331

1 Cranford clip is seven minutes. We actually can, I

2 think, probably eliminate this.

3 THE COURT: Well, I'm trying to gauge a break

4 and trying to gauge what your definition is when we

5 will be out of here.

6 MS. ANDERSON: Yeah, it's quarter to 4:00.

7 Let's go directly to that Cranford clip.

8 BY MS. ANDERSON:

9 Q. Is that a startle response?

10 A. Yes, that is. That is a weak one Okay. She

11 is fixated now.

12 Q. She is fixated on him?

13 A. Right. She is fixating her vision on him.

14 You can see her looking up at the eyebrows.

15 She follows him, looks like, through most of this. He

16 says, "going up. It's going up." Here it was at other

17 times. But this is an uncomfortable position for a

18 brain injured person to do. To raise the eyebrows and

19 look up is very uncomfortable.

20 Q. Is this voluntary?

21 A. Yes, this is voluntary.

22 Q. Resume, please.

23 A. Let me stop you one more minute.

24 This is extremely unusual to be able to do

25 this as after a brain injury the way she is doing it.






332

1 He is giving very rapid commands. This would be very

2 difficult for almost anybody to do, to go into a room

3 and sit down and somebody starts doing that quickly with

4 those motions. You have to be really attentive to do

5 what she's doing.

6 Q. Would it be unusual to examine a brain injured

7 person by giving commands at that pace, the pace of

8 Dr. Cranford?

9 A. That's extremely unusual to exam somebody at

10 that type of a pace. These examinations take a long

11 time. But, he's getting the responses. That's a

12 startle reflex.

13 Q. He when he raised his voice?

14 A. Right, raised it. Very quick reaction. She

15 is fixating, looking towards him. Not typical of a

16 coma. She is either visually following him or she is

17 following his verbal command. But either way, she is

18 following a command and doing something cognitively

19 aware.

20 Q. Dr. Hammesfahr, have you formed an opinion

21 within a reasonable degree of medical certainty whether

22 she is in a persistent vegetative state?

23 A. Yes, I have.

24 Q. And what is that opinion?

25 A. She is not in a persistent vegetative state.






333

1 Q. Have you also formed an opinion based on what

2 you know about her, your examination of her, within a

3 reasonable degree of medical certainty whether your

4 vasodilation therapy could help her improve?

5 A. Yes, I believe it would.

6 Q. You believe it would?

7 A. Yes.

8 Q. Now, is it possible to know what specific

9 functions would improve?

10 A. No, it's not possible to know what specific

11 functions will improve.

12 Q. Do you have confidence within a reasonable

13 degree of medical certainty that there will be -- would

14 be improvements?

15 A. I think that vasodilation, as well as other

16 therapies, are available to help her improve.

17 Q. What are other type of therapies?

18 A. I think hyperbaric would help. I think stem

19 cells would help, also, with her. I think also other

20 medical therapy would be a benefit to her also, like,

21 hormonal replacement.

22 MS. ANDERSON: I tender Dr. William Hammesfahr

23 to the Court for our next witness.

24 THE COURT: Thank you.

25 Would you like to take a break?






334

1 MR. FELOS: Yes, sir, I would like to take a

2 short break.

3 THE COURT: Well, I don't know what your

4 definition of short is. We're going to take 15

5 minutes. Okay, sir. Thank you very much.

6 Doctor, once again, please don't discuss the

7 case. We will be back in 15 minutes.

8 (Whereupon, a short recess was taken after
which

9 the following proceedings transpired:)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25






335

1

2 IN THE CIRCUIT COURT OF THE
SIXTH JUDICIAL CIRCUIT IN AND FOR
3 PINELLAS COUNTY, FLORIDA
PROBATE DIVISION
4

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

9 Petitioner/Appellee,

10 vs.

11 ROBERT SCHINDLER and MARY SCHINDLER,

12 Respondents/Appellants.
________________________________________________//
13

14 BEFORE: The Honorable GEORGE W. GREER

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

17 DATE: October 14, 2002

18 TIME: All day

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

21 ___________________________________________

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






336

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

2

3 GEORGE J. FELOS, ESQUIRE
595 Main Street
4 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






337

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

2 THE COURT: Doctor you are still under oath.

3 CROSS-EXAMINATION

4 BY MR. FELOS:

5 Q. Dr. Hammesfahr, you claim that you have

6 treated a number of patients who were in the same or

7 worse neurological condition than Mrs. Schiavo and that

8 your therapies have improved their neurological

9 condition.

10 A. Yes, they have.

11 Q. Is there anything that you can provide me or

12 provided the court, other than your testimony, which

13 would support the claim?

14 A. Well, there are videotapes of patients in that

15 condition with neurological problems. There may be

16 medical records that are fashioned that would be able to

17 properly illustrate that. Those are the only things I

18 can think of at this time.

19 Q. Do you recall, I took your deposition just a

20 couple weeks ago. I think it was September 30 of this

21 year.

22 A. Yes, I do.

23 Q. And I asked you the following question and you

24 answered. Reading from page 12, line five.

25 "Okay. Your testimony at our hearing in July,






338

1 you reference a number of patients in a condition the

2 same or worse than Terry Schiavo that you have assisted

3 by virtue of your therapy. Do you have -- is there

4 anything that you can provide other than your testimony

5 to support that?"

6 Ms. Anderson interjected within an objection.

7 "You mean within the bounds of Florida law?"

8 I said "No."

9 Question: "Is there anything that you can

10 provide me to support your claim?"

11 And your answer is on page 13 line seven.

12 MS. ANDERSON: Excuse me. There is another

13 question and answer that needs to be included. He

14 is trying to give an answer to a question that is

15 different than the question.

16 MR. FELOS: It's not different, but I would be

17 happy to read it anyway, Your Honor.

18 BY MR. FELOS:

19 Q. "Answer: The number of patients that we treat

20 that are in bad neurological condition; is that what you

21 are asking for?"

22 Question: "No. You made a claim, and correct

23 me -- if you didn't make a claim, correct me. I believe

24 that you claimed that you treated -- I think you either

25 said less than 100 or less than 50. You didn't give an






339

1 exact number of patients who were in the same or worse

2 neurological condition than Teresa Schiavo and your

3 therapy have improved their neurological condition."

4 Answer: "The same or worse clinical

5 situation, clinical exam situation as Ms. Schiavo is the

6 point I think I was trying to reach there."

7 Question: "Now, my follow-up question is:

8 Other than your testimony to that effect, is there

9 anything that you can provide me to support that claim?"

10 Answer: "We have never kept records of

11 patients that would allow us to go back and identify the

12 specific neurologic state of the patient at the time of

13 starting treatment and later on following on treatment,

14 so I don't believe so."

15 Do you recall giving that answer?

16 A. Yes, I do.

17 Q. Can you explain why, that two weeks ago --

18 MS. ANDERSON: Can you ask Dr. Hammesfahr to

19 continue his answer in this deposition? He only

20 read part of the answer.

21 THE COURT: Well, he is -- you will have an

22 opportunity on rebuttal to bring that up. It

23 appears -- did you read the complete answer?

24 MR. FELOS: Yes. We went on to a different --

25 MS. ANDERSON: No. He says "Now, let me be






340

1 clear." Dr. Hammesfahr says, "Now, let me be

2 clear." He is going on.

3 BY MR. FELOS:

4 Q. I will continue reading. Would you read back

5 my response to that. Court reporter reads back the

6 response.

7 Answer: "Going back to this, we, of course,

8 maintain medical records from the standpoint of

9 neurological evaluation during the course of our care.

10 But the ability to generate easily those sorts of

11 statistics that you are asking for, I don't think I can

12 do. In fact, I'm sure I can't."

13 Do you remember those questions and answers?

14 A. I remember that answer.

15 Q. Now, can you explain why less than two weeks

16 ago you stated that you couldn't provide anything other

17 than your testimony to support your claim?

18 MS. ANDERSON: Objection; that

19 mischaracterizes his testimony.

20 MR. FELOS: I don't believe it does, Your

21 Honor.

22 THE COURT: Overruled.

23 BY MR. FELOS:

24 Q. Can you explain, sir, why less than two weeks

25 ago you said there was nothing other than your testimony






341

1 you could use to support your therapy and that your

2 testimony today is something different?

3 A. Well, no. Your question today was do I have

4 any evidence that I have treated patients as bad or

5 worse than Ms. Schiavo clinically. Yes, we do have

6 that. The question two weeks ago dealt with statistics,

7 numbers. We don't have the ability to go back and pull

8 out numbers, but we certainly have evidence, videotapes

9 of patients that are in very bad shape that have had

10 quite a bit of improvement.

11 Q. Well, sir, my question is nothing about

12 statistics. I mentioned nothing about statistics. I

13 said, again, is there anything that you can provide

14 other than your testimony to support that, and you said

15 I don't believe so.

16 A. Again, can we go back and read some more of

17 that. Can I have a copy of that deposition? Because I

18 think that you're mischaracterizing in one sentence --

19 we'll probably about a page and a half. Your comments

20 and questions at that time dealt with statistics and

21 numbers, 50, which, of course, is less than 100. It was

22 responded to properly in that fashion.

23 We have no way to go and pull out the

24 statistics. However, individual cases, certainly we

25 have some individual cases, videotapes that can be






342

1 shown.

2 Q. Dr. Hammesfahr, do you recall -- you were

3 served with a subpoena that I issued in this cause, and

4 I commanded you to bring with you today, in the event

5 you testify in this matter, all letters, papers,

6 documents or other materials of the Nobel Committee for

7 Physiology and Medicine or from any other parties or

8 sources that support your claim that you were accepted

9 by the Karalinski Institute as nominated for the Nobel

10 Prize in Medicine and Physiology, and all letters,

11 papers, documents or materials received from or directed

12 to come from Congressman Michael Bilirakis or his office

13 pertaining to in any way to the alleged nomination.

14 What documents have you brought with you today

15 in response to that subpoena?

16 A. I have brought the file.

17 Q. Excuse me?

18 A. I have brought the file.

19 Q. Can you show that to me, please?

20 MS. ANDERSON: Your Honor, this is -- I

21 believe I'm going to have to object. I have not

22 mentioned the Nobel on direct. He is not appearing

23 before you here as a Nobel nominee. You heard his

24 credentials and various testimony.

25 Mr. Felos is either trying to prove that he






343

1 was nominated, in which case we are stipulating, or

2 he is trying to prove that he wasn't or should not

3 have been nominated by Congressman Bilirakis. And

4 in which case, he needs to take that up with

5 Bilirakis, not with this witness.

6 In any case, this is a collateral matter that

7 is not germane to the issues in this case. It is a

8 strong-man issue.

9 MR. FELOS: Your Honor, how can this be a

10 collateral matter? This witness has filed an

11 affidavit in this cause promoting himself as a

12 Nobel nominee whose nomination was accepted in the

13 Nobel prize. It goes to his credentials.

14 This is cross-examination. We heard about

15 some of his accolades and articles and achievements

16 on direct examination. Of course I have a right to

17 cross-examine him as to his credentials, and to not

18 only the credentials that he has publicized, but

19 publicized specifically in this case.

20 THE COURT: Well, he did not publicize them

21 today, assuming my memory is good.

22 MR. FELOS: Well, Your Honor, the fact that he

23 didn't mention or the question wasn't asked on

24 direct examination certainly doesn't mean on

25 cross-examination, I can't ask him about his -- I






344

1 can't ask him about his credentials and his claim

2 for his credentials.

3 MS. ANDERSON: He doesn't claim.

4 THE COURT: My guess is he doesn't have a law

5 degree, either.

6 MS. ANDERSON: What is that?

7 THE COURT: A law degree.

8 MR. FELOS: Well, Your Honor, he didn't claim

9 he was nominated for the Nobel prize in law. He

10 claimed he was nominated for Nobel prize in

11 medicine, as well, Your Honor, as well he has

12 issued a report. He has issued a report in the

13 case which was also --

14 MS. ANDERSON: There is nothing in --

15 THE COURT: Well, now.

16 MR. FELOS: Let me finish my statement.

17 This is the medical report that this Court

18 ordered each of the doctors to file in this case,

19 to prepare and file a written report of their

20 examination of Teresa Schiavo. The report that he

21 filed lists on his letterhead, "Nobel nominee,

22 1999, for advancements in stroke and brain injury

23 treatment."

24 This is his report of his examination of

25 Terry Schiavo. This is the affidavit that he






345

1 signed in an attempt to induce the Court to vacate

2 the judgment. I have wide latitude on

3 cross-examination. And in addition to that, Your

4 Honor, in addition, as he stated in his deposition,

5 we basically have to take his word for his claim

6 that these treatments are effective.

7 THE COURT: All right. Based on the fact that

8 it being on the report, I'm going to allow you to

9 examine him on whether or not he was, in fact,

10 nominated. I think he gave you his answer. If the

11 nominator, perhaps, should not have done that,

12 that's between you and the nominator.

13 MS. ANDERSON: Your Honor, I have not put that

14 report into evidence.

15 THE COURT: No, you have not.

16 MS. ANDERSON: That's not an exhibit.

17 THE COURT: It's in the court file, I assume.

18 MR. FELOS: Yes, it is, Your Honor.

19 THE COURT: The affidavit he references is in

20 the court file. So my guess is you could impeach

21 the witness on any prior inconsistent statement.

22 MR. FELOS: Yes, Your Honor.

23 MS. ANDERSON: Well, Your Honor, it has to be

24 sworn by.

25 MR. FELOS: No, it does not. But the fact is






346

1 it's relevant to my cross-examination.

2 THE COURT: I'm going to let you go down that

3 slope, briefly.

4 BY MR. FELOS:

5 Q. Can you show me the documents produced

6 pursuant to your subpoena? Thank you.

7 A. You will need these, also (tenders documents.)

8 Q. Thank you. If you can keep those handy.

9 MS. ANDERSON: You know, Judge, this is why

10 Mr. Felos should not be permitted to go down this

11 rabbit trail. He wants to prove that

12 Congressman Bilirakis should not have nominated

13 Dr. Hammesfahr. This is a totally collateral

14 matter.

15 THE COURT: Did everybody forget what I just

16 said about he is not going to go down a road to try

17 to determine that the nominator made a mistake? So

18 why are you bringing it up, Ms. Anderson?

19 MS. ANDERSON: Because of the documents he

20 just showed me. They come from

21 Congressman Bilarakis's office, some of which

22 Dr. Hammesfahr never even seen.

23 THE COURT: Well, if he tries to use them, you

24 may object.

25 MS. ANDERSON: Right now, I'm objecting.






347

1 THE COURT: All he's trying to do is hand them

2 to you. Why don't you let him hand them to you and

3 then you can decide whether or not to use them.

4 MS. ANDERSON: Well, let me see them.

5 (Tenders document.)

6 I think this is incomplete, from my

7 recollection. Your Honor --

8 THE COURT: What?

9 BY MR. FELOS:

10 Q. Dr. Hammesfahr, I want to show you what's been

11 marked as --

12 THE COURT: Mr. Felos, just a moment.

13 MS. ANDERSON: My objection is that's a wholly

14 improper dispositive statement. It comes from a

15 third party, namely Congressman Bilarakis's office.

16 It contains materials not addressed to nor from

17 Dr. Hammesfahr. And it is an improper attempt to

18 attack this man's character.

19 This is the rabbit trail and I object. These

20 are relevant and immaterial. I'm filing 608, 609

21 and 610.

22 THE COURT: You can't use hearsay to say does

23 this refresh your recollection about whether or not

24 something happened? He either does or he doesn't.

25 That's what's wrong with that?






348

1 MS. ANDERSON: He has to say that he needs his

2 recollection refreshed. He doesn't have a

3 recollection. These are not documents addressed to

4 him nor did they come from him.

5 THE COURT: Maybe the predicate hasn't been

6 laid. But the fact that the documents, in your

7 opinion, are hearsay doesn't mean they can't be

8 used for certain reasons. There are 24 exceptions

9 to the hearsay rule.

10 MS. ANDERSON: Sure. What would this

11 exception be?

12 THE COURT: Beats me. Let's see what he

13 intends to try to do with it. That's why you

14 objected six, eight minutes ago.

15 MS. ANDERSON: Judge, we need to have this --

16 it should not be a composite exhibit admitted. He

17 should not be putting all that together on the

18 lecturn. It should be one document at a time.

19 THE COURT: Ms. Anderson, I don't ask

20 Mr. Felos whether or not your handing a witness a

21 bunch of documents is good or bad. It depends on

22 what the lawyer wants to do with them. He has yet

23 to ask a question. You have objected half a dozen

24 times. Why don't you wait and see what he's trying

25 to illicit.






349

1 MS. ANDERSON: I can't image what

2 unobjectionable questions he will ask, but I will

3 certainly listen.

4 THE COURT: Okay. Stranger things have

5 happened.

6 BY MR. FELOS:

7 Q. Dr. Hammesfahr, have you received that packet

8 of information, which is Petitioner's Exhibit 5, within

9 the last two or three days?

10 A. I don't recall seeing this package in the last

11 two or three days.

12 Q. Okay. Thank you.

13 Dr. Hammesfahr, do you have privileges at

14 Edward White Hospital?

15 A. To the best of my understanding.

16 Q. Have you received any information recently

17 that leads you to question the accuracy of that

18 statement?

19 A. I received nothing from Ed White Hospital.

20 Q. I didn't ask you if you received anything from

21 Edward White Hospital. I asked you if you received any

22 information from anyone that leads you to question that

23 statement?

24 A. I received nothing from Ed White Hospital or

25 any matters of activity between Ed White Hospital and






350

1 myself. Ed White has not sent me anything. Anything

2 else will have to be verified independently.

3 Q. Sir, that's not what I asked you. I asked

4 you: Have you received any information from anyone

5 recently that leads you to question the accuracy of your

6 statement that you have privileges at Edward White

7 Hospital?

8 A. I don't question the accuracy of the

9 statements that I have privileges at Ed White Hospital.

10 Q. So you received no information from anyone

11 that leads you to question -- recently that leads you to

12 question the accuracy of that statement; is that fair to

13 say?

14 A. I never received anything from Ed White

15 Hospital that leads me to question it.

16 THE COURT: Doctor, the question requires a

17 yes or no answer, sir.

18 THE WITNESS: Your Honor, I received something

19 from Mr. Felos about two weeks ago in a deposition

20 that he carried out in my office. I don't know the

21 validity of that document.

22 THE COURT: The answer just requires a yes or

23 no.

24 THE WITNESS: What is the answer -- I mean the

25 question.






351

1 THE COURT: Have you received any information

2 that would cause you to, perhaps, question whether

3 or not you have privileges at Edward White

4 Hospital?

5 THE WITNESS: Again, he only provided me with

6 a document that I have never seen before in a

7 deposition, and that's the only thing that I have

8 knowledge that might make me wonder what my

9 privileges are there. I have never received

10 anything from Ed White Hospital that I'm aware of.

11 BY MR. FELOS:

12 Q. So the document that you are referring to that

13 was given to you at your deposition causes you to wonder

14 whether you have privileges there; is that correct?

15 A. No. I'm saying that my understanding is that

16 I have privileges at Ed White Hospital. I have not

17 received anything from Ed White Hospital different from

18 that.

19 Q. Do you recall, again, from your deposition, on

20 page 15, line 12 -- I'm reading from line eight.

21 Question: "Were you asked to leave or

22 asked -- were you in any way asked to terminate your

23 privileges there?" We were talking about Ed White

24 Hospital.

25 Your answer: "No."






352

1 Question: "Okay."

2 Answer: "Again, I thought that I still had

3 privileges there."

4 Do you recall giving that answer?

5 A. Well, you're taking, again, a single line out

6 of an hour-long deposition. I think we should put the

7 whole thing back into context.

8 Q. No. I'm asking you about this answer. You

9 answered, "I thought I still have privileges." Does

10 that answer -- would you agree that answer would lead

11 one to think that you may not have privileges there?

12 A. I might have at that moment.

13 Q. Thank you, sir.

14 What is the -- when is the last time that you

15 reapplied for privileges at Ed White Hospital?

16 A. I'm not aware that a reapplication process is

17 necessary for privileges at Ed White Hospital. I have

18 not applied at Ed White Hospital, if there is such a

19 process, for many years.

20 Q. Dr. Hammesfahr, is it true that your medical

21 practice is on a cash rather than reimbursement basis?

22 A. Yes, it is.

23 Q. So your patients have to pay you up-front; is

24 that correct?

25 A. Yes, they do.






353

1 Q. And you don't submit to Medicare?

2 A. No, we don't.

3 Q. And you are no longer a Medicare provider, are

4 you?

5 A. I'm not aware of not being a Medicare

6 provider.

7 Q. Is it a fact, sir, that you're no longer a

8 Medicare provider because Medicare cut off your funding

9 in 1999?

10 A. Again, I am not being a Medicare provider.

11 That's not what I have been told by my attorneys. I

12 don't think that's true.

13 Q. Did Medicare cut off your funding in 1999?

14 A. What do you mean by that?

15 Q. Do you understand what cutoff funding means?

16 A. No.

17 Q. That Medicare would no longer pay you for

18 services rendered to Medicare patients.

19 A. No, Medicare has never cut off my funding and

20 made my a non-provider to it.

21 Q. Sir, did you write two letters, one on about

22 May 4, 1999, and again on April 13, 2000, to

23 Congressman Bilirakis, telling him that your Medicare

24 funding was cut off?

25 A. I'd like to see the letters.






354

1 Q. Sure. In Petitioner's Exhibit 5, the first

2 letter is bate stamped. Those are the stamps in the

3 lower right-hand corner. One is stamped six and the

4 other is stamped 21.

5 A. So do you want me to take these two out of the

6 packet?

7 Q. No. My question was -- well, first.

8 You looked at the letters bate stamped

9 Petitioner's 6 and 21 of the Petitioner's Exhibit 5?

10 A. Yes.

11 Q. Sir, were those letters offered by you and

12 signed by you and sent to Congressman Bilirakis?

13 A. Yes, they were.

14 Q. And my question was: In those letters to

15 Congressman Bilirakis, were you writing him and

16 informing him that your Medicare funding was cut off?

17 A. No. That's a mischaracterization of these

18 letters.

19 Q. Sir --

20 MR. FELOS: Your Honor, I'd move to introduce

21 these letters into evidence. These are

22 Petitioner's Exhibit 5, bate stamped six and 21.

23 MS. ANDERSON: And I object. Let me read from

24 Professor Erhardt. He has bootstrapped. He has

25 attempted to refresh the recollection of the






355

1 witness, and Professor Erhardt says "the testimony

2 is from the memory of the witness and not from the

3 writing or the document because the document is not

4 offered into evidence."

5 MR. FELOS: Your Honor, this is Section 614,

6 impeaching a witness by a prior inconsistent

7 statement. "If a witness denies making or does not

8 essentially admit making the prior inconsistent

9 statement, intrinsic evidence of such statement is

10 admissible." That is also by Professor Erhardt.

11 Your Honor, if the witness does not admit the

12 inconsistent statement, then the rule provides that

13 extrinsic evidence of such statement is admissible.

14 MS. ANDERSON: And how is this relevant?

15 MR. FELOS: It's relevant for impeachment. I

16 asked him did he write these letters to

17 Congressman Bilirakis to inform him that Medicare

18 funding had been cut off. He said no. Let's

19 introduce them into evidence, read the statement.

20 And if he wants to explain it at that time, he has

21 an opportunity to do so.

22 THE COURT: Well, until they come into

23 evidence, how do I know that it's a prior

24 inconsistent statement?

25 MR. FELOS: Excuse me, Your Honor?






356

1 THE COURT: If it doesn't come in, how do I

2 know it's a prior inconsistent statement? Don't

3 you have another step to go through?

4 MR. FELOS: No, Your Honor. No, Your Honor.

5 THE COURT: I mean, all I have is your word

6 that it's a prior inconsistent statement.

7 MR. FELOS: I'll read the -- however, if the

8 witness denies making it, then I have the -- I am

9 permitted to introduce it into evidence and then

10 the witness can explain his answer if he feels it's

11 inconsistent. Or, if Your Honor wishes, I will

12 read it.

13 THE COURT: The witness did not deny authoring

14 the letters, Mr. Felos.

15 MR. FELOS: That's correct, Your Honor. He

16 denied making the statement.

17 THE COURT: He says that he did not -- that

18 the letters do not make the statement that his

19 Medicare funding has been cut off.

20 BY MR. FELOS:

21 Q. Dr. Hammesfahr, did you write

22 Congressman Bilirakis - and I'm looking at the letter

23 bate stamped number six - and say "after our request for

24 policy review --

25 A. Excuse me. This is a three-page letter. Can






357

1 you direct me a little more to where you are looking at?

2 Q. Yes. This is second page, midway in the

3 second paragraph.

4 "After our request for policy review,

5 Dr. Sewell, of First Coast, the agency which is --

6 A. Hold on. Let me find this.

7 THE COURT: Don't read quite so fast,

8 Mr. Felos. You may break her machine.

9 THE WITNESS: Okay.

10 BY MR. FELOS:

11 Q. "After our request for policy review,

12 Dr. Sewell of First Coast, an agency which was

13 subcontracted by Florida Medicare to carry out the

14 physician audits, public policy review, and handle

15 Medicare issues, has decided this should be considered

16 an investigational therapy. He has written a letter

17 stating that they will not pay for this therapy in the

18 future."

19 A. The bottom line -- the next line. "Through

20 discussions with him, we learned that Medicare has been

21 paid --

22 THE COURT: Doctor. Doctor. Doctor. Now,

23 please, let the lawyer question and then you

24 answer.

25 THE WITNESS: I'm sorry.






358

1 BY MR. FELOS:

2 Q. The next line from the bottom. "Personally,

3 this decision also means that I am no longer able to

4 accept Medicare insurance."

5 And on bate stamp 21, in the April 13, 2000

6 letter, does it state -- and this is the next to the

7 last line of the first major paragraph. "In very short

8 order, as you are aware, he stopped approval of this

9 therapy for my patients or for patients in the state of

10 Florida."

11 Did you write that to Congressman Bilirakis?

12 A. Can you direct me to where that is on that?

13 I'm on page 22.

14 Q. On page 21.

15 A. Thank you. Can you direct me to that, again?

16 Q. Yes. It's the one, two, fourth paragraph,

17 starting on the next to the last line.

18 A. Correct.

19 Q. "In very short order, as you were aware, he

20 stopped approval for this therapy for patients in the

21 state of Florida."

22 A. Correct.

23 Q. Now, we do agree, sir, that you are saying in

24 this letter that Medicare has cut off your funding?

25 "They will not pay for this therapy in the future. This






359

1 decision means I'm no longer able to accept Medicare

2 insurance."

3 A. Are you reading from that? Are you reading

4 that line or is that your question?

5 Q. My question is: You testified that you didn't

6 write Congressman Bilirakis and tell him that your

7 Medicare funding was cut off?

8 A. Correct.

9 Q. And in light of your statements, do you have

10 an explanation?

11 MS. ANDERSON: Wait a minute. That

12 mischaracterizes Dr. Hammesfahr's testimony. He

13 didn't say that. He said that his Medicare funding

14 hasn't been cut off. He never said he didn't write

15 those letters. He did write those letters. The

16 problem got resolved. So Mr. Felos is attempting

17 to mislead the Court through his questions and I

18 move to strike it because there is no basis for

19 that question.

20 THE COURT: He testified that his Medicare

21 funding had never been cut off and, yet, what he

22 has been read out of these letters would lead most

23 anyone to believe that it had. Now, maybe it's

24 been reinstated. But the question had to do with

25 whether or not he advised a Congressman in 1999 and






360

1 2000 that it had been cut off.

2 MS. ANDERSON: He is trying to mislead the

3 Court in thinking that Dr. Hammesfahr cannot accept

4 Medicare and Medicaid patients. That is not the

5 case. He's never put a time qualifier on those

6 questions. But let Dr. Hammesfahr answer those

7 questions because he knows what the situation is.

8 MR. FELOS: Your Honor, I'm not trying to

9 mislead anybody.

10 THE COURT: Excuse me, Mr. Felos.

11 Dr. Hammesfahr can answer in rebuttal if he needs

12 something cleared up. But the question before the

13 court is whether or not he told

14 Congressman Bilirakis by letter that his funding

15 had been cut off.

16 Now, I was clearly asleep at four o'clock this

17 morning. If you ask me was I asleep at

18 four o'clock this morning and I say, no, I'm awake

19 now, that's not responsive. So if there is a

20 second part to this story, I'm sure you will fill

21 it in.

22 MS. ANDERSON: Judge, the question he asked

23 Dr. Hammesfahr was "has your Medicare funding been

24 cut off."

25 MR. FELOS: Absolutely not. That was not my






361

1 question.

2 THE COURT: I don't think that was the

3 question. The question was, was it cut off in

4 1999.

5 MR. FELOS: No. My question was did you write

6 Congressman Bilirakis.

7 MS. ANDERSON: He just asked the question, has

8 your Medicare funding been cut off; you are a

9 cash-only doctor, right. So that's why he is

10 succeeding in confusing the issue, Judge.

11 THE COURT: The Court is not confused and I

12 don't think the witness is confused. The question

13 had to do with was it ever cut off and did you tell

14 anybody in '99 it had been. The answer was no.

15 And then we got to the letters and he stated

16 testimony out of the letters.

17 If there was a story in 2001, my guess is I

18 will hear about that in rebuttal and that's the

19 time to do it.

20 MR. FELOS: All right. Your Honor, may I

21 renew my -- at this point in time, I move to

22 introduce these two letters into evidence. That's

23 the letter of 8/6 and bate stamp six.

24 THE COURT: Why don't you ask him again?

25 THE WITNESS: Isn't there a question that is






362

1 still pending?

2 MR. FELOS: Which is number six and exhibit

3 five, and also, number 21.

4 THE COURT: Why don't you ask him again the

5 same question on each of those exhibits.

6 BY MR. FELOS:

7 Q. Sir, do you have any explanation to explain

8 your prior testimony and the statements that you made?

9 A. Certainly.

10 Q. Okay. What is it?

11 A. You asked if my Medicare funding was ever cut

12 off. My Medicare funding was never cut off. The

13 Medicare payment from this program back in 1999 through

14 reviews that happened in 2001 was stopped. It was

15 labeled "for investigation".

16 Then, in November of 2001, the reviews, as

17 this letter discusses, were completed and Medicare, once

18 again, was directed to pay federal funds for this

19 therapy. So, my Medicare funding was never cut off. I

20 was never band through the Medicare system. I've never

21 been made a non-provider through the Medicare system.

22 MR. FELOS: Your Honor, I move to introduce

23 those letters into evidence.

24 MS. ANDERSON: Your Honor, I think it is a

25 collateral matter and it's certainly in the content






363

1 to use them. And, of course, they have to be given

2 separate and individual exhibit numbers.

3 THE COURT: Of course, they will.

4 MS. ANDERSON: I think Mr. Felos is trying

5 to --

6 THE WITNESS: But I may not be totally clear

7 on this, though, because other treatment for the

8 patients was certainly allowed and payment was

9 allowed.

10 THE COURT: So you're saying because they

11 would have paid you on ten out of 20, it was never

12 cut off. You don't consider the ten they wouldn't

13 pay on you cut off. Is that what you're talking

14 about?

15 THE WITNESS: He said a blanket statement, was

16 the Medicare funding ever cut off.

17 THE COURT: He asked you if your Medicare

18 funding was ever cut off.

19 THE WITNESS: What do you mean by that?

20 THE COURT: Well, what is ambiguous about the

21 phrase "Medicare funding?" Did you ever lose your

22 ability to collect from Medicare?

23 THE WITNESS: I have never loss the right to

24 bill or collect from Medicare.

25 THE COURT: Now, you just told us on some of






364

1 this stuff you did. You said they said it was

2 investigatory and they wouldn't pay. So what you

3 could collect for in '98, you couldn't collect for

4 in '99, could you, in toto?

5 THE WITNESS: That is for certain procedures.

6 THE COURT: I understand that.

7 THE WITNESS: Yes, for certain procedures.

8 THE COURT: So you were cut off for some

9 Medicare funding, were you not?

10 THE WITNESS: Medicare funding for this prior

11 was cut off around 1999.

12 THE COURT: Okay. You couldn't have said that

13 earlier, up front.

14 THE WITNESS: Well, he said "cut off." I

15 interpret that as not being able to bill Medicare,

16 not being able to collect Medicare, and placing me

17 in a non-physician or non-provider status to the

18 Medicare program, which was never the situation.

19 THE COURT: For that treatment you certainly

20 were, were you not?

21 THE WITNESS: That treatment was put on

22 Medicare non-payment around 1998 or '99.

23 MS. ANDERSON: Your Honor, I think that the

24 doctor is making a distinction between Dr. William

25 Hammesfahr as a provider and --






365

1 MR. FELOS: Your Honor, I object. Opposing

2 counsel doesn't have the right to testify.

3 THE COURT: Mr. Felos, she certainly has a

4 right to object. Doesn't she?

5 MR. FELOS: I didn't hear any objection.

6 THE COURT: Well, you know, we are kind of

7 making a mountain out of a molehill. There's no

8 question based upon the Court's dialog with the

9 witness that for a period of time - I have no idea

10 how long - he couldn't bill for the treatment we

11 are talking about in this proceeding. Why that

12 couldn't have been a yes, you know, it was cut off

13 for some but not for all. I was never blacklisted,

14 but I couldn't do this. You know, blanket no is

15 not a good answer, I don't think.

16 MR. FELOS: Exactly, Your Honor, that's why I

17 have a right to impeach.

18 THE COURT: Well, it's been done.

19 MR. FELOS: And I move to introduce these two

20 documents in evidence.

21 THE COURT: He admitted making the statements

22 to Congressman Bilirakis. So whatever the value of

23 the prior inconsistent statements are, it's in the

24 records. I don't know if he is -- I'm sure they

25 cover a whole lot more than what the impeachment is






366

1 all about. One of them is a three-page letter, and

2 you quoted, I think, one paragraph, so I will have

3 the rest.

4 BY MR. FELOS:

5 Q. Dr. Hammesfahr, would you agree that you

6 market yourself rather aggressively?

7 MS. ANDERSON: Objection. That's pretty

8 vague.

9 THE COURT: Well, let's see if he can answer

10 it.

11 MS. ANDERSON: I'm sorry?

12 THE COURT: Let's see if he can answer that.

13 I don't know if it's vague or not.

14 THE WITNESS: I don't think I market or

15 promote myself aggressively, no.

16 BY MR. FELOS:

17 Q. Sir, do you still claim that you were

18 nominated for a Nobel Prize in Medicine and Physiology

19 in 1999?

20 A. Yes, I do.

21 Q. Do you still claim that you were -- your

22 nomination was accepted by the Karolinski Institute in

23 Stockholm for the Nobel Prize in Medicine and

24 Physiology?

25 MS. ANDERSON: Your Honor, this is the rabbit






367

1 trail that I spoke of earlier. He wants to prove

2 that Dr. Hammesfahr should not have been nominated

3 for the Nobel by Congressman Bilirakis. This is

4 totally collateral on a matter that I didn't raise

5 in direct. And I recognize on cross he has a

6 little bit of latitude to go beyond the scope of

7 direct, but this is a rabbit trail.

8 THE COURT: Ms. Anderson, for the third time:

9 He is not going to get into whether or not

10 Congressman Bilirakis nominated him.

11 BY MR. FELOS:

12 Q. My question was, sir: Do you still contend

13 that your nomination in 1999 for the Nobel Prize in

14 Medicine and Physiology was accepted by the Karolinski

15 Institute in Stockholm?

16 A. That is my understanding.

17 Q. That's your understanding.

18 Sir, you recall we made reference to your

19 affidavit previously filed in this case. Are you

20 familiar with that affidavit?

21 A. I would be happy to refresh my memory.

22 MS. ANDERSON: Which affidavit, Mr. Felos? Is

23 this the May 6, 2000 affidavit?

24 MR. FELOS: This is the May 6, 2000, yeah.

25 BY MR. FELOS:






368

1 Q. Let me backtrack a couple questions. I think

2 you made that statement that you don't believe you

3 aggressively promote yourself. Did you actively and

4 aggressively promote your claim that you're a Nobel

5 nominee whose nomination was accepted?

6 MS. ANDERSON: Objection, Your Honor. This is

7 irrelevant, and I don't know the scope of the

8 rabbit trail.

9 MR. FELOS: It is very relevant, Your Honor,

10 for a number of reasons.

11 THE COURT: Well, I think one of the issues is

12 the use of the word, again, aggressively, actively

13 and aggressively. I'm not sure either one of those

14 words define that in the law, so may be you could

15 choose some different words.

16 MR. FELOS: I will rephrase that.

17 BY MR. FELOS:

18 Q. Is it true, Dr. Hammesfahr, that you actively

19 promoted your claim that you are a Nobel nominee?

20 MS. ANDERSON: Objection; argumentative.

21 THE COURT: The use of the word claim, I will

22 sustain it.

23 BY MR. FELOS:

24 Q. Is it true that you promoted your claim that

25 are a Nobel nominee?






369

1 MS. ANDERSON: Objection; argumentative.

2 THE COURT: Mr. Felos, what don't you

3 understand about the word claim being

4 argumentative?

5 BY MR. FELOS:

6 Q. Is it true that you actively promoted the fact

7 that you are a Nobel nominee whose nomination was

8 accepted?

9 A. What, that I actively promote my claim that I

10 am a Nobel nominee?

11 MS. ANDERSON: No.

12 THE COURT: That's the question, Doctor.

13 BY MR. FELOS:

14 Q. Yes, that's the question. Did you actively

15 promote the fact that -- have you actively promoted the

16 fact that you're a Nobel nominee?

17 A. What you do you mean by the word "actively."

18 Q. Do you not understand the word actively?

19 A. I don't understand it in this context. Is

20 there a frequency related to that?

21 Q. I will rephrase it.

22 Do you promote the fact that you are a Nobel

23 Prize nominee?

24 A. I identify with the fact that I am a Nobel

25 Prize nominee, yes.






370

1 Q. In fact, you identify it on your office phone

2 when people call in; isn't that correct?

3 A. Yes, I do.

4 Q. Would you agree that's a fairly aggressive

5 marketing of your Nobel nomination?

6 MS. ANDERSON: Objection; argumentative.

7 THE WITNESS: No. I do not think that's an

8 aggressive promotion of the nomination.

9 THE COURT: I will permit it.

10 BY MR. FELOS:

11 Q. And will you agree that you utilize

12 Congressman Bilarakis's letter of nomination in your

13 promotion of your Nobel nomination?

14 MS. ANDERSON: Excuse me. Would you read that

15 question back.

16 (Whereupon, the requested portion was read
back

17 by the court reporter.)

18 MS. ANDERSON: Objection. That question

19 assumes that his promoting his nomination is

20 without foundation. It's argumentative and it's

21 almost unintelligible. I don't think he said what

22 he meant to say. Perhaps he can rephrase it.

23 THE COURT: Who is he?

24 MS. ANDERSON: Mr. Felos. If he can rephrase

25 that question. He talked about Dr. Hammesfahr






371

1 promoting his nomination.

2 THE COURT: Right.

3 MS. ANDERSON: I don't think that's what he

4 meant to say. A nomination is only good for one

5 year. That was three years ago. I don't think

6 that's what he intended to say.

7 MR. FELOS: Perhaps we can ask the witness if

8 he understood that question, Your Honor.

9 MS. ANDERSON: In any event, it's an

10 argumentative question.

11 THE COURT: I don't know that it's

12 argumentative, but I'm not sure where it's going.

13 Let's see if we can get there.

14 BY MR. FELOS:

15 Q. Sir, is it a fact that after your Nobel

16 nomination, you prepared advertising or promotional

17 packets which included the letter of nomination from

18 Congressman Bilirakis?

19 A. That is true. I did do that.

20 Q. And isn't is it true that that advertising or

21 mailing was so large you hired a mailing house to do it?

22 A. The actual mailing itself was done by a

23 mailing house which affixes labels, but we did the

24 actual assembly. So, no, it was not that large of a

25 mailing.






372

1 Q. It was small?

2 A. Correct, we did it with in-house.

3 Q. Did Congressman Bilirakis or his office ask

4 you not to include his letter in your promotional

5 package?

6 A. Yes, he did.

7 Q. And did you write Congressman Bilirakis and

8 tell him that the cost of you removing his letter was so

9 huge from the mailing house that you wouldn't do it, he

10 would have to do it himself?

11 A. Something to that effect.

12 Q. Did Congressman Bilirakis write to you and

13 tell you he was deeply disturbed by the use of his

14 letter of your nomination?

15 A. I don't recall that letter, if there was a

16 letter.

17 Q. I would like you to take a look at the letter

18 bate stamped 15 in Petitioner's Exhibit 5. Do you

19 recognize that letter, sir?

20 A. I don't recall seeing this letter before, sir.

21 Q. Well, is it not a letter in which

22 Congressman Bilirakis asked you not to use --

23 MS. ANDERSON: Wait. Wait. Wait. Mr. Felos

24 is now testifying.

25 THE COURT: Mr. Felos, you know better than






373

1 that. If the witness said he never saw it before,

2 you cannot read it into the record.

3 BY MR. FELOS:

4 Q. Dr. Hammesfahr, have you seen that letter

5 before -- let me strike that.

6 Is it your recollection that you haven't seen

7 it before or are you stating for a fact that you have

8 never seen that letter before?

9 A. I have no recollection of ever seeing that

10 letter before.

11 Q. Dr. Hammesfahr, did you write to

12 Congressman Bilirakis on April 13, 2000 and tell him

13 that you're responding in writing to his letter of

14 March 22, 2000?

15 A. I don't recall.

16 Q. Why don't you take a look at bate stamp 19.

17 MS. ANDERSON: Your Honor, are we going to get

18 around to Terry Schiavo? We are still on the Nobel

19 nomination here.

20 THE COURT: I'm sure we will.

21 THE WITNESS: Yes, there is a letter dated the

22 19th.

23 BY MR. FELOS:

24 Q. And is that the letter dated April 13, 2000,

25 from you to Congressman Bilirakis?






374

1 A. Yes, it is.

2 Q. And did you author that and you signed it?

3 A. Yes, I did.

4 Q. And in the first part of that letter do you

5 say, "Dear Congressman Bilirakis, I am responding in

6 writing to your letter of March 22, 2000?"

7 A. Yes, I do.

8 Q. Let's go back to bate stamp 15, which is a

9 March 22, 2002 letter from Congressman Bilirakis to you.

10 Would that be the letter, sir, that you are referring to

11 when you relay the letter to Congressman --

12 A. Well, I don't recall seeing this letter, but

13 it has the same date on it as the one that I responded

14 to.

15 Q. Now, regarding the Schiavo case,

16 Dr. Hammesfahr, how was it that you became involved in

17 this case?

18 A. Well, several days, I think, before the

19 feeding tube was originally removed, I became aware of

20 the case for the first time, to the best of my

21 recollection. And the feeding tube, I think, was

22 removed and then restarted. And then, at that point, I

23 contacted the family thinking that I might be able to

24 help her. Help her with respect to her medical care and

25 improving her neurologically.






375

1 Q. That would have been -- correct me if I'm

2 wrong. I believe the feeding tube was removed and

3 reasserted around April 26, 2001.

4 A. I don't remember the dates.

5 Q. And your affidavit was on May 6, 2001. Does

6 that time line sound right to you?

7 A. You know, again, I don't remember the dates.

8 Q. Now, but you did become aware of the case at

9 about the time her feeding tube was to be removed; is

10 that correct?

11 A. Correct.

12 Q. Okay. Now, and you contacted, then,

13 Attorney Anderson?

14 A. Correct.

15 Q. This case had been going on since -- over 16

16 months, before January of 2000, and it was highly

17 publicized. Why isn't it -- is there any reason that

18 you hadn't called Attorney Anderson beforehand?

19 MS. ANDERSON: Excuse me, Your Honor.

20 Attorney Anderson was not involved.

21 THE COURT: I was going to say the same thing.

22 BY MR. FELOS:

23 Q. Or another attorney?

24 MS. ANDERSON: I think his question is: Do

25 you mean to tell me you were not aware of me on the






376

1 Schiavo case?

2 THE COURT: I can see why he wouldn't call

3 Attorney Anderson.

4 MS. ANDERSON: Correct. Attorney Anderson was

5 busy elsewhere.

6 BY MR. FELOS:

7 Q. Well, Dr. Hammesfahr, you read the newspapers

8 and watch TV, don't you?

9 A. Not very much, as far as reading the

10 newspapers and watching television, unless it's the

11 history channel.

12 Q. Well, you do read the newspaper on occasion,

13 don't you?

14 A. Occasionally.

15 Q. And you don't recall seeing anything on TV or

16 in the newspaper prior to April of 2001 about the

17 Schiavo case?

18 A. No.

19 Q. Now, did you state in your affidavit filed in

20 this case, where you are referring to May 5 affidavit --

21 I'm reading from paragraph eight. "I have followed the

22 case of Terry Schiavo in the local media with interest."

23 Do you recall saying that in your affidavit?

24 A. Yes, I do.

25 Q. Can you explain to me what you meant by the






377

1 fact that you said you were following the case or you

2 have followed the case when you only became aware of it,

3 as you say now, around the time this affidavit was

4 prepared?

5 MS. ANDERSON: Objection. That

6 mischaracterizes his testimony.

7 MR. FELOS: I don't believe it does, Your

8 Honor.

9 THE COURT: I'm not sure it does, either. I

10 will allow the question.

11 THE WITNESS: I became aware of Ms. Schiavo's

12 situation, or case, shortly before the feeding tube

13 was pulled. From that point forward, I did follow

14 it.

15 BY MR. FELOS:

16 Q. Dr. Hammesfahr, do you consider the fact that

17 your name would incidentally be given in the news and

18 receive publicity for entry in this case?

19 A. I considered that there might be publicity

20 involved in the case, which scared me from entering my

21 name into the case.

22 Q. Now, I want to clarify something on direct

23 examination. I believe you were asked if there was a

24 reasonable likelihood or reasonable probability,

25 reasonable medical probability that your therapies could






378

1 improve Mrs. Schiavo's condition. And is your answer to

2 that yes?

3 A. Yes, there is.

4 Q. And do you also answer that you couldn't

5 specify in what way her condition might be improved?

6 A. Correct.

7 Q. So am I correct that you are not specifically

8 contending now that your therapies reasonably might

9 improve her mental condition?

10 A. I would expect, based on my previous

11 experience with other patients, that her mental

12 condition would improve. Statistically, most of our

13 patients will see improvement in mental facilities. So

14 I would expect that, based upon previous experience, to

15 be one of the areas that I see in her. But with regard

16 to therapy, we are not sure what it will improve nor to

17 what degree.

18 Q. Now, so, is that a fair characterization of

19 that saying that you're not sure whether it would

20 improve her mental condition?

21 A. Sure 100 percent or granted 100 percent

22 confidence?

23 Q. Well, I'm asking you.

24 A. I have much greater than 50 percent confidence

25 that it will improve the mental cognitive abilities of






379

1 Mrs. Schiavo.

2 Q. Isn't it a fact that you filed this affidavit,

3 you stated that there was a reasonable likelihood of

4 significant improvement in Terry Schiavo's medical

5 condition?

6 A. Do you want me to -- can you direct me to

7 where you are looking?

8 Q. Paragraph ten and 13.

9 A. Paragraph ten, "There is a reasonable

10 likelihood of significant improvement in Mrs. Schiavo's

11 alertness and enhanced awareness of her surroundings and

12 increase abilities to interact with her surroundings."

13 I still believe that.

14 Q. And you believed it when you signed the

15 affidavit?

16 A. Oh yes, I believed it then, also.

17 Q. And has your opinion changed since the

18 affidavit?

19 A. I'm even more sure of it.

20 Q. Now, do you recall that you gave testimony in

21 this proceeding on -- I believe it was July 10 of 2002,

22 and that was when we discussed the tests that you had

23 performed on Teresa Schiavo?

24 A. Yes, I do.

25 MS. ANDERSON: What page?






380

1 MR. FELOS: This is page 202, line 21.

2

3 BY MR. FELOS:

4 Q. Now, I had asked you: Question, "Okay. Now,

5 is it your belief that you can help her any way

6 predicated on that belief?" And that was your prior

7 answer: "I don't believe she is in a vegetative

8 condition."

9 MS. ANDERSON: You are on page 202?

10 MR. FELOS: Yes, 202.

11 MS. ANDERSON: What line?

12 MR. FELOS: Line 19.

13 BY MR. FELOS:

14 Q. You said, "I do not believe she is in a

15 vegetative condition."

16 "Okay. Now, and is your belief you can help

17 her in any way predicated on that belief?"

18 This is your answer: "Your assumption is my

19 that belief is I can help her? My assumption is there

20 are several issues. I do not believe she is in a

21 vegetative state. The second issue is: What modalities

22 can help her, if any, beyond the state she's in? And

23 for all of those things we need more tests, whether it's

24 my therapy or whether it's ECO or whether it's

25 yet-to-be-determined therapy based upon the good






381

1 character analysis, you know. Who knows at this
stage."

2 Do you recall your answer to that question?

3 A. No.

4 Q. Well, can you explain why you didn't know at

5 that stage of the proceedings whether you could help

6 Terry Schiavo, yet, a year before, in April of 2001, you

7 signed an affidavit saying there is a reasonable

8 likelihood of significant improvement in Mrs. Schiavo's

9 mental alertness?

10 A. You know, I had more information on her. But

11 it's my feeling, at that time, as well as back in July,

12 that more tests should be obtained and ordered with her.

13 Of course, more tests were obtained and ordered with

14 her. So, I guess I'm not sure where you're coming from.

15 I believe back at the time of the original affidavit

16 that there were therapies to help improve her. I

17 believed that on July 10, and I believe that even more

18 now.

19 Q. Well, you had more information on July 10,

20 2002 than did you on May 6, 2001; isn't that correct?

21 A. Correct.

22 Q. So can we infer from that that as you received

23 more information, that led to your uncertainty as to

24 whether your therapies can help her?

25 MS. ANDERSON: Objection; argumentative.






382

1 THE COURT: Overruled.

2 THE WITNESS: I think that more information

3 has been valuable and helpful in me formulating my

4 opinions on this case. I think at that time I

5 thought that this therapy might be a benefit to

6 her, but at that time we didn't have reliable blood

7 pressures to work with. Now we have much more

8 reliable blood pressures on her.

9 So, you know, there are many options out

10 there, several different options out there in

11 helping to treat her, and we have more information

12 now than we had back in July.

13 BY MR. FELOS:

14 Q. Well, what happened between May of 2001, when

15 you made the statement in the affidavit, and July of

16 2002, that brought you from a reasonable likelihood of

17 significant improvement to who knows at this stage?

18 A. Well, several things have happened. One of

19 them happened was we didn't have any access to her where

20 other physicians had access beyond her physicians. How

21 was anyone to know what her condition was like in that

22 situation.

23 Q. Well, you had observed her prior to the

24 July 10, 2002 hearing?

25 A. True, but we didn't have access to blood






383

1 pressure, or accurate blood pressure, and the complete

2 workup had not been finished.

3 Q. And, of course, you had observed there were no

4 workups done in May of 2001?

5 A. Correct. The information from family members,

6 others who visited her, and the videotapes made me

7 strongly believe that she is not in a coma at that time

8 and also that she, more importantly, could be improved

9 with medical care.

10 Q. And when you got to observe her before the

11 July 10 hearing, then that led you to diminish your

12 expectation as to likelihood of improvement?

13 A. No, not really. It's still my likelihood and

14 my feeling that she would improve. How you structure

15 therapies or treatments, what order or what sequence,

16 whether it is together or not, that's a different

17 matter, you know. But it's still my belief she would

18 improve from treatment of some sort to her at that time.

19 Q. Dr. Hammesfahr, would you agree that being

20 nominated for the Nobel Prize and having your nomination

21 accepted by the Nobel committee is very impressive?

22 A. Yes.

23 Q. And would you also agree that most people --

24 most people would think that somebody being nominated

25 for a Nobel Prize, whose nominated is accepted, is






384

1 somebody very skilled or learned in the area of their

2 nomination?

3 A. I can't answer that.

4 Q. One of the -- would you agree that an

5 impression that you want to convey to people as you

6 state the fact that you're nomination on your letterhead

7 and on your phone is aren't you trying to convey to

8 people that you are highly learned and skilled in that

9 area?

10 A. I think that it is quite an honor to have been

11 nominated and that's what I want to convey.

12 Q. Do you agree, Dr. Hammesfahr, that it is

13 incumbent and important for a doctor to be as accurate

14 as they can when they represent their qualifications?

15 A. Yes.

16 Q. And in the case of your Nobel nomination,

17 wouldn't you agree that it's even more important in that

18 case to be as accurate as possible?

19 A. Yes.

20 Q. Because you wouldn't want to mislead anyone

21 regarding your representations concerning the Nobel

22 Prize nomination and acceptance, would you?

23 A. I would not want to mislead people about my

24 credentials.

25 Q. Now, in your affidavit of May 6 -- well, let






385

1 me ask you: This affidavit was given to you under oath?

2 A. Yes.

3 Q. And your affidavit was also made on personal

4 information?

5 A. What do you mean?

6 Q. Well, let me read for you paragraph one of

7 your affidavit. "My name is William Hammesfahr. I am

8 over the age --

9 MS. ANDERSON: Judge, wait. I have to object

10 to this. He is going to publish a hearsay

11 document. The affidavit was in the court file.

12 MR. FELOS: Let me rephrase the question.

13 THE COURT: Thank you.

14 BY MR. FELOS:

15 Q. Did you state in your affidavit of May 6,

16 2001, that you were making the affidavit on personal

17 information?

18 A. Yes, I did.

19 Q. Thank you.

20 And did you also state in that affidavit that

21 your nomination for the Nobel Prize was accepted by the

22 Karolinski Institute?

23 A. Yes, I did.

24 Q. But isn't it true, Dr. Hammesfahr, that you

25 have no direct personal information to support that






386

1 claim?

2 A. I don't have any direct information, no, that

3 I'm aware of. I have indirect information.

4 Q. You do. What was that indirect information?

5 A. Well, I was told that by the congressman and

6 another individual at the time that they contacted me to

7 do a photo shoot for the committee after nomination

8 occurred, and they showed me a letter on Karolinski

9 Institute's letterhead.

10 Q. So the indirect information that you referred

11 to, I believe, is that Congressman Bilirakis told you

12 your nomination was accepted?

13 A. That was some of the information.

14 Q. And that another person told you that, as

15 well?

16 A. Yes.

17 Q. And who was that other person? I mean, was it

18 a member of Mr. Bilarakis's office? Do you recall who

19 that other person worked for?

20 A. It was a member of Congressman Bilarakis's

21 office, yes.

22 Q. Did you also state that they told you that

23 they received a letter from the Karolinski Institute

24 saying that your nomination was accepted?

25 A. They received a letter on Karolinski Institute






387

1 stationery or heading on top recommending me for

2 confirmation and acceptance of that nomination.

3 Q. And you actually held that letter?

4 A. Yes.

5 Q. So you assert that you actually saw the letter

6 from Stockholm confirming that your nomination was

7 accepted?

8 A. I saw a letter which they purported to

9 represent as being confirmation of the acceptance of the

10 nomination.

11 Q. Now, do you recall from your deposition on

12 page 17, line eight, and page 20, 18, I asked you on

13 line ten, I had asked you the same question. "What was

14 the indirect information?"

15 And you answered: "We were told that by

16 Congressman Bilarakis's office after he received a

17 letter from the Karolinski Institute. My work was

18 referenced on their home page of the website and we had

19 a large flurry of phone calls from various professionals

20 and major stroke centers around the country during that

21 time frame."

22 Also on page 20, line 18, I asked you -- or

23 from line 15 -- or, excuse me. I asked you basically

24 the same thing on line 19. "There, again, we have

25 several different areas which led me to believe that we






388

1 were nominated and accepted. These included the

2 representations from the congressman's office for

3 follow-up contacts that had occurred from the general

4 community and posted our work on the website."

5 In those answers, Dr. Hammesfahr, you didn't

6 mention anything about your seeing a letter. You don't

7 know why that was?

8 MS. ANDERSON: Wait. Wait. Now, that's

9 misrepresentation of his deposition. He said that

10 he saw the letter --

11 MR. FELOS: Well, later on --

12 MS. ANDERSON: -- by Congressman Bilirakis.

13 It's right here in the deposition. He

14 misrepresenting on that.

15 MR. FELOS: I am not, Your Honor.

16 THE COURT: Did he acknowledge the letter in

17 his deposition?

18 MR. FELOS: Later on in the deposition.

19 THE COURT: Mr. Felos, come on. You refreshed

20 his recollection or he changed his mind or however

21 he got from point A to point B. Why do you want to

22 delay point A when we know we want to get to point

23 B?

24 BY MR. FELOS:

25 Q. Dr. Hammesfahr, in the documents that you






389

1 produced pursuant to your subpoena, have you produced

2 any letter from the Karolinski Institute?

3 A. No, I haven't.

4 Q. And you never made a copy of this letter?

5 A. I have a copy. I have seen it as recently as

6 six months ago and I spent the last week looking for it

7 again.

8 Q. And can't find it?

9 A. No.

10 Q. Now, regarding your conversations with

11 Congressman Bilirakis about this matter, informing you

12 that your nomination was accepted in this matter, do you

13 actually have a recollection today of having a

14 conversation with Congressman Bilirakis in which he told

15 you that your Nobel nomination was accepted?

16 A. Yes.

17 Q. And correct me if I'm wrong, but have you also

18 asserted that Congressman Bilirakis was adamant in his

19 statement to you that your nomination was accepted?

20 MS. ANDERSON: The page and line of the

21 deposition would be good.

22 MR. FELOS: Well, my question is --

23 MS. ANDERSON: Unless you are having an

24 unsworn conversation with Dr. Hammesfahr.

25 MR. FELOS: Well, I'm just asking him a






390

1 question.

2

3 BY MR. FELOS:

4 Q. The question is: Is it your contention that

5 Congressman Bilirakis was adamant in the fact that your

6 nomination was accepted?

7 MS. ANDERSON: Page and line, please.

8 THE COURT: He is just asking him a question

9 out of the blue, I guess.

10 MS. ANDERSON: In that case, it's

11 argumentative.

12 THE COURT: I still don't know where we're

13 going.

14 MS. ANDERSON: Rabbit trail.

15 THE COURT: I don't know that it's a rabbit

16 trail. Are you trying to draw a distinction of you

17 show me something now, I accept it, as opposed to

18 I'm accepting it to do something else with it? Is

19 that where you are going?

20 MR. FELOS: No. Where I'm going is to show

21 you that the letter never existed.

22 THE COURT: Well, how are you going to do

23 that?

24 MR. FELOS: Well, let me continue.

25 THE COURT: It's 5:25 and we are going to






391

1 finish with this witness today or tomorrow morning

2 after the clock strikes 12. I would hope we get

3 there.

4 BY MR. FELOS:

5 Q. Dr. Hammesfahr, is it your position that

6 Congressman -- is it your position and recollection that

7 Congressman Bilirakis was adamant about the fact that

8 your nomination had been accepted?

9 A. I don't recall at this time whether the

10 adjective "adamant" was correct or not.

11 Q. Do you recall in your deposition, page 33,

12 line seven, "He was very adamant that the nomination had

13 been accepted?"

14 A. I don't recall it, but okay.

15 Q. Now, what I would like to know is why, when I

16 first asked you about this in your deposition, you

17 couldn't remember whether it was Congressman Bilirakis

18 or his aide that told you your nomination was accepted?

19 MS. ANDERSON: There is not a foundation for

20 this and it's argumentative and it's not really

21 relevant. We are just so far into collateral

22 matters. He can't remember if it was the

23 congressman or the congressman's aide who told him

24 that they had gotten a letter back from the

25 Karolinski Institute. How in the world does this






392

1 relate to the claims in this case? What difference

2 does it make?

3 MR. FELOS: Your Honor, the witness is

4 testifying that he is adamant that the congressman

5 told him his nomination was accepted, and, yet, one

6 week ago he couldn't recall specifically whether it

7 was the congressman or an aide who told him this.

8 It goes to his credibility.

9 MS. ANDERSON: Now, Mr. Felos.

10 THE COURT: Well, if he is changing his

11 recollection within the deposition, I'm not sure

12 how it goes to credibility. If you want to read

13 question and answer and ask him if he did that and

14 if he did something different, then ask him why.

15 Go right ahead. But we are just stuck in one way.

16 And, you know, I don't know what the word

17 "adamant" has to do with anything. I don't know

18 who told you why. And this is your only witness,

19 hey, I guess I'm mystified how you are going to

20 establish that when he said there is a letter.

21 BY MR. FELOS:

22 Q. Did you say -- I'm reading from page 17, line

23 25 of your deposition.

24 Question: "Did you speak with somebody from

25 that office?"






393

1 Answer: "I spoke with the congressman at one

2 point also an aide, and I don't recall the aide's name."

3 Question: "And was it in that form of this

4 that we are talking about, the nomination?"

5 Answer: "I don't recall. I think it was

6 both. I don't recall. It was a photo shoot."

7 My question to you, sir, is how is it that you

8 didn't -- you couldn't recall specifically whether it

9 was Congressman Bilirakis or an aide or both when you

10 informed me that your nomination was accepted on

11 September 30, and you can state today that you recall

12 Congressman Bilirakis being adamant about that letter?

13 A. May I see my deposition? I want to sit here

14 and read it for a while, I think.

15 Q. Sir, answer my question. Would you answer the

16 question, sir?

17 MS. ANDERSON: I would interpose an objection

18 of irrelevant and immaterial.

19 A. We --

20 THE COURT: Excuse me. Your attorney -- not

21 your attorney. She doesn't represent you. One of

22 the attorneys has made an objection.

23 Mr. Felos, obviously you are trying to impeach

24 the witness. I'm going to give you a couple more

25 minutes to accomplish that and then I would suggest






394

1 you move on.

2 MR. FELOS: Excuse me, Your Honor?

3 THE COURT: I'm going to give you a couple

4 more minutes to accomplish that and then I will

5 suggest that you move on.

6 MR. FELOS: Very good, Your Honor.

7 BY MR. FELOS:

8 Q. Now, if Congressman Bilirakis informed you

9 that your nomination was accepted in 1999, why did you

10 write him a letter on April 13, 2000, and advice him

11 that your nomination was approved by the Karolinski

12 Institute? And if you refer to Petitioner's Exhibit 5,

13 bate stamp 21, on page 22. One, two, three, four, fifth

14 paragraph.

15 MS. ANDERSON: What's the date of the letter?

16 MR. FELOS: April 13, 2000.

17 MS. ANDERSON: And the question is about the

18 Karolinski Institute?

19 BY MR. FELOS:

20 Q. Sir, did you write Congressman Bilirakis on

21 April 13, 2000, and say in your letter, "Further, you

22 should be aware that your nomination for the Nobel Prize

23 of Medicine was reviewed and investigate by the

24 Karolinski Institute who approved and seconded your

25 nomination." Did you write that to Congressman






395

1 Bilirakis in April of 2000?

2 MS. ANDERSON: Mr. Felos, I don't see that

3 comment on this page. Where is it?

4 MR. FELOS: Page 22, last sentence in that

5 paragraph.

6 BY MR. FELOS:

7 Q. Sir, you agree that you wrote

8 Congressman Bilirakis at that time, or you wrote

9 Congressman Bilirakis on April 13, 2000 and told him

10 that in your letter?

11 A. I am refreshing my recollection with that

12 statement.

13 Q. Sir, if the congressman was adamant in telling

14 you the fact that your Nobel nomination had been

15 accepted, are you saying that he forgot that?

16 MS. ANDERSON: Objection, Your Honor. How can

17 Dr. Hammesfahr speculate about Congressman

18 Bilarakis's state of mind or memory.

19 MR. FELOS: I will rephrase the question.

20 THE COURT: Thank you.

21 BY MR. FELOS:

22 Q. Why did you feel there was a need to refresh

23 Congressman's Bilirakis recollection?

24 A. Because I think he needs to be reminded about

25 the importance of what we were doing and the importance






396

1 to his constituents.

2 Q. Sir, isn't it a fact that you were never told

3 by Congressman Bilirakis or his aide or anyone from his

4 office that they received such a letter or that your

5 Nobel nomination was accepted?

6 A. That is not a fact. I was told by them there

7 that it was.

8 MR. FELOS: Your Honor, I move to introduce

9 into evidence the first page of Petitioner's

10 Exhibit Number 5, and that is a letter --

11 MS. ANDERSON: Oh no, Your Honor. This is

12 hearsay and there is no authenticating witness.

13 This is what he has been after. This is improper

14 attack on character and credibility using a letter

15 to him from some third party with no copy to

16 Dr. Hammesfahr. Dr. Hammesfahr hasn't even seen

17 it. This is not going to come in. I mean --

18 MR. FELOS: I'm glad you just elected yourself

19 a judge. The nature of your objection is lack of

20 authentication and hearsay. May I address those,

21 Your Honor?

22 THE COURT: Yes, sir. The letter is from

23 whom?

24 MS. ANDERSON: It is somebody on staff counsel

25 of the general counsel office of the U.S. House of






397

1 Representatives. This is also totally improper

2 impeachment.

3 THE COURT: It is directed to whom?

4 MR. FELOS: The letter is to me from Kerry,

5 K-e-r-r-y, Kircher, K-i-r-c-h-e-r, House of

6 Representatives, in response to a subpoena for

7 records from Congressman Bilarakis' offices. And

8 he is responding as the congressman's attorney.

9 First, Your Honor, as to the question of

10 authentication. I know the same patent that wasn't

11 even signed was introduced, printed off a website,

12 was considered by the court, or I assume it's

13 considered authenticated. Specifically Section

14 90.902 of the code of ethics says, "Identification

15 of extrinsic evidence of authenticity as a

16 condition precedent to admissibility is not

17 required for a document bearing a seal accordingly

18 purporting to be that of the United States or any

19 political subdivision office of officers or agency

20 of any of them and a document bearing a signature

21 by the custodian of the document" -- or -- excuse

22 me. I'm reading from the wrong statute.

23 MS. ANDERSON: What is that?

24 MR. FELOS: This is 90.902. "A document not

25 bearing a seal but purported to bear a signature of






398

1 an officer or employee of any entity listed in

2 Subsection 1, affixed in the officer's or

3 employee's official capacity."

4 This is a document not bearing a seal, but

5 does bear a signature of an officer or employee of

6 the United States House of Representatives, which

7 is the United States or a political subdivision

8 thereof.

9 THE COURT: It is not a political subdivision

10 of the United States.

11 MR. FELOS: I will simply say, then, that is

12 the United States.

13 THE COURT: I don't know if that's God saying

14 I'm right or you're right.

15 MR. FELOS: But the question of authenticity,

16 Your Honor, just goes --

17 THE COURT: Let's say it is authentic. How

18 does get around hearsay? I'm not agreeing that's

19 authentic because I do not think that's from the

20 United States any more so than if it was the United

21 States Department of Agricultural. You know, some

22 clerk typist in that department writing a wonderful

23 letter with somebody dictating because that's not

24 the United States, nor is it the political

25 subdivision, a state, I would think, or territory.






399

1 MR. FELOS: Well, Your Honor, if the House of

2 Representatives is not the United States, I don't

3 know what is.

4 THE COURT: The board of directors is not

5 AT&T, Mr. Felos.

6 MR. FELOS: On the hearsay issue, Your Honor,

7 I refer the Court to 90.806. I will direct the

8 Court to that section.

9 THE COURT: What's the exception.

10 MR. FELOS: 90.806. 90.806 basically says,

11 your Honor, when you have a declarant's statement

12 that's entered into evidence through hearsay, then

13 hearsay may be used to attack the declarant's

14 statement as if the declarant were testifying.

15 So, in other words, Your Honor, we have a

16 statement from the witness, a hearsay statement

17 Congressman Bilirakis and an aide told me my Nobel

18 Prize nomination was accepted and they got a letter

19 that said so. I am permitted under 90.806 to use

20 any materials to contradict that statement as if

21 Congressman Bilirakis and his aide were testifying.

22 That's what 90.806 says, Your Honor.

23 And if Congressman Bilirakis or his aide was

24 on the stand testifying I told Dr. Hammesfahr that

25 his Nobel nomination was accepted, I would be






400

1 permitted to use this letter to contradict that

2 statement and say Congressman Bilirakis, but I have

3 a letter from your lawyer which you say your

4 position is you never told him. And that's why the

5 letter, Your Honor, is admissible in evidence.

6 This witness opened the door.

7 THE COURT: This witness open the door and the

8 result of your question. This is what you are

9 trying to do is to impeach answers on

10 cross-examination to set up the use of this

11 exhibit.

12 MR. FELOS: And I can do that as long as it is

13 material, Your Honor.

14 THE COURT: Well, I don't think a lawyer's

15 statements are necessarily admissible.

16 MR. FELOS: Your Honor, there is a specific

17 case on that point.

18 THE COURT: I think, perhaps, in lawyering

19 duties. But the fact that I hired you does not

20 carte blanche make you responsible for everything

21 that you say for the next 20 years.

22 MR. FELOS: But that's not the case, Your

23 Honor. In fact, the lawyer for Congressman

24 Bilirakis is the lawyer for this purpose, and he

25 even mentioned that the documents were not withheld