2775 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 XXI 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. 2776 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. 2777 1 I N D E X - VOLUME XXI 2 CLOSING ARGUMENTS - CONT. 3 By Mr. Evans 2778 By Mr. Osborne 2806 4 JURY INSTRUCTIONS 2813 5 VERDICT 2838 6 7 PUNITIVES DAMAGES PHASE 8 PLAINTIFF RESTS 2843 9 RENEWED MOTION FOR MISTRIAL BY ROLLINS 2855 10 BEDFORD 11 TESTIMONY OF MICHELLE FETTERS 12 Direct Examination by Ms. Marshall 2857 Cross Examination by Mr. Osborne 2861 13 Redirect Examination by Ms. Marshall 2868 14 DEFENDANT/ROLLINS BEDFORD RESTS 2869 15 CLOSING ARGUMENTS 16 By Mr. Osborne 2870 By Ms. Marshall 2879 17 JURY INSTRUCTIONS 2880 18 VERDICT 2883 19 MOTION TO SET ASIDE THE VERDICT 2886 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2778 1 THE COURT: Please be seated. Mr. Evans? 2 MR. EVANS: May it please the Court. 3 THE COURT: Yes, sir. 4 MR. EVANS: I can now say good afternoon to 5 you. I'd like to first start by thanking each of 6 you for your wonderful attention. I know that two 7 weeks ago when you were sitting on the other side 8 of the Bar, some of you seemed to maybe have some 9 misgivings about giving away two weeks of your life 10 for this purpose, but I hope you found it 11 worthwhile. And we certainly appreciate you being 12 here and paying such close attention and asking 13 such perceptive questions that you asked. 14 When I spoke with you during the jury 15 selection process and when Mr. Townsend spoke with 16 you during opening statements, we explained to you 17 that as the attorneys for ORHS, we would speak late 18 and we would speak least, and I think that that's 19 been borne out. Now, Mr. Osborne will have a 20 chance to talk to you one more time on rebuttal, 21 but this will be my last chance and my client's 22 last chance to speak to you. 23 I also recall that you were asked to keep in 24 mind early on that there were multiple Defendants 25 in this case. There were when we began two, if you CENTRAL FLORIDA REPORTERS, INC. 2779 1 will, sets of Defendants and now there are two 2 Defendants. Mr. Townsend asked when he made his 3 opening statement that you pay particular attention 4 to the question of what hospital was what. As you 5 heard from the testimony and paid such close 6 attention and that testimony was so clear that I'm 7 very confident that you were able to determine who 8 we're talking about when we were talking. 9 And because you understood that very well, I 10 am not going to replow the ground that has been 11 plowed so very well this morning by counsel. And 12 I'm not going to go over the evidence of what 13 happened at Sunbelt Nursing Home, and I'm not going 14 to go over the evidence of what happened at Florida 15 Hospital. I'm going to confine and focus my 16 attention to the very limited period of time when 17 Carolina Destefano was a patient at Orlando 18 Regional Healthcare. 19 And I'm going to talk about what happened at 20 the neutral ground in this case. Orlando Regional 21 Healthcare and Florida Hospital/Sunbelt are two 22 competing hospital systems. They are competitors. 23 And you heard the testimony of Dr. Black that he 24 decided to write an order to transfer Carolina 25 Destefano to Orlando Regional because it was CENTRAL FLORIDA REPORTERS, INC. 2780 1 neutral ground. 2 It was just not perceived to be neutral 3 ground, it was neutral ground because, as we've 4 learned, the people who dealt with Mrs. Destefano 5 at Orlando Regional Healthcare did not know or have 6 any prior contact with Mrs. Destefano, 7 Mr. Destefano, Rachel Bean, Carol Boze, Mary 8 Thornton, Chuck Sherer, any of the other people who 9 were employed at Sunbelt or Florida Hospital. That 10 was in fact neutral ground, not just perceived to 11 be. 12 And I think you can recall when we had the 13 witnesses that came forward, at the end of the 14 testimony of most of those witnesses Mr. Townsend 15 or I stood and we asked them just a couple of 16 questions. Did you know Kelly Pipkin, did you know 17 Lillian Folley or vice versa, and there were no 18 connections. By the way, I'm going refer to Kelly 19 Pipkin as Kelly Pipkin. Her name is now Gregg 20 but -- Mrs. Gregg. I will call her Kelly Pipkin as 21 I talk to you today. 22 Now, let me talk about what happened during 23 the roughly 12 hours that Mrs. Destefano was in the 24 emergency department of Orlando Regional. We heard 25 from Dr. Ronald Black that at about 11:30 in the CENTRAL FLORIDA REPORTERS, INC. 2781 1 morning of September 21st, 1999, he wrote an order 2 to transfer Mrs. Destefano from Sunbelt Nursing 3 Home to the emergency department at Orlando 4 Regional Healthcare for evaluation of bright red 5 blood per rectum. 6 And Mrs. Destefano was transferred to Orlando 7 Regional in the Rural/Metro ambulance. And she was 8 non-verbal. She was not able to communicate for 9 herself. And she arrived at Orlando Regional 10 Medical Center at about 12:37 p.m. 11 I want to ask you to think for a moment about 12 this situation. An advanced-stage Alzheimer's 13 patient is transferred by ambulance to a receiving 14 facility, the Orlando Regional Medical Center 15 emergency department. She is completely unable to 16 communicate. She was in a cachectic state, meaning 17 that her limbs were ridged and her mouth was open 18 and she was nearly comatose. 19 Her primary caregiver, Mr. Destefano, was not 20 there, was not with her because as we have learned 21 he was picketing at that time. Now, when 22 Mrs. Destefano was -- arrived and was brought by 23 the ambulance to Orlando Regional's emergency 24 department, she was placed in room 22. And because 25 Nurse Kelly Pipkin was covering room 22, Nurse CENTRAL FLORIDA REPORTERS, INC. 2782 1 Kelly Pipkin was her caregiver. 2 A medical record was begun on Mrs. Destefano 3 at Orlando Regional Medical Center. It has been 4 placed in evidence. It will be available for to 5 you review. And you will have heard, and you have 6 heard, that it's customary for a nurse from a 7 transferring facility to call in a report to a 8 nurse at the receiving facility so that the 9 receiving facility will know what is wrong with the 10 patient. 11 Otherwise, particularly in the situation such 12 as this when a person -- a patient is unable to 13 communicate, you have no idea of what her condition 14 was that you were supposed to look into. And so 15 Nurse Pipkin took a report from the nursing home 16 and made entries in her nursing notes regarding 17 that information. 18 You're going to have with you in the jury room 19 those nursing notes, which are in evidence, and you 20 will see that in her nursing assessment, Nurse 21 Pipkin stated impaction per paralegal -- or 22 paramedic, I'm sorry. Nursing home staff reports 23 bright red blood on bed at rectum. Abdomen 24 non-soft. In other words, all descriptions of the 25 patient's -- the condition, the medical condition CENTRAL FLORIDA REPORTERS, INC. 2783 1 for which the patient was to be examined. 2 And she went on to say, under the history and 3 physical information, patient, 71-year-old white 4 female with history of dementia. Nursing staff 5 reports chronic constipation and is status post 6 decompaction and has had bright red blood per 7 rectum. Send to emergency department. Patient 8 unable to communicate. Does not interact. Again, 9 that information is medical information required 10 for the medical care of Carolina Destefano. 11 After Nurse Pipkin's initial nursing 12 evaluation, Dr. Lynn Wilson, who you heard from by 13 video deposition, who was an Orlando Regional 14 emergency department physician, completed an 15 evaluation of Mrs. Destefano. And that evaluation 16 is also part of the medical record that you'll be 17 allowed to examine. It's at pages six and seven. 18 You may recall when you watched that video 19 deposition of Dr. Lynn Wilson that she was sharp, 20 she was competent and she was professional. And 21 she testified that the records indicated that the 22 patient had been sent to the emergency department 23 for examination regarding rectal bleeding, 24 evaluation of rectal bleeding. 25 And she was examined by the doctor, CENTRAL FLORIDA REPORTERS, INC. 2784 1 Dr. Wilson, under the supervision of Dr. Brennan. 2 And it was determined that there was no reason to 3 hold her in the emergency department or admit her 4 as an in-patient at Orlando Regional Medical Center 5 and that she should be transferred back to 6 transferring facility, that is the nursing home. 7 Now, that took place by 3:00 p.m. So what 8 that means is that this patient had been 9 transferred to the emergency department in -- taken 10 in as a patient, evaluated and all that was 11 completed in about two hours 40 minutes. At that 12 point she was ready to return. 13 Now, Dr. Wilson contacted the nursing home and 14 was told, as you've heard, that the nursing home 15 did not want to take Mrs. Destefano back which, of 16 course, is also consistent with what Mr. Destefano 17 wanted. He did not want her to go back to Sunbelt, 18 but that created a problem for the receiving 19 facility or Orlando Regional Medical Center. 20 They had a patient who did not need to be 21 admitted to the hospital and did not need to stay 22 in the emergency department, but she had to go some 23 place. And so Dr. Wilson at first began to get 24 involved and started making some phone calls. 25 Dr. Wilson called and spoke with the director of CENTRAL FLORIDA REPORTERS, INC. 2785 1 nursing at Sunbelt, Dr. Wilson did not know her 2 name but we now know that to be Rachel Bean, at 3 about 3:00 p.m. And he spoke with the Sunbelt 4 administrator, Charles or Chuck Sherer, at about 5 5:40 p.m., all in efforts to arrange for the 6 placement of Mrs. Destefano back at Sunbelt. 7 Now, after Sunbelt said we don't want to take 8 her back, Mr. Destefano doesn't want her to be 9 taken back, Orlando Regional Medical Center 10 personnel went from a medical care giving role to a 11 social services role, that is the appropriate 12 placement of a patient who needed to be placed. 13 And that becomes a social issue, not a medical one. 14 So Dr. Wilson had Nurse Pipkin contact a case 15 manager or social worker-type person, Nurse Lillian 16 Folley, whose job it was to arrange for the 17 placement of Mrs. Destefano. Nurse Folley came 18 into this situation blind, just like Nurse Pipkin 19 came into this situation blind. They had no 20 previous information about what might have been 21 going on. They had no previous exposure to this 22 patient or to her son. 23 Now, as part of that effort, Folley contacted 24 Rachel Bean to find out why the patient would not 25 be taken back. The notes of that conversation are CENTRAL FLORIDA REPORTERS, INC. 2786 1 found in the medical record pages 16 and 17. 2 You'll have it. You've been shown that this 3 morning. And Mrs. Folley also called DCF solely 4 for the purpose of helping to place her. That was 5 the sole purpose of her call. 6 There's no allegation in this case that there 7 was anything inappropriate about Nurse Folley 8 calling DCFS. That was in the stipulation, and 9 Mr. Osborne put that in his argument a little bit 10 earlier. 11 Now, somewhere around 5:00 o'clock that day, 12 which was two hours after medical care had ended 13 for Mrs. Destefano, there was a sequence of events 14 at Orlando Regional Medical Center that are the 15 main focus of this case as it relates to ORMC, all 16 of which were compressed in a fairly short period 17 of time. 18 The sequence of those events is pretty well 19 set out in the medical records. The recollection 20 of the witnesses was not precise on the time, but 21 the images of what Nurses Pipkin and Folley saw 22 were very clear to them. 23 Now, Nurse Pipkin testified that she witnessed 24 Mr. Destefano kissing his mother, an advanced-stage 25 Alzheimer's patient, directly on his own mouth with CENTRAL FLORIDA REPORTERS, INC. 2787 1 his lips surrounding her lips in an open position 2 for an extended period in what she perceived to be, 3 and these are the words from her report to OPD, a 4 passionate kiss as a romantic couple would kiss one 5 another. 6 Now, the OPD report indicates that Nurse 7 Pipkin first referred to this as being a French 8 kiss. And issues have been made or raised or 9 attempted to be raised by Mr. Destefano about the 10 use of that slang term, French kiss, and whether or 11 not Nurse Pipkin was able to witness tongue 12 involvement in this kiss, but it makes absolutely 13 no difference to her concerns about what she saw. 14 And she was very precise about what she saw 15 when she talked to Officer Padilla and completed 16 her sworn statement. Now, French kiss is a 17 shorthand slang term that people use in 18 conversation to generally describe an open-mouth 19 kiss. It is not a technical term, it's not a legal 20 term, but it conveys the general idea in 21 conversational language. 22 And we've also heard that Ms. Pipkin or Nurse 23 Pipkin has been challenged because the report that 24 she gave to OPD right after the incident describes 25 three to four -- a kiss of what she thought to be CENTRAL FLORIDA REPORTERS, INC. 2788 1 three to five-second duration. In her deposition 2 years later she said, well, minutes. But the fact 3 is that unless you're looking at a watch or 4 stopwatch, the ability to pick out short stretches 5 of time and give an estimate to them is very 6 difficult for any witness. 7 But the significant point for Nurse Pipkin and 8 her view and in her perception was that the kissing 9 was on the mouth, with mouths open and 10 uncomfortably long in her view, and it was 11 perceived by her as inappropriate. 12 Now, you remember during his testimony that 13 Mr. Destefano acknowledged giving multiple kisses 14 to his mother at ORMC, and he acknowledged in his 15 testimony that his habit was to kiss her on the 16 corner of the mouth. Well, the corner of the mouth 17 is still on the mouth, particularly with a person 18 who has -- who was in a perpetual state having 19 their mouth open. It's still on her mouth. 20 And by the way, you may also remember, which I 21 believe Ms. Marshall pointed out, is that when 22 Mr. Destefano was testifying, he said that his 23 mother asked him to come and kiss her, but we know 24 that she could not ask for anything at that stage 25 in her life. CENTRAL FLORIDA REPORTERS, INC. 2789 1 Now, the testimony of Kay McNeill that she did 2 not see this occur is not credible because she was 3 not in the room for the entire time. She did 4 testify that she was at the nurses' station for at 5 least 40 minutes. She was coming and going. And 6 the fact is that because of her interest in 7 Mr. Destefano, she would likely say what she 8 thought was helpful to him this litigation, just as 9 she did when she said that she quit her job to take 10 care of Mrs. Destefano when we know that she quit 11 her job in 1996 or 1998, depending on which of her 12 testimonies you wish to believe, but we do know 13 that Mrs. Destefano did not come here until 14 September of 1999. 15 And Nurse Folley witnessed Mr. Destefano lying 16 in bed with his mother. She is quite clear that 17 that is what she saw. And Nurse Folley heard the 18 report from Nurse Pipkin about inappropriate 19 kissing. 20 And by the way, again, as Ms. Marshall pointed 21 out, the notion of Mr. Destefano lying in bed with 22 his mother doesn't come to us out of left field. 23 It's something that he acknowledged doing on a 24 routine basis in Arizona, at Florida Hospital, at 25 the Vitas facility when he was videotaping it. And CENTRAL FLORIDA REPORTERS, INC. 2790 1 that tells us that he has a tendency to do this. 2 Now, regardless of any of our value judgments 3 about whether it was right or wrong, it is 4 irregular behavior on his part. And his response 5 to what Nurse Folley said is not never, it's not 6 this time. And what did Nurse Folley do? This 7 20-year Army veteran and experienced nurse did her 8 duty. She did what the law required. 9 She did what virtually every witness said was 10 the absolute responsibility of a health care 11 provider. She reported those concerns to the 12 appropriate authorities. She called it into OPD, 13 Officer Young, who was working off-duty as security 14 in the Orlando Regional Medical Center emergency 15 department. 16 The timing of that verbal report to ORHS 17 security was recorded on the tape as being 5:16 18 p.m. Now, she had no reason to report it to DCF at 19 that time because she had been told that DCF was 20 already looking into the situation. There was a 21 suggestion that there might be some piling on. 22 There was no piling on to DCF. 23 And now, keep in mind that these health care 24 professionals were responsible for the welfare and 25 safety of Carolina Destefano. They were her CENTRAL FLORIDA REPORTERS, INC. 2791 1 defenders. They didn't know her and for that 2 matter they did not know her son, Larry Destefano, 3 from Adam. 4 But Nurse Folley had received information 5 which she had no reason to doubt, absolutely no 6 reason to doubt that her previous -- Carolina 7 Destefano's previous caregivers at Florida Hospital 8 or Sunbelt had witnessed suspicious behaviors by 9 Mr. Destefano, and that they had found those 10 behaviors to be threatening to Mrs. Destefano and 11 to her caregivers. 12 And she received information, again which she 13 had no reason to doubt, that Mr. Destefano's 14 behavior at Sunbelt had been such that Sunbelt had 15 decided that it was necessary to trespass her from 16 their premises and not allow or not accept 17 Mrs. Destefano back as a patient. 18 What reasonable health care provider would not 19 be on heightened alert if they had heard that 20 information? Information they had no reason to 21 doubt, no reason at all to doubt. And in that 22 setting, with that backdrop nurse Folley was told 23 by Nurse Pipkin that she personally witnessed 24 Mr. Destefano kissing his mother on the open mouth 25 in a way she perceived as inappropriate. And Nurse CENTRAL FLORIDA REPORTERS, INC. 2792 1 Folley personally witnesses him in bed with his 2 mother in the ED in a manner that she perceived as 3 inappropriate. 4 We all have loved ones, and probably each of 5 us deal differently with their loved ones when it 6 comes to showing affection. Some of us are more 7 inclined to hug and kiss than others. There's room 8 in this world for a full range of behaviors to show 9 affection to our family members. We talked a 10 little bit about it in the jury selection process. 11 But it's not a crime to kiss your parent or child 12 on the lips, and it's no a crime to lay in bed 13 beside them. 14 But what's important here is that the nurses 15 who saw what was going on with their own eyes found 16 it inappropriate. They found it odd. They found 17 it, as Officer Padilla said, weird. And they 18 decided it was troubling enough that they decided 19 they had to report it. It was a call that they had 20 to make on the spot and for the best of reasons, 21 which were to protect the welfare of 22 Mrs. Destefano. 23 What choice did Lillian Folley have other than 24 to do what she did? It's not only required by law, 25 it's the right thing to do, and that's what we want CENTRAL FLORIDA REPORTERS, INC. 2793 1 health care providers to do. 2 If Mr. Destefano could take a deep breath and 3 step back from this situation, step back from his 4 rage and step back from his desire to win at all 5 costs and teach a lesson, I think what he would 6 want to have his mother's -- his mother's caregiver 7 do is to protect her welfare and well-being. 8 If we had seen some other person with those 9 kinds of activities toward that woman, he would 10 have had a fit if we had not called for security. 11 You know, he complained about the caregivers in 12 Arizona not doing enough to protect his mother. 13 He's complaining today that Orlando Regional 14 Healthcare did too much. 15 Do you remember what Dr. Black said? He said 16 you must report suspected abuse. You can get in 17 trouble with the law if you don't. Every 18 allegation of abuse must be investigated, even 19 though many times there will be a finding of no 20 abuse. Experience shows time and time again that 21 it's necessary to investigate every allegation, 22 otherwise you'll miss many allegations of abuse. 23 The words were said earlier, guilty until 24 proven innocent. When it comes to abuse, we can 25 live with that. We can live with that in the CENTRAL FLORIDA REPORTERS, INC. 2794 1 context of abuse because we have to protect the 2 people who cannot protect themselves, and that's 3 the way we do it. 4 Now, I must say that Nurse Folley has been 5 attacked because when she made the phone call that 6 she made to security, she said lying on top of the 7 mother and not lying beside her in the bed. That 8 is a distinction without a difference. These 9 witnesses, these nurses were concerned about 10 behavior that they considered and perceived to be 11 inappropriate and suspicious, Officer Padilla said 12 was weird. 13 If Nurse Pipkin could not see a tongue 14 involved in those kisses, if Nurse Folley saw him 15 in bed with his mother but not on top of the 16 mother, those are differences -- distinctions 17 without a difference. And listen carefully. I 18 think you've heard the audio tape of Ms. Folley's 19 call to security three times now. You can tell 20 she's searching for words to describe a situation 21 that she found both troubling and highly unusual. 22 Mr. Osborne said she sounded disgusted, and 23 she probably was, but it wasn't scripted. The 24 halting, the stopping, um, well. She didn't know 25 exactly what to say. But remember that what she CENTRAL FLORIDA REPORTERS, INC. 2795 1 was speaking from was a situation where all the 2 information becomes available to her. The totality 3 of the situation, the whole big picture was a call 4 to action. 5 Now, this case is not about whether Larry 6 Destefano abused his mother. You don't need to 7 decide that to decide this case. DCF has decided 8 he has not. Orlando Police Department has decided 9 he's committed no crime. And it's not -- it wasn't 10 necessary for any of the nurses to decide that when 11 they had to make a report. 12 You know, sometimes you don't know, as many of 13 the witnesses said, but you still have to report 14 suspicions and concerns to be investigated by the 15 appropriate authorities. And the nurses at Orlando 16 Regional Healthcare who had to do this had to do 17 this on the spot. They didn't have any option of 18 waiting. They didn't have the option of examining 19 witnesses and cross-examining witnesses and arguing 20 back and forth, is it abuse, is it not abuse, is it 21 abuse? 22 They did not have that option. They had to 23 make a quick decision, and the timing of all this 24 says that's exactly what they did. It would have 25 been really easy for them to just work out the rest CENTRAL FLORIDA REPORTERS, INC. 2796 1 of their shift and go home, but they didn't do that 2 because they were concerned about the welfare of 3 this patient. 4 It was the right thing to do. Mr. Destefano 5 cannot see that now but you can. And within one 6 hour of that phone call to off-duty OPD officer 7 Young, who was working as ORHS security, an on-duty 8 office, Officer Padilla, was on the scene and 9 performed his role in this investigation to protect 10 Carolina Destefano. 11 Now, Ladies and Gentlemen, the testimony shows 12 these nurse are completely credible, very solid and 13 believable with absolutely no reason not to tell 14 the truth. Their jobs weren't on the line. Their 15 licensure wasn't on the line in terms of the 16 facility they worked in. They hadn't signed a 17 note. None of the things that they spent so much 18 time talking about in this case apply to the 19 Orlando Regional Medical Center nurses. 20 What they did know, what Officer Padilla told 21 us, was that signing a false statement to a law 22 enforcement is a serious issue and it's a crime. 23 And these nurses, these experienced nurses, Nurse 24 Folley who has a 20-year nursing career, including 25 20 years in the Army and on Reserve, would have CENTRAL FLORIDA REPORTERS, INC. 2797 1 been putting her entire career at risk had she made 2 false statements. 3 And I think you may also recall that I asked 4 Officer Padilla about that. And Officer Padilla, 5 an experienced law enforcement officer says, yes, I 6 took these statements from these ladies. I talked 7 to them. I explained the concepts. We talked 8 about French kissing, what did you see, what did 9 you not see. And these nurses were very willing to 10 tell the truth, to be precise as they could be, and 11 he found them to be credible witnesses. 12 Now, I want to tell you about a situation or 13 an issue in this case that I want you to think 14 carefully about. And that is neither Nurse Pipkin 15 nor Nurse Folley had ever met Mr. Destefano before. 16 They had no ill will toward him, no reason to 17 injure him or harm him in any way. 18 And the way this case played out in the brief 19 period of time at Orlando Regional Medical Center 20 is entirely consistent with that, everything about 21 the way that Orlando Regional Medical Center dealt 22 with this situation to try to minimize it, not 23 maximize it, to minimize it. It was handled 24 quietly and confidentially, and only the people who 25 were absolutely necessary to be involved were CENTRAL FLORIDA REPORTERS, INC. 2798 1 involved. 2 It was minimized. It was not pasted all over 3 the medical record. The only note in the medical 4 record is a very short note that Dr. Wilson wrote 5 in the lower left-hand corner of this medical 6 record, this chart, which you'll have in evidence. 7 Informed that son is with patient in her room and 8 nurse witnessed inappropriate kissing between son 9 and mother. Security and police have been notified 10 period. It was minimized. 11 Folley called security. Officer Padilla 12 showed up and only interviewed two people, Nurse 13 Pipkin and Folley. It was minimized. The sworn 14 statements given to Officer Padilla weren't 15 sensationalized language. They were business-like, 16 non-inflammatory. Look at them and you'll see 17 that. It was minimized. Once the patient's safety 18 was accomplished, ORMC didn't do anything other 19 than quietly respond to Officer Padilla's 20 questions. There was no evidence of a push to get 21 him arrested. It was minimized. 22 Nurse Folley noted the situation had already 23 been reported to DCF by Sunbelt. She didn't pile 24 on and seek involvement in the DCF situation. It 25 was minimized. When security went into the room, CENTRAL FLORIDA REPORTERS, INC. 2799 1 they were not heavy-handed. Do you remember 2 Mr. Destefano testifying that he thought they were 3 asking everybody to leave the building? He thought 4 maybe it was a fire drill. That's good security. 5 It was minimized. 6 When he told them he wouldn't leave, there was 7 no big confrontation. He later left of his own 8 accord. It was minimized. He says what happens 9 was that he was shunned and nobody would talk to 10 him. Well, that's probably true because it was 11 minimized. He was not trespassed from our 12 building. There was no yelling, no pounding on 13 tables, no threats, no picketing, no videotaping. 14 He was involved with Orlando Regional Medical 15 Center for less than two hours. 16 Now, Mr. Osborne said in his openings (sic) 17 just a little bit earlier today that Mr. Destefano 18 sees the world in black and white and feels that he 19 must win at all costs. Now, what that tells us, 20 what we've learned from the evidence, we've seen 21 the video, we've seen that it can be quite 22 difficult to avoid a confrontation with 23 Mr. Destefano if he feels you're on the wrong side 24 of the black and white. 25 Whether you're a nurse, whether you're a CENTRAL FLORIDA REPORTERS, INC. 2800 1 police officer, whether you're a person walking 2 down the street, it can be quite difficult to avoid 3 that, but there was no confrontation with 4 Mr. Destefano at ORHS. It was minimized. After he 5 voluntarily left, he was never questioned by 6 Officer Padilla and obviously never arrested or 7 charged with any crime. 8 The reasoning behind the decision, by the way, 9 is that OPD considered there to be a conflict in 10 the medical views between Dr. Black who said he had 11 found rectal bleeding or suspected rectal bleeding. 12 Dr. Wilson didn't find any evidence of it when she 13 did her examination. And that they also found that 14 Mr. Destefano was the primary caregiver for her 15 husband (sic). It was minimized. 16 It would have been very easy, as I said 17 earlier, for Nurses Pipkin and Folley to just let 18 it slide, wait for their shifts to end and go home 19 and not have to become involved in any of this 20 stuff, but they didn't do that. They handled it 21 professionally and with just enough action to 22 protect Mrs. Destefano and no more. 23 It was minimized. If it is somehow suggested 24 that Orlando Regional Medical Center was out to get 25 Mr. Destefano, they sure did a poor job of it. CENTRAL FLORIDA REPORTERS, INC. 2801 1 Each and every action taken by Orlando Regional was 2 consistent with its duty to protect the interest of 3 Carolina Destefano. None of the actions taken by 4 ORHS are consistent with the motivation of ill 5 will, hostility or intent to harm. 6 The situation was minimized and minimized and 7 minimized over and over again. It was not 8 maximized. Had they been motivated to harm him it 9 would have been maximized, but it was minimized. 10 And why would these medical professionals put their 11 careers and more on the line to harm a perfect 12 stranger? Why would they do that? 13 Now, let me explain to you why this is 14 important for your consideration of this case. 15 When you receive the verdict form and the jury 16 instructions, on the jury instructions relating to 17 the defamation claim against Orlando Regional 18 Medical center, you're going to see three 19 instructions. They are instructions 11, 12 and 13. 20 And the first one is going to talk to you 21 about the issue of whether the statements -- 22 whether Orlando Regional made statements tending to 23 expose Mr. Destefano to hatred, ridicule, contempt 24 or injure him and his reputation. I can tell you 25 the answer to that is going to be no. CENTRAL FLORIDA REPORTERS, INC. 2802 1 Number 12, instruction number 12 is going to 2 ask you were the things -- or is going to instruct 3 you were the things -- the statements made by 4 Orlando Regional Healthcare System substantially 5 true and made with good motives? I think the 6 evidence has shown certainly that things that they 7 reported, they reported them as substantially true 8 and they were with good motives. 9 13, instruction number 13 is the one that 10 talks about the privilege that we talked about a 11 little bit earlier. And that instruction is going 12 tell you that the issue for your determination on 13 the privilege is whether Orlando Regional made the 14 statements with improper motives abusing the 15 privilege. 16 And that one makes false statements about 17 another with improper motives if one's primary 18 motive, primary motive and purpose in making the 19 statements is to gratify one's ill will, hostility, 20 intent to harm others than to -- rather than to 21 advance the interest protected by the privilege, in 22 this case the protection of Carolina Destefano. 23 And when you get your verdict form and take it 24 back to the jury room with you, you are going to 25 only be asked two questions about Orlando Regional CENTRAL FLORIDA REPORTERS, INC. 2803 1 Healthcare System. All of the things that I just 2 talked to you about, whether there was a defamatory 3 publication, whether it was true, whether it was 4 privileged are all going to be boiled down into one 5 question that you're going to be asked to respond 6 to. It's question number five. 7 Did Lawrence Destefano show by the greater 8 weight of the evidence, counsel told you what the 9 greater weight of the evidence means, that he was 10 libeled or slandered by Orlando Regional Healthcare 11 System, and that the libel or slander was a legal 12 cause of damages to Lawrence Destefano, yes or no. 13 If you have decided when you deliberate that 14 you find for Orlando Regional Medical Center on 15 that claim, you say, no -- this is the just say no 16 verdict form as far as Orlando Regional is 17 concerned. Only if you say yes do you have to 18 decide what damage, if any, that Mr. Destefano 19 suffered as a direct result of being libeled and 20 slandered by Orlando Regional Healthcare System. 21 If you have to consider damage, I ask that you 22 keep in mind that the communication by Orlando 23 Regional Healthcare System on this situation was to 24 an extremely narrow audience of individuals who are 25 not part of Mr. Destefano's world. You can count CENTRAL FLORIDA REPORTERS, INC. 2804 1 the number of people who received information from 2 Orlando Regional Healthcare System about this 3 situation probably on one hand, you might have to 4 use a couple of fingers from the other, but it's a 5 very small group of people that heard anything 6 about this because it was minimized. 7 The only person who communicated the kissing, 8 inappropriate kissing and lying in bed statements 9 to a wider audience, as we've seen, was Mr. 10 Destefano himself. He's presented no evidence of 11 damage to his reputation. The witnesses that he 12 called; Kay McNeill, Mieko Koller, Phil Massey, his 13 reputation in their eyes is undiminished by any of 14 this. 15 These people consider themselves to be among 16 his closest friends, but they were unable to 17 testify about any damage to his reputation or 18 anyone whose feeling about Mr. Destefano has been 19 harmed or damaged by anything that Orlando Regional 20 Medical Center did. 21 Each and every one of them said that he 22 learned of it from Mr. Destefano himself. And the 23 people who learned of it by virtue of the picketing 24 activities, who knows how many people that 25 consisted of? But none of that has anything to do CENTRAL FLORIDA REPORTERS, INC. 2805 1 with what Orlando Regional Medical Center did, 2 which is to minimize. 3 Now, you will receive, by the way, a jury 4 instruction that if you believe that Mr. Destefano 5 should win, and you determine that he's not been 6 damaged but only theoretically prevailed, you can 7 award nominal damages, which is a token amount 8 where you can say, okay, you win. Here's a token 9 amount of money. You will have the opportunity to 10 do that. 11 And you should not feel constrained at all, if 12 you must consider damages, by any of the numbers 13 that Mr. Osborne threw out as a menu to choose 14 from, running up to five million dollars. You can 15 select zero or whatever you think is appropriate 16 given your consideration of the evidence in this 17 case. 18 Now, you've been very patient and attentive to 19 me and the other lawyers and I thank you for that. 20 I want to make just a couple closing remarks and 21 take my seat. To summarize again, each and 22 everything done by Carolina Destefano's caregivers 23 at Orlando Regional Healthcare was done for her 24 benefit and protection. 25 They did what they thought was necessary to CENTRAL FLORIDA REPORTERS, INC. 2806 1 protect a helpless person in their care who could 2 not protect herself, and in doing that they 3 minimized the situation with Mr. Destefano. They 4 didn't maximize it, they minimized it. They did 5 what they felt they needed to do to protect 6 Mrs. Destefano and no more. And they certainly did 7 not from the evidence do any of the things that 8 they did out of a sense of trying to impose or 9 sense of indulging ill will, hostility or an 10 attempt to do him harm. 11 After two weeks of testimony, when we did jury 12 selection I said to you that you will be asked by 13 me and by Mr. Townsend at the end of your service 14 to say no to Mr. Destefano. And that's what we're 15 going to ask you to do. When you reach -- when you 16 deliberate, when you reach your verdict, when you 17 fill out a verdict form, it's going to be the just 18 say no verdict form for Orlando Regional Healthcare 19 System. And I encourage you to consider that as 20 you deliberate. Thank you again for your 21 attention. 22 MR. OSBORNE: May it please the Court. 23 Members of the Jury, this is rebuttal. I will be 24 mercifully short. Remember the Wendy's cartoon 25 years ago where the little old lady comes up to the CENTRAL FLORIDA REPORTERS, INC. 2807 1 counter with the bun and she says where's the beef? 2 Well, that's the first question I have for 3 you. Where's the beef? Where is the proof to show 4 that these witnesses told the truth; Rachel Bean, 5 Mary Thornton, Carol Boze, Lillian Folley? When 6 you first heard about this case in openings, I'm 7 sure that you expected you would hear from at least 8 one credible witness who would come forward and 9 tell the truth about seeing these things or 10 corroborate what these witnesses told you. 11 As the trial went forward, I'm sure you began 12 to wonder where is that witness that's going to 13 come in here and verify what Rachel Bean said, what 14 Mary Thornton said, what Carol Boze said and what 15 Lillian Folley passed off in that telephone 16 conversation as being truthful. They didn't show 17 up think. They show up because they don't exist. 18 What you heard was in response to that, in the 19 absence of a witness, you heard I know what I saw. 20 That's their defense. It's the I-know-what-I-say 21 defense, which is the same thing as saying that's 22 my story and I'm sticking to it, same thing. 23 And there's an old expression in the south 24 that says that dog won't hurt. And that dog won't 25 hunt to say that these people knew what they saw CENTRAL FLORIDA REPORTERS, INC. 2808 1 and that's their story and they're sticking to it, 2 no corroboration. And when you weigh the evidence, 3 you have to take that to heart. 4 There's another defense that is called the no 5 harm, no foul defense. Well, we may have made all 6 these heinous comments, but they turned out to be 7 false and we got off the hook. That's not the way 8 it works, folks. There's no such thing as a no 9 harm, no foul defense. 10 You were posed a question, why would these 11 nurses continue to lie, they don't work there 12 anymore. Well, think about it. If you lied 13 before, you got a license as a nurse and now you're 14 called in to testify about what you put in the 15 chart years ago, well, if you're found to be a liar 16 six years later by a jury of their peers, they can 17 lose their licenses now. They could lose their 18 reputation now. They could lose their good name 19 now. The very things they took away from Larry 20 Destefano they could lose. 21 COURT DEPUTY: Turn off the cell phone, 22 please. 23 MR. DESTEFANO: I apologize, sir, I apologize 24 Your Honor, I apologize to the Court. 25 MR. OSBORNE: So if they have a reason, they CENTRAL FLORIDA REPORTERS, INC. 2809 1 have a reason for perpetuating a lie because you 2 said it once and you're stuck with it. It's in the 3 records, and now you got to come forward and deal 4 with it. And the only option you have is the 5 option I gave Carol Boze. Do you want to tell the 6 truth now? Well, she did not want to tell the 7 truth. 8 There's another issue you heard from both 9 lawyers, and that was that there's no difference 10 between lying in bed next to your mother or lying 11 in bed on top of your mother. It was called hair 12 splitting by Rollins Bedford. It's hair splitting 13 to say whether or not a 230-pound man is laying on 14 top of his frail 71-year-old Alzheimer's mother or 15 lying next to her. 16 Well, that hair is about the size of the Grand 17 Canyon because what it means is one is sexual in 18 nature and can only be interpreted as sexual in 19 nature. If you're lying on top of somebody, you're 20 only there for one reason, sex. The other one, 21 there's a lot of reasons why you could be lying 22 next to your mother, innocent reasons that could be 23 misinterpreted. 24 So to say that this is a distinction without a 25 difference, that this is hair splitting is CENTRAL FLORIDA REPORTERS, INC. 2810 1 hellacious. This is a very big distinction. And 2 you can't gild the lily and -- no pun intended. 3 Lillian Folley can't say that she meant lying next 4 to when she incorporated Rachel Bean's testimony 5 and said lying on top of. You can't get off the 6 hook that way. 7 I did say during the presentation of 8 Mr. Destefano's case that I stand corrected. I 9 made a mistake and I admitted it. And the 10 difference between Mr. Destefano and me in that 11 regard is that these Defendants are unrepentant. 12 Not only did we did not hear them admitting to 13 anything wrong, but what you hear is they're going 14 to do it again and again and again. That's the 15 difference. 16 You heard the evidence. You heard the 17 evidence about what occurred here. They've heard 18 the same evidence. And in view of all that 19 evidence, we're going to do it again and again and 20 again. 21 It is interesting that in closing you never 22 heard one word or argument about what the specific 23 nature or content was of those DCFS questions that 24 I was reading to you both in evidence and in 25 closing. And why didn't you hear that? They don't CENTRAL FLORIDA REPORTERS, INC. 2811 1 want to talk about it. Don't you know that if 2 these quotations were false or misquoted you'd have 3 heard about it? Don't you know that? And don't 4 you know that -- these Interrogatories, were they 5 put in evidence by Mr. Destefano? No, they were 6 put in evidence by Rollins Bedford. 7 This is a sworn legal document in evidence, 8 placed in evidence by the Defendants, and they 9 don't like it but they're stuck with it. And if 10 they wanted to bring in somebody to contradict 11 that, where were the witnesses from DCFS to 12 contradict what's in those sworn Interrogatories? 13 The AHCA issue, that was called a red herring. 14 Remember, that was the one Mr. Sherer talked about 15 where there was 16 problems or tags that had only 16 been cleared on 9/16/99, four days before these 17 events happened. That's not a red herring, that's 18 a black koi. It's a real thing and that was on 19 their minds at the time. 20 And you also heard that Mr. Destefano was here 21 and was picketing because he wanted money. You 22 know that that's not true. You heard him on his 23 videotape saying I'm not here about money. I'm 24 here about an investigation. I will take my sign 25 home if you investigate and you discipline the CENTRAL FLORIDA REPORTERS, INC. 2812 1 people that did this, made these false statements. 2 The only avenue that was left to him was the 3 one suggested first by John Amick, the head of 4 security for Rollins Bedford. He said, Larry, 5 you're in the wrong forum. You're not getting 6 anywhere out here. Sue us. He goes to OPD with a 7 complaint. They said, Larry, you're in the wrong 8 forum. It's a civil matter. Can get a lawyer. 9 That's why he's here. 10 You heard about the umbrella. You heard that 11 repeated, the umbrella. Umbrellas are supposed to 12 protect people from harm, not to hide under. You, 13 the Jury, are the only umbrella that Larry 14 Destefano has. It's up to you to stand up between 15 him and these people and say enough, no more. 16 Thank you. 17 THE COURT: Counsel approach the Bench. 18 (Whereupon there was had a discussion at the 19 Bench outside the hearing of the Jury.) 20 THE COURT: Have you agreed on the verdict 21 form and jury instructions? 22 MS. PETRO: Yes, Your Honor. 23 THE COURT: No further objections? 24 MR. TOWNSEND: No, no, Your Honor. We note 25 our prior objections. CENTRAL FLORIDA REPORTERS, INC. 2813 1 THE COURT: Prior objection is noted, yes. 2 MS. PETRO: Your Honor, I believe that set 3 still contains 25 and 26 at the back which you will 4 not be giving at this time. 5 THE COURT: Um-hum. 6 MR. OSBORNE: Thank you, Dyana. 7 THE COURT: So I'm taking out 25 and 26. 8 MS. PETRO: I have no objection. 9 MR. OSBORNE: That's correct. That's correct. 10 (Whereupon the discussion at the Bench was 11 concluded, after which the following proceedings 12 were had.) 13 THE COURT: Members of the Jury, I shall now 14 instruct you on the law that you must follow in 15 reaching your verdict. It is your duty as jurors 16 to decide the issues and only those issues that I 17 submit for determination by your verdict. In 18 reaching your verdict you should consider and weigh 19 the evidence, decide the disputed issues of fact 20 and apply the law on which I shall instruct you to 21 the facts as you find them from the evidence. 22 The evidence in this case consists of the 23 sworn testimony of the witnesses, all exhibits 24 received in evidence and all facts that may be 25 admitted or agreed to by the parties. In CENTRAL FLORIDA REPORTERS, INC. 2814 1 determining the facts you may draw reasonable 2 inferences from the evidence. You may make 3 deductions and reach conclusions which reason and 4 common sense lead you to draw from the facts shown 5 by the evidence in this case, but you should not 6 speculate on any matters outside the evidence. 7 In determining the believability of any 8 witness and the weight to be given the testimony of 9 any witness, you may properly consider the demeanor 10 of the witness while testifying, the frankness or 11 lack of frankness of the witness, the intelligence 12 of the witness, any interest the witness may have 13 in the outcome of the case, the means and 14 opportunity the witness had to know the facts about 15 which the witness testified, the ability of the 16 witness to remember the matters about which the 17 witness testified, and the reasonableness of the 18 testimony of the witness considered in the light of 19 all the evidence in the case and in the light of 20 your own experience and common sense. 21 You have heard opinion testimony from persons 22 referred to as expert witnesses. You may accept 23 such opinion testimony, reject it or give it the 24 weight you think it deserves considering the 25 knowledge, skill, experience, training or education CENTRAL FLORIDA REPORTERS, INC. 2815 1 of the witness, the reasons given by the witness 2 for the opinion expressed and all the other 3 evidence in the case. 4 In your deliberations you are to consider 5 distinct claims against several different 6 Defendants. Although these claims have been tried 7 together, each is separate from the others and each 8 party is entitled to have you separately consider 9 each claim as it affects that party. Therefore, in 10 your deliberations you should consider the evidence 11 as it relates to each claim and each party 12 separately as you would had each claim been tried 13 before you separately. 14 The issues for your determination on the claim 15 of Lawrence M. Destefano against Rollins Bedford 16 Corporation, doing business as Sunbelt Healthcare 17 and Subacute Center, are whether Rollins Bedford 18 Corporation, doing business as Sunbelt Healthcare 19 and Subacute Center, made the statements concerning 20 Larry M. -- excuse me, Lawrence M. Destefano as 21 Lawrence M. Destefano contends, and if so, whether 22 the statements tended to expose Mr. Lawrence M. 23 Destefano to hatred, ridicule or contempt or tended 24 to injure Lawrence M. Destefano in his reputation 25 or charge that Lawrence M. Destefano committed a CENTRAL FLORIDA REPORTERS, INC. 2816 1 crime. 2 If the greater weight of the evidence does not 3 support the claim of Lawrence M. Destefano on these 4 issues, then your verdict should be for Rollins 5 Bedford Corporation, doing business as Sunbelt 6 Healthcare and Subacute Center. However, if the 7 greater weight of the evidence does support the 8 claim of Lawrence M. Destefano on these issues, 9 then you shall consider the defense of truth and 10 good motives, the defense of qualified privilege 11 and the defense of self-publication raised by 12 Rollins Bedford Corporation, doing business as 13 Sunbelt Health Care and Subacute Center. 14 The first issue you must determine is whether 15 Rachel Bean, Mary Thornton and/or Carol Boze were 16 agents of Rollins Bedford Corporation and were 17 acting within the scope of their employment at the 18 time and place of the incident complained of. An 19 agent is a person who is employed to act for 20 another and whose actions are controlled by his or 21 her employer or are subject to his or her 22 employer's right of control. 23 An employer is responsible for the acts of its 24 agents if such acts occur while the agent is 25 performing services which he or she was employed to CENTRAL FLORIDA REPORTERS, INC. 2817 1 perform, or while the agent is acting at least in 2 part because of a desire to serve his or her 3 employer and is doing something that is reasonably 4 incidental to his or her employment, or something 5 the doing of which was reasonably foreseeable and 6 reasonably to be expected of persons similarly 7 situated. 8 On the first defense of Rollins Bedford, the 9 issue for your determination is whether the 10 statements made by Rollins Bedford were 11 substantially true and were made with good motives. 12 A statement is substantially true if its substance 13 or gist conveys essentially the same meaning that 14 the truth would have conveyed. 15 In making this determination, you should 16 consider the context in which the statement is made 17 and disregard any minor inaccuracies that do not 18 affect the substance of the statement. If the 19 greater weight of the evidence supports this 20 defense, your verdict should be for Rollins 21 Bedford. 22 If the greater weight of the evidence does not 23 support this defense, and the greater weight of the 24 evidence does support the claim of Lawrence M. 25 Destefano on the issues I previously mentioned, CENTRAL FLORIDA REPORTERS, INC. 2818 1 then you should consider the defense of qualified 2 privilege raised by Rollins Bedford Corporation, 3 doing business as Sunbelt Health Care and Subacute 4 Center. 5 Greater weight of the evidence means the more 6 persuasive and convincing force and effect of the 7 entire evidence in the case. Rollins Bedford 8 Corporation, doing business as Sunbelt 9 Health -- Sunbelt Healthcare and Subacute Center, 10 had a qualified privilege to make statements, even 11 if untrue, provided they did so with proper 12 motives. 13 Such a qualified privilege exists because 14 Florida law requires that health care providers and 15 others report instances of reasonably suspected 16 abuse to the proper authorities with a 17 corresponding duty to receive such support -- such 18 reports. 19 The issue for your determination is, 20 therefore, whether, as Lawrence M. Destefano 21 contends, Rollins Bedford Corporation, doing 22 business as Sunbelt Health Care and Subacute 23 Center, made the statements with improper motives 24 abusing that qualified privilege. One makes false 25 statements about another with improper motives if CENTRAL FLORIDA REPORTERS, INC. 2819 1 one's primary motive and the purpose in making the 2 statements is to gratify one's ill will, hostility 3 and intent to harm others rather than to advance or 4 protect Rollins Bedford Corporation's, doing 5 business as Sunbelt Healthcare and Subacute Center, 6 duty to speak to the Department of Children and 7 Family Services. 8 If clear and convincing evidence does not 9 support the claim of Lawrence M. Destefano that 10 Rollins Bedford Corporation, doing business as 11 Sunbelt Healthcare and Subacute Center, abused this 12 qualified privilege they had, then your verdict 13 should be for Rollins Bedford Corporation, doing 14 business as Sunbelt Healthcare and Subacute Center. 15 However, if clear and convincing evidence does 16 support the claim of Lawrence M. Destefano that 17 Rollins Bedford Corporation, doing business as 18 Sunbelt Healthcare and Subacute Center, abused this 19 qualified privilege they had, then you shall 20 consider the other defenses of Rollins Bedford. 21 Clear and convincing evidence differs from the 22 greater weight of the evidence in that it is more 23 compelling and persuasive. Greater weight of the 24 evidence means the more persuasive and convincing 25 force and effect of the entire evidence in the CENTRAL FLORIDA REPORTERS, INC. 2820 1 case. In contrast, clear and convincing evidence 2 is evidence that is precise, explicit, lacking in 3 confusion and of such weight that it produces a 4 firm belief or conviction without hesitation that 5 the -- about the matter in issue. 6 Rollins Bedford Corporation, doing business as 7 Sunbelt Healthcare and Subacute Center, also had a 8 qualified privilege to make statements, even if 9 untrue, provided they did so with proper motives. 10 Such a privilege also exists when information is 11 provided to anyone that has an interest in such 12 information, such as law enforcement or other 13 health care providers. 14 The issue for your determination is, therefore 15 whether, as Lawrence M. Destefano contends, Rollins 16 Bedford Corporation, doing business as Sunbelt 17 Healthcare and Subacute Center, made the statement 18 with improper motive abusing that qualified 19 privilege. One makes a false statement about 20 another with improper motives if one's primary 21 motives and purpose in making the statements is to 22 gratify one's ill will, hostility and intent to 23 harm others rather than to advance or protect 24 Rollins Bedford Corporation's, doing business as 25 Sunbelt Healthcare and Subacute Center, privilege CENTRAL FLORIDA REPORTERS, INC. 2821 1 to speak to others, such as law enforcement or 2 other health care providers. 3 If the greater weight of the evidence does not 4 support the claim of Lawrence M. Destefano that 5 Rollins Bedford Corporation, doing business as 6 Sunbelt Healthcare and Subacute Center, abused this 7 qualified privilege they had, then your verdict 8 should be for Rollins Bedford Corporation, doing 9 business as Sunbelt Healthcare and Subacute Center. 10 However, if the greater weight of the evidence 11 does support the claim of Lawrence M. Destefano 12 that Rollins Bedford Corporation, doing business as 13 Sunbelt Healthcare and Subacute Center, abused this 14 qualified privilege they had, then you shall 15 consider the defense of self-publication raised by 16 Rollins Bedford Corporation. 17 On the defense of self-publication, the issue 18 for your determination is whether Lawrence 19 Destefano published defamatory statements about 20 himself to third parties, and if so, whether those 21 statements caused some or all his alleged damages 22 to reputation, exposed him to hatred, ridicule or 23 contempt or charge that he committed a crime. 24 If you find that Lawrence Destefano 25 voluntarily published defamatory statements about CENTRAL FLORIDA REPORTERS, INC. 2822 1 himself to third parties, you may consider that 2 fact in determining whether Rollins Bedford 3 Corporation should be held liable for defamation 4 and in determining whether the damages claimed by 5 Lawrence Destefano were proximately caused by the 6 alleged defamation by the Rollins Bedford 7 Corporation. 8 If you find that Lawrence Destefano did not 9 voluntarily publish defamatory statements about 10 himself, then your verdict should be for Lawrence 11 M. Destefano in the total amount of his damages. 12 If you find for Rollins Bedford Corporation, doing 13 business as Sunbelt Healthcare and Subacute Center, 14 you will not consider the matter of damages. 15 But if you find for Lawrence M. Destefano, you 16 should award Lawrence M. Destefano an award of 17 money that the greater weight of the evidence shows 18 will fairly and adequately compensate Lawrence M. 19 Destefano for such loss, injury or damage as the 20 greater weight of the evidence shows was caused by 21 the statements or publication complained of. 22 A statement or publication is a cause of loss, 23 injury or damage if it directly and in natural and 24 continuous sequence produces or contributes 25 substantially to producing such loss, injury or CENTRAL FLORIDA REPORTERS, INC. 2823 1 damage. If you find for Lawrence M. Destefano, you 2 shall consider the following elements of damage. 3 A, injury to reputation or health, shame, 4 humiliation, mental anguish, hurt feelings, any 5 injury to reputation or health and any shame, 6 humiliation, mental anguish and hurt feelings 7 experienced in the past or to be experienced in the 8 future. 9 There is no exact standard for fixing the 10 compensation to be awarded on account of such 11 elements of damage. Any award should be fair and 12 just in the light of the evidence. 13 The issues for your determination on the claim 14 of Lawrence M. Destefano against Orlando Regional 15 Healthcare System, Inc., are whether Orlando 16 Regional Healthcare System, Inc., made the 17 statements concerning Lawrence M. Destefano as 18 Lawrence M. Destefano contends, and if so, whether 19 the statements tended to expose Lawrence M. 20 Destefano to hatred, ridicule or contempt or tended 21 to injure Lawrence M. Destefano and his reputation 22 or charge that Lawrence M. Destefano committed a 23 crime. 24 In that regard, I instruct you that Kelly 25 Pipkin Gregg and Lillian Folley in performing any CENTRAL FLORIDA REPORTERS, INC. 2824 1 alleged acts were acting within the scope of their 2 agency at the time and place of the incidents 3 complained of. If the greater weight of the 4 evidence does not support the claim of Lawrence M. 5 Destefano on these issues, then your verdict should 6 be for Orlando Regional Healthcare System, Inc. 7 However, if the greater weight of the evidence 8 does support the claim of Lawrence M. Destefano in 9 those issues, then you shall consider the defense 10 of truth and good motives and the defense of 11 qualified privilege raised by Orlando Regional 12 Healthcare System, Inc. 13 On the first defense of Orlando Regional 14 Healthcare System, Inc., the issue for your 15 determination is whether the statements made by 16 Orlando Regional Healthcare System, Inc., was 17 substantially true and was made with good motives. 18 A statement is substantially true if its substance 19 or gist conveys essentially the same meaning that 20 the truth would have conveyed. 21 In making this determination, you should 22 consider the context in which the statement is made 23 and disregard any minor inaccuracies that do not 24 affect the substance of the statements. If the 25 greater weight of the evidence supports this CENTRAL FLORIDA REPORTERS, INC. 2825 1 defense, your verdict should be for Orlando 2 Regional Healthcare System, Inc. 3 If the greater weight of the evidence does not 4 support this defense, and the greater weight of the 5 evidence does support the claim of Lawrence M. 6 Destefano on the issues I previously mentioned, 7 then you shall consider the defense of privilege 8 raised by Orlando Regional Healthcare System, Inc. 9 Orlando Regional Healthcare System, Inc., had 10 a qualified privilege to make statements, even if 11 untrue, provided they did so with proper motives. 12 Such a privilege exists when information is 13 provided to anyone that has an interest in such 14 information, such as law enforcement or other 15 health care providers. 16 The issue for your determination is, 17 therefore, whether, as Lawrence M. Destefano 18 contends, Orlando Regional Healthcare System, Inc., 19 made the statements with improper motives abusing 20 that qualified privilege. One makes a false 21 statement about another with improper motives if 22 one's primary motive and purpose in making the 23 statements is to gratify one's ill will, hostility 24 and intent to harm the other rather than to advance 25 or protect Orlando Regional Healthcare System, CENTRAL FLORIDA REPORTERS, INC. 2826 1 Inc.'s, right or duty to speak to law enforcement 2 or other health care providers on that subject. 3 If the greater weight of the evidence does not 4 support the claim of Lawrence M. Destefano that 5 Orlando Regional Healthcare System, Inc., abused 6 any privilege they had, then your verdict should be 7 for Orlando Regional Healthcare System, Inc. 8 However, if the greater weight of the evidence does 9 support the claim of Lawrence M. Destefano that 10 Orlando Regional Healthcare System, Inc., abused 11 any privilege they had, then your verdict should be 12 for Lawrence M. Destefano in the total amount of 13 his damages. 14 If you find for Orlando Regional Healthcare 15 System, Inc., you will not consider the matter of 16 damages. But if you find for Lawrence M. 17 Destefano, you should award Lawrence M. Destefano 18 an amount of money that the greater weight of the 19 evidence shows will fairly and adequately 20 compensate Lawrence M. Destefano for such loss, 21 injury or damage as the greater weight of the 22 evidence showed was caused by the statements or 23 publication complained of. 24 A statement or publication is a cause of loss, 25 injury or damage if it directly and in natural and CENTRAL FLORIDA REPORTERS, INC. 2827 1 continuous sequence produces or contributes 2 substantially to producing such loss, injury or 3 damage. If you find for Lawrence M. Destefano, you 4 shall consider the following elements of damage. 5 A, injury to reputation or health, shame, 6 humiliation, mental anguish, hurt feelings, any 7 injury to reputation or health and any shame, 8 humiliation, mental anguish and hurt feelings 9 expressed in the past or to be experienced in the 10 future -- experienced in the past or to experienced 11 in the further, pardon me. 12 There is no exact standard for fixing the 13 compensation to be awarded on account of such 14 elements of damage. Any award should be fair and 15 just in the light of the evidence. 16 If you find for Lawrence M. Destefano but find 17 that no loss, injury or damage has been proved, you 18 may award nominal damages. Nominal damages are 19 damages of an inconsequential amount that are 20 awarded to vindicate a right where a wrong is 21 established but no damage is proved. 22 If you find for Lawrence M. Destefano and 23 against Rollins Bedford Corporation, you should 24 consider whether, in addition to compensatory 25 damages, punitive damages are warranted in the CENTRAL FLORIDA REPORTERS, INC. 2828 1 circumstances of this case as punishment and as a 2 deterrent to others. The trial of the punitive 3 damages issue is divided into two stages. In this 4 first stage, you will decide whether the conduct of 5 Rollins Bedford Corporation is such that punitive 6 damages are warranted. 7 If you decide that punitive damages are 8 warranted, we will proceed to the second stage 9 during which the parties may present additional 10 evidence and argument on the issue of punitive 11 damages. I will then give you additional 12 instructions, after which you will decide whether 13 in your discretion punitive damages will be 14 assessed, and if so, the amount. 15 Punitive damages are warranted if you find by 16 clear and convincing evidence that the conduct of 17 Rachel Bean, Mary Thornton and Carol Boze was a 18 substantial cause of loss, injury or damage to 19 Lawrence M. Destefano, and that such conduct 20 warrants punitive damages against them in 21 accordance with the standards I have mentioned, 22 then in your discretion you may also determine that 23 punitive damages are warranted against Rollins 24 Bedford. 25 If you find for Lawrence M. Destefano against CENTRAL FLORIDA REPORTERS, INC. 2829 1 Rollins Bedford Corporation, doing business as 2 Sunbelt Healthcare and Subacute Center, and you 3 also find that clear and convincing evidence shows 4 that the conduct of Rachel Bean was a substantial 5 cause of loss, injury or damage to Lawrence M. 6 Destefano, and that such conduct warrants punitive 7 damages against her in accordance with the 8 standards I have mentioned, then in your discretion 9 you may also determine that punitive damages are 10 warranted against Rollins Bedford Corporation, 11 doing business as Sunbelt Health Care and Subacute 12 Center. 13 Rollins Bedford Corporation is liable for 14 punitive damages if you find by the greater weight 15 of the evidence that Rachel Bean was a managing 16 agent of Rollins Bedford Corporation. A managing 17 agent is an officer or director of the corporation 18 or someone else who has the authority to bind the 19 corporation without a superior's consent. 20 If you find for Lawrence M. Destefano and 21 against Rollins Bedford, you should consider, in 22 addition to compensatory damages, punitive damages 23 are warranted in -- excuse me, I believe this has 24 already been given. Is that correct? 25 MS. PETRO: The first portion of it has, Your CENTRAL FLORIDA REPORTERS, INC. 2830 1 Honor. 2 THE COURT: Okay. Thank you. -- in addition 3 to compensatory damages, punitive damages are 4 warranted in the circumstances of this case as 5 punishment and as deterrent others. The trial of 6 the punitive damages issue is divided into two 7 stages. In this first stage you will decide 8 whether the conduct of Rollins Bedford is such that 9 punitive damages are warranted. 10 If you decide that punitive damages are 11 warranted, we will proceed to the second stage 12 during which the parties may present additional 13 evidence and argument on the issue of punitive 14 damages. I will then give you additional 15 instructions, after which you will decide whether 16 in your discretion punitive damages will be 17 assessed, and if so, the amount. 18 Punitive damages are warranted if you find by 19 clear and convincing evidence that Rollins 20 Bedford's primary purpose in making the statements 21 was to indulge ill will, hostility and an intent to 22 harm Lawrence M. Destefano. 23 In reaching your verdict you should not be 24 swayed from the performance of your duty by 25 prejudice, sympathy or any other sentiment for or CENTRAL FLORIDA REPORTERS, INC. 2831 1 against any party. Your verdicts must be based on 2 the evidence that has been received and the law on 3 which I have instructed you. Reaching your verdict 4 is exclusively your job. I cannot participate in 5 that decision in any way. 6 You should not speculate about how I evaluate 7 the testimony of any witness or any other evidence 8 in this case, and you should not think that I 9 prefer one verdict over another. Therefore, in 10 reaching your verdict, you should not consider 11 anything that I have said or done except for my 12 specific instructions to you. 13 When you retire to the jury room, you should 14 select one of your members to act as foreperson to 15 preside over your deliberations and sign your 16 verdict. Your verdict must be unanimous, that is 17 your verdict must be agreed by each of you. You 18 will be given one form of verdict which I shall 19 read to you now. 20 I'm going to send both the jury instructions 21 back with you and the verdict form. The verdict 22 form is printed on a piece of paper that has at the 23 top the designation of the court, the description 24 of the parties, it's called the style of the case, 25 and the case number and it's entitled verdict. CENTRAL FLORIDA REPORTERS, INC. 2832 1 We, the Jury, find as follows. Libel and 2 slander against Rollins Bedford Corporation. One, 3 did Lawrence Destefano show by the greater weight 4 of the evidence that he was libeled or slandered by 5 Rollins Bedford Corporation, and that the libel or 6 slander was a legal cause of damages to Lawrence 7 Destefano, and a place to check yes or no. 8 If your answer to one is no, then your verdict 9 shall be for Rollins Bedford Corporation and you 10 shall not answer question seven. If your answer to 11 question one is yes, then please answer question 12 two. 13 Two, what damages did Lawrence Destefano 14 suffer as a direct result of being libeled and 15 slandered by Rollins Bedford Corporation, and there 16 is a line for you to fill in that amount. Three, 17 did Rollins -- did Lawrence Destefano self-publish 18 the defamatory statements to third parties and 19 cause the damages that are alleged by him against 20 Rollins Bedford Corporation, yes or no. 21 If your answer to question three is no, then 22 please proceed to question seven. If your answer 23 to question three is yes, then please answer 24 question four. Four, what portion of Lawrence 25 Destefano's damages are attributable to his CENTRAL FLORIDA REPORTERS, INC. 2833 1 self-publication of the defamatory statements to 2 third parties, and there's a place for you to fill 3 in a percentage. 4 Next, libel and slander against Orlando 5 Regional Healthcare System, Inc., ORHS. Five, did 6 Lawrence Destefano show by the greater weight of 7 the evidence that he was libeled or slandered by 8 ORHS and that the libel or slander was a legal 9 cause of damages to Lawrence Destefano, yes or no. 10 If your answer to question six is no, then your 11 verdict shall be for ORHS. If your answer to 12 question five is yes, then please answer question 13 six. 14 Six, what damages did Lawrence Destefano 15 suffer as a direct result of being libeled and 16 slandered by ORHS, and a line for you to fill in 17 that amount. Then seven entitled punitive damages. 18 Under the circumstances of this case, please state 19 whether you find by clear and convincing evidence 20 that punitive damages are warranted against Rollins 21 Bedford Corporation, yes, no. There is a place for 22 the foreperson to sign and date the form. 23 When you have agreed on your verdict, the 24 foreperson acting for the Jury should date and sign 25 the appropriate form of verdict. You may now CENTRAL FLORIDA REPORTERS, INC. 2834 1 retire to consider your verdict. 2 MR. EVANS: Your Honor, may we approach? 3 THE COURT: Yes. Before you do, hold on a 4 minute. 5 (Whereupon there was had a discussion at the 6 Bench outside the hearing of the Jury.) 7 THE COURT: On question five, Bill, did he 8 show you the error? 9 MR. OSBORNE: That is a typo. 10 MR. EVANS: Yes. That should be reference to 11 ORHS five, not six. 12 THE COURT: Yeah. Anything else? 13 MR. EVANS: No, ma'am. 14 THE COURT: Any objections to the reading of 15 the jury instructions? 16 MS. PETRO: No, ma'am. 17 MR. EVANS: None. 18 MR. OSBORNE: No, ma'am. 19 (Whereupon the discussion at the Bench was 20 concluded, after which the following proceedings 21 were had.) 22 THE COURT: Before you retire to deliberate, 23 it is my duty and responsibility at this time to 24 identify and excuse the alternate juror, and that 25 is Ms. Guard. You are the alternate. So I would CENTRAL FLORIDA REPORTERS, INC. 2835 1 like for you to be taken back so you can get your 2 lunch, but you will not attend with the Jury to 3 deliberate this case. You will be excused. And if 4 you'll just wait while they step back, I'll give 5 you some further information. Thank you. Ladies 6 and Gentlemen, if you'll follow the deputy. 7 (Whereupon the Jurors exited the courtroom.) 8 THE COURT: All right. At ease, everyone. Be 9 seated. All right. I'm going to see you out, 10 Ms. Guard. I have a certification, verification of 11 jury service. I know I speak for the lawyers and 12 their clients when I say thank you so very much for 13 your attention these last few weeks and I'll see 14 you out this way. 15 (Off the record discussion was had.) 16 THE COURT: Please be seated, don't rise. All 17 right. There are no objections to the giving the 18 jury instructions? 19 MS. MARSHALL: No, Your Honor. 20 MR. EVANS: No. 21 THE COURT: All right. Is there anything else 22 to consider? I'm sending all the evidence back as 23 soon as we get somebody from the squad to come in 24 and we're a little shorthanded right now. I'm 25 going to send all the evidence back. CENTRAL FLORIDA REPORTERS, INC. 2836 1 MR. EVANS: May I inquire, did the Court 2 simply just do an interlineation on that? 3 THE COURT: I did. I just crossed it out and 4 put five there. I don't think there should be a 5 problem. 6 MR. EVANS: No, I just wanted to make sure we 7 didn't have to produce another -- 8 THE COURT: No. Anything else? Any 9 questions? 10 MR. OSBORNE: No, Judge. 11 THE COURT: Motions? Okay. All right. We'll 12 be in recess then until -- unless -- I guess it 13 wouldn't surprise me to get a question or two. And 14 so I'd ask if you -- just to be close or at least 15 to be available, you know, one or the other of you 16 two stay. If you have to go somewhere, 17 Mr. Osborne, just be close, please, so we can get 18 you on our cell phone. 19 MR. OSBORNE: I'll stick around. 20 THE COURT: You can leave your numbers, okay? 21 All right. Thank you. We're in recess. 22 (Whereupon, there was had a recess from 1:25 23 o'clock p.m., to reconvene at 5:23 o'clock p.m.) 24 THE COURT: The Jury is working diligently. 25 They want dinner, although I sort of have the CENTRAL FLORIDA REPORTERS, INC. 2837 1 feeling they might not need too much more time 2 beyond that because there was some discussion do we 3 really need an hour, yes, no. They have questions. 4 They wanted very badly to ask me the question in 5 there. 6 I said no, no, you can't do that, write it 7 down and send it out so I'm expecting it. They 8 also asked would I give them a five-minute phone 9 break so they can call their homes and just tell 10 their families they're going to be a little later 11 than they may have expected, which is fine, as long 12 as they don't discuss the case. They can make 13 some -- whatever arrangements they need to make. 14 Anybody have any problems with that? 15 MS. MARSHALL: No. 16 MR. OSBORNE: No. 17 MR. EVANS: No, Your Honor. 18 THE COURT: We'll just wait for the question 19 then. 20 (Off the record discussion was had.) 21 THE COURT: They're withdrawing their 22 question. We will get the menus back there to them 23 and I'll be standing by. We'll be in recess until 24 then. 25 (Whereupon, there was had a recess from 5:35 CENTRAL FLORIDA REPORTERS, INC. 2838 1 o'clock p.m., to reconvene at 7:14 o'clock p.m.) 2 THE COURT: Please be seated. I believe we 3 have a verdict. Bring in the Jury, please. 4 (Whereupon the Jury entered the courtroom.) 5 THE COURT: Ladies and Gentlemen of the Jury, 6 have you reached a verdict in this cause? Please 7 hand the verdict to the deputy. 8 THE CLERK: The case of the Circuit Court, 9 2000-CA-7265, Plaintiff, Lawrence M. Destefano, 10 versus Adventist Health Systems, Sunbelt, et. al. 11 Verdict. We, the Jury, find as follows. Libel and 12 slander against Rollins Bedford? Yes. Let me, 13 excuse me, read the question. 14 Did Lawrence Destefano show by the greater 15 weight of the evidence that he was libeled or 16 slandered by Rollins Bedford Corporation and that 17 the libel or slander was a legal cause of damages 18 to Lawrence Destefano? Yes. 19 What damages did Lawrence Destefano suffer as 20 a direct result of being libeled and slandered by 21 Rollins Bedford Corporation? One million. Number 22 three, did Lawrence Destefano self-publish the 23 defamatory statements to third parties and cause 24 the damages that are alleged by him against Rollins 25 Bedford Corporation? Yes. CENTRAL FLORIDA REPORTERS, INC. 2839 1 Number four, what portion of Lawrence 2 Destefano's damages are attributed to his 3 self-publication of the defamatory statements to 4 their parties? 50 percent. 5 Number five, did Lawrence Destefano show by 6 the greater weight of the evidence that he was 7 libeled or slandered by ORHS and that the libel or 8 slander was a legal cause of damages to Lawrence 9 Destefano? No. 10 Number six, under the circumstances of this 11 case, please state whether you find by clear 12 convincing evidence that the punitive damages are 13 warranted against Rollins Bedford Corporation? 14 Yes. So say we all this date of October 28th, 15 2005. And the Foreperson would be Robert Kiley? 16 Kiley, okay. 17 THE COURT: Mr. Osborne, do you wish to poll 18 the Jury? 19 MR. OSBORNE: Yes, Your Honor. 20 THE COURT: Madame Clerk. 21 THE CLERK: Tammy Benz, is this your verdict? 22 MS. BENZ: Yes. 23 THE CLERK: Patricia Breckling, is this your 24 verdict? 25 MS. BRECKLING: Yes. CENTRAL FLORIDA REPORTERS, INC. 2840 1 THE CLERK: Miguel Berrios, is this your 2 verdict? 3 MR. BERRIOS: Yes. 4 THE CLERK: Veronica Rodriguez, is this your 5 verdict? 6 MS. RODRIGUEZ: Yes. 7 THE CLERK: Robert Kiley, is this your 8 verdict? 9 MR. KILEY: Yes. 10 THE CLERK: And Nana Casillas, is this your 11 verdict? 12 MS. CASILLAS: Yes. 13 THE COURT: Ladies and Gentlemen of the Jury, 14 at this time I'm going to ask that you step back 15 into the jury room and I will provide you further 16 instructions forthwith. If you'd follow the deputy 17 back into the jury room, please. 18 (Whereupon the Jury exited the courtroom.) 19 THE COURT: Mr. Osborne, are you prepared now 20 to proceed with the second portion of the trial? 21 MR. OSBORNE: I am, Your Honor. 22 THE COURT: Ms. Marshall, are you prepared to 23 proceed? 24 MS. MARSHALL: Yes, Your Honor. 25 THE COURT: Mr. Osborne, is ORHS excused from CENTRAL FLORIDA REPORTERS, INC. 2841 1 any further participation herein? 2 MR. OSBORNE: Yes, Your Honor. 3 THE COURT: Okay. Are you over there, 4 Gentlemen? 5 MR. TOWNSEND: Yes, ma'am. 6 THE COURT: Counsel for ORHS, thank you. You 7 are excused. 8 MR. TOWNSEND: Thank you, Judge. 9 THE COURT: Would counsel approach the Bench 10 briefly? How many witnesses do you have to put on? 11 MR. OSBORNE: Only argument and a document 12 already in evidence. 13 THE COURT: Do you want to call witnesses? 14 MS. MARSHALL: Yes, Your Honor. 15 THE COURT: Who do you intend to call and how 16 many witnesses? 17 MS. MARSHALL: There's probably two, one being 18 Michelle Fetters, and then there's some financial 19 documents that we would also -- 20 THE COURT: Is that a separate witness or is 21 that -- are those documents that -- 22 MS. MARSHALL: There is another person that's 23 on -- I think there's two witnesses. 24 THE COURT: Are they here? 25 MS. MARSHALL: One is here. CENTRAL FLORIDA REPORTERS, INC. 2842 1 THE COURT: We got big trouble about what 2 we're going to do here because this has got to be 3 the same jury, and I have not made arrangements for 4 this Jury to come tomorrow. I'm in Washington 'til 5 Thursday night attending a business court 6 conference. 7 We can talk about whether they'll come back 8 Wednesday morning, but I've got a full docket. Are 9 you telling me you don't have your witnesses here? 10 MS. MARSHALL: No, Your Honor, not at 7:30 I 11 do not. 12 THE COURT: Well, we got a problem. 13 MS. MARSHALL: We've got one of our witnesses 14 here. 15 THE COURT: What are you going to do? 16 MS. MARSHALL: That's the only witness that I 17 have. 18 THE COURT: Can you call your other witness 19 and get him here? 20 MS. MARSHALL: I can try, yes. 21 THE COURT: Okay. I think you should do that. 22 I'll give you a brief recess to do that. We need 23 to get that witness down here. I think we need to 24 press ahead and get this done tonight. You're 25 just -- when the Jury comes in, Bill, you're going CENTRAL FLORIDA REPORTERS, INC. 2843 1 to say I have no witnesses, you'll introduce the 2 document into evidence, right? 3 MR. OSBORNE: It's already in evidence. 4 THE COURT: It's already in evidence? 5 MR. OSBORNE: Right. I have no additional -- 6 THE COURT: You would say I'm going to rely on 7 the evidence already in, right? 8 MR. OSBORNE: Correct. 9 THE COURT: You rest? 10 MR. OSBORNE: I rest. 11 THE COURT: And you'll call Fetters? How long 12 do you think she'll be on the stand? 13 MS. MARSHALL: Probably 15, 20 minutes. 14 THE COURT: Okay. I'm going to give you 15 or 15 20 minutes to see -- to get -- to compose get your 16 thoughts together and see if you can find the 17 second witness. 18 MS. MARSHALL: Okay. 19 THE COURT: If you can't, we're in a bit of a 20 pickle here, do you understand? 21 MS. MARSHALL: I understand. 22 THE COURT: Okay. All right. We'll be in 23 brief recess. Court will be in brief recess. Let 24 me say one thing, Ms. Marshall. I would just 25 say -- come here, Mr. Osborne, let me just say this CENTRAL FLORIDA REPORTERS, INC. 2844 1 to you. This doesn't need to be on the record. 2 (Off the record discussion was had.) 3 (Whereupon, there was had a recess from 7:22 4 o'clock p.m., to reconvene at 7:35 o'clock p.m.) 5 MS. MARSHALL: Your Honor, the exhibit that 6 was pre-marked as Plaintiff's Exhibit AB, the 7 version that -- this was supposed to be the 8 financial documents of Rollins Bedford. And the 9 version that got marked is the redacted version 10 that was produced before the Court had allowed the 11 amendment on punitive damages. 12 I thought that this, what was marked, was the 13 one with the numbers on it. So our office, we're 14 getting the financial documents that should have 15 been marked as this exhibit. It should be here 16 momentarily. 17 THE COURT: Okay. How about your second 18 witness? 19 MS. MARSHALL: We're going to have to do it 20 with just one witness, Your Honor. I can't get 21 anybody else here. 22 MR. OSBORNE: Judge, right now we're getting 23 the verdict form for the second phase. We're 24 getting it typed up right now. 25 THE COURT: How can you do that? Where are CENTRAL FLORIDA REPORTERS, INC. 2845 1 you getting it typed? 2 MR. OSBORNE: We're getting it typed with 3 Kathleen. Judge Hauser's JA was here and she's 4 helping us out with that. 5 THE COURT: So what do you need, Ms. Marshall, 6 another ten or 15 minutes? 7 MS. MARSHALL: I believe so, Your Honor, to 8 get those documents back to -- back here. 9 THE COURT: Counsel, approach the Bench. 10 (Whereupon a discussion was had at the Bench 11 outside the hearing of the court reporter.) 12 THE COURT: We'll be in brief recess for about 13 ten minutes. 14 (Whereupon, there was had a recess from 7:40 15 o'clock p.m., to reconvene at 8:02 o'clock p.m.) 16 THE COURT: Counsel approach the Bench. This 17 is off the record. 18 (Whereupon a discussion was had at the Bench 19 outside the hearing of the court reporter.) 20 THE COURT: Let's go on the record. We're 21 talking about a piece of evidence, a document 22 concerning financial information. Mr. Osborne's 23 objection -- let's just get this ironed out first. 24 Mr. Osborne objects because the document which was 25 listed on the Defense exhibit list was the redacted CENTRAL FLORIDA REPORTERS, INC. 2846 1 version not containing financial information. That 2 is the exhibit that was listed? 3 MS. MARSHALL: That was, yes. 4 MR. OSBORNE: It's a Plaintiff's exhibit, 5 Plaintiff's AB. 6 MS. MARSHALL: And the unredacted version I 7 believe was attached to the exhibit of their 8 expert, Mr. Brandon, the unredacted version. And 9 our -- and on our exhibit list are any and all 10 exhibits to the depositions so -- 11 THE COURT: Why doesn't that cover it? 12 MR. OSBORNE: I don't know who Mr. Brandon is. 13 MS. MARSHALL: He was somebody Joe Glick hired 14 as an expert for damages. 15 THE COURT: Let me just get this straight. So 16 you have a catch-all description that says any and 17 all documents listed as exhibits any deposition 18 taken in this case? 19 MS. MARSHALL: That's correct, that's correct. 20 THE COURT: And that was -- the unredacted 21 financial document was an exhibit to Glick's 22 expert's deposition? 23 MS. MARSHALL: That's correct. 24 MR. OSBORNE: If that's -- I didn't know that, 25 Judge. That was before my time. I'll accept that CENTRAL FLORIDA REPORTERS, INC. 2847 1 representation if that's the fact. 2 THE COURT: Okay. So now this document is 3 coming -- have you seen the document? 4 MR. OSBORNE: No. 5 THE COURT: Okay. Well, is it available that 6 he can look at it? 7 MS. MARSHALL: Yeah, I'm finding it. 8 THE COURT: You're finding it? Okay. Now, 9 you don't -- it wasn't -- 10 MS. MARSHALL: It's right there, we have it. 11 THE COURT: It's here in the courtroom? 12 MS. MARSHALL: Yes. And we're ready -- should 13 be ready to proceed, Your Honor. 14 THE COURT: Okay. Can you just show the 15 document to Mr. Osborne so he can -- 16 MS. MARSHALL: Yes, sure. 17 (Off the record discussion was had.) 18 THE COURT: Just so I'll be clear, at the 19 conclusion of the presentation of additional 20 evidence, I'm going to read jury instruction number 21 five and jury instruction number 25 and 26. 22 MR. OSBORNE: Don't we get argument, too, 23 Judge? 24 THE COURT: I said at the conclusion. I 25 didn't mean to -- I'm sorry, I didn't mean to imply CENTRAL FLORIDA REPORTERS, INC. 2848 1 that you're not going to get to argue. At the 2 conclusion of the presentation of additional 3 argument. And you don't want to make an opening 4 statement? 5 MR. OSBORNE: No, ma'am, no, ma'am. I'm only 6 talking about making closings. 7 THE COURT: How about that, Ms. Marshall, are 8 you going to make some kind of opening statement or 9 are you just going to jump right into the evidence? 10 MS. MARSHALL: We can go right into the 11 evidence, Your Honor. 12 THE COURT: And then I'll give you the 13 opportunity when both sides rest to argue to the 14 Jury. Give me a time frame on your argument. 15 MR. OSBORNE: Ten minutes. 16 THE COURT: Ten minutes and then five for 17 rebuttal? 18 MR. OSBORNE: Less. 19 THE COURT: Okay. You want to reserve -- 20 MR. OSBORNE: I'll take five, yeah, five for 21 rebuttal. 22 THE COURT: Okay. Ms. Marshall, can you do 23 your closing in ten minutes? 24 MS. MARSHALL: Yes, Your Honor. 25 THE COURT: I'm sorry, in 15 minutes? CENTRAL FLORIDA REPORTERS, INC. 2849 1 MS. MARSHALL: Yes, Your Honor. 2 THE COURT: Okay. And then I'll read -- are 3 you familiar with 25 and 26? 4 MR. OSBORNE: Yes, ma'am. 5 THE COURT: And these are acceptable? 6 MR. OSBORNE: Yes, ma'am. Which form of the 7 verdict are we going to do, do you know yet? Okay. 8 THE COURT: That's what we need talk about. 9 (Off the record discussion was had.) 10 THE COURT: What is left for the Court to 11 resolve, Ms. Petro? 12 MS. PETRO: Your Honor, we have a difference 13 in one word, and unfortunately I do not still have 14 my book of standard jury instructions here. 15 THE COURT: You have a difference in what? 16 Are we talking about the instruction? 17 MS. PETRO: Yes, Your Honor. 18 THE COURT: Which one, 25 or 26? 19 MS. PETRO: 26, Your Honor. 20 THE COURT: And which -- where is the -- where 21 is the matter in contention? 22 MS. PETRO: Your Honor, it is under number 23 one, the second bullet or star. 24 THE COURT: Whether the wrongful conduct was 25 motivated solely by unreasonable financial gain? CENTRAL FLORIDA REPORTERS, INC. 2850 1 MS. PETRO: The one below that, Your Honor. 2 THE COURT: Whether the unreasonable dangerous 3 nature of the conduct, together with the likelihood 4 of injury resulting from the conduct, was actually 5 known? 6 MS. PETRO: And the Plaintiff's reads 7 likelihood and mine reads high likelihood. I don't 8 believe I stuck that word in on my own, but without 9 the standard instruction in front of me I can't 10 represent to the Court which one is correct. 11 THE COURT: These are not -- these are not 12 mine so let me see if I can -- what is the number 13 of the standard? 14 MR. MCCOLLOUGH: PD-1, Judge. 15 THE COURT: Excuse me, PB-1? 16 MR. MCCOLLOUGH: PD-1, Your Honor. 17 THE COURT: Do you have your standards here, 18 Mr. Osborne? 19 MR. OSBORNE: No, Your Honor. 20 THE COURT: Okay. This is an old set that I 21 have. PD-1? 22 MR. MCCOLLOUGH: Yes, ma'am. 23 THE COURT: I'm sorry, I don't have a complete 24 set of the standards here. I'm going to have to go 25 to my office I guess. CENTRAL FLORIDA REPORTERS, INC. 2851 1 MS. PETRO: Your Honor, Mr. McCollough just 2 went back to get the book they were using when they 3 prepared the form verdict instruction. I believe 4 he'll be right back. 5 THE COURT: Okay. Come on, guys, let's get 6 this done, please. We got these people sitting 7 back there and they are tired. Have you found the 8 instruction? 9 MS. PETRO: I don't believe that is a current 10 set of the standard jury instructions, Your Honor. 11 It does not have the instruction that matches the 12 one we presented to the Court. 13 THE COURT: Well, for heaven's sake, somebody 14 find a current version of the standard instruction. 15 MR. MCCOLLOUGH: This is Judge Hauser's. I'm 16 presuming it's current. 17 UNIDENTIFIED PERSON: That's an old one. It's 18 not an updated one. 19 THE COURT: It's not? Can we please not have 20 participation from the audience? Court will be in 21 brief recess. 22 (Whereupon, there was had a recess from 8:20 23 o'clock p.m., to reconvene at 8:32 o'clock p.m.) 24 THE COURT: All right. Have you resolved the 25 dispute between 20 -- as to instruction number 26? CENTRAL FLORIDA REPORTERS, INC. 2852 1 MS. PETRO: I would say we have not, Your 2 Honor. 3 MR. OSBORNE: Judge, if we have a coin, I 4 would suggest we flip a coin and decide. 5 THE COURT: It's unconceivable to me that you 6 lawyers do not have the current jury instructions 7 here, it's just unconceivable. So we're quibbling 8 over one word now? 9 MR. OSBORNE: We'll go with theirs, Judge. 10 We'll accept theirs and go. 11 THE COURT: Okay. With a high likelihood? 12 MS. PETRO: Your Honor, may I approach the 13 Bench? 14 THE COURT: Is this a substitute now? 15 MS. PETRO: Yes, Your Honor. 16 THE COURT: Okay. 17 MS. PETRO: What I have, Your Honor, is the 18 sections are combined. 19 THE COURT: Sorry. I completely lost my 20 manners here. 21 MS. PETRO: That's all right. 22 THE COURT: Okay. Go ahead. 23 MS. PETRO: The Plaintiff had not originally 24 included the closing instructions for the second 25 stage. So what I presented to the Court is an CENTRAL FLORIDA REPORTERS, INC. 2853 1 excerpt out of ours. It doesn't say jury 2 instruction at the top. I don't believe that's 3 fatal. It's the agreed-upon language. But it also 4 includes the closing instructions for the second 5 stage of the bifurcated proceeding. 6 THE COURT: So subparagraph A should be read 7 when they come in. Subparagraph -- excuse me, 8 subparagraph one, subparagraph two -- paragraphs 9 two and three read to them upon the parties 10 resting? 11 MS. PETRO: I believe that is correct, Your 12 Honor. 13 THE COURT: And then can we now discuss the 14 verdict form, please? 15 MS. PETRO: It's been agreed. 16 MR. OSBORNE: We've agreed on that. 17 THE COURT: And which one is it? 18 MR. OSBORNE: The one that says if any. The 19 only difference is if any. 20 THE COURT: Well, why do I have so many of 21 them? 22 MS. PETRO: I believe there's possibly copies 23 for the parties as well, Your Honor. Thank you. 24 THE COURT: All right. Are we now ready to 25 proceed? CENTRAL FLORIDA REPORTERS, INC. 2854 1 MS. MARSHALL: Yes, Your Honor. 2 MR. OSBORNE: Yes, Your Honor. 3 THE COURT: Okay. And we resolved the issue 4 over the document? 5 MR. OSBORNE: We have. It turns out it wasn't 6 listed at all anyway so they're not going to 7 present the document. 8 MS. MARSHALL: Not going to present the 9 document itself. The witness -- 10 THE COURT: Will testify? 11 MS. MARSHALL: -- is going to use it to 12 refresh her memory. 13 THE COURT: Okay. You then are going to 14 present no evidence? 15 MR. OSBORNE: I'm presenting no new evidence. 16 THE COURT: Okay. Bring the Jury in, see what 17 happens. 18 (Whereupon the Jury entered the courtroom.) 19 THE COURT: Counsel approach the Bench. 20 (Whereupon there was had a discussion at the 21 Bench outside the hearing of the Jurors.) 22 THE COURT: Your client is already hanging 23 with a mistrial motion over his head. He just said 24 to the Jurors as they walked in thank you. 25 MR. OSBORNE: Okay. CENTRAL FLORIDA REPORTERS, INC. 2855 1 THE COURT: I'm going to excuse the Jurors 2 again. You better take him out of here, unless he 3 wants me to mistrial this case right now. 4 MR. OSBORNE: I will do it. 5 (Whereupon the discussion at the Bench was 6 concluded, and the following proceedings were had.) 7 THE COURT: Ladies and Gentlemen, I regret 8 that we're going to have to take about another five 9 minutes, and we'll try not to make it any more than 10 that. I'm sorry, you're going to have to go back 11 into the jury room. 12 (Whereupon the Jury exited the courtroom.) 13 THE COURT: We'll be in brief recess. 14 (Whereupon, there was had a recess from 8:37 15 o'clock p.m., to reconvene at 8:45 o'clock p.m.) 16 THE COURT: Mr. Destefano, if I see you 17 mouthing any words to the Jury, communicating to 18 the Jury in any way from this point forward, I will 19 mistrial this case. Do you understand me, sir? 20 MR. DESTEFANO: Yes, Your Honor. 21 MS. MARSHALL: Your Honor, at this time we'd 22 like to renew our Motion for Mistrial based on 23 Mr. Destefano having verbal conversation with the 24 Jury when they entered the room. 25 THE COURT: That motion -- I'll reserve on CENTRAL FLORIDA REPORTERS, INC. 2856 1 that to be considered at a later time with your 2 earlier motion. Let me say that for purpose of 3 clarity, what the Court observed Mr. Destefano 4 doing was saying -- not speaking anything out loud 5 but saying thank you, moving his mouth to the Jury. 6 That's improper. You may not do that. 7 MR. DESTEFANO: Yes, Your Honor. 8 THE COURT: Do you understand, sir? 9 MR. DESTEFANO: Yes, Your Honor. 10 THE COURT: All right. Let's bring the Jury 11 back. Let's get started. And I think we have a 12 clear record now about what -- I don't believe 13 anybody else saw that, I don't know. It doesn't 14 matter, the Court saw it. It's clear on the record 15 now that all the Court saw, there was nothing else, 16 and we'll continue now, press ahead and finish. 17 Bring the Jury in. 18 COURT DEPUTY: Yes, ma'am. 19 (Whereupon the Jury entered the courtroom.) 20 THE COURT: Be seated. Ladies and Gentlemen 21 of the Jury, the parties may now present additional 22 evidence related to whether punitive damages should 23 be assessed, and if so, in what amount. You should 24 consider this additional evidence, along with the 25 evidence already presented, and you should decide CENTRAL FLORIDA REPORTERS, INC. 2857 1 any disputed factual issues by the greater weight 2 of the evidence. Greater weight of the evidence 3 means the more persuasive and convincing force and 4 effect of the entire evidence in this case. 5 Mr. Osborne? 6 MR. OSBORNE: Your Honor, Plaintiff has no 7 additional testimony to present in the second phase 8 of this trial and we rest. 9 THE COURT: Ms. Marshall? 10 MS. MARSHALL: Your Honor, we call 11 Ms. Fetters. 12 MR. OSBORNE: Your Honor, I do have an 13 objection. My understanding is the documents were 14 being used to refresh her memory, therefore, they 15 can't be up there with her to refer to in any 16 fashion. 17 THE COURT: I'd ask you, if necessary, to show 18 her the documents as you come to them. Sustained. 19 MICHELLE FETTERS, 20 having been first duly sworn testified as follows: 21 DIRECT EXAMINATION 22 BY MS. MARSHALL: 23 Q Would you please state your name for the 24 record? 25 A Michelle Fetters. CENTRAL FLORIDA REPORTERS, INC. 2858 1 Q And, Ms. Fetters, are you an officer or 2 director of Rollins Bedford Corporation, doing business 3 as Sunbelt Health Care and Subacute Center? 4 A At this time I am, yes. 5 Q Okay. And what is your -- are you an officer 6 or director? 7 A I'm an officer and a director. 8 Q Okay. And do you have familiarity with the 9 financial statements of Rollins Bedford Corporation, 10 doing business as Sunbelt Health Care and Subacute 11 Center? 12 A I'm familiar with those for about the last 13 four or five years. 14 Q Okay. Basically what do you look at to assess 15 the overall health of Rollins Bedford Corporation, doing 16 business as Sunbelt Healthcare and Subacute Center? 17 A To assess the health of the facility 18 financially, I would look at the net income. 19 Q And can you tell us what net income is? 20 A Net income is what is left after all of the -- 21 after all of bills of the corporation, of the facility 22 are paid. 23 Q Okay. And can you tell us what the net income 24 is for the last four years? And do you need documents 25 to refresh your memory on that? CENTRAL FLORIDA REPORTERS, INC. 2859 1 A I could be more accurate -- 2 Q Okay. 3 A -- if I saw them. Do you want me to review 4 them? 5 Q Review them and -- let's start with the year 6 2000. After you review the document, if you could tell 7 us what the net income is for 2000. 8 MR. OSBORNE: She's going to read from the 9 document. That is not proper refreshing memory. 10 She could look at the document, put it aside and 11 see if she recalls. 12 THE COURT: Sustained. 13 A The loss -- they sustained a loss in that year 14 of approximately 590,000. 15 Q And what about 2001, do you recall off the top 16 of your head what that -- what the income was for that 17 year, the net income? 18 A They did not have income. It was another loss 19 around 720, 730,000 somewhere in there. 20 Q And what about 2002? 21 A That year they also suffered a loss around 22 565,000. 23 Q And 2003? 24 A That year was also a loss. It was right 25 around a 1,200,000 loss. CENTRAL FLORIDA REPORTERS, INC. 2860 1 Q Okay. And is there a reason why Rollins 2 Bedford Corporation, doing business as Sunbelt Health 3 Care and Subacute Center, has had financial losses for 4 the last five years? 5 A Yes. Number one, it is a non-profit 6 corporation. And that facility for many years has 7 taken -- provided a lot of community service in the 8 patients that it takes, many patients that don't have a 9 payor source or are here in the country from other 10 countries that don't qualify for state or federal aid. 11 And it has met the -- that facility met the 12 need of the community for ventilator patients when no 13 other skilled nursing facilities were. And those are 14 much more expensive patients to take care of, which that 15 facility did. 16 Q Okay. Does Rollins Bedford Corporation, doing 17 business as Sunbelt Health Care and Subacute Center, 18 have financial resources to pay a punitive damage award? 19 A No, ma'am. 20 Q What -- does it have any assets at this time? 21 A Not at this time, it has none. 22 MS. MARSHALL: Thank you. I have no further 23 questions. 24 THE COURT: Cross-examine, Mr. Osborne? 25 - - - - - CENTRAL FLORIDA REPORTERS, INC. 2861 1 CROSS EXAMINATION 2 BY MR. OSBORNE: 3 Q Ms. Fetters, what other entities are you an 4 officer or director in in your current -- with the 5 Adventist Health family of corporations? 6 MS. MARSHALL: Objection, relevancy. 7 THE COURT: Mr. Osborne, do you want to 8 respond? 9 MR. OSBORNE: Just trying to get a context of 10 her role in the companies and what her relationship 11 is. 12 THE COURT: Overruled. You may answer this 13 question. I don't know how far I'm going to let 14 you go with it. 15 A Can you restate the question, please? 16 MR. OSBORNE: Would you read it back, please, 17 madam court reporter? 18 (The record was read back as requested.) 19 A There's quite a few of them because many of 20 our facilities are HUD financed, therefore, HUD requires 21 each facility to have its own separate corporation. So 22 do you want me to go through all of 19 of them? 23 Q Just tell me there are 19, that'll be 24 sufficient. 25 A There are 19 facilities that have a corporate CENTRAL FLORIDA REPORTERS, INC. 2862 1 name of some sort I am an officer or director in, yes. 2 Q What was the gross revenue in 2001 for the 3 corporation, Rollins Bedford Corporation? What was the 4 gross revenue? 5 A I would have to refresh my memory. 6 Q Please do. 7 A For Sunbelt -- for Rollins Bedford Health Care 8 Center Orlando, the gross are revenue, which would be 9 before any expenses were paid, was approximately five 10 million. 11 Q For 2001? What year was that you just 12 refreshed your memory on? 13 A 2000. 14 Q Okay. What about 2001? 15 A For 2001, with -- prior to any expenses being 16 paid, it would be about six million. 17 Q How about 2002? 18 A Again, without any expenses being paid, around 19 seven million. 20 Q How about 2003? 21 A Again, without any expenses having been paid, 22 about seven million. 23 Q How about 2004? 24 A I don't have that document so I couldn't off 25 the top of my head tell you. It would be -- 2004 the CENTRAL FLORIDA REPORTERS, INC. 2863 1 facility only operated for half the year, so it would be 2 no more than approximately three million I would guess. 3 Q How does a company lose four million dollars 4 in four years and stay in business? 5 A As I said, it's provided a lot of community 6 service. And being a non-profit organization, we have 7 chosen to do that and paid for it with other means. 8 Q What other transfers of funds have been made 9 from Rollins Bedford to other Adventist Health entities 10 over these years? 11 A None to my knowledge. 12 Q What transfers have been made of funds from 13 these other entities into Rollins Bedford in this 2000 14 to 2005 time frame? 15 MS. MARSHALL: Objection, foundation. 16 THE COURT: Overruled. 17 A None to my knowledge. 18 Q Community service just means that charges were 19 not paid, is that correct, that charges were made but 20 not paid? 21 A No. Community service means that we have 22 chosen in that facility to offer services to the 23 community that -- community that are more expensive or 24 that other facilities will not offer because there is a 25 substantial number of patients that need that services, CENTRAL FLORIDA REPORTERS, INC. 2864 1 such as ventilator. 2 And when you take those patients, you get the 3 same reimbursement from the State as you would for just 4 a normal patient and the cost is three, four, five times 5 more. So that's -- when I say community service, I'm 6 talking patients who either don't have any type of 7 insurance or a high acuity patient that no other 8 facility will take. 9 Q These financial statements you've been using 10 to refresh your memory are prepared in-house, are they 11 not? 12 A Correct. 13 Q And the net expenses include charges against 14 corporation's revenue from other entities such as SHCC, 15 correct? 16 A I don't understand the question. 17 Q The net expenses include charges against the 18 corporation's revenue from other entities such as SHCC? 19 A It includes the cost of all the salaries and 20 wages of the employees that work there, yes. 21 Q Salaries and expenses such as yours are 22 included in this amount, too, isn't that true? 23 A No, that is not true. 24 Q Rollins Bedford performs services for other 25 companies other than Rollins Bedford? CENTRAL FLORIDA REPORTERS, INC. 2865 1 A No. 2 Q The financial documents you're testifying 3 about to refresh your memory have not been audited or 4 reviewed for accuracy by any outside accounting firm, 5 have they? 6 A That's correct. 7 Q As a not-for-profit corporation, you're not 8 permitted to make or retain profits, are you? 9 A That is correct. 10 Q In fact, if you were showing a profit on those 11 balance sheets you'd be in trouble, wouldn't you, as a 12 not-for-profit corporation? 13 A Not necessarily because they -- because being 14 non-profit doesn't mean you can't make profit. Profit 15 that you make has to be returned to the operation to 16 meet the needs of the patients and/or the community. In 17 these facilities, they did not make a profit and so that 18 was -- so none of their bottom line was returned. There 19 was nothing to return. 20 Q Rollins Bedford controls the bottom line, 21 don't they, in terms of what expenses are being paid 22 every year? 23 A I don't understand the question. 24 Q What is confusing about my question? 25 A Well, restate it and I'll -- CENTRAL FLORIDA REPORTERS, INC. 2866 1 Q Rollins Bedford can control the bottom line as 2 you determine what expenses are going to be deducted 3 from revenue each year, don't you? 4 A Yes. It's your basic expenses like salaries 5 and wages and electricity and food and -- I mean, it's 6 nothing out of the ordinary for a health care provider. 7 Q And as a company, you could go ahead and 8 reduce your expenses to show a profit if you were going 9 to be a true business, couldn't you, just to try to not 10 lose money every year? 11 A No. The expenses shown on these statements 12 are actually supported by bills, paid invoices. These 13 are not arbitrary expense numbers in any way. 14 Q That wasn't my question ma'am. My question 15 was if you're in a business, whatever the business is, 16 and your expenses exceed your revenue, don't you try to 17 cut your expenses so you can try to get a profit instead 18 of losing money? 19 A Not if cutting those expenses -- as a 20 non-profit organization, if we cut those expenses at the 21 harm of the patient, no, we will not. 22 Q Well, don't you agree with me there are ways 23 to cut costs in a business, such as a hospital, where 24 you don't harm the patient to save money, to try to get 25 a profit? CENTRAL FLORIDA REPORTERS, INC. 2867 1 A I can't speak to a hospital because I've not 2 worked in a hospital. I know in a skilled nursing 3 facility, and specifically the one that we're speaking 4 of, the costs that went into it are costs that if you 5 cut the costs, it would lead to harm to the type of 6 patients that that facility care for there. 7 Legitimate costs, it's the ventilator, it's 8 the beds they lay in, it's the food they eat. And to 9 reduce any of that would harm the patient. 10 Q You are not going to offer into evidence any 11 documents here tonight, are you, to evidence this loss 12 of money that Rollins Bedford is supposedly suffering, 13 isn't that true? 14 MS. MARSHALL: Objection, Your Honor. This 15 witness can't testify to what is or is not going to 16 be introduced into evidence. 17 THE COURT: Sustained. 18 BY MR. OSBORNE: 19 Q You did not prepare these documents that you 20 are looking at to refresh your memory, did you? Did you 21 prepare these documents? 22 A I did not prepare them, but at the time they 23 were prepared I reviewed them for accuracy. 24 Q When Rollins Bedford has need for funds, can 25 Rollins Bedford receive inter-corporate loans from SHCC CENTRAL FLORIDA REPORTERS, INC. 2868 1 and other entities such as Adventist Health System, 2 Sunbelt Health Care corporation? 3 A No. 4 MS. MARSHALL: Objection, relevancy. 5 THE COURT: Sustained. 6 BY MR. OSBORNE: 7 Q So what you're asking the Jury to do is take 8 your word on this, you just don't have any money to pay 9 punitive damages, isn't that what you're saying? 10 A Correct. 11 MR. OSBORNE: No further questions. 12 THE COURT: Redirect? 13 MS. MARSHALL: Just briefly. 14 - - - - - 15 REDIRECT EXAMINATION 16 BY MS. MARSHALL: 17 Q Ms. Fetters, can you explain what your role is 18 in looking at these yearly income statements? 19 A My role is to review them for the accuracy of 20 the statements and do they make sense. You know, if -- 21 when you work in the business long enough, you know 22 what's a reasonable number. We measure our costs on 23 per-patient-day costs. 24 And I review the per-patient-day costs to make 25 sure that it's not out of line with the industry and CENTRAL FLORIDA REPORTERS, INC. 2869 1 with other facilities. And that is something you learn 2 over the years. 3 Q Is this the type of information that you 4 normally review in the course of your position as an 5 officer and director of Rollins Bedford Corporation, 6 doing business as Sunbelt Health Care and Subacute 7 Center? 8 A Probably more in my position as a director, 9 not an officer. 10 Q I'm sorry, director? 11 A Yes. 12 MS. MARSHALL: Okay. Thank you. No further 13 questions. 14 THE COURT: Ladies and Gentlemen of the Jury, 15 do any of you have a question for this witness? 16 Ms. Fetters, you may return to your seat. 17 Ms. Marshall? 18 MS. MARSHALL: Your Honor, we have no other 19 witnesses to call. 20 THE COURT: The Defense would then rest? 21 MS. MARSHALL: Yes, Your Honor. 22 THE COURT: Mr. Osborne, do you have any 23 evidence? 24 MR. OSBORNE: No evidence, Your Honor. 25 THE COURT: Go ahead, you may address the CENTRAL FLORIDA REPORTERS, INC. 2870 1 Jury. 2 MR. OSBORNE: Members of the Jury, as the 3 Court instructed you, you are allowed to rely upon 4 the evidence you've already heard in determining 5 the amount of punitive damages, and you're allowed 6 to look to the additional evidence you heard here 7 as well, and you still make a decision about any 8 disputed factual issues. 9 I'm only going to ask you to think about one 10 additional document, it's already in evidence. 11 It's No. 20, Plaintiff's 20. And on Exhibit -- 12 this is a -- this is what Tamara Trimble talked 13 about. It's the corporate structure of Adventist 14 Health System. And if you get into this you'll 15 see -- 16 MS. MARSHALL: Objection, Your Honor, 17 relevancy. 18 THE COURT: The document's in evidence. 19 Overruled. 20 MR. OSBORNE: If you get into this document, 21 Exhibit 3 to this document is the key document. It 22 talks about Rollins Bedford Corporation. And the 23 document indicates that Rollins Bedford has one, 24 two, three, four, five hospitals. 25 And I think that you can remember that CENTRAL FLORIDA REPORTERS, INC. 2871 1 Ms. Fetters was talking about one hospital when she 2 was talking about these monies, this cash flow and 3 the gross revenues. So according to this document 4 in evidence through Tamara Trimble, there are five 5 such hospitals within the Rollins Bedford 6 Corporation. 7 You were instructed earlier in terms of 8 punitive damages, that punitive damages are used as 9 punishment. They're used as a deterrent. And the 10 evidence that you have already heard is what I'm 11 asking you to go back to, to rely upon in terms of 12 making your decision here. 13 And the key to that, you've heard before, 14 we've done it before, we've done it during the 15 trial, and we're going to do it again and again and 16 again. That's what punitive damages are for. And 17 the key there is you can as a Jury send a message 18 to the boardroom at Rollins Bedford Corporation 19 that says you can't do this to people. They need 20 to be punished. 21 Your role here on punitive damages is to 22 punish them. This is not compensation that you've 23 already awarded. This is punishment, this is a 24 deterrent. And the idea behind punitive damages is 25 to make an example out of Rollins Bedford CENTRAL FLORIDA REPORTERS, INC. 2872 1 Corporation, so that if other nursing homes get the 2 idea they want to do the same thing that Rollins 3 Bedford did, your verdict will stand out as a 4 standard in the community that you can't do this to 5 other people. 6 That if your verdict is resounding to the 7 community that other nursing homes will say look 8 what happened to Rollins Bedford. Maybe I should 9 think twice before I falsely report allegations of 10 abuse or before I falsely attempt to use this 11 umbrella, which is a very good umbrella for DCFS, 12 but to abuse that umbrella, to proceed forward on 13 my own motives, that can't happen. 14 And you're going to be given some instructions 15 about this and about what it is, what the standard 16 is to show that punitives are warranted here. And 17 it's more than just -- it's more than just can they 18 afford it, will you break the bank if you do this. 19 It's a lot more than that. The first element you 20 have to look at on the punitive damages is whether 21 the wrongful conduct was motivated solely by 22 unreasonable financial gain. 23 Now, I would suggest to you that you have 24 evidence of that you've already heard. And that is 25 the AHCA survey or -- the AHCA survey. And this is CENTRAL FLORIDA REPORTERS, INC. 2873 1 a matter of financial importance to the 2 corporation, not to have a bad record with the 3 State of Florida. 4 Because remember what the ramifications were 5 about Chuck Sherer, what he said. You can shut 6 down the facility. You don't have to take -- they 7 can tell you not to take patients. They can do 8 anything they want to if you have a problem. And 9 we have these 16 problems or badges that they had 10 just thought they'd gotten away with. 11 So the bottom line here is Rachel Bean and 12 these others were motivated by financial gain 13 because they didn't want the State of Florida down 14 their neck because of this wound dressing that was 15 not put on there and they reacted to that. That 16 was the -- that was the very reason how this whole 17 cascade of events got into place, that innocuous 18 note about no heel -- no wound dressing on Carolina 19 Destefano's heel. 20 The next element is as follows. Whether the 21 unreasonably dangerous conduct, nature of the 22 conduct, together with the likelihood of injury 23 resulting from the conduct, was actually known by 24 Rollins Bedford Corporation. Now, that is an easy 25 one. Let's talk first of all about the CENTRAL FLORIDA REPORTERS, INC. 2874 1 unreasonably dangerous nature of the conduct. 2 You saw firsthand what the dangerous nature of 3 that conduct was to make these accusations out of 4 whole cloth about Larry Destefano, these perverted 5 things they said about him, disimpacting his mother 6 causing her rectum to bleed, lying on top of her. 7 All of these things that were done was very 8 dangerous because it could destroy somebody. That 9 was Mr. Destefano's testimony. 10 And I think the testimony is very clear here 11 that Mr. Destefano has been very badly injured by 12 this conduct. He is not a whole person. He has 13 not grieved for his mother. He's been focused on 14 clearing his name because of this conduct. 15 And another part of that is did that conduct 16 cause Mr. Destefano to picket for over a year, and 17 has he been involved in litigation for the five 18 years since that time because of this very type of 19 conduct, and it all stems from this. This umbrella 20 that's supposed to protect people became a sword. 21 You give somebody the power to report, it's a 22 statutory right to report. You give them that 23 power and you give them a weapon. And they took 24 that weapon and they used it for the wrong purpose. 25 That's where the dangerous nature of the CENTRAL FLORIDA REPORTERS, INC. 2875 1 conduct comes in. Because truly it is guilty until 2 proven innocent, that's really what it is. Rachel 3 Bean knew what she was doing when she sicced DCFS 4 on Larry Destefano. She knew there was a 5 presumption of corruptness in that accusation that 6 was sufficient to throw Larry under the bus. 7 Sufficient because a nurse said -- and that's 8 an abuse of power. That is a flagrant abuse of 9 power, reporting out of ill will for improper 10 motives under this statute that is designed to 11 protect the patient, not to be used as a perversion 12 to accede to the whims of a director of nursing who 13 wants to get rid of a patient and get rid of 14 Mr. Destefano. 15 The likelihood of injury resulting from the 16 conduct here is obvious. The likelihood is you 17 take someone who's a sole caregiver of his mother 18 and you accuse him of the worst possible thing. 19 You accuse him of being sexually inappropriate with 20 his mother. You say those horrible things to DCFS. 21 You say the same thing to Orlando Regional Health 22 Center, and there's a likelihood that you're going 23 to injure somebody, particularly a man who just 24 devoted the last eight months of his life, to the 25 exclusion of everything else, being a caregiver for CENTRAL FLORIDA REPORTERS, INC. 2876 1 his mother, to then be separated from her under the 2 shadow and this cloud of being a sexual perpetrator 3 to his own mother in her twilight dying days. 4 That is what is so heinous about these acts. 5 And was this actually known by Rollins Bedford? 6 You heard at all already. Yes. What happened? 7 Rachel Bean talked to Chuck Sherer, the 8 administrator of Sunbelt Nursing home, Rollins 9 Bedford, before she made the call to DCFS. They 10 went over together. They conferred about it and 11 his word was, quote, I concurred with that decision 12 to do that. 13 You also knew that Chuck Fetters -- that Chuck 14 Sherer talked to Michelle Fetters, who was just the 15 witness for the second time in front of you here, 16 who was in Hawaii on vacation and she said, quote, 17 you're doing everything right, close quote. That's 18 what she said. 19 So was it actually known by Rollins Bedford? 20 Yeah. You got the director of nursing, the head 21 nurse on site, you got the administrator at the 22 facility, and then you got Michelle Fetters at the 23 top of that, the regional director at the time of 24 that facility and many other facilities. So, yes, 25 it was actually known. CENTRAL FLORIDA REPORTERS, INC. 2877 1 The next standard to look at is whether at the 2 time of injury or damage Rollins Bedford had a 3 specific intent to harm Lawrence Destefano. That 4 is an easy one, too. It goes back to the smoking 5 gun in this case, and I'm sure you figured this 6 out, is Connie Standish. We've done it before. 7 We're going to say he was sexually inappropriate 8 with his mother and they did it. And they say 9 we're going to do it again. 10 So you have probably a -- unlike any other 11 case that -- of defamation, you have a person who 12 came forward and gave you the motive and gave you 13 the fact that they had a specific intent to harm 14 Larry Destefano. It's right there. 15 And then you've got the other -- the last part 16 of this element and the conduct of Rollins Bedford 17 did in fact harm Lawrence Destefano. And I know 18 that Lawrence Destefano himself was the best 19 witness of that. A tormented man, a man who is 20 truly a groundhog day person every day. He 21 relieves these events every day. 22 And I think there's no question that given the 23 context of how these accusations were made, the 24 callousness under which they were made, that there 25 was harm done to Lawrence Destefano. And the only CENTRAL FLORIDA REPORTERS, INC. 2878 1 evidence you have of that harm, that's undisputed, 2 is Dr. Krop. They didn't present any evidence to 3 say, oh, he's okay. We got our own psychiatrist to 4 say he's okay. Dr. Krop says he's messed up, and 5 he's going to be even more messed up when this 6 lawsuit is resolved and he has nothing to focus his 7 life on. 8 Another element is the Defendant's financial 9 resources. 10 THE COURT: That's ten minutes, Mr. Osborne. 11 MR. OSBORNE: Thank you, Your Honor. And that 12 I will just suggest to you that we're talking about 13 five nursing homes here, and that you should 14 consider the source of that information, the 15 credibility of the source of that information being 16 Michelle Fetters. You heard her on the first phase 17 of this trial. Consider the source when she comes 18 in here and says, gee, we don't have the money, 19 sorry. Don't sink us with any punitive damages, we 20 can't afford it. Consider the source on that when 21 you make that decision. 22 The last thing is it's back to your common 23 sense. Any other circumstances which may affect 24 the amount of punitive damages. That's for you to 25 decide, what other circumstances, your ball game. CENTRAL FLORIDA REPORTERS, INC. 2879 1 I'll have a few minutes to talk with you after the 2 closing argument by Ms. Marshall. I'm reserving my 3 time for that. Thank you for your attention. 4 THE COURT: Three minutes reserved, 5 Mr. Osborne. Ms. Marshall, you have 15 minutes. 6 MS. MARSHALL: Ladies and Gentlemen of the 7 Jury, in assessing punitive damages, the Court is 8 going to instruct you to look at whether the 9 wrongful conduct was motivated solely by 10 unreasonable financial gain. There has been 11 absolutely no testimony, no evidence in this case 12 that anything that was done by Nurse -- Nurses 13 Bean, Boze and Thornton were for any kind of 14 financial gain. There's just been no evidence of 15 that whatsoever. 16 The other thing that the Jury should consider 17 is none of those nurses currently work or currently 18 employed by Rollins Bedford Corporation and neither 19 is Chuck Sherer. Finally, the Judge will instruct 20 you that you need to consider the Defendant's 21 financial resources. This is a non-profit 22 corporation. This is a nursing home that provides 23 services in the community that other facilities 24 won't provide. It takes patients, as Michelle 25 Fetters testified to, that other facilities won't CENTRAL FLORIDA REPORTERS, INC. 2880 1 take because of the inability to pay. 2 Mr. Osborne has not produced any evidence 3 whatsoever regarding their financial resources. 4 The testimony that you've heard is from Michelle 5 Fetters on their financial sources which show 6 significant losses each and every year because of 7 the community service that Rollins Bedford has done 8 for the community. So, therefore, I would request 9 you, the Jury, to assess punitive damages in the 10 amount of zero. Thank you. 11 MR. OSBORNE: No rebuttal, Your Honor. 12 THE COURT: Ladies and Gentlemen, you may now 13 determine the amount of punitive damages, if any, 14 to be assessed as punishment and as a deterrent to 15 others. The amount would be in addition to the 16 compensatory damages you have previously awarded. 17 In making this determination you should 18 consider the following. One, the nature, extent 19 and degree of misconduct and the related 20 circumstances, including the following. Whether 21 the wrongful conduct was motivated solely by 22 unreasonable financial gain. Whether the 23 unreasonably dangerous nature of the conduct, 24 together with the high likelihood of injury 25 resulting from the conduct, was actually known by CENTRAL FLORIDA REPORTERS, INC. 2881 1 Rollins Bedford Corporation. 2 Whether at the time of injury or damage 3 Rollins Bedford Corporation had a specific intent 4 to harm Lawrence Destefano, and the conduct of 5 Rollins Bedford Corporation did in fact harm 6 Lawrence Destefano. And, two, the Defendant's 7 financial resource and, three, any other 8 circumstances which may affect the amount of 9 punitive damages. You may in your discretion 10 decline to assess punitive damages. 11 Your verdict on the issues raised by the 12 punitive damages claim of Larry -- I beg your 13 pardon, of Lawrence Destefano against Rollins 14 Bedford Corporation must be based on the evidence 15 that has been received during the trial of the 16 first phase of this case, and on the evidence that 17 has been received in these proceedings and the law 18 on which I have instructed you. 19 In reaching your verdict, you are not to be 20 swayed from the performance of your duty by 21 prejudice or sympathy for or against any party. 22 Your verdict must be unanimous, that is your 23 verdict must be agreed to by each of you. You will 24 be given a form of verdict which I shall read to 25 you now. CENTRAL FLORIDA REPORTERS, INC. 2882 1 Again, this designates the court, the case 2 number and the style of the case, which was the 3 Plaintiff, Mr. Destefano, and the original -- all 4 of the original Defendant parties, although the 5 only remaining Defendant is now Rollins Bedford 6 Corporation, d/b/a Sunbelt Healthcare and Subacute 7 Center. And this is entitled Verdict. We, the 8 Jury, find as follows. 9 What is the total amount of punitive damages, 10 if any, which you assess against Defendant Rollins 11 Bedford Corporation, and a line for you to fill in 12 that amount should you so find. So say we all, a 13 place for the foreperson to sign and date the 14 verdict form. 15 When you have agreed on your verdict, the 16 foreman acting for the Jury should date and sign 17 the verdict. And you may now retire to consider 18 your verdict. I will send back, as I have 19 previously, the jury instructions for your 20 information should you need to consult them and the 21 verdict form. 22 (Whereupon the Jury exited the courtroom.) 23 THE COURT: Court will be in recess. 24 MR. OSBORNE: Judge, may I send the evidence 25 back again? Don't they get a chance to look at it? CENTRAL FLORIDA REPORTERS, INC. 2883 1 THE COURT: Yeah, I guess we should. 2 MR. OSBORNE: I think we have to. 3 THE COURT: Yes, you're right, Mr. Osborne. 4 (Whereupon, there was had a recess from 9:00 5 o'clock p.m., to reconvene at 9:47 o'clock p.m.) 6 THE COURT: I believe the Jury has reached a 7 verdict. 8 COURT DEPUTY: Yes, ma'am. 9 THE COURT: Bring the Jury in, please. 10 COURT DEPUTY: Yes, ma'am. 11 THE COURT: Thank you. 12 (Whereupon the Jury entered the courtroom.) 13 THE COURT: Ladies and Gentlemen of the Jury, 14 have you reached a verdict? 15 MR. KILEY: Yes. 16 THE COURT: Would you hand it to the Deputy, 17 please? 18 THE CLERK: In case number 2000-CA-7265, 19 Plaintiff, Lawrence M. Destefano, versus Defendant, 20 Adventist Health Systems, Sunbelt Care Corporation, 21 et. al. The verdict. We, the Jury, find as 22 follows. What is the total amount of punitive 23 damages, if any, which you assess against 24 Defendants, Rollins Bedford Corporation? One 25 million dollars. So say we all dated October 28th, CENTRAL FLORIDA REPORTERS, INC. 2884 1 2005. Foreperson, Robert Kiley, Jr. 2 THE COURT: Mr. Osborne, do you wish to poll 3 the Jury? 4 MR. OSBORNE: Yes, Your Honor. 5 THE CLERK: Nana Casillas, is this your 6 verdict? 7 MS. CASILLAS: Yes. 8 THE CLERK: Robert Kiley, Jr., is this your 9 verdict? 10 MR. KILEY: Yes. 11 THE CLERK: Veronica Rodriguez, is this your 12 verdict? 13 MS. RODRIGUEZ: Yes. 14 THE CLERK: Miguel Berrios, is this your 15 verdict? 16 MR. BERRIOS: Yes. 17 THE CLERK: Patricia Breckling, is this your 18 verdict? 19 MS. BRECKLING: Yes. 20 THE CLERK: Tammy Benz, is this your verdict? 21 MS. BENZ: Yes. 22 THE COURT: Ladies and Gentlemen, on behalf of 23 the parties, lawyers and the people of the state of 24 Florida, I wish to thank you for your time and 25 consideration of this case. I also wish to advise CENTRAL FLORIDA REPORTERS, INC. 2885 1 you of some very special privileges enjoyed by 2 jurors. 3 No juror can be required to talk about the 4 discussions that occurred in the jury room except 5 by court order. For many centuries our society was 6 relied upon jurors for consideration of difficult 7 cases. We have recognized for hundreds of years 8 that a jury's deliberations, discussions and votes 9 should remain their private affair as long as they 10 wish it. 11 Therefore, the law gives you a unique 12 privilege not to speak about the jury's work. The 13 lawyers and their representatives are not permitted 14 to initiate any communication with you about the 15 trial. However, you may speak to the lawyers or 16 anyone else about the trial. You also have the 17 right to refuse to speak with anyone. A request 18 may come from those who are simply curious or from 19 those who might seek to find fault with you. 20 It will be up to you to decide whether to 21 preserve your privacy of the Jury. Ladies and 22 Gentlemen, the deputies are going to escort you to 23 your car. If you would step back into the jury 24 room, I will return there briefly to say goodbye 25 and to address any questions you might have. For CENTRAL FLORIDA REPORTERS, INC. 2886 1 the time being, your service to this Court and to 2 this case is concluded. Thank you. 3 (Whereupon the Jury exited the courtroom.) 4 THE COURT: And be seated. Ms. Marshall, the 5 Court has taken under advisement and will hear 6 further from you on your motions -- your pending 7 Motions for Mistrial if you wish to address those 8 further. I would suggest that you brief those. If 9 you'd like to request a hearing you may do that. 10 Otherwise I ask you, do you have any further 11 motions to make at this time? 12 MS. MARSHALL: Your Honor, we do. We would 13 move to set aside the verdict as being outside of 14 the evidence presented and move for a remittitur of 15 the verdict as being outside of the evidence 16 presented. 17 THE COURT: I'll reserve on that. I'd like 18 for you to file that in writing, and I'll hear 19 further on a hearing to be scheduled on any 20 post-trial motions that occur. I'd ask that you 21 first submit them in writing and then I'll consider 22 whether a hearing would be necessary, whether a 23 response would be required from Plaintiff's 24 counsel. Other than that, do you have anything 25 further? CENTRAL FLORIDA REPORTERS, INC. 2887 1 MS. MARSHALL: No, Your Honor. 2 THE COURT: Mr. Osborne? 3 MR. OSBORNE: No, Your Honor. 4 THE COURT: This Court is in recess. 5 (The proceedings were concluded at 9:53 6 o'clock p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 2888 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.