2621 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 XX 14 The transcript of the proceedings held on Friday, 15 October 28, 2005, beginning at 8:00 o'clock a.m., at the 16 Orange County Courthouse, Orlando, Florida, Courtroom 17 19-D, before the Honorable Renee A. Roche, Judge of the 18 Circuit Court. 19 A P P E A R A N C E S: 20 WILLIAM G. OSBORNE, ESQUIRE 21 538 East Washington Street Orlando, Florida 32803 22 For the Plaintiff. 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2622 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. 2623 1 I N D E X - VOLUME XX 2 ARGUMENT ON JURY INSTRUCTIONS AND 2624 VERDICT FORM 3 CLOSING ARGUMENTS 4 By Mr. Osborne 2653 5 By Ms. Marshall 2721 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2624 1 THE COURT: Good morning. 2 MR. OSBORNE: Good morning, Your Honor. 3 MS. MARSHALL: Good morning. 4 MR. TOWNSEND: Good morning. 5 THE COURT: We have the jury instructions and 6 alternative verdict forms? 7 MS. PETRO: Yes, Your Honor. 8 THE COURT: Can I see them, please? 9 MS. PETRO: May I approach? 10 THE COURT: Yes. Let's talk about the first 11 jury instruction. There is an agreed set of jury 12 instruction, with the exception of number 13, which 13 has been requested by ORHS, is that correct? 14 MR. TOWNSEND: Yes, ma'am, that's correct. 15 MR. OSBORNE: There's also a minor detail on 16 number four. 17 THE COURT: Okay. 18 MR. OSBORNE: And if you want me to address it 19 I can, Judge -- 20 THE COURT: Sure. 21 MR. OSBORNE: -- on just whether or not Rachel 22 Bean should be included in there with Mary Thornton 23 and Carol Boze. I can't remember if you ruled on 24 that yesterday or not on number four. There was a 25 discussion we had about a DV motion in that regard, CENTRAL FLORIDA REPORTERS, INC. 2625 1 but I don't remember if you resolved that issue. 2 MS. PETRO: Your Honor, it was my 3 understanding that we resolved that the 4 question -- it was a question for the Jury. And we 5 concede she's an agent. It's a question of whether 6 or not she's a managing agent that we would have to 7 address at the punitive damages stage. But this is 8 talking about whether they were agents and acted 9 within the scope of their employment at the time 10 and place. 11 THE COURT: I don't believe Rachel Bean should 12 be included in this instruction. 13 MS. PETRO: How, Your Honor, if I may ask, is 14 Rachel Bean's agency any different than Mary 15 Thornton or Carol Boze's? Because we're not making 16 a distinction between agency and managing agency. 17 THE COURT: Well, I don't -- I guess I don't 18 see that the question of -- are you saying that a 19 managing agent acting outside the course -- if 20 there are alternative theories to bind a 21 corporation through vicarious liability, one being 22 the acts of a managing agent, which does not then 23 require some additional ratification by the 24 corporate entity? 25 MS. PETRO: That is my understanding, Your CENTRAL FLORIDA REPORTERS, INC. 2626 1 Honor. 2 THE COURT: Okay. 3 MS. PETRO: At least for the punitive damages 4 perspective. 5 THE COURT: Well, I think that's true 6 regardless, isn't it? To bind a corporation for -- 7 as vicarious liability, there has to be either the 8 act of an agent ratified by the entity in some 9 respect or direct, direct liability, if you will. 10 When the action is taken by someone in a sufficient 11 position of authority, by the nature of their 12 position they bind the corporation. 13 MS. PETRO: That's not my understanding of 14 vicarious liability, Your Honor, for actual 15 damages, for compensatory damages. 16 THE COURT: Well, what is your understanding 17 then? 18 MS. PETRO: That it's a straight agent 19 question. That there is no distinction between a 20 managing agent, a director, a president. That it's 21 an employee of the corporation within the scope of 22 their employment. 23 THE COURT: So -- okay. Right. So if a 24 president of a corporation, who undoubtedly has the 25 authority to bind the corporation, goes out and CENTRAL FLORIDA REPORTERS, INC. 2627 1 commits an act that's outside the course and scope 2 of his affiliation with the corporation, that 3 doesn't necessarily bind the corporation. 4 MS. PETRO: Correct. 5 THE COURT: Would you agree with that, 6 Mr. Osborne? 7 MR. OSBORNE: I would agree with that if 8 that -- 9 THE COURT: So if the president of a 10 corporation goes out and commits a DUI on his way 11 back from a cocktail party, he binds his 12 corporation? 13 MR. OSBORNE: Your Honor, I don't think those 14 are our facts at all here. 15 THE COURT: Of course not, but that's my 16 question. Under all circumstances everything -- a 17 principal who has the authority to bind a 18 corporation, everything he does binds the 19 corporation? 20 MR. OSBORNE: No, we're not saying that. 21 THE COURT: He has to be acting within the 22 course and scope of his duty. 23 MR. OSBORNE: Yes. And I just don't think 24 there's any issue that Rachel Bean was acting as 25 the director of nurses when all these things CENTRAL FLORIDA REPORTERS, INC. 2628 1 occurred such that there's a question of fact. I 2 think it's clear from the facts that that's the 3 case. 4 THE COURT: I'm not prepared to give that 5 instruction as a matter of law. I think I'll give 6 the instruction number four as provided, I'm 7 persuaded. 8 MS. PETRO: Thank you, Your Honor. 9 THE COURT: All right. Now let's look at 10 number 13. What is the gist of this? 11 MR. TOWNSEND: The gist of it is that in the 12 joint instruction that you have, it says that we 13 have a qualified privilege to make statements, even 14 if untrue, provided they did so with proper 15 motives. And then -- 16 THE COURT: I'm sorry, start again. 17 MR. TOWNSEND: Yes, ma'am. It says Orlando 18 Regional had a qualified privilege to make 19 statements, even if untrue, provided they did so 20 with proper motive. Here's the part that we have a 21 problem with. It says such a privilege exists when 22 information is provided to anyone who has an 23 interest in such information. 24 THE COURT: Where are you reading from? 25 MR. TOWNSEND: I'm reading the second sentence CENTRAL FLORIDA REPORTERS, INC. 2629 1 of jury instruction 13. 2 THE COURT: Let me ask this question just a 3 moment. Does Florida Hospital -- excuse me, 4 Rollins Bedford have an identical instruction to 5 this? 6 MS. PETRO: Your Honor, what Mr. Townsend is 7 reading to you right now is the agreed instruction, 8 which includes language dictated to us by the Court 9 yesterday. And what he is proposing in my 10 understanding is taking out that second line of 11 language that identifies who the statement is being 12 made to. 13 THE COURT: What's your position on that? 14 MS. PETRO: We don't have a problem with 15 leaving that language in. 16 MR. OSBORNE: Judge, that's the one you came 17 up with yesterday. 18 THE COURT: Okay. Let me look at it again. 19 And what -- I'm sorry, show me the language that 20 you're having a problem with. 21 MR. TOWNSEND: It starts -- it's the second 22 paragraph. It says such a privilege exists when 23 information is provided to anyone -- 24 THE COURT: Number 13? Is that -- 25 MR. TOWNSEND: Yes, it's number 13 on the -- CENTRAL FLORIDA REPORTERS, INC. 2630 1 that's my proposed changes. 2 THE COURT: This is your proposed 13? 3 MR. TOWNSEND: I'm reading from what they have 4 proposed. 5 THE COURT: Okay. Hold on just a second. 6 Second paragraph? 7 MR. TOWNSEND: Second sentence. 8 THE COURT: Sentence? 9 MR. TOWNSEND: Yes, ma'am. 10 THE COURT: Okay. 11 MR. TOWNSEND: And my position is when we 12 argued our Motion for Summary Judgment on the 13 qualified privilege, we had -- there were many, 14 many, many statements and issues regarding all of 15 the things that they thought were defamation in 16 this case. And the Court ruled that everything we 17 said was qualifiedly privileged. 18 And I don't see any reason to instruct the 19 Jury limiting it to this. Because they may have in 20 their minds that we said something to somebody 21 else, and everything we said you said was qualified 22 and privileged. So I think that confuses the Jury. 23 THE COURT: I think it's possible that if you 24 just -- if you take that out it might confuse the 25 Jury. CENTRAL FLORIDA REPORTERS, INC. 2631 1 MR. TOWNSEND: Well, my proposed one is 2 that -- if you go down a little further, it says 3 one makes a false statement with improper motive 4 and purpose -- and I'm reading from my proposed, 5 motive and purpose in making a statement to gratify 6 one's ill will rather than advance or protect 7 Orlando Regional System's right or duty to speak. 8 And then once again I don't put in there -- I 9 just think it -- I don't know whether they have 10 something in their mind that we may have said 11 something to somebody that's not law enforcement or 12 in the record. I can't interpret what the Jury may 13 say. Well, I think I remember hearing that they 14 said something to somebody else that wasn't law 15 enforcement or wasn't on the record that bothered 16 me. 17 THE COURT: I'm satisfied with number 13. I'm 18 going to give it as written and overrule your 19 objection. Anything else? 20 MR. TOWNSEND: No, ma'am, not on the jury 21 instructions. 22 THE COURT: All right. We now need to address 23 the verdict forms. And I have the Defendant's 24 verdict form. And I'll just say, and briefly, that 25 I'm more satisfied with Mr. Osborne's proposed CENTRAL FLORIDA REPORTERS, INC. 2632 1 verdict form. I think that it is not necessary or 2 proper to break this verdict form down and 3 articulate the first -- well, it seems like this -- 4 is this the same one you had last night? 5 MR. OSBORNE: It is, Judge, with the 6 exception -- 7 THE COURT: No, no, I'm talking -- 8 MR. TOWNSEND: The one I had had four. And 9 the Court was inclined perhaps to have the second 10 question, follow up on the -- on whether we gave up 11 the privilege. And I think that's an essential 12 question. And I think I'm willing to go with just 13 that question, the third question. And I think 14 that's what Ms. Petro has incorporated into -- 15 THE COURT: Well, let me look then at your 16 modified verdict form, because what I was looking 17 at is what you had last night. 18 MR. TOWNSEND: Yes, ma'am. I would accept the 19 one as proposed by Ms. Petro. 20 THE COURT: Let me look at your set that -- 21 the first being was there libel or slander that was 22 the legal cause of damages, which is essentially 23 the same as your number one. And then number two, 24 you've just left in the malice issue. 25 MS. PETRO: Yes, Your Honor. CENTRAL FLORIDA REPORTERS, INC. 2633 1 MR. TOWNSEND: Yes. 2 THE COURT: And then you go on to what damages 3 and then the self-publication and the allocation of 4 damages. 5 MS. PETRO: Yes, Your Honor. 6 THE COURT: Which you do not have. 7 MR. TOWNSEND: I don't have that. We didn't 8 raise that as an affirmative defense, Judge. And 9 the reason that we think that that's a critical 10 instruction on whether we waived the privilege is 11 because they could technically find that we libeled 12 and slandered him just in the broadest of senses. 13 But then we have -- we have the right to say 14 even if we did that, if we didn't abuse this 15 privilege, then we're not liable. So I think 16 that's an imperative follow-up question. 17 THE COURT: Mr. Osborne? 18 MR. OSBORNE: Judge, I anticipated the jury 19 instructions going back with the Jury. They can 20 follow exactly what the procedure is, and it's a 21 very detailed procedure. And to answer the 22 question, one simply would take into account all of 23 that in closing arguments and clarify all that. 24 I just think they're building in problems, 25 particularly since, for example, number two has CENTRAL FLORIDA REPORTERS, INC. 2634 1 that greater weight of the evidence standard and 2 not the 415 clear and convincing standard. It's 3 just too confusing to put it in interrogatory form. 4 And the best way to do it is have the jury 5 instruction back there with them. They can follow 6 the yellow brick road that way. 7 THE COURT: She didn't break it out between 8 clear and convincing and the greater weight of the 9 evidence. 10 MR. TOWNSEND: She did on mine I believe. 11 MS. PETRO: No, I didn't, Your Honor, and 12 you're correct. Florida Hospital is not really 13 wedded to that instruction. I was trying to come 14 up with something that was going to make everyone 15 happy. 16 THE COURT: But they're going to get 17 instructed on greater weight of the evidence and 18 clear and convincing, aren't they? 19 MS. PETRO: Yes, Your Honor. Florida Hospital 20 is willing to delete number two as to -- I'm sorry, 21 Rollins Bedford Corporation is willing to delete 22 number two as to us. That was in there more 23 because Mr. Townsend was requesting that. 24 THE COURT: Okay. So you would have 25 then -- if you have -- you don't want to -- you CENTRAL FLORIDA REPORTERS, INC. 2635 1 have no problem with deleting number two? 2 MS. PETRO: No, Your Honor. 3 THE COURT: Okay. What damages -- then you 4 want the self-publication and the allocation of 5 damages, which I'm telling you I've decided to give 6 in the verdict form. So then the only dispute is 7 number seven. 8 MR. TOWNSEND: And they will have the jury 9 instruction, but the jury instructions are about 20 10 something pages long and very complex, and they 11 deal with all kinds of issues about Rollins Bedford 12 and punitive damages. And from my client's 13 standpoint there's really only two issues, did we 14 defame him. And if we did so, did we do it with 15 malice. Those are the only two simple questions 16 for -- 17 THE COURT: And you can argue that in your 18 closing argument and paragraph seven will be 19 deleted. So what I intend to give then is on the 20 Defendant's verdict form paragraph one, three, 21 four, five and six, eight and nine. 22 Now, does anybody have a disk for me? Okay. 23 Very good. I appreciate you all working together 24 to get this done last night. 25 MR. TOWNSEND: Your Honor, for the record, may CENTRAL FLORIDA REPORTERS, INC. 2636 1 we -- may we file a request for verdict form which 2 includes those? 3 THE COURT: I think your record is clear, but 4 you can certainly do that. Now, what I will do is 5 I'll ask my assistant to retype this deleting those 6 two questions from the verdict form. Let's have 7 closing arguments -- I'll get to you in a minute. 8 Let's have closing arguments, and then by that time 9 I'll excuse them then for a brief recess. We'll 10 bring them back in, I'll read them the 11 instructions. 12 MS. PETRO: Your Honor, we just found an 13 inconsistency between jury instruction -- oh, I'm 14 sorry. We did not. I'm sorry, Your Honor. I'm 15 fine. 16 THE COURT: So she's on her way. I'll get her 17 to type this out and print it, make a copy for 18 everyone. And then as soon as she's out of here, 19 we'll begin with closing arguments. We'll bring 20 everybody in. Anything further before that 21 happens? 22 MR. OSBORNE: No, Your Honor. 23 MR. TOWNSEND: No, ma'am. 24 THE COURT: Ms. Marshall? 25 MS. MARSHALL: No, Your Honor. CENTRAL FLORIDA REPORTERS, INC. 2637 1 THE COURT: Yes. 2 MS. PETRO: May I address one more thing, Your 3 Honor? In the proposed jury instructions we had 4 left in 17, 18, 19, 25 and 26. These were 5 instructions that you said you would take up if we 6 got to the second stage. I just wanted it to be 7 clear, the Court would not be giving those the 8 first time around? 9 THE COURT: Let me pull those out right now, 10 okay? 11 MS. PETRO: Yes, Your Honor. 12 MR. OSBORNE: Judge, 17 has to do with 13 entitlement, and I think that -- 14 THE COURT: Yeah, I think that's right. I 15 think that's given. 16 MR. OSBORNE: That's a phase one -- 17 THE COURT: That's on the verdict form, too. 18 MR. OSBORNE: I think that's the same thing 19 as -- 18 is the same, that's also entitlement. And 20 19 tells them there's just a second stage. I don't 21 know why they can't know that in the first phase. 22 I mean, that's something they need to know about, 23 too. 24 THE COURT: I think it should have been 25 addressed with them in voir dire but -- CENTRAL FLORIDA REPORTERS, INC. 2638 1 MS. PETRO: Well, then we have an issue on it 2 because -- Your Honor, because we are not in 3 agreement on those three jury instructions. We 4 have different arguments regarding which standards 5 to argue out of the standard jury instructions, and 6 we didn't address any of this yesterday. 7 THE COURT: I think we did. 8 MS. PETRO: Your Honor, my recollection, and I 9 apologize if I am wrong, is -- my recollection is 10 the Court only went through question number 16 and 11 said I'm giving that one, and we'll look at the 12 rest of them when we decide if they're giving -- if 13 they're awarding punitive damages. 14 THE COURT: But the verdict form says are 15 punitive damages necessary. And how can they make 16 that determination if they don't have an 17 instruction? 18 MS. PETRO: I would agree with you, Your 19 Honor. And we have no problem with question 17 -- 20 with instruction 17, I'm sorry, Your Honor. 21 THE COURT: That's okay. 17 is okay? 22 MS. PETRO: 17 is okay. When we start getting 23 into 18 and 19, we start getting into managing 24 agent issues. We start getting into which punitive 25 damages statute they have pled under, and it opens CENTRAL FLORIDA REPORTERS, INC. 2639 1 up a whole array of issues that we have not 2 addressed with the Court. 3 THE COURT: But the whole -- just setting 4 aside 18 for a moment, the whole thrust it seems to 5 me of 19 is that this is going to be -- hold on 6 just one second. 7 (Off the record discussion was had.) 8 THE COURT: But the whole thrust of 19 is to 9 advise them of the bifurcated nature of this 10 proceeding. It says in this first stage you will 11 decide -- 12 MS. PETRO: Your Honor, I understand that. 13 The issue we have with 19 is if you look at the 14 standard, they have a greater weight of the 15 evidence standard here. And our verdict form had a 16 clear and convincing standard that's listed in 18 17 and -- 17 and 18. So we have -- now we have 18 differing proposed standards. 19 THE COURT: Okay. So 17 says -- 20 MS. MARSHALL: It's actually 18. 21 MS. PETRO: 17 says clear and convincing. 22 THE COURT: Clear and convincing, and 18 says 23 clear and convincing and 19 says -- 24 MS. PETRO: Greater weight. 25 THE COURT: -- greater weight of the evidence. CENTRAL FLORIDA REPORTERS, INC. 2640 1 How about that little issue, Mr. Osborne? 2 MR. OSBORNE: I think that needs to be 3 resolved to be consistent. 4 THE COURT: That kind of begs the question, so 5 how do you resolve it? 6 MR. OSBORNE: It's clear and convincing, 7 Judge. It should be all three of those the same 8 thing. 9 THE COURT: Okay. So on -- 10 MR. OSBORNE: And 19, we need to just make it 11 conform with 17 and 18. 12 THE COURT: I'm sorry, and where does it -- it 13 says punitive damages are warranted if you find by 14 clear and convincing evidence. Okay. Now, what is 15 your issue on 17, 18 -- or 18 and 19? 16 MS. PETRO: Your Honor, I do not have an issue 17 now with 19. 18 THE COURT: What about 18? 19 MS. PETRO: The issue is -- 18 is we're back 20 to our managing agent question. 21 THE COURT: And your argument is what? 22 MS. PETRO: Our argument is, Your Honor, that 23 it's a question for the Jury as to whether or not 24 she was a managing agent. We do not yet have a 25 jury instruction that defines for them managing CENTRAL FLORIDA REPORTERS, INC. 2641 1 agent and assists them in making that 2 determination. And because I did not believe the 3 Court would be giving this instruction -- 4 THE COURT: I'm just -- I'm really dumbfounded 5 that this was not brought up last night. 6 MS. PETRO: Your Honor, I will -- if I may 7 point out to the Court that I addressed the fact 8 that these would not be given with the Plaintiffs 9 last night and they did not -- 10 THE COURT: We obviously have a 11 misunderstanding because I don't think that anyone 12 would argue that 17 and 19 shouldn't be given 13 today, as long as the proper standard is set forth. 14 MS. PETRO: I'm not arguing that, Your Honor. 15 THE COURT: And they also need to have some 16 instruction about the circumstances under which 17 punitive damages are warranted. Would you argue 18 that -- well, are you arguing that there needs to 19 be another instruction early on on managing agent? 20 MS. PETRO: Or it can be included in this one 21 to explain to them what they're actually 22 determining in with this instruction. We don't 23 really have a preference of how it's laid out, but 24 at some point they need to have a definition of 25 what managing agent is before they can determine CENTRAL FLORIDA REPORTERS, INC. 2642 1 whether or not she's one. 2 THE COURT: How about that, Mr. Osborne? 3 MR. OSBORNE: I'd like to look at one of 4 those, Judge, if one exists. 5 THE COURT: I would, too. I mean, it may be 6 much ado here. If you can give us some language 7 that says a managing agent is someone who, 8 whatever, maybe Mr. Osborne wouldn't object to 9 that. 10 MS. PETRO: Ms. Marshall is drafting it as we 11 speak, Your Honor. 12 THE COURT: Okay. 13 MS. PETRO: I apologize, I did not think we 14 would be addressing this issue today. I can tell 15 you, Your Honor, that the standard jury instruction 16 for punitive damages on the managing agent issue 17 describes a managing agent as a president, director 18 or someone else with the ability to bind the 19 corporation. 20 And I think the Court knows it's our position 21 that Rachel Bean, while she was a director of 22 nursing at this particular facility -- 23 THE COURT: Why wouldn't we use the -- why 24 wouldn't we use the standard instruction on that? 25 MR. OSBORNE: I'd like to look at it, Judge -- CENTRAL FLORIDA REPORTERS, INC. 2643 1 THE COURT: Of course. 2 MR. OSBORNE: -- if it's the standard. 3 MS. PETRO: What I'm reading from, Bill, is 4 the parenthesis where they're telling you how you 5 describe that person. 6 MR. OSBORNE: All they say, Judge, is name, 7 managing agent, primary owner or other person whose 8 conduct may warrant punitive damages without proof 9 of a superior's fault. And that's what we did, we 10 put her name in there. I don't think this is 11 anything other than a parenthetical about putting 12 the name of the offending party in there. That's 13 all. That's what the standard says. 14 THE COURT: Well, I don't know. I want to 15 look at it. 16 MS. PETRO: May I approach, Your Honor? 17 THE COURT: Uh-huh. Well, Mr. Osborne's never 18 moved for directed verdict or sought summary 19 judgment on the question of whether as a matter of 20 law Rachel Bean is a managing agent. That's not 21 then determined as a matter of law by the Court. 22 So that leaves it up to the Jury I think. And 23 there needs to be some language contained in these 24 instructions as to whether she is in fact a 25 managing agent. CENTRAL FLORIDA REPORTERS, INC. 2644 1 And I'd like to have some language to be 2 included in this. And I'd like for you to propose 3 it and let's get it on the table and discuss it so 4 we can get this Jury in. 5 MS. PETRO: Your Honor, if I can just double 6 check against the jury instructions you have in 7 your hand, we have proposed language we could give 8 to the Court right this minute. 9 THE COURT: Well, I do agree with Mr. Osborne. 10 There's not a definition of managing agent in this 11 jury instruction. It's a parenthetical that just 12 says -- it just begs the question. It says agent, 13 primary or other persons whose conduct may warrant 14 punitive damages. I mean, that doesn't really 15 give -- put any meat on the bones of what that is. 16 MS. PETRO: Okay. May I read this to the 17 Court? 18 THE COURT: Okay. 19 MS. PETRO: I'll read the entire jury 20 instruction as to how it would now read. 21 THE COURT: Let me fill out something further 22 in terms of what my recollection of what the Court 23 has ruled. Ms. Marshall moved for a directed 24 verdict on behalf of Rollins Bedford asking the 25 Court to find that as a matter of law Rachel Bean CENTRAL FLORIDA REPORTERS, INC. 2645 1 was not a managing agent. 2 I denied that motion, but there wasn't a 3 contrary motion that she is. That's not been ruled 4 on as a matter of law. That's still an open 5 question. So there needs to be a jury instruction 6 on that. Go ahead. 7 MS. PETRO: Your Honor, what we would now 8 propose, if you find for Lawrence M. Destefano and 9 against Rollins Bedford Corporation d/b/a Sunbelt 10 Healthcare and Subacute Center, and you find also 11 that clear and convincing evidence shows that 12 Rachel Bean was a managing agent of Rollins Bedford 13 Corporation, and the conduct of Rachel Bean was a 14 substantial cause of loss, injury or damage to 15 Lawrence M. Destefano, and that such conduct 16 warrants punitive damages against her in accordance 17 with the standards I have mentioned, then in your 18 discretion you may also determine that punitive 19 damages are warranted against Rollins Bedford 20 Corporation d/b/a Sunbelt Healthcare and Subacute 21 Center. 22 A managing agent is one such as an officer or 23 director of the corporation or another with the 24 authority to bind the corporation without a 25 superior's consent. CENTRAL FLORIDA REPORTERS, INC. 2646 1 MR. OSBORNE: Two problems, Judge. One is the 2 greater weight of the evidence standard on whether 3 that's a managing agent, not a clear and convincing 4 standard, so it has to be a separate instruction. 5 Two -- 6 THE COURT: I think that's true. 7 MR. OSBORNE: -- I'd also like to see some 8 authority for their definition of what a managing 9 agent is. 10 THE COURT: I know that. Here we are, right? 11 I mean, I think we all went to law school and we 12 all know -- if you have some contrary language -- 13 we're not going to be able to crank up the Southern 14 Seconds here I don't think, unless you have some 15 authority. You know, we all could rattle off what 16 we think the indicia of managing agency is, are, 17 is. 18 MS. PETRO: Your Honor, I did bring an 19 additional copy of our Motion for Directed Verdict 20 where we laid out what -- how the courts have 21 defined managing agent and who the courts have 22 defined are not managing agents. And I'd be happy 23 to provide a copy of that again to Mr. Osborne. 24 THE COURT: Here's what I think we should do. 25 I think we should get this argument over with. CENTRAL FLORIDA REPORTERS, INC. 2647 1 They're sitting back there. They've been sitting 2 back there for 30 minutes. I think we should make 3 this argument. I agree with Mr. Osborne, this 4 needs to be a separate instruction somewhere else. 5 I don't know where, but it needs to be separated 6 out 'cause he's right about the burden of proof on 7 that. 8 And then he needs to -- you need to just cite 9 some authority for him and give him a copy of the 10 case. I don't know if you've got somebody back 11 there who can take care of that or whether you're 12 willing to leave and take care of that. 13 MS. PETRO: I'll work that out with 14 Mr. Osborne, Your Honor. 15 THE COURT: Well, I don't know how you could 16 work it out. He's going to be arguing to the Jury 17 here in just a few minutes. 18 MS. PETRO: I will -- 19 THE COURT: Let me ask you this, Mr. Osborne. 20 Where do you think it needs to go? 21 MR. OSBORNE: Judge, I think just -- you could 22 even put it after this one where you talk about -- 23 it would be right after this one where you talk 24 about the -- 25 THE COURT: Separate instruction after this CENTRAL FLORIDA REPORTERS, INC. 2648 1 one? 2 MR. OSBORNE: Correct. 3 THE COURT: That sounds very reasonable. 4 MS. PETRO: That's reasonable to us as well, 5 Your Honor. 6 THE COURT: Okay. And then just give him some 7 language and bring him some case law. I don't know 8 if, Mr. McCollough, you want to go out and take a 9 look at that. 10 MR. OSBORNE: He'll be glad to do that, Judge. 11 THE COURT: This really doesn't seem that hard 12 to me. All we need to do now is change number 13 17 -- is it -- whatever the one with the 14 wrong -- 19. 15 MS. PETRO: It's number 18, Your Honor. 16 THE COURT: No, no, 19 for the standard, clear 17 and convincing. 18 MS. PETRO: Yes. 19 THE COURT: Then we need to add an 18-A, if 20 you will, which will be an agency instruction on 21 managing agent. And that just needs to be given to 22 Mr. McCollough so he can review it, take a look at 23 the case that you used, show it to Mr. Osborne, 24 chat with him briefly about that, and I think we're 25 good to go at that point. CENTRAL FLORIDA REPORTERS, INC. 2649 1 MS. PETRO: Yes, Your Honor. 2 THE COURT: I like to send jury instructions 3 back with the Jury. So could I have a clean copy, 4 please? Would you make your edit to number 19 and 5 then add these two and see if we can't 6 accomplish that? 7 MS. PETRO: They're on the disk that Sherry 8 has, Your Honor. 9 THE COURT: Do you need that back? 10 MS. PETRO: I will need that back, Your Honor. 11 THE COURT: Okay. How are you going to handle 12 this, Ms. Petro? Are you going to leave? 13 MS. PETRO: I am going to step out and talk 14 with Mr. McCollough. And I have other associates 15 in the courtroom who I can have take care of it for 16 me. 17 THE COURT: Will you call Sherry and say 18 somebody's coming to get that disk, please? 19 MR. OSBORNE: Judge, there is a problem. How 20 can I argue this jury instruction when I don't know 21 what it is? 22 THE COURT: That's right. 23 MS. MARSHALL: Your Honor, what I would 24 propose at the end of the jury instruction that 25 Rollins Bedford Corporation is liable -- leave 18 CENTRAL FLORIDA REPORTERS, INC. 2650 1 as it is with the clear and convincing, and then 2 just below that put Rollins Bedford Corporation is 3 liable for punitive damages if you find by the 4 greater weight of the evidence that Rachel Bean was 5 a managing agent of Rollins Bedford Corporation. 6 A managing agent is an officer or director of 7 the corporation or one who has the authority to 8 bind the corporation without a superior's consent. 9 And I think that that standard -- that case law was 10 argued on the directed verdict. And we have a cite 11 that perhaps Mr. -- Terry can go and look at the 12 cases that we cite in the library. 13 THE COURT: Yeah, but -- that's fine, except 14 he's not going to be able to do that. He's got to 15 do that and get back and Mr. Osborne -- let's see. 16 MR. OSBORNE: Judge, if we could have five 17 minutes, Judge, I think we can resolve this. 18 THE COURT: Sure, no problem. Fine. 19 (Whereupon, there was had a recess from 8:35 20 o'clock a.m., to reconvene at 8:37 o'clock a.m.) 21 MS. PETRO: Your Honor, we're in agreement on 22 the language. I also have the verdict forms back 23 from the Court's judicial assistant. There are 24 some minor changes that needs to be made in the 25 paragraphs that tell them if your answer is yes, go CENTRAL FLORIDA REPORTERS, INC. 2651 1 to this paragraph. If your answer is no, go to 2 that paragraph. 3 If the Court would permit me, I will make 4 those edits as well and -- have them made in my 5 office and have a clean copy of the verdict form 6 and jury instructions brought back over. 7 THE COURT: Okay. You have the disk? 8 MS. PETRO: I do have the disk, Your Honor. 9 THE COURT: Okay. You know, I want to just 10 say -- and your client unfortunately stepped out of 11 the room, so I guess I'd like to have him in here 12 to hear this. 13 MR. DESTEFANO: Sorry, Your honor. 14 THE COURT: Okay. No problem, Mr. Destefano. 15 I just want to say this because both sides have had 16 a lot of people coming, and the doors will be 17 locked when the Jury is actually read the jury 18 instructions and the verdict form. But really for 19 the sake of this Jury who's been so attentive and 20 so good, while the lawyers are addressing the Jury, 21 and really for their benefit, too, let's not have 22 any coming and going. 23 I know you can't really control who -- unless 24 you want to station somebody outside and say don't 25 go in there, but for the folks who are here, let's CENTRAL FLORIDA REPORTERS, INC. 2652 1 just not distract this Jury. They got a lot to 2 think about here. It's a very important case to 3 all of you, and let's just everybody stay where we 4 are. Everybody who's going to be in here, be 5 prepared to be in here for the next, you know, 6 couple of hours. 7 Of course, if it's an emergency, I understand 8 that. But let's try not to distract anybody. 9 MR. DESTEFANO: I apologize, Your Honor. 10 THE COURT: Thank you. All right. So does 11 anybody need a break? You want a break? 12 MR. OSBORNE: Just a couple of minutes. 13 THE COURT: Yeah, sure. Take about five 14 minutes and we'll get started. 15 (Whereupon, there was had a recess from 8:39 16 o'clock a.m., to reconvene at 8:55 o'clock a.m.) 17 THE COURT: Please be seated. Mr. Osborne, 18 are you prepared to proceed? 19 MR. OSBORNE: Yes, Your Honor. 20 THE COURT: Ms. Marshall? 21 MS. MARSHALL: Ready to proceed. 22 MR. EVANS: Yes, ma'am, ready to proceed. 23 THE COURT: All right. We are going to 24 proceed with closing arguments. At the conclusion 25 of that, I'll excuse the Jury briefly to get the CENTRAL FLORIDA REPORTERS, INC. 2653 1 jury instructions and verdict form back from 2 whoever is taking care of that, take a few minutes 3 to just review that briefly, bring them back in, 4 charge them and let them go, all right? Bring the 5 Jury in. 6 (Whereupon the Jury entered the courtroom.) 7 THE COURT: Be seated, please. Ladies and 8 Gentlemen of the Jury, as you know, it is time for 9 the attorneys to address you again in closing 10 argument. I would remind you to put your pads 11 away. This is not the time to take notes, and you 12 were instructed at the outset not to take notes 13 during attorney's argument to the Jury. And I 14 would ask and caution you to give them your most 15 careful attention. Mr. Osborne. 16 MR. OSBORNE: May it please the Court. 17 THE COURT: Yes, sir. 18 MR. OSBORNE: Members of the Jury, Sir Walter 19 Scott was a Scottish novelist and poet in the late 20 1700's and 1800's. He wrote a phrase that's 21 applicable here. Oh, what a tangled web we weave 22 when first we practice to deceive. That's what 23 we're dealing with here. It's lies and it's a 24 tangled web. 25 I told you in opening that opening statement CENTRAL FLORIDA REPORTERS, INC. 2654 1 was a promissory note. I told you in opening that 2 statements made in openings were like a promissory 3 note, and that you should hold the parties 4 accountable for proving up what they said the 5 evidence would show in this case. 6 The first promise I'm going to discuss with 7 you that was made was Sunbelt Nursing Home or 8 Rollins Bedford is as follows. You were told that 9 the evidence would show that the nurses told the 10 truth. You were told there were four different 11 nurses, four different witnesses that were going to 12 tell the truth; Carol Boze, Mary Thornton and 13 Rachel Bean. 14 And you were also told that there was going to 15 be a Kendra Blythe who was going to say that I saw 16 this, too. You never heard from Kendra Blythe. 17 That's a broken promise. You never heard from 18 Kendra Blythe, and don't you know why you didn't 19 hear from Kendra Blythe. They did vouch for the 20 truth and the veracity of Carol Boze, Mary Thornton 21 and Rachel Bean so let's talk about those 22 witnesses. 23 You remember when Carol Boze came on to the 24 stand, I gave her the opportunity to come clean. I 25 asked her if she would like to tell the truth. I CENTRAL FLORIDA REPORTERS, INC. 2655 1 asked her to just confess that Rachel Bean put her 2 up to this and she wouldn't do that. As her 3 testimony went through, you remember the 4 photographs. I don't need to show them to you. I 5 know you remember the photographs of the room. 6 She said, first of all, that these photographs 7 accurately depicted Carolina Destefano's room. 8 Now, that's a big -- that's a big statement because 9 those photographs were used by other witnesses as 10 well. And you're going to be told in the jury 11 instructions to apply your common sense in this 12 case. 13 And common sense is that Rachel Bean, Carol 14 Boze and Mary Thornton, nobody could see in that 15 room from the doorway. Remember what Carol Boze 16 said? The last thing I asked her on redirect, she 17 said that she absolutely could not see what was in 18 that room and could not see what she saw given that 19 configuration of that room. She absolutely could 20 not. 21 I also asked her if she was absolutely certain 22 that she had told Margarita Walters about this 23 inappropriate behavior. She said, yes, I am 24 absolutely certain. What happened to Carol Boze? 25 Carol Boze was someone who was afraid for her job. CENTRAL FLORIDA REPORTERS, INC. 2656 1 She was someone who was afraid of Rachel Bean. She 2 didn't want to write down on that note that she -- 3 that the wound dressing hadn't been done because 4 she was afraid Rachel Bean would find out. She 5 said that. I asked her, well, what were you afraid 6 of? She said Rachel Bean. 7 When she finally came in the next day and 8 started charting this alleged event, Margarita 9 Walters -- excuse me, Mary Thornton first showed 10 her her statement, had her read that statement. 11 And then both Mary Thornton and Rachel Bean hovered 12 over her, and Rachel Bean told her word for word 13 what to write down. She dictated in effect what 14 she was going to write down. 15 The evidence from Carol Boze, and I think it's 16 believable evidence, was that Rachel Bean was 17 furious about her signing the note. She was 18 furious. Poor Carol Boze, the evidence is such 19 that it's proven that she didn't see anything. She 20 came in the next day to go ahead and to document 21 the wound dressing. That's the only reason she was 22 called in. And that's because that was something 23 that did happen the night before. There was no 24 question that that -- that that note was signed the 25 night before. CENTRAL FLORIDA REPORTERS, INC. 2657 1 Let's talk about probably the most important 2 witness in trial, Constance Standish. I think that 3 the evidence shows that Constance Standish was a 4 courageous person. She had no axe to grind. She 5 had no motive to lie. Mary Thornton didn't even 6 know Constance Standish, and Constance Standish has 7 paid the price for telling the truth. 8 Remember that we were talking about reasons 9 why Constance Standish was not being rehired. And 10 I think the inference from the evidence was that 11 she came forward and now she's not available for 12 rehire. There was an attempt to have other 13 witnesses say that she didn't give two weeks' 14 notice and that's why she's not eligible for 15 rehire. 16 But remember this, I asked her about this on 17 direct. The Defense had the opportunity on 18 cross-examination to ask her if she gave two weeks' 19 notice. They didn't ask her. And don't you know 20 why they didn't ask her. They didn't ask her if 21 she was not -- why she was not eligible for rehire. 22 They have to bring in the corporate suits, Chuck 23 Sherer and Michelle Fetters, to have this memory 24 that she didn't give two weeks' notice. 25 Chuck Sherer didn't know who he even worked CENTRAL FLORIDA REPORTERS, INC. 2658 1 for but he remembered that. Chuck Sherer didn't 2 know who he worked for, but he remembered that 3 Constance Standish worked some weekends. He 4 remembered that. 5 The issue about Constance Standish being there 6 on the 20th is what I would call a red herring. 7 Nothing of any import really happened on the 20th 8 because that's just when the note was signed. The 9 important events that Constance Standish testified 10 about occurred on the 21st, and that's what she 11 heard, what she heard from Mary Thornton. 12 So that issue about whether she was there and 13 whether that time record is accurate, whether they 14 keep accurate punch list records has nothing to do 15 with what happened on the 21st, the day where the 16 important testimony came in. 17 One important fact for you as fact finders, as 18 detectives of the facts in this case is that Mary 19 Thornton's testimony comports with Constance 20 Standish's in this regard. Mary Thornton said that 21 when they were at the room at the door, that the 22 door was closed in her face. She said that she 23 stood there for about a minute before she got a 24 phone call. She was intending to stay there 25 longer. CENTRAL FLORIDA REPORTERS, INC. 2659 1 She also said that Mary -- that the room 2 Constance Standish worked in was across the hall, 3 across the hall, and that's what Constance Standish 4 says. Remember, she says that she saw three people 5 going into the room. She saw the back of Larry 6 Destefano, she saw who she recognized to be Mary 7 Thornton and Rachel Bean. 8 And then when Mary Thornton was not allowed in 9 the room, the natural tendency would be -- someone 10 particularly who was angry about something, she 11 walked across the hall and she unloaded on somebody 12 she really didn't even know, but she unloaded on 13 Constance Standish. Out of the blue she says to 14 Constance Standish I'm going to get this guy. 15 We're going to say he was sexually inappropriate 16 with his mother. We've done this before. 17 The clear inference here about who the we is 18 is Rachel Bean and Mary Thornton. They were just 19 together. They just had a meeting. They worked 20 together before. So if you say we've done this 21 before, that's who she's talking about. And they 22 had just been meeting, according to their 23 testimony, for five minutes before all this 24 occurred. 25 So that's the two people that Constance CENTRAL FLORIDA REPORTERS, INC. 2660 1 Standish saw together, and that's the we about who 2 was going to get somebody. It's important to put 3 together the key -- another key fact of Constance 4 Standish's testimony. And that is she said, and 5 I'm going to repeat what I just told you, that she 6 saw the three of them approach the room together, 7 saw Mr. Destefano's back. 8 Remember what Larry Destefano said from the 9 stand? He said the same thing. He said he wasn't 10 even in the room. They all -- he was approaching 11 the door, and they came up behind him and that's 12 what happened. So these events that 13 apparently -- that were sworn to you to be true, 14 that they looked in the room and saw something, 15 they didn't even happen. 16 They didn't even happen because Constance 17 Standish, again a totally independent witness, has 18 corroborated Mr. Destefano's story that he wasn't 19 even in the room. His only approach to his mother 20 is when they were in the room and there was loud 21 voices from Rachel Bean. He went over and checked 22 on his mother because she was going oh, oh, oh, oh, 23 oh, oh 'cause she was upset about the noise and the 24 argument, the only testimony about him approaching 25 his mother at that time. CENTRAL FLORIDA REPORTERS, INC. 2661 1 You're going to be given a jury instruction on 2 believability of witnesses, and I want you to apply 3 this instruction to Constance Standish. And that 4 is that in determining the believability of any 5 witness and the weight to be given the testimony of 6 any witness, you may properly consider the demeanor 7 of the witness while testifying, the frankness or 8 lack of frankness of the witness, the intelligence 9 of the witness, any interest the witness may have 10 had in the outcome of the case, the means and 11 opportunity the witness had to know about the facts 12 about which the witness testified, the ability of 13 the witness to remember the matters about which the 14 witness testified, and the reasonableness of the 15 testimony of the witness considered in the light of 16 all the evidence in the case and in light of your 17 own experience and common sense. 18 Let's talk about another key witness in terms 19 of truth telling. Margarita Walters, another what 20 I would call objective witness like Constance 21 Standish. She was the nursing supervisor who was 22 on duty that night all night. And that's the 23 person that Carol Boze would have gone to if there 24 was such an incident that occurred like this 25 kissing allegedly. And Margarita Walters said that CENTRAL FLORIDA REPORTERS, INC. 2662 1 Carol Boze said nothing about any inappropriate 2 behavior, that all she had a conversation with her 3 about was the note, the note. 4 The records are in evidence and there was 5 testimony to that, but the punch list detail -- 6 there's a composite exhibit with all these time 7 records. The punch list detail shows Margarita 8 Walters worked from -- on 9/20 from 3:03 p.m. to 9 7:37 a.m. She worked a double. And there's been 10 one missing link in the evidence for you folks, and 11 that is that how did Rachel Bean and Carol Boze 12 know about the note? 13 Because they obviously knew about the note. 14 Mary Thornton wrote it in hers that she wouldn't 15 have signed such a note. And the inference is 16 clear that it was Margarita Walters who told them 17 about the note. She's the only person that could 18 have. She knew about it. She worked a double and 19 she reported -- you've heard about nurses 20 reporting. She reported. 21 So that's why the only -- the only notion that 22 was in the brain of Rachel Bean and Mary Thornton 23 initially in that morning was the note, the note. 24 There was no sense of any inappropriate behavior, 25 no whisper of any inappropriate behavior by Larry CENTRAL FLORIDA REPORTERS, INC. 2663 1 Destefano at that point. 2 It was only when, and I think Mr. Destefano's 3 testimony is credible, they wanted the note back 4 and he wouldn't give it to them. Why was that 5 important, wanting that note back? Because it was 6 an admission of guilt. Remember what Carol Boze 7 said? It was an admission of guilt that they 8 hadn't done something right, that they hadn't put 9 the wound dressing on properly. And those nurses, 10 the director of nurses and the floor unit manager, 11 they wanted that note back and he just flat 12 wouldn't give it to them. That's the impetus for 13 this -- cooking up this plot. That's the impetus 14 for it. He wouldn't give the note back. 15 And another key point with Margarita Walters 16 is she was certain, absolutely certain that Carol 17 Boze never said anything to her about any 18 inappropriate behavior on the part of Larry 19 Destefano. She didn't know about it until after 20 Mrs. Destefano was transferred from the room. 21 That's another one of those witnesses that the 22 believability standard is high on. No axe to 23 grind. She said what she saw and it comports with 24 the truth. 25 Let's talk about Mary Thornton's ability to CENTRAL FLORIDA REPORTERS, INC. 2664 1 tell the truth. She had three different stories. 2 The first story is I walked into the room. I 3 walked into the room, I knocked on the door and 4 Larry came over and opened the door and I saw it. 5 That's her first story. And then she admitted, 6 well, I really can't see through doors, therefore, 7 that couldn't have happened. 8 Her next story was the door was opened about a 9 foot. The first story didn't work, that's obvious. 10 You can't look through a closed door and see 11 anything. She says the door was opened a foot. I 12 was standing side-by-side with Rachel Bean. And 13 then she looked at the pictures and said that 14 didn't happen. I can't see through doors or walls. 15 That one didn't work because if that door is opened 16 a foot, all you see is a wall. 17 The third story was that she was standing 18 behind Rachel Bean and saw nothing until Larry came 19 to the door because she couldn't see past Rachel 20 Bean. This is like a two-story house. A realtor 21 has a -- one story before the closing and another 22 story after the closing. That's a two-story house. 23 Mary Thornton has a three-story house. She's going 24 condo in this situation because she's got three 25 different stories. All are lies. CENTRAL FLORIDA REPORTERS, INC. 2665 1 They're lies because nothing happened because 2 they weren't even in the room with Larry. Larry 3 Destefano was not in the room. It couldn't have 4 happened that way. But when you lie and you lie 5 again, it's hard to keep track of it. It's hard to 6 know -- if you know the truth, you can say it 7 straight. If you lie, it's real difficult to keep 8 those lies in order. 9 Now, you did hear another story, I'll put a 10 fourth story on top of Mary Thornton's house, and 11 that was Michelle Fetters. She said that years 12 after these events and -- you know, two or three 13 years after these events, she went and looked at 14 the room and says I could see even fine from the 15 doorway. I could see the entire wall. 16 Now, why did they have to bring in the 17 president of the company to say that when their own 18 people said they couldn't see? It's backfilling. 19 They're backfilling. They're trying to fix the 20 leaks in the walls. The water is coming out of the 21 cracks, and they're trying to put plaster on it to 22 make the house stand up. 23 So when you look at that, when you're back in 24 the jury room you're supposed to believe that that 25 really happened, when your common sense tells you CENTRAL FLORIDA REPORTERS, INC. 2666 1 by looking at those pictures there is no way you 2 can see that back wall, the entirety of that back 3 wall from looking at those pictures. 4 Did the corporate umbrella that's been talked 5 about of Rollins Bedford provide x-ray vision 6 goggles to Michelle Fetters so she can see through 7 those walls and doors that Carol Boze admitted she 8 couldn't see through, that Mary Thornton admitted 9 she couldn't see through? There's an old adage, 10 one lies and the others swear to it. That's what 11 you've got here. 12 Another part about Mary Thornton's story I 13 think that's interesting, she had to do a rough 14 draft of her 8:30 note. Nurses don't have time to 15 do rough drafts. She wanted to make sure she got 16 the wording down before she put it in the chart. 17 They wanted to get their story straight so she 18 could show Carol Boze how to do it, so that Carol 19 Boze could have her story down, too. 20 Mary Thornton confirmed that she swiped in and 21 out. That's my recollection of her testimony. She 22 had no understanding of about why her time was not 23 recorded for that week. And remember, nobody asked 24 her -- on cross-examination nobody asked her to 25 explain why she wouldn't have her time record in CENTRAL FLORIDA REPORTERS, INC. 2667 1 there, to explain that she was a salaried employee, 2 to explain that's why her time isn't in there. 3 They have to bring in Chuck Sherer, who again 4 had perfect recall that she was a salaried employee 5 and thus would not be in that time record. The man 6 who didn't know who he worked for had perfect 7 recall. Again, it's a backfill plaster job to try 8 to patch those leaks. 9 And just so you know when you look at those 10 time records back there, here's what it says at the 11 top of those time records. Adventist Care Centers, 12 punch detail report, previous pay period. Now get 13 this language, all accounts, all classes, all time 14 keeper terminal groups, a comprehensive time list, 15 and her name is on there with no time on there. 16 But in order to backfill and try to prove up 17 that Connie Standish wasn't there on the 20th, they 18 have to bring in Chuck Sherer to talk about these 19 records and say that just proves that these records 20 are correct and Mary Thornton didn't work as a 21 person who swiped in and swiped out. She thought 22 she did, but Chuck Sherer said she didn't. 23 And what telling testimony did Mary Thornton 24 have about this? She said, well, she didn't 25 remember Constance Standish, never worked with CENTRAL FLORIDA REPORTERS, INC. 2668 1 Constance Standish, couldn't think of any reason 2 why Constance Standish would lie and that's a fact. 3 She also talked about this wound care 4 assessment that was done by Shelly Fuchs, who you 5 saw on video. And what did Mary Thornton say? She 6 wasn't there when that happened. She did not see 7 the bright red blood. She doesn't remember seeing 8 the document. She doesn't remember Shelly Fuchs 9 telling her anything. She signs these documents 10 days or weeks later, and she said Rachel Bean was 11 the first one that told her about the blood on the 12 pad. 13 Another key point, this is one -- this is a 14 subtle point. Mary Thornton said that Larry was on 15 the far side of the bed facing her. That is her 16 testimony. She said how else could I see him if he 17 wasn't facing me? I'm going to get ahead of 18 myself, but Rachel Bean said he was on the near 19 side. He was on the side closest to the door and 20 that Larry was -- had his back sort of toward the 21 back of the bed. Now, how can two people who saw 22 the same event place Larry Destefano on opposite 23 sides of the bed? 'Cause it's a lie, it didn't 24 happen. 25 We're going to get to the biggest liar of all CENTRAL FLORIDA REPORTERS, INC. 2669 1 in this trial, Rachel Bean. She says, as I 2 mentioned, that Larry was on the other side of the 3 bed opposite of what Mary Thornton said. And she 4 said that when you open the door, you can see the 5 full view of the room as well. We didn't have the 6 benefit of her -- having to show her pictures to 7 ask her to explain how that happened, but that was 8 her testimony. 9 She also said that as she opened the door, 10 Larry walked over to the door and then shut the 11 door in Mary Thornton's face. So how can she see 12 anything if he was walking over to the door as they 13 opened the door, according to her testimony? She 14 says she never entered the room. Once he got to 15 the door, her testimony is he let me in and then 16 closed the door in Mary Thornton's face. 17 She also said she was not upset with Carol 18 Boze about signing the note. Who do you believe, 19 the woman who was afraid for her job because of 20 Rachel Bean, or Rachel Bean who says I wasn't upset 21 about that? There's been a lot of testimony about 22 Rachel Bean having a bad temper in this case. 23 Rachel Bean also says that Larry Destefano 24 pointed out the blood to her. Not true. I'm going 25 to get to that later. She said the only suspicion CENTRAL FLORIDA REPORTERS, INC. 2670 1 of blood she had was that it could be hemorrhoids. 2 That's her testimony, hemorrhoids. She also 3 testified she never observed Larry Destefano 4 disimpacting his mother and knew of no nurse who 5 observed Larry Destefano disimpacting his mother. 6 And just so we have the charting here, just to 7 put this in context a little bit, I'm going to show 8 you the only charting record of disimpaction 9 related to Larry Destefano. This happens to be a 10 Sunbelt chart, 9/20/99. Under review of systems it 11 says right here, unable to obtain. Son reports 12 chronic constipation with fecal impaction requiring 13 disimpaction every five to six days. 14 Now, that's the only mention you're going to 15 hear about fecal disimpaction by Mr. Destefano 16 every five or six days. What does Rachel Bean say? 17 She went and looked at that charting. She got that 18 information about fecal disimpaction because she 19 went and found this on the chart. That was the 20 seed for what you're going to hear about this 21 rectal bleeding. That was the seed document that 22 gave her the idea. 23 She also testified that it was Dr. Black who 24 told her that he thought that Mrs. Destefano had 25 internal hemorrhoids. She said internal CENTRAL FLORIDA REPORTERS, INC. 2671 1 hemorrhoids that time. Dr. Black didn't say that 2 at all. I think your collective recollections will 3 prove that out. And she said the only thing she 4 reported, this is her testimony, to anybody was 5 this, that she had a suspicion of internal 6 hemorrhoids. 7 She said very distinctly I never reported 8 rectal bleeding. I never reported any 9 disimpaction. She says Lillian Folley, when we 10 talk about her notes, that Lillian Folley was 11 confused about what she was told. She was 12 confused. 13 And just so we look at what was told to 14 Lillian Folley -- and it's not ambiguous, it is not 15 ambiguous. This is the initial discharge planning 16 assessment. I'm just going to read part of this. 17 Presented with rectal bleeding after patient's son 18 was witnessed disimpacting her states Rachel, RN. 19 Rachel Bean says she never said that. She never 20 said anything about disimpacting or rectal 21 bleeding. Not true. 22 She says also then Dr. Black told her there 23 was an extruding hemorrhoid, an extruding 24 hemorrhoid that may be the cause of bleeding. She 25 goes from internal hemorrhoids to external CENTRAL FLORIDA REPORTERS, INC. 2672 1 hemorrhoids to try to explain that, neither of 2 which is true. She said that Mr. Destefano was 3 angry about the blood on the pad and that's what 4 caused him to be trespassed, because of the blood 5 on the pad. 6 And Mr. Destefano made a very telling 7 statement when he was testifying before you. This 8 is a man who cared enough about his mother and his 9 mother's care as her caregiver that he wrote 10 down -- he wrote things down to try to document the 11 care. We've talked about the -- 9/19, the night 12 before, no wound dressing on Carolina Destefano, 13 room 307, signed by Carol Boze. 14 But equally important is this notation the 15 next day. Mom still in same position as last 16 night. Not moved or rotated to keep off wounds on 17 buttocks. And what Mr. Destefano told you, he says 18 if I had seen blood, don't you think I'd put that 19 in a note? Don't you know that he had to be 20 looking at his mother's position and the area 21 around her buttocks to even make this note? Why 22 wouldn't he have written that down? 23 This is a man that was so concerned about his 24 mother's welfare he wrote down these items. These 25 stature -- or the significance of bleeding is so CENTRAL FLORIDA REPORTERS, INC. 2673 1 great, is so great that this would -- that these 2 notes pale in comparison to that. Don't you know 3 if Larry Destefano had seen blood, he would have 4 gone ballistic. There would have been a hubbub 5 that would have occurred there and he would want 6 names being taken. He would have another note that 7 would have been a lot more detailed than this one. 8 And Rachel Bean said that she never told 9 Lillian Folley that the son was witnessed 10 disimpacting the mother. Rachel Bean is a 11 bald-face liar. Let's talk about what else Rachel 12 Bean has denied doing. You heard -- I just went 13 through her testimony about what she remembers 14 saying and hearing, and now we've got the 15 Interrogatories about what she actually told DCFS. 16 I'm going over these more in detail than I am 17 the nursing notes that you've heard a lot about 18 because these were relatively late getting to you, 19 and I just want to emphasize what they say. And 20 this was based on a -- there were two phone calls. 21 There was one at 12:09 p.m. on the 21st and then 22 there's one at 4:12, which we will get to in a 23 minute. 24 The first thing she said was the son has 25 visited her and has been kissing the mother on the CENTRAL FLORIDA REPORTERS, INC. 2674 1 lips, overly affectionate acting, okay, and that 2 was told to two individuals with DCFS. The next 3 thing she said was bright red blood was seen on the 4 pad on her bed. The son was present at the time. 5 We then go to still 12:09, same phone call, 6 Carolina was medically checked and found to be 7 bleeding from her rectal area. Now, you all 8 remember there is absolutely no evidence of any 9 rectal bleeding. We all know this. We have three 10 doctors that confirm that. Dr. Black confirms it, 11 Dr. Wilson confirms it and Dr. Brennan, who was the 12 full doctor assisting the resident at the time. 13 An anoscope was done at ORHS. They all 14 confirm there was no rectal bleeding. She then 15 says it is suspected -- still 12:09, son 16 disimpacted his mother this morning causing 17 bleeding from her hemorrhoid. Again, that 18 non-existent hemorrhoid that didn't happen, that 19 wasn't there. 20 We're still at 12:09. Her son was recently 21 laying on top of her and kissing her passionately. 22 Now remember, this is a very, very important point 23 here, very key point in terms of timing. You as 24 fact detectives here need to know what this means. 25 2:42 was the day -- was the time that Carol Boze CENTRAL FLORIDA REPORTERS, INC. 2675 1 checked in that day, 2:42 on the time record. We 2 put that in evidence. 3 No one told Rachel Bean about laying on top 4 until after 2:42 allegedly. Margarita Walters 5 didn't tell her that, the only one that would have 6 reported to her. So how did Rachel Bean know -- at 7 12:09, two hours and 40 minutes before Carol Boze 8 came on duty, how did Rachel Bean know that the son 9 was recently laying on top of her when that note 10 wasn't made until after 2:42 when Carol Boze came 11 in and did the so-called late entry? How did she 12 know that? 13 If you recall from her notes, she never said 14 that happened, that she saw it. What she saw was 15 Larry Destefano passionately kissing his mother, 16 and she put in Mary Thornton's testimony, for an 17 extended period of time. So how on earth did 18 Rachel Bean know at 12:09 that he was lying on top 19 of his mother kissing her passionately? 20 And if you recall, when Carol Boze did her 21 first note, she didn't say it was a passionate 22 kiss. She didn't say it was for an extended period 23 of time. Rachel Bean had her write a second note 24 to be a little more clear about that so she put 25 it -- spiced it up and put in that it was a CENTRAL FLORIDA REPORTERS, INC. 2676 1 passionate kiss for an extended period of time. 2 Well, this is the nugget you're looking for 3 for how this thing came into being. Rachel Bean 4 and Mary Thornton cooked it up, and they laid it 5 off on Carol Boze as being the one that reported it 6 because Rachel Bean was telling DCFS about this 7 hours before she was supposedly going to know about 8 it from Carol Boze. 9 You asked questions about was there any other 10 reporting other than what was being charted, and 11 they said, no, there's not. You can make a call to 12 the director of nursing if there's an issue, but 13 that doesn't happen. 14 Now we're going to get to the second phone 15 call. The key event happened at 3:00 o'clock. The 16 second phone call is 4:12. The key event happened 17 at 3:00 o'clock. You remember what happened? 18 Dr. Wilson called up and talked to Rachel Bean. 19 And she said I've done the anoscopic investigation. 20 There is no evidence of rectal bleeding. We can't 21 keep her here anymore. There's no medical need. 22 We want to send her back. And Rachel Bean said no 23 way, I don't want her back here. 24 So now we have a dilemma for Rachel Bean and 25 company. The dilemma is she's now stuck with a CENTRAL FLORIDA REPORTERS, INC. 2677 1 patient or could be stuck with a patient without 2 the caregiver being around, somebody she doesn't 3 even want around the premises. And she's going to 4 do more with DCFS. She makes a second unprompted 5 phone call, the 4:12. 6 And what does she say? She says a doctor 7 examined her and only found evidence of bleeding 8 hemorrhoids. Carolina was transported to Florida 9 Hospital South for examination. He followed her 10 there and tried to make her walk. He drug her 11 around the floor, pulling a bandage off one ankle 12 that has a decubitus on it. And goes on to state 13 that down here he forced her mouth open and poured 14 water in her mouth trying to force her to drink. 15 I want to remind you of one part of 16 Dr. Black's testimony that was a quickie but it was 17 very important. He was asked about whether he 18 believed these allegations about Larry Destefano 19 were true. He said that he did not believe that 20 Mr. Destefano had abused his mother, either 21 physically or sexually, based on, quote, my 22 observations of the clinical evaluation and just 23 the interactions I had with Mr. Destefano. That is 24 his opinion. 25 The key issue in this case also is the bright CENTRAL FLORIDA REPORTERS, INC. 2678 1 red blood on the pad. And there's a lot of dispute 2 in the testimony about how this was discovered as 3 well. Shelly Fuchs says she discovered the bright 4 red blood along with Mary Thornton. Mary Thornton 5 denies that Shelly Fuchs told her that. 6 Mary Thornton says Rachel Bean discovered the 7 bloody pad. Rachel Bean tells Dr. Black that Larry 8 told her about the bright red blood. She also said 9 that is why Larry was angry. That's why he was 10 trespassed, because of the blood. And we talked 11 about the note. If it had been Larry, don't you 12 think he'd put it on the note? 13 Let's talk a little bit about Shelly Fuchs, 14 who appeared to you by deposition. She's a 15 physical therapist assistant, licensed, who 16 purportedly did a wound care assessment. And she 17 writes it down and doesn't remember anything about 18 it, just what's on the written page about the 19 bright red blood. 20 She is asked questions in her deposition on 21 May 15th of 2000 as follows. Did you ever work 22 with Carolina Destefano? No. But you never did 23 any work with or for Carolina Destefano? No. She 24 concedes that her memory on May 15th of 2000 was 25 absolutely fresher than it was at the time of the CENTRAL FLORIDA REPORTERS, INC. 2679 1 trial. 2 She also remembered, as anybody would, that 3 Larry was picketing from the time of the 4 hospitalization until certainly the time of this 5 deposition because this deposition was about him 6 being arresting for picketing. And that would be 7 something that would take Carolina Destefano out of 8 the framework of that all other patients because 9 this was a patient that she would remember because 10 her son was out there every day picketing from the 11 entire time of the departure from Sunbelt to the 12 time of her deposition. And in the deposition she 13 said I never did any work with or for Carolina 14 Destefano. 15 Let's follow the blood trail. Stuart James. 16 He is the only true blood analysis expert you heard 17 from. I would suggest that Dr. Anderson is not a 18 blood analysis expert and he is not qualified to 19 look at a pad, at the distribution and determine 20 how that occurred. That is a blood analysis 21 expert, a blood spatter expert. 22 And he gave you some testimony that is just 23 commonsense testimony. He said that if you have 24 rectal bleeding, that it's going to -- no matter 25 what the position of your body is, that when the CENTRAL FLORIDA REPORTERS, INC. 2680 1 blood comes out it's going to pool next to your 2 body. You can even see an imprint of your body, 3 and it would be a saturated type of a stain that 4 would be smeared because you're lying in it, and 5 that would be -- give an imprint of whatever part 6 of your body is there. He says in his experience, 7 and he's got a lot of it, this was not a 8 naturally-created blood stain. 9 And that does comport with the medical 10 evidence and you got to put the two together. 11 Unfortunately Dr. Anderson didn't have -- wasn't 12 playing with a full deck of cards. They gave him 13 two's and three's and kept all the face cards out. 14 Because it would have been real nice if he'd known 15 about what the medical records were when he opined 16 that this blood was from rectal bleeding, but he 17 wasn't given that information. 18 So what did Dr. -- what did Mr. James do? He 19 was able to artificially create the same stain. It 20 was very close. Yes, it wasn't quite the same 21 material. He artificially could create the stain. 22 And he said importantly this was a pristine stain 23 and not a stain that would be under one's body, 24 pristine stain. 25 The rectal bleeding arose because Rachel Bean CENTRAL FLORIDA REPORTERS, INC. 2681 1 wanted Carolina Destefano out of the facility. 2 Larry Destefano testified that she wanted to get 3 both he and his mother the hell out of her 4 facility, words to that effect. Dr. Black, a very 5 caring, sensitive doctor I would concede from his 6 testimony, he says he didn't transfer her because 7 of rectal bleeding. He didn't find any. 8 He transferred her because he said sometimes 9 there's a human reason, not a medical reason, to 10 transfer. He wanted the opportunity for the 11 caregiver to be reunited with the mother. She was 12 not able to care for herself. 13 Dr. Anderson, you asked a key question 14 yourselves. Would you expect blood with fecal 15 material to be bright red blood? He said it could 16 be red but not bright red blood. And the more he 17 testified, the more he wanted to put more fecal 18 material into the blood, which would make it even 19 browner and not redder. By the time he was done, 20 he said it was just a lot of fecal material in 21 there. 22 He was also told by the lawyers, because he 23 didn't have any medical evidence or any medical 24 records, that Carolina Destefano had been 25 disimpacted, he assumed that that had occurred, and CENTRAL FLORIDA REPORTERS, INC. 2682 1 that thus, he didn't want to fess up but it was in 2 his deposition, that this probably came from the 3 rectal area because of disimpaction, probably came 4 from the rectal area. 5 The only evidence you have that's -- not the 6 only, but the chart done by Dr. Wilson after the 7 examination is key. No blood, no fissure. 8 Remember, fissures are cracks that he would find in 9 there. Anoscope, no obvious source of bleeding, no 10 hemorrhoids. And he talked about diagnostic 11 anoscope, no obvious source of bleeding, no 12 external or internal signs of trauma, no fecal 13 impaction. 14 There's your answer to any rectal bleeding. 15 There was no source of rectal bleeding. And 16 remember what Dr. Wilson was asked about. She was 17 asked, well, look, if there had been rectal 18 bleeding that morning or the day before, would you 19 still see evidence of some abrasion, of some cut 20 that caused the bleeding? She said, yes, it would 21 still be there. 22 Mrs. Destefano had no way she could put blood 23 on that pad. There is no mechanism that any 24 naturally-occurring event that happened would put 25 the blood on the pad. CENTRAL FLORIDA REPORTERS, INC. 2683 1 Another key point, a small point but a very 2 key point that was asked of Dr. Wilson. She was 3 asked about the HEME, the hemoccult. And the 4 hemoccult is to determine whether there's any blood 5 in the fecal matter. And there was no blood in the 6 fecal matter. Why is that a key point? 7 Dr. Anderson, all he wanted to talk about was there 8 was blood in the fecal matter. 9 And here we have a test done at the time by 10 Dr. Wilson who determines that this is a negative 11 hemoccult. There is no blood in the fecal matter. 12 No blood in the stool, no rectal bleeding. No sign 13 of any rectal bleeding or injury on Mrs. Destefano. 14 No source of bright red blood. 15 Dr. Anderson was also asked about the fact 16 that the lawyers had hired another blood spatter 17 expert who had told them about this contamination, 18 and they didn't share with him what that report 19 was. And don't you know why they didn't share that 20 report with him. 21 So as the factual differences in this case, 22 you got to make a decision about that blood. How 23 did that blood get there? Can I tell you that 24 someone saw Rachel Bean or Mary Thornton plant that 25 blood? Can't do that. Can you circumstantially CENTRAL FLORIDA REPORTERS, INC. 2684 1 infer that given all the other lies and all the 2 other things that were made up? You absolutely 3 can. 4 There's got to be an explanation for the blood 5 being there. It was Carolina Destefano's blood. 6 It came from her body. It was on the pad, and it 7 was on the area where the rectum would lie on the 8 pad. It wasn't on the area where the heel was. It 9 was in the area that was lying on the pad, that 10 pristine blood and that tadpole shape. 11 And I would suggest that the evidence strongly 12 suggests that that's what occurred here. Whether 13 it was a pipette, whether it was a syringe, a 14 needle, I don't know. But Stuart James recreated 15 that stain. That's his business. He is a forensic 16 expert on blood stains. That's all he does. He 17 looks at that stain and said if I recreate it, I 18 can opine that that stain was artificially created 19 is what he did within reasonable scientific 20 probability. 21 Another promissory note that you were given, 22 and this was another reporting of so-called abuse 23 by Rachel Bean to DCFS, was that Larry Destefano 24 forced his mother to drink from a glass of water 25 when she was not able to swallow without choking. CENTRAL FLORIDA REPORTERS, INC. 2685 1 That was given as abuse. Remember what Expert 2 Parker talked about with me on that, that at 3 the -- at the hospital, at Sunbelt, that Carolina 4 Destefano is on a puree diet. 5 Larry did not want his mother on tubes. She 6 did not want to be on tubes. Those were her 7 wishes. So under the nursing assessment, she was 8 given a -- PO, by mouth, nutrition. She has to get 9 water in somehow, and that's through her mouth. 10 And she does that -- she does have a non-productive 11 cough, which is going to be some reflux action that 12 would occur when you put that in there, but what's 13 your choice? You can't put a tube in, you got to 14 get her water somehow, and this was reported as 15 abuse. 16 And if Rachel Bean was so diligently looking 17 at the chart to find this history of fecal 18 disimpaction, why didn't she look at the chart and 19 see if that was an ordered situation, that it was 20 right in the comprehensive admission nursing 21 assessment that she was to be -- by mouth to be 22 given fluids? Particularly since also in the chart 23 was the speech language pathology note talking 24 about the puree diet and trying to get a goal of 25 getting her to consume more than 50 percent of all CENTRAL FLORIDA REPORTERS, INC. 2686 1 her meals without staff assistance and to try to 2 get her to tolerate 90 percent lemon ice to get her 3 to have fluids. 4 And the key to that is that speech language 5 pathology to complete caregiver education. And 6 that occurred, according to the chart, on September 7 20th. There's a check under PT, swallowing, 8 caregiver education, check given. So they trained 9 Larry Destefano to give his mother fluids, and then 10 they turned him in to DCFS for abuse, for doing 11 exactly what they -- what was medically called for, 12 medically given. 13 Another promise that was made to you goes back 14 to this charting of the history of fecal 15 disimpaction every five to six days. You were told 16 in opening by Rollins Bedford, by the nursing home 17 that Larry Destefano admitted to his psychologist 18 that he did in fact disimpact his mother while she 19 was at Florida Hospital. 20 And they tried like crazy to get Dr. Krop to 21 say that, but Dr. Krop said -- looking at this 22 note, he said he was at Florida Hospital or at 23 Sunbelt, a part of Florida Hospital, and he 24 admitted to them that he had disimpacted his mother 25 every five to six days. The only history of any CENTRAL FLORIDA REPORTERS, INC. 2687 1 disimpaction is that. 2 And they tried to turn that into he admitted 3 that he disimpacted his mother while she was at 4 Sunbelt, while she was at Florida Hospital. It 5 didn't say that, and Dr. Krop didn't say that he 6 said that. 7 Another issue you're going to hear about -- 8 and you saw all those picketing -- all those 9 picketing tapes for a reason by Defense. And that 10 is that this defamation, this harm was not caused 11 by Larry -- by Sunbelt or -- by Sunbelt Nursing 12 Home, it was caused by Larry himself, that Larry 13 defamed Larry. That is the testimony. And that's 14 why you saw -- sat through two hours of videos to 15 get that information to you. 16 Now, let's talk about what Larry knew, and 17 this is going back to the Defendant's Exhibit 4 in 18 evidence. And this is what he knew from Judy 19 Simms. Remember, he said Judy was a DCFS worker 20 that interviewed him at Florida Hospital after his 21 mother was sent there. And he was put in a room 22 with her, and his girlfriend Kay was there, and 23 this is the information that he obtained. 24 He says Sunbelt nursing staff reported to the 25 Department of Children and Family Services CENTRAL FLORIDA REPORTERS, INC. 2688 1 investigator that I had raped and sodomized my 2 mother, that I engaged in oral sex with my mother 3 and that I had inflicted cuts, bites and puncture 4 wounds on my mother's genitalia. And he attributed 5 that that was said to -- these defamatory 6 statements were made to Judy Simms. 7 And he doesn't know the dates. Certainly it's 8 before he met with her. She gave him this 9 information and she says, according to Judy Simms, 10 she obtained knowledge of the defamation from 11 specific-named individuals, with law enforcement, 12 hospital risk management. And my girlfriend 13 present, I strongly refused to cooperate with an 14 interrogation conducted by Ms. Simms until she 15 assured me that specific-named individuals had 16 personally made the defamatory allegations to her. 17 Ms. Simms acknowledged a record of 18 specific-named individuals that made the defamatory 19 allegations. At this time I fully cooperated with 20 the interrogation and answered all questions, 21 including the defamatory allegations listed above. 22 So he was asked questions about all these things; 23 rape, sodomy, oral sex, inflicting cuts, bite marks 24 and puncture wounds. 25 You will hear no -- you heard no other CENTRAL FLORIDA REPORTERS, INC. 2689 1 evidence of what this conversation was with Judy 2 Simms other than what's on here, the information he 3 got from Judy Simms, who according to this report 4 got this from Sunbelt nursing staff. So when you 5 heard Larry talking about oral sex, talking about 6 genitalia, this is where he got it from. 7 You know, listening to those tapes on 8 picketing that what Larry was out there doing was, 9 in terms of these allegations that had been made to 10 him, he was saying did you hear what they said 11 about me? Did you hear what they said I did to my 12 mother? And he was using some of these specifics. 13 That was a man in pain trying to somehow 14 confront these allegations by throwing them into 15 the face of the offending party. That's what he 16 was doing. These were not new allegations. These 17 were allegations that were made and conveyed to him 18 by Judy Simms, the investigator for DCFS. 19 You heard another promise in opening, another 20 promise from Sunbelt Nursing. Here's the promise, 21 and you got it twice. They would do it again, 22 absolutely. Despite all of this, despite where it 23 led them, despite that we're going to be in here 24 testifying for something that happened six years 25 ago, they would do it again. And the last words CENTRAL FLORIDA REPORTERS, INC. 2690 1 out of Sunbelt Nursing's mouth just about was and 2 they would do it again, absolutely, and that's what 3 the evidence will show. 4 So what we got here is this. We've got from 5 Mary Thornton they'd done it before, and now we've 6 got in this courtroom we're going to do it again. 7 They've done it before, they're going to do it 8 again. 9 Who did all this specifically? Carol Boze 10 signs a note saying no wound dressing, considers 11 that to be an admission of guilt because she was 12 told by -- Margarita Walter was told by Rachel Bean 13 not to sign such notes. And what happened here was 14 that -- what Larry Destefano didn't know about this 15 note was that he was tantamount to walking in front 16 of a moving freight train already rolling down the 17 tracks. 18 Because the evidence in this case is that the 19 Agency for Health Care Administration had just 20 shown -- had just done an inspection in June and 21 July and that they had put 16 tags or problems on 22 that facility. And they had just corrected the 23 last problems from AHCA four days previously on 24 9/16/99. So this note that Larry Destefano 25 possessed, this note was a problem. CENTRAL FLORIDA REPORTERS, INC. 2691 1 Remember what Michelle Fetters said about 2 wound dressing and how important that is in nursing 3 homes, and they have weekly meetings and reports 4 about how we're doing with the wound dressing. We 5 have evidence that there wasn't a wound dressing on 6 this on the 20th, four days after they're 7 supposedly cleared by the Agency for Health Care 8 Administration of these tags that they had against 9 them. 10 Larry's note came at a bad time for him. He 11 didn't know what he was walking into. He walked 12 into a buzz saw. And don't you know that when 13 Margarita Walters reported probably to Mary 14 Thornton, and she admits to this, as does Rachel 15 Bean, had a meeting with Rachel Bean before they 16 went to Larry. And don't you know what happened in 17 that meeting. They wanted that note back. 18 Rachel Bean was furious, according to Carol 19 Boze, and they wanted that note back. So when he 20 didn't give them the note back, she had to 21 discredit him. He has a document that caused him 22 problems. So what's the motive here? We got to 23 discredit that guy. He's a problem. We got to get 24 him out of here. So they decided to get Larry. 25 They'd done it before. They're going to say CENTRAL FLORIDA REPORTERS, INC. 2692 1 he was sexually inappropriate with his mother. 2 He's trespassed at the facility at 10:00 in the 3 morning. No mention is made to the police about 4 blood. No mention is made to the police about any 5 inappropriate kissing. And we know how the 6 note-taking occurred. First it was Mary Thornton, 7 followed by Carol Boze, with the hovering over by 8 Rachel Bean and Mary Thornton telling her what to 9 write word for word. 10 And then we know that what happened then was 11 Rachel Bean took the chart. It was gone. 12 Remember, Margarita Walters went back for the 13 chart, it wasn't there. Well, Rachel Bean had it 14 from at least 4:00 o'clock to 6:10 because that's 15 when she made her last entry in there about what 16 was going on. 17 She took the chart because she wanted to 18 document this situation to make sure that they 19 could prove these allegations or make sure they 20 could convince DCFS about these allegations because 21 all these notes were sent to DCFS by Rachel Bean. 22 That's what the evidence is. 23 And as things ratcheted up in this situation, 24 we found that Rachel Bean had to do more. That's 25 when the blood came in. She had to do more than CENTRAL FLORIDA REPORTERS, INC. 2693 1 just inappropriate kissing and laying on top. We 2 had to get into the bright red blood. The only way 3 that Rachel Bean could get Carolina Destefano out 4 of this facility was to come up with a medical 5 reason to do it, and that's what she did. 6 We know that Dr. Black examined Carolina 7 Destefano at 11:45, found no rectal bleeding but 8 authorized the transfer, and that he prepared a 9 note at 12:00 o'clock that day where he said he was 10 told by nursing about the bright red blood. 12:09 11 is when Rachel Bean called DCFS and tells her what 12 she talked about. Then we know we have a 3:00 13 o'clock phone call by Dr. Wilson. 14 We have a 4:12 call to DCFS. And at 4:00 15 o'clock Rachel Bean is now writing her notes for 16 the first time. It's written that she says 17 Dr. Steely says Larry was kneeling -- kneeing his 18 mother in the back and dragging her across the 19 room. Dr. Steely said, as you will recall, he was 20 told that by nursing staff. He didn't say that at 21 all. 22 4:12 we have the second phone call to DCFS. 23 4:30 Lillian Folley talks to Rachel Bean, 24 thereabouts at that time, and reports -- and Rachel 25 Bean reports to her this laying on top, lying on CENTRAL FLORIDA REPORTERS, INC. 2694 1 top and kissing his mother like in a way a son 2 would not kiss a mother. 3 And then we go to the ORHS chart. What 4 happened at ORHS after the discharge? Lillian 5 Folley testified that her statement to Orlando 6 Police Department was a good sequence of events as 7 to how -- as to when things occurred. It is a 8 guideline for us to look at about how things 9 occurred here. 10 And we've got Lillian Folley. She says I 11 received a consult to facilitate discharge of a 12 patient from Kelly Pipkin, RN. Notified me that 13 the patient came here from Sunbelt Skilled Nursing 14 Facility with rectal bleeding and Sunbelt refused 15 to accept the patient back. That's what she was 16 told. 17 Now, she also says on the back of this that 18 the beginning of the statement was approximately 19 4:30. So the consult occurred at 4:30 with Kelly 20 Pipkin. Kelly Pipkin testified -- agreed that 21 if -- the consult she had given, if she had known 22 about the passionate kissing, it would have been 23 here. It's not here. It comes down here. 24 So what happens after this consult, which is 25 pretty much a factual consult? There was no rectal CENTRAL FLORIDA REPORTERS, INC. 2695 1 bleeding, and we tried to get the patient back and 2 they refused to accept the patient. Well, then we 3 have another notation here where she says I spoke 4 to Rachel, RN, nursing supervisor. 5 Rachel confirmed the above and added that the 6 patient's son displayed inappropriate behavior when 7 visiting his mother at Sunbelt, including kissing 8 his mother on the lips in a way you don't kiss your 9 mother, lying fully on top of his mother, kissing 10 her on the lips with his mouth open and 11 disimpacting her, paren, inserting a finger into 12 the rectum and digitally breaking and removing 13 stool, yelling at the nursing staff. 14 Rachel states that all of the above were 15 witnessed in our -- in her facility. Rachel, RN, 16 stated she and her staff felt threatened by and 17 scared of the son who makes health care decisions 18 for the patient. Rachel indicated that she had 19 trespassed the son based on the above from Sunbelt 20 and had reported the above to the abuse hotline 21 basically, Donna. Following the phone 22 conversation, then we have something else that 23 occurs. 24 So all the information here that was received 25 from Rachel Bean occurred before, before Kelly CENTRAL FLORIDA REPORTERS, INC. 2696 1 Pipkin reported this passionate kiss. And I'd like 2 to -- again I'd like to play -- Mr. McCollough, I'd 3 like to play again the tape of Lillian Folley 4 calling security. 5 (Whereupon the tape was played to the Jury.) 6 UNIDENTIFIED PERSON: John, I am a nurse in 7 the emergency department. I've got a situation. I 8 need someone to call over here right away. 9 UNIDENTIFIED PERSON: Over here where? 10 UNIDENTIFIED PERSON: The emergency 11 department. 12 UNIDENTIFIED PERSON: Room 22? 13 UNIDENTIFIED PERSON: Um-hum. 14 UNIDENTIFIED PERSON: And your name? 15 UNIDENTIFIED PERSON: My name? 16 UNIDENTIFIED PERSON: What's the problem? 17 UNIDENTIFIED PERSON: There is a man in here 18 that is -- he's kissing his mother. He's French 19 kissing his mother. She's nearly comatose and 20 she's in her 70's. She came here from the nursing 21 home, and he's laying on top of her kissing her. 22 UNIDENTIFIED PERSON: Okay. 23 UNIDENTIFIED PERSON: Okay. Thanks. Bye. 24 (Whereupon the playing of the tape was 25 concluded, after which the following proceedings CENTRAL FLORIDA REPORTERS, INC. 2697 1 were had.) 2 MR. OSBORNE: This is where ORHS got in the 3 suit right here. What happens here was Lillian 4 Folley -- who admitted several times she never saw 5 any laying on top or -- lying on top of Larry 6 Destefano on his mother. Kelly Pipkin never saw 7 any lying on top of his mother, and she didn't 8 report it in this note to the police either. And 9 after much haranguing, Lillian Folley admitted that 10 the only source of information she had for laying 11 on top was from Rachel Bean. 12 So what happened here? Why is ORHS in the 13 soup in this case? Because they bonded and joined 14 ranks with Sunbelt Nursing Home. Lillian Folley 15 passed off what Rachel Bean had told her and said 16 that the laying on top occurred at ORHS, the only 17 way you can interpret that. She was disgusted. 18 He's kissing her passionately. He's French kissing 19 her and laying on top of her. 20 It didn't say it was reported to me by Rachel 21 Bean that he was laying on top of her at Sunbelt. 22 It was reported to security that that's what 23 happened, that he was laying on top at Orlando 24 Regional Health Center. There's no dispute about 25 that. That's what she said. Why is this so CENTRAL FLORIDA REPORTERS, INC. 2698 1 serious? Because now we have piling on. Now we've 2 got two medical institutions saying the same thing. 3 We've got Sunbelt Nursing Home and we've got 4 Orlando Regional Healthcare System. 5 And that created a lot of problems for Larry 6 Destefano because now you got not one, where maybe 7 that's a mistake, but now you got two. People are 8 going to say that's beyond coincidence if two 9 institutions are saying the same thing. And don't 10 you know that after this information was 11 communicated about 4:30 by Rachel Bean to Lillian 12 Folley, that when -- she says then that immediately 13 after she gets this information -- she says 14 following this phone conversation with Rachel, I 15 returned to the nursing station at ORMC emergency 16 department. There Kelly Pipkin, RN, reported 17 witnessing the son kissing his mother on the lips 18 with his mouth open. 19 Now, don't you know that when Lillian Folley 20 went over and saw Kelly Pipkin that she 21 communicated this information, this is very bizarre 22 information. Don't you know she communicated that 23 to Kelly Pipkin, said, Kelly, you won't believe 24 what I was just told. You won't believe what 25 happened. I just was told by Nurse Bean that all CENTRAL FLORIDA REPORTERS, INC. 2699 1 these things happened. That he was laying on top 2 of his mother. He was kissing her on the lips with 3 his mouth open. 4 And then Kelly Pipkin said, well, I saw 5 something like that, too. And I don't know what 6 Kelly Pipkin saw, but I have to believe that 7 whatever she saw, the information that she obtained 8 from Lillian Folley about what Rachel Bean said 9 colored her perception such that whatever she saw 10 she categorized as a son kissing his mother on the 11 lips with his mouth open, the very same language 12 that we have here. Kissing on the lips with his 13 mouth open, same language. That's beyond 14 coincidence. 15 The piling on continues. Remember what 16 happens after Mr. Destefano comes to the facility. 17 He is basically shunned, nobody will talk to him, 18 and you heard his testimony. He had not one clue 19 that any of these things were being told -- said 20 about him or told about him. He's just trying to 21 be with his mother and no one would talk to him. 22 He just -- Dr. Wilson said step back, I can't talk 23 to you. 24 So what happens after Mrs. Destefano is 25 transferred to Florida Hospital on the 22nd of CENTRAL FLORIDA REPORTERS, INC. 2700 1 September? Here's what the hospital charting says. 2 Presenting complaint, rectal bleed, protective 3 custody. They took Mrs. Destefano into protective 4 custody because of allegations made by ORHS and by 5 Sunbelt Nursing. They ordered a one-on-one sitter. 6 The diagnosis of that admission was protection from 7 family members and Alzheimer's, protection from 8 family members. 9 At 10:00 o'clock that day, Frances Wiegand, 10 the risk manager, and Dr. Wilholm, the director of 11 the family residency program at Florida Hospital, 12 sat down with two-month resident, Dr. Steely, and 13 tells him to write a to-whom-it-may-concern letter 14 about what the nurses purportedly told him about 15 this abuse. And these are for events that 16 purportedly happened in a hospitalization starting 17 on the 15th of September. 18 Why are we going back on the 22nd of September 19 and creating a to-whom-it-may-concern letter about 20 events that weren't charted on a hospitalization 21 that occurred on the 15th of September? Because 22 that letter was sent -- that to-whom-it-may-concern 23 later was faxed to DCFS by Rachel Bean, that's why. 24 Piling, building a case, trying to prove what they 25 had stated was true, adding insult upon injury. CENTRAL FLORIDA REPORTERS, INC. 2701 1 And what we do know upon discharge -- and this 2 is from the Florida Hospital record. This is the 3 discharge summary talking about placement issue. 4 This was in evidence. There was a concern on 5 admission of possible elder abuse as reported by 6 nurses at Sunbelt, the patient's prior living 7 facility. Thursday an HRS consult was obtained, 8 and a representative from HRS spoke with the son 9 and investigated the situation and determined that 10 there was no evidence of elder abuse. 11 Now, the Defense would like to say this is a 12 good thing. Gee, he was exonerated. It doesn't 13 take away the sting of what happened. It doesn't 14 take away the insult of what happened. The 15 allegations were still made and they're not true. 16 They are unfounded. 17 I told you, they said we've done it before, 18 they said we're going to do it again. And guess 19 what, they've been doing it throughout this trial. 20 They have continued to try to discredit Larry 21 Destefano's credibility in this case, as they have 22 both before, and they're going to do it again. 23 How have they done that? How have they piled 24 on in this case? They talk about Larry being in 25 the brig in the Navy, that he didn't tell the Navy CENTRAL FLORIDA REPORTERS, INC. 2702 1 that he -- he told the Navy he had gone to high 2 school and he probably only went one day. That he 3 committed adultery on his wife, Mieko Koller. Had 4 a child with another woman while he was still 5 married to Mieko. Those allegations were -- and 6 you heard Mieko say they had been separated for 7 years before they got divorced. 8 That he hadn't filed tax returns. He lived 9 off the proceeds of his mother's inheritance. His 10 truck cost more than he gave his brother. He 11 short-changed his brother. He couldn't -- he 12 didn't tend to his brother because he was 13 picketing. He got gonorrhea in the Navy when he 14 was 20. 15 Now, what does that have to do with this case? 16 It's piling on. It's an attempt to discredit the 17 character of Larry Destefano so that you don't 18 believe him in this case about events that happened 19 in September of 1999. That's all it is. 20 And the key, when you put together Sunbelt and 21 you put together Orlando Regional Health Systems, 22 it's best summarized by a quote from Franklin 23 Delano Roosevelt that he did on October 26th, 1939. 24 He said repetition does not transform a lie into 25 truth. And the reputation here again, the ORHS CENTRAL FLORIDA REPORTERS, INC. 2703 1 reputation was very, very damaging to 2 Mr. Destefano. 3 And I don't think there's any question in the 4 evidence, even though they tried mightily on the 5 cross-examination of Lillian Folley, that the only 6 source of information about Mr. Destefano lying on 7 top of his mother came from Rachel Bean. There is 8 your connection. 9 One question arises throughout all these 10 allegations about these sightings, purported 11 sightings of sexually-inappropriate behavior. You 12 see a guy the size of Larry Destefano, 6'2", 230 at 13 the time, doing all of these things to a 14 71-year-old, semi-comatose, end-stage Alzheimer's 15 mother who is five foot tall and weighed at the 16 time 118 pounds by these records, and you stand 17 there and you watch for a matter of minutes. 18 Carol Boze, Kelly Pipkin both said we watched 19 for a matter of minutes. They never said a word to 20 him. Never said, hey, stop that. They never said, 21 hey, what are you doing there? Hey, get off that 22 woman. Not my job, that's what you heard. Not my 23 responsibility. Maybe I'll go report it later, but 24 it's not my responsibility. What is he told by -- 25 allegedly by Carol Boze after two to three minutes? CENTRAL FLORIDA REPORTERS, INC. 2704 1 Excuse me, sir, can I leave the dinner tray for 2 your mother? That's what was said. Unbelievable. 3 This is a case about damages due to 4 defamation, libel, slander, telling untruths. 5 Benjamin Franklin said it best. Glass, china and 6 reputations are easily cracked and never mended 7 well. And to understand the seriousness of these 8 allegations being made against Larry Destefano, you 9 have to look at his relationship with his mother. 10 That's the bedrock to his pain. This is why he has 11 agonized about these allegations ever since they 12 were made about him. 13 Carolina Destefano came to the United States 14 from Cuba at age 30. She became a U.S. citizen. 15 She became educated. She raised Larry in New York 16 as a single mother. She was attractive. She 17 turned down dates to care for her children. She 18 home-schooled Larry in Guam. She obtained a 19 Master's degree. She became a professor. 20 And you heard from Mieko Koller, she was a 21 very proud woman. When they went to her house 22 before she had Alzheimer's, everything had to be in 23 its place. I can't even move furniture without Mom 24 wondering what we're doing because Mom was in 25 charge. And Larry loved his mother. She was the CENTRAL FLORIDA REPORTERS, INC. 2705 1 love of his life. 2 And I think everybody loves their mother, but 3 what I think you've seen here is a man devoted to 4 his mother. He saw his mother, an attractive 5 woman, turn down dates to care for him. When it 6 came his turn to take care of her, he went up to 7 the plate and delivered. 8 He did have some guilt because he didn't 9 recognize what Alzheimer's was with her erratic 10 behavior initially, but when he found out in 11 Arizona that she had been put in a psychiatric 12 ward, he did what a lot of people wouldn't do, what 13 a lot of children would not do. He dropped his 14 business. He walked away from his business and he 15 moved to Arizona and he lived with his mother. 16 And what did he do there? At first she could 17 do things with him. They could walk, you know, 18 power walking. But he had to learn to bathe her, 19 had to learn to feed her, had to learn to do her 20 hair. He had to learn to do her nails. He did 21 total care, making her meals, et cetera. And 22 ironically, he even had to go to bed with her every 23 night because she was walking away at night and she 24 wanted him near, a loving son. 25 He even had to learn -- again a test for any CENTRAL FLORIDA REPORTERS, INC. 2706 1 child because could you really disimpact your 2 mother if you had to? That's a good question. 3 Larry answered that question as well. He had to 4 and he did. And the irony of this case is that you 5 have a loving son who learned to do this. It's a 6 loving, caring act as a caregiver, and they twist 7 it into this perverted, deviant accusation. 8 And that's why these accusations are so 9 devastating to Larry. Larry's dignity, absent of 10 family, is his self-worth. That is his code. 11 There was nothing they could have accused him of 12 worse than what they accused him of. They accused 13 him of being sexually inappropriate with his 14 mother. It doesn't happen statistically. Remember 15 Dr. Krop, it doesn't happen. It's not a known 16 situation where adult children sexually abuse a 17 parent. 18 How worse could it be for Larry Destefano when 19 he's trying to spend the last days of his mother's 20 life with her, and he is now an alleged sexual 21 perpetrator and he's shunned. He can't be with his 22 mother unless there's a sitter there and she's in 23 protective custody. 24 And I think you know from this evidence that 25 Florida Hospital and Orlando Regional, they defamed CENTRAL FLORIDA REPORTERS, INC. 2707 1 the wrong person. They defamed the wrong person 2 because Larry has a personality trait. It's called 3 a characterologic trait, Dr. Krop even called it a 4 personality disorder, being obsessive. And what is 5 that? Larry sees things in black and white. Larry 6 sees right and wrong. If you're right, you're 7 right. If you're wrong, you're wrong. 8 And it goes back to this sense of family 9 dignity. He's got this stoicism that he got when 10 he was in Guam and Japan, and that's your family is 11 important to you and your mother's at the top of 12 that pyramid. And when these things happened to 13 him, he was driven, driven because of this 14 characterologic trait, particularly hell bent to 15 prove the lie was a lie and to obtain vindication, 16 to obtain vindication. 17 And this harm is so grievous to Larry that he 18 relives this every day. Kay O'Neill said it the 19 best way. She said it's like Groundhog Day. Larry 20 relives these days -- these events every day. And 21 if you didn't see the movie with Bill Murray, it's 22 a man that's stuck in the same day ad infinitum, 23 day after day with Sonny and Cher coming on the 24 radio at 6:30 in the morning. That's Larry. And 25 this harm and the nature of this harm is evidenced CENTRAL FLORIDA REPORTERS, INC. 2708 1 by his picketing. 2 I think the evidence shows that if you look at 3 this picketing and what it was, which is a man 4 crying out in pain for what happened to him. He 5 wanted explanations. Did he want a lawsuit? No, 6 he didn't want a lawsuit. You heard him say I want 7 an investigation. If you give me an investigation, 8 I'm going to put my sign away. He was out there 9 for over a year, no investigation. 10 And the picketing also shows the intensity of 11 his hurt, the intensity of his hurt. How many 12 people would go out and picket a facility for over 13 a year every day until they couldn't stand it 14 anymore? And how many people would try to expose 15 the harm, try to say can you believe what they said 16 about my mother and me? Can you talk to somebody 17 about that? Did you know about that? They're 18 going to say this is Larry just trying to injure 19 himself. 20 You saw those tapes. He's not trying to 21 injure himself. He was going back and repeating 22 what they said about him. And he wanted an 23 explanation and he wanted the right to be -- the 24 wrong to be righted. 25 And you remember the hassling he got. Code CENTRAL FLORIDA REPORTERS, INC. 2709 1 enforcement, they were out there giving him 2 citations. The police arrested him. I read to you 3 the court order where they said this is a free 4 country. You've got a right to give free speech 5 and you got a right to passively resist the police, 6 and the videotape is what proved it. 7 Larry hadn't thought about suing, not until 8 John Amick, the head of security for Sunbelt, came 9 up to him and said, Larry, why don't you put this 10 in the proper forum? Why don't you sue us? It was 11 only when the ombudsman, this was on the videotape 12 as well, would not accept his complaint. I'm 13 standing here, I've got my complaint and they won't 14 accept it. And it was only when he filed a 15 complaint with OPD and they told him this was a 16 civil matter, to go hire a lawyer. 17 Now, in an ideal world you, the Jury, should 18 be able to go back to September of 1999 and change 19 things, make it right so it didn't happen. But 20 that's now how it works. We can't do that. We 21 can't unring the bell that's happened here. And a 22 lawsuit only provides one method of resolution, 23 money. 24 So Larry's here for vindication. Larry's here 25 for money because that's the way the system works, CENTRAL FLORIDA REPORTERS, INC. 2710 1 that's how the system speaks. It's too late for an 2 investigation. They didn't want to do the 3 investigation. It was too late to discipline 4 anybody, long passed time for that. And the 5 lawsuit only contemplates money and that's the only 6 way that Larry can get his vindication. 7 Now, I'm going to go through a few of the jury 8 instructions with you. There's going to be a lot 9 of jury instructions. It's not a -- it's a fairly 10 complicated area of law, defamation is. I want to 11 sort a little bit of that out for you. 12 The first thing you're going to have to decide 13 is whether these statements made by Rollins Bedford 14 and Orlando Regional were statements that were 15 actually said, first of all, and that statements 16 tended to expose Mr. Destefano to hatred, ridicule 17 or contempt or tended to injure Larry Destefano's 18 reputation or charge that he committed a crime. 19 Now, the first offense to that, if you get 20 that far, is that -- and that is that they can 21 be -- the defense is truth. Were the statements 22 substantially true and were they made with good 23 motives, two parts. A statement is substantially 24 true if its substance or its gist conveys 25 essentially the same meaning that the truth would CENTRAL FLORIDA REPORTERS, INC. 2711 1 have conveyed. In making this determination, you 2 can consider the context in which a statement is 3 made and disregard any minor inaccuracies that did 4 not affect the substance of the statements. 5 So step one, was the statement made. Step 6 two, was it true and was it made with good motives. 7 These Defendants have what's called a qualified 8 privilege. Now, there's two qualified privileges 9 that you're going to see in the jury instructions. 10 There's a separate qualified privilege that exists 11 if you report something to the abuse hotline, HRS 12 or DCFS. And that is Rollins Bedford has that, 13 that situation, not ORHS, because there's no 14 question that ORHS did not call the abuse hotline, 15 other than to try to get placement for 16 Mrs. Destefano. 17 And when you look at that then, if you have a 18 qualified privilege, then what my burden -- 19 Mr. Destefano's burden is to show that even though 20 you had this qualified privilege and you have a 21 duty to make these statements to DCFS, that if the 22 statements are made with improper motives that 23 abuse the qualified privilege, it does not exist 24 anymore. 25 And one makes a false statement about another CENTRAL FLORIDA REPORTERS, INC. 2712 1 with improper motives if one's primary motive and 2 purpose in making the statements is to gratify 3 one's ill will, hostility and intention to harm the 4 other rather than to advance or protect the 5 interests of the corporation. 6 And there's a different standard, and it gets 7 a little confusing, but when you talk about the 8 DCFS, that's a statutory reporting requirement. 9 You've heard about Chapter 415, that's what that 10 is. And that standard, in order to prove -- for us 11 to disprove that standard and say these were 12 improper motives, we have to do so by what's called 13 clear and convincing evidence, and that differs 14 from the greater weight of the evidence. 15 The greater weight of the evidence means the 16 more persuasive and convincing force and effect of 17 the entire evidence in the case. That's the scales 18 of justice, they got to -- we got to tilt them just 19 a little bit our way to say that the greater weight 20 of the evidence occurs. 21 In contrast to that, clear and convincing 22 evidence is evidence that is precise, explicit, 23 lacking in confusion and of such weight that it 24 produces a firm belief or conviction without 25 hesitation about the matter in issue. CENTRAL FLORIDA REPORTERS, INC. 2713 1 Now, what we're talking about here are those 2 statements on those Interrogatories I showed you a 3 couple of times that were made to DCFS. Did we 4 show by clear and convincing evidence that these 5 were made with improper motives that abuses this 6 privilege? And those motives are the ones that I 7 was talking to you about about the note, about 8 Rachel Bean and Mary Thornton, about getting this 9 guy, saying sexually inappropriate, we've done it 10 before. That is the motive. 11 And I believe the evidence supports that, 12 under clear and convincing evidence, that you 13 have -- that there's a firm belief or conviction in 14 this courtroom that that was a statement that was 15 made for ill will and an intent to harm 16 Mr. Destefano. 17 Now, in terms of -- the privilege exists not 18 only by the statute but also under common law. 19 That's just by case law in the State of Florida. 20 Under common law, as long as you give the 21 information to someone that has an interest in it, 22 like law enforcement or other health care 23 providers, then you have a common law privilege, 24 and that is by the greater weight of the evidence. 25 Our burden was to show that was abused by the CENTRAL FLORIDA REPORTERS, INC. 2714 1 greater weight of the evidence. And again, it's 2 the same test for you, were there improper motives. 3 And there's two areas where these statements 4 were made. One was to the police and one was in 5 the records, various physicians at Sunbelt and then 6 at ORHS. And you got ORHS's reports to the police 7 as well. Those are the areas they are. And again, 8 the same test is if one's primary motive and 9 purpose is to make the statements to gratify one's 10 ill will, hostility and intent to harm the other 11 rather than to advance or protect the interest of 12 either Rollins Bedford, Sunbelt or ORHS. 13 And you're going to see a jury instruction, 14 one for ORHS separate from the one from Rollins 15 Bedford. And you're going to see another jury 16 instruction for Rollins Bedford on the statutory 17 defamation as well. 18 There is another issue that you're 19 going -- that's going to be brought to you, and 20 that is whether or not Rachel Bean, Mary Thornton 21 or Carol Boze were acting in the course of their 22 employment or agency of Rollins Bedford at the time 23 these incidents occurred. Because that's the 24 position being taken by Rollins Bedford, that they 25 weren't acting within the course and scope of their CENTRAL FLORIDA REPORTERS, INC. 2715 1 agency or employment. 2 Now, you're going to hear ORHS does not take 3 that position about Kelly Pipkin and Lillian 4 Folley. They concede that they were acting in the 5 course and scope of their employment, their agency 6 at the time these acts occurred. But you're going 7 to have to determine that -- whether these people, 8 Rachel Bean, Mary Thornton and Carol Boze, were 9 acting within the proper scope of their employment. 10 Obviously they were. Rachel Bean was a 11 director of nursing, Mary Thornton was the unit 12 floor manager, and Carol Boze was the LPN who was 13 in charge of taking care of Carolina Destefano. 14 There was no evidence to suggest that they did 15 anything outside the course of their employment or 16 agency. 17 It's very obvious that they were doing their 18 job, they thought they were doing their job, and 19 they did these things through their employment at 20 the time and they actually used their employment to 21 inflict this harm. That's the irony of this. 22 Without being in this position, they wouldn't have 23 had this ability to call DCFS and put these things 24 in the charting to try to hurt Mr. Destefano. 25 Now, let's talk about what you're going to CENTRAL FLORIDA REPORTERS, INC. 2716 1 hear about damages. This is not a case where 2 there's economic damages. Let me tell you what 3 that is. You heard that before. Larry Destefano 4 does not have a claim for lost wages, money that 5 you can -- cash that we could quantify an amount of 6 money he lost because of this. His injury is 7 intangible. 8 And what the evidence is -- what the jury 9 instruction is going to say is that you should give 10 him an amount of money that the greater weight of 11 the evidence shows will fairly and adequately 12 compensate Mr. Destefano for any loss, injury or 13 damage that we can prove by the greater weight of 14 the evidence. 15 And a statement or a publication is a cause of 16 loss, injury or damage if it directly and in a 17 natural and continuous sequence produces or 18 contributes substantially to producing such loss, 19 injury or damage. 20 The question here is, you know, what the 21 statements are, you know, what the libel and the 22 slander is. Did that have a causal effect on Larry 23 Destefano? Obviously. We have proof in the 24 pudding with the picketing. He immediately 25 reacted. CENTRAL FLORIDA REPORTERS, INC. 2717 1 Now, I think Dr. Krop said very interestingly, 2 instead of going off whimpering into the night, 3 Larry Destefano choice to confront the lies. 4 That's what that was all about. He's confronting 5 the lies. He's been confronting them every day 6 since then. He's been confronting them these last 7 two weeks with you here. He's pulling no punches. 8 Larry is who he is. You saw him on the stand. I 9 think you saw genuinely that he is disturbed by 10 what has happened to him. 11 And Dr. Krop said that this disturbance is 12 permanent. It's just an anxiety and obsession that 13 he's got with these events that's permanent. It's 14 not going to go away. In fact, he says when the 15 lawsuit's over, he's going to really need help 16 because he's been obsessed with vindicating 17 himself, and when this lawsuit is over he's going 18 to need help. 19 What is he going to do with his time? The 20 element of damage in this case is injury to 21 reputation or health, shame, humiliation, mental 22 anguish, hurt feelings experienced in the past or 23 to be experienced in the future. The reason I read 24 to you that statistics on the average life 25 expectancy of someone that's Larry's age and race, CENTRAL FLORIDA REPORTERS, INC. 2718 1 male, 31.4 years, is that Dr. Krop says he's got a 2 permanent injury. The statistics say he's going to 3 live for 31.4 years. He's going to be suffering 4 from this for 31.4 years. He might live longer, he 5 might not live as long, but that's what the 6 statistical average is. 7 The key to this ratcheting that you have to 8 do -- there's no exact standard for fixing 9 compensation to be awarded on account of such 10 elements of damage. The only measure you're going 11 to be told about is this, any award should be fair 12 and just in light of the evidence. 13 Now, only you can make this determination. I 14 can't begin to tell you what is fair. Is it 15 $100,000, is it $500,000, is it a million dollars, 16 is it five million dollars? Only you can decide 17 the depth of injury to Larry Destefano and what 18 this has done to him and what it's going to do to 19 him in the future. 20 Now, you're also going to be told as to 21 Rollins Bedford, Sunbelt only, not ORHS, that in 22 addition to compensatory damages, punitive damages 23 can be warranted under circumstances to punish and 24 use as a deterrent. You're going to be told 25 there's a two-step process. The first process is CENTRAL FLORIDA REPORTERS, INC. 2719 1 you're going to find about the compensatory damages 2 I just talked about, but you got to find out 3 whether or not we are entitled -- in the first 4 stage whether we're entitled to punitive damages 5 against Rollins Bedford. 6 And then there will be a second stage. You'll 7 come back in, you'll give your verdict. There will 8 be a second stage if you say yes to that. We'll 9 present either more evidence or argument on what 10 the punitive damages should be. And punitive 11 damages are again by a clear and convincing 12 standard. 13 And you got to look at the conduct of these 14 employees, Rachel Bean in particular, of Rollins 15 Bedford/Sunbelt, and determine whether or not that 16 conduct by a clear and convincing standard was a 17 substantial cause of loss or injury to Larry 18 Destefano, and that such conduct warrants punitive 19 damages against them in accordance with these 20 standards we're going to talk about. 21 You're going to get a verdict form in this 22 case, and the verdict is going to be as follows. 23 Paragraph one, was there libel and slander against 24 Rollins Bedford? Did Lawrence Destefano show by 25 the greater weight of the evidence that he was CENTRAL FLORIDA REPORTERS, INC. 2720 1 libeled and slandered and that the libel and 2 slander was a legal cause of injury, legal cause of 3 damages to Lawrence Destefano, yes or no? 4 And then if you answer that yes, the next 5 question is what damages did Lawrence Destefano 6 suffer as a direct result of being libeled or 7 slandered by Rollins Bedford Corporation? 8 The next question under Rollins Bedford's 9 issue is did Lawrence Destefano self-publish the 10 defamatory statements to third parties and cause 11 damages that are alleged by him against Rollins 12 Bedford Corporation, yes or no? The next question 13 is what portion of Destefano's damages are 14 attributable to the self-publication of the 15 defamatory statements to the third parties, 16 percentage, if you so decide. 17 Then there's a category about ORHS, Inc. Did 18 Lawrence Destefano show by the greater weight of 19 the evidence that he was libeled or slandered by 20 ORHS and that the libel or slander was a legal 21 cause of damage to Larry Destefano? Yes with a 22 line, no with a line. And they did not raise this 23 affirmative defense of self-publication so they're 24 not entitled to it. 25 The next question is what damages did Lawrence CENTRAL FLORIDA REPORTERS, INC. 2721 1 Destefano suffer as a direct result of being 2 libeled or slandered by ORHS? The last question 3 you have is punitive damages. Here's what it's 4 going to be. Under the circumstances of this case 5 please state whether you find by clear and 6 convincing evidence that punitive damages are 7 warranted against Rollins Bedford Corporation. Yes 8 with a line, no with a line. 9 On behalf of my client, I'd like to thank you 10 for the attention you've given this case for the 11 last two weeks. I know you've been paying 12 attention and taking notes and the time you have 13 devoted to this very important case. The last 14 thing I'd like to say to you is when you go into 15 the jury room to deliberate, don't leave your 16 common sense in the courtroom. Take it with you to 17 the jury room because I think common sense dictates 18 the result in this case. Thank you very much for 19 your attention. 20 THE COURT: Ms. Marshall? 21 MS. MARSHALL: Thank you, Your Honor. First 22 of all, don't be scared about my posters. The 23 volume isn't telling of how long my closing is 24 going to be. It helps me keep on track in where 25 I'm supposed to be going. CENTRAL FLORIDA REPORTERS, INC. 2722 1 Thank you for being here for these past two 2 weeks. I know that you have paid very close 3 attention to the testimony and the evidence. I 4 know that because your questions to the witnesses 5 made it very clear that you were very attentive to 6 everything that was going on in the courtroom. 7 Even though there were an awful lot of 8 witnesses, this is a relatively simple story. 9 Mrs. Destefano was unable to speak for herself. 10 She was unable to protect herself. She was what 11 the law refers to as a vulnerable adult. 12 Rachel Bean had a reasonable concern, a 13 reasonable suspicion about Mr. Destefano's 14 interactions with his mother. Rachel Bean and the 15 other nurses saw things that were out of the 16 ordinary, things that were odd, things that made 17 them feel uncomfortable, things that caused them 18 concern. 19 In the course of this trial you have heard a 20 lot about unusual behavior from Mr. Destefano, 21 unusual interaction between him and his mom. That 22 evidence was presented not to embarrass him but to 23 demonstrate why the nurses had a legitimate 24 concern. 25 In order to protect the innocent, the CENTRAL FLORIDA REPORTERS, INC. 2723 1 vulnerable adults like Mrs. Destefano, the law says 2 that you report first, let DCF ask questions later. 3 And that's the way that it has to be so a potential 4 abuser doesn't slip through the cracks. And the 5 Judge will instruct you that the law protects 6 reporters like Rachel Bean who tell the Department 7 of Children and Families what their concerns are 8 and ask them, the investigators, to determine if 9 there is a potentially abusive situation going on. 10 Now, I'm sorry if Mr. Destefano was 11 embarrassed by the questions that were asked of him 12 by DCF, and I'm sorry if he felt outraged that he 13 was asked these questions at all, but it's not 14 about him. It is not about him. This has never 15 been about him. This story has been about the 16 protection of his mother, a patient who is unable 17 to speak for herself, who is unable to say please 18 do not do that to me, a person who is unable to 19 explain how she felt, a person who is unable to 20 give consent. 21 I think the evidence has shown that it is more 22 than reasonable to have concerns about a grown man 23 who gets into bed with his mother, especially when 24 her state of mind is such that she can't 25 communicate, she can't talk, she barely responds to CENTRAL FLORIDA REPORTERS, INC. 2724 1 any stimuli at all. 2 It is also more than reasonable to have 3 concern about Mr. Destefano kissing his mother on 4 the lips for an extended period of time, kissing 5 her all over her face and neck. It is something 6 you do not see very often. It catches you off 7 guard. It makes you raise an eyebrow. And that's 8 the standard for when you're supposed to pick up 9 the phone and call the Department of Children and 10 Families and let them determine if anything funny 11 is going on. 12 And it's more than reasonable for the nurse to 13 have concerns about Mr. Destefano disimpacting his 14 mother on a regimen that was five to six days for 15 eight months. It is especially reasonable when 16 there is blood found on her bed pad and there's no 17 obvious source of where it came from. 18 It is more than reasonable to ask the 19 Department of Children and Families to come and 20 take a look at the situation, check it out, see 21 what you think, see what you determine. You 22 investigate, that's what DCF does. 23 It is also more than reasonable for Sunbelt to 24 share information, to share their concerns, to 25 share what the possibilities are to other health CENTRAL FLORIDA REPORTERS, INC. 2725 1 care providers who are in charge of taking care of 2 Mrs. Destefano. It is totally reasonable for them 3 to pick up the phone and say, look, we have this 4 patient. She's coming over. Here's what's going 5 on. Here's what we think. Here's what it might 6 be. And that is what health care providers do, 7 they put the patient first. 8 I believe that the evidence has shown that 9 there was highly unusual behavior that needed to be 10 investigated by the Department of Children and 11 Family Services. And the law requires you to err 12 on the side of caution. The information that was 13 shared was on a need-to-know basis. 14 And by that, the nurses at Sunbelt, the only 15 people that they talked about this to were each 16 other, the police department, DCF, Orlando 17 Regional, Orlando Regional Hospital and Florida 18 Hospital. The people who were in charge of taking 19 care of Mrs. Destefano and protecting her, those 20 were the only people that were told, other than who 21 Larry chose to tell himself. 22 The statements that were made were all 23 substantially true or there were innocent errors in 24 note taking. And by that I mean there's been a big 25 discussion about Lillian Folley's note saying CENTRAL FLORIDA REPORTERS, INC. 2726 1 Rachel Bean told me that they witnessed him 2 disimpacting her. And what Rachel Bean said, you 3 know, I called her up, I was giving her a whole 4 bunch of information. Some of it Lillian Folley 5 put in quotes, and she said those are the things 6 that were said word for word by Rachel. The only 7 things were just -- I was kind of summarizing 8 everything that she had told me. 9 It's not uncommon when you're taking notes to 10 not use the exact same words. Rachel was telling 11 her about a whole bunch of things, some of things 12 she witnessed, some of things that were in the 13 medical history, and some of the people -- or some 14 of the things that other nurses had observed, and 15 she was trying to relay all of this to her. So any 16 discrepancies in that are not intentionally. And 17 the Judge will instruct you that even if there is a 18 false statement, if it was made with good motives, 19 good intentions, that is still privileged. 20 The other -- the evidence has also shown that 21 Larry was quickly vindicated. And they said -- 22 Mr. Osborne said in his closing by the time she 23 left Florida Hospital, he had been cleared by the 24 Department of Children. They did their 25 investigation. They said it was unfounded. The CENTRAL FLORIDA REPORTERS, INC. 2727 1 Orlando Police Department, the testimony was it 2 was -- that investigation was over before it began. 3 They decided that a crime had not been committed. 4 There are a lot of differences in the 5 witnesses' memories about certain sequences of 6 events, whether the door was partly open, partly 7 closed, how many steps they took into the room. I 8 think that those sort of details have been 9 introduced to confuse you because what is 10 significant is the stuff that they wrote in their 11 nurses' notes. 12 Mary Thornton testified to I wrote down the 13 important stuff. Here she is six years later 14 trying to remember if she took a step into a room 15 or not, getting tripped up by Mr. Osborne on her 16 different versions, but she wrote down what she 17 thought was important. It was important for her to 18 write down that I came into the room, we saw this 19 man leaning over his mother, mouth-to-mouth for an 20 extended period of time that made me uncomfortable. 21 That's what I thought was important, that's what I 22 wrote down. She didn't think to write down how 23 many steps she took into the room, whether Rachel 24 was beside her or behind her. 25 Defamation. And here we are at the end of two CENTRAL FLORIDA REPORTERS, INC. 2728 1 weeks and we are down to one claim, defamation, 2 against one company, Rollins Bedford Company. 3 That's the nursing home. And what that requires 4 the Plaintiffs to have proven by the greater weight 5 of the evidence is that there was in fact a 6 publication that was a false statement which 7 exposed Larry Destefano to hatred, ridicule, 8 contempt or damage to reputation. 9 I think you need to focus on that part because 10 whether Mrs. Destefano had hemorrhoids or not, 11 that's not defamatory to Larry Destefano. And 12 there may have been some discrepancy about whether 13 she did or she didn't, but that doesn't defame 14 Mr. Destefano. He has show to damage. And the 15 Judge will also instruct you that you may consider 16 Mr. Destefano's own self-publication in assessing 17 liability and damages. 18 And there is no defamation if the statements 19 were substantially true or if they were made within 20 the protective umbrella that we've talked about and 21 were made with good motive. And as Mr. Osborne has 22 pointed out, the statements to DCF are treated a 23 little bit different from any statements made to 24 ORMC or Florida Hospital or the Orlando Police 25 Department. CENTRAL FLORIDA REPORTERS, INC. 2729 1 This -- the statements to DCF are provided the 2 utmost protection. And they must prove by clear 3 and convincing evidence, and that's precise 4 evidence, that there was not a -- there was a lack 5 of good faith in making the report to DCF. 6 The other privilege, as we've talked about, 7 that the Judge will instruct you on is they are 8 privileged to make statements to other health care 9 providers. They have to be given that flexibility 10 so that the patient can be taken care of. And that 11 speech, those statements are protected unless they 12 were not made with good motive, unless they were 13 bad motives. And that means that the evidence must 14 show that the primary intent in making the 15 statement was to harm the Plaintiff. 16 When you're looking and considering the 17 believability of the witnesses, you really -- if 18 you think about these nurses, they're -- from what 19 Mr. Destefano has said is that here they were, 20 they're so upset about this note, you know, like, 21 boy, let's accuse Mr. Destefano of doing something. 22 And out of all the things that they could accuse 23 him of, they say let's accuse him of kissing. 24 Let's accuse him of laying in bed with his mother, 25 and let's accuse him of disimpacting his mother. CENTRAL FLORIDA REPORTERS, INC. 2730 1 These nurses must have super-natural powers 2 because they have to be -- were they able to look 3 back into his history and say, well, gosh, that's 4 exactly what -- he's going to admit to doing those 5 things anyway. That's a good thing to accuse him 6 of because we have a history of kissing, we have a 7 history of laying in bed, we have history of 8 disimpaction, and to look forward that they're 9 somehow clairvoyant that other nurses are going to 10 see the same thing. 11 So when they come up with this scheme, isn't 12 it -- isn't it unbelievable that it's just a 13 coincidence that the very things that they've 14 accused him of, the very things that they have 15 concerns over, kissing his mother on the lips for 16 an extended period of time, laying in bed with his 17 mother and disimpacting her are all things that he 18 says, yes, I did all those. 19 And they're also things that, at least as to 20 the kissing and the lying in bed, other nurses at 21 competing facilities, ORHS, Vitas, they see him 22 doing the same things, raise their eyebrows, too. 23 Is that just a coincidence or is it more likely a 24 case that they really saw it? 25 In assessing the believability of witnesses, CENTRAL FLORIDA REPORTERS, INC. 2731 1 the Judge will also tell you that you can consider 2 the witnesses' interest in the outcome of the case. 3 And Mr. Destefano obviously has a financial 4 gain -- financial gain in this litigation and he's 5 done it before. He has picketed a business until 6 somebody made him to go away. 7 The nurses that testified, Carol Boze, Mary 8 Thornton, Rachel Bean, Margarita Walters, Shelly 9 Fuchs, and on their side Lillian Folley, Kelly 10 Pipkin, nobody works for these hospitals anymore. 11 They're on -- off to other things. They have no 12 ties. They have no dog in this hunt, in this 13 litigation. The doctors, Dr. Steely, Dr. Black, 14 they're off in Pennsylvania and North Carolina. 15 They're not around. They have no dog in this hunt. 16 You'll also have to look at the reasonableness 17 of the testimony. What you have here, you have 18 different nurses at different facilities observing 19 similar behavior. You have nurses and doctors 20 whose licenses are on the line if they're lying, 21 they're not telling the truth, if they're creating 22 false records, backdating documents. Every one of 23 them, there is no reason to want to harm 24 Mr. Destefano, who they never met before 'til he 25 comes into the facility. They meet him for the CENTRAL FLORIDA REPORTERS, INC. 2732 1 first time that day. 2 And what you get down to is what Mr. Destefano 3 believes, which is everybody's a liar but him. We 4 went through in Mr. Destefano's cross-examination 5 all of the different people who've lied. It says 6 that Dr. Steely lied, social worker at that 7 hospital, Ms. Hatfield lied, Kendra Blythe lied. 8 And you did hear from Kendra Blythe because we 9 talked about Kendra Blythe's nurse's notes from 10 Florida Hospital that talked about Mr. Destefano 11 forcibly walking his mother while she was over 12 there and forcing her out of bed. 13 At Sunbelt, Mr. Destefano says that Michelle 14 Watts has lied, Carol Boze, Mary Thornton, Rachel 15 Bean, Deborah Jarrell. All of those people are 16 willing to risk their license, their livelihood for 17 the purpose of causing Mr. Destefano harm. And 18 then over at ORMC, it says that Kelly Pipkin lied. 19 She didn't really see an inappropriate kiss. 20 Lillian Folley lied. She didn't really see him 21 laying in bed with him (sic). 22 And the nurses at Vitas lied. Danielle Daley, 23 who said the last week of Mrs. Destefano's life she 24 was a nurse at the Vitas, he came in, he was in bed 25 with her. She thought it was unusual. And another CENTRAL FLORIDA REPORTERS, INC. 2733 1 nurse at the same facility noted the same thing, 2 son in bed with mother for most of the day. 3 And you have the police that lied, according 4 to Mr. Destefano. And actually this really isn't 5 complete because he also thinks that Margarita 6 Walters lies, Shelly Fuchs lies, she's a liar, and 7 actually Connie Standish lies, too. At least with 8 these, with Standish and Walters, it's kind of 9 funny. I think Mr. Osborne is a little bit of what 10 I call a picker and chooser. I like some of their 11 testimony but I don't like that. And so he kind of 12 takes bits and pieces from their testimony, 13 depending on how it suits him. 14 Think about Margarita Walters. What did she 15 say? She said the note was no big deal. I told 16 Carol to sign it. The dressing came off, that 17 happens. We have an Alzheimer's patient. It 18 wasn't that big of a deal. Now, they don't like 19 that. They didn't tell you about that testimony 20 because that's not something that they like because 21 they have to create this big controversy, this big 22 uproar that is going on because of this note. 23 But Margarita Walters said it was no big deal. 24 The dressing was off. I told Carol to sign the 25 note, no big deal. She also said I never talked to CENTRAL FLORIDA REPORTERS, INC. 2734 1 Rachel Bean about it. That was her testimony. 2 Mr. Osborne says that's the link. Because 3 Margarita Walters worked a double shift and she was 4 there at 7:30, here's the link between a nurse 5 telling Rachel Bean or Mary Thornton about the 6 note. That's not what Margarita Walters said. She 7 said I never talked to Mary. I never talked to 8 Rachel Bean about that. 9 So, you know, they've adopted and embraced 10 part of Margarita Walter's testimony, but the stuff 11 that doesn't quite fit their story line they 12 reject. Connie Standish, again pickers and 13 choosers. Connie Standish testified that her 14 office was right across the hall from 15 Mrs. Destefano and that she saw Larry walking in 16 with Mary and Rachel. 17 Larry testified, and he was kind of 18 remembering on the stand, I think somebody asked 19 what were you doing when they came into the room. 20 He says I was, you know, feeding my mother. And 21 then, oh, yeah, yeah, I remember now. Now I was 22 writing -- I was writing this additional part to 23 the note. 24 That's not what Connie Standish says. She 25 said she saw the three of them walking in. Larry CENTRAL FLORIDA REPORTERS, INC. 2735 1 said that there was a big explosion and lots of 2 yelling between him and Rachel Bean, but Connie 3 Standish didn't hear any of that. She didn't 4 testify to anything like that. So in order to buy 5 this story line about these lies, you have to 6 believe that we have all these liars over here, and 7 Mr. Destefano stands alone as the only honest and 8 truthful person in this whole deal. 9 I want to talk about Carol Boze and Mary 10 Thornton together a little bit. Both of them say I 11 know what I saw, I know what I saw. Don't 12 remember, you know, did I take a step in. You 13 know, it's been six years ago. When they had their 14 depositions taken it had been three years 15 approximately, but both of them say I know what I 16 saw. 17 Mary Thornton also testified she has to rely 18 on her notes. And if her notes didn't have those 19 details about whether she was behind or beside 20 Rachel, where the bed was, then she's not going to 21 have any memory of that and she didn't have any 22 clear recollection obviously from her deposition. 23 Mr. Osborne implied that she had never -- she 24 testified directly that she had gone in with Rachel 25 to retrieve the bed pad. And Mr. Osborne has said CENTRAL FLORIDA REPORTERS, INC. 2736 1 that because she doesn't remember signing that 2 progress note, that Shelly Fuchs' name is also on, 3 that verifies that they saw there was blood on the 4 bed pad, that because she didn't sign that, she 5 never saw the bed pad. Well, she testified 6 directly that at some point in the day she went in 7 there with Rachel and retrieved the bed pad. She 8 had no reason to cause harm to Larry and was not 9 friends with Connie Standish. 10 Carol Boze, another thing that I think is 11 interesting. When it suits them, Mr. Osborne asked 12 Ms. Boze, it is conclusively established from your 13 time sheets that you came in at 2:45. Pickers and 14 choosers. When it comes to Connie Standish, oh, 15 their time records are wrong, but for Carol Boze it 16 conclusively establishes what time she came in. 17 Well, what the testimony was from Carol, 18 certainly from Rachel Bean, was that they don't 19 know what time she came in, then that they called 20 her to come in early to do a late entry. Nobody 21 remembers exactly what time she actually got there. 22 We talked about Margarita Walters. She said 23 Carol told her about the kiss, but she's not 24 positive when it took place. And we established 25 that she worked a lot of hours that week, and that CENTRAL FLORIDA REPORTERS, INC. 2737 1 specific night she worked a double. She also 2 explained the difference between an unchanged 3 dressing and a missing dressing. 4 And this is the part of the -- part of 5 Margarita's testimony that breaks down their story. 6 She said that the note was no big deal. The 7 dressing was no big deal. And actually if you 8 listen to Mr. Destefano's testimony, he says that 9 it was no big deal. He said the wound was almost 10 healed. Obviously she had ulcers before she came 11 in. He knew that he wasn't -- that wasn't proof of 12 any kind of fault. He wasn't going to be able to 13 sue the nursing home for that. 14 But what he wants us to believe, his story is 15 that even though he knew that, even though that was 16 so obvious, these nurses got all worked up about a 17 note and started scheming to cover up or to diffuse 18 the situation because of the note. It doesn't make 19 sense. That just does not make sense. 20 Rachel Bean, you heard her testify by video. 21 She observed an extended kiss and in the way a son 22 doesn't kiss his mom. Put that in quotes because 23 that's -- when Lillian Folley writes down what 24 Rachel Bean told her, this was the only part that 25 was in quotes. Not witnessed disimpacting that was CENTRAL FLORIDA REPORTERS, INC. 2738 1 not in quotes. 2 She said that she didn't know. She said we 3 may have started to enter the room when they 4 observed the kiss. And she said Mary was behind 5 her. She had a little bit more memory than Carol 6 Boze or Mary Thornton about entering the room 7 before she saw the bed, before she saw 8 Mr. Destefano leaning over his mother. 9 Again, both of them, Mary, Rachel, 10 Margarita -- well, Mary and Rachel say they heard 11 about the note from Larry, consistent with 12 Margarita Walters, who said I never discussed the 13 note with Rachel or Mary. But the key to their 14 story is that Margarita Walters told Rachel and 15 Mary about the note and that's what got them so 16 worked up. 17 So they want to embrace Margarita Walters for 18 some purposes but ignore her testimony for others. 19 She also testifies that she doesn't know exactly 20 when Carol came in to do late entries. She said 21 that she thought that she called her in early to 22 get those -- that documentation done but she's not 23 really worried -- not really certain what time that 24 occurred. 25 And she's the one that said if you're not CENTRAL FLORIDA REPORTERS, INC. 2739 1 willing to put it in writing, it didn't happen. 2 Said people are coming to her telling her things. 3 And she said if that is what happened, you need to 4 go write it down. It needs to be something you're 5 willing to sign, put your name on, and that's what 6 she did. And that was the information that she 7 gave to DCF is the notes, the statements, what 8 people said happened. 9 Now, there is a discrepancy between Rachel 10 Bean and Carol Boze about whether Rachel dictated 11 the note to her. What Carol said is I told her 12 what happened. She told me what to write. I told 13 her what happened, and that's the key. Isn't that 14 the key? She told her first. She said, look, this 15 is what happened last night. That's the key. 16 Whether Rachel helped her write it and helped 17 her pick the wheres -- you know, told her to go 18 back and write it again, put it in more detail, who 19 cares? The fact is she told Rachel first before 20 there was any documenting it. Rachel didn't -- and 21 Carol testified nobody put any words in my mouth. 22 Nobody told me what to write. Nobody directed me 23 to lie or do anything. 24 And again, as Rachel testifies, that she gave 25 lots of information to ORMC, told them lots of CENTRAL FLORIDA REPORTERS, INC. 2740 1 things, some historical, some personal 2 observations, and some possible explanation. Very 3 easy when you're taking notes to not be precise 4 about what has actually been witnessed, what is a 5 suspicion, what's in the medical history. 6 Shelly Fuchs, she's the one that couldn't be 7 at trial because of military service. And she 8 documented seeing blood on the bed pad. And she 9 also explained that bright red blood just means 10 fresh blood. Also in her nursing -- the nursing 11 notes, and they're in evidence, is that the nursing 12 staff already heard about it. 13 So Mr. Osborne suggested that there's three 14 different explanations of who found the blood 15 first. Shelly Fuchs never said that she saw it 16 first. She said that nursing staff had already 17 been notified. And she was crossed extensively 18 about being a physical therapist and not an RN, 19 whether she had qualifications to do a wound care 20 assessment. 21 Talk about red herrings and talking about 22 trying to get you to not watch the ball, not 23 relevant to anything of her testimony and her 24 qualifications that she testified to. She worked 25 in a burn unit. I think she was obviously CENTRAL FLORIDA REPORTERS, INC. 2741 1 qualified to do -- to do wound care. 2 Mr. Osborne also made a point that she gave a 3 deposition in 2000 and she said she didn't give any 4 care to Mrs. Destefano. She doesn't remember all 5 of her patients by name. And if somebody in 6 cross-examination -- Ms. Petro brought out if you 7 were just thrown a name out, would you know whether 8 you did or didn't care for them? And she said, no, 9 I wouldn't -- you know, it wouldn't -- patients' 10 names don't stick in my mind. 11 So again, there's been a -- there's been a 12 suggestion that this lady, this physical therapist, 13 this woman who was out in -- on her way to Kuwait 14 falsely signed her name to a nursing note on 15 something that wasn't true, intentionally creating 16 a false record because she's in on it, too, I don't 17 think that that suggestion, those innuendoes hold a 18 whole lot of water. 19 Connie Standish, she also testified by video. 20 She can't be at trial because she is on a trip to 21 Israel. And what her time records show, and this 22 is in evidence, is that she wasn't in the facility 23 on Monday. And the reason that that's important is 24 because she said I had this -- she was very 25 detailed about this conversation that she had with CENTRAL FLORIDA REPORTERS, INC. 2742 1 Carol Boze. And she told Carol she shouldn't sign 2 the note because that was an admission of guilt. 3 And she claims that then when she heard the 4 statement by Mary Thornton, she knew what was going 5 on because she had had this conversation the night 6 before and, therefore, she realized the 7 significance of the note. Well, she wasn't there 8 on Monday night. Her time records show that she 9 wasn't -- she had actually come in the day before. 10 And on cross-examination it was also established 11 that Monday -- that she's Jewish and Monday was a 12 religious holiday for her. 13 And what does she do immediately? She 14 immediately says I never, never, she used the word 15 never, take off religious holidays. And I later 16 showed her in the deposition where she had -- I 17 mean, in fact the year before she had been off for 18 Yom Kippur. 19 Again, you know, for one purpose Mr. Osborne 20 says time records are conclusive. For other 21 purposes he says, oh, well, this could be wrong. 22 The other thing Connie Standish suggested, she 23 says, well, this is where I didn't work on Sunday, 24 I worked on Monday. Well, even if this was an 25 error, it says that she left at 3:12. That was way CENTRAL FLORIDA REPORTERS, INC. 2743 1 before all of these incidents with Carol and the 2 note and all of that. 3 The other thing that we established with 4 Connie is here, you know, she says I heard this 5 terrible thing that Mary Thornton says we're going 6 to get this guy. We're going to accuse him of 7 being sexually inappropriate. She hears this and 8 then the police come, Larry right across the hall, 9 they're taking him away and she never tells 10 anybody. She doesn't tell the police. She doesn't 11 tell her supervisor. She doesn't tell Chuck 12 Sherer. She doesn't tell anybody until two and a 13 half years later when she's deposed. 14 Also established in her deposition, she 15 doesn't like Rachel Bean and she had been 16 disciplined by Rachel and Chuck. She also, as 17 Mr. Osborne point out, left without giving proper 18 notice and so she was not available for rehire, 19 Michelle Fetters testified, that she had been 20 turned down from a job at Florida Living, which is 21 one of -- another nursing home that's owned by 22 Sunbelt. 23 So Connie Standish, you know, I don't -- I 24 don't know what happened, you know, why Connie 25 Standish said what she said. It's -- there's a lot CENTRAL FLORIDA REPORTERS, INC. 2744 1 of different reasons. I mean, she didn't like the 2 nurses involved. She was not welcomed to come back 3 to work for Sunbelt. And, you know, there's been a 4 lot of testimony about Mr. Destefano contacting 5 witnesses trying to get them to change stories, 6 trying to get them to support him. Who knows? Who 7 knows? 8 Chuck Sherer testified that he was consulted 9 by Rachel Bean with a decision to call DCF, 10 concurred that they needed to be called, directed 11 Rachel Bean to take statements from everybody 12 involved. There's been some suggestion that there 13 was no investigation. They got statements from 14 everybody who saw anything. Got statements, sent 15 them to DCF, there was an investigation. 16 He also remembered and established that Connie 17 Standish worked weekends about once a month. And 18 Mary Thornton was a salaried employee who didn't 19 punch a time clock. Mr. Osborne said, well, 20 Ms. Marshall, she didn't ask Mary Thornton about 21 her time records, whether she punched time -- she 22 punched a time clock. 23 By the time Mr. Osborne finished with Mary 24 Thornton, she was so confused, he had just handed 25 her those time records and implied that she wasn't CENTRAL FLORIDA REPORTERS, INC. 2745 1 there. He didn't ask her whether she was a time 2 clock puncher or not. He just threw documents at 3 her. And by the time that she got done 4 testifying -- this was an ordeal for those nurses 5 to come back here six years after the fact on an 6 employer that they haven't worked for for a long 7 time, to be tested on their memory of six years, to 8 be interrogated about whether the door was a foot 9 open or not. It was a big ordeal for them. 10 He also establishes that Mary and Rachel both 11 left in December. That is going to be key when we 12 talk about Danielle Daley. They were both there 13 until December. And you can remember from the 14 video that you saw yesterday where Mr. Destefano 15 and his girlfriend, Kay McNeill, go to the nursing 16 home. Kay goes up to see Rachel. That's November 17 23rd, 1999. They know for a fact that Rachel was 18 working at Sunbelt during the month of November 19 because they went to see her. It's the day he got 20 arrested for disorderly conduct. 21 And then we have Dr. Black. Dr. Black was the 22 kind of blond-haired doctor that testified by 23 video. There's been a lot of suggestion that it 24 was Rachel Bean who wanted Mrs. Destefano sent to 25 ORMC, and it was Rachel Bean that did not want her CENTRAL FLORIDA REPORTERS, INC. 2746 1 back or didn't want to take her back. Dr. Black 2 made the decision to send her to ORMC because it 3 was mutual grounds. 4 And he says that one decision -- I knew she 5 needed to go out. That was absolutely the right 6 decision to send her out some place to be 7 evaluated. He says that in retrospect maybe he 8 should have just sent her straight to Florida 9 Hospital rather than ORMC, but he's the one that 10 made the decision. He said, yes, I'm the doctor. 11 I signed those orders. I stand by my decision. 12 He's the one -- and it's right in his notes, 13 his progress notes. Dr. Black is the one, and he 14 testified about this in his deposition, that had 15 the suspicion about the blood. And he says I knew 16 that there was a history of constipation, impaction 17 and disimpaction and that's what I suspected caused 18 the blood. And that is what Rachel repeated. 19 That's what Rachel told ORMC, that it was -- you 20 know, the disimpaction, impaction was a possible 21 cause of the bleeding. Where did she get it from? 22 She got it from her doctor. 23 He also talked about, you know, if there's 24 concern, of course it's the right thing to do. You 25 have to call DCF. And he made the I think very CENTRAL FLORIDA REPORTERS, INC. 2747 1 significant point -- and this kind of goes against 2 the norm because the norm is you're innocent until 3 proven guilty. But when it comes to protecting 4 innocent people, vulnerable adults, children, the 5 standard is guilty until proven innocent because -- 6 that's the way it has to be because you don't want 7 anybody to slip through the cracks. So you 8 overreport. You report any concern. You report 9 reasonable suspicion. You got to do that because 10 you don't want anything to slip through the cracks. 11 Again, he said that it was his decision to 12 transfer her out of Sunbelt, not Rachel Bean. And 13 the decision was made because Larry had been 14 trespassed and that created an obvious conflict. 15 You have the son, Mr. Destefano, who is her legal 16 power of attorney. You have a patient who has no 17 capacity to consent, to make decisions by herself, 18 and he's not allowed to be in the same building 19 that she is in. 20 So Dr. Black says we obviously had to get her 21 out and get her to a different facility. He 22 ordered it to go -- for her to go to ORMC because 23 that was neutral grounds. He said that she needed 24 to be evaluated. This blood on the bed pad needed 25 to be checked out. And his suspicion or what he CENTRAL FLORIDA REPORTERS, INC. 2748 1 thought might have been a cause of it was the 2 constipation, impaction and disimpaction. And 3 that's exactly what -- Rachel Bean repeated the 4 information she got from her doctor. 5 And then you have John Steely. He was the 6 doctor that took care of Ms. Destefano while she 7 was at Florida Hospital during the first visit. 8 And he had documented that nurses had reported to 9 him that there was inappropriate care and 10 interference with the patient's -- interference 11 with patient's care and actually wrote an order, 12 all care was to be provided by the new nurses. 13 He testified that he shared his concern with 14 Dr. Black but doesn't know exactly when. Those 15 concerns were eventually -- Dr. Black called Rachel 16 Bean, and those were eventually sent to DCF as 17 here's some additional information about the 18 patient that we have. 19 But again, he was told -- and they make a big 20 deal about this, this to-whom-it-may-concern note. 21 He was asked to write down what he knew, that is 22 all. He said that no one told him what to write. 23 No one told him to make anything up, just we have a 24 patient, we have a DCF investigation. What do you 25 know? You took care of her. What do you know CENTRAL FLORIDA REPORTERS, INC. 2749 1 about it? And that's what he did. And all of -- 2 everything that's in his letter is he backed up in 3 the notes that were made it in her record at the 4 time of the occurrences. There's been no evidence, 5 no credible evidence that anything was backdated or 6 created after the fact. 7 And then we get to ORMC. And we have two 8 nurses, Kelly Pipkin, Lillian Folley. None of them 9 know any of the nurses at Sunbelt. Again, this is 10 where we get into this, you know, that they're 11 going to accuse him of something and they're just 12 going to be clairvoyant, somebody else is going to 13 see the same thing. Kelly Pipkin witnessed an 14 inappropriate kiss at ORMC which she reported to 15 security and police. She doesn't know any of the 16 nurses at Sunbelt. She testified that she never 17 talked to Rachel Bean. 18 Lillian Folley, she personally saw 19 Mr. Destefano in bed with his mother. And I think 20 she answered this question in response to a 21 question from the Jury. She didn't think that 22 Larry was in bed to provide comfort because 23 Mrs. Destefano was almost comatose. She wasn't 24 receiving comfort because of her mental state, and 25 that was one of the reasons why she felt it was so CENTRAL FLORIDA REPORTERS, INC. 2750 1 odd. 2 She also explained how her notes were written. 3 And when things were quotes from Rachel, she put it 4 in quotation marks, that the rest of it was just 5 sum and substance of what she had been told. And 6 she also said that the -- she wasn't writing down 7 the notes while she was on the phone, it was -- she 8 got off the phone and then wrote the notes. And I 9 think that that goes to whether there was good 10 motives, any kind of bad intent. 11 You have nurses passing information, trying to 12 share information, taking notes and having those 13 notes now used against them to show defamation of 14 Mr. Destefano. Nobody's writing -- they were 15 writing in her medical records the stuff that 16 people needed to know because they were taking care 17 of her. Again, this was always about 18 Mrs. Destefano, not about Larry. 19 Dr. Lynn Wilson, very, very, very important 20 witness. She was the doctor that testified on 21 video. She testified in no uncertain terms, Larry 22 did not want her to go back to Sunbelt. He did not 23 want his mother sent back to Sunbelt. There has 24 been a lot of testimony suggesting about, well, 25 Sunbelt, you wouldn't take her back. You wouldn't CENTRAL FLORIDA REPORTERS, INC. 2751 1 take her back. He didn't want her to go back, 2 absolutely not. That was the last place in the 3 world he wanted her to go. 4 She also did the exam. She did the anoscope. 5 And what Mr. Osborne keeps saying, there's no 6 rectal bleeding, no rectal bleeding. Look at her 7 testimony closely. What she says is that there 8 was -- that bleeding can start and stop. She said 9 there was no rectal bleeding when she was at ORMC, 10 but she also testified if the fissure -- if any 11 fissure in the rectum wasn't actively bleeding, she 12 wouldn't necessarily see it. 13 And she says that fissures erupt and are 14 easily missed if they weren't actively bleeding at 15 the time the anoscope is done. That's not saying 16 that there was never any rectal bleeding. That's 17 saying that at the time she was examined at ORMC, 18 she didn't have rectal bleeding then. She also 19 testified that there was no fecal matter in the 20 rectal vault which would be consistent with the 21 recent disimpaction. 22 Then we have Officer Padilla, and he was a 23 very -- fairly short witness. He investigated this 24 case as a potential elder abuse case. And he also 25 said, you know, as a mandatory reporter, as a CENTRAL FLORIDA REPORTERS, INC. 2752 1 police officer, he agreed that you must report 2 weird events, even if it's not a crime. 3 Then we get to Danielle Daley. Danielle Daley 4 was a nurse at Vitas. And I think this is just 5 classic, classic trying to get the witness tripped 6 up even when you know that what you're trying to 7 trip them up on is not the truth. Because you saw 8 the video. Mr. Destefano's disorderly conduct 9 occurred November 23rd, 1999. 10 He and his girlfriend go to Sunbelt to go see 11 Rachel. Kay goes into the building to go confront 12 Rachel. They know that Rachel Bean is working at 13 Sunbelt on November 23rd. And what they tried to 14 get Danielle Daley tripped up on is whether Rachel 15 was working at Vitas at the time that Danielle 16 wrote this note on November 9th, 1999. 17 They know that was not the case, yet they try 18 to get her tripped up and confused and to say that 19 she had already met Rachel. Danielle testified she 20 didn't know Rachel until Rachel started working 21 there. And the testimony of both Rachel and Chuck 22 Sherer was that she left Sunbelt in December and 23 started working at Vitas in February. That was the 24 first time Danielle Daley had ever met Rachel Bean. 25 Danielle witnessed Larry in bed with his CENTRAL FLORIDA REPORTERS, INC. 2753 1 mother. She said that it was very unusual. She 2 had never seen that before. And it was documented 3 in her notes, as well as Kathy Wagner's notes, at a 4 facility completely unrelated to Sunbelt, 5 completely unrelated to ORMC. 6 I'm going to put these two up together so we 7 can talk about those together. Stuart James, which 8 was their blood spatter expert, and Dr. Anderson. 9 Stuart James said that he wasn't a doctor but he 10 wishes he was. He conducted experiments only using 11 artificial mechanisms. He testified on 12 cross-examination that he had -- he did not do any 13 experiments as to any naturally-occurring events, 14 he didn't know. 15 And I think on one of the questions from the 16 Jury -- from the Jury he admitted that the blood 17 could have come from the heel wound. And he very 18 specifically stated on cross-examination that he 19 didn't have an opinion as to whether the blood was 20 put there by artificial mechanisms or whether was a 21 result of natural bleeding. His sole testimony was 22 I can reproduce this stain using a syringe and a 23 pipette. 24 Dr. Anderson actually looked at the 25 composition of the stain, of the material and said, CENTRAL FLORIDA REPORTERS, INC. 2754 1 well, what you have on this bed pad, you have blood 2 mixed with fecal matter and epithelial cells. And 3 actually the epithelial cells are the type of 4 epithelial cells that you only find in the 5 esophagus or the GI tract. Therefore, conclusion, 6 no, I don't know exactly where it came from, but 7 the only logical conclusion is that it -- you know, 8 it came from the GI tract because in the esophagus 9 you wouldn't have fecal matter. 10 And he testified it definitely didn't come 11 from the arm because arm draw, if you drew blood 12 from the arm, it's not going to have fecal matter. 13 It's not going to have this type of epithelial 14 cells. And he wasn't asked to determine where -- 15 you know, what was the cause. This is -- you know, 16 we're six years after the fact. 17 The reason he was hired is that, you know, 18 gosh, they say that this is from an arm draw. Is 19 that -- is that consistent? Is that what this 20 material is? Is it blood from the arm? And when 21 he examined it under the microscope, it's not. I 22 mean, there's other things and it suggests that it 23 cannot be from an arm draw. 24 Alexander -- Alexa Clark, sorry, she was our 25 nursing expert. And described for you what it CENTRAL FLORIDA REPORTERS, INC. 2755 1 means for a -- you know, as practical purpose what 2 nurses have to do to fulfill their duty to report 3 any suspicion of abuse. She says that she's called 4 DCF dozens of times on staff, family, other 5 patients. Most reports are determined to be 6 unfounded. That's the statistics. Most reports 7 are determined to be unfounded. 8 It doesn't mean that you don't have to make 9 the call, that you shouldn't make the call because 10 you don't want anything to slip by. If you have a 11 concern, you're supposed to call on it. You're 12 supposed to let them investigate, let them be the 13 determiners of whether something is or is not 14 abuse. 15 She also -- most of her recent experience has 16 been with elderly patients, and I think this is 17 obvious. Alzheimer's patients need the most 18 protection because they don't have the capacity to 19 consent. They can't tell you what happened. They 20 can't tell you whether something -- they don't want 21 something to be done. They just have no capacity. 22 And the other thing that she testified to, and 23 I think that this is very important, disimpacting 24 on a basis that was described in the medical 25 history, having a routine of disimpaction every CENTRAL FLORIDA REPORTERS, INC. 2756 1 five to six days for eight months is not a good 2 thing. It's not a normal routine. You try other 3 things. You try to get the patient on a regimen so 4 that her bowels start functioning. 5 And this in and of itself, if you see 6 something, something in the medical records to say 7 this has been going on for eight months on a five 8 to six-day regimen, there's something wrong with 9 the care that she has been given because they 10 haven't got her bowel regimen under control. And 11 by the time she left Florida Hospital, disimpaction 12 was no longer necessary. They got her regulated. 13 They gave her enemas, they gave her laxatives, 14 suppositories. And by the time she left that 15 wasn't a problem. 16 So when somebody reads in a nursing -- in a 17 medical history that this patient has a history of 18 being disimpacted on that kind of frequency, yeah, 19 it gives rise to concern. Dr. Black, it gave him 20 concern. He noted that. He said I had a suspicion 21 of the blood because of the history of 22 constipation, impaction and disimpaction. That's 23 what I thought the blood possibly came from. 24 Kay McNeill was Mr. Destefano's girlfriend who 25 testified. And, you know, I think -- she's just CENTRAL FLORIDA REPORTERS, INC. 2757 1 like the nurses. I mean, nobody can remember six 2 years ago exactly what was going on; was Mr. 3 Destefano staying at a hotel, was he living with 4 her, what the exact timing of that was, what exact 5 time did he leave to go to ORMC. You can't 6 remember those types of details. I think when she 7 first started testifying, she told you that 8 Mrs. Destefano died in 2002 or 2003. We know that 9 that wasn't true. It's just your memories fade 10 obviously. 11 She testified that when she went to ORMC -- 12 and she went to ORMC because Larry already started 13 picketing. When Mrs. Destefano got taken to the 14 emergency room, she eventually showed up there. 15 And she said that when Larry -- after Larry got 16 there, she was waiting at the nurses' station for 17 about 40 minutes, maybe back and forth, but trying 18 to get -- trying to talk to anybody. 19 There's been a suggestion I think in the case 20 that Kelly Pipkin could not have seen what she said 21 she saw because Kay was in the room, too. Well, 22 Kay wasn't in the room, too, at ORMC. She admits 23 that she was at the nurses' station and back and 24 forth for about 40 minutes. 25 There was also -- I think that this is just a CENTRAL FLORIDA REPORTERS, INC. 2758 1 Clintonese statement, that Mr. Destefano is 2 claiming sexual impotence. But Kay, when 3 questioned at her deposition, and the testimony was 4 read to you at the trial, said -- she was asked the 5 specific question, are you having normal sexual 6 relations with Larry? She says yes. And then I 7 think Mr. Osborne tried to imply that normal sexual 8 relations doesn't mean sexual intercourse. So, you 9 know, that's -- that was Kay's testimony. 10 And I forgot poor Mr. Massey. Mr. Massey 11 testified that he heard about the allegations from 12 Larry. Again, when we talk about publication, 13 everybody, every one of Mr. Destefano's friends 14 that heard about the allegations heard about it 15 from him. And everybody that testified said I 16 didn't believe him and it hasn't affected the way 17 that I feel about him at all. 18 When we're talking about damage to reputation, 19 that's what is important. What are your friends -- 20 what do people think about it after this, you know, 21 defamatory statement was made? And every one of 22 them said it didn't have any effect at all. 23 This is -- Mieko also verified what Mr. Massey 24 said about she knows about the allegations because 25 of Larry, doesn't think any less of him because of CENTRAL FLORIDA REPORTERS, INC. 2759 1 these allegations. She was asked could 2 Mrs. Destefano -- when she got to Orlando, when 3 Larry brought her home from Arizona could she talk, 4 could she communicate. And Mieko said, no, she 5 couldn't, she couldn't. And that testimony is 6 very -- I mean, the other nurses and everything 7 support that, but that's what Mieko said. 8 Compare that to Larry's description, 9 explanation, yeah -- when he was asked about his 10 statement, his admitting that he had gotten into 11 bed with his mother at Florida Hospital. He told a 12 very long tale about coming in on a motorcycle ride 13 from DeLand, coming in, he was tired. He had his 14 motorcycle helmet. His mother asked him to get 15 into bed with him. She scooted over, they sat 16 down -- he laid down, they held hands and talked 17 about the day. 18 That's what Larry testified to. And that is 19 totally inconsistent with what Mieko said is that 20 Mrs. Destefano was -- at that point in time she 21 wasn't communicating like that. She wasn't able to 22 communicate like that. She wasn't able to have 23 that kind of conversation at that time. 24 And finally, almost finally, we heard from 25 Mr. Destefano himself. In a defamation case, the CENTRAL FLORIDA REPORTERS, INC. 2760 1 issue in this case is who told the truth. Who told 2 the truth, who was lying. Mr. Osborne made a big 3 deal that I brought out stuff like he had 4 gonorrhea. I could care less. The point was he 5 didn't tell his psychiatrist the truth. His 6 psychiatrist asked him point-blank do you have any 7 history of sexual diseases, and he says no. 8 Mr. Osborne has also pointed out that I made a 9 point of saying that he lied on his application to 10 the Navy. Yeah, somebody that lies, you lie about 11 the big things, you lie about the little things. I 12 mean, that's what this trial is, who's telling the 13 truth. You lie to the government, you don't file 14 your tax returns, you take money under the table, 15 is that an honest person? That's what this is 16 about. 17 Should you believe him or should you believe 18 everybody on the other list? So, yeah, we -- it 19 doesn't directly have anything to do with this 20 trial, doesn't have anything to do with kissing or 21 what went on at Sunbelt, but this is very relevant. 22 Truthfulness, honesty, that is very relevant. 23 That's what this case is all about. 24 The history that he tells of being estranged 25 from his mom for ten years, not talking to her, not CENTRAL FLORIDA REPORTERS, INC. 2761 1 seeing her, getting the call from the psychiatric 2 ward. He didn't get the call, but he testified to 3 his -- the mother of his child got the call because 4 she actually kept in touch with Mrs. Destefano. 5 And he went out there a week -- a week later and 6 got her out of this state psych ward, brought her 7 home. And then he testified that, you know, we 8 went jogging. 9 At the same time he said that immediately when 10 she got home that he had to start this routine, 11 this comfort care of disimpacting his mother for 12 eight months and then he would role play when doing 13 it, that he would pretend that he was her doctor in 14 order to maintain her dignity. But at the same 15 time, you know, he's saying that she doesn't -- you 16 know, on one hand he said she doesn't know who I am 17 so I don't think that it really bothered her or she 18 wasn't embarrassed, but on the other hand he says 19 that she's competent, has it with her enough that 20 they go jogging. He takes her to sign her will 21 about ten days after he gets there. So the 22 consistency of his story is somewhat questionable. 23 He also testified that he slept with his 24 mother every night, at first to keep her from 25 wandering, and then he said that she wasn't just -- CENTRAL FLORIDA REPORTERS, INC. 2762 1 then he slept with her just to be next to her. 2 Again, that's something that he says, that's what I 3 did. And is it so far-fetched that, you know, 4 while he's -- that while his mother is at ORMC or 5 Sunbelt or Florida Hospital that he doesn't get 6 into bed with her? He's done it every night for 7 eight months. 8 And again, for these nurses to say, well, 9 gosh, let's think of something to accuse him of. 10 Oh, let's accuse him of laying in bed with her. 11 Well, you know, for them to have had that kind of 12 supernatural powers to know what he's, you know, 13 been doing in the past just isn't -- it's not very 14 credible, but they would have come up with the 15 exact same thing. They were on the scheming -- on 16 this big scheme that they would come up with the 17 exact same thing that he admits to. 18 He -- at first he said that he had never laid 19 in bed with his mother while she was in a health 20 care facility. And then we talked about his 21 deposition where he had in fact admitted to being 22 in bed with her at Florida Hospital. And that's 23 when he told the tale about her calling him over 24 and he scooted over and he laid down and they held 25 hands and they talked about the day. CENTRAL FLORIDA REPORTERS, INC. 2763 1 Again, when you look at Mieko's testimony, his 2 mom wasn't talking at this time. They weren't 3 communicating in that manner. And again, the 4 statement that I've never laid in bed with my 5 mother, Danielle Daley saw it at Vitas. Lillian 6 Folley saw it. Carol Boze saw it. And they seem 7 to make a -- you know, a distinction lying in bed 8 versus lying on top of. You know, again when we're 9 talking about substantial consistency, substantial 10 truth, that hair splitting doesn't make a 11 difference. 12 Finally just briefly, talking about promises, 13 Mr. Osborne told you in opening about this blood 14 transfusion that took place at Florida Hospital and 15 that it was before they had gotten Mr. Destefano's 16 consent. Well, that turned out to be a whole lot 17 of nothing once Frances Wiegand testified and knew 18 how to read the -- knew how to read the hospital 19 records. And I think after she testified, 20 Mr. Osborne said I stand corrected. 21 The blood transfusion was given after the 22 consent was obtained from Mr. Destefano, although 23 it was very hard to get because he was out 24 picketing. And they needed him up at the hospital 25 to make some informed decisions about her health CENTRAL FLORIDA REPORTERS, INC. 2764 1 care and he was out picketing. Again, that goes to 2 what's the credibility of his story, what's his 3 motivation. 4 Finally Dr. Krop. Dr. Krop was the 5 psychologist from Gainesville that testified during 6 his video. And he admitted to me at the beginning 7 of garbage in, garbage out. When you have a 8 psychologist, a psychiatrist, what they're relying 9 upon is the person -- that the patient -- the 10 patient has to be truthful with them, has to share 11 information before they can really make an accurate 12 diagnosis. 13 They have to rely upon what that person is 14 willing to give, you know, share with them in terms 15 of information. And he recognizes that people in 16 litigation have a financial incentive to not be 17 quite straight with them. And even though he knew 18 that, knows that because he does a lot of -- a lot 19 of litigation, he skipped a lot of steps in this 20 case. He didn't do his homework. 21 We went through a bunch of his mistakes in his 22 testing where Larry answered the question one way 23 and his assistant scored it a different way. Well, 24 that affects the validity of his whole opinion. 25 You make errors, you can't rely upon it. He also CENTRAL FLORIDA REPORTERS, INC. 2765 1 ignored obvious inconsistencies in this 2 self-reporting. 3 On one hand -- and this is in evidence, you 4 guys can look at this. In one -- on one hand 5 Mr. Destefano tells Dr. Krop's assistant I have a 6 very satisfying sex life, no sexual dysfunctions. 7 And then on another part of one of the tests he 8 says I have no interest in sex. You've got those 9 inconsistencies like that and you've got a problem 10 with the validity of the test. You know, you have 11 a guy on one hand that's saying one thing, and when 12 he's doing this test he's saying a different thing. 13 And that's going to affect overall Dr. Krop's 14 assessment. 15 He also formed his opinion without doing his 16 homework. He said that when I get involved in a 17 forensics case, which means it's going to go to 18 litigation, I'm going to have to come in and tell a 19 Jury like you what my opinion is, I want to review 20 all pleadings. He didn't do that in this case, 21 what everybody has said. 22 He didn't review the depositions of 23 Mr. Destefano until after he had formed his 24 opinions, didn't review any of the depositions of 25 any of the factual witnesses until after he had CENTRAL FLORIDA REPORTERS, INC. 2766 1 come to his opinion. He also said normally I want 2 to go out and talk with people who know the 3 patient. If I'm going to be giving them an opinion 4 about their state of mind or their capacity to 5 stand trial, I want to talk to people who know 6 them. He didn't do that in this case. 7 The other thing that he said in one of his 8 answers is that he is in denial that he was 9 inappropriate with his mother. And that's what 10 Krop's basic conclusion was, is that Larry has 11 convinced himself that none of these things that he 12 did were inappropriate, were cause for concern and 13 that everybody's just out to get him. 14 And then let's talk about the note because 15 this is in evidence. You guys can go and look at 16 it yourself. It's in one of Dr. Krop's exhibits. 17 This is his handwriting, this -- he's taking notes 18 as he's talking to Larry. And he writes down he 19 freely admitted to utilizing procedure at Florida 20 Hospital in Orlando. On the prior page we're 21 talking about disimpaction. He freely admitted to 22 utilizing procedure at Florida Hospital in Orlando. 23 And then it says given per notification. Stay 24 in mom's room 24 hours a day, slept on cot. Now, 25 when Mr. Osborne questioned Dr. Krop, he says, oh, CENTRAL FLORIDA REPORTERS, INC. 2767 1 after I gave my deposition I went and read Larry's 2 deposition and that's not what I meant. But I read 3 to you his deposition testimony where he affirmed 4 that that is what Larry had told him, that he had 5 admitted to utilizing this disimpaction procedure 6 at Florida Hospital in Orlando. And then he 7 backtracks when he realizes that's inconsistent 8 with the Plaintiff's case and their position. 9 I started out in opening argument, I guess I 10 ended opening argument with this board, which is 11 where I want to go back to. The evidence I believe 12 has shown that Larry defamed Larry. These nurses, 13 what they reported was inappropriate kissing, 14 kissing that lasted too long, being in bed with his 15 mother and a history of disimpaction. And that was 16 taken by Larry and turned into sodomy, fondling his 17 mother's vaginal area, anal sex, oral sex. And 18 that's what he told people. That's what he told 19 everybody that he had been accused of. 20 That's not what's in the nurses' notes. That 21 is not what they were concerned with. But this 22 whole defamation that -- this publication of 23 something awful, that you sodomized your mother, 24 that was all created in his mind and then broadcast 25 to the public. CENTRAL FLORIDA REPORTERS, INC. 2768 1 Everybody outside of the umbrella that we 2 talked about, that there's a privilege to make 3 statements, everybody outside of that umbrella that 4 heard anything about Larry being inappropriate at 5 Sunbelt heard it from Larry themselves. And the 6 Judge is going to instruct you that you can take 7 that into consideration when you determine whether 8 Sunbelt should be liable for any defamation or 9 whether they should pay any damages in this case. 10 Mr. Destefano sat on the stand and pointed the 11 finger at me and my client and said I don't want 12 them ever to do this again. Well, you know what? 13 We're going to keep doing it again and again and 14 again because we have to. My client has to. If 15 they see stuff that doesn't seem right, they have 16 to tell somebody. They can't hide it. 17 They can't say, well, you know, somebody's 18 feelings might get hurt if I tell DCF about this. 19 Somebody's feelings might get hurt if I write in 20 the nurses' notes what happened with this patient 21 or if I tell another health care facility what's 22 going on. They can't do that. 23 So, yes, they will do it again. They will 24 continue to report any suspicious behavior. 25 They'll continue to report weird stuff, stuff that CENTRAL FLORIDA REPORTERS, INC. 2769 1 makes them uncomfortable because the safety of the 2 patient has to come first. And that's why the law 3 protects their statements. The law protects it. 4 And that is the instruction that you're going to 5 get from the Judge, that even if there is a false 6 statement made, if it is made with good intent, 7 good motive, it falls under that protective 8 umbrella and it's not defamation. 9 You also -- in order to find that there was 10 any abuse of that privilege, their duty, their job, 11 their burden is to show with clear and convincing 12 evidence that there was a lack of good faith. 13 Clear and convincing, which means a firm belief. 14 You have to have a firm belief without any 15 hesitation that there was a lack of good faith. 16 And I believe that when you take all of the 17 testimony together, taking together what everybody 18 saw, what nurses at different facilities saw, there 19 can be no doubt that they were all -- that they 20 were acting in good faith, that they saw what they 21 said that they saw. 22 The other thing to overcome, the other 23 privilege as to the information that was shared 24 between the different health care providers, you 25 have to find that there was improper motive. In CENTRAL FLORIDA REPORTERS, INC. 2770 1 order to overcome our privilege to talk among 2 health care providers, to talk among themselves 3 about this patient, the Plaintiffs have to prove 4 that the primary motivation in making this 5 statement was to cause harm to the Plaintiff. 6 And I think that you'll find that the primary 7 purpose in all of these nurses' notes, the 8 information that was exchanged was to provide the 9 best care to Mrs. Destefano, to make sure that she 10 was protected, to make sure that the proper people, 11 DCF, who was charged with investigating concerns, 12 unusual behavior, that they were provided with the 13 information that they needed, as well as the other 14 health care providers to be provided with the 15 information that they needed to make their 16 findings. 17 A couple -- two last points. Mr. Osborne has 18 referenced and read to you from Interrogatory 19 Answers from Larry Destefano. And he suggested to 20 you that these are proof of statements that were 21 made. Interrogatories -- and you can take them 22 back, they're in evidence, you can read them. What 23 they are are written questions where we ask, well, 24 what do you think -- what do you think the 25 defamatory statements were? CENTRAL FLORIDA REPORTERS, INC. 2771 1 Mr. Destefano, please identify for us 2 everything that you think that we said that was 3 defamatory. And so he has to answer those under 4 oath and in writing and provide those answers to us 5 so that the discovery can be gone -- go on, so you 6 can talk to people like the lady at DCF who 7 supposedly -- that did the investigation and 8 supposedly heard these statements. 9 Well, Mr. Osborne has read those to you as if 10 they were fact. Those aren't facts. Those are 11 Mr. Destefano's allegations. Those are his 12 statements. You didn't hear from anybody from DCF 13 saying Rachel Bean told me X, Y and Z. You didn't 14 hear from anybody. Nobody showed up and said that 15 that's what Rachel Bean told me. 16 So don't be -- don't be misled about these 17 Interrogatories. Those are Larry's versions of the 18 facts. They're his sworn statements of what he 19 thinks the facts are. There was a lot of reference 20 to this AHCA survey. And again, don't, don't be 21 misled. Did you hear from anybody from AHCA that 22 stood up here and said that Sunbelt had a problem 23 at its nursing home? No, nobody testified to that. 24 It is a red herring. It is something that is 25 meant to distract you and call your attention away CENTRAL FLORIDA REPORTERS, INC. 2772 1 from the real issues. The only issue in this case 2 is defamation, whether false statements are made. 3 There's no issues of care. They've admitted -- the 4 stipulations that we read to you yesterday, they've 5 admitted that her death was completely unrelated to 6 anything that happened at the nursing home. 7 I believe that at the end of the day, after 8 you go back to deliberate, after reviewing all of 9 the evidence, that you will find that these nurses 10 were doing their job. They were reporting unusual 11 behavior, that is all they reported, and that 12 Mr. Destefano is the one that took those 13 statements, manipulated them, turned them into 14 something else. 15 And for what reason? Well, he's picketing 16 before. He stood outside a business before and 17 until they paid him to go away. And I would 18 suggest to you that that is what has happened in 19 this case. He has picketed with statements that 20 are not statements that we ever made. He's 21 picketed with statements about sodomy. And he's 22 picketed he said until -- up through 2002 all in an 23 attempt to get us to pay him to go away. 24 And I don't think that -- I believe that the 25 evidence has shown that he has not met his burden CENTRAL FLORIDA REPORTERS, INC. 2773 1 to show that we made any defamatory remarks that 2 harmed him. Thank you for your attention. 3 MR. EVANS: Your Honor, can we have a quick 4 restroom break? We have been going for a couple of 5 hours. I'm really uncomfortable. 6 THE COURT: Ladies and Gentlemen, let's take a 7 brief recess, and I'll call you back in in a 8 moment. 9 (Whereupon, there was had a recess from 11:53 10 o'clock a.m., to reconvene at 12:05 o'clock p.m.) 11 * * * * * 12 Continued to Volume XXI 13 14 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2774 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 8th 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.