2540 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 XIX 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. 2541 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. 2542 1 I N D E X - VOLUME 2 VIDEOTAPES PUBLISHED TO JURY 2546 (Not reported by Court Reporter) 3 DEFENDANT ORHS RESTS 2553 4 DEFENDANT/ROLLINS BEDFORD RESTS 2560 5 PLAINTIFF RESTS 2560 6 DEFENDANT/ORHS RENEWED MOTION FOR 2563 7 DIRECTED VERDICT 8 DEFENDANT/ROLLINS BEDFORD RENEWED 2563 MOTION FOR DIRECTED VERDICT AND MOTION 9 FOR MISTRIAL 10 DEFENDANT/ORHS MOTION FOR MISTRIAL 2563 11 ARGUMENT ON JURY INSTRUCTIONS 2564 12 13 14 E X H I B I T S 15 Defendants' Exhibit Nos. 7, 8 and 9 2550 Defendants' Exhibit No. 10 2551 16 Defendants 'Exhibit No. 11 2552 Defendants' Exhibit No. 12 2553 17 Defendants' Exhibit No. 13 2559 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2543 1 2 THE COURT: All right. Are we all set now? 3 MS. MARSHALL: Your Honor, we are. There is 4 one issue, though. Before the break Mr. Osborne 5 informed me that he wanted to call Kendra Blythe. 6 I had originally -- she was on our witness list as 7 a rebuttal witness. She was on our witness list. 8 I had told Mr. Osborne that we're not calling her. 9 She is not under subpoena from him and I released 10 her yesterday. She's working today. 11 MR. OSBORNE: I subpoenaed her. 12 THE COURT: Oh, she's under subpoena from you? 13 MS. MARSHALL: She said she's not been 14 subpoenaed by you. 15 THE COURT: If she's not under subpoena, you 16 got a problem. If she is -- 17 MR. OSBORNE: And I'll confirm that. I'll get 18 my office to get the return on that. 19 THE COURT: We'll take that up, but if she is 20 not under subpoena, she's not coming I don't 21 imagine. 22 MS. MARSHALL: That's what she had informed 23 me. 24 MR. OSBORNE: I would agree if she's not under 25 my subpoena I don't have any control of her, but CENTRAL FLORIDA REPORTERS, INC. 2544 1 she is under my subpoena. 2 THE COURT: Yeah, just double check and let us 3 know what your -- I think if she's under the 4 subpoena, the fact that you released her doesn't 5 release her from the obligation of that subpoena. 6 MS. MARSHALL: Well, the other thing 7 is -- we've put on two experts and one factual 8 witness related to Vitas. Her testimony is not 9 proper rebuttal testimony. 10 THE COURT: Well, let's deal with the issue of 11 subpoena first, and then whether she -- I don't 12 know. I'd have to hear from Mr. Osborne about what 13 he intends to put on her for. 14 MR. OSBORNE: Judge, I was -- as late as last 15 night I was told that she was going to be called 16 today, and I wasn't told -- this morning I learned 17 she wasn't going to be called. 18 MS. MARSHALL: That is not true. I told 19 Mr. Osborne last night who we were calling. 20 THE COURT: Well -- 21 MR. OSBORNE: Then I misunderstood. 22 THE COURT: We don't need to play semantics. 23 But in any event, if she's not a proper rebuttal 24 witness, that's also reason not to allow her. So I 25 would -- you know, I'd consider that as well. CENTRAL FLORIDA REPORTERS, INC. 2545 1 Let's find out about the subpoena, and then I'll 2 hear any further arguments as necessary. Is 3 Mr. McCollough going to figure out -- 4 MR. OSBORNE: He's making the call right now, 5 Judge. 6 THE COURT: Okay. Are you ready -- 7 MS. MARSHALL: We're ready, Your Honor. 8 THE COURT: -- to start the video? 9 MR. EVANS: Yes, ma'am. 10 THE COURT: Bring them in. 11 (Off the record discussion was had.) 12 MS. MARSHALL: Bill, can I mark these directly 13 as exhibits? 14 MR. OSBORNE: I have no objection. 15 THE COURT: Next three numbered Defense 16 exhibits. 17 THE CLERK: 28, 29 and 30. 18 (Whereupon the Clerk misnumbered Defendants' 19 Exhibits 28 - 30, and they were remarked correctly 20 later in the transcript as Defendant's Nos. 7 - 9.) 21 (Whereupon the Jury entered the courtroom.) 22 THE COURT: Good afternoon. Ms. Marshall? 23 MS. MARSHALL: Thank you, Your Honor. At this 24 time we'd like to play the videotapes that have 25 been introduced into evidence as Defendant's CENTRAL FLORIDA REPORTERS, INC. 2546 1 Exhibits 28, 29 and 30. 2 THE COURT: Do you know how to work that 3 thing? 4 MS. MARSHALL: No, I do not. 5 THE COURT: Okay. It's a common problem. 6 MS. MARSHALL: I think I figured it out. 7 (Whereupon the videotape was published for the 8 Jury.) 9 MS. MARSHALL: This is where we have our 10 objection, Your Honor. This is objection, hearsay, 11 Your Honor. 12 THE COURT: Do you wish to be heard? 13 MR. OSBORNE: Judge, may we approach the 14 Bench? 15 (Whereupon there was had a discussion at the 16 Bench outside the hearing of the Jury.) 17 MR. OSBORNE: I don't think any of this is 18 being used to prove the truth of the matter 19 asserted. This is just -- that is picketing and 20 it's activity that's occurring. 21 MS. MARSHALL: There is -- 22 THE COURT: This is another person. 23 MR. OSBORNE: But she just led him -- we just 24 had the police officer talking and that's hearsay. 25 I mean, where do you draw the line? CENTRAL FLORIDA REPORTERS, INC. 2547 1 THE COURT: Where objections are made. 2 MR. OSBORNE: Yes, Your Honor. 3 MS. MARSHALL: The conversation -- 4 THE COURT: Tell me what the conversation is, 5 the statement. I don't know what your response 6 really is in terms of a legal -- 7 MR. OSBORNE: I'll be objecting to hearsay 8 every time I hear it, Judge. 9 THE COURT: Well, that's just going to make 10 this twice as long as -- is there really anything 11 objectionable? 12 MS. MARSHALL: I think that's the only part. 13 THE COURT: I don't have any choice but to 14 sustain an objection if he does it again. We're 15 going to have to stop every time everybody engages 16 in it, unless there's some response from you. You 17 might -- 18 MS. MARSHALL: That was my objection. 19 THE COURT: I understand, but now he's 20 making -- saying that he's going to raise the same 21 objection to any other hearsay. 22 MS. MARSHALL: I don't think it's that big of 23 a deal. If you want to just watch it and agree 24 that they're not used for the matter of the truth 25 asserted. CENTRAL FLORIDA REPORTERS, INC. 2548 1 THE COURT: Do you want to withdraw your 2 objection? 3 MS. MARSHALL: I'll withdraw my objection. 4 MR. OSBORNE: That'll be a lot easier. 5 THE COURT: Okay. 6 (Whereupon the discussion at the Bench was 7 concluded, after which the following proceedings 8 were had.) 9 (Whereupon the playing of the videotape was 10 resumed.) 11 MR. OSBORNE: Your Honor, can we approach the 12 Bench? 13 THE COURT: Yes. 14 MR. OSBORNE: You want to put that on pause 15 for a second? 16 (Whereupon there was had a discussion at the 17 Bench outside the hearing of the Jury.) 18 MR. OSBORNE: Judge, it's my understanding 19 there's no more video on this, the rest of the 20 tape. I'm willing to waive my situation about 21 playing the rest -- 22 MS. MARSHALL: He wanted to hear the whole 23 thing, I think they should hear the whole thing. 24 THE COURT: Well, is there any relevant 25 material? CENTRAL FLORIDA REPORTERS, INC. 2549 1 MS. MARSHALL: There was a whole lot of 2 irrelevant material. 3 THE COURT: Okay. But -- let's not do that. 4 Is there relevant material from here on out? 5 MS. MARSHALL: Yeah, I think so. 6 THE COURT: And what is it? 7 MS. MARSHALL: He's talking to the cops that 8 stopped him. 9 THE COURT: What is that relevant to? 10 MR. OSBORNE: No, he's no longer -- 11 THE COURT: Whoa, whoa. 12 MS. MARSHALL: I mean, I think it's relevant, 13 what was on the tape before. 14 THE COURT: That's not at issue. What is it 15 relevant to? What material issue in the case is it 16 relevant to? 17 MS. MARSHALL: Nothing. 18 THE COURT: Okay. It's an objection to -- 19 MR. OSBORNE: Irrelevant, and I think there no 20 more video. I would say we cease with the taping 21 at this point. It's a waste of time. 22 THE COURT: Anything further? 23 MS. MARSHALL: That's fine. 24 THE COURT: No good deed goes unpunished. 25 Sustained. CENTRAL FLORIDA REPORTERS, INC. 2550 1 MR. OSBORNE: I know, Judge. 2 (Whereupon the discussion at the Bench was 3 concluded, after which the following proceedings 4 were had.) 5 THE COURT: That concludes our feature 6 presentation. Does Defense have anything further 7 to introduce? 8 MS. MARSHALL: Yes, Your Honor, just a couple 9 of housekeeping matters. We'd like to move into 10 evidence Defendant's Exhibit No. N. 11 THE COURT: Just one moment, please. We have 12 a misnumbering issue that we need to just get clear 13 with Madam Clerk. 14 MS. MARSHALL: Okay. 15 THE CLERK: The videotapes that were presently 16 introduced under Plaintiff's 28, 29 and 30, should 17 have been Defense 7, 8 and 9. 18 MS. MARSHALL: Okay. 19 (Defendants' Exhibit Nos. 7, 8 and 9 were 20 marked into evidence.) 21 THE COURT: Okay. Go ahead. 22 MS. MARSHALL: And we would like to introduce 23 Defendant's Exhibit No. N. 24 MR. OSBORNE: No objection. 25 THE COURT: It would be admitted. CENTRAL FLORIDA REPORTERS, INC. 2551 1 (Defendants' Exhibit No. 10 was marked into 2 evidence.) 3 THE CLERK: Defendant's 10. 4 MS. MARSHALL: And Defendant's Exhibit W. 5 MR. OSBORNE: I'm going to object to that, 6 Your Honor. 7 THE COURT: Approach the Bench. 8 (Whereupon there was had a discussion at the 9 Bench outside the hearing of the Jury.) 10 THE COURT: What is this? 11 MS. MARSHALL: These are the exhibits to 12 Dr. Krop's trial deposition. 13 MR. OSBORNE: It is the entire contents of his 14 Navy record, including the bad conduct information 15 and a lot of things that weren't even asked about. 16 But it's his complete history with the Navy and 17 what was going on there. And she published in the 18 deposition things she wanted to talk about, but the 19 entire record is in here. And that is privileged 20 under 90.403. 21 MS. MARSHALL: I don't mind removing the -- 22 everything but the report that was -- there was two 23 things we agreed to in -- 24 THE COURT: See if you can reach an agreement 25 on that. I'll indicate in the presence of the Jury CENTRAL FLORIDA REPORTERS, INC. 2552 1 that the Court will reserve ruling on that exhibit. 2 If you want it admitted after you remove it, in the 3 presence of the Jury I'll bring it back in. 4 MS. MARSHALL: Okay. Do you want me to go to 5 remove it now? 6 THE COURT: Can you do it quickly now? 7 MS. MARSHALL: Yeah, yeah. 8 THE COURT: All right. 9 (Whereupon the discussion at the Bench was 10 concluded, after which the following proceedings 11 were had.) 12 MR. OSBORNE: With that change, Your Honor, I 13 have no objection. 14 THE COURT: And that exhibit then will be 15 admitted as the Defendant's next numbered exhibit. 16 THE CLERK: 11. 17 (Defendants' Exhibit No. 11 was marked into 18 evidence.) 19 MS. MARSHALL: Then the last thing, Your 20 Honor, we would like to introduce Defendant's 21 Exhibit X, which are the complete Florida Hospital 22 records because I think that the Plaintiff's 23 version has some missing nurse's notes. 24 MR. OSBORNE: I don't have any objection. 25 THE COURT: That will be admitted as the next CENTRAL FLORIDA REPORTERS, INC. 2553 1 numbered Defense exhibit. 2 THE CLERK: 12. 3 (Defendants' Exhibit No. 12 was marked into 4 evidence.) 5 MS. MARSHALL: And then if we could just be 6 heard on the last exhibit that -- we would like 7 to -- I don't know if you want to do this outside 8 the presence of the Jury, the parts that were 9 removed from Dr. Krop's files. 10 THE COURT: Why don't we go ahead and hear 11 from ORHS with respect to closing its presentation? 12 MR. TOWNSEND: Your Honor, I know it will 13 bother everybody, but we'll rest. 14 THE COURT: Ladies and Gentlemen, I'm going to 15 deal with one brief matter. I think I can do this 16 outside your presence and give you a very short 17 break and bring you back in. And then we'll I 18 expect conclude for the day, but I do need to have 19 a couple of matters addressed in your presence. If 20 you would follow our corporal back into the Jury 21 room briefly. 22 (Whereupon the Jury exited the courtroom.) 23 THE COURT: Ms. Marshall? Be seated. 24 Ms. Marshall? 25 MS. MARSHALL: Yes, Your Honor. It's CENTRAL FLORIDA REPORTERS, INC. 2554 1 actually -- Defendant's Exhibit R is the complete 2 set of the witness's -- of the Plaintiff's military 3 records. There were -- 4 THE COURT: And the objection is relevancy? 5 MR. OSBORNE: Yes. And I think 6 you're including within that 90.403 as well, Judge, 7 but both relevancy and 90.403. 8 MS. MARSHALL: Your Honor, the psychologist 9 that has testified on behalf of Plaintiff has made 10 a lot of assumptions about Mr. Destefano's 11 pre-incident behavior. He specifically asked him 12 for medical records, they were not given those. 13 The military records contain medical records and 14 histories that were something that Dr. Krop admits 15 that he should have looked at or would have been 16 relevant, asked for but was not provided. 17 Dr. Krop also talks quite a bit in his 18 testimony about the Plaintiff's early childhood or 19 teen and early adulthood conduct and his 20 personality traits that relate to that. And I 21 think his military record, with all the different 22 complaints and disciplinary actions, are very 23 relevant to his -- the personality traits and the 24 disorders that Dr. Krop opined to. 25 THE COURT: Well, the question is whether the CENTRAL FLORIDA REPORTERS, INC. 2555 1 evidence tends to prove or disprove a material fact 2 before the Court. And I guess from your statement 3 you would say that it -- his psychological 4 well-being is -- prior to the event in question is 5 relevant to the damages being sought here? 6 MS. MARSHALL: That's correct. And it's 7 also -- I mean, it's -- 8 THE COURT: And -- yeah, go ahead. 9 MS. MARSHALL: It's a defamation case. I 10 mean, the witness -- or the Plaintiff's character 11 is at issue, his reputation, his character, his -- 12 and because of the -- 13 THE COURT: And so the question then becomes 14 is the -- is the probative value of the earlier 15 records substantially outweighed by the damage of 16 an unfair privilege, which I think is what 17 Mr. Osborne is saying. That these things being so 18 remote in time for one thing, and I'll hear from 19 him as to other aspects of the records, that cause 20 them to be unfairly prejudicial to the Plaintiff. 21 And how would you respond to that, Ms. Marshall? 22 MS. MARSHALL: The remoteness in time, I think 23 that that -- that the psychologist relying -- 24 opining about his behavior, actually specifically 25 asking, I mean, in his background that, you know, CENTRAL FLORIDA REPORTERS, INC. 2556 1 he wants to delve into his childhood, his early 2 teens in order to figure out, you know, his 3 personality and how he's been damaged. 4 And so I think that the psychologist's report, 5 his opinion, his testimony has made all of that 6 relevant. 7 THE COURT: Mr. Osborne? 8 MR. OSBORNE: Your Honor, the childhood is 9 merely background material to the testing that he 10 did. The two-page psychiatric examination that 11 Dr. Krop was asked about is in the exhibit I sent 12 to go into evidence. The entire balance of the 13 medical -- or of the military record has to do with 14 the discipline problems that Mr. Destefano had at 15 the age of 20 when he was in the Navy. 16 And there's things in there about him not 17 following orders and being disciplined, being put 18 in the brig. And there's a whole two-inch or 19 three-inch volume of these type of things that were 20 going on. 21 The only relevance to Dr. Krop, and when we 22 had the Motion in Limine this is what the Court got 23 stuck on, is the prior psychiatric record, which is 24 in evidence and was talked about at Dr. Krop's 25 deposition. CENTRAL FLORIDA REPORTERS, INC. 2557 1 The rest of this clearly is remote in time and 2 is nothing more than a character assassination. 3 Character is not at issue in this case. 4 Mr. Destefano's reputation in the community and 5 whether he suffered emotional harm and anguish and 6 humiliation by this is at issue. But in terms of 7 these remote acts that occurred when he was 19 and 8 20 years old in the Navy, they clearly -- any 9 probative value is clearly outweighed by the 10 prejudicial value of that. 11 THE COURT: I disagree. I think in this case 12 where Mr. Destefano has put his mental state at 13 issue, where there is clearly some reliance on the 14 past by his expert, where his reputation is central 15 to the disposition of this case, I do not believe 16 that the probative value, notwithstanding the 17 remote in time, is substantially outweighed by the 18 danger of unfair prejudice. 19 And so I would permit the document to be 20 admitted as the next numbered exhibit. And so we 21 need to bring the Jury in to do that in the 22 presence of the Jury. And then I expect that the 23 Rollins Bedford Defendant would then rest? 24 MS. MARSHALL: That's correct. 25 THE COURT: And I would ask you what your CENTRAL FLORIDA REPORTERS, INC. 2558 1 intentions are at that point. 2 MR. OSBORNE: I have no rebuttal witnesses. I 3 do have a rebuttal exhibit to go into evidence. 4 THE COURT: And what is that, so we can just 5 address any issues? 6 MR. OSBORNE: It is Plaintiff's AM for 7 identification. It was a letter that was published 8 to the Jury on the tape during the first picketing 9 tape. Has to do with a letter, when he was talking 10 about faxing this letter over to Rollins Bedford, 11 and that is -- 12 THE COURT: That's a letter from your client? 13 MS. MARSHALL: No, that's from Mr. -- 14 THE COURT: Right, from your client, I know. 15 I was pointing at you. 16 MR. OSBORNE: Correct. It's the one that he 17 had on the first tape. 18 MS. MARSHALL: That was the one that you ruled 19 on yesterday that Mr. Osborne tried to get in, that 20 he was arguing that it went to state of mind. 21 MR. OSBORNE: It's just been published to the 22 Jury. 23 MS. MARSHALL: I think it was published -- 24 MR. OSBORNE: He had on camera, Your Honor. 25 The Jury -- CENTRAL FLORIDA REPORTERS, INC. 2559 1 THE COURT: Right, but did he read it to the 2 Jury? 3 MS. MARSHALL: No. He was filming himself 4 mailing it. 5 MR. OSBORNE: It was on camera legible for the 6 Jury to see for a period of time during the tape 7 of -- that first picketing tape. That is a 8 publication sufficient to warrant that going into 9 evidence. 10 THE COURT: I don't think so. That's not 11 coming in. I ruled on that yesterday. What else 12 do you have, Mr. Osborne? 13 MR. OSBORNE: Nothing, Your Honor. 14 THE COURT: Okay. All right. Let's bring the 15 Jury in and get them out of here. 16 (Whereupon the Jury entered the courtroom.) 17 THE COURT: You may be seated. Ms. Marshall? 18 MS. MARSHALL: Yes, Your Honor. The last 19 thing that we'd like to introduce into evidence are 20 the military records from Mr. -- for Mr. Destefano. 21 THE COURT: Same objection, Counselor? 22 MR. OSBORNE: Same objection. 23 THE COURT: That objection is overruled. It 24 would be admitted. 25 (Defendants' Exhibit No. 13 was marked into CENTRAL FLORIDA REPORTERS, INC. 2560 1 evidence.) 2 MS. MARSHALL: And with that, Your Honor, we'd 3 rest. 4 THE COURT: Mr. Osborne? 5 MR. OSBORNE: We have no rebuttal evidence, 6 Your Honor. 7 THE COURT: The Plaintiff then rests. Ladies 8 and Gentlemen, we have now reached, as I discussed 9 with you at the outset, the conclusion of the 10 presentation of the evidence from the Plaintiff and 11 these Defendants. At this time there are matters 12 that the Court must address with the lawyers 13 outside of your presence. Really to give everyone 14 a clean shot and a clear head, I'd like to start 15 with opening statements tomorrow morning first 16 thing as I indicated to you. 17 MS. MARSHALL: Your Honor, one more thing. 18 The stipulations that we have, do you want to 19 address that now or -- 20 THE COURT: Yes, I do, please. Very briefly. 21 Are you going to read those in? 22 MS. MARSHALL: Yes, Your Honor. Is that all 23 right? 24 THE COURT: Yes. 25 MS. MARSHALL: The parties stipulate and agree CENTRAL FLORIDA REPORTERS, INC. 2561 1 to the following. The dates that Carolina J. 2 Destefano was a resident in the Defendants' 3 facilities are as follows. Adventist Health 4 System/Sunbelt, Inc., doing business as Florida 5 Hospital, date admitted, September 15th, 1999. 6 Date discharged, September 19th, 1999. 7 Rollins Bedford Corporation, doing business as 8 Sunbelt Healthcare and Subacute Center, date 9 admitted, September 19th, 1999, date discharged, 10 September 21st, 1999. Orlando Regional Health 11 System, doing business as Orlando Regional Medical 12 Center, date admitted, September 21st, 1999, date 13 discharged, September 22nd, 1999. 14 Adventist Health Systems/Sunbelt, Inc., doing 15 business as Florida Hospital, date admitted, 16 September 22nd, 1999, date discharged, October 5th, 17 1999. The DNA testing performed by Reliagene 18 Technologies, Inc., establishes that the blood on 19 the bed pad came from Carolina Destefano. 20 The contact that Orlando Regional Medical 21 Center had with the Department of Children and 22 Family Services was to assist in placement, and no 23 one from Orlando Regional Medical Center made any 24 slanderous statements about Plaintiff to 25 investigators from the Department of Children and CENTRAL FLORIDA REPORTERS, INC. 2562 1 Family Services. 2 Then I believe, Your Honor, the next two. 3 Carolina J. Destefano died on November 10th, 1999. 4 The incidents that are the subject of this lawsuit 5 did not cause the death of Carolina Destefano. 6 Plaintiff is not seeking any economic damages. And 7 that is the end of the stipulations, the factual 8 stipulations. 9 THE COURT: Ladies and Gentlemen, at this 10 time, as I have previously stated, we're going to 11 get an early start in the morning. I'd like for 12 you all to be here ready to come in at 8:00. I 13 expect that barring unforeseen matters we will 14 begin promptly with closing arguments, then there 15 will be jury instructions and then your opportunity 16 to deliberate. I thank you again for your kind 17 attention and I would excuse you. It is 2:45 and 18 you may leave. 19 (Whereupon the Jury exited the courtroom.) 20 THE COURT: You all went to take a stretch, 21 and then we'll come back and talk about jury 22 instructions? 23 MR. OSBORNE: That will be great. 24 MS. MARSHALL: That will be great. 25 (Whereupon, there was had a recess from 2:47 CENTRAL FLORIDA REPORTERS, INC. 2563 1 o'clock p.m., to reconvene at 2:55 o'clock p.m.) 2 THE COURT: Okay. Let's look at the verdict 3 forms last. 4 MR. TOWNSEND: Excuse me, Your Honor. 5 THE COURT: Yeah. 6 MR. TOWNSEND: If it please the Court, may we 7 go ahead and renew our Motion for Directed Verdict? 8 Otherwise I'll forget it. 9 THE COURT: Yeah, go ahead. 10 MR. TOWNSEND: On behalf of Orlando Regional 11 Health Care System, we hereby renew our Motion for 12 Directed Verdict on the defamation, specifically 13 Counts Roman numeral III and IV of Plaintiff's 14 Third Amended Complaint on the same grounds we set 15 forth in our argument at the close of Plaintiff's 16 case. 17 MS. MARSHALL: And, Your Honor, we would -- on 18 behalf of Rollins Bedford Corporation, we would 19 also renew our Motion for Directed Verdict relating 20 to Count VIII of the Third Amended Complaint and 21 would also renew our Motion for Mistrial. 22 THE COURT: Court would reserve on the Motion 23 for Mistrial and deny the Motions for Directed 24 Verdict. 25 MR. TOWNSEND: We will join in the Motion for CENTRAL FLORIDA REPORTERS, INC. 2564 1 Mistrial. 2 THE COURT: And I would reserve. 3 MS. MARSHALL: Thank you, Your Honor. 4 THE COURT: Okay. Let's look at the jury 5 instructions. And I have the Defendants' requested 6 and the Plaintiff's proposed. There is no dispute 7 about the first, 2.1. There's no dispute about the 8 second, 2.2, except that the Defendant includes a 9 separate paragraph for experts. You have no 10 objection to that? 11 MR. OSBORNE: No objection. 12 THE COURT: The Defendant's proposed a third 13 instruction concerning claims tried together, each 14 being separate from the other. Standard 2.4. No 15 objection? 16 MR. OSBORNE: No objection. 17 THE COURT: Now, into the substance of these. 18 The Defendants -- and when I say Defendants, let's 19 see, Adventist Health Systems' requested 20 instruction number 4, that's moot. That's moot in 21 light of the Directed Verdict being granted as to 22 that Defendant, is it not? 23 MS. PETRO: Well, Your Honor, it was an et al. 24 I just didn't change the heading. It was for all 25 five of them initially, but it would still cover -- CENTRAL FLORIDA REPORTERS, INC. 2565 1 THE COURT: Okay, okay. 2 MR. OSBORNE: It's still Rollins Bedford. 3 THE COURT: Okay. 4 MR. TOWNSEND: Your Honor, just for the 5 record, and I think you've already picked up on it, 6 on the set that -- 7 THE COURT: Yeah. 8 MR. TOWNSEND: It specifies if it's joint or 9 it's one or the other. 10 THE COURT: Okay. If that needs 11 clarification, just speak up. All right. Now, the 12 way I see this is I'm going to refer -- the only 13 remaining Defendant for the Adventist Defendants is 14 Rollins Bedford. So the way Rollins Bedford has 15 these structured in it, there's really not too much 16 substantive difference in these, except that 17 Rollins Bedford wants to address right up front the 18 agency issue. 19 And before we get into whether I understand 20 that or not, I guess I'd ask Mr. Osborne if he has 21 any objection to that instruction. 22 MR. OSBORNE: I don't think there's any 23 evidence, Your Honor, that they were not operating 24 as -- within the course and scope of their 25 employment or agency. I don't think that's even a CENTRAL FLORIDA REPORTERS, INC. 2566 1 question where there's any evidence to the contrary 2 then. 3 THE COURT: And so you would argue that the 4 instruction is not necessary? 5 MR. OSBORNE: I would argue the instruction is 6 unnecessary, that there's no issue for the Jury to 7 determine on that. The fact was that no one put 8 anything in evidence that they were acting in any 9 other fashion other than as an agent or employee. 10 MS. PETRO: Your Honor, I don't believe 11 anything's been placed in evidence that if the 12 Plaintiff is correct, that these were actually 13 lies, that we hired them to lie about patients' 14 family members or we hired them to put false 15 statements in a medical record about patients' 16 family members. 17 So I think there clearly is a question, if the 18 Jury believes that these three ladies were not 19 telling the truth, whether those actions took place 20 within the scope of their employment, whether 21 that's what they were hired to do and if that's 22 what they were authorized to perform. 23 MR. OSBORNE: Judge, that's not the -- 24 THE COURT: Well, wait a minute. My 25 understanding of the law of vicarious liability, at CENTRAL FLORIDA REPORTERS, INC. 2567 1 least with respect to Boze, who is a -- 2 MS. PETRO: Bean. 3 THE COURT: Excuse me, Bean, who is a -- is 4 the director of nursing, and the Court has denied a 5 Motion for Directed Verdict on her authority to 6 bind the corporation directly. So at the outset I 7 don't know why she is in this instruction. 8 MS. PETRO: Your Honor, you've denied the 9 Motion for Directed Verdict as far as her ability 10 to do so, but does that not remain a Jury question 11 as to whether or not she was a managing agent? Is 12 that not a question of fact for the Jury to now 13 determine whether she fit that standard? 14 THE COURT: Well, if that's the case, I'm just 15 wondering if this is the proper instruction to 16 frame that issue? 17 MS. PETRO: Your Honor, I'll be very honest, I 18 tried to come up with a framing instruction to 19 define managing agent because the case law is not 20 crystal clear, as Ms. Marshall argued yesterday. 21 You know, you have to talk about who is not a 22 managing agent, very clearly who is a managing 23 agent. 24 I had a very difficult time and just was 25 unable to come up with probably crystal clear CENTRAL FLORIDA REPORTERS, INC. 2568 1 language as to that. 2 MR. OSBORNE: Judge, there's a standard 3 instruction, which we have as number 9 on -- 3.3(b) 4 on vicarious liability which sets it forth on the 5 standard. I don't think we need to be creating -- 6 THE COURT: Yeah, let's look at Mr. Osborne's 7 number 9. Do you have any particular reason why 8 you wouldn't want this as the initial instruction? 9 MR. OSBORNE: I don't really care, Judge. 10 THE COURT: Okay. 11 MR. OSBORNE: I mean, what I really wanted to 12 do before we got into that is talk about what the 13 issues were against the entity, and then talk about 14 who the agents were, whether they bind the entity. 15 It seemed to make more sense to me to put that 16 first just because you're talking about what the 17 issues on defamation are. 18 And then you can talk about whether these 19 employees were -- whether they were agents and 20 within the scope of their employment, lay it out 21 first the big picture, and then kind of backfill in 22 in terms of what the individuals were involved in. 23 THE COURT: What says the Defendant? Are you 24 really married to the idea that the agency 25 instruction needs to come first? CENTRAL FLORIDA REPORTERS, INC. 2569 1 MS. PETRO: No, Your Honor, the timing of the 2 presentation isn't an issue. 3 THE COURT: Okay. So I kind of see the logic 4 in Mr. Osborne's approach, get right to the meat of 5 the defamation instructions and then reach the 6 issue of agency, that there's some logical appeal 7 to that. And so if that's the case, let's just put 8 that aside for a moment and go on to the 9 substantive -- well, I see that next you have 10 greater weight of the evidence and clear and 11 convincing evidence instruction. You have that 12 later. Do you care where what goes? 13 MR. OSBORNE: Well, the only reason I but 14 that -- I usually put it later, Judge, because you 15 tell them what the -- 16 THE COURT: What the issues are and then what 17 the -- 18 MR. OSBORNE: And what that means. I don't 19 have -- 20 THE COURT: You don't care about that? All 21 right. Let's get to the meat of the defamation. 22 And that is Rollins Bedford's number 6 and 23 Plaintiff's number 3. And your first two 24 paragraphs are essentially the same, aren't they, 25 except that you have a sub-heading in there? CENTRAL FLORIDA REPORTERS, INC. 2570 1 MS. PETRO: Your Honor, I think the only 2 difference and the Court may not find it 3 substantial, is that we had put in the word whether 4 any agents of Rollins Bedford Corporation as 5 opposed to the corporation itself. 6 THE COURT: You don't care about that, do you? 7 MR. OSBORNE: Judge, you know, it just kind of 8 has a central thought about it because when we get 9 to the verdict form, it makes a difference because 10 the Defendant is not the agent. The Defendant is 11 Rollins Bedford. 12 We're going to talk about the agents, and when 13 we get to the verdict form it's the same thing. 14 You don't put the agents in the verdict form. You 15 talk about the corporation and you argue who the 16 agents were for the party. 17 THE COURT: What do you say about that? 18 MS. PETRO: Your Honor, they have to show that 19 the agent acted improperly before they can hold the 20 actual Defendant vicariously liable. So I think it 21 is important to define who needs to be doing the 22 act. And in this instance it is the agent that was 23 doing the act and was doing the defaming, not the 24 corporation. 25 THE COURT: Well, shouldn't you then CENTRAL FLORIDA REPORTERS, INC. 2571 1 have -- you have a second agency instruction about 2 corporations binding -- are bound by the conduct of 3 their agent, right? That's what we're getting back 4 to later. 5 MS. PETRO: Oh, Your Honor -- 6 THE COURT: I would accept Mr. Osborne's 7 number 3. 8 MR. TOWNSEND: Can we be heard on that? 9 THE COURT: Certainly. 10 MR. EVANS: Our problem with number 3 is that 11 it binds together the claims against Rollins 12 Bedford and Orlando Regional Healthcare Systems, 13 and we believe that there should be separate 14 instructions. 15 THE COURT: How about that? 16 MR. OSBORNE: I agree 100 percent. 17 THE COURT: You'll set out a separate three? 18 MR. OSBORNE: There should be two of them. 19 THE COURT: Three and 3-A. 20 MR. OSBORNE: Three and 3-A and 3-B, we'll do 21 that. That was my oversight. 22 MR. EVANS: But also I believe there may be -- 23 continuing on in that instruction, it looks as 24 though maybe there's some language omitted in that 25 third paragraph, third line from the bottom in the CENTRAL FLORIDA REPORTERS, INC. 2572 1 total. Then your verdict should be for Lawrence 2 Destefano in the total amount of his damages. You 3 shall consider the defenses -- it runs into the 4 next sentence. 5 THE COURT: Yeah, there's a grammatical issue 6 there. 7 MR. TOWNSEND: I think it's set forth 8 correctly in Rollins on the defensive issue. 9 MR. OSBORNE: Hang on a second. 10 THE COURT: Then your verdict should be for 11 Lawrence M. Destefano in the total amount of his 12 damages. Then your -- no. Then -- then you -- no. 13 MR. EVANS: Your Honor, I think what may have 14 happened is that if you look at the standard -- 15 THE COURT: Just a minute, please. 16 MR. EVANS: Yes, ma'am. 17 THE COURT: Okay. Then you shall consider the 18 defenses, right? 19 MR. OSBORNE: That's what it is. 20 MR. EVANS: Yes. 21 THE COURT: That clause -- 22 MR. OSBORNE: That word then was not in there, 23 the comma and the then. 24 THE COURT: All right. So the sentence should 25 read, however, if the greater weight of the CENTRAL FLORIDA REPORTERS, INC. 2573 1 evidence does support the claim of Lawrence M. 2 Destefano on these issues, then you shall consider 3 the defense of truth and good motives and the 4 defense of privilege raised by in separate 5 instructions, first, Rollins Bedford and then ORHS? 6 MR. OSBORNE: Correct. 7 MS. PETRO: Yes, Your Honor, although we had 8 an additional defense. 9 THE COURT: And what is that? 10 MS. PETRO: Self-publication. 11 MR. OSBORNE: Not a defense, Judge, it's a 12 denial. This is an intentional tort, and there's 13 no defense of comparative defamation or anything 14 else. It's just a -- self-publication is not a 15 defense to a defamation case. It's an intentional 16 tort against these individuals. 17 THE COURT: Is it -- I mean, I've read the 18 case law on self-publication. What is it then? 19 It's clearly relevant to the claim of defamation. 20 What is it, an offset? 21 MR. OSBORNE: It's a denial. Judge, there is 22 no -- 23 THE COURT: A denial of damages or a denial of 24 what? 25 MR. OSBORNE: Denial of liability. And to CENTRAL FLORIDA REPORTERS, INC. 2574 1 give you -- tell you how this extrapolates into 2 this, Judge, when we get to the verdict form they 3 want to assess a percentage of the fault. 4 THE COURT: I don't want to talk about the 5 verdict form. 6 MR. OSBORNE: All right. 7 THE COURT: I want you to explain to me what 8 you think the law says about the role of 9 self-publication in response to a defamation claim. 10 MR. OSBORNE: It is a denial. They're stating 11 that -- 12 THE COURT: Show me case law that says that. 13 MR. OSBORNE: I don't have one with me, Judge. 14 THE COURT: Do you have a -- do you have any 15 authority for that, Mr. Osborne, or is that just 16 your -- sort of your view of the way it's supposed 17 to be? 18 MR. OSBORNE: Judge, I'm relying on the 19 standard jury instruction. That's my authority. 20 THE COURT: Right, but the standard jury 21 instruction is not necessarily going to address and 22 raise all defenses that the substantive law 23 recognizes. I mean, if the substantive law -- jury 24 instructions can be around case law. What does 25 Rollins Bedford say about the role of CENTRAL FLORIDA REPORTERS, INC. 2575 1 self-publication? How does the case law treat it? 2 MS. PETRO: Your Honor, the one case I was 3 able to find talks about compelled 4 self-publication, and the state of Florida has 5 refused to accept that. 6 THE COURT: Right. That's completely 7 backwards to what we have here. 8 MS. PETRO: But what they said, Your Honor, is 9 basically you have to have publication. So if the 10 statements were only made to the party being 11 defamed, and the party being defamed then goes and 12 makes the statements to someone else, there's no 13 publication under defamation. 14 THE COURT: Right, that's not what we have 15 here. 16 MR. OSBORNE: I found no case on this point, 17 Judge, about self-publication in terms of that 18 being a -- anything other than a denial of 19 liability. 20 MS. PETRO: Restatement of Torts also 21 addresses self-publication. 22 THE COURT: What does the statement say? Are 23 they -- does the restatement talk only about 24 compelled self-publication in the employment 25 context or does it talk about -- CENTRAL FLORIDA REPORTERS, INC. 2576 1 MS. PETRO: The recipient is the defamed 2 person is what it talks about, Your Honor. 3 THE COURT: Yeah, but that's not what we have 4 here. The allegations are that publications were 5 made to third parties. And then if the alleged 6 injured party makes further publication, how does 7 that play out in the -- 8 MS. PETRO: Our position is, Your Honor, that 9 the only publication made to third parties was 10 under the umbrella of the qualified privilege. 11 Therefore, it does not constitute publication that 12 would cause us to be liable for damages. 13 So the only publication made outside of that 14 qualified privilege umbrella, i.e., outside of the 15 police, DCFS and ORMC to true third parties was 16 made by the Plaintiff. 17 THE COURT: Well, maybe all that was just 18 irrelevant. 19 MS. PETRO: Maybe all of what was just 20 irrelevant? 21 THE COURT: All of his statements. I mean, 22 what was it relevant to? 23 MS. PETRO: His statements to third parties? 24 THE COURT: His statements to third parties. 25 Because I don't think -- even the Plaintiff didn't CENTRAL FLORIDA REPORTERS, INC. 2577 1 try to prove up statements to anyone other than 2 those under the umbrella of a qualified privilege. 3 MS. PETRO: But, Your Honor, he's saying he's 4 been subjected to ill will and hostility by members 5 of the community, but he's the one that published 6 to members of the community these allegations 7 regarding sodomy. 8 THE COURT: Well, isn't that, though, a 9 denial? Isn't Mr. Osborne right, it's just a 10 denial of publication? That any publication that 11 caused -- I just don't know how we're going to 12 instruct on that. 13 MS. PETRO: Because the other issue, Your 14 Honor, is what the Plaintiff actually published he 15 admitted in his own words was not what we said. We 16 never said sodomy. What they said was too many 17 words, I had to condense it. 18 THE COURT: But isn't that a denial? 19 MS. PETRO: Well, Your Honor, we tell them 20 under the defamation standard that they have to 21 find publication in order to assess damages. And I 22 think the Jury needs to be instructed as to 23 publication by whom. 24 And that if they find the only publication 25 comes from the Plaintiff, that if what we did was CENTRAL FLORIDA REPORTERS, INC. 2578 1 not publication, they can't find damages. It has 2 to be publication to a third party by the 3 Defendant. And it is our position that they've 4 seen lots of publication and they need to 5 understand the difference. 6 THE COURT: Mr. Osborne, if you're claiming 7 that your client's reputation was damaged by the 8 statements, and your client has testified about 9 this, that he committed sodomy on his elderly 10 mother and that these sexual abuse allegations were 11 made about him, isn't it is a confession and 12 avoidance for the Defendant, the Adventist entity 13 to say, yes, but he made those, those publications? 14 He published that information, not us? 15 MR. OSBORNE: Judge, the -- going back first 16 to this umbrella. The umbrella only works if they 17 can prove that it was truth and good motives to do 18 that. So an umbrella is pierceable and that's what 19 the jury's job is to do in this regard. So this is 20 merely a denial. There's no law that says that 21 self-publication is anything other than a denial 22 under these facts. And they can argue that, but 23 there's no law to plug it into a jury instruction. 24 THE COURT: I think the most simplistic view 25 of what is an affirmative defense, this sounds an CENTRAL FLORIDA REPORTERS, INC. 2579 1 awful lot like yes but -- instead of a denial. So 2 I'm going to allow you to include the defense of 3 self-publication in here and the Jury can be 4 instructed. So that needs to be included in number 5 3. 6 MS. PETRO: Yes, Your Honor. 7 THE COURT: So number 3 from the word however 8 will read, however, if the greater weight of the 9 evidence does support the claim of Lawrence M. 10 Destefano on these issues, then you shall consider 11 the defenses of truth and good motives. Well, the 12 defense of truth and good motives, the defense of 13 privilege and the defense of self-publication 14 raised by Rollins Bedford. Now, on the instruction 15 for ORHS -- 16 MR. EVANS: We -- Your Honor, we will not have 17 that. 18 THE COURT: Self-publication? 19 MR. EVANS: We have no -- 20 THE COURT: Defense? So that would be the 21 difference between those two instructions, right? 22 MR. TOWNSEND: Yes, ma'am. 23 MR. EVANS: Yes, ma'am. 24 THE COURT: All right. So that's number 3 25 with the exception of that language and a separate CENTRAL FLORIDA REPORTERS, INC. 2580 1 instruction for ORHS. Now, Mr. Osborne, what's 2 your thought about number 4? 3 MR. OSBORNE: Judge, let me remind the Court 4 that when we were talking with Dr. Harry Krop in 5 his deposition here, I asked him the question, 6 taking all these facts together, was that going to 7 be -- would that be called sodomy? And the 8 objection is that's an ultimate issue of fact for 9 the Jury and that was how the Court ruled. 10 And my thought is unless the Jury knows what 11 sodomy is, they won't have any direction on what 12 the ultimate issue of fact is on whether or not 13 the -- that this -- a sexual battery was brought on 14 Mr. Destefano's -- Mr. Destefano was accused of a 15 sexual battery. 16 And I think that's a key issue to the case is 17 to determine whether or not he was exposed to 18 ridicule, hatred, contempt or that would tend to 19 injure him or say that he committed a crime, and 20 that's the crime. 21 THE COURT: What's the Defendant's position on 22 this? 23 MS. PETRO: Your Honor, there's been no 24 allegation of sexual battery in this case. Once 25 again we get back to the fact that the Plaintiff is CENTRAL FLORIDA REPORTERS, INC. 2581 1 the only person who ever came up with that word. 2 THE COURT: I'm surprised that you object to 3 this instruction. 4 MS. PETRO: Your Honor, the other problem is 5 is that Mr. Osborne has left out a portion out of 6 the statutory definition. 7 THE COURT: I'm not going to give number 4. 8 Let's go on to the defenses. All right. If we -- 9 MR. OSBORNE: And I admit for all of these 10 that Rollins Bedford and ORHS is together need to 11 be separated out. 12 THE COURT: Yes, okay. Just who's going to 13 prepare this final version? 14 MS. PETRO: I just finished preparing this 15 version. I would be happy to, Your Honor. 16 MR. OSBORNE: I'd be glad to do it, too, 17 Judge. 18 THE COURT: Okay. Well, I'm just trying to 19 think who's -- what's going to be easier. Okay. 20 Let's look at then Mr. Osborne's number 5, which 21 separates out the defenses. Does Rollins Bedford 22 have any objection to number 5? 23 MR. TOWNSEND: Your Honor, if Ms. -- if -- 24 MS. PETRO: Petro. 25 MR. TOWNSEND: If Ms. Petro is going to do it CENTRAL FLORIDA REPORTERS, INC. 2582 1 on her word processor, could we request that the 2 Court work off her instructions? 3 THE COURT: Well, I'm getting -- no. Let's 4 just see what we can do here. I may end up asking 5 Mr. Osborne to do this. How about number 5? Can 6 you -- 7 MS. PETRO: No objection to number 5, Your 8 Honor. 9 THE COURT: Okay. That'll be given and a 10 duplicate for ORHS of number 5. 11 MR. EVANS: Yes, Your Honor. 12 THE COURT: And number 6 is, let's see, 13 privilege. This is -- 14 MR. EVANS: Your Honor -- 15 THE COURT: Yes? 16 MR. EVANS: I'm sorry, I was just going to 17 suggest that this particular instruction is no 18 longer in play because of the summary judgment on 19 behalf of Orlando Regional and the directed verdict 20 on this issue from yesterday. So it's not -- it's 21 not an issue to submit to the Jury about whether 22 the circumstances existed for privilege. So I 23 think this one doesn't really apply anymore. 24 THE COURT: Well, this instructs the Jury that 25 there is a privilege. CENTRAL FLORIDA REPORTERS, INC. 2583 1 MS. PETRO: Both Defendants have incorporated 2 that language into their one on abuse of privilege. 3 THE COURT: Right. So the first paragraph of 4 Mr. Osborne's number 6, I would expect would be 5 acceptable to both of you, as long as they were -- 6 MR. OSBORNE: We'll separate them. 7 THE COURT: -- separated out. 8 MS. PETRO: Your Honor, the only problem I 9 have is the law enforcement or government agencies, 10 I think we were a little more specific than that. 11 THE COURT: Okay. Let me see. Is privileged. 12 Is privileged. 13 MR. OSBORNE: Judge, if I might make a 14 comment. 15 THE COURT: Wait a minute, please. Let me 16 just read it because I'm not really very happy with 17 yours, either. I think yours is -- is really not a 18 fair statement. Go ahead, Mr. Osborne. I'm sorry, 19 I just needed to finish reading that. 20 MR. OSBORNE: That's fine, Judge. All I was 21 going to mention was that there's two privileges 22 afoot here. One is the 415 privilege, which is not 23 relevant to ORHS, and the other one is a common law 24 privilege, which is relevant to ORHS and to Sunbelt 25 as well. CENTRAL FLORIDA REPORTERS, INC. 2584 1 THE COURT: Does -- ORHS did not report to 2 DCFS, is that what you're saying? 3 MR. OSBORNE: Yes, that's correct. It's a 4 different standard. 5 THE COURT: Well -- 6 MR. EVANS: Well, Your Honor, the instruction 7 number 6 we're talking about, if you look down at 8 the authority, it says that it's the defense issue, 9 whether a defendant had qualified privilege. 10 MR. TOWNSEND: And you ruled as a matter of 11 law that we do. 12 THE COURT: Yes, I know I have, but I'm not 13 sure that's correct. 14 MR. EVANS: But then the next instruction is 15 the issue whether defendant abused qualified 16 privilege. So I think -- 17 THE COURT: Just a minute, let's not get hung 18 up on what these things are called. Let's look at 19 the first paragraph of Mr. Osborne's instruction. 20 I instruct you, provided one does not speak with 21 improper motives, that Rollins Bedford and ORHS is 22 privileged to make statements and -- about another, 23 such as Lawrence M. Destefano, even if the 24 statement is untrue. Okay. Let's just stop right 25 there. CENTRAL FLORIDA REPORTERS, INC. 2585 1 What is it about that that you find 2 objectionable? 3 MS. PETRO: Your, Honor -- 4 THE COURT: You don't think it's broad enough? 5 MS. PETRO: Well, I don't know that law 6 enforcement and government agency covers ORHS. 7 THE COURT: Let's not worry about ORHS, let's 8 worry about -- 9 MS. PETRO: But we spoke to ORMC. There's 10 also an allegation that we defamed him when we 11 provided information to ORMC. 12 THE COURT: Okay. Is privileged to make 13 statements to law enforcement or government 14 agencies. How about that, Mr. Osborne? Can you 15 live with some other language that says or to 16 another medical provider? 17 MR. OSBORNE: If we're going to separate out, 18 and I'm not sure I did, the 415 report. 19 THE COURT: Yeah, I'm not sure you did either. 20 MR. OSBORNE: The 415 reporting, this is 21 correct. It's only the central abuse hotline that 22 that the reporting privilege goes to. And the 23 common law privilege is really a separate issue 24 with a different burden. 25 THE COURT: Then you need a separate CENTRAL FLORIDA REPORTERS, INC. 2586 1 instruction for the Adventist Defendant, Rollins 2 Bedford on the two separate privileges -- 3 MR. OSBORNE: That is a fact. 4 THE COURT: -- I think. Because you need an 5 instruction that says that there's a qualified 6 privilege when you're reporting to DCFS that is 7 only overcome with clear and convincing evidence of 8 malice, right? 9 MS. PETRO: Yes, Your Honor. 10 THE COURT: Are you nodding like it's here and 11 I'm just not seeing it? 12 MS. PETRO: No, Your Honor. I am just 13 agreeing along with you. Oh, it is further in 14 my -- that does come further in mine, but I'm just 15 agreeing with you. 16 MR. TOWNSEND: Your Honor, may I approach the 17 Bench? 18 THE COURT: And then a separate instruction 19 for any other communications to law enforcement or 20 to ORHS or within the hospital in the medical 21 record? 22 MS. PETRO: Yes, Your Honor. 23 THE COURT: That's the common law privilege? 24 MS. PETRO: Yes, Your Honor. 25 MR. TOWNSEND: Your Honor, may I approach the CENTRAL FLORIDA REPORTERS, INC. 2587 1 Bench and show you the standard jury instruction? 2 Because I think we're off track here, and I think 3 it'll save a lot of time if I show you this. 4 THE COURT: Just show it to them, would you? 5 MR. TOWNSEND: You're citing M1, 4.3. C is a 6 defensive issue as to whether the defendant had a 7 qualified privilege. The Court has ruled as a 8 matter of law that we both did have qualified 9 privileges. It says if defendant has a qualified 10 privilege as a matter of law, which is what the 11 Court has ruled, skip to 4.3(d). 4.3(d) starts 12 out -- is the issue of whether defendant abused the 13 qualified privilege. So we're sitting here arguing 14 over whether we had the qualified privilege. 15 THE COURT: No, we're not. No, we all know 16 that there is. 17 MS. PETRO: No, we're not arguing about 18 whether we've got it. We're arguing how do we 19 instruct the Jury that we have it. 20 THE COURT: Exactly. 21 MR. TOWNSEND: The instructions are set forth. 22 Look at the standard jury instructions. It tells 23 you what you're supposed to say when it's ruled as 24 a matter of law that there's a qualified privilege, 25 how you explain how you abuse that. CENTRAL FLORIDA REPORTERS, INC. 2588 1 MS. MARSHALL: What privilege, and then 2 explain what the privilege is. 3 THE COURT: Look, this is the way I see it. 4 There needs to be language given to the Jury to 5 instruct that there is a privilege by Rollins 6 Bedford to make reports to DCFS and a common law 7 privilege to everybody else within the hospital to 8 another hospital, to each other, whatever. 9 And then I don't know how you're going to 10 break those out, but one is going to have to talk 11 about clear and convincing evidence to overcome the 12 privilege and demonstrated malice, and the other is 13 by preponderance. 14 MS. PETRO: Yes, Your Honor. 15 THE COURT: So I really think we're kind of on 16 the right track there. 17 MS. PETRO: And I have done that split-out in 18 our suggested instruction. 19 THE COURT: Okay. So as for Mr. -- okay. I 20 just don't like your first sentence. Privileged to 21 make statements about another, such as 22 Mr. Destefano, even if the statements are not true. 23 There needs to be something else in there that says 24 is privileged to make statements to -- under 25 certain circumstances or to certain entities. CENTRAL FLORIDA REPORTERS, INC. 2589 1 MS. PETRO: That's fine, Your Honor. We 2 probably inadvertently left that out. 3 THE COURT: Yeah. That's why I like 4 Mr. Osborne's first sentence better, even though I 5 agree that may need to be broadened somewhat. You 6 know what, I really -- can the Defense get their 7 thoughts together on what -- you know, we got 8 disagreement here. ORHS is vehement that we're 9 going down the wrong path here. I don't know how 10 many ways I have to say I agree with that. I think 11 it's here. Will it make you happy? I'll read it. 12 MR. TOWNSEND: I'm sorry, Your Honor. 13 THE COURT: That's okay. 14 MR. OSBORNE: Look at number 7, Judge, of 15 ours. 16 MR. TOWNSEND: This is the -- C is I think 17 what we're -- what we're sitting here talking 18 about, but I think C has been ruled on as a matter 19 of law. 20 THE COURT: It has been, it has been, but 21 first we need to tell the Jury there's a privilege. 22 MR. TOWNSEND: Well, I think it's just an 23 obvious statement by the Court. The Court has 24 ruled as a matter of law that there is a privilege 25 that exists. CENTRAL FLORIDA REPORTERS, INC. 2590 1 THE COURT: And that's what these first 2 sentences say. 3 MR. TOWNSEND: Doesn't it -- indeed doesn't it 4 say that there? 5 MR. OSBORNE: Larry, I haven't seen you so 6 excited in two weeks. 7 MR. TOWNSEND: I'll sit down and hush and let 8 them argue. 9 THE COURT: You give this to me and 10 then -- now you got me in it here. Larry, go sit 11 down. 12 MR. TOWNSEND: Yes, ma'am. 13 MS. PETRO: We forget about you for a few 14 days, Larry, and now you're back in it. 15 THE COURT: Where did you get this from? 16 MR. TOWNSEND: From the standard jury 17 instruction. 18 THE COURT: No, not -- I wanted her to answer 19 this question. This is C for you, right? 20 MS. PETRO: For us? Yes, Your Honor. 21 THE COURT: Okay. 22 MS. PETRO: Mr. Townsend is not going to like 23 the answer if I tell you where I got it. 24 THE COURT: No. So shouldn't -- shouldn't 25 this instruction read Rollins Bedford had a CENTRAL FLORIDA REPORTERS, INC. 2591 1 privilege to make a statement, even if untrue, 2 provided it did so with -- that is D. 3 MS. PETRO: Yes. 4 THE COURT: Such a privilege existed because 5 the statements were made to law enforcement, DCFS 6 and within the hospital community and to another 7 health care provider. Is that -- is that -- can 8 you live with that? 9 MR. OSBORNE: That's my number 7, Judge. 10 That's the same thing I say in number 7. 11 MR. TOWNSEND: I guess that's my point, we 12 didn't need number 6 of yours. We should go back 13 to number 7, shouldn't we? 14 THE COURT: All right. Let's look at 15 Osborne's number 7. Rollins Bedford had a 16 qualified privilege to make statements, even if 17 untrue, provided they did so with proper motives. 18 Such a qualified privilege existed because Florida 19 law requires that health care providers report 20 instances of suspected abuse to the proper 21 authority with a corresponding duty to receive such 22 report. 23 MS. PETRO: That would cover DCFS, Your Honor. 24 It would not cover OPD and ORHS and our internal 25 discussions within our facility. CENTRAL FLORIDA REPORTERS, INC. 2592 1 THE COURT: You don't think? To the proper 2 authorities. To the proper authorities or other 3 health care providers. 4 MS. PETRO: But we don't -- the suspected 5 abuse issue I don't believe covers OPD because 6 that's not who our obligation to report suspected 7 abuse is to. 8 THE COURT: Okay. But there's no doubt that 9 that communication to OPD is protected by qualified 10 privilege. 11 MR. OSBORNE: Common law privilege. 12 THE COURT: A common law privilege? Okay. 13 Such a qualified privilege existed because -- 14 well -- 15 MS. PETRO: We start with that. Health care 16 providers report instances of suspected abuse to 17 the proper authorities with a corresponding duty to 18 receive such reports. And -- 19 MS. MARSHALL: Such a qualified privilege also 20 exists because health care providers are obligated 21 to communicate with each other. 22 MS. PETRO: Because the communication -- oh, 23 the Nodar standard is what Mr. Evans is showing 24 you. Such a privilege existed because a 25 communication made in good faith on any subject CENTRAL FLORIDA REPORTERS, INC. 2593 1 matter by one having a doctor in that subject 2 matter or in reference to which one has a duty if 3 privilege is made to a person having a 4 corresponding interest or duty. 5 THE COURT: Isn't that a little wordy really? 6 MS. PETRO: Yeah. 7 THE COURT: Cannot we be plainer than that? 8 MS. MARSHALL: I don't mean to double team, 9 Your Honor, but it seems if we can just -- 10 THE COURT: Any attempt at simplifying is duly 11 noted. 12 MS. MARSHALL: Just an additional sentence 13 that says such a qualified privilege also -- 14 THE COURT: Exists. 15 MS. MARSHALL: -- exists between health care 16 providers and between health care providers and law 17 enforcement agencies. 18 THE COURT: How about that? 19 MS. MARSHALL: Or with law enforcement 20 agencies. 21 MR. OSBORNE: Well, the -- Judge, the common 22 law duty is a lot broader than that, anybody that 23 has an interest in the information I think. 24 THE COURT: Well, then would you agree to such 25 a privilege also exists when information is CENTRAL FLORIDA REPORTERS, INC. 2594 1 provided to anyone who has an interest in such 2 information, including law enforcement or other 3 health care providers? 4 MR. OSBORNE: I'm fine with that. 5 MS. PETRO: I think that's okay, Your Honor. 6 THE COURT: Somebody for heaven's sake write 7 that down. 8 MS. PETRO: Could you read that back? 9 THE COURT: Such a privilege also exists when 10 information is provided to anyone who has an 11 interest in such information, including law 12 enforcement or other health care providers. It's a 13 tad redundant but -- so there's the statement of 14 the existence of the privilege. 15 Now, let's just focus on Rollins Bedford for a 16 minute. The issue for your determination is, 17 therefore, whether Rollins Bedford made the 18 statements with improper motives abusing that 19 qualified privilege. One who makes -- one makes a 20 false statement about another -- is this right out 21 of the standard? 22 MR. OSBORNE: Yes, Your Honor. 23 THE COURT: -- with improper motives as one's 24 primary motive and purpose and so forth rather than 25 to advance or protect. Any objection to that CENTRAL FLORIDA REPORTERS, INC. 2595 1 paragraph from Rollins Bedford? 2 MS. PETRO: Your Honor, I have an objection to 3 the or protect the interest of Carolina Destefano. 4 THE COURT: Okay. Let's see. Rather than to 5 advance -- one makes a false statement that is 6 intentional. 7 MR. OSBORNE: Judge, the standard has protect 8 the interest of, and it has a parenthetical that's 9 left blank is my understanding. 10 MS. PETRO: To advance or protect the interest 11 of the person to whom the statement was made, not 12 about whom the statement was made but to whom the 13 statement was made, and that was why we had the 14 objection. 15 MR. OSBORNE: We can change it, that's fine. 16 THE COURT: Protect the interests of -- you 17 want to just eliminate that or protect the interest 18 of -- 19 MR. OSBORNE: Who are we protecting the 20 interest of? 21 MS. PETRO: I think we should just eliminate 22 it. 23 THE COURT: Speak to -- 24 MR. OSBORNE: I don't want to modify the 25 standard. I just think -- CENTRAL FLORIDA REPORTERS, INC. 2596 1 MS. PETRO: The standard has it in a 2 parenthetical as an option. 3 THE COURT: To advance the interest of ORHS? 4 MS. PETRO: Yeah. 5 THE COURT: That doesn't make any sense in 6 this case. I would just eliminate that. It 7 doesn't make sense in the context of this case. 8 MS. PETRO: So it should end after the 9 words -- 10 THE COURT: Police department. All right. 11 MS. PETRO: On that subject. 12 THE COURT: Now, you all are going to have to 13 work on this. We may have to have more discussion 14 about this unfortunately tomorrow morning because 15 you're going to have to split this hair between the 16 statements made to DCFS and the statements made 17 elsewhere. Dyana? 18 MS. PETRO: I'm listening, Your Honor, I 19 apologize. 20 THE COURT: Okay. So the third paragraph 21 talks about the greater weight of the evidence, 22 that's not appropriate as to the DCFS report -- 23 MS. PETRO: No, Your Honor. 24 THE COURT: -- right? You agree with that, 25 Mr. Osborne, clear and convincing there? CENTRAL FLORIDA REPORTERS, INC. 2597 1 MR. OSBORNE: If this is for -- we need to 2 delete Orlando Police Department from this if we're 3 talking only about DCFS. 4 THE COURT: Right, I assume she understands 5 that. And going back to paragraph two, does it 6 also need to say ORHS? I think it does, too. 7 MS. MARSHALL: Yeah. 8 THE COURT: Rather than to advance or protect 9 Rollins Bedford Corporation. Then we got a -- 10 MR. OSBORNE: We got a mixed situation, mixed 11 standard. 12 MS. PETRO: Your Honor, did you review what we 13 had presented? 14 THE COURT: Well, you used C, didn't you? 15 MS. PETRO: I used -- no. I think at this 16 point my lettering was just incorrect because after 17 last night I took out C and bumped it down to D. I 18 sort of -- where I made the break-out is if you 19 start, in this case statements were made to -- 20 THE COURT: I'm sorry? 21 MR. OSBORNE: Judge, can I make an observation 22 to maybe help clarify things? I think we need 23 three separate instructions. We need the statutory 24 instruction for Rollins Bedford as to DCFS, we need 25 a common law instruction for Rollins Bedford as to CENTRAL FLORIDA REPORTERS, INC. 2598 1 the nursing staff and to ORHS for the police, and 2 we need a separate instruction for ORHS on their 3 common law situation. 4 MR. EVANS: Yes. And we need to make sure -- 5 because when we start talking about specific 6 recipients, they're not the same. And we're 7 concerned that the road you're going down with 8 naming specific recipients rather than talking 9 about general principles, we're going to have to 10 look very closely to make sure that that -- in 11 other words, we'd rather it be general. 12 MS. MARSHALL: I'm okay with that. 13 MS. PETRO: That's okay. 14 THE COURT: I agree with that. 15 MR. OSBORNE: I think if we keep those three 16 separate, it'll make it a lot easier because the 17 standard is different from DCFS and that common law 18 standard. 19 THE COURT: Yeah. I think we've said that to 20 death, yeah. Can you create that? 21 MS. PETRO: Yes, Your Honor, I can. 22 MR. EVANS: And, Your Honor, on the privilege 23 instruction, in the one that was submitted by 24 Orlando Regional Health Care, we had wanted to add 25 some language directly from the Nodar versus CENTRAL FLORIDA REPORTERS, INC. 2599 1 Galbreath case, and it's the following language. 2 If Orlando Regional Health Care was motivated by 3 the desire to protect its interest, Orlando 4 Regional Health Care does not lose its privilege 5 merely because Ms. Gregg and/or Ms. Folley may have 6 felt hostility or ill toward Mr. Destefano. 7 Strong, angry or intemperate words do not alone 8 express malice. The incidental gratification of 9 personal feelings of indignation is not sufficient 10 to defeat the privilege where the primary 11 motivation is within the scope of the privilege. 12 THE COURT: I think it's sufficiently 13 addressed in the standard. I'm not going to give 14 that special instruction. Okay. Does 15 that -- let's talk then about the truth defense and 16 good motives. That's from the standard? 17 MS. PETRO: Yes, Your Honor. 18 THE COURT: Do you have a separate instruction 19 on that? 20 MR. OSBORNE: I think my number 5, is that -- 21 THE COURT: No. You don't have a separate -- 22 it doesn't appear to me that you have a separate 23 instruction on that. 24 MS. PETRO: I think number 5 is the truth and 25 good motive standard from the standard jury CENTRAL FLORIDA REPORTERS, INC. 2600 1 instructions, Your Honor. 2 THE COURT: Osborne as is? 3 MS. PETRO: Yes, Your Honor. 4 MR. EVANS: Yes, ma'am. 5 MR. TOWNSEND: And you've already approved 6 that, Judge. 7 THE COURT: Okay. 8 MR. OSBORNE: As long as we separate out ORHS. 9 MR. EVANS: Right, correct. 10 THE COURT: Oh, I see. I'm sorry, I see. 11 Then let's look at the instruction on the abuse 12 of -- excuse me, on the defense of 13 self-publication. And you modified a standard, 14 took this from -- 15 MS. PETRO: We really -- you know, I think we 16 tried to follow the language above, but it had to 17 be self-created. 18 THE COURT: Mr. Osborne? 19 MR. OSBORNE: Judge, if you look at what 20 they're trying to do here, the last sentence, if 21 you find that Mr. Destefano did not self-publish, 22 then your verdict should be in the full amount, 23 total amount. But then they're going to say if he 24 did self-publish, then you've got to apportion the 25 damages. And that's what their verdict form does CENTRAL FLORIDA REPORTERS, INC. 2601 1 and that's why this is faulty. 2 There is no apportionment. That's why this is 3 a denial and it's not a measure -- it is not a 4 Fabre defense. It is not a comparative negligence 5 defense or any fault can be attributed or any 6 damages can be reduced because of self-publication. 7 THE COURT: Why is that? Why? 8 MR. OSBORNE: Because this is not a 9 comparative fault case, Judge, this is an 10 intentional tort case. And Mr. Destefano has not 11 been charged with making a tort. The only -- only 12 the Defendants have been charged with doing a tort. 13 And if they didn't do it, they're not liable. And 14 if Mr. Destefano did it, they're not liable. And 15 that's a defense. It is not a measure of reducing 16 damages. 17 And there's only two ways I know of you can do 18 that in the law, and that's Fabre if there's not a 19 party and comparative damages if there is. 20 THE COURT: It was raised as an affirmative 21 defense, though. 22 MR. OSBORNE: Doesn't make it so, Judge. You 23 can put a lot of things in an affirmative defense 24 that aren't really truly an affirmative defense 25 that reduce damages. Many denials are disguised as CENTRAL FLORIDA REPORTERS, INC. 2602 1 affirmative defenses. 2 MS. MARSHALL: In opposition to your Motion 3 for Summary Judgment, Mr. Glick had argued just 4 this, that the Jury can apportion fault on and 5 decide, you know, from the publications which 6 damages were caused by self-publication and which 7 damages were caused, you know, if any, by our 8 Defendants. 9 I think that that was part of the argument in 10 defeating the Motion for Summary Judgment, that it 11 was an apportionment of fault, damage issue, not 12 whether that self-publication itself would cut off 13 all of his claim. I'm going to give the 14 self-publication instruction for Rollins Bedford. 15 MR. EVANS: And Orlando Regional does not 16 request that. 17 THE COURT: I understand. Okay. The civil 18 conspiracy is gone. Let's talk about damages. 19 That's Mr. Osborne's number 13 and Rollins 20 Bedford's number 7. That's the same, isn't it, 21 except that Rollins Bedford wants an instruction on 22 nominal damages? 23 MR. OSBORNE: Which is my number 15. I just 24 have it as a separate instruction following both 25 Rollins Bedford and ORHS just to have it separately CENTRAL FLORIDA REPORTERS, INC. 2603 1 after both of them. I agree it should be in there. 2 I just put it as a separate charge. 3 THE COURT: Do you want to do it that way? 4 MS. PETRO: We don't have a preference, Your 5 Honor. 6 THE COURT: Okay. 7 MS. PETRO: Would you like them to be two 8 separate just so I'm clear when I redo them? 9 THE COURT: Do you have a -- just put it in 10 one time, nominal damages once. 11 MR. OSBORNE: That's why we put it after the 12 two, so it only had to be said once. 13 MS. PETRO: That's fine. 14 THE COURT: Okay. Mr. Osborne's number 16 and 15 the Defendant's 10-A. Is this given with the 16 initial instructions or do you wait until the Jury 17 comes back? 18 MR. OSBORNE: My understanding is that it's 19 instructing them that it's a bifurcated procedure. 20 It's not an initial charge, but I've never done one 21 of these quite frankly. 22 THE COURT: I have, but I've forgotten how we 23 did it the last time. Ms. Petro, any objection to 24 giving the instruction as to the bifurcated nature 25 of this proceeding? CENTRAL FLORIDA REPORTERS, INC. 2604 1 MS. PETRO: No, Your Honor, I have no problem 2 with that instruction. 3 THE COURT: At the outset, I mean, during the 4 first instructions? And so that -- I would be more 5 inclined to give Mr. Osborne's instruction and keep 6 the details of what is necessary for later, if it 7 becomes necessary. 8 MS. PETRO: That's fine, Your Honor. The only 9 thing I would change, if you're okay with this, 10 Bill, is that you left blank the name of the 11 defendant conduct. 12 MR. OSBORNE: We didn't know at the time. 13 MS. PETRO: Well, we did. 14 MR. OSBORNE: Did you? We didn't. 15 MS. PETRO: We had an order from the Court. 16 We thought we did. 17 THE COURT: Okay. 18 MR. OSBORNE: That's fine, we'll put that in. 19 THE COURT: And then let's address the 20 punitive damages issue should that become 21 necessary. All right. Now, we're past the 22 substantive instructions I think. So that brings 23 us to clear and convincing evidence, greater weight 24 of the evidence. Well, no, not the end. We need 25 to go back to the agency instruction then. CENTRAL FLORIDA REPORTERS, INC. 2605 1 MR. OSBORNE: Right. 2 THE COURT: Right. Now, I don't see an agency 3 instruction from ORHS. 4 MS. PETRO: There should be one, Your Honor. 5 MR. EVANS: No, we're not putting that at 6 issue. 7 MR. TOWNSEND: It's not an issue, Your Honor. 8 THE COURT: Okay. So then what I have to 9 consider is Rollins Bedford's number 4 and 10 Plaintiff's number 9. 11 MS. PETRO: Your Honor, we're happy to take 12 Plaintiff's B-1 at this point because until we get 13 to punitive damages, we don't have to worry about 14 managing agent. Managing agent is not an issue for 15 the underlying cause of action. 16 Our only objection would be the inclusion of 17 the parent agency instruction because a parent 18 agency has not been pled in this case. 19 THE COURT: How is that relevant here? 20 MR. OSBORNE: It's just part of the standard, 21 Judge. If they were going to deny that there was 22 agency, they certainly are placed there in the 23 facility as the apparent agency. If they're going 24 to say they're not their agent in argument, they 25 had to be something if they weren't their agents. CENTRAL FLORIDA REPORTERS, INC. 2606 1 They could be an apparent agency. 2 THE COURT: I don't think there's a denial of 3 their agency and I -- are you saying there's a 4 denial because the position of Rollins Bedford is 5 to the extent that this occurred, they were not 6 acting within the course and scope? 7 MR. OSBORNE: That's what they're saying I 8 think. 9 THE COURT: But that still doesn't explain why 10 an apparent agency -- and an apparent agent is one 11 who's held out by the principal with certain 12 indicia of authority to bind the corporation. I 13 don't see how that really is germane here. They're 14 either acting within the course and scope or 15 they're not. I don't see an apparent agency issue. 16 MR. OSBORNE: Then we'll withdraw that, Judge. 17 THE COURT: Take that out. So B-2 is gone. 18 B01 from Mr. Osborne remains. And then Mr. Osborne 19 had proposed a similar instruction for ORHS, but 20 you're not requesting such an instruction? 21 MR. EVANS: No, Your Honor, we're not. 22 THE COURT: Did you wish to have such an 23 instruction? 24 MR. OSBORNE: I will just say the Court now 25 instructs you as a matter of law that Lillian CENTRAL FLORIDA REPORTERS, INC. 2607 1 Folley and Kelly Pipkin were acting as agents of 2 Orlando Regional Healthcare System. 3 MR. TOWNSEND: I think that's appropriate 4 since we're not raising that issue. 5 THE COURT: Then we have greater weight of the 6 evidence, clear and convincing evidence. 7 MS. PETRO: Your Honor, the Plaintiff has both 8 of them and they have them separated out in two 9 separate instructions. We have no objection to 10 that. 11 THE COURT: That's fine. Or do you want that 12 at the conclusion of the damages instruction? 13 Because that -- those -- well, clear and convincing 14 does not apply to damages. We'll just put -- can 15 we just put the weight instructions there and then 16 move on to damages? Any objection to that? 17 MS. PETRO: Well, Your Honor, clear and 18 convincing is going to come up when we argue abuse 19 of privilege because they have to show -- 20 THE COURT: Yeah, but that's -- these are 21 after that instruction. 22 MS. PETRO: Oh, no, that's fine. I'm sorry, 23 that's fine. 24 THE COURT: Okay. So then we'll go on and 25 look at the damages instructions. And for some CENTRAL FLORIDA REPORTERS, INC. 2608 1 reason I'm not seeing Rollins Bedford's standard 2 instruction. Let's look at -- 3 MR. OSBORNE: Plaintiff's 13. 4 THE COURT: That's -- I see Plaintiff's 19. 5 MS. PETRO: I believe the damages for the 6 underlying case we've already talked about. 7 MR. OSBORNE: Yeah, that was 13 and 14. 8 THE COURT: Okay. Okay. 9 MS. PETRO: The next one is for punitives. 10 THE COURT: Yeah, these are all -- these are 11 all then -- sorry, I was mistaken. These are all 12 punitive damages up to Plaintiff's 21, which is 13 prejudice and sympathy. You have no objection to 14 that. Election of a foreperson? 15 MS. PETRO: Your Honor, the Plaintiff's 16 version of election of a foreperson does not 17 include the reading of the verdict forms. And the 18 instruction is to when you've agreed on your 19 verdict, you should date and sign the appropriate 20 forms. They just left out a portion of the 21 standard instruction. 22 THE COURT: Just include that. 23 MR. OSBORNE: That's fine. 24 THE COURT: Then the deadlocked instruction. 25 MS. PETRO: We have no objection to that, Your CENTRAL FLORIDA REPORTERS, INC. 2609 1 Honor. 2 THE COURT: And then the closing instruction 3 regarding you don't have to talk to anybody. 4 MS. PETRO: No objection. 5 THE COURT: And then we'll talk about punitive 6 damages. I'm not sure I can recreate that. 7 MS. PETRO: I can. 8 THE COURT: Can you? 9 MS. PETRO: Yes, Your Honor. 10 MR. OSBORNE: You said that very confidently. 11 MS. PETRO: I was hoping if I didn't say it 12 confidently, somebody else would step up and go I'd 13 be happy to do it. 14 THE COURT: Well, I'm hoping that -- actually 15 most of these are for Mr. Osborne. And I guess I'm 16 hoping that Mr. McCollough can E-mail you the last 17 version of these so she's not going to have to 18 recreate them. 19 MR. MCCOLLOUGH: Judge, I've tried to take 20 copious notes here on all of the modifications in 21 the order that we've talked about. 22 THE COURT: So you can talk on the phone 23 tonight and hopefully by E-mail send those over. 24 All right. Given the rearranging of the jury 25 instructions, the restructuring of the jury CENTRAL FLORIDA REPORTERS, INC. 2610 1 instructions, do you all want to work on and see if 2 you can come to an agreement on a verdict form? I 3 think you probably can. 4 MR. OSBORNE: I think we can make some 5 progress with that, Judge. We have some 6 differences that we need to resolve irrespective. 7 THE COURT: Is there something that I can help 8 you with now? 9 MR. OSBORNE: I think so. I think so. 10 THE COURT: I think that what we've said about 11 the jury instructions result in some restructuring 12 and rearranging of the jury verdict, but 13 substantively what are the disputes? 14 MR. OSBORNE: We have a conceptual difference 15 on this. My verdict form, I tried to make it real 16 simple, and they got a whole lot of Interrogatories 17 that I don't have in there. Because my concept is 18 that you explain what the instruction is and then 19 you do the conclusions very simply. 20 I've got a -- one, I delete the conspiracy 21 from this. It's a very simple, you know, four or 22 five question verdict form. And we need to add one 23 in now because of the comparative under the 24 self-publication, under that. 25 THE COURT: I guess I'm inclined to agree with CENTRAL FLORIDA REPORTERS, INC. 2611 1 the -- Mr. Osborne that really the only question is 2 not all this run-up to agency and so forth but 3 whether there was defamation. Yes, Mr. Evans? 4 MR. EVANS: Well, Your Honor, just speaking to 5 the four questions that deal with claims against 6 Orlando Regional Healthcare -- 7 THE COURT: Okay. I was going to wait 'til I 8 got there, but I guess we can do that now. 9 MR. EVANS: I'm sorry, I thought I'd give them 10 a break for a second. I think it's important to 11 preserve these issues for appellate purposes to 12 have simple -- 13 THE COURT: Well, can you just be specific 14 about what you object to or what you -- 15 MR. EVANS: Well, we think that there should 16 be a separate instruction on the separate defenses 17 so -- 18 THE COURT: I agree. 19 MR. EVANS: Okay. And that's what we have. 20 THE COURT: So do they. 21 MR. EVANS: Well, I don't think so. 22 THE COURT: Okay. I do like the way it's 23 broken out as to this defendant and this defendant. 24 That makes it a little clearer certainly from just 25 the reading of it. CENTRAL FLORIDA REPORTERS, INC. 2612 1 MR. EVANS: Because in the Plaintiff's 2 version, it has -- which is number three relative 3 to Orlando Regional, it has one single question, 4 yes or no, and then the damages. Whereas in the 5 version that we have presented, we specifically 6 list -- 7 THE COURT: Oh, yeah. You don't have their 8 defenses there, do you, for ORHS? 9 MR. OSBORNE: Judge, I don't. And the reason 10 I didn't was that I think it's all subsumed in the 11 jury instructions. All that's going to be in 12 argument. They wouldn't even get there until I get 13 past the defenses in terms of the defamation. 14 And that's what the instruction says. The 15 instruction takes them down that path about you got 16 to initially find that, and then you go to the 17 defense. And if you don't get past there, you 18 don't get there. 19 THE COURT: So how would you structure the 20 verdict form? You'd structure it that he was 21 libeled or slandered and then was it true? Well, 22 then it's not libel or slander. 23 MR. EVANS: Well, if you follow the four 24 questions that relate to the claim against Orlando 25 Regional, the Jury has to say that -- did we libel CENTRAL FLORIDA REPORTERS, INC. 2613 1 and slander and cause damage, number one. And 2 then, number two, were they substantially true and 3 made with good motive. Number two -- number 4 three -- 5 THE COURT: Then it's not libel. That just 6 doesn't make any sense to me. Libel is by 7 definition the publication of a false statement. 8 MR. EVANS: Well, they could believe that it's 9 true. They could believe that it's privileged -- 10 THE COURT: Sure. 11 MR. EVANS: -- you know. 12 THE COURT: Then we're going to have to break 13 it down, did they make -- did they make a 14 statement, was the statement false. I mean, 15 just -- that just doesn't make sense to me. 16 MR. EVANS: Well, I had another version in 17 mine before they were all combined together that 18 says did Orlando Regional Healthcare make 19 statements concerning Mr. Destefano that tended to 20 expose him to hatred, ridicule or contempt or 21 intended to injure him and his reputation, yes or 22 no, which is another way to put that first 23 question. 24 But I think it's important, in order for there 25 to be a good appellate record, that the defenses CENTRAL FLORIDA REPORTERS, INC. 2614 1 need a specific Interrogatory verdict form so we 2 can preserve those issues on appeal. Now, the 3 verbiage of the first question we could change, but 4 I think we still have to have the defenses by 5 separate questions. 6 And four questions -- I mean, the fact that 7 there's multiple defendants make it bigger, but 8 four questions on a Interrogatory verdict form is 9 not -- you know, doesn't shock the conscious. Four 10 questions is pretty good. 11 MS. MARSHALL: And we would agree to 12 eliminate -- 13 MS. PETRO: We'll agree to eliminate questions 14 one through three, Your Honor, on the vicarious 15 liability. Those don't need to be Interrogatories. 16 MR. EVANS: And so we could change the 17 verbiage of that first libel and slander away from 18 libel and slander to maybe the language -- 19 MS. MARSHALL: I like that. 20 THE COURT: I think the only defense that 21 needs a separate question is the self-publication 22 defense. I think everything else is subsumed in 23 the question did they commit libel and slander. I 24 think I've heard what you said about your appellate 25 record. Really I think this is addressed in your CENTRAL FLORIDA REPORTERS, INC. 2615 1 jury instructions clearly what the defenses are. 2 And if they find that these defenses exist, 3 then they're going to find no libel and slander 4 because libel is necessarily an unprivileged, false 5 statement made with malice. Let me think about 6 that. The only question that may need to be carved 7 out is improper motives and abuse of privilege. 8 That may be something that's more defensive and not 9 subsumed in the definition of the tort. 10 MR. OSBORNE: Judge, I think this indicates 11 very clearly what's in place here. If you answer 12 question number one, they have to go through the 13 entire jury instructions on every level and ratchet 14 down to every single level. And they can't get 15 there without having found everything. 16 THE COURT: I think that that may be true with 17 respect to truth and -- well, certainly as to 18 truth, yeah. 19 MR. EVANS: Your Honor, we think it's a 20 critical issue that the Jury be specifically asked 21 a question of the proper motives. 22 THE COURT: I'm sure you do, and I think I've 23 heard you on that. You know, if -- you're not 24 going to get much further with me just by saying 25 and it is really important to us. CENTRAL FLORIDA REPORTERS, INC. 2616 1 MR. EVANS: I said that for Mr. Townsend's 2 benefit. 3 THE COURT: Oh, you did? 4 MR. OSBORNE: The now silent Mr. Townsend. 5 MR. TOWNSEND: Judge, you don't know how much 6 willpower it's taken. 7 THE COURT: Mr. Osborne, I want you to rework 8 your verdict form and take out the conspiracy and 9 then I'll -- I'm going to have to think about this. 10 I'll consider your reworked form and I'll consider 11 the arguments that have been made by the 12 Defendants, and I'll advise you tomorrow which one 13 of those I'm going to give. 14 I guess I would ask you to bring a disk over, 15 both of you, on -- with the -- with Word format 16 with both of them, and if necessary I'll adjust 17 them here. Now I've got a printer and I can do 18 that. 19 MR. OSBORNE: And we will plug in the -- 20 THE COURT: I really need to focus on this and 21 make a decision. I'm sorry, I'm just kind of worn 22 out here and would prefer to do that tomorrow or 23 later. Do you think you have a feeling for how I 24 want to see these tomorrow? Any questions? 25 MR. OSBORNE: I'm clear I think, Judge. CENTRAL FLORIDA REPORTERS, INC. 2617 1 MS. MARSHALL: I think we're clear. 2 MS. PETRO: Yes, sure. 3 THE COURT: And you can work together and come 4 up with -- 5 MS. PETRO: I'll be on my best behavior 6 tonight, Terry, I promise. 7 THE COURT: I'll hold you to that. 8 MR. OSBORNE: And Mr. Townsend is not 9 participating in this. 10 MR. TOWNSEND: Please don't throw me in the 11 briar patch. 12 THE COURT: Yeah, really. Oh, darn. Actually 13 he turned out to be right, though, didn't he? You 14 have to give the dog his day. 15 MR. TOWNSEND: Judge, may I stand up to thank 16 the Judge? 17 THE COURT: All right. Well, we'll talk more 18 tomorrow. Let's try to be here promptly at 8:00 19 o'clock. Mr. Townsend, I would give you back the 20 jury instruction. 21 MS. MARSHALL: May we address one more issue, 22 Your Honor, quickly? 23 THE COURT: Yeah, sure. 24