syringe for the 20 reasons we -- the many reasons we went through, 21 including the microscopic, including the characteristics 22 of the stain. 23 MS. MARSHALL: I have no further questions. 24 THE COURT: Counsel for ORHS, do you have any 25 questions of this witness? CENTRAL FLORIDA REPORTERS, INC. 2503 1 MR. TOWNSEND: No, ma'am. 2 THE COURT: Cross? 3 MR. OSBORNE: Miss Marshall, may we move the 4 apparatus out of the way, please? 5 MS. MARSHALL: Sure. 6 - - - - - 7 CROSS EXAMINATION 8 BY MR. OSBORNE: 9 Q Hang with me a second, Doctor. 10 A I can't see through all this. 11 Q That's correct. Doctor, as a part your 12 review, you were not provided any medical records to 13 review before formulating your opinions, were you? 14 A No, my, my -- basically what I was asked to do 15 was to see if we could evaluate that stain to tell what 16 its origin was. And that's basically what I did through 17 looking at the characteristics and both -- all tests. 18 Q And your opinion is that this substance, 19 whatever it was, came from the rectal area? That's your 20 opinion, isn't it? 21 A I believe that's most likely. It was on a bed 22 pad, it had -- certainly had epithelial cells. I don't 23 think we should completely rule out that it came from 24 some heavy mucus in the respiratory tract, but it 25 certainly came from a tract that's lined by epithelial CENTRAL FLORIDA REPORTERS, INC. 2504 1 cells. 2 Q Would you agree with me, Dr. Anderson, that 3 the best way to determine a source of bleeding is to 4 examine the patient? 5 A Well, the best source -- best way to tell a 6 source of bleeding clinically would be to examine the 7 patient. 8 Q Okay. That's my question. You never -- this 9 is an obvious question, but you never examined Carolina 10 Destefano to determine the source of this bleeding, did 11 you? 12 A No. 13 Q And you were never provided any medical 14 records of Carolina Destefano before formulating your 15 opinions to see if anybody else had done an examination 16 to determine if there was rectal bleeding, did you? 17 A No. 18 Q Okay. You don't know if any doctor examined 19 Mrs. Destefano to determine if she had rectal bleeding 20 contemporaneous to the time that this stain was found on 21 this pad that's in evidence as Plaintiff's 6, is that a 22 true statement? 23 A No, I did not review medical records. I 24 looked primarily at the characteristics of the stain, as 25 we have gone through. CENTRAL FLORIDA REPORTERS, INC. 2505 1 Q Well, my question was you don't even know if 2 any doctor ever examined Mrs. Destefano to see if she 3 had any rectal bleeding, do you? 4 A No. 5 Q And would you agree with me, Dr. Anderson, 6 that if a doctor had timely examined Mrs. Destefano 7 after this blood was found, that you would have to defer 8 to that doctor as to whether or not Mrs. Destefano had 9 blood coming out of her rectum, wouldn't you? 10 A Well, that was not the issue. Whether or not 11 she was clinically bleeding, yes. 12 Q Okay. You would have to defer to a doctor who 13 examined her as to whether or not she had blood coming 14 out of her rectum, would you not? 15 A Yes. I mean, I didn't do any clinical 16 evaluation of the patient. We just simply looked at the 17 stain to determine what it was. 18 Q Now, you would also have to agree with me, 19 Dr. Anderson, that examining a patient contemporaneously 20 to blood being found is a much better means of 21 determining a source of bleeding than looking at slides 22 through a microscope years after the event, isn't that 23 true? 24 A No, I would say that's not necessarily true. 25 If you're talking about the stain itself -- CENTRAL FLORIDA REPORTERS, INC. 2506 1 Q No, I'm talking about the patient. 2 A Well, as I indicated, I didn't -- I'm not 3 evaluating the patient, I'm evaluating the stain. And 4 once that's preserved, it's preserved. I mean, it 5 was -- the microscopic section of those cells are going 6 to look the same two hours afterwards or two years 7 afterwards. The results are there in the epithelial 8 cells. 9 Q My question was this, Doctor. You would agree 10 with me, would you not, that examining a patient by a 11 physician contemporaneously to blood being found is a 12 much better means of determining a source of bleeding 13 than looking at a slide through a microscope years 14 later? 15 A I don't understand that question. We're 16 talking about apples and oranges. We're talking about 17 looking at the stain under a microscope of material that 18 came from somewhere. And I'm not sure where that came 19 from, but I can tell you it's not just blood, it's fecal 20 material and -- probably with some blood. 21 Q I know you've been saying that, but your 22 opinion that you're giving the Jury here today, this, 23 whatever you call it, came from Mrs. Destefano's rectal 24 area? That's your opinion, is it not, more probably 25 than not? CENTRAL FLORIDA REPORTERS, INC. 2507 1 A No, my opinion is that the material there is 2 not blood. Now, the DNA from that stain was consistent 3 with Mrs. Destefano, although hers actually wasn't 4 tested. Her blood was not tested. The son's blood was 5 tested. It would be consistent with that from the DNA. 6 But as to where that came from clinically, I don't know. 7 I wasn't -- 8 Q In your deposition you talked about you had an 9 opinion that this blood came from her rectal area, did 10 you not? 11 A I had said it came from a rectal area because 12 of the -- not because it was hers necessarily but -- it 13 helps the DNA matches, but the fact that we have the 14 epithelial cells intermixed with fecal material is going 15 to come from the gastrointestinal tract. That's what I 16 believe I said. 17 Q All right. That's the rectal area, is it not? 18 A The gastrointestinal tract is the whole tract, 19 and the cells are shed throughout the whole thing. As 20 we saw in the picture I showed you, that little -- that 21 was not the rectal area, it was further up in the GI 22 tract, but the cells are being shed. 23 And I demonstrated that to show you that those 24 cells indicate that this is where this is from, a source 25 that has these epithelial cells. That can be the lining CENTRAL FLORIDA REPORTERS, INC. 2508 1 of the rectum, the lining of the gastrointestinal tract, 2 lining of the respiratory tract, so forth. 3 Q All right. Doctor, you would agree with me 4 that the exit area for anything of the gastrointestinal 5 tract is the rectum, correct? That's the escape chute 6 for the tract? 7 A Correct. 8 Q You would also agree with me that an anoscope 9 is an appropriate device to evaluate a patient where 10 rectal bleeding is suspected, would you not? 11 A Well, if it's rectal bleeding. I would leave 12 that to the clinician because I'm not the best one to 13 determine it. 14 Q 'Cause you're not a clinician, are you, in 15 terms of that? 16 A Right. 17 Q You don't treat patients? 18 A No. 19 Q You don't examine patients to determine a 20 source of rectal bleeding? 21 A Not usually. 22 Q You usually deal with dead people? 23 A Well, there's very little difference in the 24 site before someone dies and after they die. So really 25 we're looking -- we're talking about -- we're talking CENTRAL FLORIDA REPORTERS, INC. 2509 1 about a site. It occurred somewhere in the 2 gastrointestinal tract in my opinion. Looking at those 3 cells and that material, that is where that material 4 came from. 5 Q Now, Dr. Anderson, wouldn't it be helpful to 6 you if you were provided medical records before forming 7 your opinion to see what the clinical picture was of 8 Mrs. Destefano as to whether she was found to have 9 rectal bleeding? Wouldn't that be helpful to you? 10 A Not really. If we're looking at the specimens 11 to see where it came from and what the characteristics 12 of the specimen are, then you -- history isn't that 13 critical, unless you're going to try to match up this 14 patient had this going on. But that wasn't what I was 15 asked to do. I was asked to determine is this material 16 from a syringe that's been put on to the bed pad or is 17 it something else, and it's something else. 18 Q You're a forensic scientist, aren't you? 19 A Yes, sir, correct. 20 Q You're Board-certified in forensics, aren't 21 you? 22 A Correct. That's why I went through the 23 process that I went through and not just look at the 24 stain and say, okay, it's blood. 25 Q And as a forensic scientist, wouldn't it be a CENTRAL FLORIDA REPORTERS, INC. 2510 1 good idea to have the medical records to determine what 2 the context was in terms of this stain, to see what the 3 total picture was before you did your analysis? 4 A Well, I mean, if that was what I was asked to 5 do, if the idea was to put it in some context as to how 6 that got there, the answer is yes. But if the question 7 was is this just blood dropped from a syringe or not or 8 is it something else then, no, the fact -- the only 9 reason we know it probably belongs to Mrs. Destefano is 10 because of the DNA that was done as well. Otherwise -- 11 but that wasn't the issue. The issue was was this 12 somebody's blood or somebody's fecal material, and it's 13 somebody's fecal material. 14 Q Well, we know that the testing of the blood 15 from Mr. Destefano was a 99 point something certainty 16 that this was his mother's blood, correct? 17 A Well, that's what I indicated. That's what I 18 said, that that's how we know. And so if you want to 19 use that, then that probably came from her. But the 20 issue was is this pure blood on this bed pad or is it 21 something else. And the fact of the matter is after we 22 did the analysis, it turns out it was something else. 23 MR. OSBORNE: Any objection, Counsel? 24 MS. MARSHALL: No objection. 25 MR. TOWNSEND: No objection. CENTRAL FLORIDA REPORTERS, INC. 2511 1 MR. OSBORNE: I'd like this moved in as 2 Plaintiff's next numbered exhibit. 3 THE CLERK: 27. 4 (Plaintiff's Exhibit No. 27 was marked.) 5 BY MR. OSBORNE: 6 Q Dr. Anderson, I'm going to show you what is in 7 evidence as Plaintiff's Exhibit No. 27, sir. That's a 8 letter to you, isn't it -- 9 A Yes. 10 Q -- from Ms. Petro, who's seated at counsel 11 table to my right? 12 A Yes. 13 Q And this letter -- I'm going to publish part 14 of this letter. It states -- and you're being provided 15 some information in terms of forming your opinions here, 16 are you not? 17 A I'm sorry? 18 Q You're being provided some information that 19 accompanied this letter about the photo of the bed pad, 20 the Amended Complaint, the DNA report, those types of 21 things? 22 A Yeah, I was given that in -- when they sent me 23 that information, yes. 24 Q Now, the other thing that's on here I'm going 25 to publish to the Jury is it says, "The other two CENTRAL FLORIDA REPORTERS, INC. 2512 1 reports show what type of testing has already been done 2 to the bed pad. The opinion regarding the possible 3 contaminant in the blood came from a different blood 4 spatter expert so you will not find any reference to it 5 in Mr. James' report." 6 Do you read that? 7 A Yes. And I took that to mean there was 8 some -- 9 MR. OSBORNE: Judge, Your Honor, there's not a 10 pending question. Dr. Anderson, just wait for the 11 question. If I could, could I have an instruction 12 to that effect? 13 THE WITNESS: I was explaining my answer. 14 THE COURT: You'll have an opportunity to 15 explain when counsel for the Defense gets back up. 16 Just answer the question as posed. 17 A I'm sorry, the question again? 18 Q I think you answered it quite fully, thank 19 you. The question I have for you now is that this 20 reference here is to a blood spatter expert that's 21 different than Stuart James, is that right? 22 A Yes, I believe so. 23 Q And that would have been a blood spatter 24 expert hired by the Defendants in this case, wouldn't 25 it? CENTRAL FLORIDA REPORTERS, INC. 2513 1 A Well, I don't know. I would assume that's a 2 possibility but -- 3 Q Okay. Did you ever have access to that other 4 blood spatter expert to determine what his or her 5 opinion was? 6 A No. 7 Q Have you ever seen a written report from this 8 other blood spatter expert that was hired by the 9 Defendants? 10 A No. 11 Q All right. Weren't you curious about what 12 findings or opinions the other blood spatter expert had 13 to see if that -- if that person agreed or disagreed 14 with Stuart James? 15 A You know, I normally don't even read other 16 experts' reports. I did James' because it was related 17 to some of the testing he did. And I didn't read the 18 whole thing. But my approach was to look at the 19 specimen and figure out what it was without -- I mean, 20 usually I'm a guy that's more or less a second opinion. 21 There was some confusion so they got a second opinion. 22 They asked me to look at it. 23 There clearly had not been the testing done 24 that I did, so I decided we needed to do that in order 25 to fully evaluate what that was. And you saw the CENTRAL FLORIDA REPORTERS, INC. 2514 1 results of what I did. 2 Q Doctor, my question was a lot simpler than 3 that. I just asked you if you were curious about what 4 the opinion was of the other blood spatter expert hired 5 by the Defendants. Were you curious or not? 6 A I believe I answered that and said I don't 7 even usually read blood spatter expert's reports or 8 anybody's expert's reports when I'm dealing with a case. 9 And, no, I mean, they both could be wrong. In fact, 10 it's not blood. It's really out of the province of a 11 blood spatter expert because it's fecal material. I 12 probably had more experience doing rectal exams and 13 seeing this sort of thing occur than any blood spatter 14 expert has. 15 MR. OSBORNE: Your Honor, I'm going to object 16 to this witness testifying about his expertise 17 versus other witness' expertise. 18 THE COURT: Sustained. Doctor, please just 19 answer the question that's asked. 20 BY MR. OSBORNE: 21 Q Doctor, and your opinion is that whatever you 22 evaluated probably came from the rectal area because you 23 did know that there was a constipation issue with this 24 lady and this disimpaction took place, isn't that true? 25 A I indicated that I knew that there had been CENTRAL FLORIDA REPORTERS, INC. 2515 1 episodes of fecal impaction, and that if -- unless this 2 came from an endoscopy where a tube is put up higher, 3 that the sample itself probably came from the rectal 4 area being expunged in some ways. 5 Q And my question was that you knew -- your 6 opinion, that's based in part upon the assumption that 7 there was a disimpaction that took place on 8 Mrs. Destefano, isn't that true? 9 A No. My opinion is based on the fact that -- 10 what I see under the microscope and observe of that 11 stain. 12 Q Let me ask you to -- page 26, line -- starting 13 at line 11. And I've got to do the whole thing to put 14 it in context. And I'm going to read a little bit of 15 it. 16 A Can I have a copy to follow along? 17 Q No. Just hear me out, Doctor. I don't have a 18 copy for you. Question, "Okay." Answer, "So they're 19 not -- they're not in the blood. They don't -- the 20 veins are lined by totally different type of cells. And 21 when you look at a clot, you don't see this. So we know 22 that this material is probably from one of the tracts, 23 and probably the gastrointestinal tract, with fecal 24 material in it, and that it was uniform mixture, 25 indicating that it wasn't a stain and that something was CENTRAL FLORIDA REPORTERS, INC. 2516 1 put on top of it where we would see then a clump of 2 epithelial cells of blood underneath it. Here we see 3 everything that's mixed uniformly." 4 And we're getting to the point right now, 5 Doctor. "So this probably came from -- at one point 6 from the rectal area in which -- and I do know that she 7 was -- there was a constipation issue with this lady and 8 there was necessarily disimpaction and so forth. 9 Frequently you'll get some mucosal bleeding with a 10 disimpaction, and that would -- that would explain the 11 blood, mucus, fecal material and epithelial cells all 12 together because there was -- as disimpaction took 13 place, they were mixed up. The epithelial cells would 14 come off of the fingertips at that point." 15 So you did assume that the mechanism for this 16 blood coming out was at the time a disimpaction took 17 place, didn't you? 18 A I think -- I can't remember the question 19 specifically, but there were many questions asked many 20 different ways. But, yeah, I think it's a good 21 possibility. There's several -- actually nobody had 22 asked me yet about how I thought it might get there, but 23 it could have been during the disimpaction. 24 It could have been flatus or passing of gas 25 with some stimulant stool projected. It could have been CENTRAL FLORIDA REPORTERS, INC. 2517 1 with her lying flat. It could have been on her side. 2 There's just a number of different ways. That wasn't 3 really part of the evaluation. The evaluation was to 4 try to determine what that material was and what that 5 stain was. 6 Q Dr. Anderson, you just testified by deposition 7 that this probably came from the rectal area because of 8 the disimpaction taking place. That's what you just 9 said under oath in your deposition, didn't you? 10 A Well, I think I have said that about five or 11 six times. The other possibility -- as I pointed out 12 earlier, the other possibility is it came from another 13 tract lined by the epithelium. It has to be epithelium, 14 and the respiratory tract is the only other possibility. 15 I said it could have been sputum, but probably -- 16 considering where it was, it most likely came from the 17 gastrointestinal tract. 18 Q Doctor, you weren't shown any medical records, 19 we know that, right? 20 A Right. 21 Q So the only means you had of knowing that 22 disimpaction took place is from these lawyers, isn't 23 that true? 24 A Well, I think I was given some information 25 about the fact that -- and I think it was in some of the CENTRAL FLORIDA REPORTERS, INC. 2518 1 pleadings or whatever it is they sent that there was 2 some -- there was some question, but I didn't really get 3 into that, whether or not she had been disimpacted or 4 not. The question and the answer was is this blood or 5 fecal material. 6 MR. OSBORNE: Your Honor, I'm going to move to 7 strike his answer. He's going off -- beyond the 8 scope of my question. 9 THE COURT: Overruled. 10 BY MR. OSBORNE: 11 Q Go ahead, Doctor, continue your answer. 12 A I'm fine. 13 Q You further assumed that this disimpaction 14 caused some type of injury in order to have bleeding 15 occur, didn't you? 16 A No. 17 Q You haven't had any training or clinical 18 experience with the results of what can occur with 19 disimpacting since medical school, have you? 20 A That is probably -- that is probably true, but 21 things haven't changed too much since then. 22 Q And you finished medical school in 1968, 23 didn't you? 24 A Correct. 25 Q So your last experience with whether or not CENTRAL FLORIDA REPORTERS, INC. 2519 1 bleeding can occur during disimpacting was in 1968, 37 2 years ago, wasn't it? 3 A It's probably true. 4 Q You hold staff privileges at Orlando Regional 5 Health Center, don't you? 6 A No, I do not. 7 Q Have you ever held staff privileges? 8 A I believe at the time we were doing the sexual 9 battery exams that I was on the pathology staff, but 10 that was -- that was all. 11 Q Okay. Dr. Anderson, isn't it true that you 12 did not microscopically test any other part of the bed 13 pad other than the tadpole-shaped stain? 14 A That's correct. That was the issue, and that 15 was really the only area that I saw any particulate 16 material that we could test. 17 Q You would agree with me, would you not, 18 Dr. Anderson, that this is not a clean pad? 19 A That's not clean. 20 Q It's well soiled, isn't it? 21 A Well, not terribly soiled, but there certainly 22 is some smudging on it. 23 Q Okay. In your knowledge of this case, do you 24 know how long this bed pad was in use before it was 25 removed from Mrs. Destefano's bed? CENTRAL FLORIDA REPORTERS, INC. 2520 1 A No, I don't. 2 Q Are you familiar with a term of art used by 3 blood spatter experts called overlay? 4 A Well, I presume it means layering of 5 substances one on top of the other. 6 Q And that would mean that overlay occurs when 7 liquid blood is placed on a fabric that is contaminated 8 with other substances already on the host material, 9 isn't that true? 10 A That's true. And I think that's what -- if 11 you'll recall back a little while ago when we were 12 talking about assuming that that possibility existed, 13 then looking back to the stain and whether or not this 14 is a liquid or a semi-solid material, if it had been a 15 liquid placed over a previously-existing portion of 16 fecal material, then we would have seen the same 17 diffusion or spreading that we see in the blood samples 18 but not in the sampling to the bed pad. 19 Q And that was based upon your naked eye 20 examination of this pad and how the blood diffused on 21 the pad, the distribution of the blood on the pad, 22 correct? 23 A Right. 24 Q And you're not an expert on determining how 25 blood distributes on any material, are you? You're not CENTRAL FLORIDA REPORTERS, INC. 2521 1 a blood analysis expert, are you? 2 A No, only that I've seen blood on gauze 3 millions of times, hundreds of times. 4 Q That doesn't make you an expert in blood 5 pattern analysis, does it? 6 A No, but we don't have -- we don't have blood 7 in this case, we have fecal material. 8 Q So if I dropped a drop of blood on this floor 9 in the courtroom, Dr. Anderson, that would become mixed 10 with whatever microscopic materials were found in this 11 carpet, wouldn't it? 12 A Correct. 13 Q Dust? 14 A Whatever is on the carpet. 15 Q Chemicals? 16 A Whatever is on the carpet. 17 Q So when blood is dropped on a dirty, soiled 18 pad, it also is going to interact with whatever is found 19 on that pad, isn't it? 20 A Correct. But as was demonstrated by 21 Mr. James, I believe it was his own blood stain, it 22 diffused out in a pattern that is distinctly different 23 than what we see on this stain. And that, combined with 24 the fact that we observed fecal material in that, 25 indicated to me that this is a fecal -- this is fecal CENTRAL FLORIDA REPORTERS, INC. 2522 1 material and not blood. 2 Q Let me ask you this. Epithelial cells are the 3 coverings of the surfaces of our inner linings and our 4 outer linings of our body, correct? 5 A That's correct. 6 Q The outer skin has epithelial cells, correct? 7 A Correct. 8 Q You have epithelial cells in your respiratory 9 system? 10 A Correct. 11 Q Your gastrointestinal system? 12 A Correct. 13 Q And these epithelial cells that you saw under 14 the microscope were so degenerated or deteriorated for 15 you that you don't know where they came from, do you? 16 A No. I think the only thing we can say for 17 sure about those -- and if we can, do you want to put 18 this picture up again? I can explain to you -- 19 Q No, sir, I just want you to answer me yes or 20 no. 21 A We can't tell if it came from the respiratory 22 tract or the gastrointestinal tract. The yellow 23 staining in my experience is very characteristic of 24 fecal material, but we couldn't completely rule out that 25 it came from the gastrointestinal tract. CENTRAL FLORIDA REPORTERS, INC. 2523 1 Now, as far as skin goes, the surface skin is 2 a distinct difference. It's almost cells with very 3 small or no nuclei, the surface of skin. So these are 4 larger nuclei. So this was not from the surface of the 5 skin. If we went down many layers in the skin we would 6 find nuclei this size, but it's clearly -- what we call 7 the keratinized layer of skin is not in the sections 8 that I took. 9 So we know it's not from skin, from surface 10 skin. Could be from a deep scrape of a wound possibly, 11 but that's unlikely because there was no injury that I 12 know of to other parts of the skin. So most likely it 13 came from the respiratory or gastrointestinal. And 14 because of the look of that material, I think it was 15 fecal material. 16 Q Doctor, isn't it a fact that those epithelial 17 cells were so degenerated, you could not tell where they 18 came from? Isn't that true? 19 A I think I answered that as best we can. We 20 can say because of size of those cells they did not come 21 from skin. And I would venture that if you showed that 22 slide to a hundred pathologists, everybody would agree 23 it was epithelial cells, not from the skin. Possibly 24 respiratory, possibly gastrointestinal. 25 MR. OSBORNE: Move to strike the last part of CENTRAL FLORIDA REPORTERS, INC. 2524 1 the answer as being unresponsive and also trying to 2 bolster his opinion through unknown experts. 3 THE COURT: Insofar as the reference to 4 unknown experts, I would grant that motion. In all 5 other respects it is denied. The court -- the Jury 6 will disregard any reference to any experts 7 referenced in the testimony. 8 BY MR. OSBORNE: 9 Q Doctor, a human being sloughs off tens of 10 thousands of dead skin cells or epithelial cells every 11 day, don't they? 12 A Correct. 13 Q And they shed frequently and they're 14 constantly being replenished by the human body, aren't 15 they? 16 A Correct. 17 Q And you would expect someone who lies in a bed 18 to leave skin epithelial cells in the bed, correct? 19 A Correct. 20 Q In fact, the reason that patients get 21 bedsores, if they're not moved frequently enough, is 22 because the skin sloughs off so much that it eventually 23 gets to the tissue and blood and the like, correct? 24 A Well, actually the bedsore -- if you want to 25 get into the physiology of the bedsore, it has really CENTRAL FLORIDA REPORTERS, INC. 2525 1 nothing to do with the skin but the pressures and the 2 circulation to the skin and the soft tissues. So the 3 bedsore analogy, we don't see anything resembling what 4 we would see in a bedsore, severe inflammation, other 5 tissue, dead tissue. 6 But as I indicated before, the surface cells 7 have very, very small nuclei and a lot of what we call 8 keratinized cytoblasts. We don't see that in this 9 section that I took so it's not surface skin. 10 Q Do you know whether or not Carolina Destefano 11 wore underwear when she was in her bed? 12 A No, I don't. 13 Q Do you know whether or not Carolina 14 Destefano's gown was open in the back? 15 A No. 16 Q Do you know whether or not Carolina Destefano, 17 in the course of lying in a cachectic state, would have 18 deposited any fecal material on this pad in the course 19 of her lying there over a number of hours? 20 A I don't know. It's possible she did. Maybe 21 she did, maybe she didn't. I don't know. 22 Q So it's certainly possible or probable that if 23 a person was lying here without underwear, without a 24 back on her gown and she was lying on this bed for a 25 number of hours that she would deposit fecal material on CENTRAL FLORIDA REPORTERS, INC. 2526 1 the pad? 2 A It depends on the status of her bowel 3 function. 4 Q It's possible? 5 A Sure, it's possible. 6 Q Probable? 7 A I don't know. It depends on the status of 8 her -- did she have -- is she impacted, does she have 9 liquid stool, is she losing some of it, how often she is 10 losing it. 11 Q In terms of your opinion that this fecal 12 material came through the gastrointestinal tract, 13 wouldn't it be helpful to determine through analysis if 14 any other part of this pad had fecal material on it? 15 A Well, I mean, I believe that there is fecal 16 material from the yellow staining on -- the yellow 17 smudging that there is some remnants of fecal material. 18 We're looking specifically at that stain, as to whether 19 or not it was blood or if it was some other substance. 20 Q Wouldn't it be helpful to look on another part 21 of the pad to see if there was fecal material on any 22 other part of the pad other than the stain that you 23 looked at? 24 A As far as determining whether or not that's 25 fecal material in the stain I looked at, it doesn't CENTRAL FLORIDA REPORTERS, INC. 2527 1 really matter whether it's there or it isn't there. The 2 fact of the matter is what we looked at and analyzed is 3 fecal material. 4 Q Wouldn't it be helpful for you to look at 5 other parts of the pad to see if there were epithelial 6 cells in another part of the pad other than what was 7 found in the tadpole-shaped stain? 8 A Well, it's going to be difficult unless 9 there's -- the reason we sampled that area was because 10 there was a particulate aggregate of material and that 11 allowed us to look at that. Just taking cells off of 12 the surface of a bed pad would have not -- I don't 13 believe we would have found anything. 14 Q Well, you would agree with me that Carolina 15 Destefano as a normal person would have been sloughing 16 off epithelial cells from her skin on that pad? 17 A Sure. 18 Q And you'd expect to be able to find them 19 microscopically if you were looking -- if you did a 20 microscopic examination somewhere on that the tadpole 21 shape? 22 A Well, possibly. It would have meant basically 23 destroying the entire pad. And we were sort of told to 24 minimize the amount of alteration we did, although we 25 didn't destroy anything. We just moved it to a CENTRAL FLORIDA REPORTERS, INC. 2528 1 different venue, if you will, put it under the 2 microscope instead of on the pad. 3 Q Your opinion is that the blood and the other 4 materials were mixed together at the same time and this 5 came out on the pad, correct? 6 A No, that wasn't your question. The question 7 was could the blood have been put on top of the 8 material, and the answer to that is no. In my opinion 9 the way the blood did not diffuse out indicates that it 10 was all a conglomerate, if you will, when it was on the 11 bed pad. And that's why it held the shape, that's why 12 it didn't diffuse out. And as a matter of fact, that is 13 why we found the material consistent with fecal material 14 in it because it was a semi-solid fecal material. 15 Q Doctor, your opinion that these epithelial 16 cells most likely came from the gastrointestinal tract 17 is because of the presence of fecal material, correct? 18 A Correct. 19 Q Because the cells themselves are too 20 degenerated for you to determine that microscopically, 21 correct? 22 A Well, yes, but that's basically what the 23 problem is. But there -- the nuclei are sufficiently -- 24 preserved in sufficient numbers to determine that they 25 are epithelial cells. But as I indicated, it's a CENTRAL FLORIDA REPORTERS, INC. 2529 1 possibility they came from the respiratory tract. But 2 the fecal material intermixed with that yellow stain 3 material, which in my experience is fecal material, that 4 is what it looks like under the microscope, is 5 consistent with gastrointestinal origin. 6 Q Doctor, if the fecal material had already been 7 on the bed pad and the overlay occurred where blood went 8 on the bed pad, would you agree with me that you don't 9 know where the epithelial cells came from? 10 A Well, that's why we don't just take one issue. 11 We look at the entire process. If -- well, I've 12 answered this, this is about the fifth time, but if the 13 blood was put over a particle of fecal material, it 14 would have diffused out, just like the blood does in my 15 demonstration and Mr. James' demonstration. It diffuses 16 out, it doesn't stay. 17 So we don't just take one -- sort of like 18 putting a piece of the puzzle together. We don't just 19 look at one thing. We just didn't look with the naked 20 eye. So that doesn't really alter my opinion. 21 Q Didn't Mrs. Destefano have a healing wound on 22 her coccyx? 23 A I don't know. 24 Q You don't know that, do you? 25 A I don't know. CENTRAL FLORIDA REPORTERS, INC. 2530 1 Q Wouldn't a healing wound on a coccyx of a 2 person also be a potential contaminator of a clean pad? 3 A Well, there are a number of potential 4 contaminators. There could be a fistula where fecal 5 material was coming out of different orifices, for 6 instance. But the issue was is this fecal material or 7 was this blood basically out of a syringe. And again, 8 this is consistent with fecal material. 9 Q You mentioned -- you had mentioned a couple of 10 times now that you did an experiment and put blood on a 11 pad, correct? 12 A Correct. 13 Q Did you have a -- did you take a pad and soil 14 it and put other contaminants on it or did you have a 15 clean pad? 16 A I used a clean pad. 17 Q So in terms of your clean pad analysis, would 18 you agree with me that if you put blood on a clean pad 19 without fecal material or epithelial cells or other 20 contaminants, that that's not the same as putting blood 21 on a -- let me start over. 22 If you used a clean pad and not a pad that has 23 other contaminants on it, would you agree with me that 24 the -- there's a difference in how that would occur, in 25 terms of how the blood would diffuse, if there were CENTRAL FLORIDA REPORTERS, INC. 2531 1 other elements on the pad, not having a clean pad? 2 A I think the blood as a liquid would diffuse. 3 And actually if you want to go to Mr. James' pictures, 4 they actually show the same diffusion, probably even a 5 little bit better than mine did. 6 Q He used a clean pad, too, didn't he? 7 A I guess he felt that was -- 8 Q No, just -- 9 A -- that was sufficient to -- as far as I know, 10 he used a clean pad. 11 Q All right. No further questions. Thank you. 12 THE COURT: Redirect? 13 - - - - - 14 REDIRECT EXAMINATION 15 BY MS. MARSHALL: 16 Q Dr. Anderson, when you looked at the blood 17 under the microscope, did it -- or I should say the 18 material under the microscope, did it appear to you that 19 there was layering? 20 A No. As I indicated, it appears that it's a 21 single substance, a mixture which included everything 22 we've described under the microscope. 23 Q Okay. Was it uniformly mixed? 24 A I would say it was fairly uniformly mixed, 25 yes. CENTRAL FLORIDA REPORTERS, INC. 2532 1 Q And would -- the fact that it was uniformly 2 mixed, does that have any impact on your opinion of 3 whether it was -- there was layering of fecal material, 4 cells and then blood on top of that? 5 A Well, that was -- that was part of it. In 6 fact, the fact that it was evenly mixed indicated that 7 it had occurred before it was put on the pad, the 8 mixture. But the other -- as far as what -- if there 9 was liquid placed on -- liquid blood placed on top of an 10 already present fecal material, then -- and clearly 11 there wasn't any right around it. 12 If you look at it, there's none right around 13 it. So it wasn't a -- and it held its shape. So that 14 was probably more important is the fact that there 15 wasn't blood, that it didn't do that diffusion but 16 stayed pretty much in its form. There was form to it. 17 MS. MARSHALL: No further questions. 18 THE COURT: Ladies and Gentlemen of the Jury, 19 do any of you have a question for this witness? 20 Yes, I see that there are questions. I would ask 21 counsel to approach the Bench. Anybody else? We 22 got everybody now? Okay. 23 (Whereupon there was had a discussion at the 24 Bench outside the hearing of the Jury.) 25 THE COURT: Could the stain on the bed pad CENTRAL FLORIDA REPORTERS, INC. 2533 1 ever have been bright red? The example of Power 2 Point of blood stain you did, was it on the same 3 type of pad? Was any other material such as 4 lubricant or Vaseline found in the stain? 5 MR. OSBORNE: No problem. 6 THE COURT: No objections to those? Hold on a 7 second. Witnesses have stated that, quote, bright 8 red blood, close quote, was seen on the pad. If 9 fecal material is coming from the rectum, wouldn't 10 the color -- colorization be different? 11 MR. OSBORNE: That is okay. 12 THE COURT: Were you hired to determine the 13 contents of the stain or how it got there? Please 14 clarify. 15 MR. OSBORNE: That's fine. 16 (Whereupon the discussion at the Bench was 17 concluded, after which the following proceedings 18 were had.) 19 THE COURT: Okay. Doctor, I'm going to ask 20 you a number of questions that are from the Jury. 21 I'll ask the question, ask that you direct your 22 answers to the Jury. 23 THE WITNESS: Okay. 24 THE COURT: Could the stain on the bed pad 25 ever have been bright red? CENTRAL FLORIDA REPORTERS, INC. 2534 1 THE WITNESS: Yeah, it would have -- I don't 2 believe because of fecal material it would have 3 been a bright red. There is some coloration 4 change, though, over a period of time. So the 5 coloration, if at some point it appeared bright 6 red, is because I believe there was blood mixed in 7 with that fecal material. I don't believe it was 8 pure fecal material, as I've indicated. 9 THE COURT: The example in your Power Point of 10 blood stain you did, was it on the same type of 11 pad? 12 THE WITNESS: Yes, it was. The seams were a 13 little different, the stitching, but it was the 14 same type of bed pad. 15 THE COURT: Excuse me. Was any other 16 material, such as lubricant or Vaseline, found in 17 the stain? 18 THE WITNESS: No. I don't believe we would be 19 able to tell that. 20 THE COURT: Witnesses have stated that, quote, 21 bright red blood, close quote, was seen on the pad. 22 If fecal material is coming from the rectum, 23 wouldn't the colorization be different? 24 THE WITNESS: It would be -- it could be red 25 but not probably not bright red. CENTRAL FLORIDA REPORTERS, INC. 2535 1 THE COURT: Were you hired to determine the 2 contents of the stain or how it got there? Please 3 clarify. 4 THE WITNESS: Well, basically the content. 5 THE COURT: Any other questions, Ladies and 6 Gentlemen of the Jury, for this witness? 7 Ms. Marshall, do you have any follow-up questions 8 for the witness? 9 MS. MARSHALL: Just one. 10 - - - - - 11 REDIRECT EXAMINATION- CONT. 12 BY MS. MARSHALL: 13 Q Dr. Anderson, you said that you were hired to 14 figure out the content of what was on the pad, correct? 15 A Right, the character of the stain and what it 16 was in that stain. 17 Q Does the character of the stain allow you to 18 come to any conclusions as to where it came from or any 19 possibilities as to where it came from? 20 A Well, I think we've been through that. I 21 believe it came from the gastrointestinal tract. 22 Q Okay. Thank you. 23 MS. MARSHALL: No further questions. 24 THE COURT: Mr. Osborne, anything further? 25 MR. OSBORNE: Nothing further, Your Honor. CENTRAL FLORIDA REPORTERS, INC. 2536 1 MR. TOWNSEND: Nothing further, Judge. 2 THE COURT: Doctor, you are excused. 3 THE WITNESS: Thank you, Your Honor. 4 THE COURT: Ladies and Gentlemen of the Jury, 5 I believe your lunch has arrived. I'll ask you to 6 step into the jury room, and we'll be with you just 7 as soon as we can. 8 (Whereupon the Jury exited the courtroom.) 9 THE COURT: Okay. You are going to play the 10 videotape on the return? 11 MS. MARSHALL: Correct. 12 THE COURT: And you expect that to be two -- 13 MS. MARSHALL: I think the combination of the 14 three tapes, it's three hours -- I mean two hours. 15 I'm sorry, two hours. 16 THE COURT: Okay. My intention at that point 17 is to ask that you announce that the Defense rests 18 from both of you, you put on any rebuttal 19 witnesses, should you need to, and I would excuse 20 the Jury at that point. We'll discuss jury 21 instructions and then probably conclude early 22 today. I'll hear any additional motions at that 23 point as well. 24 MR. TOWNSEND: The only thing was the 25 publishing of the -- CENTRAL FLORIDA REPORTERS, INC. 2537 1 THE COURT: Yeah. Any incidental matters, 2 also, we won't forget that. If I do, remind me. 3 That sounds like a schedule we can adhere to now? 4 MS. MARSHALL: Yes, Your Honor. 5 MR. OSBORNE: Yes, Your Honor. 6 THE COURT: Anything before we break for half 7 hour? Those tapes will go into the record as 8 evidence? You don't want the court reporter to 9 take down the -- you don't want her to transcribe 10 the contents of the tape? 11 MS. MARSHALL: I don't believe that's 12 necessary. I think the tapes themselves will go 13 into evidence. 14 THE COURT: That's fine with everyone? 15 MR. OSBORNE: That's fine. 16 THE COURT: I agree. 17 MS. MARSHALL: Other than if we have some -- I 18 think on one of the tapes there's two places where 19 I think there's some objectionable hearsay. But 20 other than that, I would want the court reporter to 21 take that down. 22 THE COURT: Does Mr. Osborne know what that 23 is? 24 MR. OSBORNE: I don't. 25 THE COURT: Well, maybe you can discuss it. CENTRAL FLORIDA REPORTERS, INC. 2538 1 MS. MARSHALL: Okay. 2 THE COURT: I don't know if that can be 3 resolved in advance. Otherwise, that's fine, we'll 4 get it on the transcript and I'll rule. All right. 5 We'll be in recess. 6 (Whereupon, there was had a recess from 11:58 7 o'clock a.m., to reconvene at 12:33 o'clock p.m.) 8 * * * * * 9 Continued to Volume XIX 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2539 1 C E R T I F I C A T E 2 STATE OF FLORIDA) 3 COUNTY OF ORANGE) 4 I, SHARON L. TRAMONTE, R.M.R., certify that I was 5 authorized to and did stenographically report the 6 foregoing proceedings and that the transcript is a true 7 and accurate record. 8 Dated this 2nd day of June, 2006. 9 10 . 11 ___________________________________ 12 SHARON L. TRAMONTE, R.M.R. 13 14 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC.