499 1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND 2 FOR ORANGE COUNTY, FLORIDA 3 LAWRENCE M. DESTEFANO, 4 Plaintiff, 5 vs. CASE NO.: CI-00-7265 DIVISION: 32 6 ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE 7 CORPORATION; ADVENTIST HEALTH SYSTEM/SUNBELT, INC.; SUNBELT 8 HEALTH CARE CENTERS, INC.; ROLLINS BEDFORD CORPORATION, 9 d/b/a SUNBELT HEALTHCARE & SUBACUTE CENTER; SHCC 10 SERVICES, INC., and ORLANDO REGIONAL HEALTHCARE SYSTEM, 11 INC., 12 Defendants. 13 ------------------------------------------------------ 14 VOLUME V 15 (Pages 499 through 585) 16 Continued transcript of proceedings held before the 17 Honorable Renee Roche, Judge of the Circuit Court, Orange 18 County, Florida, on Tuesday, October 18, 2005, beginning 19 at 9:00 a.m., at the Orange County Courthouse, Orlando, 20 Florida, before Laura J. Landerman, R.M.R., C.R.R., and 21 Notary Public, State of Florida at Large. 22 23 24 25 500 1 A P P E A R A N C E S: 2 WILLIAM G. OSBORNE, ESQUIRE TERRY McCULLOUGH, Legal Assistant 3 William G. Osborne, P.A. 538 East Washington Street 4 Orlando, Florida 32801 and 5 BRADLEY CONWAY, ESQUIRE 390 North Orange Avenue 6 Orlando, Florida 32801 7 For the Plaintiffs, 8 TRACY A. MARSHALL, ESQUIRE DYANA L. PETRO, ESQUIRE 9 Gray Robinson 301 East Pine Street -- Suite 1400 10 Orlando, Florida 32801 11 For the Defendant, Adventist Health System, 12 LARRY J. TOWNSEND, ESQUIRE 13 DAVID EVANS, ESQUIRE Mateer & Harbert 14 Landmark Center II -- Suite 600 225 East Robinson Street 15 Orlando, Florida 32801 16 For the Defendant, Orlando Regional Healthcare System, Inc., 17 18 19 20 21 22 23 24 25 501 1 I N D E X 2 PLAINTIFF'S MOTION FOR MISTRIAL RE: JUROR 502 3 TESTIMONY OF CAROL BOZE MELASHENKO 4 Direct Examination by Mr. Osborne 502 Cross-Examination by Ms. Marshall 567 5 CERTIFICATE OF REPORTER 585 6 7 E X H I B I T S (In Evidence) 8 Plaintiff's Exhibit No. 1 507 Plaintiff's Exhibit No. 2 509 9 Plaintiff's Exhibit No. 3 514 Plaintiff's Exhibit No. 4 528 10 Plaintiff's Exhibit No. 5 533 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 502 1 (Continued from Volume IV) 2 MR. OSBORNE: Judge, we have another motion to 3 make at this time before we bring them in. I move 4 for a mistrial, Judge. I don't know what this juror 5 has said to the other jurors and to what effect it 6 has. I think this is an extremely detrimental state 7 of mind for a juror to be in after hearing openings. 8 I think it's a prejudgment on the situation. She's 9 in fear of her life because of what she's heard, and 10 I don't know that juries don't talk about these 11 things, and I think there is a taint to the jury 12 pool, and I move for a mistrial. 13 THE COURT: That motion is denied. 14 (Jury enters.) 15 THE COURT: Please be seated. Plaintiff, call 16 your first witness. 17 MR. OSBORNE: Plaintiff calls Carol Boze. 18 - - - - - 19 CAROL BOZE MELASHENKO, LPN 20 having been first duly sworn testified as follows: 21 DIRECT EXAMINATION 22 BY MR. OSBORNE: 23 Q State your full name for the Court and the 24 jury, please. 25 A Carol Melashenko. 503 1 Q Were you formerly known by a different name? 2 A Yes, I was. 3 Q What was your name known by before? 4 A Carol Boze. 5 Q What is your profession or occupation? 6 A I'm a licensed practical nurse. 7 Q Have you worked at Sunbelt in Orlando in 8 September of 1999? 9 A Yes, I did. 10 Q And was your employer there SHC&S -- let me 11 strike that. These are hard for me to remember too. 12 Was your employer Rollins Bedford Corporation 13 d/b/a Sunbelt Health Care and Subacute Center? 14 A Yes, it was. 15 Q Thanks. Have you reviewed your nursing notes 16 before coming in here to testify today? 17 A Yes, I have. 18 Q And before I ask you about these events that 19 unfolded back in September of 1999, I want to ask you a 20 couple background questions. Are you nervous about being 21 here today? 22 A No, I'm not. 23 Q Would you like to get this behind you, these 24 events? 25 A I'm fine with everything. 504 1 Q Okay. Before I go into this, I'd like to give 2 you one opportunity, Ms. Boze, or Ms. Melashenko, to tell 3 the truth in this case. Your notes about Larry Destefano 4 being sexually inappropriate with his mother were 5 dictated to you by Rachel Bean, correct? 6 MS. MARSHALL: Objection, Your Honor. 7 THE COURT: Grounds? 8 MS. MARSHALL: The preface on his statement. 9 THE COURT: Overruled. 10 BY MR. OSBORNE: 11 Q Is that correct? 12 A I was instructed by Rachel Bean, yes. 13 Q It didn't really happen, did it? 14 A Yes, it did happen. 15 Q Now, you were subpoenaed to be here in late 16 August of this year, were you not, by my office? 17 A Yes, sir. 18 Q And you called my office and you talked to one 19 of my staff, didn't you? 20 A Yes, sir. 21 Q You wanted to know why you were being called 22 into court? 23 A Yes, sir. 24 Q And you told my staff that you were not going 25 to be a nice person if we put you on the stand? 505 1 A I don't recall saying that. 2 Q And you said that if we called you, that you 3 were going to ruin him, meaning Mr. Destefano. Do you 4 remember that? 5 A No, I do not. 6 Q I'm going to show you a document, and at this 7 point in time this is a document which is Plaintiff's 27 8 or ID V. 9 MR. OSBORNE: Judge, I have a subpart of that. 10 I don't think there's any dispute it's in a larger 11 file. For sake of time, I could have this marked as 12 a subpart of the other file, and we can talk about 13 it with the witness. 14 THE COURT: You want to have it admitted 15 separately or -- 16 MR. OSBORNE: Yes. 17 THE COURT: Go ahead. 18 THE CLERK: Here's all the plaintiffs right 19 here. 20 MR. OSBORNE: Your Honor, this is -- according 21 to the list we have, this is a personnel file 22 exhibit, and I think for the sake of -- 23 THE CLERK: They're all here. 24 MR. OSBORNE: It is marked V. All right, Your 25 Honor. Let me just show Exhibit V to the witness 506 1 and see if she recognizes it. May I approach the 2 witness, Your Honor? 3 THE COURT: Yes. 4 BY MR. OSBORNE: 5 Q (Handing document to witness.) What is 6 Exhibit V? 7 A It's an application, my employment application 8 for Sunbelt Health Care. 9 Q And what else is contained in that? Is that 10 your personnel file? 11 A Yes, sir. 12 Q I'd like you to find in your personnel file 13 the resource manual, and your job descriptions are listed 14 as a licensed practical nurse. 15 A Uh-huh. 16 MR. OSBORNE: I would move the exhibit into 17 evidence, Your Honor, as plaintiff's first exhibit. 18 MS. MARSHALL: Objection, Your Honor, 19 relevancy to move that whole thing into evidence. 20 THE COURT: Sustained at this time. 21 BY MR. OSBORNE: 22 Q Let me show you a subpart of that, Ms. Boze, 23 or Ms. Melashenko, and ask you if the resource manual 24 containing your job descriptions as an LPN is contained 25 within your personnel file? 507 1 A It should be. 2 MR. OSBORNE: I would move the subpart into 3 evidence, Your Honor. I'm going to ask her some 4 specific questions about her job description as an 5 LPN. 6 MS. MARSHALL: Is that the four pages that you 7 handed me? 8 MR. OSBORNE: Correct. 9 MS. MARSHALL: No objection. 10 THE COURT: Any objection? 11 MR. TOWNSEND: No, Your Honor. 12 THE COURT: It will be admitted, then, as -- 13 THE CLERK: Plaintiff's 1. 14 THE COURT: -- Plaintiff's 1. 15 (Plaintiff's Exhibit No. 1 was admitted.) 16 BY MR. OSBORNE: 17 Q Mrs. Melashenko, in terms of the -- 18 THE COURT: She needs to mark it. 19 MR. OSBORNE: I've got a copy for the clerk to 20 mark. 21 THE COURT: Thank you. That would be the 22 exhibit, and you can work off of the copies that you 23 have. 24 MR. OSBORNE: I've also got a copy for the 25 Court if you want to see it. 508 1 THE COURT: That's okay. 2 BY MR. OSBORNE: 3 Q According to your job description at Sunbelt 4 Health Care Center, Inc., as a licensed practical nurse, 5 you had a specific requirement, did you not, to have an 6 ability to keep records and make reports? 7 A Yes. 8 Q And you also were charged as a licensed 9 practical nurse to maintain accurate and complete records 10 of nursing care and reports? 11 A Yes. 12 Q And to report significant observations to the 13 charge nurse RN designee -- 14 A Yes. 15 Q -- or physician or family of pertinent changes 16 in the resident's condition? 17 A Yes. 18 Q And part of the procedure is that any refusal 19 to perform these duties as outlined may result in 20 disciplinary action, correct? 21 A Yes, that's correct. 22 MR. OSBORNE: I have another subpart of that 23 exhibit, Your Honor, that I'm going to have 24 separately -- that I'll show the witness separately 25 as well. 509 1 BY MR. OSBORNE: 2 Q Let me show you, Ms. Boze, what is titled 3 "Employee In-Service Record." Is this a part of your 4 personnel file that you have in front of you there? 5 A Yes, it is. 6 MR. OSBORNE: I would move this into evidence, 7 Judge, as Plaintiff's Exhibit 2. 8 THE COURT: Any objection? 9 MS. MARSHALL: No objection. 10 MR. TOWNSEND: No objection, Your Honor. 11 THE COURT: It will be admitted as 12 Plaintiff's 2. 13 (Plaintiff's Exhibit No. 2 was admitted.) 14 BY MR. OSBORNE: 15 Q Now, the employee in-service record is a 16 record that shows what type of training you have received 17 while at Sunbelt Nursing Home? 18 A Yes, sir. 19 Q And one of the training that you received was 20 on October 7th of '98 regarding resident rights? 21 A Yes, sir. 22 Q And another training that you had was on 23 10/7/98, investigating grievances and compliance? 24 A Yes, sir. 25 Q And another one was abuse reporting and 510 1 complaints also on 10/7/98, correct? 2 A Yes, sir. 3 Q Now, when you had your in-service training on 4 abuse reporting and compliance, did they go over the 5 Chapter 415 requirements with you -- 6 A Yes, they did. 7 Q -- under "Adult Protective Services"? 8 A Yes, they did, from what I recall. 9 Q And you were informed in that in-service 10 training that if you knew or had reasonable cause to 11 suspect that a vulnerable adult had been abused, 12 neglected or exploited, you were to immediately report 13 such knowledge or suspicion to the central abuse hotline, 14 correct? 15 A Best of my recall. 16 Q Would you like to review the statute to 17 refresh you or is that what -- would you accept that? 18 A No, I'm fine. 19 Q And this statute, to your understanding, 20 applies to nursing homes, does it not? 21 A Yes, it does. 22 Q Applies to LPNs as well? 23 A Yes, it does. 24 Q Isn't it true that you would normally chart 25 any unusual event involving a patient contemporaneously 511 1 with when you observed it? 2 A Yes. 3 Q And you normally do this unless something came 4 up that was unexpected? 5 A That's correct. 6 Q And then you couldn't do it? 7 A Right. 8 Q On November 20th -- excuse me. On September 9 20th, 1999, you worked the 3:00 to 11:00 shift? 10 A That's correct. 11 Q Margarita Walters was your 3:00 to 11:00 12 supervisor on the shift? 13 A Yes, she was, from what I recall, yes. 14 Q And on 9/20/98, you came on duty at 2:41 p.m.? 15 A From what I remember, yes. It's been a while. 16 Q Okay. Between 5:00 and 6:00 in the evening, 17 you were bringing the supper trays in to Carolina 18 Destefano's area and the door was closed, correct? 19 A From what I recall, yes. 20 Q You knocked on the door, and there was no 21 answer? 22 A Correct. 23 Q You knocked on the door again, and there was 24 still no answer? 25 A Correct. 512 1 Q So you went ahead and opened the door and 2 observed Mr. Destefano being in bed with his mother? 3 A That's correct. 4 Q You actually knocked loudly three to four 5 times? 6 A Yes, I did, from what I recall. 7 Q And you found that Mr. Destefano was lying on 8 top of his mother inappropriately kissing her? 9 A That's correct. 10 Q He was lying fully on top of her? 11 A That's correct. 12 Q Kissing her on the mouth very passionately? 13 A That's correct. 14 Q And the plaintiff's head, excuse me, 15 Mr. Destefano's head was at the same level of his 16 mother's head? 17 A That's correct. 18 Q And your testimony is that you opened the door 19 and you saw all this? 20 A Yes, I did. 21 Q Didn't have to walk in the room. You stopped 22 at the threshold of the door, you looked in, and you saw 23 all this happening? 24 A I walked in the room a few steps and saw it 25 happening. 513 1 Q Well, isn't it a fact that you didn't walk in 2 a few steps. You just opened the door and saw all this? 3 A I really don't recall. It's been -- it's been 4 six years. 5 Q Let me ask you if you recall the following 6 question and answer in your deposition of July 30, 2002. 7 Page 25, line 12. 8 "Question: What was your first contact with 9 Larry or Carolina Destefano? 10 "Answer: The evening I was bringing supper 11 trays and the door was closed, so I knocked on the 12 door and there was no answer. So I knocked on the 13 door again, and there was still no answer. So I 14 went ahead and opened the door, and I observed 15 Mr. Destefano being in bed with his mother." 16 That was your testimony then, right? 17 A Correct. 18 Q And that's still your testimony today, isn't 19 it? 20 A Yes, it is. 21 MR. OSBORNE: Could I have Plaintiff's 22 Exhibit 12 marked for identification as L, please? 23 That's Defendants' L. I mean Plaintiff's. 24 BY MR. OSBORNE: 25 Q I'll show you what's marked for identification 514 1 as Exhibit L and ask you if that is Carolina Destefano's 2 room or the layout of the room that Carolina Destefano 3 was in. 4 A From what I recall, yes. 5 MR. OSBORNE: Okay. I would move that 6 document into evidence as the next-numbered exhibit, 7 Your Honor. 8 MS. MARSHALL: No objection. 9 MR. TOWNSEND: No objection, Your Honor. 10 THE COURT: It will be admitted as 11 Plaintiff's 3. 12 (Plaintiff's Exhibit No. 3 was admitted.) 13 BY MR. OSBORNE: 14 Q I'm going to give you this copy, Ms. Boze, to 15 look at, and I'm going to put a bigger copy up here for 16 the jury to look at. 17 A My name is Melashenko, not Boze. 18 Q All right, ma'am. Thank you. 19 A You're welcome. 20 Q Let's take a look at the upper-left picture on 21 that. You would agree with me that that picture is a 22 picture of the room with the door opened, perhaps 23 three-fourths of the way open? 24 A It possibly could be. I don't really 25 remember. 515 1 Q Well, you just identified that these pictures 2 are of Mrs. Destefano's room. Does that door appear to 3 be open three-fourths of the way from your view of that 4 picture? 5 A Yes, it does. 6 Q If you were standing at the opening of that 7 door, you would be behind this area of the photograph, 8 wouldn't you? 9 A I don't really remember. Maybe, maybe not. 10 Q Well, let me put it this way. Would you not 11 agree with me that if you were standing at the doorway as 12 you've just testified, standing at the doorway, there is 13 no way that you could see the head of the bed to see 14 where Mr. Destefano's head was or Mrs. Destefano's head 15 was; isn't that true? 16 A No, it's not true. I know what I saw. 17 Q Ma'am, I want you to listen to my question. 18 Isn't it true that if you're standing at the opening of 19 the door, which you just testified you were, there's no 20 way you could see what was going on at the head of the 21 bed? 22 A It could be possibly true. 23 Q Can you think of any conceivable way, standing 24 at the doorway, that you could see what Mr. Destefano was 25 doing at the head of the bed with his mother from looking 516 1 at this picture in the upper-left corner? 2 A Possibly not. 3 Q It's probably not, isn't it? 4 A Possibly not. 5 Q There's no way that you can see what's going 6 on at the head of this bed from the doorway, is there? 7 A I stepped into the room, and I know what I 8 saw. 9 Q Are you changing your testimony now that you 10 stepped into the room? 11 A I'm just telling you what I recall. 12 Q You just told me a minute ago that you didn't 13 recall these events. I refreshed your memory with your 14 deposition, and you agreed that you were standing in the 15 opening of the doorway. 16 MS. MARSHALL: Objection, argumentative. 17 THE COURT: Overruled. 18 BY MR. OSBORNE: 19 Q Let's go back to that statement. Do you 20 remember telling that just a minute ago to this jury? 21 A Yes. 22 Q Isn't it true, if your statement was true, the 23 one you just said was true back in 2002, there is no way 24 you could see Larry Destefano with his mother, Carolina 25 Destefano, if you're standing at the opening of that 517 1 door? Isn't that true? 2 A Yes, it's true. 3 Q And if you go in -- isn't it a fact as these 4 photographs go in, you have to walk almost all the way 5 into the room to even see the head of the bed, upper 6 right-hand corner? 7 A Possibly, yes. 8 Q It's not possibly, yes. It is yes, is it not? 9 Look at the picture. 10 A Possibly is. 11 Q You can't -- okay. In fact, you can only see 12 the entire bed once you get all the way into the room 13 past this wall divider; isn't that true? 14 A Yes, it's true. 15 Q And this is the occasion that you have said 16 that you saw -- this is the only occasion that you saw 17 Mr. Destefano lying on top of his mother, correct? 18 A Yes, it is. 19 Q And you just testified there is no way you 20 could have seen that at the time from standing at the 21 opening of this door, didn't you? 22 A I saw what I saw, and I saw Mr. Destefano in 23 there on top of his mother kissing her. I went in there 24 and passed out the tray. I went in there to hand him the 25 tray, and before he saw me, I saw this happen. 518 1 MR. OSBORNE: I move to strike the remainder 2 of the witness's answer as unresponsive. 3 THE COURT: Motion will be granted. The jury 4 is to disregard the witness's answer. Answer the 5 question that's asked of you, ma'am. 6 BY MR. OSBORNE: 7 Q Mrs. Melashenko -- 8 A Yes. 9 Q -- the fact is given what you've testified to 10 standing in the doorway and that that's where you saw 11 this, that's the only time that you could have seen, that 12 you testified you did see Mr. Destefano with his mother, 13 correct? 14 A Yes, I did. 15 Q And if you didn't see it here, you didn't see 16 it at all, did you? 17 A Yes, I did see it. 18 Q At a later time? 19 A No, that evening I saw it. 20 Q Are you able to see through walls, 21 Mrs. Melashenko? 22 A No. 23 Q Your testimony is that not only did you see 24 this, you stood there watching Mr. Destefano two to three 25 minutes, two to three minutes before he noticed you? 519 1 A Yes, sir, that's true. 2 Q (Counsel is looking at his watch.) That's one 3 minute. (Counsel continues looking at his watch.) 4 THE COURT: I believe we get your point, 5 Mr. Osborne. Let's move along. 6 MR. OSBORNE: All right. Thank you, Your 7 Honor. That was a minute 20 seconds. 8 BY MR. OSBORNE: 9 Q And you say during this two-to-three-minute 10 time, Mr. Destefano was kissing his mother passionately? 11 A Yes, he was. 12 Q And when you say "passionately," that's like 13 when a man and woman are in love with each other and kiss 14 each other passionately on the lips and neck? 15 A Yes. 16 Q And in the two to three minutes that you saw 17 Mr. Destefano on top of his mother kissing her, you 18 didn't say or do anything, did you? 19 A I was in shock. 20 Q You didn't say or do anything, did you? 21 A No, because I was in shock. 22 Q Can you just answer my question? Did you say 23 or do anything? 24 A No, I did not. 25 Q You were carrying dinner trays? 520 1 A Yes. 2 Q And after two to three minutes, you said, I 3 don't mean to interrupt, but her supper tray is here. 4 What would you like me to do with it? That's your 5 testimony, isn't it? 6 A Yes, it is. 7 Q So you were in shock. You were standing there 8 for two to three minutes in shock, and your query was or 9 your point was, I don't mean to interrupt you, but her 10 supper tray is here, what would you like me to do with 11 it, correct? 12 A Yes. 13 Q You didn't say what are you doing lying on top 14 of your mother kissing her passionately? 15 A No. 16 Q And he said, oh, give it to me, and please 17 shut the door? 18 A That's correct. 19 Q So you watched him for two to three minutes. 20 You said, excuse me, may I have your -- I have your 21 mother's supper tray. He got up off his mother, took the 22 tray, and said please shut the door? 23 A That's correct from what I recall, yes. 24 Q This was a very civilized conversation since 25 you had just witnessed Mr. Destefano for two to three 521 1 minutes being sexually inappropriate with his 71-year-old 2 Alzheimer's-impaired mother, wasn't it? 3 MS. MARSHALL: Objection, argumentative. 4 THE COURT: Overruled. 5 A Like I said to you before, I was in shock. I 6 had never seen this before in all my years as a nurse. I 7 had never seen anything like this before. I was 8 speechless. 9 Q That wasn't my question. This was a very 10 civilized conversation since you just observed 11 Mr. Destefano for two to three minutes being sexually 12 inappropriate with his 71-year-old Alzheimer's-impaired 13 mother, wasn't it? 14 A I guess you could say that, from what I 15 recall. 16 Q After you left the room, you went and reported 17 this to your supervisor, Margarita Walters? 18 A That's correct. 19 Q And from what you observed, Margarita Walters 20 was upset? 21 A From what I recall. 22 Q You expressed your concern to her about it, 23 and she told you she would discuss it with the nurse 24 manager and the director of nursing the next day when she 25 came to work? 522 1 A From what I recall. It's been six years. 2 Q You want me to refresh your memory on that? 3 A No, it's okay. You don't need to. 4 Q And she was on the 3:00 to 11:00 shift the 5 same as you? 6 A Yes, sir. 7 Q You did not feel that this was something that 8 warranted immediate attention to the DCFS, correct? 9 A I don't recall. Maybe, maybe not. Possibly, 10 most likely no. 11 Q You want me to refresh your memory about that, 12 Ms. Melashenko? 13 A No, it's okay. 14 Q You did not feel this was something that 15 warranted immediate attention, did you? 16 A At the time, no. 17 Q Even though you just testified you'd been 18 trained that if you, as a nurse in a nursing home, knew 19 or had reasonable cause to suspect that a vulnerable -- I 20 can't talk -- that a vulnerable adult was being abused, 21 neglected or exploited, that you immediately report that 22 to the central abuse hotline. You knew that's what you 23 were supposed to do, didn't you? 24 A I also was taught to go to my chain of command 25 and report things. Margarita Walters was my supervisor, 523 1 and I was taught to go to her. I was told to go to her. 2 That's the way this happened. 3 Q Does that mean you ignore these HRS -- 4 A No, it doesn't mean anything at all. I just 5 did what I was told to do, and that's what I did. I went 6 to Margarita Walters because that's what we were told to 7 do when something like this happened. 8 Q And that's about what your testimony is here, 9 that you were doing what you were told to do, correct? 10 A That's right, correct. 11 Q So you didn't feel this was something that 12 warranted immediate attention from DCFS, correct? 13 A Not at the time, because in shift report we 14 had been told that Mr. Destefano was overtly affectionate 15 towards his mother. 16 Q My question really was simply you didn't feel 17 this was something that warranted immediate attention 18 from DCFS, correct? 19 A Not at the time, no. 20 Q Thank you. Your testimony is that Margarita 21 Walters said, let me handle it. I'll take care of it? 22 A That's correct. 23 Q She told you to go about your work, do your 24 job, and she'd take care of it? 25 A That's correct. And I believed her. 524 1 Q You did not chart this event in the nurse's 2 notes, did you? 3 A From what I recall, I don't remember. 4 Q Page 38, line 21. 5 MS. MARSHALL: Objection, Your Honor. This is 6 improper refreshing of a witness's memory unless he 7 gives her an opportunity to look at it first. 8 THE COURT: Sustained. 9 BY MR. OSBORNE: 10 Q Take a look at page 38, lines 21 to 23, if you 11 would, ma'am. 12 A (Reviewing transcript.) Okay. What is your 13 question? 14 Q My question was you didn't chart this event in 15 the nurse's notes, did you? 16 A No, I did not, not at the time, no. 17 Q Why don't you just keep that up there. I may 18 have to have you look at that again. 19 A Okay. 20 Q You didn't chart it because your testimony is 21 Margarita Walters told you not to? 22 A That's correct. 23 Q She instructed you not to chart it? 24 A That's correct. 25 Q You asked her why not, and she told you she 525 1 would take care of it the next day? 2 A That is correct. 3 Q Margarita Walters also asked you not to say 4 anything about the incident? 5 A That is correct, from what I recall. 6 Q You were told by Margarita Walters that 7 Mr. Destefano would be staying over with his mother, 8 correct? 9 A From what I recall, yes. 10 Q You'd been a nurse at that time for 11 approximately 28 years at that point in time, hadn't you? 12 A Approximately. 13 Q And you had just seen a grown man purportedly 14 lying on top of his mother for two to three minutes 15 kissing her passionately on her face and mouth and on the 16 neck, and because your supervisor said don't say anything 17 to anybody, you allowed him to sleep overnight in his 18 mother's room? 19 A We were told that he was -- 20 Q Just answer the question, ma'am. 21 A I had nothing to do with his sleeping over. 22 This was not my call. There was -- 23 Q You knew that he was going to be spending the 24 night with his mother? 25 A From what I was told. 526 1 Q You knew what you saw, what you said you saw 2 was an inappropriate act of a grown man with his mother, 3 correct? 4 A Correct. 5 Q A sexually inappropriate act, correct? 6 A Correct. 7 Q Sexual abuse, correct? 8 A Possibly. 9 Q And you knowing that acquiesced to him 10 spending the night with his mother? 11 A Like I said before, I had nothing to do with 12 that. That was not my decision. 13 Q You didn't want to do anything because you 14 didn't want to jeopardize your job; isn't that right? 15 A That had nothing to do with it at all. 16 Q Let me ask you the following question at page 17 60, line 6: 18 "Question: You'd seen a grown man lying on 19 top of his mother for two to three minutes, kissing 20 his mother passionately on the face, mouth and neck, 21 and because your supervisor said don't say anything 22 to anybody, you were going to allow him to sleep 23 over in his mother's room that night? 24 "Answer: I did not want to jeopardize my 25 job." 527 1 That was your testimony under oath on July 30, 2 2002, correct? 3 A Correct. 4 Q That's still your testimony, isn't it? 5 A I guess you could say that, yes. 6 Q Because you were in fear for your job, you let 7 what you believed to be or feared to be or had reasonable 8 suspicion to be sexual abuse to continue all night 9 because you didn't want to jeopardize your job? 10 A From what I recall, I don't remember. Could 11 be, could be not. I don't remember. It's been six 12 years. 13 Q Well, you just admitted that in your testimony 14 that you didn't do anything because you didn't want to 15 jeopardize your job, didn't you? 16 A Can I say something? 17 Q No, ma'am. I ask and you answer. 18 A Okay. 19 Q Didn't you just tell this jury -- 20 A Yes. 21 Q -- that you didn't do anything because you 22 didn't want to jeopardize your job? 23 A That is correct. 24 MR. OSBORNE: Madam Clerk, could I have 25 Plaintiff's C for identification, please? 528 1 Q Ms. Melashenko, I'm going to show you what's 2 been marked for identification as Plaintiffs' Exhibit C 3 and ask you if you recognize that document, please. 4 A Yes. This is a copy of her admission sheet. 5 Q And are those the Sunbelt records of the care 6 and treatment of Carolina Destefano while she was at 7 Sunbelt in September of 1999? 8 A Yes, sir. 9 MR. OSBORNE: We'd move those into evidence, 10 Your Honor. 11 MS. MARSHALL: No objection. 12 MR. TOWNSEND: No objection. 13 THE COURT: It will be admitted. 14 (Plaintiff's Exhibit No. 4 was admitted.) 15 THE CLERK: Plaintiff's 4. 16 BY MR. OSBORNE: 17 Q After suppertime -- after supper sometime, 18 Mr. Destefano came to you and asked you about the wound 19 care of his mother and said that the dressing was off the 20 wound and would you mind changing it, correct? 21 A That is correct. 22 Q You said not a problem? 23 A That is correct. 24 Q You looked on the med sheet to see if the 25 wound care had been done that day, and according to the 529 1 med sheet, wound care had been done that day, correct? 2 A Yes, sir. 3 Q Let me show you a blow-up of a portion of that 4 document that you have in front of you. Actually, let me 5 show you the page itself. I happen to have it set out 6 here. 7 Just to save time, Mrs. Melashenko, I'm going 8 to show you a part of the document we just put in 9 evidence which is documentation record and profile. 10 A Yes, sir. 11 Q And you recognize this to be the place in the 12 record that you would check to see if wound care had been 13 done that day? 14 A Yes, sir. 15 Q And in terms of the -- you were the 3:00 to 16 11:00 shift? 17 A Yes, sir. 18 Q And what we see here is that in the morning, 19 according to this record, that in the morning of the 20 20th, that CB changed the wound dressing to 21 Mrs. Destefano, don't we? 22 A Yes, sir. 23 Q And you're CB? 24 A I was at the time, yes. 25 Q Correct, ma'am. You're CM now? 530 1 A Yes, that's correct. 2 Q But at the time you were CB, and you noted in 3 here that in the morning of the 20th, you changed the 4 wound dressing, correct? 5 A According to my signature, yes, sir. 6 Q You didn't work that morning? 7 A I don't recall. 8 Q You worked the 3:00 to 11:00 shift? 9 A Yes, I did. 10 Q So you couldn't have been there in the morning 11 to note that the wound care was done on the morning of 12 the 20th, could you? 13 A I really don't remember. I don't remember. 14 Q Let me ask you this way. The only charting we 15 have in the Sunbelt records -- 16 A Right. 17 Q -- shows that you changed the wound dressing 18 on the right heel on the morning of the 20th, correct? 19 A According to the record, yes, sir. 20 Q You weren't there on the morning of the 20th, 21 were you? 22 A Not that I remember. 23 Q So you couldn't have changed the wound 24 dressing on the morning of the 20th, could you? 25 A Probably not. 531 1 Q You looked and you couldn't find a document 2 that indicated that the day shift changed the dressing, 3 could you? 4 A From what I recall, no, sir. 5 Q So what you did then was you yourself to 6 rectify that problem put your initials in the morning to 7 make it look like you had changed the wound dressing on 8 the morning of the 20th, didn't you? 9 A No. I don't remember. To be honest, I don't 10 remember. It's been six years. I don't remember. 11 Q If a person new to this chart had never seen 12 this chart before, didn't know anything about medical 13 records and looked at this chart, they would only be led 14 to believe that the then Carol Boze changed the wound 15 dressing on the right heel on the morning of the 20th, 16 correct? 17 A Correct. 18 Q And that's just not true, is it? 19 A I don't recall. I really don't recall. 20 Q Well, it's not true because you weren't there, 21 right? 22 A Possibly. It's been six years. 23 Q Ma'am, you just said you worked the 3:00 to 24 11:00 shift, didn't you? 25 A Yes, I worked 3:00 to 11:00. 532 1 Q You didn't work the 7:00 to 3:00 shift? 2 A No. 3 Q So you weren't there, right? 4 A Okay. I wasn't there, yeah. 5 Q You couldn't have been there to say you 6 changed the right heel dressing, could you? 7 A I did change the right heel wound dressing. I 8 did it when Mr. Destefano asked me to. 9 Q The charting is misleading, is it not? 10 A Possibly. 11 Q It would give one the effect in looking at 12 this that someone, you namely, changed the wound dressing 13 on the morning or on the 7:00 to 3:00 shift on the 20th, 14 correct? 15 A Correct. 16 Q You knew that these wound dressings had to be 17 changed daily, didn't you? 18 A From what I recall. 19 Q And you found that when Mr. Destefano pointed 20 out to you that there was no wound dressing, that you 21 went back and tried to fix it to make it look like 22 someone had changed that wound dressing in the morning, 23 didn't you? 24 A No, I did not. 25 Q Mr. Destefano said to you, would you mind, the 533 1 dressing is off, and your testimony is that you went 2 ahead and changed it? 3 A He asked me to change it, and I did. I said 4 not a problem. 5 MR. OSBORNE: Could I have Plaintiff's 43, H? 6 Q Let me show you what's been marked for 7 identification as Exhibit H. Tell me what that document 8 is, please. 9 A I'm sorry? 10 Q Can you identify the document in that folder, 11 please? 12 A Yes, I can. 13 Q What is it? 14 A It's a note that Mr. Destefano asked me to 15 sign stating that the wound care had not been done on the 16 day shift. 17 MR. OSBORNE: I would move that note in 18 evidence, Your Honor. 19 MS. MARSHALL: No objection. 20 THE CLERK: Plaintiff's 5. 21 MR. TOWNSEND: No objection. 22 THE COURT: It will be admitted. 23 (Plaintiff's Exhibit No. 5 was admitted.) 24 BY MR. OSBORNE: 25 Q To be specific, Ms. Melashenko, this note 534 1 says: Sunbelt Health Care, 9/20/99 Orlando, 6:19 p.m. 2 No dressing on Carolina Destefano, Room 307, witness C. 3 Boze and Carol underneath that, correct? 4 A My signature is there, but the word "Carol" is 5 not my handwriting. 6 Q I understand that. I'm just saying what was 7 on it, not who signed it. 8 A Yes. 9 Q That is your signature, though, isn't it? 10 A Yes, sir, it is. 11 Q Mr. Destefano came to you an hour and a half 12 after the wound dressing, according to you, was changed, 13 and asked you to sign a handwritten form that the wound 14 had not been done that day, correct? 15 A Yes, he did. 16 Q And you said you couldn't sign it until you 17 talked to Margarita Walters? 18 A That's correct. 19 Q You didn't want to sign because it was like an 20 admission of guilt? 21 A That's correct. 22 Q The admission being that Mrs. Destefano was 23 there all day without her wound dressing being done on 24 her right heel, correct? 25 A I wasn't going to take that responsibility. 535 1 Q My question was that the reason this note was 2 an admission of guilt was because it was admitting that 3 Mrs. Destefano had been lying in her bed all day without 4 her right heel wound dressing being applied, correct? 5 A Possibly correct, yes. 6 Q That is absolutely correct, is it not? 7 A Yes, correct. 8 Q And you knew that was a bad thing, didn't you, 9 to have a wound dressing undressed with a semi-comatose 10 patient all day? 11 A I was told by the day shift that the wound 12 care had been done, and I believed them. And I was 13 reluctant to sign that note. 14 Q Well, if the wound care had been done as you 15 say, you could look at this documentation record and you 16 would have seen somebody else's initials besides yours on 17 it, wouldn't you? 18 A Possibly, yes. 19 Q Not possibly, probably you would. That's 20 where it's supposed to go, isn't it? 21 A Correct. 22 Q You went to Margarita Walters, and she told 23 you to sign the form? 24 A That's correct. 25 Q And you did, in fact, sign the form and give 536 1 it back to Mr. Destefano? 2 A Yes, I did. 3 Q The next day, using your words, you caught 4 hell from the director of nurses and the nurse manager 5 because you signed that? 6 A That's correct. 7 Q They told you that you had no business doing 8 that because that was an admission of guilt and signing 9 the form was wrong? 10 A That's correct. 11 Q Were you aware of the AHCA survey that had 12 been done the previous summer that was going on about 13 deficiencies at the facility? 14 A No, I was not. 15 Q Rachel Bean and Mary Thornton were the 16 director of nurses and the nurse manager, correct? 17 A Yes, sir. 18 Q So they agreed with you, that this was an 19 admission of guilt? 20 A No. 21 Q Correct? Well, you said you didn't want to 22 sign because it was an admission of guilt, correct? 23 A It was admitting something that I was not -- I 24 was not guilty of something that had been done on the day 25 shift because the wound care hadn't been done that day. 537 1 And I was very reluctant to sign the note because I was 2 told by the day care nurse that the wound care had been 3 done, so I was very reluctant to sign this because of 4 that, because I was told it had been done that day, and I 5 believe the nurse. Sometimes dressings fall off, which 6 is very common. 7 MR. OSBORNE: Move to strike the witness's 8 answer as being unresponsive. 9 THE COURT: Motion is denied. 10 BY MR. OSBORNE: 11 Q You did say that you didn't want to sign -- 12 let me put it this way. You said that signing the note 13 was like an admission against interest -- excuse me. 14 Signing the note was like an admission of guilt, and 15 you're not allowed to do that. That's your testimony, 16 isn't it? 17 A From what I recall, yes. 18 Q Okay. And by being not allowed to do that, 19 that means that the nursing staff at Sunbelt would not 20 allow you to admit guilt if something bad happened there, 21 correct? 22 A No, it's not correct. 23 Q You just told me that you didn't want to sign 24 this because it would be an admission of guilt and you 25 weren't allowed to do that. 538 1 A It would be an admission of -- 2 Q Hold on a second. Who was it that would not 3 allow you to do that? 4 A Rachel Bean. 5 Q So you knew that if you signed that -- well, 6 Rachel Bean would not allow you to admit guilt about 7 something wrong that happened at the facility, correct? 8 A Correct. 9 Q So your fear was that Rachel Bean would get 10 mad if you admitted guilt about something that had 11 happened there, wasn't it? 12 A Possibly. 13 Q Not possibly. It's probably, isn't that true? 14 A Probably. I don't know. It's been six years. 15 I can't remember a lot of things back then. 16 Q You don't remember that you saw someone that 17 you have testified to this jury was abusing his elderly 18 comatose mother? You don't remember that? 19 A I remember that. I remember that quite well. 20 Q These are facts that one would not forget, 21 aren't they? 22 A That's right. 23 Q On September 21st, you returned to the 24 facility at 2:30 p.m., didn't you? 25 A From what I recall. 539 1 Q You were approached by Rachel Bean, the 2 director of nurses, about what happened the night before 3 and about what you had observed with Mr. Destefano and 4 his mother, correct? 5 A From what I recall, yes. 6 Q And it was about the dressing change and also 7 what you observed him doing; is that your testimony? 8 A From what I recall, yes. 9 Q You knew that Rachel Bean knew about these 10 improprieties or sexual abuse you saw because Margarita 11 Walters had talked with her about it? 12 A That's what I was told, yes. 13 Q In fact, your understanding is that after you 14 reported the incident to Rachel Bean, that she called HRS 15 and filed a complaint against Mr. Destefano? 16 A From what I was told, yes. 17 Q When you told Rachel Bean that Margarita 18 Walters told you you had to sign the form, Rachel Bean 19 became very upset, didn't she? 20 A From what I recall. 21 Q She demanded from you for you to tell her what 22 you had done? 23 A From what I recall. 24 Q She would not listen to your explanation? 25 A Possibly. 540 1 Q She was yelling and screaming at you? 2 A Probably. 3 Q She was beside herself? 4 A From what I recall, probably, yes. 5 Q Your worst fears were realized. The person 6 that had told you not to admit guilt, you had admitted 7 guilt, and she was furious with you, wasn't she? 8 A I don't really recall. Maybe, possibly. It's 9 been a long time. 10 Q Well, let me ask you this. If you say she was 11 upset, she was yelling and screaming at you, she wouldn't 12 listen to you, she was beside herself, she was furious 13 with you, wasn't she? 14 A Probably, yes. 15 Q You then told Rachel Bean you had to go 16 report? 17 A That's correct. 18 Q That's when she told you that you had to do 19 what -- what you had to do in regard to writing the late 20 entries, correct? 21 A I don't recall. Maybe, possibly. I don't 22 recall. 23 Q Take a look at page 68, line -- 24 A In which one? 25 Q In your deposition, please. You've only got 541 1 one there. 2 A This one? 3 Q 68, line 18. Well, 16 through 20, just read 4 16 through 20. 5 A 16 through 20? 6 Q Yes, ma'am, page 68. 7 A "I excused myself -- 8 Q No, ma'am, just read them silently to 9 yourself, please. 10 A Okay. Sorry. (Witness complies.) Okay. 11 Q So let me ask you again, does this refresh 12 your memory that after you told Rachel Bean you had to go 13 report, she told you what you had to do in regards to 14 writing late entries? 15 A Yes, sir. 16 Q Let's talk about those late entries. Take a 17 look in the chart there at 9/20/99. 18 A Which is where? 19 Q Should be a folder with a little fatter -- 20 A This one right here? 21 Q Yes, ma'am. 22 A What page again? I'm sorry. 23 Q I tell you what I'm going to do is I want you 24 to go to the nurse's notes. 25 A Okay. 542 1 Q I'm looking at the nurse's note. The first 2 nurse's note by you occurs at 9/20/99 bottom of the page 3 with an LE? 4 A Yes, sir. 5 Q That means late entry? 6 A Yes, sir. 7 Q Now, if one were to look at this document, 8 they would think that you wrote this on the 20th, 9 wouldn't they? 10 MS. MARSHALL: Objection, speculation. 11 THE COURT: Sustained. 12 BY MR. OSBORNE: 13 Q Isn't it proper nursing protocol when you do a 14 late entry you write in the date that you actually do the 15 entry and then you note that the events actually occurred 16 earlier? 17 A Not always, no. 18 Q That's not customary practice for nurses? 19 A No, not always. 20 Q Is it sometimes? 21 A Sometimes, but not always. 22 Q Ever for you? 23 A Sometimes, but not always. 24 Q How would someone know these events did not 25 occur on the 20th of September by looking at that note? 543 1 A I don't understand your question. 2 Q If someone looked at that note, tell me what 3 would alert that person that this was not written on the 4 20th? 5 MS. MARSHALL: Objection, speculation. 6 THE COURT: Sustained. 7 BY MR. OSBORNE: 8 Q All right. Let's go through what you said 9 here. Why don't you publish your first note that we find 10 here on 9/20/99 under LE. 11 A You want me to read that? 12 Q Yes, ma'am. 13 A Okay. "7:00 to 3:00 nurse passed on to 3:00 14 to 11:00 nurse on report that dressing change to wound 15 right heel had been done as ordered. Patient's son came 16 to 3:00 to 11:00 nurse and stated to her there was no 17 dressing on patient's right heel, that patient's son 18 wanted dressing change done immediately." 19 Q And then we've got CB over here in that right 20 corner, correct? 21 A C. Boze. 22 Q C. Boze? 23 A Yes, sir. 24 Q Turn to the next page and tell the jury where 25 your second late entry is. 544 1 A Top of the page. 2 Q Again, 9/20/99, LE? 3 A Yes, sir. 4 Q Read what that says. 5 A "3:00 to 11:00 nurse did dressing change to 6 right heel, ordered Accuzyme, a 4-by-4 dressing and 7 CLING," which is a type of dressing. 8 Q Okay. On this page, those are the only notes 9 that are attributed to you, are they not? 10 A Yes, sir. 11 Q These two notes that were written that are on 12 there were not written on the 20th, were they? 13 A I can't recall. 14 Q Take a look at your deposition, page 74, 15 please, line 23 to page 75 -- well, just those three 16 lines, 23 to 25. 17 A (Reviewing transcript.) Uh-huh. 18 Q Does that refresh your memory about when you 19 wrote those two notes? 20 A Yes, it does. 21 Q When did you write those two notes? 22 A On the 21st. 23 Q At what time? 24 A 2:45 in the afternoon. 25 Q Because that's when you came on for your 3:00 545 1 p.m. shift, wasn't it? 2 A Yes, sir, from what I remember. 3 Q So going back to the note, the two notes we 4 just talked about, even though they're dated the 20th, 5 they really were written on the 21st? 6 A Yes, sir. 7 Q Now, let's talk about this next long note here 8 on the 8:30 a.m. note continuing on to the next page. 9 A What page is that? 10 Q Pardon me? 11 A What page is that? 12 Q I'm still talking about the 9/20-21. I'm 13 going to get another page to follow up with that. 14 A Okay. I don't have a page -- okay. 9/21. 15 Q So this next note on the bottom is all Mary 16 Thornton's note, correct? 17 A I don't recognize her handwriting. 18 Q Take a look at the next page and see who 19 signed off on it. 20 A It says Rachel Bean. 21 Q You must be looking at the wrong page. I'm 22 looking at this document, ma'am, right here. 23 A Oh, I'm sorry. Yes, that's Mary Thornton. 24 Q So your recording of your witnessing 25 Mr. Destefano with his mother does not occur until after 546 1 Mary Thornton's note is in the chart here, correct? 2 A Yes, sir. 3 Q And Mary Thornton, I'm going to publish that, 4 says: As we opened the door, the DON and myself 5 witnessed the son giving the mother a passionate kiss on 6 the lips which lasted for an extended time and so forth. 7 Now, you had read that before you did your 8 charting, didn't you? 9 A No, sir, I did not. 10 Q It was on the page, was it not? 11 A I didn't read it, no. I don't recall reading 12 that, no. 13 Q My question was it was on the page? 14 A It could have been, but I don't remember 15 reading that. 16 Q Ma'am, it was on the page. It's right before 17 your next note, isn't it? 18 A That's correct, but I don't remember reading 19 that. 20 Q All right. Well, that wasn't my question. 21 It's on the page, correct? 22 A Right. It's on the page. 23 Q And if you had read it, you would have noted 24 what Ms. Thornton said about a passionate kiss on the 25 lips which lasted for an extended time, wouldn't you? 547 1 A If I had read it, yes, but I did not read it, 2 as I recall. I did not read it. 3 Q We do know, don't we, that this third note 4 here -- let's publish this third note that you've got 5 here. 9/20/99, LE, late entry, publish that for the 6 jury, please. 7 A Which one, bottom? 8 Q No, ma'am, the one right after Mary Thornton's 9 note. 10 A Okay. "Nurse went into patient's room to 11 deliver meal to patient and found patient's son lying on 12 top of patient and kissing her repeatedly on patient's 13 mouth. Patient's son stopped kissing her when he saw a 14 nurse enter the room." 15 Q Okay. And you're telling the jury this is the 16 first time that you ever recorded anything about any 17 sexual abuse by Mr. Destefano and his mother? 18 A Yes. 19 Q Only after Mary Thornton made the same -- a 20 similar notation right before you did? 21 A Like I said, I didn't read her note, so I 22 don't know what she said. I just documented what I saw. 23 I just documented what I saw. 24 Q Mary Thornton made it a point of showing you 25 her nurse's notes, the ones right before yours. She 548 1 showed you these, didn't she? 2 A I don't recall her showing me that at all. 3 Q Page 82, line 1: 4 "Question: Okay. And did Mary Thornton, did 5 she show you these nurse's notes dated 9/21/99, 8:30 6 a.m.? 7 "Answer: Yes, she did, from what I recall. 8 "Question: And Mary Thornton had written 9 this? 10 "Answer: Yes, she did." 11 So she showed that to you before you did your 12 note, didn't she? 13 A If it says there that I did, then I must have, 14 but to be honest, I really don't remember. 15 Q You'll go with what you said in your sworn 16 testimony in 2002, wouldn't you? 17 A Yes, I will. 18 Q And if she showed it to you, you only looked 19 at it to read it. Otherwise, why would she show it to 20 you? 21 A I have no idea. 22 Q Is it that you don't recall reading it or you 23 didn't read it? 24 A I don't recall reading it. 25 Q You have a present memory today that you 549 1 didn't read it? 2 A I don't recall. 3 Q All right. Hear my question. If you don't 4 recall today that you did, you might have read it, you 5 might not have read it, you just don't remember? 6 A I don't remember. 7 Q Is that your testimony? 8 A Yes. I don't remember. 9 Q Now, you didn't note on here -- on your note 10 here, you didn't note passionate kissing. You just said 11 kissing her repeatedly on the mouth, didn't you? 12 A Yes, sir. 13 Q You didn't note just like Ms. Thornton did 14 that it lasted for an extended time on this note, did 15 you, sir? 16 A No, sir. 17 Q After Rachel Bean showed you what Mary 18 Thornton wrote, Rachel Bean instructed you to write the 19 events of the previous night, didn't she? 20 A Yes, she did. 21 Q Your testimony is that you didn't chart sooner 22 because Rachel Bean and Mary Thornton had the chart and 23 you didn't have access to it? 24 A That's correct. 25 Q Rachel Bean, according to you, took the chart 550 1 from you and said I need the chart? 2 A Yes, sir. 3 Q She grabbed it from you when you were in the 4 middle of doing this? 5 A Yes, sir. 6 Q So your testimony is that the reason your 7 prior note -- that you did these other two notes, that 8 the only reason these two notes over here, late entry 9 9/20, the one at the bottom of the page and the one at 10 the top of the next page, that the only reason you didn't 11 continue to chart on the sexual abuse was that Rachel 12 Bean took the chart from you? 13 A That's correct. 14 Q It wasn't that you didn't know yet about the 15 passionate kissing for an extended time because you 16 didn't see it and you hadn't been told yet by Mary 17 Thornton? 18 A That's wrong. That's incorrect. 19 Q Your testimony is that there you were charting 20 away. Rachel Bean comes in, basically takes the chart 21 away from you and runs off with it? 22 A From what I remember, yes. 23 Q And that's why you couldn't finish charting 24 about this sexual abuse that you put on here after Mary 25 Thornton did her note, correct? 551 1 A From what I recall, yes. 2 Q So your testimony is Rachel Bean, she grabs 3 the chart out of your hands, literally out of your hands? 4 A Yes, sir. 5 Q Takes off, goes down the hallway to her 6 office? 7 A Yes, sir. 8 Q Has Mary Thornton in tow with her? 9 A Yes, sir. 10 Q They shut the door, and that's the last time 11 you see the chart? 12 A Yes, sir. 13 Q And that's what prevented you from actually 14 charting what you had seen the night before? 15 A Yes, sir. 16 Q What happened then after this chart 17 disappearance was Mary Thornton then came you to and 18 showed you what she had written? 19 A Possibly. 20 Q Page 84, line 2. Does that refresh your 21 memory? 22 A Yes, sir. 23 Q So Mary Thornton came to you and showed you 24 what she had written? 25 A Yes, sir. 552 1 Q Mary Thornton said, "This is what I wrote," 2 correct? 3 A From what I said in my testimony, yes, sir. 4 Q Well, do you recall today or are you just 5 going to rely on what you said back in 2002? 6 A It's been three years. I don't really 7 remember. I'm going by what I said in this testimony. 8 Q Okay. So we're clear, Mary Thornton said, 9 "This is what I wrote," correct? 10 A Yes, sir. 11 Q Rachel Bean says, "This is what I want you" -- 12 excuse me -- "This is what I want you to write now," 13 correct? 14 A According to my testimony three years ago. 15 Q So you're showing on this chart -- on this 16 charting by Mary Thornton, she shows it -- Mary Thornton 17 shows it to you, and Rachel Bean says -- and Mary 18 Thornton says, "This is what I wrote." Rachel Bean says 19 to you, "This is what I want you to write now"? 20 A She instructed me. 21 Q She instructed you to write that. 22 A But I wrote it in my own words. 23 Q You're sure about that? 24 A I'm positive. 25 Q When presented with Mary Thornton's note, both 553 1 Mary Thornton and Rachel Bean were hovering over you, 2 weren't they? 3 A Probably. I don't really recall. 4 Q Page 85, lines 8 to 12. 5 A Okay. 6 Q They were hovering over you, weren't they? 7 A They were hovering over me basically, yes. 8 Q What's the difference between hovering over 9 you and hovering over you basically? They were hovering 10 over you, weren't they? 11 A Yes, they were. 12 Q Just to clarify, your testimony is that you 13 wrote the first two notes at the nurse's station, 14 correct? 15 A Correct. 16 Q Rachel Bean came in, took the book away from 17 you and went to Mary Thornton's office, correct? 18 A Correct. 19 Q The next time you saw the chart it had Mary 20 Thornton's notes on it? 21 A Correct. 22 Q And in terms of this note that we've got here, 23 this 9/20 note that you published for the jury about this 24 sexual abuse, Mary Thornton and Rachel Bean told you 25 exactly what to write, didn't they? 554 1 MS. MARSHALL: Object to the characterization 2 as sexual abuse. 3 THE COURT: Sustained. 4 MR. OSBORNE: Your Honor, she previously 5 testified -- 6 THE COURT: Sustained, Mr. Osborne, sustained. 7 BY MR. OSBORNE: 8 Q In terms of this note that you did about 9 Mr. Destefano lying on top of his mother and kissing her 10 repeatedly on her mouth, Mary Thornton and Rachel Bean 11 told you exactly what to write, didn't they? 12 A No, they did not. 13 Q Page 87, line 10. I want to publish this, 14 Your Honor. 15 "Question: Well, actually, I mean, you told 16 us earlier that you were in the room for two to 17 three minutes. 18 "Answer: But this is what Mary Thornton and 19 Rachel Bean told me to document. 20 "Question: They told you exactly what to 21 write? 22 "Answer: Yes, they did, exactly what to 23 write. 24 Question: They dictated it to you, basically? 25 "Answer: Yes, yes, they did." 555 1 That's your testimony today, isn't it? 2 A That was my testimony three years ago, yes. 3 Q Still your testimony today, isn't it? 4 A If it says so here, yes. 5 Q I mean, your recollection is not better today 6 than it was three years ago when your deposition was 7 taken, is it? 8 A It's been three years. A lot's happened. 9 Q That's not my question, ma'am. Your 10 testimony -- your memory today is not better today than 11 it was three years ago, is it? 12 A My memory's fine. 13 Q So you remember these events today better than 14 you did back in July of 2002? 15 A I remember just fine. 16 Q Let's talk about another note. I'm going to 17 give you a copy of this. It's the fourth entry note, but 18 I'm going to give you it to look at for ease of finding 19 it. Do you remember that note? 20 A Yes, sir. 21 Q This is a note dated 9/22/99, is it not? 22 A Yes, sir. 23 Q Rachel Bean also dictated this fourth late 24 entry, didn't she? 25 A Probably, yes. 556 1 Q She dictated it word for word, didn't she? 2 A No, she did not. From what I recall, she did 3 not. I put things in my own words. 4 Q Page 90, line 16. 5 "Question: Well, did Rachel also dictate this 6 fourth late entry? 7 "Answer: Yes, she did. 8 "Question: Word for word? 9 "Answer: Yes, she did." 10 That was your testimony then, wasn't it? 11 A Yes, it was. 12 Q And that was the correct testimony, wasn't it? 13 A Yes, it was. 14 Q And it's talking about this very note I just 15 gave you. This fourth entry is what you're talking 16 about, isn't it? 17 A Yes, it is. 18 Q Why don't you go ahead and just publish the 19 first note that's found on this fourth entry, please. 20 A This one right here? 21 Q Yes, ma'am, the first -- 9/22, the first 22 paragraph before you sign off on it. 23 A You want me to read it? 24 Q Yes, ma'am. 25 A Okay. "Nurse went into patient's room to give 557 1 supper tray to patient and found patient's son on top of 2 her kissing her passionately on the mouth for 3 approximately two minutes." 4 Q All right. Now, what we've got now in this 5 note is something we didn't have in your first note. You 6 now have added the word "passionately," haven't you? 7 A Yes, sir. 8 Q Now, that's not found in your note, is it? It 9 just says kissing her repeatedly? 10 A Okay. 11 Q Correct? 12 A Correct. 13 Q And we know that Ms. Thornton said 14 passionately, right? 15 A Okay. 16 Q Rachel Bean told you she wanted you to have 17 the word "passionately" in your new entry, didn't she? 18 A I don't recall. 19 Q She dictated it to you word for word you just 20 said? 21 A If it says so, yes, but it's been a long time. 22 I really don't remember. 23 Q If she dictated this to you word for word, 24 that word passionately came out of Rachel Bean's mouth 25 and not yours, didn't it? 558 1 A It came out of my mouth. 2 Q This is the first time there is any mention in 3 any note you have about how long the kiss occurred, 4 correct, or the kissing occurred? 5 A From what I recall, yes. 6 Q Because now you say for approximately two 7 minutes? 8 A Okay. 9 Q Is that "yes"? 10 A Possibly, yes. 11 Q Ma'am, does it say that or not? 12 A It says passionately, yes. 13 Q No, does it say for approximately two minutes? 14 A Yes. 15 Q You don't say anything in here on your first 16 note about how long the kissing was, for two minutes, do 17 you? 18 A No. 19 Q Your testimony is that when you saw -- when 20 you came to the facility on the 21st of September, you 21 saw Mr. Destefano being confronted by Mary Thornton and 22 Rachel Bean? 23 A From what I recall, yes. 24 Q And that would have been about 3:00 to 3:30 in 25 the afternoon? 559 1 A Approximately, yes. 2 Q During the shift change? 3 A Yes. 4 Q From what you recall, they were confronting 5 him about what you found the night before regarding the 6 incident with his lying on top of his mother? 7 A From what I recall, yes. 8 Q Did you know that Larry Destefano was 9 trespassed from Sunbelt at 10:10 in the morning on the 10 21st? 11 A No, I did not. 12 Q If you would agree with me that he was 13 trespassed from the building on the morning of the 21st, 14 there is no way he could have been there being 15 confronted, your allegations, at 3:00 to 3:30 in the 16 afternoon? 17 A I know what I saw. 18 Q Can you answer my question, ma'am? 19 A I don't agree with you, no. 20 Q All right. So your testimony is that if 21 Mr. Destefano was trespassed at 10:10 in the morning, 22 that he was still there at 3:00 to 3:30 when you came on 23 shift and you saw him there in a confrontation with Mary 24 Thornton and Rachel Bean? 25 A Yes. 560 1 Q That's your testimony? 2 A Yes. 3 Q And you're sticking to it? 4 A Yes, I am. 5 Q Going back to this fourth entry, this 9/22/99, 6 this note is not a part of the chart, is it? 7 A It should be. 8 Q Look at page 99, line 13, please. Does that 9 refresh your memory? 10 A Yes, sir. 11 Q It's not part of the chart, is it? 12 A That's what I said in 2002. 13 Q You don't know why this wasn't part of the 14 chart, do you? 15 A I don't recall, no. 16 Q I want you to compare this 9/22/99 note with 17 the other -- the earlier late entry note that you made. 18 Let's talk about the one you did on 9/20 about this 19 behavior of kissing his mother on the mouth. 20 A Okay. 21 Q You would agree with me that the addition of 22 the word, in terms of the fourth note, the entry of the 23 note where the word "passionately" is added and "on the 24 mother for approximately two minutes," that change spiced 25 up your entry of 9/20/99? 561 1 A Possibly, yes. 2 Q Not possibly. It's probably, isn't it? 3 A Probably, yes. 4 Q You also charted your late entry on the 5 9/22/99 entry, didn't you? 6 A I don't understand what you mean. 7 Q You told us a minute ago that even though you 8 didn't chart this on 9/20, you wrote 9/20, and sometimes 9 you would do that, correct? 10 A Yes. That's very common. 11 Q But take a look at what you did on the 9/29/99 12 note, excuse me, the 9/22/99 note. 13 A Okay. 14 Q 9/22 is the actual date that you charted this, 15 correct? 16 A I charted this one on 9/22, yes. 17 Q Right. What you put at the bottom was you 18 said, 9/22/99, the above incidents occurred -- the above 19 incident occurred on 9/20/99? 20 A Yes, that's correct. 21 Q That's the correct way to chart a late entry, 22 isn't it? 23 A There are several ways you can chart a late 24 entry. 25 Q This is the correct way, isn't it? 562 1 A It could be the correct way. Like I said, 2 there are several ways to chart a late entry. 3 Q Let's talk about the comparison of these two. 4 If I read the fourth entry, I know by looking at it that 5 you actually charted it on 9/22. 6 A I charted also on 9/20/99. I did both, yes. 7 That's my handwriting. 8 Q Listen to me. If look at the note, the fourth 9 entry note, I know from looking at that that you actually 10 charted it on 9/22/99? 11 A Yes. 12 Q If I look at your 9/20 note, I don't know that 13 you actually charted this on 9/21/99, do I? 14 MS. MARSHALL: Objection, speculation. 15 THE COURT: Sustained. 16 BY MR. OSBORNE: 17 Q Is there anything on your note of 9/20/99 to 18 indicate that that was written on any date other than 19 9/20/99? 20 A No. 21 Q Isn't it a fact that Rachel Bean -- hang on a 22 second. 23 In terms of these late entries, the three 9/20 24 entries, weren't you, in effect, backdating when you put 25 9/20/99 instead of 9/21/99? 563 1 A Yes, sir. 2 Q Okay. Do you know whether or not this 9/22/99 3 note, the extra one they did that's not in the chart, 4 whether or not Rachel Bean faxed this new charting to 5 DCFS on 9/23/99? 6 MS. MARSHALL: Objection, speculation of what 7 Rachel Bean did. 8 THE COURT: Just a minute. Let me see. 9 Overruled. 10 A What's your question again? 11 Q Yes, ma'am. Do you know that your 9/22/99 12 charting was faxed by Rachel Bean to DCFS on 9/23/99? 13 A No, I do not. 14 Q Isn't it true the only difference between the 15 two chartings, in terms of what you already charted, is 16 the addition of the words "passionately" and "for 17 approximately two minutes?" Just look through the whole 18 note. 19 A (Reviewing document.) Yes, sir. 20 Q That's the only difference, isn't it? 21 A Yes, sir. 22 Q What else is different? 23 A I also charted how Mr. Destefano put a paper 24 in the nurse's face and stated to the nurse that he was 25 not leaving until she signed the paper. Nurse went to 564 1 evening supervisor to explain situation to her. Evening 2 supervisor gave approval to sign paper. 3 Q Look at the earlier entry at 9/20/99 and tell 4 me why that's not the same as what you did then? 5 A I can't answer that question. I don't know. 6 Q I was asking you what was new about the 7 9/20/99 entry, not what you had already recorded. What 8 is new besides the word "passionately for approximately 9 two minutes"? 10 A Nothing that I see. 11 Q So why on earth did you do a second note that 12 was identical to what you had already charted in the 13 chart? 14 A I was instructed by Rachel Bean to do so. 15 Q Okay. And you follow orders, don't you? 16 A Yes, I do. 17 Q Isn't it true that Rachel Bean and Mary 18 Thornton told you that they had spoken with Margarita 19 Walters and that she had told them what happened? 20 A I don't recall. 21 Q Page 105, please, line 6. 22 A (Reviewing transcript.) Okay. 23 Q Does that refresh your memory that Rachel Bean 24 or Mary Thornton told you they had spoken with Margarita 25 Walters and she had told them what happened? 565 1 A Yes. 2 Q You never noticed any blood on the bed pad of 3 Carolina Destefano, did you? 4 A No, I did not. 5 Q Rachel Bean's the one that made you aware of 6 that on the afternoon of the 21st, correct? 7 A Yes, she was. 8 Q Rachel Bean showed you the bed pad and wanted 9 to know if you had seen it the night before? 10 A She -- she did. 11 Q You told her you did not? 12 A Correct. 13 Q Rachel Bean told you that Carolina Destefano 14 had been bleeding from her rectum? 15 A Yes. 16 Q On the 21st she told you that, didn't she? 17 A I was made aware of it, yes. 18 Q She told you she had just found a blood stain 19 where Mrs. Destefano had been bleeding from the rectum, 20 correct? 21 A If it says so here, yes. 22 Q Page 108, line 21. 23 A Yes. 24 Q She also told you she felt that Larry 25 Destefano had caused that bleeding, didn't she? 566 1 A I don't recall. I guess, yes, she did. 2 Q Look at page 108, line 24 to line 1. She did 3 tell you that she felt Larry Destefano had caused that 4 rectal bleeding, didn't she? 5 A Yes, she did. 6 Q Mary Thornton also told you that she felt 7 Larry Destefano was responsible for the blood coming from 8 his mother's rectum, didn't she? 9 A Yes, she did. 10 Q You testified that the reason you didn't chart 11 these events, the incident immediately, was because 12 Margarita Walters told you not to? 13 A That's correct. 14 Q And you feared you might lose your job if you 15 disobeyed her? 16 A Yes, that's correct. 17 Q You also felt that if you didn't follow Rachel 18 Bean's instructions as far as writing in the chart what 19 you did and where you wrote it that you could lose your 20 job? 21 A Possibly, yes. 22 Q Read your answer at page 120, line 20, please. 23 Excuse me, 120, line 13 to 17. 24 A 120 -- what page? 25 Q Page 120, line 13 to 17. 567 1 A I said yes. 2 Q The question was: "Did you feel if you didn't 3 follow Rachel Bean's instructions, as far as writing in 4 the chart what you did and where you wrote it, that you 5 could lose your job?" Your answer was yes. 6 A Yes. 7 Q Not possibly. Your answer was yes? 8 A Yes. 9 Q In fact, Rachel Bean is the one who told you 10 to write in the chart about Mr. Destefano being on top of 11 his mother, didn't she? 12 A Yes, sir. 13 Q Rachel Bean told you that? 14 A Yes, sir. 15 Q And you are absolutely certain that after 16 witnessing Mr. Destefano kissing his mother for two to 17 three minutes and lying on top of his mother that you 18 went immediately to Margarita Walters and told her 19 exactly what you saw? 20 A Yes, I did. 21 MR. OSBORNE: No further questions. 22 - - - - - 23 CROSS-EXAMINATION 24 BY MS. MARSHALL: 25 Q Ms. Melashenko, can you give us a little bit 568 1 of your background and your training? 2 A Yes. I've been a nurse for close to 35 years. 3 I graduated from nurse's training in 1971 with an LPN 4 degree after two years of school. I've had several years 5 of hospital experience, primarily in geriatric nursing, 6 which is the study of the aging. I've done orthopedic 7 rehab, stroke, neuro, ICU, PCU, CCU, ER, recovery room, 8 postop, and now I'm doing home health. 9 Q Okay. And at this time, do you work for 10 Florida Hospital or Sunbelt or any of its affiliated 11 entities? 12 A No, I do not. 13 Q I want to start with the -- what we were just 14 talking about with Rachel Bean telling you to chart in 15 the nurse's chart. Do you remember that discussion that 16 we just had -- that you just had with Mr. Osborne? 17 A Yes, I do. 18 Q Could you tell the jury whether you told 19 Rachel Bean what happened first or whether Rachel told 20 you what to write first? Which one happened first? 21 A I told Rachel Bean what happened first. 22 Q Okay. And then she wanted you to document it 23 in the chart? 24 A Yes, she did. 25 Q And she helped you write it? 569 1 A She instructed me, but I wrote it in my own 2 words. 3 Q You had told her what happened? 4 A Yes, I did. 5 Q And she dictated what -- how you should put it 6 down in the chart? 7 A Yes, she did. 8 Q In looking at the chart and what Mr. Osborne 9 just showed you, is there anything that you wrote in the 10 Sunbelt Nursing Home chart that did not happen? 11 A No. 12 Q So even though Rachel helped you write it, it 13 was all true? 14 A Yes, it was. 15 Q Now, you had -- Mr. Osborne asked you several 16 questions about your deposition. Can you tell the jury 17 when the deposition was taken? 18 A In July of 2002. 19 Q And that was approximately three years after 20 these events in question? 21 A Yes, ma'am. 22 Q Did you remember every little detail and time 23 about what happened on September 20th and September 21st? 24 A No, ma'am. 25 Q Now -- 570 1 MS. MARSHALL: Can I have the exhibits you 2 were referring to? 3 MR. OSBORNE: They're up on the witness stand. 4 A Which one do you want? 5 Q The picture, please. Okay. You were shown 6 pictures of the room with Mrs. Destefano; is that 7 correct? 8 A Yes, ma'am. 9 Q When you went to Mrs. Destefano's room to 10 deliver her supper on the night of the 20th, do you know 11 whether the bed was in exactly the same place as where 12 the bed is in those pictures? 13 A No, I do not. 14 Q And when you went to deliver the supper tray, 15 do you believe that -- did you step into the room? 16 A Yes, I did. 17 Q Page 25 of your deposition, could you turn to 18 that, please? 19 A Uh-huh. 20 Q And I believe that the portion that 21 Mr. Osborne was asking you about was your answer at line 22 14 to 19. 23 A Right. 24 Q About you knocked on the door. There was no 25 answer, and you went ahead and opened the door, and you 571 1 observed Mr. Destefano being in bed with his mother. Do 2 you see that? 3 A Yes, ma'am. 4 Q Did anybody ever -- did anybody ask you at 5 your deposition did you walk in the room? 6 A No. 7 Q Did you think that that was -- that whether 8 you took a step or two steps was important when you were 9 describing what you saw? 10 A No. 11 Q Does a late entry -- when you say late entry, 12 what does that mean? 13 A It means that we can add it later on in the 14 evening or the next day, depending on what the 15 circumstances are. 16 Q Is it kind of implicit in the term "late 17 entry" that it's not being documented 18 contemporaneously -- 19 A Right. 20 Q -- with what you're observing? 21 A Yes. 22 Q Now, you were asked about several different 23 entries in the chart at Sunbelt -- 24 A Right. 25 Q -- correct? Okay. Did anybody ever come to 572 1 you and say you need to be more detailed? We need to 2 know exactly what you saw? 3 A No. 4 Q When you did the fourth entry, you said that 5 it was done after you did the other three entries? 6 A Correct. 7 Q Okay. Was that done as a result of Rachel 8 Bean telling you that you needed to be more descriptive 9 about what you observed? 10 A Yes, ma'am. 11 Q Now, Mr. Osborne clocked what two or three 12 minutes actually means; do you remember that? 13 A No. Yes, I remember that, yes. 14 Q You remember that question? 15 A Yes. 16 Q Okay. On the night of the 20th, did you have 17 a stopwatch in your hand? 18 A No. 19 Q Okay. Did it seem like an awful long time? 20 A It seemed like an eternity, yes. 21 Q Is it possible that it really wasn't two or 22 three minutes? 23 A It's possible. 24 Q Now, you testified in your direct that you did 25 not chart the -- what you observed with Mr. Destefano, 573 1 you didn't chart it on the night of the 20th, correct? 2 A That's correct. 3 Q But you did chart it the next day on the 21st? 4 A That's correct. 5 Q And had this ever come up before? 6 A No. 7 Q Had you ever walked into a room of a patient 8 that you were taking care of and observed a grown son in 9 bed with his comatose mother? 10 A No. 11 Q Is there, to your knowledge, any book that 12 says this is what you're supposed to do when this 13 happens? 14 A No. 15 Q And Mr. Osborne also asked you some questions 16 about Mr. Destefano staying over that night; do you 17 remember that? 18 A Yes. 19 Q What time did you leave that night? 20 A 11:00. 21 Q Do you know, in fact, whether he did stay 22 overnight? 23 A I do not know, no. I was told he was going 24 to, but, you know, I did not know. 25 Q You left at around 11:00, to the best of your 574 1 recollection? 2 A 11:00, 11:15, after my shift was ended, yes. 3 Q Now, let's also talk about the note that was 4 signed that night. I don't remember what number that 5 was. 6 A This one? 7 Q Yes, the note. The stuff at the bottom, was 8 that -- the writing at the bottom, was that there when 9 you signed the note? 10 A No, ma'am. 11 Q And could you please read again, publish what 12 it actually says? 13 A "Sunbelt Health Care, 9/20/99, Orlando, 6:15 14 p.m. No wound addressing on Carolina Destefano, Room 15 307, witness C. Boze." And then the word "Carol" is 16 written underneath it, but it's not my handwriting. 17 Q Okay. And you testified that you were 18 concerned about signing it because you thought it was an 19 admission of guilt? 20 A That's correct. 21 Q Tell us what you meant by that. 22 A According to the treatment sheet, the wound 23 care had been done. Deborah told us that the wound care 24 had been done. I believed her. And sometimes dressings 25 fall off. I mean, when you turn a patient from side to 575 1 side, sometimes that happens. It happens all the time. 2 It's not a big issue. So I went ahead and did the 3 dressing change as he asked. I replaced the dressing as 4 he asked me to do, and I thought that was the end of it. 5 Q Okay. So when he asked you to sign the note, 6 did you feel that you were being set up for something 7 that wasn't true? 8 A Yes, ma'am. 9 Q And you had talked to -- regardless of what's 10 in the chart and when it was charted, did you have a 11 conversation with the 7:00 to 3:00 nurse? 12 A About what? 13 Q About the -- about what she had done that day 14 with regards -- 15 A Yes, ma'am. 16 Q And who was that? 17 A Deborah Jarrell. 18 Q And is that -- do you guys meet when your 19 shift changes? 20 A Yes. We have -- we have shift change report. 21 Q And what happens at report? 22 A We talk -- we discuss the patients that I'm 23 assigned to; what that day went on; if they had lab work 24 done; what treatments were done, not done; what their 25 condition was, you know, any new -- any new orders like 576 1 IV therapy, or as far as pain medication goes, things 2 like that. 3 Q And with regard to Mrs. Destefano, do you 4 remember what was discussed at report on the September 5 20th, 1999? 6 MR. OSBORNE: Object, hearsay. 7 THE COURT: You want to be heard on that? 8 MS. MARSHALL: I'll withdraw the question, 9 Your Honor. 10 THE COURT: Okay. 11 BY MS. MARSHALL: 12 Q Now, Connie Standish was a nurse at Sunbelt 13 when you were there; is that correct? 14 A Yes, ma'am. 15 Q Did you see Mrs. Standish at all during your 16 shift on September 20th, 1999? 17 A I don't recall, but I don't think so, no. No, 18 ma'am. 19 Q Were you friends with Mrs. Standish? 20 A No, I was not. 21 Q Was she somebody that you would confide in? 22 A No, she was not. 23 Q Did you ever ask Mrs. Standish about input -- 24 for input about the note at any time? 25 A No, I did not. No, I do not. 577 1 Q You also testified that Mrs. -- that you were 2 aware that Mrs. Bean believed that Mr. Destefano had 3 caused the blood on the bed pad; is that correct? 4 A Yes, ma'am. 5 Q Were you ever told how or why they thought the 6 blood got on the bed pad? 7 A According to my testimony in here, yes. 8 Q Okay. And what was that? 9 A She felt that Mr. Destefano possibly by 10 manipulating his wife -- his mother's rectum by 11 disimpacting her. 12 Q By disimpaction? 13 A Yes, ma'am. 14 Q Did you get along with Rachel Bean? 15 A No, I don't. 16 Q Why not? 17 A She was a very tough boss. She towed the 18 line. She was very difficult to get along with. She was 19 very hard on us nurses. If we don't do exactly what she 20 wanted, she would come down very hard on us. And she was 21 always threatening to terminate us if we didn't do what 22 she wanted. It was a common thing with her. 23 Q And were you -- did she come down hard on you 24 for not or for signing that note? 25 A Yes, she did. 578 1 Q And was that because she thought that anything 2 that had to do with medical treatment should have been 3 noted in the nurse's note and not on a separate piece of 4 paper? 5 A Yes, ma'am. 6 MR. OSBORNE: Object -- 7 Q And was she also mad at you for not charting 8 what you observed with regards to Mr. Destefano being in 9 bed with his mom, for not charting that at the time that 10 it occurred? 11 A Yes, ma'am. 12 MR. OSBORNE: Objection, calls for state of 13 mind. 14 THE COURT: Sustained. 15 MR. OSBORNE: Move to strike the answer. 16 THE COURT: Would you restate the question? I 17 want to make sure I heard the question correctly. 18 MS. MARSHALL: Okay. 19 BY MS. MARSHALL: 20 Q When you were being reamed out by Rachel Bean, 21 were you reamed out because you didn't chart the kissing 22 at the time that it occurred? 23 A Yes. 24 MR. OSBORNE: State of mind, Judge. Unless 25 it's something she was told -- 579 1 THE COURT: Sustained. 2 MR. OSBORNE: Move to strike. 3 THE COURT: That motion is granted. The jury 4 will disregard the answer to the last question. 5 BY MS. MARSHALL: 6 Q Now, you said that Rachel Bean was a tough -- 7 tough boss? 8 A Yes, ma'am. 9 Q Did you ever observe her yelling or losing her 10 temper with patients? 11 A No, ma'am. 12 Q Did you ever observe her yelling or losing her 13 patience with families? 14 A No, ma'am. 15 Q Did you ever observe her disrespecting 16 patients? 17 A No, ma'am. 18 Q Did you ever observe her disrespecting 19 patients' families? 20 A No, ma'am. 21 Q Now, if you can look in your -- the nurse's 22 notes that you wrote that have your name on them. 23 A Which one? The ones on the 20th? 24 Q Yes, please. Is everything that is contained 25 within that nurse's note based on your own -- what you 580 1 personally saw? 2 A Yes, ma'am. 3 Q What about -- and is all of that true? 4 A Yes, ma'am. 5 Q Let's go to what's on the next page, which is 6 also a 9/20/1999 late entry. 7 A Yes, ma'am. 8 Q Is everything in that entry based on what you 9 personally saw or observed? 10 A Yes, ma'am. 11 Q And what about the entry over on the next 12 page, actually the next two entries after Mary Thornton's 13 entry. 14 A Yes, ma'am. 15 Q Were those -- were those two entries based on 16 what you personally observed and saw? 17 A Yes, ma'am. 18 Q And is everything in there true -- 19 A Yes, ma'am. 20 Q -- on those two entries? 21 A Yes, ma'am. 22 Q Did Rachel Bean or Mary Thornton ever ask you 23 to exaggerate anything? 24 A No, ma'am. 25 Q As you sit here today, do you have a 581 1 recollection of what you saw in the room between 2 Mrs. Destefano and Mr. Destefano on the night of 3 September 20th, 1999? 4 A Yes, ma'am. 5 Q Could you tell the jury, in your own words, 6 what you saw? 7 A Sure. That evening I was a nurse. I passed 8 out trays. That was part of my job to help out the CNAs 9 with the trays. Mrs. Destefano's room was part of my 10 assignment, so I went to her room with the tray in my 11 hand. The tray is very heavy. And I held the tray like 12 this (indicating), and I knocked on the door; no answer. 13 I knocked on the door; no answer. Knocked on the door; 14 no answer, very loud for everybody in the world to hear. 15 So I opened the door. I stepped inside the 16 room, and when I did, I saw Mr. Destefano laying on top 17 of his mother with his chest over her, kissing her 18 passionately for several minutes. 19 Q When you say "passionately," what do you mean 20 by passionately? 21 A Kissing on the lips. 22 Q Anyplace else? 23 A On her cheeks, on her neck, on her lips. 24 Q Was it one long kiss or was it repeated 25 kisses? 582 1 A Repeated kisses. After that, after I composed 2 myself because -- 3 MR. OSBORNE: Object, beyond the scope of the 4 question. 5 Q Could you tell us what happened next after you 6 witnessed the kiss that you just described? 7 A Okay. After I composed myself, because I was 8 in shock because I never seen anything like this before 9 as a nurse, I said to Mr. Destefano, I said, here is her 10 supper tray. Would you like for me to feed her? And he 11 said, no thank you. He took the tray out of my hands. 12 He said you may leave now and close the door. 13 THE COURT: Counsel approach. 14 (Bench conference held outside the presence of the 15 court reporter.) 16 (Open court.) 17 THE COURT: Ladies and gentlemen of the jury, 18 at this time, we are going to conclude for the day. 19 I would ask that you return and be prepared to get 20 started tomorrow morning. I'm going to ask you to 21 get here a little bit early. Let's try to start a 22 few minutes before 9:00. I'd like for you to be 23 here no later than 8:45. Thank you very much. 24 THE COURT DEPUTY: All rise for the jury. 25 (Jury exits.) 583 1 THE COURT: I regret to tell you you are 2 ordered to return in the morning. 3 THE WITNESS: Yes, ma'am. 4 THE COURT: To be here at 8:45. 5 THE WITNESS: Yes, ma'am. 6 THE COURT: You will be summoned, and I expect 7 you will be released shortly thereafter, but there 8 remains some additional testimony. 9 THE WITNESS: Okay. Not a problem, not a 10 problem. 11 MS. MARSHALL: There is one other witness, if 12 you don't mind. 13 THE COURT: I'm sorry. I've gone past my 14 time. I'm unable to speak with anyone else. Is 15 your other witness in the room? 16 MR. OSBORNE: She's right out here. 17 THE COURT: Get the witness. Is this your 18 witness, Ms. Marshall, here? 19 MS. MARSHALL: Yes. 20 MR. OSBORNE: Yes. 21 THE COURT: What is your name, ma'am? 22 MS. WALTERS: Margarita Walters. 23 THE COURT: Ms. Walters, you are ordered by 24 this Court to return tomorrow morning at 8:45 and be 25 prepared to testify at that time. You understand? 584 1 THE WITNESS: Yes. 2 THE COURT: Thank you very much. Court is in 3 recess. 4 (The proceedings were recessed at 5:20 p.m.) 5 (Continued to Volume VI) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 585 1 C E R T I F I C A T E 2 STATE OF FLORIDA) 3 COUNTY OF ORANGE) 4 I, LAURA J. LANDERMAN, R.M.R., C.R.R., certify that 5 I was authorized to and did stenographically report the 6 foregoing proceedings and that the transcript is a true 7 and accurate record. 8 Dated this 16th day of June, 2006. 9 10 11 ___________________________________ 12 LAURA J. LANDERMAN, R.M.R., C.R.R. 13 14 15 16 17 18 19 20 21 22 23 24 25