586 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 VI 15 (Pages 586 through 758) 16 Continued transcript of proceedings held before the 17 Honorable Renee Roche, Judge of the Circuit Court, Orange 18 County, Florida, on Wednesday, October 19, 2005, 19 beginning at 8:51 a.m., at the Orange County Courthouse, 20 Orlando, Florida, before Laura J. Landerman, R.M.R., 21 C.R.R., and Notary Public, State of Florida at Large. 22 23 24 25 587 1 A P P E A R A N C E S: 2 WILLIAM G. OSBORNE, ESQUIRE TERRY McCULLOUGH, Legal Assistant 3 Law Offices of 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 25 588 1 I N D E X 2 INTERVIEW WITH JUROR TAMMY BILLINGS-VETTOR 590 3 INTERVIEW OF INDIVIDUAL JURORS Juror Rodriguez 604 4 Juror Guard 608 Juror Breckling 610 5 Juror Benz 613 Juror Berrios 617 6 Juror Casillas 620 Juror Kiley 624 7 PLAINTIFF'S MOTION FOR MISTRIAL RE: JURY 629 8 DEFENDANTS' MOTION FOR MISTRIAL RE: JURY 634 9 TESTIMONY OF CAROL BOZE MELASHENKO, LPN 10 Cross-Examination (cont'd) by Ms. Marshall 634 11 Cross-Examination by Mr. Townsend 636 Redirect Examination by Mr. Osborne 637 12 TESTIMONY OF MARGARITA WALTERS, R.N. 13 Direct Examination by Mr. Osborne 642 14 Cross-Examination by Ms. Petro 658 Cross-Examination by Mr. Townsend 670 15 Redirect Examinatoin by Mr. Osborne 671 16 TESTIMONY OF CONSTANCE STANDISH (via videotape) 17 Direct Examination by Mr. Osborne 678 Cross-Examination by Ms. Marshall 697 18 Cross-Examination by Mr. Townsend 714 Redirect Examination by Mr. Osborne 715 19 TESTIMONY OF MARY ANN THORNTON, LPN 20 Direct Examination by Mr. Osborne 719 21 22 23 24 25 589 1 E X H I B I T S (In Evidence) 2 Plaintiff's Exhibit No. 7 727 Plaintiff's Exhibit No. 8 749 3 Plaintiff's Exhibit No. 6 754 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 590 1 N E X T D A Y S E S S I O N 2 (Wednesday, October 19, 2005) (8:51 a.m.) 3 (Appearances same as heretofore noted previously:) 4 THE COURT: All right. Are you waiting 5 expectedly to say something? 6 MR. OSBORNE: No, ma'am. 7 THE COURT: Can you give me the floor for just 8 a minute? The first thing I would like to do is 9 bring in -- may I see that note from yesterday -- 10 bring in the juror who sent the note out. 11 This is Tammy Vettor, and I intend to have a 12 conversation with her about her note, and then I 13 will ask the attorneys to approach the bench and we 14 will proceed. 15 MR. OSBORNE: Judge, I think in the inquiry, 16 I'm not -- never mind. 17 (Juror Tammy Billings-Vettor enters the courtroom.) 18 THE COURT: Good morning. 19 MS. BILLINGS-VETTOR: Good morning. 20 THE COURT: Sit wherever you'd like to, 21 Ms. Vettor. Let me begin by saying that I received 22 two things, first an inquiry through the deputy as 23 to whether I would meet with you, which is not 24 appropriate, and then you sent a note to me. 25 What you probably don't know is you and I 591 1 can't have communication and conversation during the 2 course of this trial without my advising counsel and 3 necessarily then their clients of the contents of 4 any communication. 5 Now, what I can tell you at the outset is that 6 in the 20-some years that I have been in this legal 7 community and on the bench and knowing and handling 8 criminal cases, knowing about criminal cases, 9 criminal cases -- this is a civil case, as you'll 10 remember -- I have never heard in this community of 11 any person, even the most heinous criminals, 12 approaching or intimidating a juror, never, after 13 the trial, never heard of that. 14 Now, sometimes you may hear stories in big 15 cities about attempted influence of jurors in the 16 course of a case. You may read about that in mob 17 trials or, you know, any number of things, but 18 that's never, to my knowledge, happened here, and I 19 just don't believe it occurs. 20 And in the state of Florida in the Ninth 21 Circuit, we try all kinds of people. We've tried 22 some of the most heinous criminals in the history of 23 the state here. There's never been such a thing. 24 And I ask you, does that offer you any 25 reassurance as to your concerns? 592 1 MS. BILLINGS-VETTOR: Well, there's always a 2 first time, but as long as I can be assured that 3 there will be no such problem. I just was kind of a 4 little surprised that I was even asked that 5 information, honestly, where I worked. That's kind 6 of -- I thought jurors were given more kind of 7 anonymity. 8 THE COURT: Okay. Given the expression of 9 your concerns, is this something that you can set 10 aside and listen to the evidence that's presented, 11 consider fairly to both the plaintiff and these 12 defendants the testimony of witnesses and listen to 13 all the evidence as it comes in? And remember, 14 opening statements by the lawyers is not evidence. 15 It's not -- we haven't heard from all the witnesses 16 about what this is going to be and who's what and 17 who has what and who did what. That hasn't come out 18 yet. So can you set aside your concerns and hear 19 the evidence fairly? 20 MS. BILLINGS-VETTOR: I don't know that. It's 21 just that I was very concerned yesterday, and I kept 22 thinking about it, and there were times that I 23 missed information. That's why I brought it -- I 24 thought I should bring it to somebody's attention 25 because I was surprised. I kept thinking why did I 593 1 even say where I worked. I just kept thinking that, 2 and I just felt uncomfortable. 3 THE COURT: Why? 4 MS. BILLINGS-VETTOR: Well, due to the past 5 behavior, you know, picketing and signs and all the 6 other, you know, I just thought it was not a good 7 idea to even give that information. Like I said, I 8 really was -- thought there was more anonymity. I 9 was under the impression jurors was granted 10 anonymities. There was no other information other 11 than a name and number. I thought it was a number, 12 but my name is also said. 13 THE COURT: And that's not something that you 14 think you can set aside and disregard to listen to 15 the evidence and make a decision for these litigants 16 in this case? 17 MS. BILLINGS-VETTOR: Like I said, I would 18 hope that I could, but I don't think -- I don't 19 know. 20 THE COURT: Counsel approach the bench, 21 please. 22 MS. BILLINGS-VETTOR: I can't guarantee that. 23 THE COURT: Ms. Vettor, why don't you wait 24 outside. The deputy will take you outside. That's 25 all right. You don't have to approach. Let's just 594 1 have her go out. 2 (Ms. Billings-Vettor exits the courtroom.) 3 MR. OSBORNE: Judge, I think she needs to go, 4 but I also would like an inquiry as to whether she's 5 discussed this with any other jurors. 6 MR. TOWNSEND: I think I have to agree. 7 MS. MARSHALL: I agree. 8 THE COURT: On all fronts? 9 MS. MARSHALL: Yes. 10 (Ms. Billings-Vettor re-enters the courtroom.) 11 THE COURT: I just have a couple more 12 questions. I hope that you listened carefully to 13 the Court's admonition at the beginning when you and 14 the other lady that were sitting in the jury box, 15 that it is profoundly and fundamentally improper for 16 you to discuss any aspect of this case prior to the 17 deliberation of the jury. Did you hear the Court 18 say that? 19 MS. BILLINGS-VETTOR: Uh-huh, yes. 20 THE COURT: You have now expressed some 21 reservations, and frankly, some prejudging of the 22 plaintiff prior to hearing the completion of the 23 testimony. Have you discussed those concerns at all 24 with any of your fellow jurors? 25 MS. BILLINGS-VETTOR: No. 595 1 THE COURT: Have you said anything at all 2 about -- to your fellow jurors -- about the contents 3 of this note, your conversations with the deputy or 4 your desire to speak with the Court privately? 5 MS. BILLINGS-VETTOR: I said that I was 6 concerned that I gave out my information, that I -- 7 THE COURT: I'd like for you to tell me 8 specifically what you said to the jury. 9 MS. BILLINGS-VETTOR: I just mentioned that I 10 was concerned that I had said my name or that I was 11 asked where I worked and that I said the exact 12 location where I worked. 13 THE COURT: And what else did you say? 14 MS. BILLINGS-VETTOR: Pretty much that's it. 15 THE COURT: I don't want to know pretty much. 16 I want to know exactly what else you said. 17 MS. BILLINGS-VETTOR: That I was concerned 18 that the information was out there, my name and 19 where I worked. 20 THE COURT: What else did you say? 21 MS. BILLINGS-VETTOR: That I was concerned 22 that my information -- that I thought there was more 23 anonymity, and I was concerned that my information 24 is out there, that there is a lot of information 25 about me that's out there now that was said, and I 596 1 thought there was more of an anonymity issue as 2 jurors. 3 THE COURT: So you said nothing beyond that? 4 MS. BILLINGS-VETTOR: No. I didn't discuss 5 anything other than that I was concerned -- 6 THE COURT: You don't need to repeat that 7 again, but you haven't -- 8 MS. BILLINGS-VETTOR: -- that I said my name 9 and where I worked, the exact location. 10 THE COURT: Okay. Did you say anything at all 11 about the plaintiff? 12 MS. BILLINGS-VETTOR: Other than him being in 13 the room, that everybody was in the room when I said 14 this. 15 THE COURT: Well, then, I'd like for you to 16 explain exactly what you mean by that. 17 MS. BILLINGS-VETTOR: Well, that everybody was 18 in the room while they were interviewing me, 19 including the plaintiff. 20 THE COURT: Did you say "including the 21 plaintiff"? 22 MS. BILLINGS-VETTOR: Yes, I said including 23 the plaintiff. Everybody was in the room, and the 24 lawyer asked me where I worked, and I said where I 25 worked. 597 1 THE COURT: Is that the complete and full 2 extent of your -- 3 MS. BILLINGS-VETTOR: Yes, yes. 4 THE COURT: Ms. Vettor, you're going to be 5 excused now to leave. In the future, I would 6 caution you from saying anything in the jury room at 7 all about the case because what you have just 8 related to me is a violation of your oath as a 9 juror. 10 MS. BILLINGS-VETTOR: I wasn't aware of that. 11 THE COURT: I think the Court was very clear 12 concerning the prohibition against discussing any 13 aspect of this case prior to deliberations. 14 MS. BILLINGS-VETTOR: Right. I thought I was 15 just discussing the interview process. 16 THE COURT: That is an aspect of the case. 17 That conversation may place in jeopardy our ability 18 to proceed. So in the future, if you serve on a 19 jury, I would admonish you, for the sake of the 20 litigants, not to have any conversations prior to 21 deliberation. 22 MS. BILLINGS-VETTOR: (Nods head.) 23 THE COURT: We have now spent three days, 24 three extraordinarily expensive and emotionally 25 draining days in this courtroom, which may have to 598 1 be thrown out and we'll have to start again in six 2 months. So let me underscore that for you. You are 3 excused. I would ask you to go to the jury room. 4 MR. OSBORNE: Your Honor, I'd like to approach 5 the bench before you excuse the juror. 6 (Bench conference.) 7 MR. OSBORNE: Would you inquire as to where 8 she was when she wrote the note? Was she in the 9 presence of the jury or did she do it back in the 10 box by herself? 11 MS. MARSHALL: Was it just with the alternate 12 or was it with everybody? 13 THE COURT: It was yesterday. It was after 14 she had joined everyone, but I will ask her. 15 MR. TOWNSEND: Also about whether or not there 16 was inquiry as to why she was inquiring. 17 (Open court.) 18 THE COURT: Ms. Vettor, when you wrote this 19 lengthy note to me, which will be in the record as 20 one full page, where were you when you wrote that? 21 MS. BILLINGS-VETTOR: In the jury room. 22 THE COURT: In the jury room in the presence 23 of the other jurors? 24 MS. BILLINGS-VETTOR: The officer handed me 25 the pad and asked me to write the letter in the jury 599 1 room. 2 THE COURT: When you had this conversation 3 about I'm concerned about my information, quote, 4 being out there, did anyone say why are you worried 5 or what troubles you or any questions asked of you 6 at all? 7 MS. BILLINGS-VETTOR: No, just that I was 8 concerned that I had divulged information. 9 THE COURT: I hear you. Do you recall the 10 specific juror that you made those comments to? 11 MS. BILLINGS-VETTOR: I just made it in the 12 room. 13 THE COURT: All right. Anything else, 14 Counsel? 15 MR. OSBORNE: No, Your Honor. 16 MR. TOWNSEND: No, ma'am. 17 MS. MARSHALL: No. 18 THE COURT: You're excused. You need to check 19 in with the jury room before you leave, and you can 20 take -- leave your pad there. 21 (Ms. Billings-Vettor exits the courtroom.) 22 THE COURT: Well, the plumbing's backed up in 23 there; the jurors are bailing on us on a daily 24 basis; we have a hurricane headed this way, I mean, 25 what next? Locusts? Lakes are going to turn to 600 1 blood? 2 All right. Before we proceed with whatever 3 motion you've got, Mr. Osborne, I'm going to bring 4 the jury in here and inquire of them as a whole, and 5 then you can approach the bench and talk to me about 6 any further questions that you would care for me to 7 ask of them. And then I'll excuse them again, and I 8 will hear your motions. Is there anything else 9 before we start that? 10 MS. MARSHALL: Well, Your Honor, I would just 11 like an opportunity, probably about ten minutes, to 12 consult with our appellate lawyers to see whether 13 there's anything curative. I don't want to argue to 14 go forward if -- if it's just going to waste my 15 client's money for another two weeks of time. 16 MR. TOWNSEND: Also, Your Honor, inquiring of 17 the jury as a whole, if they don't have any issues 18 of what she said, isn't that going to just -- 19 THE COURT: Draw their attention to it? 20 MR. OSBORNE: It's going to plant the seeds, 21 if they're not planted already. I think inquiring 22 at all is problematic. 23 THE COURT: All right. Let me do this, then. 24 Let's take a break. You call your office, if you've 25 got appellate counsel or you want to consult with 601 1 your client and co-counsel, and then I'll -- if 2 there's an objection -- you're going to make a 3 motion, I'm sure, to mistry this case, which is, you 4 know, a perfectly legitimate position to take, I 5 think, to advance. I'm not saying I'm going to 6 grant it, but I respect your ability to argue it. 7 And then if there is an objection, then I'm 8 going to bring them in and talk to them and see. 9 And I would try to couch the inquiry in as neutral 10 terms as possible by saying that she is excused. In 11 the course of her time in the jury room, was there 12 anything that was said or done by her that has 13 caused them to be unable to serve and render a fair 14 and impartial verdict and so forth without quoting 15 specifically what she said. 16 You know, I don't -- I don't know. I'll hear 17 your argument, Mr. Osborne, and, you know, we'll 18 just press ahead. Who knows. You may really like 19 this jury and you may decide to go on, but, you 20 know, if nothing else, this is certainly a lesson 21 about the length of time it's going to take to try 22 this case, possibly, and how much time we should 23 devote to jury selection. 24 You all have been unbelievably cooperative in 25 trying to get this thing done, but maybe we just 602 1 need to devote two days to jury selection and be 2 satisfied with that and put another day on the end 3 of this thing. But I'm just as disappointed as I 4 can be about how this has gone. It's just events 5 beyond our control, I think. 6 So why don't I give you that opportunity. 7 We'll take 10 or 15 minutes. 8 MS. MARSHALL: Thank you, Your Honor. 9 (A 15-minute recess was had.) 10 THE COURT: In the interest of full and fair 11 disclosure, I'm going to give you another minute to 12 digest this information. I do want you to 13 understand that if this case is not completed today 14 or these two weeks in front of me, I expect another 15 judge will take this case, so factor that into your 16 consideration. 17 You may all jump up and down and say, great, 18 finally, or you may say, oh, great, we have to 19 educate another knucklehead about this whole thing. 20 This is not a business court case in terms of the 21 definition of business court case, and so that, you 22 know, you can expect that if I continue this case, 23 that there may be somebody else. 24 And I don't know who that will be, can't tell 25 you. It could be new civil judges coming in. It 603 1 could be anybody. It could be -- I expect I'd put 2 it on one of these so-called rocket dockets, which 3 is extraordinarily uncertain in terms of be here 4 tomorrow kind of thing, so just be aware of that and 5 consider it. 6 Now, have you spoken with your -- are you 7 prepared to take a position? What's your position? 8 MS. MARSHALL: I would request that the Court 9 interview the jurors one by one. 10 MR. TOWNSEND: We would agree with that, Your 11 Honor. 12 MR. OSBORNE: I agree. 13 THE COURT: Corporal, we're going to have to 14 bring the jurors in one by one. Before you race 15 back there -- and I'm not kidding. The plumbing in 16 this place, we may have to consider moving these 17 folks. 18 What do you want me to ask them, Mr. Osborne? 19 MR. OSBORNE: I want you to ask them, Judge, 20 if they witnessed Juror Vettor writing the note in 21 the jury room; if they asked her what she was 22 writing about; did she tell them what she was 23 writing about; was there any discussion among the 24 jury about that, and what was that discussion, and 25 whether they read any part of the note. 604 1 THE COURT: Anything else? 2 MR. OSBORNE: That's all I can think of, 3 Judge. 4 MS. MARSHALL: I think that would be 5 sufficient. 6 MR. TOWNSEND: That's fine, Your Honor. 7 THE COURT: We're going to have to bring them 8 in one at a time, Corporal. 9 THE COURT DEPUTY: You want them back here or 10 leave them out here? 11 THE COURT: Fine. You can bring them in that 12 way. 13 (Juror Rodriguez enters the courtroom.) 14 THE COURT: Good morning. I have a couple of 15 questions not just of you. I'm going to ask 16 everybody. We're going to do this one at a time. 17 Okay? For purposes of this questioning, I just 18 remind you that you took an oath as a juror and that 19 I would expect that you'd still be under the same 20 oath to be truthful and so forth. 21 Yesterday, another juror, Ms. Vettor, sat down 22 and wrote a note to the Court on a piece of yellow 23 paper. Did you witness her doing that? 24 MS. RODRIGUEZ: Yes. 25 THE COURT: Did you see her doing that? 605 1 MS. RODRIGUEZ: Yes. 2 THE COURT: Did you ask her anything about 3 that note at all? 4 MS. RODRIGUEZ: (Shakes head.) 5 THE COURT: Did she tell you anything about 6 the note? 7 MS. RODRIGUEZ: Yeah, she mentioned she was -- 8 she didn't want to be a part of the jury process 9 because a lot of personal information was said 10 during the selection process. 11 THE COURT: Okay. To the best of your 12 recollection, can you tell me exactly what it was 13 that she said? 14 MS. RODRIGUEZ: Okay. Well, I got bits and 15 pieces of it, but -- 16 THE COURT: Is that because you were hearing 17 her in bits and pieces or it was repeated to you in 18 bits and pieces? 19 MS. RODRIGUEZ: No. She didn't speak to me 20 directly. I mean, she just made a comment. 21 THE COURT: Okay. 22 MS. RODRIGUEZ: She just said that -- she was 23 very upset in her face. She wasn't happy to be 24 there. And she mentioned that -- I don't know who 25 she was talking to, but she did mention that she was 606 1 very concerned that a lot of personal information 2 was said during the selection process, and something 3 about Casual Corner at the Florida Mall, and that, 4 you know, that's it. 5 THE COURT: Is that all you remember? 6 MS. RODRIGUEZ: Yeah, that's what I got out of 7 it. 8 THE COURT: Did you ask her any questions? 9 MS. RODRIGUEZ: No. I didn't cross words with 10 her. 11 THE COURT: Thank you for following the 12 Court's instruction. 13 MS. RODRIGUEZ: No problem. 14 THE COURT: Did you read the note that she 15 wrote? 16 MS. RODRIGUEZ: No, not at all, not at all. 17 THE COURT: Did you talk with any other jurors 18 about what she said? 19 MS. RODRIGUEZ: Yes. We mentioned this 20 morning outside the door that we were concerned that 21 she'd show up because she did mention she was 22 distressed about the whole situation. When we saw 23 her, we were like, oh, she did show up. 24 THE COURT: Is that the extent of the 25 conversations? 607 1 MS. RODRIGUEZ: Yes, this morning, yes. 2 THE COURT: Now, you were very forthcoming and 3 very patient with the Court and the lawyers during 4 the jury selection process, and I know you were 5 repeatedly asked this question, but I ask it to you 6 again. 7 In light of what has occurred and what you 8 just described, can you listen to this case without 9 prejudging it? 10 MS. RODRIGUEZ: Of course. 11 THE COURT: Can you hear the evidence fairly 12 and impartially and reach a fair and impartial 13 verdict in this case? 14 MS. RODRIGUEZ: Yes, I can. 15 THE COURT: Can you set aside anything that 16 Ms. Vettor said to you and put it out of your mind 17 and consider -- 18 MS. RODRIGUEZ: It doesn't affect me at all 19 because nothing about me was personally said during 20 the selection process, so it doesn't even trouble me 21 at all. 22 THE COURT: Any follow-up questions from the 23 lawyers? If so, you need to approach the bench. 24 (Bench conference.) 25 MR. OSBORNE: She just said that nothing about 608 1 her was said personally so it didn't bother her. 2 How would she have felt if something was said about 3 where she worked, the inference being because he 4 doesn't know where I work, I feel okay about it. 5 THE COURT: I'm not going to ask that 6 question. 7 MS. MARSHALL: That would be prejudicial. 8 THE COURT: Uh-huh. 9 MR. TOWNSEND: I just want to make sure that 10 you identify which juror we're talking to for the 11 record. I don't know that that came across. 12 (Open court.) 13 THE COURT: Ma'am, would you just say your 14 name for me? 15 MS. RODRIGUEZ: Veronica Rodriguez. 16 THE COURT: Thank you very much. You can step 17 outside. We'll get to you just as soon as we can. 18 (Juror Rodriguez exits the courtroom, and Juror Guard 19 enters the courtroom.) 20 THE COURT: Tell me your name again, please. 21 MS. GUARD: My name is Petra Guard. 22 THE COURT: Ms. Petra, yesterday another 23 juror, Ms. Vettor, sent the Court a note that she 24 had written on a yellow pad. Did you see her 25 writing that note? 609 1 MS. GUARD: I was aware she wrote -- I saw 2 that she -- not really. I saw she was writing. 3 THE COURT: You saw she was writing a note. 4 Did you read the note? 5 MS. GUARD: No. 6 THE COURT: Did you ask Ms. Vettor or talk to 7 Ms. Vettor about the note? 8 MS. GUARD: No. 9 THE COURT: Did you hear anything that she 10 said about why she was writing a note to the Court? 11 MS. GUARD: No. 12 THE COURT: Did you hear anyone else say 13 anything about that note? 14 MS. GUARD: No. 15 THE COURT: Is there anything about that 16 situation that makes you unable to follow your oath 17 as a juror and render a fair and impartial verdict 18 in this case? 19 MS. GUARD: No. 20 THE COURT: Any further questions? 21 MS. MARSHALL: No, Your Honor. 22 MR. TOWNSEND: No, Your Honor. 23 MR. OSBORNE: No, Your Honor. 24 THE COURT: Thank you very much, ma'am. 25 You're excused. We'll get back with you as quickly 610 1 as possible. 2 (Whereupon, Juror Guard exits the courtroom, and Juror 3 Breckling enters the courtroom.) 4 THE COURT: What's your name again, ma'am? 5 MS. BRECKLING: Patricia Breckling. 6 THE COURT: Yesterday another juror sent the 7 Court a note on a yellow pad. 8 MS. BRECKLING: Uh-huh. 9 THE COURT: Were you aware of that? 10 MS. BRECKLING: I just saw her writing the 11 note. 12 THE COURT: You saw her writing a note? 13 MS. BRECKLING: Right. 14 THE COURT: Did you read the note? 15 MS. BRECKLING: No. 16 THE COURT: Did you ask her about the note? 17 MS. BRECKLING: No. 18 THE COURT: Did you hear her say anything 19 about the note? 20 MS. BRECKLING: No. 21 THE COURT: Did you hear Ms. Vettor say 22 anything about the way this trial was being 23 conducted or anything that was happening here in the 24 courtroom? 25 MS. BRECKLING: She just said she was nervous. 611 1 THE COURT: If you would, as specifically as 2 you can, tell me what she said. 3 MS. BRECKLING: She said she was nervous about 4 you knew her name and where she worked. 5 THE COURT: Did she say who she was nervous 6 about? 7 MS. BRECKLING: The plaintiff. 8 THE COURT: Okay. Did she say the plaintiff 9 in particular or everybody? 10 MS. BRECKLING: No, she just said him. 11 THE COURT: Did she say anything else about 12 the plaintiff? 13 MS. BRECKLING: No, not that I heard. 14 THE COURT: And did she say that directly to 15 you? 16 MS. BRECKLING: No. She just said it in 17 general. 18 THE COURT: And that's all that you recall her 19 saying about the plaintiff? 20 MS. BRECKLING: That's all. 21 THE COURT: Anyone say to -- did you or anyone 22 else say anything back to her in response to it? 23 MS. BRECKLING: I don't think so. 24 THE COURT: Is that all you recall about that? 25 MS. BRECKLING: That's all I recall. 612 1 THE COURT: Okay. Is that -- did that 2 exchange, those statements, cause you in any way to 3 feel that you cannot concentrate on this case, hear 4 the evidence, and render a fair and impartial 5 verdict? 6 MS. BRECKLING: No. 7 THE COURT: Didn't have any affect on you with 8 respect to the questions that you answered yesterday 9 or the oath that you took? 10 MS. BRECKLING: No. 11 THE COURT: Anything else you want to say 12 about that? 13 MS. BRECKLING: No. 14 THE COURT: All right. 15 MR. TOWNSEND: May we approach, Your Honor? 16 THE COURT: Yeah, just a minute. Let me just 17 underscore for you that the statements that were 18 made were not proper given the Court's admonition 19 not to comment in the jury room about things that 20 happened in here. 21 MS. BRECKLING: Uh-huh. 22 THE COURT: And although you may think that, 23 well, that was part of jury selection or I didn't 24 think that was part of the Court's direction, if 25 there's ever any question about that, the answer is 613 1 no. 2 MS. BRECKLING: Right. 3 THE COURT: Talk about the weather. 4 MS. BRECKLING: Right. 5 THE COURT: Talk about your favorite 6 television show, but don't talk about anything that 7 happens in here. 8 MS. BRECKLING: Right. 9 (Bench conference.) 10 MR. TOWNSEND: Your Honor, I'd just raise for 11 other counsel about whether anybody wants the 12 question asked does she have any concerns over the 13 fact that her name and address is in the record. 14 MS. MARSHALL: No, that's not -- 15 MR. OSBORNE: I don't think so, either. 16 THE COURT: No. I think that just opens up a 17 can of worms. She said she can be fair and 18 impartial. 19 (Open court.) 20 THE COURT: Thank you, ma'am. We'll get to 21 you just as soon as we can. I know it's hurry up 22 and wait, but we're trying to run it quickly. 23 (Whereupon, Juror Breckling exits the courtroom, and 24 Juror Benz enters the courtroom.) 25 THE COURT: Just stand right there. I'm not 614 1 going to make you sit down. I made everybody else 2 sit down. I'm trying to save a little time. 3 Tell me your name. 4 MS. BENZ: Tammy. 5 THE COURT: Last name? 6 MS. BENZ: Benz. 7 THE COURT: Yesterday another juror, 8 Ms. Vettor, wrote a note on a yellow pad and sent it 9 in to the Court through the court deputy. Did you 10 see that happen? 11 MS. BENZ: I saw it happening. I didn't see 12 the letter, though. 13 THE COURT: You did not read the note? 14 MS. BENZ: No, I did not. 15 THE COURT: Did Ms. Vettor say anything in 16 your presence or was it repeated to you, for that 17 matter, about what the note said? 18 MS. BENZ: She stressed a concern to me, yeah. 19 THE COURT: Was she talking to you directly or 20 just to the group? 21 MS. BENZ: I don't recall if anybody else was 22 in the conversation. We were all in the room 23 together, and I don't know who else heard it, but -- 24 THE COURT: Can you tell me, to the best of 25 your recollection, and to the extent that you can 615 1 exactly what she said? 2 MS. BENZ: She had a concern that she was 3 identified as where she works, that she was just 4 concerned for her safety. 5 THE COURT: Uh-huh. And did she say what she 6 was concerned about? 7 MS. BENZ: Just that she was identified. She 8 didn't state anything other than that. 9 THE COURT: Did she mention any particular 10 reason or person that she associated with that 11 concern? 12 MS. BENZ: No, just that she was identified. 13 THE COURT: Did you say anything back to her 14 about that? 15 MS. BENZ: No, I did not. 16 THE COURT: And is that, to the best of your 17 recollection, the extent of the discussion? 18 MS. BENZ: Yeah. I mean, I tried to put her 19 mind at ease, but that -- 20 THE COURT: What'd you tell her when you tried 21 to put her mind at ease? 22 MS. BENZ: I told her that pretty much 23 everybody's name and information had been shared 24 amongst a large group of people, and that's it. 25 THE COURT: What'd she say in response to 616 1 that? 2 MS. BENZ: Not much. I mean, I don't think 3 she even responded. 4 THE COURT: After that happened, did that 5 cause you to be affected as a potential or as a 6 juror in this case, and do you still feel that you 7 can fairly and impartially weigh the evidence and 8 hear the testimony and not prejudge these parties? 9 MS. BENZ: I mean, of course, you wonder why 10 would somebody think that and why don't you think 11 that, but I don't -- I don't feel a concern for my 12 safety at all, no. 13 THE COURT: But do you feel a concern for your 14 ability to listen to the evidence and not let that 15 question affect you as a juror in this case? 16 MS. BENZ: No, it's -- 17 THE COURT: No, you don't feel you'd be 18 affected? 19 MS. BENZ: No, I don't feel affected. 20 THE COURT: Do you have any doubt about that? 21 MS. BENZ: No doubt about that. 22 THE COURT: Okay. Let me just underscore that 23 that, believe it or not, that conversation by 24 Ms. Vettor was a violation of the Court's admonition 25 not to talk about what happened in the courtroom in 617 1 the jury room before the deliberations. And I know 2 it's easy to say because we're all trained to be 3 social animals and have conversations and be 4 pleasant to discuss things that are on your mind 5 with someone in the same situation, but that was -- 6 that's prohibited even to that extent. 7 Nothing that happens in here, in jury 8 selection or otherwise, needs to be discussed in 9 there. And that's why we need to talk with 10 everyone, person by person, to make sure that you're 11 still able to be fair and impartial. Thank you for 12 being candid with the Court, and I'll get through 13 this as quickly as I can. I appreciate your being 14 in here. Thank you. Corporal. 15 (Whereupon, Juror Benz exits the courtroom, and Juror 16 Berrios enters the courtroom.) 17 THE COURT: Come on in, Mr. Berrios. How are 18 you doing? 19 MR. BERRIOS: Fine. 20 THE COURT: Mr. Berrios, yesterday a fellow 21 juror wrote a note to the Court on a yellow pad. 22 MR. BERRIOS: Yes. 23 THE COURT: Do you recall seeing that happen? 24 MR. BERRIOS: They did it in the jury room, in 25 the deliberation room? 618 1 THE COURT: Yes. 2 MR. BERRIOS: Yes. 3 THE COURT: Did you see that happen? 4 MR. BERRIOS: Yes. 5 THE COURT: Did you read the note? 6 MR. BERRIOS: No. 7 THE COURT: That was Ms. Vettor? 8 MR. BERRIOS: Yes. 9 THE COURT: And did you talk with her about 10 what the note was about? 11 MR. BERRIOS: No. 12 THE COURT: Did you hear her talk with anyone 13 else about what the note was about? 14 MR. BERRIOS: No, not about the contents of 15 the note. I know she mentioned she had some 16 concerns. 17 THE COURT: To the best of your ability, can 18 you recall as precisely as possible what she said 19 about those concerns? 20 MR. BERRIOS: She said that she was concerned 21 that her name and her workplace were given out in 22 the court. 23 THE COURT: Did anyone, you or anyone else, 24 respond to her, that you can remember? 25 MR. BERRIOS: No, I can't recall. 619 1 THE COURT: That's the extent of your 2 recollection of that event? 3 MR. BERRIOS: Yes. She mentioned her 4 concerns, and we just kind of -- I think it might 5 have lasted a whole 30 seconds maybe. I don't think 6 much went on about it. 7 THE COURT: Did she mention any person or 8 reason in particular why she was worried? 9 MR. BERRIOS: No. I guess she was worried 10 that if -- 11 THE COURT: Are you speculating now? 12 MR. BERRIOS: Yes, yes. 13 THE COURT: Go ahead. 14 MR. BERRIOS: She was worried that if things 15 didn't go for Mr. Destefano, she was worried that 16 there might be some repercussions. 17 THE COURT: And that's just your guess about 18 how she was feeling or -- 19 MR. BERRIOS: Yes. 20 THE COURT: -- did she say that? Did she say 21 anything about Mr. Destefano in particular? 22 MR. BERRIOS: No. I can't recall that. 23 THE COURT: You've obviously given this a 24 little bit of thought or you did at the time. Did 25 anything about that occurrence affect you as a 620 1 juror, affect your ability to fairly and impartially 2 judge this case, hear the evidence, be fair to both 3 sides and render a fair and impartial verdict? 4 MR. BERRIOS: It did not affect me in any way. 5 THE COURT: Okay. So nothing that happened 6 around that event changes the answers that you gave 7 to the questions asked by counsel -- 8 MR. BERRIOS: Exactly. 9 THE COURT: -- or the oath that you took? 10 MR. BERRIOS: Correct. 11 THE COURT: Thank you, Mr. Berrios. We'll get 12 back to you as soon as possible. Anything else? I 13 assume you'll stand up if you do. 14 (Whereupon, Juror Berrios exits the courtroom, and 15 Juror Casillas enters the courtroom.) 16 THE COURT: Just say your name for me, real 17 quickly, please. 18 MS. CASILLAS: Nana Casillas. 19 THE COURT: Yesterday a fellow juror wrote a 20 note on a yellow pad to the Court. Did you see 21 Ms. Vettor write that note? 22 MS. CASILLAS: No, I didn't. 23 THE COURT: You didn't see her writing a note? 24 MS. CASILLAS: I don't know anything about it 25 at all. 621 1 THE COURT: Do you recall seeing her writing 2 down something back there? 3 MS. CASILLAS: No, huh-uh. I glanced over and 4 saw a gentleman, one of the gentleman taking notes, 5 but -- 6 THE COURT: I'm talking about in the jury 7 room. 8 MS. CASILLAS: Oh, no, no, ma'am. 9 THE COURT: Did you hear Ms. Vettor express 10 any opinions or say anything about the trial while 11 back in the jury room? 12 MS. CASILLAS: No. 13 THE COURT: Do you know who Ms. Vettor is? 14 MS. CASILLAS: Is it the lady that was here 15 and left earlier? 16 THE COURT: Yes. 17 MS. CASILLAS: Yeah, I was pretty well putting 18 that together. 19 THE COURT: Yeah. 20 MS. CASILLAS: She just talked like she was 21 nervous about being on it. That's all I, you know, 22 without going into -- I didn't get a lot of detail, 23 but she was nervous because she felt uncomfortable 24 her name was mentioned. 25 THE COURT: Uh-huh. Do you recall anything 622 1 else she said? 2 MS. CASILLAS: No, I don't. Sometimes I just 3 don't pay attention to some things. 4 THE COURT: Good for you. Anything else you 5 think you can remember or recall about that? Did 6 she say why she was nervous? 7 MS. CASILLAS: No. I didn't hear anything 8 about that part of it. 9 THE COURT: Did she mention any particular 10 name or these lawyers scare her or -- 11 MS. CASILLAS: I know that she mentioned one 12 person in the room that she -- she didn't mention a 13 name, but she felt uncomfortable about the plaintiff 14 hearing her name. 15 THE COURT: Did she say why? 16 MS. CASILLAS: No. I did not hear anything 17 about her saying why. 18 THE COURT: Did that have any affect on you at 19 all? 20 MS. CASILLAS: No, because I -- I personally 21 am not going to be worried about if they heard my 22 name or anybody else's name. It's not -- I'm not 23 worried about it. 24 THE COURT: Did anything about that, that 25 episode, cause you to be unable to fairly and 623 1 impartially continue to hear the evidence and 2 argument in this case? 3 MS. CASILLAS: No. 4 THE COURT: And render a fair and impartial 5 verdict? 6 MS. CASILLAS: No, that wouldn't affect me. 7 THE COURT: Anything else you want to say 8 about that? 9 MS. CASILLAS: No, not about that. I don't 10 know any more about that at all. Now, now on my 11 part, now that you have me standing here, I don't 12 know that it would make any bit of difference or 13 anything, but my pastor of the church that I go to, 14 he has a degree in psychology. I just thought I'd 15 mention that. 16 I didn't think of it before when they 17 questioned me, but I wouldn't think that would have 18 anything to do -- this is my opinion -- I wouldn't 19 think it would have anything to do with me because I 20 don't have a degree, and I don't live with a person. 21 I just go to his church. 22 THE COURT: Okay. And was there a question, 23 then, about do you or anyone in your family have 24 psychological training? 25 MS. CASILLAS: I couldn't remember what it 624 1 said on that list. There was something about 2 psychology. I'm not related to this pastor at all. 3 THE COURT: You just attend church there? 4 MS. CASILLAS: Yeah. And I thought this may 5 be irrelevant, but I thought I'd share it with you 6 because this came to my mind this morning. I hadn't 7 even thought of it until today. 8 THE COURT: Do you believe that would affect 9 your interpretation and your assessment of the 10 evidence in this case in any way? 11 MS. CASILLAS: No. In fact, in my opinion, it 12 would probably be -- I would be able to balance it 13 out more, you know, listening to, you know, each 14 side and making a wise decision. 15 THE COURT: Counsel, do you care to approach 16 the bench on any of that? 17 MS. MARSHALL: (Shakes head.) 18 MR. TOWNSEND: No, ma'am. 19 MR. OSBORNE: No, Your Honor. 20 THE COURT: Thank you very much. 21 (Whereupon, Juror Casillas exits the courtroom, and 22 Juror Kiley enters the courtroom.) 23 THE COURT: Good morning. First thing I need 24 for you to do is state your name, please. 25 MR. KILEY: My name is Robert Kiley. 625 1 THE COURT: Yesterday a fellow juror wrote a 2 note to the Court back in the jury room -- 3 MR. KILEY: Yes. 4 THE COURT: -- and handed it to our deputy 5 sheriff, and it was provided to the Court. Did you 6 see Ms. Vettor write that note? 7 MR. KILEY: Yes, I did. 8 THE COURT: Were you sitting next to her at 9 the time? 10 MR. KILEY: No. We were standing. She was 11 sitting. 12 THE COURT: Did you read the note? 13 MR. KILEY: No. I could not read it. 14 THE COURT: Did you talk with her about the 15 note at all? 16 MR. KILEY: No, no, not that I -- 17 THE COURT: Did you talk with her about 18 anything? 19 MR. KILEY: Just chitchat, just her name. It 20 was interesting. We have another Tammy in our 21 group. But she had just expressed some concern to 22 the whole group. 23 THE COURT: Tell us about that. 24 MR. KILEY: She said she was concerned with 25 some of the information that had been, I guess, made 626 1 public about her working at the mall, and the 2 questionnaire that was filled out, and she had a 3 concern about that. She said that she was just -- 4 she just felt very uncomfortable about all that 5 information now being known. She thought there 6 would be more anonymity. 7 And this morning she had mentioned again that 8 her husband and her, I guess, were going to talk to 9 a lawyer maybe about whether those kinds of 10 questions could be asked. And we just kind of, you 11 know, I just kind of looked at her like, you know, 12 everybody seems to be fine. So it was just very 13 light chitchat like that, but that's the only thing 14 that was mentioned. She just mentioned a concern 15 that she had about being here. 16 THE COURT: Is that the extent of your 17 recollection of her comment? 18 MR. KILEY: That was the extent from this 19 morning about the lawyer, that was the extent 20 yesterday. It was just, you know, several times 21 that she just mentioned to us about being 22 uncomfortable and about being nervous, how she 23 should have spoken up more during the questioning. 24 And that she was just very concerned, I guess, for 25 her personal safety was the impression I was getting 627 1 from her or that she was communicating. 2 It was very limited communication we were 3 doing because we tried not to talk too much about 4 anything in general other than just, you know, 5 absolutely noncase or court related. 6 THE COURT: That's very good. Do you recall 7 if she said anything in particular about any person 8 in the courtroom that she -- made her concerned or 9 worried? Did she mention any names? 10 MR. KILEY: She did not mention any names. 11 She mentioned that she was concerned that the, not 12 the defendant, the gentleman, Larry -- she didn't 13 actually say Larry's name, but I think she was 14 implying -- 15 THE COURT: You mean Mr. Destefano, the 16 plaintiff? 17 MR. KILEY: Yes, yes, the plaintiff, that's 18 the word. It wasn't defendant, the plaintiff. So 19 she was concerned that he had -- not that he had had 20 the papers, but that he had heard that she had 21 worked at the mall, knew her name, and was concerned 22 about that. That's what she was expressing her 23 concern over, from what we could find of pieces from 24 what she was basically saying. 25 THE COURT: Did she say why she was -- 628 1 MR. KILEY: No, she didn't. Again, we were 2 trying not to pry. We were kind of like is this 3 another person trying to get out. I mean, we've 4 tried everything else, and we know this excuse 5 doesn't work, that excuse doesn't work. We're like, 6 look, we're doing our duty here. We're all here. 7 This isn't a easy case. It's two weeks long and we 8 know that. 9 And she was one that came in at the very end, 10 and she came in like I can't believe I was here. So 11 we could see from her expression, because we've seen 12 so many come and go now, she was like -- she's like, 13 you know, so we understand. But, you know, we've 14 been through this a little bit longer, just sit back 15 and hang on for the ride. So we just kind of smiled 16 politely and said, yeah, but we did see her writing 17 the note and going back and forth. 18 THE COURT: Let me ask you just this follow-up 19 question. Is there anything about that experience 20 that caused you to second-guess your ability to 21 fairly and impartially hear and judge this case and 22 listen to the evidence and render a fair and 23 impartial verdict? 24 MR. KILEY: I think it reassured me. I think 25 it gave me like, yes, I'm here to do my duty; and, 629 1 no, I'm not going to try to get out of this; and, 2 no, the system is fair, and I want to be as balanced 3 as possible. So it actually, you know, it made me 4 feel fine about the whole thing. 5 Again, I just kind of looked at her like, you 6 know, if you want to try to get out, go ahead, if 7 you're that concerned, let the judge know type of 8 attitude. But, again, I politely smiled and, okay, 9 you know, I'm here to do my best. Let's get on with 10 this, so -- 11 THE COURT: Any further questions? 12 MR. OSBORNE: (Shakes head.) 13 MR. TOWNSEND: No, ma'am. 14 MS. MARSHALL: No, Your Honor. 15 THE COURT: Step outside, sir. 16 (Whereupon, Juror Kiley exits the courtroom ) 17 THE COURT: Do you want to talk about it for a 18 minute, Mr. Osborne? 19 MR. OSBORNE: Yes, ma'am. I want to make a 20 motion. 21 THE COURT: Okay. 22 MR. OSBORNE: Judge, I think it's clear -- I'm 23 moving for a mistrial, not to your surprise, I'm 24 sure. I think it's clear there was a general 25 discussion in the jury room about Ms. Vettor's 630 1 concerns and that this is a violation of the oath of 2 sequestration. That in and of itself, I think, is 3 sufficient for a mistrial, given the fact that if 4 they'll do it this early, they'll -- they could well 5 continue to do it. 6 And this was a comment -- or according to 7 Mr. Kiley, is there were several comments made, not 8 just one comment. And when I heard Juror Vettor 9 talk, I said there was an inference concerning the 10 plaintiff. That's the only one she could be worried 11 about, and anyone that would have heard her would 12 understand, and sure enough, that's what came to 13 pass as the other people said there. 14 Now, key to Ms. Fernandez (sic) was you asked 15 her or she volunteered, she says, well, I'm not 16 concerned because nothing personal was said about 17 me, so it's okay with me. The key to that is the 18 inference is that if something personal had been 19 said about her, she, too, would have been worried 20 about Mr. Destefano. 21 And you can't -- you can't put the cow back in 22 the barn. The fact is that this happened, and I 23 think Nurse Fernandez -- nurse -- Ms. Fernandez 24 clearly, if her name had been given or her address 25 had been given, she would have been worried about 631 1 that. 2 I think also Ms. Breckling said that she knew 3 who the "him" was without even her telling her, that 4 he knew her name and she was nervous about him, and 5 the only person she thought that was was the 6 plaintiff. 7 In terms of Ms. Benz, she had a direct 8 discussion with her. There was not only 9 Ms. Vettor's commenting but Ms. Benz was replying. 10 There was a discussion about it. She tried to put 11 her mind at ease and tried to tell her some things 12 about that. 13 The concern I have, Judge, is that this 14 exchange has occurred, and I think there's a 15 likelihood now that one or more of these jurors 16 could have a hidden agenda. And I think there is a 17 chilling effect in the courtroom to disclose that 18 particularly when you told them there was an oath 19 about talking and they shouldn't prejudge and make 20 up their mind. Mr. Destefano is still in the room, 21 and you're asking them to disclose if this would 22 cause them not to be fair and impartial, and I think 23 there's necessarily a chilling effect about whether 24 that really cures the situation by having them say 25 that. 632 1 Mr. Berrios talked about that his -- the clear 2 inference to him was she was worried if things 3 didn't go well for the plaintiff, there might be 4 some repercussions. You have safety, repercussions, 5 and key to all this is the allegations about 6 Mr. Destefano are that he did all these 7 inappropriate things and they have to have some 8 prejudging going on if this is the inference they're 9 drawing that if he did these inappropriate things, 10 maybe he'll do some more inappropriate things if 11 there is -- the verdict doesn't go in his favor. 12 I think Mr. Kiley said there was mentioned 13 several times talking about her personal safety, 14 concern that she had been heard to work in the mall. 15 And he said he had a discussion with her if you want 16 to try and get out, then go ahead and let the judge 17 know. I think that was one of the last things that 18 he said. 19 Judge, it is not with any joy that I ask for a 20 mistrial. You've been in this case a lot longer 21 than I have, and everybody has worked real hard on 22 this. But I think the jury system only works if the 23 jury follows the rules, and they didn't follow the 24 rules, and I think that's clear. And I think that 25 not only the plaintiff, but I think the defendants 633 1 are at risk here if we go forward. I believe that 2 this is clear grounds for a mistrial and that if we 3 don't do it, we're going to work for two weeks for 4 not. 5 THE COURT: Let me ask you if you join in that 6 motion? 7 MS. MARSHALL: Your Honor, I need to consult 8 with my client -- 9 THE COURT: Okay. 10 MS. MARSHALL: -- before we respond. 11 (Brief pause.) 12 MS. MARSHALL: Your Honor, we do not oppose 13 the motion for mistrial. 14 MR. TOWNSEND: We do not oppose it either, 15 Your Honor. 16 THE COURT: This Court had the opportunity to 17 question these jurors one by one. They were all 18 uniformly honest, forthcoming and credible to the 19 Court. There was nothing about their testimony or 20 statements to the Court that indicated that they 21 would be unable to render a fair and impartial 22 verdict in this case. Your motion for mistrial is 23 denied. Bring the jury in. 24 MR. TOWNSEND: Your Honor, for the record, the 25 question was asked do we oppose. At this point, we 634 1 affirmatively move for a mistrial on the same 2 grounds. 3 THE COURT: Join? 4 MS. MARSHALL: Join. 5 THE COURT: That motion is denied. 6 (Jury enters.) 7 THE COURT: Be seated, please. Ladies and 8 gentlemen, thank you for your candor with the Court 9 this morning. I want to underscore again to all of 10 you the Court's admonition that in the course of 11 this trial that you not have any conversations about 12 anything that occurs in this room, in the jury room, 13 until deliberations. 14 THE JURORS: (Nods head.) 15 THE COURT: Mr. Osborne, call the previous 16 witness. 17 MS. MARSHALL: I was still -- I had a couple 18 more questions. 19 THE COURT: And that witness is? 20 MS. MARSHALL: Carol Melashenko. 21 THE COURT: Carol Melashenko. 22 - - - - - 23 CROSS-EXAMINATION (cont'd) 24 BY MS. MARSHALL: 25 Q Ms. Melashenko, I just have a couple more 635 1 questions for you. You had testified yesterday that you 2 came in to -- back to Sunbelt on September 21st, 1999, 3 correct? 4 A Yes, ma'am. 5 Q And I think you said that you believe that you 6 had -- you came back at your regular time? 7 A Yes, ma'am. 8 Q Did you see Mr. Destefano in the building on 9 the 21st? 10 A Yes, ma'am. 11 Q If I tell you that Mr. Destefano left the 12 building at 10:00, approximately 10:15 on the morning of 13 September 21st, 1999, is it possible that you were called 14 in early to make the late entries the next morning? 15 A Yes, ma'am, it is possible. 16 Q You don't remember that at this time? 17 A No, ma'am, I do not. 18 MS. MARSHALL: Thank you. No further 19 questions. 20 THE COURT: Redirect? 21 MR. TOWNSEND: Your Honor, may I go? 22 THE COURT: Beg your pardon. 23 - - - - - 24 25 636 1 CROSS-EXAMINATION 2 BY MR. TOWNSEND: 3 Q Just a very few, Ms. Melashenko. 4 A Okay. 5 Q You don't have -- you didn't have anything to 6 do with arranging the transfer of Mrs. Destefano to 7 Orlando Regional, did you, ma'am? 8 A No, sir, I did not. 9 Q And, likewise, you never had any conversations 10 with any employees at Orlando Regional Healthcare System 11 before Mrs. Destefano was transferred; is that correct? 12 A No, sir, I did not. 13 Q And you never had any conversations with 14 anyone at Orlando Regional after the transfer; is that 15 correct? 16 A No, sir, I did not. 17 Q You don't know Kelly Pipkin, do you, ma'am? 18 A No, sir, I do not. 19 Q And her name now is Kelly Gregg. You don't 20 know Kelly Gregg either? 21 A No, sir, I do not. 22 Q You don't know Lillian Folley, do you? 23 A No, sir. 24 Q Best of your knowledge, you've never spoken to 25 either one of these ladies; is that correct? 637 1 A Yes, sir, that's correct. 2 MR. TOWNSEND: That's all I have, Your Honor. 3 THE COURT: Redirect? 4 - - - - - 5 REDIRECT EXAMINATION 6 BY MR. OSBORNE: 7 Q Good morning, Ms. Melashenko. 8 A Good morning. 9 Q You were talking to our next witness in the 10 hall, Ms. Margarita Walters, were you not? 11 A We were just chatting about old times. We 12 used to work together and where we're working now. 13 Q Did you discuss your testimony with her? 14 A No, I did not. 15 Q Do you recall Mr. Destefano walking out where 16 you were saying to her "just say" and you saw him and you 17 stopped talking to Ms. Walters? 18 A No. We were just talking. We were just 19 visiting with each other. 20 Q Isn't it a fact that you went to work on the 21 21st at 2:30, 2:45 or 3:00, approximately, on the 21st? 22 A Yes, sir. 23 Q "Yes"? 24 A Yes. 25 Q So whether it was possible you came to work 638 1 earlier, the fact is you did not go to work in the 2 morning. You came in anytime between 2:30 and 3:00 in 3 the afternoon, correct? 4 A Yes. 5 Q In fact, let me refresh your memory with a 6 punch detail report. 7 MS. MARSHALL: Objection, Your Honor. She's 8 just answered his question in the affirmative. This 9 is an improper refreshment or impeachment. 10 MR. OSBORNE: It's not impeachment. 11 THE COURT: Just a minute. Sustained. 12 BY MR. OSBORNE: 13 Q Do you recall exactly what time you came to 14 work on the 21st? 15 A No, I do not. 16 MR. OSBORNE: At this time, I would like to 17 show the witness the document. 18 Q Would you review that, if you would, please? 19 A (Reviewing document.) 20 Q Does that document refresh your memory about 21 exactly when you came to work? 22 A Yes, sir. 23 Q What time did you come to work? 24 A 2:42. 25 Q And what is that document? 639 1 A It's a copy of my time sheet. 2 Q And your time sheet works by when you come in, 3 you put your badge against some type of a device, and it 4 automatically registers when you came to work? 5 A Yes, sir. 6 Q So that is absolute proof you came to work at 7 2:42 on that date, is it not? 8 A Yes, sir. 9 Q Your testimony is that in terms of what you 10 saw, you knocked on the door twice. There was no answer, 11 so you went ahead and opened the door and observed 12 Mr. Destefano in bed with his mother. That's your 13 testimony, correct? 14 A Yes, sir. 15 Q Now, you testified to this not only once, but 16 you testified to this twice in your deposition, didn't 17 you? 18 A Yes, sir. 19 Q Two different times you said the very same 20 thing, didn't you? 21 A Yes. 22 Q You didn't say I walked in. You said I opened 23 the door and I observed him, correct? 24 A Correct. 25 Q Let me show you what I'm showing the jury, 640 1 Mrs. Melashenko. This is a picture you identified 2 yesterday as being Carolina Destefano's room, correct? 3 A Yes. 4 Q And you said this was a true and accurate 5 depiction of what her room looked like, didn't you? 6 A From what I recall, yes. 7 Q It also is a fair and accurate depiction of 8 where the bed was in the room as relates to the doorway? 9 A From where I recall, yes. 10 Q So the fact of the matter is if your testimony 11 is true that you opened the door and you observed 12 Mr. Destefano, then there's no way you could have seen 13 Mr. Destefano at the head of the bed with his mother, is 14 there? 15 A No. I did see him. 16 Q Pardon me? 17 A I did see him. 18 Q That's not my question, ma'am. If your 19 testimony is true that you said twice and have confirmed 20 here just now that Mr. Destefano -- you opened the door 21 and went -- and saw him lying on top of his mother and 22 kissing her passionately, that it doesn't -- it can't 23 happen if this is the right location of her bed in this 24 room; is that true? 25 A Possibly true, yes. 641 1 Q Absolutely true, isn't it? 2 A Possibly true. 3 Q Ma'am, why do you say "possible"? 4 Absolutely -- you want to come look at this picture and 5 tell me how you can see the head of the bed from standing 6 at the front of the door? 7 A No. 8 Q Absolutely you couldn't, could you? 9 A I know what I saw. 10 Q Can you answer my question, please? 11 A It's true. 12 Q Pardon me? 13 A It's true then. 14 Q Absolutely it's true you can't see that head 15 of the bed from the front of the door. Isn't that the 16 case? 17 A Yes. 18 Q Are you lying about that? 19 A No, I'm not. 20 MR. OSBORNE: If I may have a moment, Your 21 Honor. No further questions, Your Honor. 22 THE COURT: You may stand down, ma'am. Call 23 your next witness. You can step down, ma'am. 24 You'll be excused. 25 MR. OSBORNE: Call Margarita Walters. 642 1 THE COURT: Ms. Walters? 2 - - - - - 3 MARGARITA WALTERS 4 having been first duly sworn testified as follows: 5 DIRECT EXAMINATION 6 BY MR. OSBORNE: 7 Q Good morning, ma'am. 8 A Good morning. 9 Q Would you be so kind as to state your full 10 name for the court and jury, please? 11 A My name is Margarita Walters. 12 Q Ms. Walters, what is your profession or 13 occupation? 14 A I'm a registered nurse. 15 Q How long have you been a registered nurse? 16 A It's well over 20 years. 17 Q And you worked at Sunbelt Orlando from about 18 1992 up to 2000? 19 A Correct. 20 Q And you were an RN supervisor in September of 21 1999, weren't you? 22 A Yes. 23 Q You've reviewed the Sunbelt chart regarding 24 Carolina Destefano before coming here today, have you 25 not? 643 1 A The chart? 2 Q Yes, ma'am. Have you reviewed that chart 3 before coming here today? 4 A I cannot recall. 5 Q Okay. Isn't it true that your name does not 6 appear anywhere on Carolina Destefano's chart? 7 A No. My name doesn't appear that I made a 8 documentation. 9 Q And just tell the jury why your name wouldn't 10 appear on the chart. 11 A I actually never make a documentation in the 12 chart. 13 Q Your handwriting doesn't appear anywhere in 14 the chart, from your review, correct? 15 A I cannot recall. 16 Q In September of 1999, you worked the 3:00 to 17 11:00 shift at Sunbelt, didn't you? 18 A Yes, I did. 19 Q And on September 20th of 1999, Carol Boze came 20 to you and told you that Mr. Destefano came to her being 21 very upset that he came to visit his mother and she had 22 no dressing on her wound? 23 A Yes. 24 Q Carol Boze told you that there was no dressing 25 on the wound, and that she went ahead and put on the 644 1 dressing? 2 A Yes. 3 Q You went into the room? 4 A Yes. 5 Q Mr. Destefano was still very upset? 6 A Yes. 7 Q You apologized for it not being done? 8 A Yes. 9 Q Carol Boze had already changed the dressing 10 when you went to the room? 11 A Yes. 12 Q Mr. Destefano is speaking loudly, but he 13 wasn't yelling at you, was he? 14 A No. 15 Q He was just upset, and when people are upset, 16 they talk a little bit louder, correct? 17 A Most people do. 18 Q And that's what Mr. Destefano was doing when 19 you saw him that night, wasn't he? 20 A He was talking louder, but that was the first 21 time I was meeting him, and I could not say that was his 22 normal tone of voice. 23 Q Okay. You are aware that Mr. Destefano asked 24 Carol Boze for something in writing to say that the wound 25 dressing wasn't done? 645 1 A Yes, he did, he did. 2 Q Pardon me? 3 A I said, yes, he did. 4 Q Carol Boze, in turn, asked you if she should 5 sign it, correct? 6 A Correct. 7 Q And you said, yes, you should, because -- 8 well, you said yes because there was no wound dressing 9 done so you said go ahead and sign it, correct? 10 A I told her you -- since you are not lying, you 11 can go ahead and sign it. 12 Q Right. Words to the effect it's not a lie. 13 If it wasn't done, go ahead and sign it, correct? 14 A Yes. 15 Q Let me ask you if you recall the note that she 16 signed. Did you ever see the note? 17 A Yes. 18 Q Is this the note you said it was okay for her 19 to sign? 20 A Yes. 21 Q And that note basically says: 9/20/99, 22 Sunbelt Health Care Orlando, 6:19 p.m., no wound dressing 23 on Carolina Destefano, Room 307, correct? 24 A Yes. 25 Q And you recognize that to be Carol Boze's -- 646 1 then Carol Boze's signature? 2 A Yes. 3 Q Okay. Carol Boze first came to you, 4 Mrs. Walters, saying that Mr. Destefano was upset and was 5 complaining about the dressing, and then later came up to 6 you and asked for permission to sign a note, correct? 7 A Yes. She -- 8 Q Two different -- 9 A -- asked me -- 10 Q Two different times you saw her about that, 11 correct? 12 A It wasn't two different times. 13 Q Let me ask you this, ma'am, and I'm going to 14 see if I can refresh your memory a little bit. Do you 15 recall your deposition being taken on August 18th of 16 2002? 17 A I know I did a deposition. I cannot recall 18 the date. 19 Q Okay. Let me just publish for you a note or a 20 question and answer you gave then at page 14 -- 21 MS. PETRO: Objection, Your Honor, improper 22 refreshment. He needs to show it to the witness. 23 THE COURT: Are you attempting to impeach the 24 witness? 25 MR. OSBORNE: I used the wrong word. 647 1 THE COURT: Overruled. 2 BY MR. OSBORNE: 3 Q (Reading:) 4 "Question: Now, when Carol Boze came to you 5 saying that Mr. Destefano was upset and was 6 complaining about the dressing, was it at that same 7 time that she asked you for permission to sign the 8 note, a note, or was it -- was that at a different 9 time? 10 "Answer: No, it was not at that same time. 11 She came to me, and the first thing I asked her, I 12 said, did you go ahead and do it? She said, yes, 13 she did. And it was after that that while we were 14 at the desk, he came -- she came and asked -- he 15 came and asked her to do it." 16 Is that your testimony, ma'am? 17 A Yes. 18 Q So on the second occasion, you were at the 19 desk with Carol Boze and Mr. Destefano came up and asked 20 her to sign the note, correct? 21 A Yes. 22 Q You were sitting right there? 23 A Yes, I was sitting at the desk. 24 Q And he asked her to sign the note because the 25 dressing hadn't been changed? 648 1 A Yes. 2 Q And you said right in front of him that was 3 okay? 4 A I said since you are not lying, you are a 5 witness that it wasn't there, you can go ahead and sign 6 it. 7 Q And after that, she signed it? 8 A Yes. 9 Q You never had any discussions with Rachel Bean 10 about this note, did you? 11 A No. 12 Q You never had any discussions with Mary 13 Thornton about this note, did you? 14 A No. 15 Q You had no further discussions with anyone at 16 Sunbelt regarding the note, did you? 17 A No. 18 Q And while you were on duty on the 21st of 19 September at the time this note was written, you never 20 saw any blood on Carolina Destefano's bed pad or her 21 person, did you? 22 A No. 23 Q There came a time when you went to look for 24 Carolina Destefano's chart, didn't there? 25 A Yes. 649 1 Q On the following day? 2 A Yes. 3 Q Which would have been September 21st, 1999? 4 A I cannot recall the date, but I knew it was 5 the following day. 6 Q Okay. When you came in, you found out that 7 Carolina Destefano was transferred out because of 8 something that happened in the morning? 9 A Yes. 10 Q You went to look for the chart to see exactly 11 what happened, and you didn't see the chart? 12 A Yes. 13 Q You never did find out where the chart was, 14 did you? 15 A No. 16 Q And you never saw it since that time until the 17 date of your deposition in April of 2002? 18 A Yes. 19 Q Carol Boze did tell you that she saw 20 Mr. Destefano kissing his mother passionately, didn't 21 she? 22 A Yes. 23 Q But she didn't tell you that until the day 24 after or sometime after the incident after Mrs. Destefano 25 was transferred, correct? 650 1 A Yes. 2 Q She didn't tell you on the 20th, did she? 3 A No. 4 Q She didn't mention to you on the evening when 5 the patient was there anything about this incident she 6 told you later about Mr. Destefano kissing his mother 7 passionately or lying on top of her, did she? 8 A No. 9 Q She only told you after the patient was 10 discharged? 11 A Yes. 12 Q So in terms of the events that were going on 13 on the evening of the 20th with this note, you're 14 absolutely sure that evening Carol Boze never said one 15 word to you about Mr. Destefano doing anything improper 16 with his mother, did she? 17 A I cannot recall. 18 Q Let me show you your deposition at page 20, 19 line 2 to 3, and I'd like you just to read lines 2 20 through 8, if you would, Ms. Walters. 21 A Okay. (Reviewing transcript.) Yes. 22 Q Does that refresh your memory, ma'am? 23 A Yes. 24 Q So is your testimony that she didn't tell you 25 on the night of the 20th? 651 1 A No. If that was the day that the first 2 incident happened, she told me the day after. 3 Q Just so we're clear, on the date the incident 4 happened, she didn't tell you anything, did she? 5 A No. 6 Q The date -- 7 A Regarding? 8 Q Regarding the lying on top of his mother and 9 kissing her passionately. She told you nothing about 10 that on the night of the 20th, did she? 11 A No, I -- 12 Q Pardon me? 13 A No. 14 Q All she told you about was the wound dressing, 15 correct? 16 A That was what was dealt with on that day. 17 Q And you were her immediate supervisor? 18 A Yes. 19 Q Okay. She didn't tell you until the evening 20 when the patient or until after the patient left, 21 correct? 22 A Yes. 23 Q When Carol Boze told you, sometime after the 24 patient was discharged, after Mrs. Destefano was 25 discharged, she told you that she went into the room and 652 1 saw Mr. Destefano kissing his mother passionately, 2 correct? 3 A Yes. 4 Q And you said, "You really saw something like 5 that," didn't you? 6 A Yes. 7 Q And she said yes? 8 A Yes. 9 Q She did not tell you that she saw 10 Mr. Destefano lying on top of his mother, did she? 11 A No. 12 Q Carol Boze also told you that there was blood 13 on Mrs. Destefano's bed pad, didn't she? 14 A I cannot recall that. 15 Q Take a look at page 18, lines 10 through 22, 16 please. 17 A (Reviewing transcript.) 18 Q Does that refresh your memory, ma'am? 19 A Yes. 20 Q Carol Boze did tell you that there was blood 21 on the bed pad of Carolina Destefano's bed, didn't she? 22 A Yes, according to the deposition statement. 23 Q Ms. Walters, if you had seen Mr. Destefano 24 kissing his mother passionately, you would have noted 25 that on the chart, wouldn't you? 653 1 A Yes, I would have. 2 Q You would have charted it right then, wouldn't 3 you? 4 A Yes. 5 Q You would have noted it on the chart. You 6 also would have informed the director of nursing, 7 wouldn't you? 8 A Yes, or my supervisor, whoever was available. 9 Q And would you have done that -- you would have 10 also attempted to see whatever else needed to be done and 11 you would have done it, correct? 12 A Yes. 13 Q You would have taken these actions 14 immediately, wouldn't you? 15 A Sure. 16 Q If Carol Boze had told you on the evening of 17 the 20th of what she observed, you would have taken 18 action right then immediately, wouldn't you? 19 MS. PETRO: Objection, speculation. 20 THE COURT: Sustained. 21 BY MR. OSBORNE: 22 Q It was your understanding, was it not, ma'am, 23 from working at Sunbelt for seven years at the time that 24 these events occurred that an event of a son kissing his 25 mother inappropriately or lying on top of his mother is 654 1 something that is required to be noted in a nursing 2 chart? 3 A Could you please repeat that for me? 4 Q I'll have it read back to you, ma'am. 5 (The record was read back as requested.) 6 A I am not sure if that was the policy, but if I 7 had seen something like that, I surely would have 8 documented it. 9 Q You would have documented it? 10 A Yes, I would. 11 Q You would have documented that immediately, 12 wouldn't you? 13 A I would. 14 Q You would have informed your supervisor about 15 what was observed? 16 A Sure. 17 Q And you probably would have even called the 18 doctor to let the doctor know about that too, wouldn't 19 you? 20 A Yes, I would. 21 Q You've already testified that Carol Boze did 22 not tell you anything about Mr. Destefano's alleged 23 inappropriate behavior on the 20th when Mrs. Destefano 24 was at Sunbelt, and you were her supervisor. And 25 Mrs. Melashenko said she did tell you that, and she says 655 1 you were upset. 2 Isn't that something that you would have 3 recalled, ma'am, if that had happened on the night of the 4 20th, if Ms. Melashenko or Ms. Boze had come to you and 5 said what we're talking about here occurred and you're 6 her supervisor? That's something you would remember, 7 isn't it? 8 MS. PETRO: Objection, speculation. 9 THE COURT: Sustained. 10 BY MR. OSBORNE: 11 Q You never witnessed any inappropriate conduct 12 between Larry Destefano and his mother, did you? 13 A No. 14 Q He appeared to be very concerned about his 15 mother, didn't he? 16 A Yes. 17 Q The only time you saw him in the presence of 18 his mother was that evening when his mom was sitting on 19 the side of the bed and he sat on a chair close to her 20 and he was holding on to her hands, correct? 21 A Yes. 22 Q You heard it rumored all over the Sunbelt 23 facility that Larry Destefano acted sexually 24 inappropriate with his mother, didn't you? 25 A Could you repeat that for me? 656 1 Q I'll slow it down for you too. 2 A Right. 3 Q You heard it rumored all over the Sunbelt 4 facility that Larry Destefano acted sexually 5 inappropriately with his mother? 6 A Yes, I heard rumors. 7 Q All over the facility, didn't you? 8 A Well, yes, I work there. 9 Q Just so we're clear, Ms. Walters, you heard 10 these rumors about Mr. Destefano being sexually 11 inappropriate all over the Sunbelt facility, didn't you? 12 A Should I say sexually -- I heard about the 13 blood on the bed pad and kissing. I didn't hear about 14 the sexual act, if that is what your term -- 15 Q Okay. You heard people talking about it all 16 over the facility, though, whatever these allegations 17 were, correct? 18 A Yes. 19 Q And I think you just mentioned that the rumor 20 of the talk was that there was mention of blood being on 21 the pad? 22 A Yes. 23 Q And that he kissed his mother inappropriately? 24 A Yes. 25 Q Did you draw a connection between the blood on 657 1 the pad and Mr. Destefano as to why that had something to 2 do with being inappropriate with his mother? 3 A No. 4 Q Carol Boze also told you that Rachel Bean was 5 upset because you told her to sign the note, correct? 6 A Yes. 7 Q But Rachel Bean never said anything to you 8 about this, did she? 9 A No. 10 Q Carol Boze told you that Rachel Bean had 11 called her in to document what transpired when the 12 dressing was not done, correct? 13 A Yes. 14 Q Carol Boze also told you Rachel called her in 15 to document this the next day? 16 A Yes. 17 Q Carol Boze did not tell you that there were 18 other late entries regarding Carol seeing Mr. Destefano 19 inappropriately kissing his mother and lying on top of 20 her, did she? 21 A I cannot recall. 22 Q You're not sure? 23 A I'm not sure. I cannot recall. 24 Q You do recall Rachel called Carol Boze to come 25 in and make some late entries regarding the dressing 658 1 change, correct? 2 A Yes. 3 Q Rachel Bean was not there the evening of the 4 20th, was she? 5 A No. 6 Q On the evening of the 20th, you were the 7 senior nurse on duty at that time, correct? 8 A Yes. 9 MR. OSBORNE: No further questions, Your 10 Honor. 11 THE COURT: Cross-examine? 12 MS. PETRO: Yes, Your Honor. 13 - - - - - 14 CROSS-EXAMINATION 15 BY MS. PETRO: 16 Q Good morning, Ms. Walters. 17 A Good morning. 18 Q Just to be clear, you previously stated to 19 Mr. Osborne that Mr. Destefano was upset about a dressing 20 change not being done, correct? 21 A Yes. 22 Q Wasn't he actually upset about a missing 23 dressing? 24 A Yes. 25 Q And there is a difference, isn't there? 659 1 A Yes, there is a difference. 2 Q And the note that he just showed you said that 3 the wound dressing was missing, correct? 4 A There was no dressing on. 5 Q That there was no dressing on it? 6 A Yes. 7 Q So what is an unchanged dressing? 8 A An unchanged dressing is a dressing that has 9 not been changed. 10 Q So the old dressing is still there? 11 A No. There was no old dressing. 12 Q No, but we're talking about an unchanged 13 dressing. When you're describing an unchanged 14 dressing -- 15 A Oh, yes. 16 Q -- the old dressing is still there? 17 A The old dressing would be still there, but 18 it's not changed. 19 Q Okay. So the wound wouldn't have been cleaned 20 or treated that day if the old dressing was still there? 21 A Yes. 22 Q And a missing dressing means that the dressing 23 is not there at all, correct? 24 A Right. 25 Q And if a dressing is missing, is there any way 660 1 to tell whether or not it had been changed? 2 A I would say no. It's not there, but -- it's 3 not there. 4 Q All you know is that it's not there? 5 A Right. 6 Q And Ms. Walters, do you have any experience 7 with Alzheimer's or dementia patients and their wound 8 care? 9 A Yes, I do. 10 Q And are those types of patients cognizant of 11 what they're doing? 12 A No, they're not aware most times. 13 Q And on those types of patients, how many times 14 a day do you have to replace a wound dressing? 15 A Several times sometimes. 16 Q Especially on something like an elbow or a 17 heel? 18 A Regardless of where. 19 Q They come off? 20 A They take it off sometimes. 21 Q They'll take it off? 22 A Yes. 23 Q And they don't remember that they do that, do 24 they? 25 A No. 661 1 Q You just testified that Mrs. Boze told you 2 about witnessing Mr. Destefano kissing his mother, 3 correct? 4 A Yes. 5 Q And you just told Mr. Osborne that she did not 6 tell you about the kiss on the night of September 20th, 7 right? 8 A No, she didn't, or I cannot recall. I 9 wouldn't say no. 10 Q Mr. Osborne showed you your deposition 11 reminding you that you said she didn't tell you until 12 after that night, correct? 13 A Yes. 14 Q And you stated to Mr. Osborne that you worked 15 the 3:00 to 11:00 shift that night? 16 A Yes. 17 Q Do you recall if you worked a double shift 18 that evening? 19 A No, I don't recall. 20 Q So you don't have a recollection of whether or 21 not you worked a double shift? 22 A No. I don't have a recollection. That's so 23 long ago. 24 Q Ms. Walters -- 25 MS. PETRO: Your Honor, may I approach the 662 1 witness? 2 THE COURT: Yes. 3 BY MS. PETRO: 4 Q I'm going to show you a time sheet from that 5 evening. 6 A Okay. That was on the 20th. 7 Q See if that helps. 8 A Yes. I did a double. 9 Q Does looking at that time sheet -- first of 10 all, is that your time sheet? Do you recognize that as 11 your time sheet? Do you see your name on it? 12 A Yeah, my name is on it. 13 Q And does that time sheet help you recall 14 whether or not you worked a double that evening? 15 A Yes, it did. 16 Q And according to that time sheet or after 17 reviewing that time sheet, do you recall how many hours 18 you worked that pay period? 19 A This looks like 116.7, point 7. 20 Q 116.07 hours that time period? 21 A Yes. 22 Q And how long is a pay period? 23 A A pay period is two weeks, ten working days. 24 Q Ten working days? 25 A Uh-huh. 663 1 Q So in ten working days, you worked 116.07 2 hours? 3 A Yes. 4 Q And was that a normal work schedule for you? 5 A Yes. 6 Q You worked those kind of hours a lot? 7 A Not on a frequent basis. 8 Q Not on a frequent basis? 9 A Yes. 10 Q Do you recall how many double shifts you 11 worked in that pay period? 12 A I would have to look at it. This looks like 13 four. 14 Q Four double shifts in that pay period? 15 A Right, correct. 16 Q And that was not a normal work schedule for 17 you? 18 A No. Normally it would be 80 hours, but there 19 are times when you're asked to work because of staffing 20 problems. 21 Q Is working that many hours tiring? 22 A No. 23 Q Working 116 hours isn't tiring? 24 A Because you have days off between where you 25 get to rest. 664 1 Q Okay. And in working 116 hours in that pay 2 period and working that particular day from 3:00 in the 3 afternoon until 7:00 the next morning, isn't it possible 4 that Carol Boze told you about the kiss that night and 5 you didn't recall? 6 MR. OSBORNE: Calls for speculation. 7 THE COURT: Sustained. 8 BY MS. PETRO: 9 Q Ms. Walters, do you remember everything that 10 happened in that pay period and exactly the order in 11 which it happened? 12 A No, I -- no. It's long ago. No, I wouldn't. 13 Q And Mr. Osborne showed you your deposition 14 which was taken two and a half years later, and even two 15 and a half years later, would you remember everything 16 that happened -- do you believe you would remember 17 everything that would happen in the exact order? 18 A No. 19 Q So although you appeared very certain in your 20 deposition, are you still very certain she did not tell 21 you about the kiss that night? 22 A I would say, no, I don't -- 23 Q You're not still very certain? 24 A No. 25 Q Do you recall, Ms. Walters, on the next day, 665 1 the day after Mrs. Destefano left the facility, 2 Mr. Osborne asked you if you went to look for 3 Mrs. Destefano's chart? 4 A Yes. 5 Q Do you recall what time you came in that day? 6 A It would be normal -- my normal time at 3:00. 7 Q At 3:00? 8 A Uh-huh. 9 Q And so you do not know -- and you testified 10 that you went to look for Mrs. Destefano's chart, 11 correct? 12 A Yes, I did. 13 Q Did you have something you needed to enter 14 into the chart or were you just being curious? 15 A I was just curious because I heard she was 16 transferred out of the facility. 17 Q And you could not find the chart at that time? 18 A No. 19 Q Did you continue to look for the chart after 20 that? 21 A No, I didn't. 22 Q So you looked for it that one time and then 23 let it go? 24 A I just let it go. 25 Q And Mr. Destefano had already left the 666 1 facility by that time, correct? 2 A Yes. I did not see him. 3 Q That same day on the 21st, do you recall a 4 gentleman from the police department coming and meeting 5 with you? 6 A I don't recall if it was that same day, could 7 be possible. I know I met somebody. I don't recall if 8 it was that same day. 9 Q You do recall that somebody from the police 10 department came and met with you, but you don't recall 11 when? 12 A Yes. 13 Q I'm going to show you a document -- I'd like 14 you to read it to yourself -- that is the report of the 15 gentleman that came to meet with you, and see if that 16 helps you recall when that meeting was. 17 A (Reviewing document.) Yes. The date on it is 18 the 21st, so it would have ob -- 19 Q It was the next day? 20 A Yes. 21 Q And do you recall what that meeting was about? 22 A He came to pick something up. 23 Q And did you know what it was that he was 24 picking up? 25 A I knew it was a bed pad, and it was left in 667 1 the nurse manager's office, and I just went and picked it 2 up and gave it to him. 3 Q And that's all you did was took it out of the 4 office and gave it to him? 5 A Correct. 6 Q And do you know why you were the person who 7 had to deliver that to him? 8 A Because they were already gone, and I was the 9 person that was in charge at that time. 10 Q So you were the supervisor on duty at that 11 time? 12 A Yes. 13 Q And you didn't have any knowledge concerning 14 that bed pad, did you? 15 A No. 16 Q And you hadn't seen any of the events 17 concerning that bed pad, had you? 18 A No. 19 Q Mr. Osborne just asked you whether or not 20 Ms. Boze talked to you about the blood on the bed pad; do 21 you recall that? 22 A She mentioned -- 23 Q She mentioned that there was blood on the bed 24 pad? 25 A It's after the incident. 668 1 Q Did Ms. Boze ever tell you that she personally 2 saw the blood on the bed pad? 3 A I cannot recall. 4 Q You don't recall her telling you that? 5 A If -- I know she told me, but I cannot recall 6 if she actually sees it or someone told her. 7 Q Or someone told her? 8 A Correct. 9 Q Mr. Osborne just asked you about the rumors 10 regarding Mr. Destefano's behavior; do you recall that? 11 A Yes. 12 Q And at the time you heard people talking about 13 Mr. Destefano in the facility, had he begun picketing 14 outside? 15 A I cannot recall. 16 Q Do you recall that Mr. Destefano was picketing 17 outside? 18 A Yes. 19 Q And do you recall that -- when he was 20 picketing, did he stand there quietly? 21 A Well, once I get in the building, I don't have 22 to go back out, so I don't -- 23 Q Did you hear people talking about that he 24 yelled at them when he walked by? 25 A Yes. 669 1 Q And so Mr. Destefano was outside picketing and 2 he would yell things at people. Then did you know 3 whether the rumors about Mr. Destefano's behavior started 4 because of things the nurses said in the building? 5 A No. 6 MR. OSBORNE: Object, no predicate. 7 THE COURT: Overruled. 8 BY MS. PETRO: 9 Q You don't know whether it started because of 10 things that were said in the building? 11 A No. 12 Q So could it be Mr. Destefano was saying things 13 outside of the building? 14 A I don't know what he was saying. 15 Q You don't know exactly what he was saying, but 16 you do know that he was saying things? 17 A Yes. 18 MS. PETRO: May I have a moment to confer, 19 Your Honor? 20 THE COURT: Briefly. 21 BY MS. PETRO: 22 Q Ms. Walters, you had a few moments outside 23 while we had to take care of some business in the 24 courtroom with Ms. Melashenko, also known as Carol Boze 25 from before. 670 1 A Okay. I didn't know that name. 2 Q In fact, she told you she had gotten married 3 and divorced again, hadn't she? 4 A Yes. 5 Q Did Mrs. Melashenko, Ms. Boze, tell you 6 anything about her testimony that she gave here in the 7 courtroom? 8 A No. 9 Q Did she tell you anything about the 10 proceedings that had gone on yesterday? 11 A No. 12 MS. PETRO: I have no further questions, Your 13 Honor. 14 THE COURT: Mr. Townsend? 15 - - - - - 16 CROSS-EXAMINATION 17 BY MR. TOWNSEND: 18 Q Good morning, ma'am. 19 A Good morning. 20 Q You weren't involved in any way with the 21 transfer of Carolina Destefano to ORMC, were you, ma'am? 22 A No. 23 Q And you also were not involved in any attempt 24 to transfer her back to the nursing home facility, 25 correct? 671 1 A No. 2 Q And you never spoke or discussed Mr. or 3 Mrs. Destefano with any employee of Orlando Regional 4 Healthcare System; is that correct? 5 A No. 6 MR. TOWNSEND: That's all I have, Your Honor. 7 THE COURT: Redirect? 8 - - - - - 9 REDIRECT EXAMINATION 10 BY MR. OSBORNE: 11 Q Ms. Walters, these four double shifts that 12 occurred in the ten-day work period, that occurred 13 because Sunbelt Nursing Home is short staffed; isn't that 14 true? 15 A Not necessarily. Sometimes people might have 16 got sick or for some reason they're not able to work. 17 Q That was 40 percent of that work period that 18 you had to work a double shift, wasn't it, four out of 19 ten days? 20 A Yes. 21 Q And you said that was very typical? 22 A If someone -- 23 MS. PETRO: Objection, Your Honor, 24 mischaracterization of prior testimony. 25 THE COURT: Sustained. 672 1 BY MR. OSBORNE: 2 Q You also mentioned that you just don't 3 remember some things that happened six years ago, 4 correct? 5 A Yes, I don't. 6 Q And you know as a nurse that's why it's 7 important to chart things so you don't have to try to 8 remember. You can look at the chart and see what 9 happened six years ago, correct? 10 A Yes. 11 Q You mentioned that the bloody or the bed pad 12 was in the nurse manager's office. That's Mary 13 Thornton's office, correct? 14 A Yes. 15 Q And you also mentioned that, was it a crime 16 scene technician that came by to get the pad from you? 17 A I don't know if -- 18 MS. PETRO: Objection, Your Honor, 19 mischaracterization of prior testimony. 20 MR. OSBORNE: Open-ended question. 21 THE COURT: Overruled. 22 BY MR. OSBORNE: 23 Q Was it a crime scene technician that came to 24 get the pad from you? 25 A I don't recall who the person was, whether it 673 1 was a sheriff or whoever. I know somebody came, and when 2 I looked at their ID, I gave it to them. 3 Q No police officer ever interviewed you about 4 anything, did they? 5 A No. 6 Q Other than giving this pad over, that's the 7 only interaction you had with anybody from a police 8 department, correct? 9 A Yes. 10 Q Nobody from DCFS or HRS ever talked to you 11 either, did they? 12 A No. 13 Q Now, I want to make certain one last thing 14 here is that you were certain -- when your deposition was 15 taken on April 18th of 2002, you were certain, were you 16 not, during that testimony that Carol Boze did not tell 17 you anything about any sexual impropriety on the night of 18 the 20th; isn't that true? 19 A Could you repeat what you said again? 20 Q Yes, ma'am. You remember when your deposition 21 was taken in 2002? 22 A Yes. 23 Q And you were sworn to tell the truth? 24 A Yes. 25 Q And you were certain at that time, certain 674 1 that Carol Boze did not tell you about any of these 2 events of alleged sexual impropriety on the 20th of 3 September, correct? 4 A That I can recall. 5 Q That's yes, isn't it? 6 A Yes. 7 Q You were certain, correct? 8 A I wouldn't say dead certain. 9 Q All right. Let me read you at page 20, 10 starting at line 17 -- I'm going to start at line 11. 11 Okay. 12 "Question: As best you can recall, what did 13 Carol exactly tell you? 14 "Answer: That upon -- that she went into the 15 room and she saw him kissing his mom passionately, 16 and I said, you really see something like that? She 17 said yes. 18 "Question: Okay. And did she give you any 19 more description other than that? 20 "No. 21 "Question: Did she tell you that she saw 22 Mr. Destefano lying on top of his mother? 23 "Answer: No. 24 "Question: Did she at that point -- did you 25 give her any instructions as to what to do about 675 1 that? 2 "Answer: No." 3 MS. PETRO: Objection, Your Honor. 4 MR. OSBORNE: I'm sorry. 5 MS. PETRO: Improper impeachment. 6 MR. OSBORNE: I read from the wrong page, 7 Judge. It was my fault, my bad -- 8 THE COURT: Sustained. 9 BY MR. OSBORNE: 10 Q Let me start over on that, Ms. Walters. Page 11 19, line 17. 12 "Question: Tell me, what else did you hear? 13 "Answer: I heard that he was seen kissing his 14 mom passionately. 15 "Question: Okay. And can you tell me who 16 said that? 17 "Answer: Carol told me. 18 "Question: When did Carol tell you that? 19 "Answer: The day after or sometime after the 20 incident after she was transferred. 21 "Question: Okay. So after the transfer? 22 "Answer: Yes. 23 "Question: Okay. All right. So she didn't 24 tell you that on either the 20th -- 25 "Answer: No. 676 1 "Question -- or the 21st? 2 "Answer: She didn't -- she didn't mention it 3 on the evening when the patient was there. It was 4 after the patient left." 5 So you were certain and -- 6 MS. PETRO: Your Honor, she answered the 7 question in the affirmative. 8 THE COURT: Sustained. 9 MR. OSBORNE: I thought she said she wasn't 10 sure, Judge. No further questions. 11 THE COURT: You're excused, ma'am. You may 12 leave the courthouse. 13 THE WITNESS: Okay. Thank you. Can I go 14 home? 15 THE COURT: Yes, or you can go to work or 16 shopping. 17 MS. MARSHALL: Your Honor, she is released 18 from her subpoena; is that correct? 19 THE COURT: Do you intend to recall her? 20 MS. MARSHALL: No. I think that was our 21 agreement that we would do everything during -- 22 THE COURT: Having no objection, she is now 23 released from the subpoena of the Court. 24 MS. MARSHALL: Your Honor, I think you forgot 25 on both of them to ask them whether the jurors had 677 1 any questions for the witness. 2 THE COURT: I beg your pardon. I certainly 3 did. Ma'am, one more thing, if you can just sit 4 down. 5 Ladies and gentlemen, do any of you have any 6 questions for this witness? Any questions? If so, 7 please indicate. Seeing that there are no 8 questions, no questions, you're excused. Thank you. 9 Thank you. I beg your pardon. I'm sorry 10 about that last witness. Go ahead, ma'am. If I do 11 forget in the future, I would appreciate counsel 12 reminding the Court or you can remind me. Call your 13 next witness. 14 MR. OSBORNE: Your Honor, the next witness is 15 appearing by video, and it's a 48-minute video. 16 THE COURT: All right. Let's take about a 17 five or seven-minute recess, shall we, and then 18 we'll come in and do the deposition. Mr. Osborne, 19 please get it cued up, ready to go. 20 (A 6-minute recess was had.) 21 THE COURT: Corporal Pearl, would you bring 22 the jury in, please? 23 MS. MARSHALL: We have a witness that is 24 waiting in the hall, and I think this is going to 25 take an hour. Can we have her come back after 678 1 lunch? 2 THE COURT: Sure. 3 MR. OSBORNE: What time do you want to have 4 her come back, Judge? 5 THE COURT: 1:00. 6 (Jury enters.) 7 THE COURT: Ladies and gentlemen, the 8 plaintiff is now going to call a witness by 9 videotape deposition. As I instructed you at the 10 beginning of the trial, a deposition is a statement 11 or questioning of a witness by the attorneys before 12 trial and recorded either on video or in writing. 13 You are to consider and assess the witness's 14 testimony just as if the witness had been here 15 testifying live, give it the same weight and 16 consideration. Mr. Osborne? 17 MR. OSBORNE: Plaintiff calls Constance 18 Standish. 19 (Whereupon, the following videotaped deposition 20 proceedings were published to the jury:) 21 BY MR. OSBORNE: 22 Q State your full name for the record, please, 23 ma'am. 24 A Constance Standish. 25 Q And where do you live? 679 1 A 3813 Shady Grove Circle, Orlando, Florida 2 32810. 3 Q And are you Miss, Ms. or Mrs. Standish? 4 A Mrs. 5 Q Okay. And tell the Court and the jury why 6 you're not available for the trial that's scheduled to 7 start on October 17th of 2005. 8 A I am leaving for Israel on Saturday, October 9 8th, and will not be back in the country until October 10 25th. 11 Q Tell me this, Mrs. Standish, what is your 12 educational -- your formal educational background, 13 please. 14 A I am a licensed practical nurse since 1979. 15 Q And are you also a CNA? 16 A I was a nursing assistant from 1972 to 1978. 17 Q Give the jury the benefit of what your work 18 history has been in the medical field. 19 A I have been in long-term care for 20 approximately 27 years. I was also in assisted-living 21 facilities for two years, and I also was in psychiatric 22 or mental health facilities for four years. 23 Q Have you ever worked for any Florida Hospital 24 or Adventist Health System nursing home? 25 A Yes, I have. 680 1 Q When was the first time you were so employed? 2 A I was actually employed with Florida Hospital 3 in 19 -- I believe it was 1988 when I moved to Florida. 4 Q What did you do in 1988 for Florida Hospital? 5 A I was a medication and staff nurse on the 6 psychiatric medical floor. 7 Q How long did you work in that position? 8 A I worked there three or four months before I 9 went to Lakeside Alternatives, which was a psychiatric 10 facility in Eatonville. 11 Q Did you work at any other Florida 12 Hospital-related facility after 1988? 13 A Yes. I worked at Florida Living, which is 14 in -- I don't know if it's Altamonte Springs or Apopka. 15 And I worked at Sunbelt Orlando on Rollins. Bedford. 16 Q What is Florida Living? What is that? 17 A It's a nursing home. 18 Q Okay. And what were your duties at Florida 19 Living nursing home? 20 A I was a staff nurse. 21 Q What was the period of time that you worked at 22 Florida Living? 23 A I don't remember the exact time that I was 24 there. I was -- I worked -- I believe I started in 1997. 25 It may have been earlier. 681 1 Q Did you transfer from -- from Florida Living 2 to Sunbelt Rollins? 3 A Yes, I did. 4 Q When did you -- when did that transfer take 5 place? 6 A I don't remember. It -- that may have been in 7 1997. I'm not -- I don't really remember my dates 8 without looking at a résumé. 9 Q What was your job at Sunbelt Rollins? 10 A I was an MDS coordinator. 11 Q What does that mean? 12 A That is federal and state mandatory paperwork 13 that is done on every resident that comes into a nursing 14 home, no matter what the payor source is. 15 Q What was the number of beds, if you recall, at 16 Sunbelt Rollins nursing home? 17 A I believe it was 120. 18 Q And where is -- where is Sunbelt Rollins 19 nursing home located in relation to Florida Hospital? 20 A Across the street. 21 Q Inside the facility at Sunbelt Rollins, where 22 was your office located, generally speaking? 23 A I was on the third floor. 24 Q Okay. Did you know a Rachel Bean while you -- 25 A Yes. 682 1 Q -- worked there? 2 A Yes. Yes, I did. 3 Q What was Rachel Bean's position? 4 A She was director of nurses. 5 Q Did you know a Mary Thornton? 6 A Yes, I did. 7 Q What was her position? 8 A She was unit manager. 9 Q Where was her office located? 10 A Actually, right beside the elevators. 11 Q On the third floor? 12 A On the third floor. 13 Q Okay. I'm going to take you back to events 14 that occurred in September of 1999, specifically 15 September 20th of 1999. Were you aware in that time 16 frame that a Carolina Destefano had been admitted to 17 Sunbelt Rollins? 18 A I'm sorry. What was the first date you said? 19 Q September 20th. 20 A Yes, I was. I knew that there was a resident 21 admitted across the hall from me. 22 Q And let's just talk a little bit about that. 23 Across the hall meaning? 24 A From my office. 25 Q Oh, okay. 683 1 A On the -- 2 Q Do you remember what her room number was? 3 A 307. 4 Q And if you say across the hall, is that you 5 come out your door and directly across the hall was 307? 6 A Yes. 7 Q Okay. And just -- who was in your office with 8 you at Rollins Bedford? 9 A Gail Miller. 10 Q What was Ms. Miller's job? 11 A She was also an MDS coordinator. 12 Q And did you know a Carol Boze who worked at 13 Sunbelt Rollins? 14 A Yes, I did. 15 Q What was her position? 16 A She was a staff nurse. 17 Q Do you recall a conversation that occurred 18 with Carol Boze on September 20th of 1999 regarding 19 Carolina Destefano? 20 A Yes, I do. 21 Q Tell me about that, please. 22 A Well, it was after -- it was on the afternoon 23 shift, which does begin at 2:45 and ends at 11:15 p.m. I 24 was coming out of my office to either go to a chart, 25 return a chart, or go to a resident's room to talk about 684 1 my job, what I was required for the MDS, which I don't 2 know if you need to know, stands for minimum data set. 3 And Carol was at her medication cart, and it was on my 4 side of the hall, that end of the hall, which included 5 Room 307, before that and after that. 6 Carol stopped me and told me about a family 7 member wanting a dressing changed, and that she was -- 8 she was too busy, and he brought a note for her to sign, 9 and she signed this note. And I looked at her and said, 10 why in the world would you ever sign a note from a family 11 member? And she said, I don't know. I just did it. And 12 my comment to her was, why didn't you get the supervisor 13 to do the dressing if you couldn't do it? 14 Q Mrs. Standish, do you recall if Carol Boze 15 indicated to you how many times she had a conversation 16 with this family member about -- about changing a 17 dressing? 18 A Yes. Three times. 19 Q And tell me how -- how she related to you how 20 the three times occurred. 21 A She told me that he had come out three times. 22 She did not give a time specimen, a time element as to 23 how long it took him in between approaching her, but the 24 final time he came out with a piece of paper and asked 25 her to sign this note. And I did not ask what was in the 685 1 note. To reiterate, I stated, why would you sign a note, 2 and why did you not get a supervisor? 3 Q Why were you suggesting that she get a 4 supervisor? 5 A Because as medication nurses, we have a time 6 element to passing medications. We have an hour before 7 the time and an hour after the time. And sometimes it 8 takes longer to get specific residents, especially 9 demented residents, to take their medications. So you 10 always start around 4:00, and you usually finish 6:00, 11 6:30, all depends. But this is State mandatory. It's 12 not nursing home regulation. It's a State regulation. 13 Q In terms of passing out the medication? 14 A Of the time element of passing out 15 medications. 16 Q So what was -- what was your thought in terms 17 of bringing in the supervisor, to do what? 18 A To do the dressing change. If the family was 19 three times coming out to that same nurse asking to have 20 the dressing changed, you go get a supervisor because you 21 know you're not going to get in there until you're 22 through passing medications. 23 Q Did Carol Boze mention anything to you about 24 Larry Destefano being sexually inappropriate with his 25 mother at that time? 686 1 A No. 2 Q Did she mention anything to you about Larry 3 Destefano lying on top of his mother? 4 A No. 5 Q Did she mention anything to you about Larry 6 Destefano inappropriately or passionately kissing his 7 mother? 8 A No. 9 Q Let's go to the next day -- or let me finish 10 up here. 11 Was that the sum and substance of your 12 conversation with Carol Boze on the evening of or the 13 late afternoon of September 20, 1999? 14 A Yes. 15 Q Let's go to the 21st of September, the next 16 day. And tell the jury, if you would, what occurred to 17 your observation, again, involving 307 and Carolina 18 Destefano. 19 A Well, at some point early morning, and it was 20 before -- I believe it was before the morning meeting, 21 which starts at 9:00. So -- and I get to work anytime 22 between 5:30 and 7:00 a.m. 23 I was informed by another staff member that 24 Rachel Bean, Mary Thornton and Mrs. Destefano's son was 25 in Rachel's office, door closed, and loud voices coming 687 1 out. I was -- I was not told what was said nor did I 2 ask. 3 Q What did you observe after that? 4 A I observed -- and I'm sorry. I need to go 5 back. I was also told that Larry had a piece of paper in 6 his hand. And my thought was that paper was the note 7 that Carol Boze had signed the evening before. Whether 8 it was or not, I did not know. 9 Q Let me ask you this just to back up a little 10 bit, Mrs. Standish. Was it uncommon or common for an 11 LPN, in your experience, to sign a note, whatever that 12 note might be, regarding the care and treatment of a 13 patient to a family member of the patient? You can 14 answer, if you can. 15 A No, I have not known it to occur. I'm not 16 saying it can't or hasn't. But, no, not to my knowledge, 17 it has not occurred. 18 Q Let's go back to what you observed, then, on 19 the morning of September 21st of 1999 regarding Room 307. 20 A Okay. My office, which was at the opposite 21 end of the hall from Rachel Bean's, again, across the 22 hall from 307, from my desk and the office door, I could 23 see Rachel, Mary and the back of Mr. Destefano's head 24 walking into the room, 307, and the door closed. I went 25 back to what I was doing, which was working on my 688 1 computer. 2 Q What happened next that you observed? 3 A I don't know the time element, but the next 4 thing I know, Mary Thornton is standing in our doorway, 5 which was open, she did not have to open it, and I looked 6 up at her, and she told me, she said to me, "We're going 7 to get this guy. We are going to say he was sexually 8 inappropriate with his mother. We have done this 9 before." And I just looked at her. I never -- I didn't 10 say a word. I never said anything. I just looked at 11 her, and -- 12 Q Describe, if you recall, Mrs. Standish, what 13 Mrs. Thornton's demeanor was at the time she made these 14 statements to you. 15 A Very casual, very matter of fact. 16 Q Why didn't you say anything? At the time, why 17 didn't you respond? 18 A I -- I didn't believe -- I didn't believe it. 19 I didn't believe what I heard. 20 Q Why didn't you -- or let me ask it this way. 21 Did you report Mary Thornton's statement to anyone at -- 22 at Rollins Bedford, Sunbelt, the nursing home, after you 23 heard that statement? 24 A No, I did not report it to anybody. 25 Q Why not? 689 1 A I did not -- I couldn't -- I didn't believe 2 that that -- I never believed it was ever going to 3 happen. 4 Q And was it -- when did you first actually 5 learn that -- that statements were made that -- about 6 Mr. Destefano being sexually inappropriate with his 7 mother? 8 A When I was called in by Mr. Grower's office, 9 which was the previous attorneys. 10 Q And just so we're clear in terms of context, 11 this happened on September 21st of 1999. When did you 12 leave the employment of Rollins Bedford? 13 A October of '99. 14 Q And at the time you left in October of '99, 15 were you aware that these threats had actually been acted 16 upon? 17 A No, I was not. 18 Q Let me rephrase the question. What, if 19 anything, did you learn about the whereabouts of Carolina 20 Destefano's chart on 9/21/99? 21 A Well, Mrs. Destefano was not a Medicare 22 resident, but we needed to do a discharge summary. When 23 she leaves -- when a resident leaves the building, even 24 to go back to a hospital, as an MDS coordinator, it's a 25 State regulation, once again, to do a discharge summary. 690 1 I went to go get the chart in order to do this, and the 2 chart was not at the desk. And I was told that the chart 3 was in Rachel Bean's office and had been all day. 4 Q Who told you that? 5 A I'm not sure if it was the unit secretary or 6 not. 7 Q Okay. 8 A But that's where the charts were kept, which 9 was at the opposite end of the hall from me, and a unit 10 secretary does sit there. 11 Q Did you recall what time of day it was you 12 were looking for the chart to do a discharge summary to 13 work on that? 14 A It was after she was discharged. We don't do 15 a discharge until they're out of the building. 16 Q Did you have -- 17 A And I believe that was the afternoon. 18 Q From your recollection, how long was the chart 19 in Rachel Bean's office and not at the unit secretary's? 20 A It never returned back to the unit -- the desk 21 where the other charts are kept. 22 Q For the entire day? 23 A Correct. 24 Q Was it common or uncommon for charts to not be 25 at the unit manager's location when you went to look for 691 1 them? 2 A It all depends. If the -- if the director of 3 nurses or the unit manager or if anyone needed the chart, 4 they would sign it out. And a director of nurses having 5 a chart is not uncommon. It being gone all day is 6 uncommon. 7 Q Do you ever recall that happening at any other 8 time at Sunbelt Rollins other than this particular 9 occasion? 10 A No. 11 Q Let me ask you again back about 9/21/99, did 12 you have another discussion with Carol Boze about 13 Carolina Destefano? 14 A Yes. 15 Q What was that? 16 A We discussed the documentation. 17 Q And what do you mean by that? 18 A In the nurse's notes of the speculation of 19 what Carol -- what Carol Boze said she saw. 20 Q Well, let me ask it this way. What time of 21 day was this conversation? 22 A It was after 3:00 p.m. 23 Q Where were you and Carol Boze when this -- 24 A Out in the hall, in the hallway. 25 Q Okay. And -- 692 1 A On the unit. 2 Q -- who initiated the conversation? 3 A I did. 4 Q What did you say? 5 A I asked her about the chart, why it was still 6 in Rachel's office. 7 Q What did Ms. Boze say to you? 8 A She commented that she needed to document on 9 the chart, and Rachel was going to help her write the 10 nurse's note. 11 Q Did Carol Boze ever tell you that she actually 12 saw Larry Destefano being sexually inappropriate with his 13 mother? 14 A No. 15 Q When she had this conversation with you about 16 charting, this would be late entry charting, correct? 17 A Yes. 18 Q Doing this late entry charting, did she say at 19 that time, I'm going to be charting exactly what I saw of 20 her? 21 A No. 22 Q Instead she said what? 23 A She said that Rachel was going to tell her 24 what to put in the chart. 25 Q Okay. Was that the sum and substance of your 693 1 conversation with Carol Boze -- 2 A Yes, it is. 3 Q -- regarding the charting? And just recapping 4 a little bit, you never actually did see the chart to see 5 what was being charted by either Carol Boze or Rachel 6 Bean? 7 A No. 8 Q Let me ask you a couple backup questions here. 9 In your many years of nursing, and also in your years 10 working at Florida Living and at Sunbelt Rollins, did you 11 come to know what the custom or practice would be if an 12 LPN witnessed someone being sexually inappropriate with a 13 patient? 14 A You would, number one -- 15 Q Is that yes? 16 A I'm sorry? 17 Q Did you come to know what the custom and 18 practice was as an LPN, if you witnessed someone being 19 sexually inappropriate with a patient? 20 A No, because it's never been a -- it's never 21 arised. 22 Q Tell me what you mean by that. 23 A You're not educated by the facility if you see 24 somebody sexually inappropriate what to do. You are 25 educated if there is any inappropriate behavior. It did 694 1 not stem just from sexual, it could be verbal. 2 Q What about inappropriate behavior, did you 3 come to know what the custom or practice was about 4 charting inappropriate behavior? 5 A Yes. 6 Q What was that custom? 7 A To charting, to documentation? 8 Q Correct. 9 A You document as soon as possible, almost 10 immediately, so that you can -- your recollection would 11 be as accurate as possible. 12 Q Would it -- would the custom or practice 13 include anything regarding calling the supervisor? 14 A Most definite. 15 Q And why was that? 16 A If you do not feel secure in negating the 17 situation, you would definitely get your supervisor, let 18 he or she know what is going on so they can handle the 19 situation. 20 Q You mentioned that -- that it was never 21 discussed about someone -- what to do if someone was 22 sexually inappropriate with a patient. And was -- to 23 your knowledge, had that ever occurred before in your 24 experience at Sunbelt Rollins or at Florida Living? 25 A No. 695 1 Q In your how many years of nursing practice 2 have you been an LPN? 3 A Since 1979. 4 Q Have you ever heard, other than this case, 5 of -- of an instance where a relative, a son, has been 6 accused of being sexually inappropriate with a parent? 7 You can answer. 8 A No. 9 Q What is your present employment status? 10 A I am not employed. 11 Q Have you in recent times or at any time in the 12 past applied for employment with any Florida 13 Hospital-related facility? 14 A Yes, I have. 15 Q When was the last time you did that? 16 A Within the past, I would say, six weeks -- 17 Q And where did you -- 18 A -- eight weeks. 19 Q Where did you apply? 20 A Florida Living Nursing Center where I had 21 worked previously. 22 Q And what position did you apply for? 23 A MDS coordinator. 24 Q Okay. And what were you told about -- about 25 whether or not Florida Living's going to be able to hire 696 1 you? 2 A They said that I was not eligible for rehire 3 at Sunbelt Orlando. And I said, why not? And they said, 4 well -- I said, the building doesn't even stand anymore. 5 They said, well, you need to call somebody at corporate 6 and ask, and that's what we were told. And then they 7 said, well, we're looking for an RN. 8 Q MDS coordinator, was that the same job you 9 held at Sunbelt Rollins? 10 A Yes. 11 Q And when you worked previously at Florida 12 Living, did you ever have any disciplinary problems or 13 any work-related problems with Florida Living? 14 A No, I did not. 15 Q Did you leave there on good terms? 16 A Yes, I did. 17 Q Have you -- have there been other times you've 18 applied for positions with Florida Hospital-related 19 facilities; the last one six weeks ago? 20 A I have sent my résumé at -- responded to ads 21 in the paper, and I have not heard from them. 22 MR. OSBORNE: Let's go off camera for a 23 moment. 24 THE VIDEOGRAPHER: Time is 8:55 a.m. Off the 25 record. Time is 8:59 a.m. On the record. 697 1 BY MR. OSBORNE: 2 Q Mrs. Standish, just a couple follow-up 3 questions. Going back to the events of the 21st and when 4 you were having the discussion with Carol Boze about the 5 charting and Rachel Bean directing her as what to write, 6 did Carol Boze tell you, at that time, what it was that 7 was going to be charted? 8 A No, she did not. 9 Q Did you ever ask Carol Boze directly if she 10 saw what was going to be charted? 11 A No, I did not. 12 Q Okay. Back on the 20th, the first day we were 13 talking about, how much longer were you there -- were you 14 there at the facility after you had the conversation with 15 Carol Boze about the note? 16 A I cannot answer what time I left. I don't -- 17 I do not recall. 18 MR. OSBORNE: All right. No further 19 questions. Thank you, ma'am. 20 THE WITNESS: You're welcome. 21 - - - - - 22 CROSS-EXAMINATION 23 BY MS. MARSHALL: 24 Q Good morning, Mrs. Standish. How are you? 25 A Good morning. Great. 698 1 Q You've been testifying regarding a series of 2 events which occurred primarily on September 20th and 3 21st, 1999, correct? 4 A Yes. 5 Q And you have a clear recollection of what went 6 on on those two dates; is that accurate? 7 A Pretty accurate. 8 Q Is it true that you left Sunbelt on 9 approximately October 19th of 1999? 10 A Yes, I did. 11 Q And you never saw or met Carolina Destefano, 12 did you? 13 A No, I did not. 14 Q And you didn't meet Larry Destefano until your 15 deposition approximately three years later; is that 16 correct? 17 A Yes. 18 Q Now, I want to take you back to the date of 19 September 20th 1999. Do you recall how many hours you 20 worked that day? 21 A No. 22 Q But you got there sometime in the morning and 23 left sometime after this conversation with Carol Boze? 24 A Yes. 25 Q I think you testified on direct that Carol 699 1 would get there sometime around 2:45; is that correct? 2 A Between 2:30 and 2:45 to start the shift 3 change. 4 Q And that she would start distributing drugs to 5 the patients beginning at 4:00, correct? 6 A Yes. 7 Q So this incident with the note happened 8 sometime after 4:00? 9 A Yes. 10 Q And that's when your conversation with Carol 11 took place? 12 A After 4:00, yes. 13 Q On September 20th -- 14 A Correct. 15 Q -- 1999? 16 A Correct. 17 Q Okay. Now, this note that you and Carol 18 discussed on September 20th, that note was important with 19 your interpretation of what went on the next day; is that 20 correct? 21 A Yes. 22 Q Okay. Because I think you stated that that 23 note and your conversations with Carol the night before 24 actually formed the basis for your assumption of what 25 Mary Thornton was talking about. 700 1 A Yes. 2 Q Okay. Isn't it true, Mrs. Standish, that you 3 weren't even at Sunbelt on September 20th, 1999? 4 A No, it is not true. 5 Q Okay. Mrs. Standish, let me show you what 6 has -- what the court reporter can mark as Defendants' 7 Exhibit 1, please. 8 Mrs. Standish, I'll represent to you that 9 these are time records from Sunbelt Subacute Center, and 10 do you see your name on Defendants' Exhibit 1? 11 A Yes, I do. 12 Q Could you tell the jury what it states for the 13 hours that you worked on September 20th, 1999? 14 A There are no hours here, but there's also an 15 error on here because it says I worked Sunday, the 19th, 16 and I did not work Saturday or Sundays. 17 Q Okay. Are you Jewish, Mrs. Standish? 18 A Yes, I am. 19 Q Is it your practice to take off on Jewish 20 holidays? 21 A No, not necessarily, because I am also 22 Messianic. 23 Q Do you know that on September 20th of 1999, 24 that that was the Jewish holiday Yom Kippur? 25 A Yom Kippur. No, I did not remember that, but 701 1 I did not take Jewish holidays off. 2 Q You never took Jewish holidays off? 3 A No. 4 Q Now, Mrs. Standish, is it your testimony that 5 you have never worked a Sunday at Sunbelt? 6 A Very rarely did I ever work a weekend anywhere 7 I've ever worked doing an MDS coordinator's position. 8 Q Is it possible that you came in on Sunday 9 because you were going to take the following religious 10 holiday off the next day? 11 A No. 12 Q Now, you're an -- you were an MDS coordinator 13 at Sunbelt; is that correct? 14 A Yes. 15 Q And as an MDS coordinator, you act as a 16 liaison between the hospital and Medicare, correct? 17 A The nursing home and Medicare. 18 Q Between the nursing home and Medicare? 19 A Yes. 20 Q And -- 21 A Also Medicaid, also private insurance 22 companies. 23 Q And as an MDS coordinator, it wasn't your job 24 to provide care for patients, was it? 25 A Direct care, no. 702 1 Q And you weren't Nurse Boze's supervisor, were 2 you? 3 A No, I was not. 4 Q And it wasn't your job to advise nurses on 5 patient care, was it? 6 A In a way, yes, it is, because I do the care 7 plans for all the residents in the building with my 8 partner. 9 Q Okay. Did you provide any supervision or 10 advice to the nurses as to Mrs. Destefano? 11 A In what aspect? 12 Q In any aspect. 13 A No. 14 Q Now, you didn't like Rachel Bean, did you? 15 A When she first came to the facility, yes, I 16 did. 17 Q By the time that you left, you didn't like 18 her, did you? 19 A I didn't care for her nursing practices and 20 her -- her skills with the people that worked -- with the 21 employees there. 22 Q You didn't like the way she talked to you, did 23 you? 24 A I didn't like the way she talked to me or 25 other people. 703 1 Q Okay. And Rachel Bean and the chief 2 administrator had actually counseled you with regard to 3 your employment performance, correct? 4 A No. 5 Q That is not correct? 6 A No, it is not. 7 Q Okay. Have you -- do you remember having your 8 deposition taken on November 19th, 2002? 9 A Yes, I do. 10 Q Okay. I'm going to show you a copy of that 11 deposition, and if you could turn to page 33 of that 12 deposition. On line 16, you were asked the question: 13 Were you ever counseled by anyone at Sunbelt with regard 14 to your performance? And your answer was: Actually, 15 yes. I was one time with Rachel and Chuck Sherer, who 16 was the administrator. 17 A Yes, this was all prior to this situation -- 18 this incident. 19 Q Okay. So, in fact, you had been counseled 20 about your job performance by Rachel Bean and Chuck 21 Sherer, correct? 22 A Yes, but I could also not remember what the 23 counseling was. 24 Q You testified that you specifically remember 25 seeing Mr. Destefano's back as he went into 704 1 Mrs. Destefano's room with Mrs. Bean and Mr. -- and 2 Mrs. Thornton on September 21st, 1999, correct? 3 A Yes. 4 Q And is it fair to say that since you didn't 5 know Mr. Destefano at that point, that you just assumed 6 that it was him? 7 A Yes. 8 Q Okay. And after Mrs. Thornton left 9 Mrs. Destefano's room, you stated that Mrs. Thornton came 10 directly across the hall to your office, and without any 11 introduction whatsoever said, "We're going to get this 12 guy. We're going to say he was sexually inappropriate. 13 We've done this before." Is that your testimony? 14 A Yes, it is. 15 Q And were those Mary's exact words? 16 A Yes, it was. 17 Q And you remember her exact words six years 18 later? 19 A Oh, yes. 20 Q And then without any other discussion, Mary 21 Thornton just walked out of your office. Is that your 22 testimony? 23 A Yes. 24 Q And Mary Thornton didn't mention Rachel Bean 25 in that conversation, did she? 705 1 A Not by name. 2 Q Okay. And you weren't good friends with 3 Mrs. -- with Mary Thornton, were you? 4 A Are you talking about outside the office? 5 Q Yes. 6 A I did not socialize with anyone I worked with. 7 Q So she wasn't someone -- you weren't someone 8 that she would normally confide in; is that accurate? 9 A No, that is not accurate. 10 Q And you didn't ask her what she meant, did 11 you? 12 A No. I didn't ask any questions. 13 Q Mary did not say that she was going to lie, 14 did she? 15 A She did not use those words. 16 Q And Mary didn't say that Mr. Destefano had not 17 been inappropriate, did she? 18 A That's not the word she used either. 19 Q Now, but you assumed from Mary Thornton's 20 statements that she and Rachel Bean were going to concoct 21 a story about Mr. Destefano being sexually inappropriate, 22 correct? 23 A Yes. 24 Q And the reason that you got that idea was 25 because of the conversation that you said that you had 706 1 the following night before with Carol Boze, correct? 2 A No. 3 Q You had stated earlier that your assumption 4 about the conversation that you heard with Mary Thornton 5 was that they were fearful of a lawsuit, correct? 6 A No. That's -- I didn't say they were. I said 7 I felt that morning of the 21st, when I was informed that 8 he went to the office, Mr. Destefano was in the office 9 with Rachel and Mary, had a piece of paper in his hand, 10 which I took to mean that possibly that paper that Carol 11 Boze signed, my thought was they're down -- and I was 12 told there was loud voices -- my thoughts were he's 13 talking about a lawsuit. And -- 14 Q And that assumption -- 15 MR. OSBORNE: Let's let her finish the answer. 16 A And when Rachel -- I mean, excuse me, Mary 17 Thornton came to my office, made the statement that they 18 were going to get him, they were going to say he was 19 sexually inappropriate, my thought was there's a -- a 20 lawsuit is being threatened. That was not spoken 21 verbally by anyone. 22 Q And my question is that assumption that a 23 lawsuit was threatened was based on your conversation 24 with Carol Boze on September 20th, 1999, correct? 25 A No, it was -- the assumption came from their 707 1 being in that office, going into Mrs. Destefano's room, 2 and what was stated. I didn't know anything about the 3 night before on the 20th about any context of sexual 4 inappropriateness between Mr. Destefano and his mother. 5 So the 20th was not -- 6 Q Mrs. Standish, I want you to listen to my 7 question. My question is that any reference to a 8 lawsuit, any assumptions that you made about a lawsuit, 9 were based on the fact that you were aware that Carol 10 Boze had signed a note, and you became aware of that on 11 September 20th, 1999, when you had this discussion with 12 Carol? 13 A I became aware of a note being signed. I did 14 not think lawsuit on the 20th. 15 Q Okay. And your testimony is that you have 16 never taken off a Jewish holiday; is that correct? 17 A No. I do not take Jewish holidays off, and I 18 do not take Christian holidays off. 19 Q Okay. Now, even though you thought that they 20 were going to concoct a story about Mr. Destefano being 21 sexually inappropriate, you never reported them to the 22 police, did you? 23 A No, I did not. 24 Q And the police were actually at the Sunbelt 25 facility on September 21, 1999, were they not? 708 1 A I don't know. 2 Q Can you turn to your -- 3 A I -- 4 Q -- deposition? 5 A It says that they never came to me. And I 6 don't know what went on in the facility with police. 7 Q Okay. Mrs. Standish, my question is you knew 8 that the police were at the facility on September 21st, 9 1999? 10 A I didn't know that. 11 Q Can you turn to page 66 of your deposition? 12 On line 7, you were asked: 13 "Do you recall the police coming to the 14 facility on the 21st? 15 "Answer: Yes." 16 A Okay. 17 Q "Question: Of September? 18 "Answer: Yes." 19 A Okay. I said -- I said yes, but I don't 20 remember anything that took place with the police there. 21 Q But you didn't report to the police that were 22 in the building on September 21st that you had heard Mary 23 Thornton say that they were going to concoct a story 24 about Mr. Destefano? 25 A No. 709 1 Q And you didn't report what you heard to the 2 state attorney's office, did you? 3 A No. 4 Q And you didn't report this to any of your 5 supervisors, did you? 6 A No. 7 Q And you didn't report this to the nursing home 8 administrator either, did you? 9 A No, but I did speak about it to somebody. 10 Q Okay. 11 A My supervisor, my immediate supervisor was 12 Gail Miller. She was the RN. 13 Q Well, the head of the nursing home was Chuck 14 Sherer, right, the administrator? 15 A Yes. 16 Q And you didn't talk to him about it, did you? 17 A No. 18 Q Now, you said in your direct testimony how 19 important it is to chart things as soon as possible, 20 right? 21 A Yes. 22 Q Did you write down this conversation that 23 supposedly happened with Mary Thornton? 24 A Where was I to write it down? 25 Q Anywhere. 710 1 A No. 2 Q So even though this was a pretty heinous 3 statement by Mary Thornton, that they were going to 4 concoct a story about someone, you didn't think that that 5 was important enough to write it down? 6 A It wasn't a matter of important enough. I did 7 not believe that it was going to happen. 8 Q Did you witness Mr. Destefano outside of the 9 Sunbelt nursing home picketing with a sign? 10 A Yes, I did. 11 MS. MARSHALL: Let's go ahead and have this 12 marked as Exhibit No. 2. 13 Q Mrs. Standish, do you recognize this as the 14 sign that Mr. Destefano was picketing with outside of the 15 Sunbelt facility? 16 A No. I never read the sign. 17 Q Is it possible that the -- that you heard him 18 make statements outside of the facility at any time after 19 the events of September 20th and 21st? 20 A I actually heard on the news, newspaper 21 reporters that had spoken to him. But, otherwise, I 22 never heard him at Sunbelt. And to my knowledge, he was 23 on the opposite side of the street in front of Florida 24 Hospital. 25 Q And you never read the sign -- 711 1 A No -- 2 Q -- that -- 3 A It stated too much. 4 Q -- with the words "They called HRS alleging I 5 sodomized my dying 71-year-old mother." 6 A No. I never read the sign. 7 MS. MARSHALL: I'm going to have to take a 8 short break to get something from our office, if I 9 can make a phone call. 10 MR. OSBORNE: Yep. 11 THE VIDEOGRAPHER: Time is 9:17 a.m., off the 12 record. Time is 9:33 a.m., on the record. 13 BY MS. MARSHALL: 14 Q Great. Mrs. Standish, let me show you what 15 the court reporter has marked as Defendants' Exhibit 3. 16 And Mrs. Standish, you testified before that you never 17 took off for Jewish holidays; was that your testimony? 18 A Usually, I don't take off for Jewish holidays, 19 but this said on 9/30 I requested a day off, not 9/20. 20 Q That was -- ma'am, that was for 19 -- 21 A Oh, '98. 22 Q Was it not? 23 A Excuse me, yes. 24 Q Do you know what Jewish holiday would have 25 been in 1998 around the end of September? 712 1 A It could have been Rosh Hashanah, it could 2 have been Yom Kippur. I don't know -- 3 Q But at least -- 4 A -- without looking at a calendar. Yes, this 5 is. 6 Q And the year prior you had asked for a Jewish 7 holiday off at the end of -- 8 A 9/30 -- 9 Q -- September? 10 A Yes. Now, I do -- I would like to state to 11 the fact that out of the 33 years of nursing, this may be 12 one time only. 13 Q Okay. And let me just for the record have 14 this marked as Exhibit No. 4, which is a list of the 15 Judaic holidays in 1999. Do you see that document? 16 A Uh-huh. 17 Q And it says that September 20th was what 18 Jewish holiday? 19 A Yom Kippur. 20 Q And do you have any reason to believe that Yom 21 Kippur was not on September 20th in 1999? 22 A No, I don't. 23 Q Okay. Now, you said that the first time that 24 you had heard about any allegations being made by Sunbelt 25 nurses against Larry Destefano was -- was when you got a 713 1 phone call several years later from Mr. Grower's office, 2 correct? 3 A Yes. 4 Q Okay. You actually worked at Sunbelt for 5 approximately a month after the September 20th and 21st 6 events, correct? 7 A Correct. 8 Q And you went into the office every day as 9 usual? 10 A Yes. 11 Q Did your job? 12 A Yes. 13 Q And during that period of time, you didn't 14 hear about any rumors or allegations that were being made 15 by Sunbelt nurses against Larry Destefano, correct? 16 A No. 17 Q Correct? 18 A Yes, I'm sorry, that is correct. 19 Q That's correct. Okay. 20 MS. MARSHALL: I have no further questions. 21 MR. OSBORNE: Mr. Townsend? 22 MR. TOWNSEND: Just briefly. 23 - - - - - 24 25 714 1 CROSS-EXAMINATION 2 BY MR. TOWNSEND: 3 Q Ms. Standish, my name's Larry Townsend. I 4 represent Orlando Regional Healthcare System. I've got 5 just a very few questions here for you. 6 You testified that on the 21st, when these 7 conversations took place, that you thought -- that the 8 thought that came to your mind is there might be a 9 lawsuit brewing by Mr. Destefano; is that correct? 10 A Yes. 11 Q And was that your -- when you say lawsuit, was 12 that a lawsuit against the nursing home? 13 A Yes. 14 Q Okay. With regard -- and on the 21st of 15 September, Mrs. Destefano was transferred to the 16 emergency room at Orlando Regional Healthcare System. 17 Are you aware of that? 18 A I am now. 19 Q Okay. You were not involved in that transfer 20 in any way, were you? 21 A No, I was not. 22 Q And you don't know a nurse who worked at 23 Orlando Regional Healthcare System at that time named 24 Kelly Pipkin Gregg; is that correct? 25 A No, I do not know her. 715 1 Q And, likewise, you didn't know a nurse who 2 worked for Orlando Regional Healthcare System at that 3 time whose name was Lillian Folley; is that correct? 4 A That is correct, though I had originally 5 stated that I did know her, but it was the wrong Lillian, 6 and the wrong -- and it was the wrong last name. 7 Q And you corrected that in your errata sheet? 8 A And I did correct it, yes, I did. 9 Q So the bottom line is you do not know Lillian 10 Folley -- 11 A No, I do not. 12 Q -- that worked at Orlando Regional Healthcare 13 System? Or Kelly Pipkin? 14 A No, I do not. 15 MR. TOWNSEND: That's all the questions I 16 have. 17 MR. OSBORNE: Just some few questions, 18 Mrs. Standish. 19 - - - - - 20 REDIRECT EXAMINATION 21 BY MR. OSBORNE: 22 Q Let's talk about this Exhibit 3. Do you know 23 what a PDO request is? 24 A Personal day off. 25 Q And it says PDO request must be filled out in 716 1 advance. 2 A Yes. 3 Q And was this a form that if you wanted to take 4 a day off, you had to fill out at the nursing home? 5 A Yes. 6 Q And it had to be approved by the department 7 head? 8 A Yes. 9 Q And has anybody presented you with a form for 10 September 20, 1999, indicating that you had put in a PDO 11 request? 12 A No. 13 Q If you had taken off hypothetically on 14 9/20/99, would you have had to fill out this PDO request? 15 A Yes. 16 Q You are certain, are you not, or are you 17 certain that you worked on the 20th and not the 19th of 18 September? 19 A Yes. 20 Q Have you ever seen this type of -- this record 21 before, Exhibit 1, a time record like this? 22 A Seen any time record? Yes, I have. 23 Q Was it in this -- the format that Exhibit 1 24 is? 25 A Yes, it is. 717 1 Q Okay. And did you recall ever seeing this 2 time record before? 3 A No, I have not. 4 Q Let's go back to the question about why did -- 5 why did you not report Mary Thornton's comments. Why 6 didn't you report -- you said you didn't believe it, 7 that's why you didn't. Were there other reasons why you 8 didn't report it too? 9 A I -- I -- I just couldn't believe that someone 10 would be that vindictive, and I really didn't know who to 11 report it to, because I had complained previously. My -- 12 I had shared my concerns previously, long before this 13 incident, about Rachel Bean to the corporate HR person, 14 human resource person. And I had spoken to Deborah 15 Fadley, who was our PPS consultant on the corporate 16 side -- though she was on contract. She was not hired as 17 a corporate person -- and nothing had ever been done. 18 And I never had any follow-up with human resources. 19 Q How about Chuck Sherer, did you have -- had 20 you had any contact with him regarding Rachel Bean prior 21 to the events of 9/21/99? 22 A Yes, I had, and he did nothing, so I did not 23 go to him. I felt that he was more supportive of the 24 director of nurses than listening to my comments. 25 Q And was that impression based upon previous 718 1 encounters you'd had with him where you'd made complaints 2 about the director of nursing, Rachel Bean? 3 A Yes. 4 Q And you've testified that you didn't report, 5 number one, because you didn't -- you didn't believe that 6 that was really going to occur? 7 A Correct. 8 Q Number two, you didn't really know who to 9 report it to because you'd had no success in the past 10 with reports regarding Rachel Bean? 11 A That's correct. 12 Q What role, if any, did the potential of 13 retaliation have in regard to your not reporting this -- 14 these statements by Mary Thornton? 15 A At that time, I don't believe that I even 16 thought about retaliation because I didn't have -- I had 17 not heard anything more about it. It was not something 18 that was discussed openly in the facility after the 21st. 19 MR. OSBORNE: Okay. No further questions, 20 ma'am. Thank you. 21 (Whereupon, the videotaped deposition of Constance 22 Standish was concluded.) 23 THE COURT: All right. Ladies and gentlemen 24 of the jury, we're going to take our noon recess. 25 It's a few minutes before noon. I would ask that 719 1 you be back and prepared to come into the courtroom 2 at 1:00. 3 (Jury exits.) 4 THE COURT: Anything further from the 5 attorneys? 6 MR. OSBORNE: No, Your Honor. 7 THE COURT: Court is in recess until 1:00. 8 (An 80-minute lunch recess was had.) 9 THE COURT: All right. Any matters to address 10 before we bring in the jury? 11 MR. OSBORNE: No, Your Honor. 12 MS. MARSHALL: No, Your Honor. 13 MR. TOWNSEND: No. 14 THE COURT: Bring in the jury. 15 (Jury enters.) 16 THE COURT: Please be seated. The Court 17 recognizes the presence of the jury. Mr. Osborne, 18 call your next witness. 19 MR. OSBORNE: Plaintiff calls Mary Thornton. 20 - - - - - 21 MARY ANN THORNTON, LPN 22 having been first duly sworn testified as follows: 23 DIRECT EXAMINATION 24 BY MR. OSBORNE: 25 Q State your full name for the Court and the 720 1 jury, please. 2 A Mary Ann Thornton. 3 Q What is your profession or occupation, please? 4 A Licensed practical nurse. 5 Q You worked at Sunbelt nursing home for six 6 months? 7 A Yes, sir. 8 Q During September of 1999? 9 A Yes, sir. 10 Q You were the unit manager? 11 A Yes, sir. 12 Q And you were hired at Sunbelt by Rachel Bean? 13 A Yes. 14 Q Carol Boze worked the 3:00 to 11:00 shift, 15 didn't she? 16 A Yes. 17 Q She was on your unit? 18 A Yes. 19 Q Rachel Bean was the director of nurses and 20 your immediate boss? 21 A Yes, sir. 22 MR. OSBORNE: Could I see Defendants' J for 23 identification, please? 24 Q I'll show you what I've marked as Defendants' 25 Exhibit J and ask you if you recognize that package of 721 1 documents there, ma'am, as to what they are? 2 A I'm assuming it's time sheets. 3 Q And to save you a little time, I'm going to 4 hand you -- and I will tell you that that's in the 5 packet, but rather than have you look for it, does that 6 appear to be your time sheet for the week of September 7 20, 1999? Is your name on there? 8 A Yes. 9 Q Now, you did work the week of September 20 of 10 1999, didn't you? 11 A Yes. 12 Q But your punch detail report shows you didn't 13 work, doesn't it? 14 A I'm not quite sure where you're looking at, 15 sir. 16 Q Well, the page I gave you, is your name on 17 there, Mary Thornton? 18 A Right. Right here (indicating). 19 Q And there are no hours given for any day of 20 that week, is there? 21 A No. 22 Q But that's not true because you worked that 23 week, didn't you? 24 A Yes, sir. 25 Q So this document is wrong, isn't it? 722 1 A Yes, sir. 2 Q And you know from your experience that these 3 punch detail reports are not always right, are they? 4 A Yes, sir. 5 Q Because the computer makes errors sometimes, 6 doesn't it? 7 A Yes, sir. 8 Q As it did in this case, didn't it? 9 A Yes, sir. 10 Q Because it showed you didn't work at all when 11 you, in fact, did work that week, didn't you? 12 A Yes, sir. 13 Q Let's talk about what you did chart that week. 14 And I'm going to ask for Plaintiff's Exhibit 4 in 15 evidence, please. 16 Let me show you what's been marked as 17 Plaintiff's 4 in evidence, Ms. Thornton. Does that 18 appear to be the hospital records for Carolina Destefano 19 for the Rollins Sunbelt nursing facility? 20 A Yes. It's her admission sheet. 21 Q And to save a little time, I'm going to give 22 you a copy from there of your -- the particular note I'm 23 going to ask you about and ask you if you recognize that 24 to be the note that you did on 9/21/99. 25 A Yes, sir, it is. 723 1 Q Okay. Why don't you just go ahead, if you 2 would, Ms. Thornton, and publish this note. Just read 3 it, if you would, please. 4 A Okay. "Resident's son, Mr. Larry Destefano, 5 came into my office this a.m. He complained that he came 6 in on the 3:00 to 11:00 shift, and his mother did not 7 have a dressing on the right heel wound. He also -- "he 8 was also upset that the nurse, Carol Boze, LPN, got upset 9 with him when he asked her to sign a paper of his stating 10 that the dressing was not done. 11 "The son stated that this nurse got an 12 attitude with him over being asked to sign his paper. I 13 stated to him that I would not have her sign the paper 14 either, but I would have documented in his mother's chart 15 what I saw. Mr. Destefano began yelling at me, standing 16 over my desk with his finger in my face stating that I 17 wasn't being a nurse, that I was just making excuses for 18 the nurses not doing their job. 19 "I explained to the son he needed to go to his 20 mother's room, that I would get the DON, and she would 21 come to the room and speak with him. He continued to 22 yell at me demanding to know where her office was. I 23 repeated my request again. Mr. Destefano stormed out of 24 my office screaming that I would find out what kind of 25 trouble he could make for me. 724 1 "I immediately called the DON on her cell 2 number. She was at the same time knocking on my office 3 door. I explained the situation to her. We then walked 4 down to the resident's room, 307. As we opened the door, 5 the DON and myself witnessed the son giving his mother a 6 passionate kiss on the lips which lasted for an extended 7 time. The DON asked if we could come in and speak with 8 him. He came over to the door, allowed the DON, Rachel 9 Bean, RN, to come through the door. He then proceeded to 10 close the door in this nurse's face not allowing me into 11 the room." 12 Q And that's signed by M. Thornton? 13 A Yes, LPN. 14 Q LPN. Now, your testimony is that it was 8:30 15 in the morning when Mr. Destefano came to your office? 16 A Uh-huh. 17 Q "Yes"? 18 A Yes. 19 Q And when he came to your office, that was the 20 first time you knew there was any kind of issue over 21 anything? 22 A Yes, sir. 23 Q You did not have a chance to speak with Rachel 24 Bean before this meeting, did you? 25 A No, sir. 725 1 Q And the only conversation you had about Carol 2 Boze was that Mr. Destefano discussed -- the one that's 3 noted in your chart entry about this note, correct? 4 A Yes. 5 Q And you state you would not have signed this 6 note yourself, would you? 7 A No. 8 Q But Carol Boze did sign the paper, didn't she? 9 A Not that I'm aware of she didn't. 10 Q Let me show you a document that's in evidence. 11 I don't recall the number right now, but this is a 12 blow-up of the note. Does that refresh your memory about 13 Carol Boze signing this note? 14 A Sir, I don't remember ever seeing that. 15 Q Okay. So you don't have a recollection one 16 way or the other as to whether Carol Bean ever signed 17 that note? 18 A No, sir. 19 Q I mean, Carol Boze ever signed that note? 20 A No, sir. 21 Q You would have documented in the chart what 22 you saw rather than sign this note, wouldn't you? 23 A Yes, sir. 24 Q And you know that Rachel Bean -- or, excuse 25 me. Why'd I do that? You know that Carol Boze did not 726 1 document in the chart at the time it happened that there 2 was a wound dressing not on Mrs. Destefano's heel, 3 correct? 4 A I was made aware of that by the DON. 5 Q You would have gone back to the chart and 6 documented the actual dressing change if you had been 7 involved, correct? 8 A Yes, sir. 9 Q I'm going to show you a document, and this is 10 admitted -- already admitted as part of Plaintiff's 4. 11 MS. MARSHALL: Excuse me. What is it admitted 12 as? 13 MR. OSBORNE: Part of Plaintiff's No. 4. 14 MS. MARSHALL: No, it's not. I don't believe 15 that it is. 16 MR. OSBORNE: Excuse me, ma'am. Let me have 17 these records back from you so I can take a look at 18 them. 19 THE WITNESS: Sure. 20 BY MR. OSBORNE: 21 Q Let me ask you this, ma'am. Do you recognize 22 that document? 23 A I remember the nurse's note. I can't remember 24 filling out the grievance complaint investigation report, 25 which, obviously, I did because it's in my handwriting. 727 1 Q So you do recognize this to be a grievance 2 complaint investigation report with your handwriting? 3 A Yes. 4 Q And you do see attached to that a note by you 5 on Adventist Care Center stationery? 6 A Yes. 7 MR. OSBORNE: For the sake of time, I would 8 like to go ahead and mark this as a separate exhibit 9 and move it into evidence. 10 MS. MARSHALL: No objection. 11 THE CLERK: Plaintiff's 7. 12 THE COURT: No objection? 13 MR. TOWNSEND: No objection, Your Honor. 14 THE COURT: Thank you. 15 (Plaintiff's Exhibit No. 7 was admitted.) 16 BY MR. OSBORNE: 17 Q Let me show you what's in evidence, 18 Ms. Thornton, as Exhibit No. 7. The two-page document, 19 on the back is your handwriting, correct? 20 A Yes, sir. 21 Q And this, in effect, is the same note that you 22 wrote in the chart on 9/21/99 at 8:30, isn't it? 23 A Yes, sir. 24 Q Pretty much verbatim word for word for what 25 you wrote in the chart? 728 1 A Yes, sir. 2 Q And the note that I put in front of you, the 3 one on the Adventist Care Center stationery, that was 4 written before the note that's in the chart, correct? 5 A I really can't remember, sir. I don't know 6 which one I did first, the grievance or the nurse's 7 notes. 8 Q Let me ask you to look at your deposition at 9 page 132 and see if we can refresh your memory. Starting 10 basically at 131, line 23, can you read about that 11 document and see if that refreshes your memory? 12 A (Reviewing transcript.) 13 Q Read through line 13 on page 132. 14 A Okay. 15 Q You can just read it to yourself, ma'am. 16 A (Reviewing transcript.) Okay. By my 17 deposition, I stated that I wrote this one first before 18 this one. 19 Q Okay. That refreshes your memory then, 20 doesn't it, ma'am? 21 A Right. 22 Q So you wrote that same note first on that 23 piece of paper before you put it in the chart, correct? 24 A Yes, sir. 25 Q You wrote this document you've got in front of 729 1 you there to get your wording down and to brief it before 2 you actually put it in the chart, didn't you? 3 A Yes, sir. 4 Q So you did a rough draft of what you actually 5 put in the chart, is that right, or a first draft? 6 A I'm assuming that I wrote this (indicating), 7 this one first, and then took the actual wording and put 8 it into the nurse's notes. 9 Q But what you did, ma'am, was you did that to 10 get your wording down and to brief it before you actually 11 put it in the chart; isn't that the case? 12 A Yes, sir. 13 Q Okay. Why did you need to do a first draft if 14 this is something that you just witnessed and it just 15 happened? Why'd you have to write it down first to get 16 the wording down and to brief it before you put it in the 17 chart? 18 A Because your nurse's notes need to be to the 19 point. You can't just write everything. You have to 20 keep everything in line. 21 Q Ma'am, you wrote -- how many times have you 22 written a rough draft of something before you put it in 23 the chart where you're with a patient, you're going to 24 write something down, something happens and you go let me 25 do a rough draft first and see if I get the wording right 730 1 and now I'm going to write it in the chart? Does that 2 happen frequently? 3 A Not frequently, no. 4 Q As a customary practice, nurses don't have 5 time to write rough drafts before they make entries in 6 charts, do they? 7 A No. 8 Q You made an exception in this case, didn't 9 you, to do a rough draft? 10 A Yes, sir. 11 Q Going back to the Carol Boze note, your 12 feeling was that Carol Boze should not have signed the 13 note, wasn't it? 14 A It was my feeling, yes. I would not have. 15 Q No. Your feeling was Carol Boze should not 16 have signed the note, correct? 17 A Yes, sir. 18 Q If Carol Boze had seen something strange, such 19 as inappropriate kissing, then she should have documented 20 that immediately, shouldn't she? 21 A She should have. 22 Q If Mrs. Boze had seen Mr. Destefano lying on 23 top of his mother, she should have documented that 24 immediately, shouldn't she? 25 A Yes, sir. 731 1 Q You told Mr. Destefano that he needed to go to 2 his mother's room because he was very upset and you 3 needed to get him out of your office? 4 A Yes, sir. 5 Q Rachel Bean then knocked on your door about 6 the same time you were calling her on your cell phone? 7 A Yes, sir. 8 Q You said, where are you, correct? 9 A Uh-huh. 10 Q "Yes"? 11 A Yes, sir. 12 Q And she said, I'm outside the door? 13 A Yes, sir. 14 Q Then you got up and let her in? 15 A Yes, sir. 16 Q You then told Rachel Bean what had happened, 17 which is on the chart here, correct? 18 A Yes, sir. 19 Q You and she conversed for five minutes? 20 A I can't put a time frame on it. It's been six 21 years. 22 Q Let me ask you if you remember when your 23 deposition was taken on July 30th, 2002, and you were 24 under oath at that time? 25 A Uh-huh. 732 1 Q I'd like you to try to refresh your memory at 2 page 40, lines 10 through 13, please. 3 A (Reviewing transcript.) Okay. 4 Q Does that refresh your memory? 5 A Not exactly. But, I mean, if I was under 6 oath, I wasn't lying. 7 Q And you said in there that you and she 8 conversed for five minutes, didn't you? 9 A Approximately. 10 Q Then you and Rachel Bean walked to Room 307, 11 which was where Mrs. Destefano was, correct? 12 A Yes, sir. 13 Q And that was probably six rooms down from your 14 office, wasn't it? 15 A Approximately. 16 Q The door to Room 307 was closed, wasn't it? 17 A Yes, sir. 18 Q You knew it was closed because you remembered 19 knocking? 20 A Yes, sir. 21 Q Now, isn't it a fact, Mrs. Thornton, that it's 22 a practice at Sunbelt Nursing, not only at Sunbelt but at 23 all nursing homes you're familiar with, that when the 24 door to a resident or patient's room is closed, that 25 you -- do you knock and ask if you can come in? 733 1 A Yes, sir. 2 Q That's because it's basically their home 3 you're working in? 4 A Yes, sir. 5 Q And you don't recall whether it was you or 6 Rachel Bean that knocked on the door, do you? 7 A No, sir. 8 Q Mr. Destefano opened the door, correct? 9 A Yes, sir. 10 Q When Rachel Bean knocked on the door, 11 Mr. Destefano came to the door and let you in? 12 A He did not let me in. He let Rachel in. 13 Q All right. I know you said that this nurse 14 was not allowed to come in the room, but to get this 15 straight, when Rachel knocked on the door, Mr. Destefano 16 came to the door, correct? 17 A I can't recall if he came to the door. Let me 18 think. I can't recall. He had to. 19 Q I'd like you to read your deposition at page 20 46, lines 10 through -- lines 10 through 12 right there. 21 A (Reviewing transcript.) 22 Q Does that refresh your recollection? 23 A Apparently he opened the door. 24 Q Okay. So just so we're clear, you and Rachel 25 Bean came to the door, knocked on the door. He came to 734 1 the door and opened it, correct? 2 A Yes, sir. 3 Q And this couldn't have been the time that you 4 saw Mr. Destefano kissing his mother, could it? 5 A We were right there, sir. We were able to 6 look into the room. We saw the room. The door was open. 7 Q You just told me, ma'am, that the door was 8 closed. 9 A I don't believe it was closed all the way or 10 we wouldn't have been able to see in there. 11 Q You just told me that you remembered the door 12 was closed, did you not? 13 A Yes, sir. 14 Q And you said that in your deposition back in 15 July of '02, that the door was closed, didn't you? 16 A Yes, sir. 17 Q And you remember the door was closed because 18 you remember knocking? 19 A Yes, sir. 20 Q And Mr. Destefano came to the door and opened 21 the door for Mrs. Bean, correct? 22 A Yes, sir. 23 Q So you couldn't have seen in to see anything 24 with the door closed, could you? 25 A Obviously not. It's a long time. 735 1 Q Well, we talked about these same events in 2 July of 2002, didn't we, and you gave the same testimony 3 you just gave here. The door was closed? 4 A Yes, sir. 5 Q You knocked. Mr. Destefano came and opened 6 the door, correct? 7 A Yes, sir. 8 Q If that story's true, there is no way you 9 could have seen Mr. Destefano in there with his mother, 10 is there? 11 A No. 12 Q You can't see through doors, can you? 13 A No. 14 Q You also testified previously that the door 15 was not closed when you approached the room, didn't you? 16 A Today? 17 Q No, ma'am. You've testified previously that 18 the door was not opened when you approached -- that the 19 door was not closed when you approached the room? 20 A Sir, I'm getting all confused. You're talking 21 six years here. I can't remember. Even though I've got 22 it documented, I can't get a picture of it. I'm sorry. 23 Q Ma'am, didn't you testify that the door was 24 not closed when you approached the room when you were 25 deposed back on July 30th, '02? 736 1 A If it's in there, yes. 2 Q Well, let's take a look at it. Take a look at 3 page 46, lines 16 through 18, please. 4 A (Reviewing transcript.) 5 Q Isn't that what you said? 6 A The door was not closed when we approached the 7 doorway. 8 Q Thank you. I'll have that back. You say now 9 in this story that the door was opened about a foot, 10 right? 11 A In the deposition? 12 Q Yes, ma'am. 13 A Okay. 14 Q Do you remember that? 15 A No, sir. 16 Q Let me ask you to read at page 46, line 19 to 17 page 47, line 5, please. 18 A (Reviewing transcript.) Okay. 19 Q You said the door was open approximately a 20 foot or just slightly open, didn't you? 21 A Yes, sir. 22 Q That's still your testimony today, isn't it? 23 A I'm not sure, sir. I can't remember. 24 Q You'll swear by your testimony you gave in 25 July of '02, though, won't you? 737 1 A Yes, sir. 2 Q Because you were under oath and sworn to tell 3 the truth at that time? 4 A Yes, sir. 5 Q And you remember when you came to the door, 6 that you just -- you remember looking straight into the 7 room, correct? When you and Rachel Bean came there, you 8 looked straight into the room? 9 A We had -- I can't remember. I don't know if 10 she was beside me or in front of me. 11 Q That's not my question, ma'am. The question 12 was you looked straight into the room; is that correct? 13 A Yes, sir. I can't remember. 14 Q There wasn't a curtain or anything between the 15 bed and the door, was there? 16 A No, sir. 17 Q And you did not have to peek your head around 18 the door to look into the room, did you? 19 A No, sir. 20 Q And it's your testimony that when you looked 21 straight into this room without having to peek your head 22 around the door when it was opened about a foot, you saw 23 Mr. Destefano kissing his mother passionately for an 24 extended period of time; is that your testimony? 25 A Yes. 738 1 Q "Yes"? 2 A Yes, sir. 3 Q And your testimony further is with this 4 particular story you're talking about that when you 5 looked into the room, you and Rachel were standing side 6 by side, correct? 7 A I'm not sure. I had to be standing behind her 8 or beside her. I can't remember what I said. 9 Q I want you to review page 47, lines 20 to 22, 10 please. 11 A (Reviewing transcript.) Okay. We were 12 standing side by side. 13 Q Thank you. So you approached the door. It's 14 opened about a foot. You and Rachel Bean are standing 15 side by side? 16 A Yes, sir. 17 Q And that was enough of an opening for you both 18 to look into the room at the same time? 19 A Yes, sir. 20 Q And you saw Mr. Destefano leaning over his 21 mother and kissing her on the mouth? 22 A Yes, sir. 23 Q He was on the opposite side of the bed, and he 24 was leaning over his mother is your testimony? 25 A Yes, sir. 739 1 Q And that's how you say you were able to see 2 him and the position of his lips because if he had been 3 turned the other way, you would not have been able to see 4 anything except his back? 5 A Yes, sir. 6 MR. OSBORNE: Could I have Exhibit 3 in 7 evidence, please, Plaintiff's 3? 8 Q I'm going to show you Exhibit 3 in evidence, 9 Mrs. Thornton, and ask you if that does not appear to be 10 the room Carolina Destefano was in? 11 A (Reviewing document.) I can't say absolutely 12 sure, sir, because I haven't been there since I quit. 13 Q I'd like you to assume for the sake of my 14 question that this has already been authenticated by 15 Carol Boze as being the room. 16 A Okay. 17 Q Can you accept that okay? 18 A Yes, sir. 19 Q All right. Now, if you were standing outside 20 the door -- look at the upper left-hand corner of the 21 picture. Do you see that one in the upper left-hand 22 corner? 23 A Yes, sir. 24 Q You'd agree with me this door is open a lot 25 more than a foot, isn't it? 740 1 A Yes, sir. 2 Q If that door had been opened a foot, all you 3 would have been able to see is the wall as you look into 4 the room; isn't that true? 5 A Yes, sir. 6 Q And there's no way with a door open a foot 7 that you and Rachel Bean could be standing side by side, 8 is there? 9 A No, sir. 10 Q Because you're both wider than a foot a piece, 11 aren't you? 12 A Yes, sir. 13 Q Your testimony is that that foot was enough of 14 an opening so you could both look in the room at the same 15 time, and that's simply not true, isn't it? 16 A Sir, I'm not sure how far the bed was down. 17 If the bed was pushed down, we could have seen more. 18 Q You just testified you couldn't even tell if 19 that was the room or not, so how do you know where the 20 location of the bed was? 21 A I don't. 22 MS. MARSHALL: Object, argumentative. 23 THE COURT: Overruled. 24 BY MR. OSBORNE: 25 Q If this is an accurate depiction of the room, 741 1 you would agree with me that if you're standing by the 2 front door with the door almost all the way open, you 3 can't see Mr. Destefano in the position you said he was 4 in; isn't that true? 5 A According to these pictures, yes. 6 Q And matter of fact, isn't it true, 7 Ms. Thornton, that you have to walk all the way into the 8 room, all the way into the room to even see the head of 9 the bed? Isn't that true? 10 A Yes, sir. 11 Q And you're testifying that you could see 12 through a door that was a foot wide standing side by side 13 with Rachel Bean all the way to the head of the bed? 14 That's your testimony, isn't it? 15 A Yes, sir. 16 Q Now, you've told a third story too, ma'am. Do 17 you recall the story where you said that you were 18 standing behind Rachel Bean? 19 A In my deposition I was standing behind her? 20 Q Yes, ma'am. Do you remember that? 21 A No, sir. 22 Q I want you to look at page 58, line 16 to 20. 23 A (Reviewing transcript.) The deposition says I 24 was behind Rachel. 25 Q And that's your testimony, isn't it, ma'am? 742 1 A Yes, sir. 2 Q Thank you. And because you were standing 3 behind Rachel Bean, you couldn't tell whether or not 4 Mr. Destefano picked his head up as soon as the knock 5 occurred, could you? 6 A No, sir. 7 Q You really didn't know what was going on 8 because you were behind Rachel Bean; isn't that correct? 9 A I'm taller than she is, yes, sir. 10 Q Ma'am, my question was you really did not know 11 what was going on because you were behind Rachel Bean; 12 isn't that true? 13 A Yes, sir. 14 Q So you really couldn't see anything because 15 you were behind Rachel Bean; isn't that the case? 16 A Yes, sir. 17 Q So when you wrote on this chart -- when you 18 wrote on this chart that when -- "As we opened the door, 19 the DON and myself witnessed the son giving his mom a 20 passionate kiss on the lips which lasted for an extended 21 time," that was a lie, wasn't it? 22 A Sir, this is a legal document. I do not put 23 lies in legal documents. This is a nurse's note. We're 24 talking six years ago. I cannot remember anything hardly 25 about this case. I'm sorry. 743 1 Q Ma'am, you would agree with me, would you not, 2 that you just gave this jury three totally different 3 contradictory stories about how you saw Mr. Destefano? 4 A I must have, yes, sir. 5 Q And if you believe story number one, you'd 6 have to have been able to see through a closed door to 7 see him kissing his mother? 8 A Yes, sir. 9 Q Couldn't happen that way, could it? 10 A No, sir. 11 Q And if you believe story number two, you'd 12 have to be able to stand side by side through a 1-foot 13 opening and see the head of the bed from the 1-foot 14 opening; isn't that correct? 15 A Yes, sir. 16 Q And we know it couldn't have happened that way 17 either, don't we? 18 A Yes, sir. 19 Q And if you believe story number three, you 20 didn't see plaintiff at all until he came to the door; 21 isn't that true? 22 A Yes, sir. 23 Q Isn't it true that all three of these stories 24 about how you saw Mr. Destefano, purportedly kissing his 25 mother passionately for an extended period of time, are 744 1 fabrications? 2 A No, sir. 3 Q Mr. Destefano said he wanted to talk to Rachel 4 Bean privately after he -- after Rachel Bean stepped into 5 the room? 6 A Yes, sir. 7 Q You planned on staying outside the door 8 yourself until Rachel Bean got done, correct? 9 A Yes, sir. 10 Q But then you got a phone call and you had to 11 leave? 12 A Yes, sir. 13 Q But you did stay outside the door of this room 14 for about a minute before you got that phone call, didn't 15 you? 16 A Yes, sir. 17 Q Mrs. Standish was the MDS coordinator at the 18 time of these events, wasn't she? 19 A I have heard the name. I couldn't tell you if 20 that's true. 21 Q Do you recall the MDS coordinator's office is 22 right across the hall from Mrs. Destefano's office -- 23 room? 24 A Not off the top of my head I don't. 25 Q Do you recall in this minute that you were 745 1 standing out here after you were -- the door was shut in 2 your face, as you've testified, in that minute do you 3 recall walking across the hall and saying something to 4 the people in that room? 5 A No, sir. 6 Q Do you recall saying to Constance Standish, 7 "We're going to get this guy. We're going to say he was 8 sexually inappropriate with his mother. We've done this 9 before"? 10 A Absolutely not. 11 Q You're sure about that? 12 A Positive. 13 Q Because you wouldn't lie before this jury, 14 would you? 15 A No, sir. 16 Q When Rachel Bean came back from Room 307, she 17 wanted to know if you started your documentation, 18 correct? 19 A Yes, sir. 20 Q You said yes? 21 A Yes. 22 Q And she said, well, I've got to go do mine 23 too; yes? 24 A Yes. 25 Q It was your understanding that Rachel Bean had 746 1 called the police that day on Mr. Destefano, wasn't it? 2 A Yes. 3 Q Do you recall the time that that trespass 4 warning was issued by Rollins Bedford? 5 A No, sir. 6 Q Let me just ask you -- 7 A The specific time. 8 Q -- if this refreshes your memory. I'll show 9 you a copy of the trespass warning and see if that 10 refreshes your memory of the time that Mr. Destefano was 11 trespassed from the building by Rollins Bedford. 12 A (Reviewing document.) The hour's probably 13 right. I know that it was before noon. 14 Q So the 10:10 hour appears to be right? 15 A I'm assuming, yes, it is, midmorning. 16 Q Now, what happened was we had Mr. Destefano 17 being trespassed about 10:10 in the morning, correct? 18 A Yes, sir. 19 Q We have your note -- I'm missing the other 20 half. Hang on. We have your note which purportedly was 21 written at 8:30 in the morning, correct? 22 A Yes, sir. 23 Q 8:30 on 9/21/99, right? 24 A Yes, sir. 25 Q This was about an hour and 40 minutes -- the 747 1 police came about an hour and 40 minutes after you wrote 2 this note about Mr. Destefano, correct? 3 A Yes, sir. 4 Q The police came to the facility and Rachel 5 Bean asked you to come down to the office? 6 A Yes, sir. 7 Q Then you went down to Mr. Destefano's mother's 8 room and the police began to talk to Mr. Destefano, 9 correct? 10 A Yes. 11 Q You didn't tell the police anything? 12 A No, sir. 13 Q You didn't tell them anything about the 14 incident you charted an hour and 40 minutes before, did 15 you? 16 A No, sir. 17 Q You didn't tell them anything about this 18 inappropriate behavior of Mr. Destefano kissing his 19 mother? 20 A No, sir. 21 Q So you had this information for an hour and 40 22 minutes and didn't tell the police when they were in the 23 building? 24 A Sir, it wouldn't have been my place to inform 25 them of the -- 748 1 Q Just answer my question. Did you tell them? 2 A No. 3 MR. OSBORNE: May I have Exhibit U for 4 identification, Plaintiff's Exhibit U, and I'm going 5 to probably just put this one in separately. 6 Q Do you recognize Exhibit U to be your 7 personnel file with Sunbelt? 8 A (Reviewing document.) 9 Q Maybe I could save a little time, ma'am, and 10 just ask you if you can identify this document, which 11 I'll ask you if you know what that is. 12 A (Reviewing document.) Resident's rights. 13 Q That's Sunbelt Health Care Center's resident's 14 rights, right, ma'am? 15 A Yes. 16 Q And that would have been a part of your 17 personnel file, wouldn't it? 18 A Yes. 19 Q Something you would have reviewed as far as 20 your duties as an employee? 21 A Yes, sir. 22 MR. OSBORNE: I'd move this into evidence 23 separately to avoid the group exhibit. 24 MS. MARSHALL: No objection. 25 MR. TOWNSEND: No objection. 749 1 THE COURT: It will be admitted. 2 THE CLERK: Plaintiff's 8. 3 (Plaintiff's Exhibit No. 8 was admitted.) 4 BY MR. OSBORNE: 5 Q Let me show you what's in evidence now, 6 Ms. Thornton, as Exhibit No. 8. This is a list of what 7 rights a patient has when they're a resident at Sunbelt 8 Health Care Center, correct? 9 A Yes, sir. 10 Q This is something that you had to be cognizant 11 of as a unit manager, wasn't it? 12 A Yes, sir. 13 Q Publish for the jury what No. 27 says about 14 what rights a resident has. 15 A "To be free from verbal, sexual, physical or 16 mental abuse, corporal punishment, involuntary 17 seclusion." 18 Q Free from verbal, sexual, physical or mental 19 abuse, corporal punishment and then involuntary 20 seclusion, right? 21 A Right. 22 Q Do you think from your note that you noted at 23 8:30 in the morning that passionately kissing a mother 24 who's in a comatose condition on the mouth for an 25 extended period of time constitutes sexual abuse? 750 1 A Yes, sir. 2 Q Why didn't you tell the police about that, 3 then? 4 A Sir, I couldn't. That was the DON's 5 responsibility. 6 Q Not your job? 7 A No, sir. 8 Q When you reported this at 8:30, you charted 9 it, correct? 10 A I'm assuming shortly after everything 11 happened. 12 Q So that 8:30 time isn't really correct at all, 13 is it? 14 A 8:30 is the correct time, as I believe that's 15 the time he was in my office. 16 Q But you just failed to mention it to the 17 police who came later about this what you have now termed 18 to be sexual abuse, correct? 19 A That was my own opinion, sir. 20 Q I know. It was your opinion it was sexual 21 abuse, correct? 22 A Yes. 23 Q And you didn't report it to the police, did 24 you? 25 A No, sir. 751 1 Q Let me show you another document which is in 2 evidence already. I ask you if you recognize that 3 document, that additional wound care progress note 4 document, ma'am. 5 A (Reviewing document.) Yes, sir. 6 Q This is an additional wound care progress note 7 by someone who did this other than you, correct? 8 A Yes, sir. 9 Q But you signed off on the bottom right, didn't 10 you? 11 A Yes, sir. 12 Q And this is not your handwriting except where 13 it says at the bottom right Mary Thornton, LPN? 14 A Yes, sir. 15 Q You don't know whose signature that is next to 16 yours, do you? 17 A No, sir. 18 Q Kind of hard to read, isn't it? 19 A Yes, sir. 20 Q Your job was just to sign off on this 21 documentation, correct? 22 A My job was to review the documentation and 23 then sign off on it. 24 Q This would be your job to sign it because you 25 were the unit manager, correct? 752 1 A Yes, sir. 2 Q And, again, just so we're clear, you don't 3 remember the girl's name who did this assessment, 4 correct? 5 A No, sir. 6 Q But it would be your job as the unit manager 7 to sign off on the documentation because of your license, 8 correct? 9 A Yes, sir. 10 Q Your job was not to verify that everything 11 that's written there is accurate, is it? 12 A No, sir. 13 Q At the time the additional wound care progress 14 note was written, you did not know that there was bright 15 red blood on the incontinence pad, did you? 16 A No, sir. 17 Q So even though you signed off on this note, 18 which makes the notation in here about bright red blood 19 on the incontinence pad, you didn't know that as a part 20 of your signing that note, did you? 21 A No, sir. 22 Q The lady that wrote this note did not make you 23 aware of the bright red blood on the incontinence pad, 24 did she? 25 A No, sir. 753 1 Q Isn't it accurate to say that you probably 2 didn't even read this thoroughly? You just signed it? 3 A In all honesty, yes. 4 Q Because sometimes these documents that require 5 your sign off stay on your desk for two to three days or 6 even a week before you see them; isn't that true? 7 A Yes, sir. 8 Q So you just take them for their word and you 9 sign them? 10 A Yes, sir. 11 Q The first you knew about bright red blood on 12 the incontinence pad was when Rachel Bean told you about 13 it; isn't that correct? 14 A Yes, sir. 15 Q Rachel Bean came and got you and said we've 16 got to go down to the room, didn't she? 17 A Yes, sir. 18 Q You and Rachel Bean went down to the room. 19 You turned the lady over, and there was blood on the pad? 20 A Yes, sir. 21 Q And you recall that the pad was put into a 22 plastic bag? 23 A Yes, sir. 24 MR. OSBORNE: Your Honor, this document has 25 been identified or it has been stipulated into 754 1 evidence. It's not previously marked so it needs a 2 new sticker. Everybody okay with that? 3 MS. MARSHALL: No objection. 4 MR. TOWNSEND: No objection. 5 THE CLERK: It's Plaintiff's 6. 6 (Plaintiff's Exhibit No. 6 was admitted.) 7 BY MR. OSBORNE: 8 Q Let me show this to you, ma'am. Does that 9 appear to be the incontinence pad that you saw? 10 A They're the same kinds that are used at the 11 nursing home, yes. 12 Q Do you recognize this to be the one that you 13 saw on the date in question? 14 A I can't remember the stains. 15 Q Well, let me put it up here for the jury to 16 look at. You would agree with me, would you not, this is 17 a well-soiled bed pad? 18 A Yes, sir. 19 Q Not a clean bed pad? 20 A No, sir. 21 Q Probably from your experience and training in 22 a nursing home, that bed pad had been on the bed for a 23 number of hours, hadn't it? 24 MS. MARSHALL: Objection, speculation. 25 A I can't -- 755 1 THE COURT: Sustained. 2 Q And is this -- do you remember what the bright 3 red blood looked like? 4 A I remember stating that it was apparently the 5 size of a baseball. 6 Q Once the pad was put in the plastic bag, 7 Rachel carried it up to her office and she gave it to the 8 police from her office, by your testimony, correct? 9 A Yes, sir. 10 Q It was not taken from your office? 11 A No, sir. 12 Q You saw the bright red blood in the middle of 13 the area where the vaginal/rectal region would be, 14 correct? 15 A Yes, sir. 16 Q And as a nursing term of art, bright red blood 17 indicates it's fresh? 18 A Yes, sir. 19 Q And your recollection is this bright red blood 20 was still wet and moist? 21 A Yes, sir. 22 Q And I think your testimony was that the blood 23 on the pad was the size of a baseball? 24 A Yes, sir. 25 Q Shape of a baseball? 756 1 A I don't remember saying shape. I just -- 2 size. 3 Q Does this stain look like a baseball? 4 A No. 5 Q Looks more like -- what does it look like to 6 you if it's not a baseball? Like a tadpole? 7 A Yes, sir. 8 Q You were not able to tell how the bright red 9 blood that you describe got on the pad, were you? 10 A No, sir. 11 Q You never saw Mr. Destefano ever disimpacting 12 his mother, did you? 13 A No, sir. 14 Q You never heard from anybody that they 15 witnessed that, did you, that they witnessed 16 Mr. Destefano disimpacting his mother? 17 A I don't recall, no. 18 Q Is that a no or you don't recall? 19 A I don't recall. 20 Q I'd like you to look at page 116, lines 12 -- 21 look at lines 9 through 14 just to give you the context. 22 116, 9 through 14. 23 A (Reviewing transcript.) I don't remember 24 anyone saying anything about that. 25 Q You don't remember anyone ever saying that 757 1 they witnessed him disimpacting his mother, do you? 2 A That he -- 3 Q That they actually saw him disimpacting his 4 mother. 5 A No, I never heard anybody say that. 6 Q And you never heard from anybody that he 7 disimpacted his mother either, had you? 8 A No, sir. 9 MR. OSBORNE: No further questions, Your 10 Honor. 11 THE COURT: Cross-examine, Ms. Marshall? 12 MS. MARSHALL: Yes, Your Honor. 13 (Continued to Volume VII) 14 15 16 17 18 19 20 21 22 23 24 25 758 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