251

1 direction.

2 When I was in the room and Mr. Schiavo were in

3 the room, she would sort of startle towards the sound or

4 glance towards the sound and then go to sort of a random

5 movement with her eyes. Now her eyes are consistent

6 focused on the general direction of her mother.

7 In a PVS patient, a vegetative state patient,

8 they will have maybe a brief glance towards the area

9 from that orienting reflex followed by random eye

10 movements in all different directions with no response,

11 no facial response, no attempting to fixate with her

12 eyes.

13 Q. What do mean by "fixate?"

14 A. Well, she doesn't bring her eyes, very often,

15 over to the left in this thing. She is consistently

16 keeping them focused towards her mother, in the general

17 direction of her mother. She is almost blind, but she

18 searches out towards that area with it by sound and

19 having a face in that area.

20 This is quite different from what she was

21 doing with me and Mr. Schiavo, when she is hearing the

22 sounds and just ignoring them. Here her facial features

23 have changed and she continues to focus in that general

24 area.

25 Q. How does a patient change? How would you






252

1 describe her change?

2 A. She smiles. She has lost a large degree of

3 spasticity. She is partially sitting almost in an erect

4 fashion. Now, her mother, while fixing her pillows and

5 things. But before that, she had her head tilted way

6 back and her eyes would sort of roam around the room.

7 Here, they tend to stay toward the mother's face.

8 Now, that's different. The mother came in --

9 and before the mother started touching her, even, as the

10 mother was coming in, she was already responding. She

11 already heard the background sounds from the

12 videographer intermittently, the radio, Mr. Schiavo, and

13 me, and didn't have these kinds of responses that she

14 shows with the mother. This is a unique and different

15 response, different facial expression than she had

16 previously.

17 Q. Is there any doubt in your mind she is

18 responding to her mother?

19 A. No. She is absolutely responding to her

20 mother.

21 Q. Is there any doubt in your mind she is aware

22 of her mother?

23 A. There's no doubt. She is definitely aware of

24 her mother.

25 See, look at her eyes here. Her eyes, even






253

1 though they are partially clouded, are continuing to

2 focus off in the general direction of her mother. Back

3 with me, before she came in, they were tending to look

4 to the left and look to the right. Like any of us in

5 the hospital would do, look in one direction for a while

6 and then another direction maybe briefly towards the

7 sound. But here she is consistently continuing to keep

8 her gaze towards her mother even when her mother isn't

9 physically touching her, even with the radio in front of

10 her.

11 You see now her expression is going to turn

12 away from the smile that she's kept the last minute or

13 two. Which, again, is not reflex. Reflex is very

14 transient. And as I pointed out to you before, we know

15 how quick they are.

16 Q. Now, the mother is playing some music for her

17 or begins to play it.

18 A. Again, she's ignoring the sound from me.

19 She's keeping all her focus towards the direction of her

20 mother.

21 A touch, she had that quick reflexive look

22 glanced towards and then back.

23 Q. And is that your hand?

24 A. I'm not sure.

25 That little change to the sound back there,






254

1 her eyes closing, that little twitch again, that is the

2 auditory orienting reflex. Again, it's very quick and

3 temporary.

4 Wide-eyed now, looking towards family members,

5 maintaining gaze there. Reflexes, you do not maintain

6 gaze there. You have a quick glance to the area to

7 identify whether it should be something to worry about

8 or not and then you do whatever you want with your gaze.

9 In coma state patients, they fall into two

10 categories: They fall into the almost dead category,

11 where their eyes are fixed in the head and they only

12 have gaze whatever direction their head's pointed in.

13 Or they fall into a PVS type category where their eye

14 movements are random. They do not fixate their gaze.

15 Now she's bringing her gaze to the source of

16 the music, which is on the CD stand. Obviously aware,

17 this does not occur in PVS patients or coma patients.

18 PVS might have the quick temporary orienting reflex that

19 we talked about before, but very transient compared to

20 here where she is directing her activity, directing her

21 gaze towards the source of the music.

22 Q. Now, she appears to have both eyes fixing?

23 A. Yes. Eyes wide open. That's an uncomfortable

24 position to be in, to raise the eyebrows now for about a

25 minute and a half. Decreasing the blinking rate.






255

1 Q. Now, how could you describe this behavior?

2 A. She's laughing or smiling to the music. Yeah,

3 we had that six minutes, I think, before all this

4 started. She was in none of these motions. The

5 long-term matrix of gazes to a specific area. The

6 relaxation of facial motions. The changing of facial

7 motions in response to the world around her. None of

8 that exhibited during the six minutes before. Now all

9 of this is exhibited within moments when the mother came

10 in and the piano music is starting.

11 Q. Is that coincidental in hearing the piano

12 music?

13 A. No. It's not coincidental to the piano music;

14 it's in response to the piano music.

15 Now, when I was with her with Mr. Schiavo for

16 half hour or 40 minutes prior to this, she never once

17 laughed the entire time. No random eye movements.

18 Q. No what?

19 A. There's no random eye movements. Here she is

20 singing or something to the music, but she is continuing

21 to maintain her gaze midlining towards the right, the

22 general direction of the music. And definitely tends to

23 respond to me.

24 She identified -- she's identified the piano

25 music. She's identified her parents as being different






256

1 from the sounds I was making, the entry sounds, the

2 original conversation sounds, and the sounds that

3 Mr. Schiavo was making. So this is quite astounding

4 that she is identifying different calibers and types of

5 sounds.

6 Q. She is able to discriminate between background

7 sounds and other types of sounds?

8 A. Correct. And she is discriminating between

9 voices. I spoke to her and didn't get the response that

10 her mother got. She didn't smile at me.

11 Again, listening to music and directing the

12 gaze. Reflex activity is instantaneous. This is not

13 reflex. We know from the next three hours of videotape

14 that's been going on and if you watch her prior to this,

15 she looks to the left, she moves her eyes to the left.

16 She doesn't generally move her eyes left when playing

17 this music. She keeps them more or less in line and

18 generally towards the right.

19 Q. Does she respond more to her mother than her

20 father?

21 A. Yeah. She doesn't like the way her father

22 responds to her. I think it's been kind of interesting

23 when we were with her. She doesn't tend to respond well

24 to anything on the left side, but she does respond

25 there. But she tends to consistently respond to the






257

1 mother much better. It depends on the father's tone of

2 voice.

3 Q. Does Terry respond better to a gentle tone of

4 voice than a gruff tone of voice?

5 A. She responds much better to a gentle tone of

6 voice.

7 Q. Regardless of who is speaking?

8 A. Yes. She seems to be smiling at her father

9 now. She was smiling at her mother for quite a while.

10 You know, when her father was speaking to her towards

11 the very end of that, she almost began with the facial

12 grimaces. Then, when the mother comes back, we don't

13 have that. We have much more relaxation of facial

14 features, more of a smile. That was a consistent

15 pattern of her reactions to him.

16 Now, she has glanced to the left, which is the

17 orienting reflex, followed by a sustained gaze over

18 there.

19 Q. That is as you approach on the left?

20 A. Yes. Which is more awareness, I think. The

21 facial features have changed, again, quite dramatically

22 for her mother.

23 And there she is looking to the left and

24 maintaining that left gaze. The immediate glance to the

25 left is reflex. The matrix of the gaze is cognition,






258

1 it's awareness, it's a voluntary activity. Again,

2 looking to the source of the sound. And the maintaining

3 gaze is towards my direction.

4 The PVS patient, their eyes wander around.

5 They don't maintain this type of a gaze where they keep

6 coming back, gazing in a general direction.

7 Q. Did you see random eye movements in Terry

8 during your examination, that floating, wandering eye?

9 A. No, she doesn't have random eye movements.

10 She will, at times, look around, change her gaze or

11 fixation. Her concentration is, obviously, not great.

12 But she maintains gaze or fixation if she wants to, and

13 she'll do it for long periods of time. Even in

14 Dr. Cranford's exam, we saw that pattern of visual

15 tracking as a voluntary activity. We see that also, at

16 times, here.

17 Now, you have to get a blood pressure to

18 adequately know how patients are doing. Our patients

19 will have in our office, three, sometimes eight,

20 sometimes 12 blood pressures in the day. You have to

21 have a blood pressure as part of the neurological exam

22 in order to assess whether they are even able to be

23 assessed properly.

24 Q. Is that important when you are talking about

25 blood pressure and blood flow to the brain?






259

1 A. Yes, it is.

2 Q. Now, her left arm is contracted, right?

3 A. Both her arm are severely contracted.

4 Now, again, she is moving towards the right

5 with the sound and maintaining that left gaze

6 preference. She is maintaining that left gaze

7 preference as I was walking over here. In comparison to

8 previous periods where the sound came in from that left

9 side and she would have a quick look over there and go

10 off and fixate to whatever she wanted to. So this is

11 persistent behavior is voluntary.

12 I wasn't able to extend the right arm enough

13 to get blood pressure, but I was able to get some

14 extension in the left arm. This took quite a while and

15 involved massaging the arm and shoulder area in order to

16 get enough relaxation to get an adequate blood pressure.

17 Q. Was it a simple matter of massaging her

18 shoulder and arm?

19 A. Yes, it was.

20 Q. How much extension did you get?

21 A. We eventually got 160 to 170 degrees, which

22 means that the arm is almost fully extend.

23 Q. A hundred and eighty is full extension?

24 A. One hundred and eight is fully extended, and

25 she started at 20 degrees of extension.






260

1 You can see, we're able to get it out now.

2 It's still to the 90 degree mark area yet.

3 Q. Would a physical therapist normally do this?

4 A. Yes. This would have to be done repetitively.

5 But you can see, they don't get any closer -- possible

6 we are a little bit over 90 degrees in just a few

7 minutes of working with her.

8 Q. Are you a trained physical therapist,

9 Dr. Hammesfahr?

10 A. No, I'm not.

11 Q. Would you expect a trained physical therapist

12 to be able to release her contractures?

13 A. I would expect that, yes.

14 I'm over here to the left. She is tending to

15 look down towards the left and maintain gaze over there.

16 But she didn't look at me that much during this stage,

17 she looked in my general direction. Later on, what will

18 happen is her muscles, her arms went through major

19 relaxation.

20 Q. Could you feel that in your fingers?

21 A. You could feel with the fingers and the arm

22 starting to extend. When that happened, when she first

23 started to look at me and focus on me - which she did do

24 repetitively throughout the rest of the evaluation - it

25 seemed to be associated with the reduction of pain and






261

1 discomfort that she attached to my voice.

2 Q. So she associated you with the lessening of

3 pain?

4 A. Right. Now, again, these eye movements, they

5 don't just sort of look way far off to the left one

6 time, way far up, and way far down. That's what's meant

7 by random eye movements, where they'll go all over the

8 place. They don't stay more or less in the general gaze

9 direction you're looking at or in the middle. They're

10 all over the place.

11 Interesting thing is that her father, at one

12 point, comes up here and starts to be rough with her,

13 she tightens up.

14 Q. Did you feel that?

15 A. You feel it and you could see it. At other

16 times he came up with her and changed his voice and we

17 got 15, 20 more degrees almost in seconds.

18 Q. You mean you got more extension when he spoke

19 to her in a more gentle tone?

20 A. Yes. I had hit a plateau as far as how far I

21 could get out. Then he came up at one point and spoke

22 to her more gently, and we got another 15, 20 degrees of

23 extension.

24 Q. Would that sensitivity to gentleness be

25 reflexive of any kind?






262

1 A. No. That's not reflexive at all. That's a

2 cognitive awareness at some point.

3 Q. She is able to distinguish between gentle and

4 brusk at some point, is that what you mean?

5 A. Right.

6 Q. Had she fixated on you at this time in the

7 exam?

8 A. I'm sorry. What was the question.

9 Q. Has she fixated on you at this point?

10 A. She fixated. She is having extension of the

11 arm along with that. You can see how much more relaxed

12 the arm is as well as her facial features became more

13 relaxed in 30 seconds.

14 Now she is looking directly at me, which she

15 didn't do before. She looked generally towards my

16 general direction. Her gaze wouldn't fixate on me. But

17 now she is maintaining the voluntary gaze pattern. Even

18 raising her eyebrows, which is uncomfortable for people

19 to do for long periods of time. Yet, she is keeping her

20 eyebrows raised.

21 You can see now we are at the 90-degree mark.

22 We are a little better than 90 degrees, as far as

23 extension goes.

24 The eye movements we are seeing here are not

25 what we have seen before when Mr. Schiavo and I would go






263

1 into the room, where the eyes would glance off to the

2 right and off to the left and up and down, fixating

3 intermittently on something that caught her attention.

4 Here they are consistently looking at me and fixating

5 towards me. This has been going on for a while now.

6 Q. This would be about two or three minutes she

7 is looking directly at you? Now, you said she is blind.

8 A. She is partially blind. And she is fixating

9 on me in spite of the sound of the video -- of the tapes

10 in the background, which would normally be expected if

11 this were all reflex, to have her glancing towards that

12 sound. But instead, she isn't, she still maintains her

13 gaze off towards my direction.

14 I moved out her direction, towards her line of

15 sight that she has at this point.

16 Q. Did she make any vocalizing noises while you

17 were massaging her shoulder?

18 A. No. Very rarely did she ever make any sounds

19 during this thing. She would make sounds at times. She

20 made some sounds at times with the music. But, no,

21 she's not making any kind of random moaning sounds or

22 anything of that nature that would have been described

23 in PVS patients.

24 I'm having a lot of trouble here. I'm almost

25 fixated at this 90-degree angle here. I'm having






264

1 trouble getting farther. I needed to get her arm

2 farther to get an accurate blood pressure. We have been

3 doing this now for several minutes.

4 I don't know if we have the next part of that

5 tape. The next part shows the father coming up and

6 talking to her, and we then got the arm extended out

7 further.

8 MS. ANDERSON: Now, Judge, this concludes the

9 first 30 minutes of the exam. You had indicated

10 earlier that a lunch break might be appropriate.

11 THE COURT: I think it might be.

12 Doctor, same admonition as before. If you are

13 talking, to receive no information about the case.

14 And do not discuss your testimony with anyone.

15 So one hour. We will take a luncheon recess

16 until 1:15.

17 (Whereupon, a luncheon recess was taken
after

18 which the following proceedings transpired:)

19 THE COURT: Doctor, you are still under oath.

20 BY MS. ANDERSON:

21 Q. Before we fire the videotape back up, Doctor,

22 I want to ask you. I don't think we ever did defined

23 vasospasm. What is it?

24 A. Vasospasm is anatomy of the blood vessel after

25 the injury. What it does is it goes into a contraction






265

1 and narrows the blood vessel. So the spasm of the vaso,

2 which is a blood vessel, it's like a Charlie horse. If

3 you injured your leg, you get a Charlie horse or muscle

4 contraction. This is a muscle contraction near the

5 artery. It also actually tends to cause a blood vessel

6 to stay in that pattern for years after the injury.

7 Q. And I know that I asked you, but my notes

8 indicate that it got lost. What exactly is hypoxic?

9 What does that word mean?

10 A. Hypoxic means without oxygen.

11 Q. And how does it differ from anoxic?

12 A. Well, it's really sort of radiation. Anoxic

13 means no oxygen whatsoever. Hypoxic means you can have

14 radiation, but no oxygen.

15 Q. So is it a difference in degree rather than

16 kind?

17 A. Yes. Yes, it is.

18 MS. ANDERSON: May we resume the videotape?

19 THE COURT: You certainly may.

20 MS. ANDERSON: After we cover some additional

21 format. I think we cured the slow image problem.

22 THE COURT: I'm no expert. I'm amazed at what

23 you're able to do.

24 MS. ANDERSON: When it's done, don't reboot.

25 MR. FELOS: I gather you weren't able to fix






266

1 the problem of having the time code?

2 MS. ANDERSON: This remains in the digital

3 format. The VCR, we cannot get the images to these

4 flash screens.

5 MR. FELOS: On the image of reduced size, that

6 does have the time code. Are we seeing the same

7 entire image but the entire image is reduced?

8 MS. ANDERSON: Right.

9 MR. FELOS: Is there any reason why we can't

10 see the smaller image, Judge? We are seeing the

11 entirety of the picture, but we have the time code

12 on it.

13 MS. ANDERSON: Because of the problem, as I

14 mentioned earlier, Your Honor. It's much easier to

15 discern particularly her eye movements when you are

16 looking at just her eye image, not the programming

17 frame around the eye image.

18 THE COURT: Let's leave it this way. Let us,

19 every four or five minutes, flip it back.

20 MS. ANDERSON: Flip back?

21 THE COURT: Flip back to the smaller one where

22 Mr. Felos can, at least in four minute gaps, if you

23 will, know within that four minutes or three

24 minutes --

25 MS. ANDERSON: Perfect.






267

1 THE COURT: -- for his inquiry. Because that

2 will save us time later on.

3 MS. ANDERSON: Well, I agree. That's a good

4 way to get oriented in the record where we are.

5 THE COURT: Thank you.

6 MS. ANDERSON: So could we have the time code

7 on that.

8 BY MS. ANDERSON:

9 Q. This is the segment that runs from 11:46 a.m.

10 to 12:15 p.m. and we are now 25 seconds into that

11 segment. Okay.

12 A. In spite of the music coming on very loudly,

13 she is continuing to voluntarily focus her attention

14 towards us. She's expressing a startle reflex, which is

15 a cognitive awareness aspect.

16 Q. So is she looking at you?

17 A. She's looking at my general direction. I'm

18 not sure if she were actually focusing on me. If she

19 weren't aware -- what you see in patients with coma is

20 you give them the same loud signal and they persistently

21 do the startle of one sort or another and they don't

22 have that ability to override it. And she's overriding

23 it.

24 Q. Didn't she laugh at her mother?

25 A. I didn't see it that time.






268

1 We're still trying to get the arm out

2 extended. She's directly engaged to the right and then

3 back towards me. But, again, didn't direct as an

4 orienting reflex, which is very quick.

5 At this point I started running into trouble

6 getting the arm properly extended enough to get a blood

7 pressure. We were working this now for quite a while.

8 She is not moaning, not coughing, not having

9 random eye movements in different directions. But I'm

10 still sort of having trouble getting out. In spite of

11 going near her then, she focused on my area of the

12 evaluation on the opposite side of the bed.

13 Q. Is her left shoulder contracted?

14 A. Her left shoulder is contracted, yes. It's

15 obviously loosened up a great deal than previously.

16 We've now added approximately 80 degrees of abduction.

17 Where before, it was close to her chest like it is on

18 the right side and almost no abduction.

19 MS. ANDERSON: We're now at 4:19. Can you see

20 it, Mr. Felos?

21 MR. FELOS: I can.

22 BY MS. ANDERSON:

23 Q. Okay.

24 A. This arm is not extended enough to get a good

25 blood pressure reading yet, but it's getting close to






269

1 it.

2 Q. Will a patient with contractures sometimes

3 develop arthritis?

4 A. They can develop arthritis, yes.

5 Q. I mean, as a result being connected to the

6 contractures?

7 A. Due to the contracture itself, yes.

8 One of the ways the joint -- arthritis is a

9 degeneration of the joint. One of the ways the joint

10 maintains proper nutrition is by movement. If you can't

11 have movement, you then get degeneration of the joint.

12 Again, her arm is still moving here. This is

13 a very difficult position for a patient to be in who's

14 neurologically injured, with her head extended and back

15 like that. Because saliva tends to pool in the back of

16 the throat and tends to cause trouble breathing, so this

17 is a very bad position to have a patient in really at

18 any time, with her head extended backwards like that.

19 Yet, despite that, she is not having difficulty with her

20 saliva, no choking. She is able to swallow. We are

21 about a half-hour into our evaluation and she is able to

22 swallow.

23 Q. Why is her head positioned like that?

24 A. As the husband came forward and started

25 talking gently in the background, her arm started to






270

1 relax. She is now down to about 120 degrees of

2 extension from, of course, where she was about a half

3 hour ago, from 15 minutes before.

4 Q. Her father, you mean?

5 A. That was her father about 30 or 45 seconds or

6 so. I had mentioned that her arm was now tightening up

7 again, then he mentioned something and started talking

8 off screen. He had a gentle voice.

9 Q. Who's he?

10 A. Mr. Schindler. Started speaking off in a

11 gentle voice, and the arm immediately relaxed beyond

12 where it had been in the last the 20 minutes that we

13 were working on it. And she relaxed despite of the fact

14 that the radio had gone on and I had been talking to

15 her. This was not a response to the sound, this

16 relaxation. Look at how much it extended. We're up to

17 150 degrees, where I previously couldn't get past

18 110 degrees or 120 degrees in the previous five minutes.

19 That's quite dramatic. I think it is. When I get

20 rough, her arm tightens up again. So she is responding

21 very much to his tone of voice.

22 Q. And does that signifying awareness?

23 A. Yes. And as he talks to her, she is turning

24 to him. Again, we have seen a lot of the orienting

25 reflexes now, which is essentially quick, darting






271

1 glances, primarily in the eye. Maybe a twitch of the

2 head. Notice the turning that she did for her father as

3 he got close to her and started talking to her. So,

4 again, we see voluntary responses to him.

5 She, again, swallows despite being in this

6 difficult position.

7 Q. Why is her head tilted back like that, chin

8 up?

9 A. Well, she's been maintaining that position

10 frequently. She was in that position when I was first

11 there observing with Mr. Schindler a month or two before

12 this. What she should be is she should have her head

13 propped forward. Instead, it's extended.

14 Again, she is directly engaged to her father's

15 voice, keeping relaxation in the left arm with it.

16 Again, I brought this up because patients have

17 difficulty swallowing. When their in these sorts of

18 positions, they have tremendous difficulties with saliva

19 coming in the back of the throat, down their

20 tracheostomy. You will hear a gurgling. You will

21 frequently see saliva drooling from the mouth. You will

22 see them cough a great deal as that liquid gets into

23 their lungs from the back of the throat. She has had

24 none of that, as you can see.

25 The average person makes between one and a






272

1 half liters and two liters of liquid saliva per day.

2 Saliva and water are the toughest things to swallow. So

3 if they can do this, they can swallow foods, soft foods.

4 Q. The brain injured person produces less saliva?

5 A. No. They frequently produce more saliva

6 because people frequently, who are walking around, have

7 control over their water intake and will purposely

8 dehydrate themselves so they don't have to go to the

9 bathroom. These folks are maintained on what's called a

10 "positive food balance", which is we are trying to give

11 them more water than the body needs in order to make

12 sure they don't get dehydrated.

13 Q. So she is producing saliva whether she is fed

14 by mouth or not?

15 A. Correct. Again, all of this motion -- and

16 this is actually a comfortable thing for her. She's

17 not moaning. We know she feels pain from other parts of

18 the exam, but here she is cooperating with us, this part

19 of the examination.

20 MS. ANDERSON: We are nine minutes and 53

21 seconds into the last time on this segment at this

22 moment.

23

24

25






273

1 CERTIFICATE OF REPORTER

2

3 STATE OF FLORIDA )

4 COUNTY OF PINELLAS)

5 I, TONYA H. MAGEE, RPR, Registered Professional
Reporter, Notary Public, State of Florida at Large:
6
DO HEREBY CERTIFY that the foregoing proceedings
7 were taken before me at the time and place set forth
in the caption thereof; the proceedings were
8 stenographically reported by me in shorthand, and the
foregoing pages, numbered 145 through 273 inclusive,
9 constitute a true and correct transcript of my said
stenographic notes.
10
I further certify that I am not a relative,
11 employee, attorney, or counsel of any of the parties,
nor relative or employee of such attorney or counsel,
12 nor financially interested in the outcome of the
foregoing action.
13

14 IN WITNESS WHEREOF, I have hereunto affixed my
official signature this 23rd day of January, 2003,
15 at Clearwater, Pinellas County, Florida.

16 _________________________
TONYA H. MAGEE, RPR
17 Court Reporter and
Notary Public, State of
Florida
18

19 Acknowledged before the undersigned
this day of January, 2003,
20 by Tonya H. Magee, who is personally
known to me.
21
_______________________________
22 Notary Public, State of Florida

23

24

25






274

1 IN THE CIRCUIT COURT OF THE
SIXTH JUDICIAL CIRCUIT IN AND FOR
2 PINELLAS COUNTY, FLORIDA
PROBATE DIVISION
3

4 IN RE: THE GUARDIANSHIP OF File No.90-2908-
GD-003
THERESA MARIE SCHIAVO,
5 Incapacitated. APPEAL
___________________________________// VOLUME III
6
MICHAEL SCHIAVO, as Guardian of the
7 person of THERESA MARIE SCHIAVO,

8 Petitioner/Appellee,

9 vs.

10 ROBERT SCHINDLER and MARY SCHINDLER,

11 Respondents/Appellants.
________________________________________________//
12

13 BEFORE: The Honorable GEORGE W. GREER

14 PLACE: Pinellas County Courthouse
315 Court Street North
15 Clearwater, Florida

16 DATE: October 14, 2002

17 TIME: Afternoon Session

18 REPORTED BY: TONYA H. MAGEE, RPR
Court Reporter and Notary
Public
19 Sixth Judicial Circuit
___________________________________________
20
HEARING
21 ___________________________________________

22 Pages 274 - 474

23 ROBERT A. DEMPSTER & ASSOCIATES
P.O. BOX 35
24 CLEARWATER, FLORIDA 34618-0035
(727) 443-0992
25






275

1 A P P E A R A N C E S:

2

3
GEORGE J. FELOS, ESQUIRE
4 595 Main Street
Dunedin, Florida 34698
5
Attorney for the Petitioner/Appellee.
6

7

8 PATRICIA FIELDS ANDERSON, ESQUIRE
447 Third Avenue North, Suite 405
9 St. Petersburg, Florida 33701

10 Attorney for the Respondents/Appellants.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25






276

1 P R O C E E D I N G S

2 BY MS. ANDERSON:

3 Q. Okay.

4 A. This is a very unusual response for people.

5 People who are in a coma do not extend their arms. They

6 do not extend their arms specifically to voices like

7 this. They stay contracted. And they might be able to

8 tug a little bit, like we can see other physicians in

9 their examination, you can see a little bit of movement.

10 But they go immediately back into it. They don't

11 maintain gazed focuses like her and they don't maintain

12 relaxation. That's because the drive of the nervous

13 system is partially moot in coma patients and persistent

14 vegetative state patients and you have to consistently

15 drive the nervous system to make the muscles contract,

16 which she doesn't have.

17 Q. So this is a matter of lack of physical

18 therapy?

19 A. It may be part, yes.

20 Now, look at her arm. We are almost down to

21 full extension of the arm with the use of her father

22 speaking to her. In the start of this examination, I

23 hit a plateau of just over 90 degrees of extension, and

24 now we're almost at full extension of that arm with the

25 use of the father's voice.






277

1 Q. Did you anticipate she would respond to her

2 father's voice that way?

3 A. No. Well, it's obvious she was able to

4 discriminate radio, specific voices, from her mother's

5 voice when it first all happened. We talked about that

6 earlier. To see her respond to her father like she did,

7 I have never seen that before and I was very surprised

8 at that.

9 Now, the arm is almost extended. Again, in

10 spite of being in very bad positioning, she is having no

11 trouble swallowing. She makes the equivalent of about

12 three of these containers of saliva per day and is able

13 to swallow them a day. This is on bedside. This is one

14 of our tests that would suggest thinking about time to

15 do a feeding trial because they can handle liquid if

16 through, pudding, things of that nature. Liquid food is

17 the toughest. Puddings are easier.

18 Q. If she is being fed 12 hours a day, how much

19 liquid intake would she get?

20 A. That would be on the chart. It would probably

21 be close to two liters or about four of these a day,

22 just under four of these a day. Which her body would

23 then secrete three of these, roughly. That is the

24 amount to be reswallowed.

25 Q. As her mother approaches her in this segment,






278

1 does she take note of her mother's presence?

2 A. Yes, she does. Again, the orienting reflex

3 lasts for just a fraction of a second. Whereas, here

4 she looks toward mother and looks back. But it's not an

5 instantaneous action; therefore, it's under cognitive

6 control, voluntary control.

7 If you will remember, when the mother came,

8 she started directing her gaze off again to the right

9 side. Prior to this, the past has been noticeable with

10 her looking toward my general direction. When the

11 father comes up, she takes notice of him and her gaze

12 changes towards him.

13 When I'm working the shoulder, she'll look

14 back towards me. In the arm, now, the shoulder is

15 really extending a great deal more, moving a great deal

16 more compared to where it started on the right side.

17 Compared to the -- we got that almost 180 degrees,

18 90 degrees abduction.

19 Q. In terms of her overall condition, is she more

20 impaired on one side than the other?

21 A. Yes, she is.

22 Q. Which side is she more impaired?

23 A. She's actually more impaired -- she's more

24 spastic on the right side, or tighter contractions on

25 the right side, but she is weaker on the left side. The






279

1 side I'm working on. She has a very unusual pattern of

2 mixture of her left problems, which you will see with

3 anoxic and hypoxic.

4 Anoxic and hypoxic encephalopathies are

5 characterized by multiple small strokes. So depending

6 upon where that stroke is, is where your deficiency is.

7 In your average stroke, the entire side of the body is

8 affected. But in a hypoxic or anoxic episodes, or

9 cerebral palsy, you will see lots of different areas

10 affected. And there may be another injury, a neck

11 injury with her also, which compounds her examination.

12 Q. Compounds what, her condition?

13 A. Her condition, yes. There is a neck injury.

14 There may be a spinal cord injury, also.

15 Q. How were you able to determine a neck injury?

16 A. By physical examination. On physical

17 examination, she has several characteristics that are

18 not typical of a stroke. First, she has very severe

19 neck spasms. That's typical of the body's response,

20 splinting the area to prevent injury to that area.

21 Q. Splinting the area?

22 A. Yeah. If you injure your arm, you will move

23 it. Your muscles will contract around it to keep that

24 area moving. Her muscles around the neck area are

25 heavily contracted to help prevent movement around that






280

1 area. Later on in the videotape, we actually show that

2 it's almost impossible for her to bend her neck.

3 You can pick her entire body up off the bed

4 just by putting pressure on the back of the neck area,

5 which is not typical in brain injury patients but in

6 neck injury patients. In addition, her sensory

7 examination is nothing like a typical stroke patient or

8 typical anoxic encephalopathy.

9 Q. Are you experienced in treatment of patients

10 with spinal cord injury?

11 A. Yes, I am.

12 Again, the father has now moved away. The arm

13 is now tightening up.

14 Q. Is the spasticity involuntary?

15 A. Spasticity is involuntary, yes. However, I

16 can have some control over it. If you have increased

17 neurological function, spasticity tends to reduce.

18 Q. And that's because the normal pathways to the

19 limbs are restored?

20 A. Yes. Spasticity is an involuntary normal

21 response the body has. Then, you can have brain

22 activity that overrides spasticity or supersedes the

23 spasticity. So as you have decreased -- as they get

24 increased neurological functioning, the spasticity

25 reduces. There are other ways to reduce spasticity,






281

1 like physical therapy or medications, that don't involve

2 improved neurological function.

3 Okay. Mother talks. She looks off to the

4 right and maintains the gaze preference to the right for

5 approximately four, five seconds. Looks back to me.

6 Starts looking back to her. In orienting reflex or

7 visual reflex, it would have been over in less than a

8 second. Again, you have seen that in most of the

9 orienting reflexes previously.

10 Q. Were you successful in obtaining a blood

11 pressure on Terry Schiavo in this?

12 A. Yes, we were.

13 Q. Do you recall what the blood pressure reading

14 was?

15 A. She still had some spasticity. The blood

16 pressure readings, as I recall, ranged from around 90

17 over 70 to 110 over 70. Some might have been in the

18 high 60s.

19 Q. At least with respect to what?

20 A. Well, there are different ways of measuring

21 blood pressure. We measured it with a cuff where you

22 could actually feel the pulse in the wrist. When the

23 cuff closes off, the blood pressure is the top number.

24 As soon as the blood flows past the cuff, I could feel

25 it down in the wrist. The top numbers I know are






282

1 accurate. The lower number, however, the 60 or 70 there

2 is no way you can do an outside double check on that

3 number. So the systolic did range around 90 to 110.

4 Q. For a patient in her condition, would you

5 consider that a normal blood pressure?

6 A. A normal blood pressure is pretty much defined

7 by how the patient seems to be getting best at. So you

8 can't really say whether this is normal or not. In her

9 case, in the records prior to Hospice and this

10 evaluation, the records at, I think, Bradenton, had

11 showed that she was neurologically better at times. And

12 she had blood pressure at that time that were 110 to 120

13 systolic. So I would suspect that would be the proper

14 blood pressure reading.

15 It's kind of interesting, also, in that during

16 Dr. Cranford's exam, that we are probably going to get

17 into, she has less responses going on. Then, he pinches

18 her and she becomes more responsive.

19 Q. He does what?

20 A. Pinches her and she becomes more responsive

21 and visually tracks even such as looking up. That

22 occurred similarly after he pinched her, and that would

23 be expected to raise the blood pressure.

24 The motions that I'm doing would be expected

25 to do the opposite, to lower the pressure, because they






283

1 tend to reduce pain. And, yet, she is clearly having

2 improvements with just this minor physical therapy.

3 Q. Do you recall how long it took you to get her

4 arm extended sufficiently so that you could take a blood

5 pressure reading on her?

6 A. Well, I wasn't timing it. I asked the

7 videographer at the time we took it, and she said it was

8 45 minutes.

9 MS. ANDERSON: We're now at 21 minutes and 14

10 seconds into this segment.

11 BY MS. ANDERSON:

12 Q. This is where you're taking her blood

13 pressure, correct?

14 A. Right. Again, when I start speaking, she

15 looks to the right for approximately 15 seconds and then

16 looks back in the general direction to where the

17 activity is occurring. Again, that's not a reflex

18 reaction. Again, there is no difficulty swallowing

19 despite the fact that the human body produces this much

20 saliva each day.

21 Q. I'm sorry? The microphone went off.

22 A. In spite of the fact that the body produces

23 about this much human saliva that the body has to

24 swallow each day.

25 Q. That's about four?






284

1 A. Three or four Coke cans. And yet, in this

2 position, her body has no trouble swallowing.

3 MS. ANDERSON: Judge, this microphone is out.

4 THE WITNESS: Is it seems to be working off

5 and on.

6 (Whereupon, a discussion was held off the
record

7 after which the following proceedings transpired:)

8 BY MS. ANDERSON:

9 Q. She has some sort of -- looks like a cardboard

10 roll in each hand. What's that for?

11 A. Her contractures are so severe that the

12 fingernails will go into her fingers and cut the palm of

13 her hand. And she cannot wash the hand. When I took

14 that cardboard thing out of the hand at one point, there

15 was a foul smell that came out of the room from her hand

16 not being washed. So that's an attempt to try to keep

17 the fingers open enough so some sort of action can be

18 done and to keep the fingernails from going into her

19 hand.

20 When her mother touches her, she looks to the

21 right. Again, looking to the right, looking back, then

22 looks again to the mother. As the mother comes closer,

23 then looks at mother and goes back to my examination.

24 Q. Was her head movement to the right voluntary?

25 A. I would have to go back and look at that part






285

1 again.

2 You know, the way that she is responding, if

3 you look at her closely, most of this is voluntary

4 activity if whether she is moving her head or not.

5 Occasionally, she'll have a quick eye twitch to the

6 right followed by if you twitch back immediately, then

7 it's voluntary. So most of the time she'll maintain a

8 gaze for five seconds or longer as opposed to a tenth of

9 a second which is a reflex.

10 Q. Why would you not be able to get both blood

11 pressure readings off of the cuff?

12 A. You get the blood pressure readings off of the

13 blood pressure cuff. The problem we have is whether

14 it's accurate.

15 Q. How is that, because of spasticity?

16 A. Because of spasticity, yes. Because there

17 still was contractions in the muscles even though we

18 still had a fair amount of extension in the arm. You

19 still have some tight muscles that can tend to move the

20 artery away from the blood pressure cuff. So that's why

21 I was also feeling at her wrist, to confirm what the top

22 number would be, and also to make sure the machine is

23 accurate.

24 I took a reading five or six times. Several

25 times it came up with an error on the machine, so we had






286

1 to repeatedly take it.

2 Q. Did you notice any change in Terry's alertness

3 as your exam went on?

4 A. Oh yes. I noticed a lot of change in her

5 alertness as the exam went on. Her response to me was

6 dramatic right around the time that I started getting

7 the arm extended. She had a sudden change. Where

8 before, she sort of focused in my general direction of

9 the exam. We saw a few moments ago, before I started

10 the blood pressure reading, that she kept her eyes

11 completely focused on me for long periods of time. That

12 started when we got a sudden relaxation of her arm. And

13 with that, you could see there was a reduction in pain

14 and she started sensing my voice as a reduction in
pain.

15 From that point -- it's interesting. From

16 that point forward, she tended to follow me throughout

17 the room with her eyes and she would follow me on that

18 left side. I think in the early part of the exam, it

19 was mentioned by somebody that she tended to have a

20 right gaze problem. She tended to look in the right.

21 So in this you will see even when I'm in the area of

22 vision she has trouble with, which is the left side,

23 she'll tend to look.

24 MS. ANDERSON: Now, we are at 11:46. No, we

25 finished that one. This segment will begin 12:16






287

1 to 12:48.

2 THE WITNESS: Again, the head is extended

3 here. It's the worse position for a person to be

4 able to swallow anything and get stuck gagging,

5 coughing, or choking. She is not moaning at all.

6 She is aware of sounds around her, as what

7 happened with the cough. She's not having any

8 reflex to startle, she is just having awareness.

9 You have to assume she is tired from this

10 examination, too. Earlier on, when the mother

11 would come in, she was aware. She looks tired now.

12 BY MS. ANDERSON:

13 Q. Is that movement voluntarily, the movement of

14 her head to the left?

15 A. No, that is not a reflex motion. Reflex

16 motions are instantaneous and they are typical ways we

17 find something around us. But this turning thing is

18 not -- is a voluntary activity that she's doing.

19 Here I'm trying to strain down some of the

20 contractures about the wrist area to see if we can do a

21 physical exam in that area. I'm trying to do the same

22 thing with the fingers, too.

23 It's very difficult to get a strength

24 examination on somebody with severe spasticity because

25 muscles are contracting so strongly that on both sides






288

1 of the joint, there is very minor motion, if any motion,

2 at all. Some of our patients will actually -- to get

3 evaluation of voluntary motion, will go to the

4 biofeedback centers from neurologists around the country

5 and hookup biofeedback of the voluntary response.

6 Because in a spasticity, it's difficult to identify that

7 contraction.

8 That wrist, there was at 90 degrees or more of

9 contracture in the beginning, and now we have, with very

10 little therapy stretching.

11 Q. Was she able to squeeze your hand?

12 A. I think she was able to squeeze on all four

13 extremities. She is definitely able to do it on the

14 right side. And I don't know if she is able also to do

15 it on the left side. But, again, the motion was very

16 slight. I don't think it would have been -- I don't

17 think it was picked up on the videotape. We're on the

18 left hand --

19 Q. How did you detect it?

20 A. By a squeezing motion.

21 Q. So you put your four fingers inside her curled

22 fingers?

23 A. Correct. Then I ask her to squeeze, then I

24 ask her to relax.

25 Q. When you moved her right arm, what was your






289

1 plan?

2 A. Well, my plan was to try -- at this point, I'm

3 trying to see if there is voluntary control over her

4 arm. Now, at this point I'm not sure -- I have a lot of

5 problems with somebody that they don't understand

6 language. You also have a problem with giving a command

7 to somebody and having them follow through if you're

8 having such severe contractions and they physically

9 don't have movement around those joints.

10 So I was by the bedside trying to figure out

11 if there is any way I could stretch it out enough to get

12 to see if I could see voluntary movement and, again,

13 make sure this is voluntary movement.

14 MS. ANDERSON: Okay. We are at 5:51, the last

15 time of the segment.

16 BY MS. ANDERSON:

17 Q. Did you ever reach any conclusion about

18 whether she understands language?

19 A. Yes, she does.

20 Q. Later on in the exam?

21 A. Yes. She does understand language.

22 There are other ways of getting a voluntary

23 response from people besides language, giving the person

24 an order. Those ways include body language. For

25 instance, squeeze an arm, let it go, a hand, squeeze






290

1 again, let it go. Most people pick up on the pattern

2 and try to mimic it back to you. So that was one area I

3 was looking at in trying to make communicate an order.

4 As far as if they don't respond to that type

5 of mimicking, it doesn't mean you cannot respond or you

6 cannot voluntary do something, it's just means that you

7 mimic it.

8 Q. Why are you testing reflexes for her there?

9 A. That's the part of the general neurological

10 exam to test reflexes.

11 Q. Did you test reflexes in all extremities?

12 A. Yes, I did.

13 Q. And you test them at the elbows and the

14 wrists, right?

15 A. Correct.

16 Q. You test them on the shoulders?

17 A. I think I did with her.

18 Q. Do you test them on the knee?

19 A. Yes.

20 Q. And on the ankle?

21 A. Yes.

22 Q. And then the bottom of the feet?

23 A. Yes.

24 Q. Were her reflexes intact?

25 A. Yes, her reflexes were intact.






291

1 Q. Did she have abnormal reflexes?

2 A. Yes, she did. She looks to the left where I'm

3 examining her from. Early on, before we started

4 examining her, she tended to look to the right. She is

5 again, now, looking to the left in the examination.

6 Q. Was her Babinski reflex abnormal?

7 A. It was abnormal to one side. Her reflex

8 examination is difficult because she has -- reflex

9 examinations are graded on the amount of motion that

10 occurs to a test stimulus that's happening. And she had

11 so much contracture that she has limit motion in a lot

12 of those joints. But you get a sense of how they are,

13 of how briskly they respond. So they tend to respond

14 abnormally. You don't see in some other patients.

15 Q. Now, what are you touching her with there?

16 A. I'm touching her with a light cotton swab. At

17 this point, she's been changing the frequency of

18 blinking.

19 THE WITNESS: Can we stop that video for a

20 second?

21 The court reporter is having a lot of trouble

22 with this microphone. It's not working properly.

23 THE COURT: Let's take a five-minute stretch

24 break and maybe we can reset that.

25 (Whereupon, a short recess was taken after
which






292

1 the following proceedings transpired:)

2 MS. ANDERSON: Your Honor, would you mind if I

3 sat in this chair so I can see the screen and also

4 save my ankles?

5 THE COURT: I haven't minded up till now.

6 MS. ANDERSON: I know. I appreciate that.

7 BY MS. ANDERSON:

8 Q. Okay.

9 A. I'm not sure at this point if she can

10 understand language. What she did was she tended to

11 have throughout the earlier part of the exam a

12 preference where she looked towards me and not blink

13 very often. Then we asked her to close her eyes back

14 then, and, again, at that point, I wasn't sure if she

15 understood language or not. She had a delay and then

16 started to close her eyes more and blink repetitively.

17 You see that a lot of times with brain injured

18 patients. They have a delay in their processing time

19 frame and then when they get something, a command, they

20 keep doing it. It's like, see, I can do this.

21 Sometimes they also pick up on your tone of voice. If

22 your tone of voice is excited, they try to pick up on

23 that. If you don't understand language.

24 Q. Now, when you were stroking her arm with that

25 cotton swab, could you tell whether or not she was






293

1 experiencing sensation?

2 A. I don't think I could tell for sure. She

3 seems that -- I don't think I could tell she was

4 experiencing it. That's why I went back and forth with

5 this issue. I gave her a very difficult request at this

6 point, which is: "If you feel something, look to your

7 mom, not look at me." That's not an realistic thing to

8 ask somebody who's had a brain injury. Although at

9 times, it looked like she did that. That was a very

10 unlikely thing to ask somebody who did that.

11 Q. Was she able to follow that command?

12 A. Well, we'll see in a second.

13 The question was, was she able to follow the

14 command?

15 Q. Yes.

16 A. She looked from me to her mother and then

17 glanced back at her mom.

18 "Terry, open your eyes up. Open your eyes.

19 Open your eyes. Very good. Good. Good job. Good job,

20 young lady. Good job. Now, what I want you to do is I

21 want to you close your eyes. Close your eyes real

22 tightly. Can you close your eyes? Close them real

23 tightly. Keep them closed."

24 MS. ANDERSON: Pause for one moment, please.

25 BY MS. ANDERSON:






294

1 Q. Did she respond to your command to open her

2 eyes real wide?

3 A. I think she responded to the command to open

4 her eyes there. I think that she may have responded to

5 close her eyes there also because it is such a

6 difference from previously where her eyes were wide

7 open. You think back on this part of the exam compared

8 to the previous half-hour where you have her not being

9 more erect, you see much more of her eyes than you saw

10 previously. I think she is trying to close her eyes.

11 Q. Where are we in the -- 1332-S, that's where it

12 is. Dr. Hammesfahr, are we at 13:32?

13 A. Yes, we are.

14 MS. ANDERSON: Resume, please.

15 "Okay. Now, keep them real closed. I want to

16 you open your eyes real high. Open real high.

17 Good job. Very good."

18 THE WITNESS: I'm complimenting her for

19 closing her eyes. Again, there is a delay in

20 processing with the brain injured.

21 "Open your eyes. Open. Can you keep them

22 open? Can you hear that? Real big stare. Can you

23 open your eyes real wide for me, Terry? Open them

24 real wide."

25 It's kind of interesting. When I asked her to






295

1 close her eyes before, you didn't see the whites of

2 her eyes as much you saw essentially blinking at

3 that time. Her eyes were slits. Then, we asked

4 her to open her eyes up more. And it took a while,

5 but she starts actually opening the eyes.

6 "Close them real tight. Close your eyes real

7 tight. Close them real tight. Open them wide."

8 Again, this level of eye motion that she has

9 now is what we saw all prior to the wide-eyed stare

10 and then earlier closing her eyes. That is totally

11 different than was exhibited at that time.

12 BY MS. ANDERSON:

13 Q. Why do you ask her to do the same thing more

14 than once?

15 A. Well, it's an issue partially of

16 reproducibility. It's also an issue that brain injured

17 patients a lot of times confuse something and then they

18 think they cannot do it again. I have examined -- one

19 of the issues I want to know is could I ask her to

20 reproduce something, which we could then use as a basis

21 of communication. "Can you feel this or feel that more.

22 Can you feel this or feel that more."

23 A person that is responding intermittently,

24 you don't have anything else to go on as far as that

25 basis of communication. So in was really partially in






296

1 response, keep the eyes open, keep eyes close. Also, it

2 was trying to build that form of communication with
her.

3 Her gaze is focused on her mother. It's not

4 just sort of looking off to the left and looking off to

5 the right. What we would be happy to do is put her in

6 the hospital bed if she were visiting us. That reflex

7 to the left, that was the visual orienting reflex. You

8 saw how quick it is in comparison with what's happening

9 with the rest of the visit.

10 Q. Were you able to get her to reproduce on

11 command, reproduce behaviors on command?

12 A. Oh yes.

13 Q. What were they?

14 A. The most impressive one on the videotape is on

15 the examination of her leg. And in it, we have her

16 reproducibly moving her leg voluntarily. And doing it

17 several times, also. I think this is a response where

18 she also visually tracks something, which is a cognitive

19 awareness. She didn't -- you know, when we look at the

20 visual orienting reflex, that doesn't account for

21 looking at people, tracking people, keeping track of

22 objects, which she does do.

23 She also cooperates with the physical

24 examination. At another point I asked her to close her

25 eyes and then I tried to open up her eyes. The normal






297

1 response is when you ask them to close their eyes, you

2 can pull eyes right open. But, in fact, she kept her

3 eyes closed in the end. And I don't think she did ever

4 keep them open. That was, I think, most impressive with

5 respect to language.

6 One thing you might wonder about is you start

7 to see things happening intermittently through the

8 thing. Plus, you see how she responds to people's

9 voices and to specific voices at specific times.

10 Q. Did you form any conclusion about whether you

11 would be able to, given the opportunity, or someone

12 would be able to teach her to communicate?

13 A. With a degree of seeing her already following

14 commands, we should be able to have her communicating,

15 yes.

16 MS. ANDERSON: We are now 19 minutes and 17

17 seconds into the segment that began at 12:26. Is

18 that what it is?

19 THE VIDEOGRAPHER: 12:16.

20 BY MS. ANDERSON:

21 Q. All right.

22 A. Let me go back to your question about

23 communication. She is communicating already. She is

24 communicating through following instructions. She is

25 communicating through gaze preferences towards people.






298

1 She is communicating -- she has the ability of

2 language -- it's not language, it's called prosody.

3 Which is the ability of the line of communication. The

4 basic fundamental aspect of communication is called

5 prosody. Take children, their jibberish. It's not

6 words. It's how they communicate and absorb information

7 through another person.

8 The next step beyond that is words. She

9 responds to not hearing noises, but she knows that

10 they're there. She is clearly, as you saw earlier,

11 listening to music or responding to music. She responds

12 to specific voices. She responds to specific tones of

13 voices from specific voices.

14 Q. Were you able to get the right arm extended

15 very much?

16 A. No, I wasn't.

17 And she does other things. As part of this

18 examination, she cooperates with the exam. You go to a

19 comatose patient and ask them to do something, you

20 cannot get their arm to extend because it comes right

21 back as soon as you release the pressure.

22 In part of this examination, we flashed lights

23 into her eyes to check her pupils responding to light.

24 We've all had that done in the physician's office. It's

25 an uncomfortable test. The videography clearly shows






299

1 and we witnessed, is that she held her eyes still for

2 that different portion of the exam and she did it

3 repetitively with many different lights, including

4 halogen lights, which are incredibly bright and

5 uncomfortable. Her eyes were not roaming all around, so

6 I was able to get a quick glance of the eyes to see how

7 they reflex.

8 Q. Why would she not close her eyes as a reflex

9 when you are shining lights in her eyes?

10 A. It's a normal response to anybody, when you

11 have a bright light shining in your eyes, to close your

12 eyes.

13 Q. How do you know that's not evidence in fact of

14 brain damage that she can't close, that she kept her

15 eyes open?

16 A. A person who's aware or blind or whatnot,

17 completely blind, might not do that. But she tracks

18 things visually. We know she's not blind.

19 The second thing is if you're aware, it is

20 uncomfortable to have lights flashing in your eyes, hold

21 your eyes in one position straightforward. Yet, she did

22 it anyway. She neurologically did what people do, she

23 tired in the exam. This is one-hour, 15 minutes into

24 the first part of the exam. She is tired. I am too.

25 I'm about to stop the exam and have lunch.






300

1 Q. Does this segment end with the lunch break?

2 A. Yes.

3 Q. Did she exhibit signs of fatigue? Is she

4 exhibiting them now?

5 A. Yes, she is.

6 Q. Would it be normal for a brain damaged person

7 to fatigue easily?

8 A. Yes, it is.

9 Q. If she were getting more stimulation year,

10 would her endurance increase?

11 A. That's a really tough question because it

12 depends on the kind of stimulation. If she had more

13 physical activity, physical therapy, yes, it would. If

14 she had more intellectual activity, you know, the

15 intellectual activity probably would be more of a

16 concern to me. It might or might not stimulate her,

17 depending whether she is engaged in that activity.

18 Again, look at how her eyes are doing compared

19 to when I gave her that command to wide stare, close her

20 eyes.

21 Q. How do you mean?

22 A. Well, her eyes here, generally, are open. She

23 is blinking six times a minute to eight times a minute,

24 something like that. It's in that general order. And

25 yet when she's asked to close her eyes, her eyes are






301

1 much more closed and there is much more blinking going

2 on.

3 Do you want to turn this on, the sound?

4 Q. Does she move her left arm voluntarily just

5 then?

6 A. I'm not really sure whether that was a

7 voluntary action or not. You can frequently have a

8 reflexive action and voluntary action commix. I'm not

9 entirely sure what that was at this time. At that time,

10 I thought it was a voluntary motion. But at this time,

11 I'm not real sure.

12 Q. We are now -- how much of that time.

13 A. Twenty-five minutes and 31 seconds. Again,

14 she is showing no choking going on, so she can clearly

15 handle liquids. Okay. I'm doing that. I'm using

16 gravity and my weight to extend my arm. So you get an

17 idea of how strong that contracture is. On the left

18 side, she is also strong. The right arm was different

19 than the left arm.

20 Q. You were able to get it extended some, weren't

21 you?

22 A. Yes, I was. It would respond to physical

23 therapy.

24 Q. Did you get any squeezing pressure from her

25 right hand?






302

1 A. Yes, I did.

2 Q. Did she squeeze on command?

3 A. At that time, I did two commands. I gave both

4 the command to squeeze and I did squeeze so that there

5 was both body language command as well as verbal. And

6 she did he squeeze to one of those two things.

7 Q. Is that a reflex?

8 A. No, it's not a reflex.

9 Q. What were you saying?

10 A. In this section where I'm looking at, I'm

11 actually thinking here is that you squeeze it, it isn't

12 an auditory or visual cue, and is it enough or how can I

13 get it to show on the video. That was what was actually

14 happening at that moment when I was looking at her. You

15 see a little bit of that squeeze right there on the hand

16 that opened.

17 Now, I'm repositioning her again because, when

18 a person has a contracture, the muscle they're flexing

19 in the finger is so strong that it's very difficult to

20 extend the fingers. So you physically have to

21 frequently, in order to get control, is to physically

22 extend the fingers, get them to a steady state of some

23 sort and give them the command to squeeze, see if you

24 can get them to squeeze like we saw a few moments ago on

25 videotape.






303

1 Again, we saw it during the fourth and fifth

2 digits there. It can be felt in the first two fingers.

3 Just like a few moments ago, before we asked her to

4 squeeze, we had the same movement. But in these cases,

5 you weren't seeing that. Actually, I think we are --

6 Q. I'm sorry. What did you say?

7 A. I actually didn't think they would show on the

8 videotape during this. I'm surprised it actually did

9 show up. I didn't think that degree of contracture

10 would show up on videotape like it has.

11 Again, we are not seeing those fingers moving

12 like they were before when I asked her to squeeze.

13 Then, I previously had asked her to squeeze through the

14 contractures. Here, this motion we just saw, she is

15 moving both hands and there is some sort of contraction.

16 But you weren't seeing the fingers squeezing like you

17 were seeing two minutes ago or so, roughly, in the

18 examination of the tape. So it's not an involuntary

19 motion that she's having. The motion she's having

20 before the squeeze is localized to the hand as opposed

21 to generalized spasticity to the whole area fired off

22 for some reason.

23 Q. If she moves back upper extremities in

24 concert, is that a sympathetic nerve response?

25 A. It could be.






304

1 Q. Was it on that occasion?

2 A. That one was, I think, some sort of a -- you

3 know, there's a series reflex that deal with discomfort

4 and that's probably what that was.

5 Q. We have concluded -- that was the third

6 half-hour segment. We will now begin the fourth

7 half-hour segment that runs -- did you get the times,

8 Doctor?

9 A. This is 12:48 to 2:24. You know, to look at

10 spinal cord injured patients, there are a lot of spinal

11 cord injured patients driving around with scooters who

12 have just a slight amount of voluntary moment in their

13 fingers that allows them to control electronic scooters.

14 THE COURT: Can we take about a four-minute

15 break. I have to do this order and I sure don't

16 want to miss any of this. We just have to take a

17 stretch break.

18 (Whereupon, a short recess was taken, after
which

19 the following proceedings transpired:)

20 BY MS. ANDERSON:

21 Q. We are commencing at this segment. What is

22 the time code?

23 A. It's 12:48 to 2:24, thirty seconds into it.

24 Q. And does this encompass the lunch break that

25 you mentioned earlier?






305

1 A. Yes. Again, what I'm trying to do is provoke

2 a reproducibility language communication style with her

3 to try to distinguish whether or not she can feel

4 something. I give up right there when I'm trying to do

5 that. Because her delay in processing -- she appears to

6 process some commands and there is a delay. As you saw

7 with the opening the eyes, it took a while to open her

8 eyes. And close your eyes, it took a while and then she

9 start blinking and closed her eyes more.

10 Q. And her right arm is moving there. Is that

11 voluntary?

12 A. Probably.

13 Q. Did she move her hands?

14 A. Probably. There is a delay in processing, I

15 notice, that made it very difficult. You know, if you

16 are giving a voluntary command to somebody, you expect

17 to see them respond right away. But that doesn't

18 happen with her; there is a delay in her response to

19 these things. So, you can't use that command action

20 that is typically linked to the response we are looking

21 for.

22 So, yes, right here you start moving, the way

23 you expect the person uncomfortable from it, but it had

24 already moved on to the left arm. She had such severe

25 contractures that it's very difficult to go a reflex






306

1 examination on her like we have on the average person

2 because a reflex examination requires movement of the

3 joint for the most part of the examination.

4 Q. Dr. Hammesfahr, some doctors in this case

5 describe her as being in a persistent vegetative state.

6 How would you describe it?

7 A. Can you pause that, please?

8 The question, is she in a persistent

9 vegetative state. No, she is not in a persistent

10 vegetative state. Persistent vegetative state is a form

11 of coma where in a coma, a person is unaware of their

12 surroundings and their environment. In a persistent

13 vegetative state, which is a subset of a coma, they

14 appear to be awake. They might look around or might

15 moan, meaning they might have a bladder infection or

16 urinary tract infections.

17 They have random eye movements. Their random

18 eye movements might go from one direction to the other

19 direction. They may have orienting reflex that are

20 briefly straining towards a sound or something coming in

21 their vision, but they don't maintain persistent gaze

22 like she does. When her mother came in and started

23 responding to her, she saw her and continued to look and

24 she had facial expressions. They don't have that. They

25 don't have that oriented reflex that I showed you before






307

1 followed immediately by looking off to the left or off

2 to the right or down or up or wherever else. They

3 certainly don't respond to commands by squeezing the

4 hands or fingers or open your eyes up or close you eyes.

5 Q. How would you describe her condition?

6 A. They also moan erratically when they

7 verbalize, which we don't see that with her.

8 She is severely injured. She was a medical

9 survivor to another physician. I would say that she is

10 expressively aphasic, that means she has lost the power

11 to speak. She could be partially receptible aphasic,

12 which means she has trouble with language and

13 communication; which, although, she clearly understands

14 some things. She is like spinal cord victim,

15 Christopher Reese, in that she has contractures of the

16 arms and legs and very little voluntary motion. In

17 fact, she is very similar to Christopher Reese because

18 she clearly can swallow.

19 Q. I'm losing what you are saying.

20 A. She is expressively aphasic and receptively

21 aphasic and she is also partially blind. But she is

22 aware, and that's the determining factor between a

23 person in a coma and a person not in a coma. She is

24 clearly aware.

25 Q. Okay. Resume, please.






308

1 A. Okay. She looks towards me, again, as I start

2 moving her right arm. She is tending towards what we

3 are doing. She is having brisk reflexes there. And

4 later, when I tap on her shoulder right before this, she

5 has reflexes that are brisk down into her hands. That

6 means there is spinal cord injury or brain injury or

7 both.

8 Q. What are you testing when you tap her gently

9 between her eyes?

10 A. Well, we are testing for a reflex. People who

11 have had brain injury affecting the frontal part of the

12 brain. And that's a reflex when you tap there, normally

13 a person will blink once or twice and stop blinking.

14 She continues to blink, which shows there is an injury

15 in that area of the brain.

16 She stops responding to her mother like she

17 did when we first saw her the first half hour. She is

18 always looking to see if she is going to see her.

19 Q. What are you testing when you touch her face

20 with the end of the cotton swab?

21 A. Well, we're testing sensation in that area to

22 see if there are any large areas of neuro sensations.

23 She seems to be aware in each area. She looks towards

24 the area to see. She maintains gaze for a time in that

25 area. Maintaining gaze neurologically basically doesn't






309

1 lasts much longer than a few milliseconds. The first

2 few parts of the millisecond is reflex and after that is

3 cognitive or voluntary.

4 It's like a sharp piece of wood that I'm using

5 to tap her face with. It's a little bit uncomfortable,

6 but not much. She is almost falling asleep at this part

7 of the examination.

8 That's a startle reflex that we just saw.

9 Q. Was it in response to that sound?

10 A. Yes. There are a couple typical reflexes that

11 have been used to describe the behavior in the past.

12 One is the startle reflex, which is basically a fright

13 reflex. You saw her sort of grimace and close her eyes

14 to it previously.

15 Then the other ones are the visual or auditory

16 orienting reflexes, which have been used to describe why

17 she might appear to interact with people. But you see

18 examples of that where, again, it's the reflex and very

19 temporary or very transient; lasts, maybe two

20 milliseconds or a tenth of a second, maybe. Not

21 involved in moving the entire body towards something,

22 like you see maintaining a gaze. She doesn't like that

23 at all.

24 Q. Now, when you pull her eyes open, she seems to

25 grimace. Is that a reaction to that?






310

1 A. Yeah. She doesn't like that. It's

2 interesting because other parts of the exam, including

3 Dr. Cranford's exam, she raises her eyes up very wide

4 and maintains them open. You know, maintaining your

5 eyes open like she has done for us at times and

6 maintaining it open during Dr. Cranford's examination

7 later on, as you will see, is uncomfortable for people

8 because it results in your eyes drying out in part.

9 And, yet, she does it repetitively throughout much of

10 the examination at appropriate intervals.

11 So that's a voluntary thing to overcome pain

12 response. Yet that little blink there from the sound

13 that you heard was a startle response. This is not the

14 best time to ask for a voluntary activity, like

15 following things, because she is tired. I eventually

16 gave up on that part of the examination at that point

17 because she is so tired.

18 Q. She appears to be falling asleep?

19 A. She is.

20 Q. Is that what happened?

21 A. Yes. I do different parts of the exam and

22 substitute them in order to get the best possible exam.

23 So here would be to move into the uncomfortable part of

24 the examination that deals with touching things with the

25 cotton swab. Here, again, through every part of the






311

1 examination, she never had any trouble swallowing. No

2 gagging.

3 Q. Is gagging a reflex?

4 A. Gag is a reflex, yes. It's a sudden reflex.

5 But, also, I put the cotton swab in the back of her

6 throat there and touched the back of her throat. You

7 can see, the way she responds is to gag. It was 15

8 seconds later. If anyone put a cotton swab down the

9 back of our throat, we're not going to like it right

10 away.

11 But her, she woke up and responded to it about

12 ten or 15 seconds after the actual stimulation. And so

13 there is this persistent delay in her responding to

14 this. You see even in some of her reflexes. Her

15 aware -- her cognitive awareness on uncomfortable

16 reflexes. The gag response didn't happen immediately;

17 however, her response to that gag was a bit longer.

18 Q. She turned her head away from you?

19 A. Right. She also woke up.

20 Q. What do you mean?

21 A. Well, she woke up as part of that. What she

22 did was she turned her head visibly and voluntary away

23 from you. A person in a coma does not do that.

24 Again, I'm looking for sensation on her, the

25 way she responds to sensation on her stomach areas and






312

1 chest areas. It's very difficult to know to what degree

2 she responds there because there is poor communication

3 to her. But what was interestingly is as I went in

4 front of her stomach area, she wasn't responding. On

5 the back exam, she responded more on the back

6 examination. That can go along with some form of spinal

7 injury also.

8 Now I'm moving into the lower extremity

9 examination.

10 Q. Does she have a decerebrate posture?

11 A. No, she does not a decerebrate posture;

12 although, it's been used to describe that posture with

13 her. Decerebrate posture, the legs are straight, not

14 flexed. The feet are as they are in her, as though

15 they're pushing down, trying to step on the gas.

16 Decerebrate posture occurs in a coma patient.

17 What this woman has is very bad contractures

18 about her ankle, and those contractures have gotten

19 progressively worse over time with shortening of her

20 ankle cords that are fully extended. That causes a

21 contracture, the foot to go down and be fixed downward,

22 and that can cause injury to the cord.

23 Q. Whenever you palpate her neck, does she

24 exhibit any pain response?

25 A. Well, she does not -- she doesn't -- she's






313

1 being moved around and she is aware of that. I'm not

2 sure if that's representing a pain response at that

3 point.

4 What is interesting is I'm not able to flex

5 the neck. There I tried to bend the neck forward and

6 she doesn't flex forward. What I'm doing to her feels

7 as almost a massage.

8 We are going to come back to that neck a

9 little bit more because I clearly have not completed all

10 of my examination at that time.

11 Q. Where are we in the lapsed time?

12 A. We're at 14:23, about halfway through this

13 clip and we are about to stop. She is getting

14 transferred into her bed for more of the examination

15 there.

16 Q. This is -- the resumption time after lunch was

17 what time? What is that time code, Doctor?

18 A. This says 14 minutes and 19 seconds. This is

19 a 31-minute clip.

20 We have just returned from the one-hour lunch

21 break and we are back in the room at this point. She

22 reminds me of when you look at a person that has a

23 locked-in syndrome, which is an upper spinal cord

24 injuries or brain stem injuries, where they have so

25 little motion in their extremities. Where they sort of






314

1 lie there, more of a face without a body.

2 That's, in a lot of ways, her situation except

3 that she is partially blind as well as having trouble

4 with languages. She can't speak for herself.

5 Q. What makes you so certain she is partially

6 blind?

7 A. There are a lot of reasons. One of them is

8 that if you do a visual threat to her, she -- you have

9 to make sure whatever object you use is fairly large for

10 her to see it. If you just bring her finger quickly,

11 she won't see it.

12 Second, when you do the light examination,

13 pupilar reflex examination, put lights in her eyes, she

14 has very little response to light. And that's a typical

15 response for people who are partially blind.

16 Third, when she focuses on things, you have to

17 be 14 inches away from her for her to focus on that

18 thing. Whether the object is a ballon, a face,

19 whatever, it has to be very close. She tends to pick up

20 things off base and change light and dark off base and

21 sounds. But in order for her to actually see something,

22 you have to be very close to her.

23 Q. Is her hearing better than her eyesight?

24 A. Yes, it is.

25 Q. Resume, please.






315

1 A. Now, Mrs. Schindler walked into the room at

2 about 20 feet, and she is -- Terry is not aware of her

3 being there until she is about a foot and a half on her,

4 then she is fixating. The eyes are more open and wide

5 awake and she is fixating in that direction.

6 Her head is pretty much down. Again,

7 difficult position to be in when you can't swallow.

8 Now, there, Mrs. Schindler was putting down the gate

9 rail and Terry was following the gate rail with her

10 eyes, probably coming to changes in the light as well as

11 sound, and then brings back her attention to the mother.

12 Q. Bring back what to her mother?

13 A. Her attention to her mother. Looking at her

14 mother with her eyebrows raised. She doesn't do any of

15 that blinking activity that we saw when we gave her that

16 command to close her eyes. She is basically keeping her

17 eyes open.

18 She'll do what is typical when a person tries

19 to focus her attention on somebody. She would have her

20 eyes wide open, unblinking, and then she'll do a quick

21 catch up of blinks because her eyes dry out. And now

22 she is more caught up.

23 Q. The fact that she did not react to her mother

24 until she was fairly close to her, what information does

25 that give you about Terry's eyesight?






316

1 A. Well, Terry persistently responds to objects

2 when they are close to her, about a foot, foot and a

3 half away. That was a startle response. If you had to

4 move two feet away at one point, roughly, she doesn't

5 really catch onto it. It has to be fairly close, two to

6 three feet.

7 It's true decerebrate and decorate posture.

8 Those legs are straight, not bent like they are here.

9 Q. You mean, they would be straight and locked if

10 they were in decerebrate?

11 A. Locked and straight, correct.

12 Q. Now, does she have contractures at her knees?

13 A. She has tightness in that area. The major

14 contractures in the legs are really down here in her

15 feet.

16 You can turn it up. You should stop for a

17 second. Pass it.

18 In neurology, there is a grading scale for

19 motor strength and that grading scale is based on a zero

20 to five scale. Zero being no function of any sort.

21 One, a little tiny bit of function. You might see a

22 trace or a bit more than a trace.

23 Two is the ability to move the extremities

24 without problems of gravity. What that means is if I

25 support my elbow this way, this motion of bending my






317

1 arm -- gravity is not effecting it. Because the biceps

2 here, which contracts the muscle, and here the biceps is

3 not contracted, it's not quite the gravity.

4 So this is two out of five. Three out of five

5 is against gravity. Probably 50 percent of normal

6 strength. Three out of five or four out of feet five is

7 pretty good strength. You can fight against it, but a

8 normal person will fight the strength. And five out of

9 five is my strength.

10 Q. What are you doing?

11 A. By supporting her leg here, I'm asking her to

12 pick it up against gravity. That's asking for a three

13 out of five strength. That's quite a bit of strength

14 for the average person. We have patients walking with

15 two out of five strength with proper braces.

16 Now what I have to do is shift this so that

17 her knee is on the bed and ask her to extend without

18 effective gravity. This is not a true test of zero out

19 of five strength. But that's what we are moving to

20 here. So there a voluntary motion and what degree of

21 voluntary motion do we have in that.

22 Q. Are you ready to resume?

23 A. Yeah. Go ahead. Now, this is interesting

24 because she's doing things against me. And you cannot

25 see it, but at this point where we had talked to her,






318

1 you will see it soon on the videotape. She is doing

2 things so that she is using my physical cues of my

3 holding her leg as a physical cue pushing against me.

4 That's a voluntary action.

5 It doesn't matter where I put my hand, she is

6 pushing it against it. She is pushing against it with

7 roughly the same amount of strength that I'm exerting

8 against her. Sort of if I would squeeze somebody's arm

9 and they, in turn, squeeze my arm with the same amount

10 force. That's what she's doing to me. That's actually

11 why I sort of felt bad when I asked her to pick things

12 up. And then I felt something there that might be able

13 to be seen without the effect of gravity. That didn't

14 work. I'm still trying to effect the gravity. If I

15 have my hand underneath her lower leg. My upper hand is

16 supporting her upper leg. There's nothing in the upper

17 leg to cause the movement in the lower leg.

18 Q. Your hand was not causing movement in the

19 lowering leg?

20 A. My hands were not causing movement in the

21 lower leg.

22 But if you look at the start, knowing we will

23 get to soon, my hand cannot possibly cause movement in

24 the lower leg.

25 It took me about five minutes further on track






319

1 to figure out how I can show these exhibiting voluntary

2 motions in the lower leg that cannot contribute to me,

3 in any fashion. But this is where we are first starting

4 to notice it.

5 Q. All right. Resume please.

6 Is this her movement or your hand?

7 A. I think that's her movement at times,

8 especially right before, when I was actually looking at

9 her, that is her foot at that time. But we are going to

10 engage in other parts. One thing that should be noted,

11 though, on this is that in the movement of that right

12 leg, at one time she had sort of an aversion response.

13 And in that aversion response, her left leg

14 strengthened. And that's the important pain examination

15 we talked about, where she gets the voluntary action.

16 When I was moving her right leg -- we are off

17 the left leg now. When I was moving the right leg, I

18 still had to push against me, which I did not have to do

19 at that time with the left leg.

20 Q. You could feel her pushing against you?

21 A. Right. That's what got me going into trying

22 to put against the bed or body position.

23 Q. And you said she's weaker on her right side,

24 right?

25 A. She's weaker on her left side, as I recall.






320

1 I'm still trying to figure out how to show the from the

2 videotape, the voluntary action on the right side.

3 That's why I'm going back again.

4 Q. What is the amount of elapsed minutes, 2416?

5 Is that what it is, Dr. Hammesfahr?

6 A. Yes, it is.

7 Q. Okay. Resume, please.

8 A. You know, I move her leg around a lot. I had

9 my hand in a lot of different positions out here. So

10 it's tough to know whether it was me or them because the

11 leg is pretty much staying in position wherever my hand

12 on the lower leg has been. I see no separation in the

13 examination between my hand and the lower leg in that

14 portion of the examination.

15 It's now been five minutes. She is now

16 spastic in that area. She -- you know, you push the leg

17 into a certain position, it stays in that position.

18 This is where she starts to move voluntary.

19 Look at that.

20 Q. Is that because she is pushing against your

21 hand?

22 A. Yes. This is when I started figuring out how

23 to show it. She is voluntarily pushing against my hand

24 with the same amount of pressure that is already against

25 her. You know, she held that leg up against gravity at






321

1 that moment. Right before, it was just mixed. She is

2 pushing against me, and I'm pointing my hand to show

3 that if you suddenly release the pressure, she brings

4 that leg up and holds it there.

5 Now we're going to do something a little bit

6 different. I'm going to move my foot to the side very

7 suddenly, which allows you to, again, see more of the

8 pressure she is exerting. This is akin to me testing

9 strength on somebody pulling against their arm and

10 somebody removing my hand and having them hit themselves

11 in the face. This is the same thing you see on that

12 right now.

13 Q. That leg sprung back --

14 A. Entirely voluntary.

15 Q. Okay.

16 A. She held her leg up there at time and moved it

17 back towards the ground and then, at times, moved it

18 back up. Entirely voluntary. Look, she is going to

19 leave it that way. She's not picking it up off the bed.

20 I wondered if there is any voluntary control there at

21 all. I want to see if she would push against me like

22 she would with the other side.

23 I push her down against the bed. Not much

24 happens. She certainly doesn't hold it up in the

25 position up in the air for a while. Very brisk reflexes






322

1 of going along with the abnormality of the brain injury,

2 of the spinal cord. You know, on the right leg, she

3 held the leg for a few seconds against gravity, up in

4 the air as we all saw. She never did that with the left

5 leg that we saw during that part of the exam even though

6 they were the same types of movement, of having my hand

7 off to the side.

8 Q. That's the Babinski?

9 A. That is the Babinski, which is on the left

10 side. The left toe, pointing it up to the sky. That's

11 also Babinski, slight movement or fanning of the toes on

12 the right side. But the toe doesn't go because the

13 contracture is so severe.

14 She has cyanosis, or bluing, in the toes

15 there, which means the blood flow to that area is not

16 normal and is not good. We frequently see that in

17 patients with vasospasm in neurologic injuries.

18 Vasospasms effects all of the blood vessels in the body.

19 You will see mild bluing of the skin or some more actual

20 bluing like they are in her.

21 Q. Now, she's beginning to make a noise at this

22 point?

23 A. Right. I'm doing uncomfortable things except

24 for this Babinski.

25 Q. It is not uncomfortable?






323

1 A. It is uncomfortable, yes. Now, in the

2 decerebrate person, the person with severe spasticity,

3 you can't do that where the heel comes back along the

4 bed. You pull the leg up and the whole leg is straight,

5 so it stays off the bed.

6 On the right side, though, we saw the same

7 thing, where the heel would drop down. Then we had her

8 push against me voluntarily and she was able to push up

9 and hold the leg up and drop it down to rest.

10 I'm moving to the uncomfortable part of the

11 exam. Remember, this exam follows right after me giving

12 her commands to do things with the legs: Pick them up

13 or move them or kick out. She has clear processing

14 delay problem repetitively in this exam.

15 Q. Do you think her vocalizing, at this point, is

16 some way of communicating?

17 A. Well, she's uncomfortable, so, yes, it is a

18 form of communication.

19 I'm holding her leg up there in that test.

20 She is having some voluntary contractions of the right

21 toe. You know it's voluntary because the way it

22 happened. What happened -- what would have happened is

23 if it was involuntary, it would have flexed. When you

24 do pain responses in the lower extremities, the normal

25 response is for the person to become more rigid and more






324

1 spastic.

2 We see some other examples where you give her

3 a pinch and her arms stiffen up or straighten up. In

4 the extremity, when the extremity is spastic, the leg

5 becomes stiff. It becomes stiffer and straighter.

6 You will see, when we go into the next part of

7 exam, something completely different from reflex pain

8 response, and it follows. We're just now starting that

9 examination.

10 MS. ANDERSON: Play the next segment, please.

11 This is missing -- that is a half hour. Then play

12 the half hour after that, then. Or is that the

13 last one. Maybe I can solve it.

14 Judge.

15 THE COURT: Yes, ma'am.

16 MS. ANDERSON: Somehow, the next segment

17 didn't get copied in toto. We can play two clips

18 that come within this time period.

19 Play Hammesfahr clips nine and ten.

20 MR. FELOS: Excuse me. What was the title?

21 MS. ANDERSON: Clips nine and ten. Do you

22 want the beginning?

23 MR. FELOS: In other words, they have numbers

24 1248, 250 to 252.

25 BY MS. ANDERSON:






325

1 Q. Now, you have the stethoscope on the temples.

2 What were you doing?

3 A. What we were doing is looking for unusual --

4 we were limited in the amount of evaluations we can do

5 with her. One of things I was looking for there was

6 certain types of vascular injuries that can be heard

7 through the scope. Now, to get them, get the eyes that

8 would show you this. So I was doing back that test of a

9 physical exam, getting around the risks involved in the

10 testing. That would have been the only other

11 alternative.

12 Now, I want to talk about neck injury again.

13 You go to anybody who's normal and put your hand on back

14 of their neck here. You pick them up. You don't pick

15 up. Instead, they put their chin on their chest. Sort

16 of drive their chin in the chest.

17 Q. Now, her chin does not go down?

18 A. Her chin does not go down. My hand is

19 essentially on the back of the scull here, not on the

20 neck area. She is rigid in the upper spine area, and

21 that goes along with a neck injury. And that's

22 important for several reasons. First one is that there

23 is a change in the neurological exam. We had a person

24 essentially here that has had brain injury and probably

25 also a spinal cord injury.






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1 Q. Spinal cord or vertebral injury?

2 A. Vertebral injury, but I also suspect, from

3 other parts of my examination, spinal cord injury along

4 with it.

5 In addition, when you have a neck injury, it

6 causes irritation to the sympathetic nerves that control

7 blood flow into the brain. Much of the blood flow to

8 the brain goes in through that area. So when they're

9 damaged, you narrow the blood flow. There is a

10 restricted blood flow to the brain.

11 Our original brain injury treatment is

12 successful because these patients have whiplashes. And

13 in whiplash, itself, causes brain injury by altering the

14 blood flow patterns to the brain.

15 Q. Now, Dr. Hammesfahr, did you have an estimate

16 where her neck injury -- at what level her neck injury

17 might be?

18 A. No. Her neck injury, her whole neck is very

19 rigid, so that whole area would have to be very

20 carefully evaluated with a lot of testing.

21 Q. What kind of testing?

22 A. Flexion/extension MRIs, standard MRIs.

23 Semi-radiographs, which are motion studies of the spine.

24 MRI of the spinal cord. Electronic tests of the spinal

25 cord. Probably some sympathetic nerve blocks.






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1 I'm picking her body up off the bed and she's

2 not getting -- she's very alert, very aware of it.

3 She's not having random eye movements like you have in

4 coma patients. She is very alert and aware of it. I

5 can move her all around when I do this.

6 Q. And that's a function of how rigid her neck

7 is?

8 A. Yes, it is. There is about two and a half

9 feet or so in the upper area and probably anywhere from

10 about six inches in the shoulder area and eight inches

11 in the neck area off the bed.

12 Q. Have you ever seen that before?

13 A. I have sign it before, yes.

14 Q. In patients with neck injuries?

15 A. Yes.

16 Q. Did you examine her back?

17 A. Yes, I did.

18 Now, watch this, she is voluntarily trying to

19 keep her eyes closed by me yanking on her face.

20 Q. Would that be a reflex?

21 A. No, that is not a reflex.

22 Q. Would that be random?

23 A. No, that is not random. That is a voluntary

24 action. That is part of the physical examination. That

25 is part of the physical exam.






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1 As we have discussed before, the entire

2 left -- we have all tested, and doctors, most of us have

3 been with people, asking them to close their eyes and

4 try to open them. And the normal response, if you are

5 not being tested in the doctor's office, is to open the

6 eyes. But all of us will try to keep them closed to see

7 a slit of people.

8 Q. All right. Number ten, please.

9 A. Okay. You can stop for a second.

10 I'm testing something called doll's eyes.

11 Doll's eyes maneuvers are seen in patients in a coma.

12 They are not seen in normal patients.

13 Q. What is a doll's eye maneuver?

14 A. It's a doll's eye maneuvers, or doll's eye

15 reflexes, what it represents in coma patients, as seen

16 in all coma patients -- what it represents is --

17 Q. You said only in coma patients?

18 A. It is seen only in coma patients. To

19 understand a doll's eye maneuver, you need to understand

20 a doll. There are two kinds of dolls out there that

21 have eyes: The expensive kind and inexpensive kind.

22 The expensive kind have the eyes fixated in the skull.

23 Whichever way the head looks, the eyes pull.

24 That's very typical of people in very deep

25 coma or death, deep enough coma to be dead. Whichever






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1 way you put their head, that's their gaze direction.

2 Lower levels of coma but still coma, they are not aware

3 of their surroundings. They will show what's seen to be

4 an expensive doll's head movements or eye movements. In

5 expensive dolls, as you move the head to the right, the

6 eyes go to the left and they come back to the right.

7 Q. They never go to the right?

8 A. They don't go to the right. I mean, they do

9 go to the right on the way to midline, they don't

10 usually continue beyond midline. Then as you move the

11 head to the opposite side, the eyes' first reaction is

12 to go the opposite directions of the head movement and

13 they come back to midline.

14 Okay. In a person who's not in a coma, what

15 happens is they move your eyes and fixate wherever they

16 want. So they will look in different directions. They

17 will look at you as you move your head. They may come

18 back and look at you and then move their head somewhere

19 else, but they don't have this drifting reaction as you

20 see with an expensive doll's eye movement.

21 Q. Were you testing for doll's eyes here?

22 A. Yes, I was.

23 Q. Did you find it?

24 A. No, she does not have doll's eyes.

25 Q. Her eyes appear to be following along with the






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1 progression of her head. Is that what you observed?

2 A. Right. Other than -- as she gets to the

3 camera, she consistently focuses on the camera. And

4 looks back to the camera at times to move her head back

5 to the midline.

6 Q. Did you ever observe, when turning her head to

7 the right, her eyes went to the left in this test?

8 A. Her eyes go anywhere she wants them to go.

9 Q. Okay.

10 A. None of those maneuvers that you have just

11 seen you see in dolls -- inexpensive dolls that you see

12 in Toys-R-Us or whatever.

13 Now, look what we have next, a standard eye

14 exam using bright lights, tons of different colors to

15 see if she is more aware of certain light colors.

16 Q. Was that the end of it? So now we are going

17 to go to the next segment.

18 THE COURT: Just a question. How much more

19 time do you think you will have with this witness?

20 MS. ANDERSON: How many minutes is this? This

21 is 17.

22 THE COURT: Well, will that conclude your

23 direct.

24 MS. ANDERSON: Yes. I want to show him a clip

25 of Dr. Cranford and then I'll conclude it. The