401

1 on the basis of attorney-client privilege.

2 THE COURT: That's self-authentication, is

3 what you are talking about in that letter.

4 What is your position on this?

5 MS. ANDERSON: This letter is not

6 self-authenticating and it certainly doesn't fit

7 under 90.806.

8 THE COURT: What Mr. Felos is saying is the

9 relationship between the attorney and the client is

10 not what the client says it is.

11 MS. ANDERSON: No. The client always

12 determines the scope.

13 THE COURT: Well, that's my point.

14 What is your position on 806?

15 MS. ANDERSON: He has it backwards. The

16 declarant is available. This is does not impeach

17 him. This might impeach the author of this letter,

18 if the author would testify. He has 806
backwards.

19 He is also creating a strong-man, Judge. He

20 is impeaching cross-examination questions. He is

21 setting up a strong-man and knocking it down. And

22 I know sooner or later we are going to get to

23 Terry Schiavo's medical condition. I think you

24 have given him all of the latitude that you are

25 obligated to give to let him try to impeach






402

1 credibility, and we are pretty far down that rabbit

2 hole.

3 THE COURT: I don't think the letter is

4 admissible, and so we'll --

5 MR. FELOS: Your Honor, if the Court would

6 give me the opportunity to -- and if I may ask the

7 Court, on what basis? Because I have a specific

8 case where it says that an attorney's statement can

9 be used to impeach his client's statement under 614

10 for inconsistent statements.

11 THE COURT: But his client hasn't made a

12 statement.

13 MR. FELOS: Yes, his client has. It says his

14 client did make a statement through the hearsay

15 testimony of Dr. Hammesfahr.

16 THE COURT: Which you illicited. You set this

17 up to be able to impeach this doctor. If this had

18 been brought out on direct, I would be far more

19 sympathetic. But it wasn't brought up on direct

20 and I overruled Ms. Anderson on this whole inquiry

21 on the Nobel Prize.

22 We have spent -- you have had

23 cross-examination now for about an hour and 40

24 minutes and the lion's share of that time has been

25 spent on this Nobel Prize thing. And I guess it's






403

1 been to set up getting that letter in.

2 Well, I'm sorry. I'm not going to allow the

3 letter. I don't care what cases you have. I don't

4 think the letter is out to impeach Mr. Bilirakis,

5 and that's all the attorney can do. The attorney

6 cannot impeach this gentleman. So it ranks of

7 hearsay. And the fact that all of the niceties may

8 look like they apply to it doesn't change that.

9 Plus, the fact I don't think it's authenticated. I

10 don't believe the United States House of

11 Representatives, who is the employee, according to

12 person who signed that letter, is the United States

13 of America.

14 MR. FELOS: Your Honor, even if the letter is

15 self-authenticated? The whole purpose of

16 authentication is -- and the court can look at

17 extrinsic matters for that is what it purports to

18 be. Is anyone really contending that this letter

19 did not come from counsel from the house of

20 representatives?

21 THE COURT: Mr. Felos, I don't have a clue.

22 You are saying it's all based on the liability.

23 And those rules are set up for that very purpose,

24 to make sure it is reliable. And you have somebody

25 who I have no jurisdiction over making a statement






404

1 about somebody that happens to know about something

2 I didn't do. Now, I can't prove a negative. How

3 can this lawyer prove a negative?

4 MR. FELOS: But how can I disprove that?

5 that is what 806 is about, Your Honor. When a

6 hearsay statement is introduced, it's the

7 declarant's business on the stand how can we go

8 about disproving that.

9 THE COURT: Well, Mr. Felos, that's when it

10 comes in over your objection and you have no other

11 way to contend with it. This came in not over your

12 objection, it came in because you illicited it, and

13 I think you are stuck with it.

14 MR. FELOS: I didn't illicit it. If the Court

15 recalls, I asked Dr. Hammesfahr: Do you have any

16 direct knowledge that your Nobel Prize was

17 accepted.

18 THE COURT: And he said, no, I have indirect

19 knowledge. And you went and asked him what that

20 was.

21 MR. FELOS: He is the one who raised the point

22 about indirect knowledge, not me.

23 THE COURT: He raised it and said I have it.

24 And if you would have left it alone, we would have

25 never gotten into that hearsay, would we? Now you






405

1 may wish to take this someplace else and maybe

2 three other judges will agree with you. But at

3 this moment, there is one here that does not.

4 MR. FELOS: Well, Your Honor, we will proffer

5 the letter for the record.

6 MS. ANDERSON: Judge, I think under the

7 circumstances, where you are the finder of fact --

8 THE COURT: He is not going to read it into

9 the record. If he wants to put it in a brown

10 envelope and wants to seal the envelope and write

11 on the back side of the envelope what's there, I'm

12 fine with that.

13 MS. ANDERSON: Your Honor, this is all this

14 has been designed to do. He is trying to impeach

15 an absent congressman, really.

16 THE COURT: Well, part of that problem is that

17 I have not allowed non-medical witnesses, so I

18 don't know if that's proper or not.

19 MS. ANDERSON: But, again, Mr. Felos sets that

20 to himself.

21 MR. FELOS: Plus a whole other factor. I

22 didn't have an opportunity to call

23 Congressman Bilirakis as a witness, which I think

24 on behalf of this, Your Honor, we have more

25 compelling reason.






406

1 THE COURT: I have ruled, Mr. Felos. If you

2 wish to place that in a brown envelope and seal it

3 and give it to me, I will certainly write on it

4 what it is and put it in the court file.

5 BY MR. FELOS:

6 Q. Dr. Hammesfahr, do you have another reason for

7 your belief that your Nobel nomination was accepted that

8 there was an article posted afterwards on the official

9 website of the Nobel committee?

10 A. I think it was posted before. My recollection

11 is now that it was posted before. I don't recall what

12 the deposition said.

13 Q. You were subpoenaed to bring that article, I

14 believe, your article posted on the Nobel website. Did

15 you produce that today?

16 A. I didn't see that in the subpoena.

17 MS. ANDERSON: Your Honor, in the subpoena he

18 asked for on documents related to the Nobel

19 nomination and the documents he got from

20 Congressman Bilirakis.

21 BY MR. FELOS:

22 Q. So you are no longer contending the fact that

23 you claim an article of yours was posted on the Nobel

24 website means that your nomination was accepted; is that

25 correct?






407

1 MS. ANDERSON: Objection; argumentative.

2 THE COURT: Would you rephrase that.

3 BY MR. FELOS:

4 Q. I asked to you produce any documents which

5 supports your claim that you were accepted by the

6 Karolinski Institute of Stockholm as a nominee for the

7 Nobel Prize. Are you saying that that letter -- or the

8 website-posted article does not fall into that category?

9 A. Correct. That was posted prior to the

10 nomination.

11 Q. Do you recall -- Dr. Hammesfahr, do you recall

12 at your deposition September 30, I handed you some

13 printouts from the official Nobel websites?

14 A. I believe you gave me some printouts of the

15 website, yes.

16 Q. And did you review those at your deposition?

17 A. Briefly, yes.

18 Q. And did you recall that --

19 MS. ANDERSON: Objection, Mr. Felos is getting

20 ready to testify about a document he knows he

21 cannot authenticate that is not relevant anyway.

22 This is yet another rabbit trail. He is getting

23 ready to testify.

24 MR. FELOS: Can I finish my question?

25 THE COURT: Well, let's see how far you can






408

1 get without testifying.

2

3 BY MR. FELOS:

4 Q. Okay. And do you recall part of the printout

5 from the Nobel website listed that part of those

6 materials included a list of who's eligible to make the

7 nomination for Nobel Prize in medicine?

8 MS. ANDERSON: Objection. This is testimony

9 from Mr. Felos. He is asking Dr. Hammesfahr to

10 confirm a hearsay document that he handed to him in

11 his deposition. Now, the fact that he handed it to

12 him in deposition does not make it authentic.

13 THE COURT: Well, I agree.

14 MR. FELOS: Please, let me find that summons.

15 BY MR. FELOS:

16 Q. Do you agree, Dr. Hammesfahr, that the

17 official website of the Nobel Foundation is an

18 authoritative source?

19 A. I don't know that I can answer that.

20 Q. Do you recall I asked you in your deposition

21 on page 19, line one:

22 Question: "Would you agree that the official

23 website of the Nobel foundation is an authoritative

24 source of information on the Nobel Prize?"

25 Answer, "I would assume so."






409

1 Do you remember me asking you that question?

2 A. Do I remember you asking me that question?

3 MS. ANDERSON: That's improper impeachment.

4 It's inconsistent with what he said previously.

5 THE COURT: Let's see where he goes with that.

6 I'm not sure it's inconsistent.

7 BY MR. FELOS:

8 Q. Now, I would like to ask you some questions

9 regarding information posted on the Nobel website,

10 Dr. Hammesfahr. I'm going to give you something marked

11 Petitioner's Exhibit 8.

12 MS. ANDERSON: Objection, lack of foundation.

13 MR. FELOS: I haven't asked a question, Your

14 Honor.

15 MS. ANDERSON: Also irrelevant and immaterial.

16 MR. FELOS: Your Honor, I have a right under

17 90.706 to use, for purposes of cross-examination,

18 statements of facts or sentences contained in a

19 published treatise, periodical, book, dissertation,

20 or other writing. Statements or facts or opinions

21 on the subject specified in such a writing may be

22 used in cross-examination of a expert witness if

23 the expert witness recognizes the author of the

24 treatises, periodical, book, writing, et cetera, to

25 be authoritative.






410

1 THE COURT: But that is only as to that

2 witness's opinions and his expertise. If this

3 witness said, you know, the Audubon Society is

4 great. I contribute to that all the time. He is

5 not testifying he is a bird watcher.

6 MR. FELOS: Your Honor, 706 does not limit it

7 to that.

8 THE COURT: Common sense does, Mr. Felos.

9 BY MR. FELOS:

10 Q. Dr. Hammesfahr, can you identify Petitioner's

11 Exhibit 8?

12 A. This is three pages of something downloaded

13 from the Nobel SE website.

14 Q. And are those the papers that I showed you at

15 your deposition?

16 MS. ANDERSON: Your Honor, the fact that he

17 handed it to him at his deposition does not

18 authenticate it. That's an improper foundation he

19 is trying to lay.

20 MR. FELOS: I'm not trying to introduce it,

21 Your Honor.

22 THE COURT: Well, you are not going to

23 introduce what's on it if you cannot introduce it.

24 That question you asked him is not improper, but

25 you are getting real close.






411

1 BY MR. FELOS:

2 Q. Do you recognize that as materials that I gave

3 you at a deposition?

4 A. I don't recall.

5 Q. Well, let me get your deposition?

6 THE COURT: Is that an exhibit to the

7 deposition.

8 MS. ANDERSON: That doesn't make it any more

9 authentic, Judge.

10 BY MR. FELOS:

11 Q. Here is your original deposition with the

12 attachments.

13 MS. ANDERSON: Judge, I should point out that

14 he is way beyond the scope of direct at this point.

15 I want to use the Learned Treatises rule that

16 applies to expert witnesses on cross-examination

17 and apply it to a matter that I didn't even raise

18 on direct. You know, I knew this was going to be

19 lengthy testimony and I elected not to mention the

20 Nobel nomination in order in the interest of time.

21 Judge, the fact that Mr. Felos handed him some

22 documents that may or may not be in his deposition

23 is not an adequate foundation. It's on a subject

24 that I did not raise in direct.

25 THE COURT: Well, you know what's on the






412

1 document; I don't. Now, I'm assuming there is

2 something on there pertaining to the Nobel matter.

3 MS. ANDERSON: I will tell what you it is.

4 It's a document that was downloaded last fall, not

5 two and a half years ago stating that Dr.

6 Hammesfahr was nominated by Congressman Bilirakis.

7 It's some kind of list of categories of people who

8 can be nominators and parliamentarians are no

9 longer on the list. He wants to use this to say

10 that Congressman Bilirakis did not have the

11 authority to nominate Dr. Hammesfahr.

12 How is Dr. Hammesfahr ever going to be able to

13 answer one question bearing on that?

14 MR. FELOS: Well, because I have the

15 nomination criteria before the nomination, which is

16 identical. That's how he will be able to.

17 THE COURT: How are you going to get that into

18 evidence, Mr. Felos?

19 MS. ANDERSON: That should be Congressman

20 Bilirakis on the witness stand, not

21 Bill Hammesfahr.

22 MR. FELOS: Your Honor, I was going to get

23 that in.

24 THE COURT: But, Mr. Felos, the website is not

25 a treatise. There are a bizillion websites out






413

1 there. And are you suggesting to this court that

2 any one of those bizillion websites come in

3 irrespective of the hearsay rule? I dare say not.

4 MR. FELOS: I'm suggesting, Your Honor, that

5 when a witness admits that the information on an

6 organization's official website is authoritative

7 and can be used for cross-examination purposes.

8 THE COURT: I assume so is not an admission,

9 number one. Number two, I think the hearsay rule

10 exception you are talking about has a lot to do

11 with the witness's expertise.

12 You read the St. Petersburg Times,

13 Mr. Witness? Yes, I do. Do you believe what he

14 says? I think it's generally truthful. Every St.

15 Pete Times that has ever been written intends to

16 impeach the witness. Come on.

17 MS. ANDERSON: Not to impeach that reader, but

18 to impeach somebody the reader knows.

19 MR. FELOS: Your Honor, I'm not going to try

20 to introduce this or read from it, but I do have a

21 question or two that I --

22 THE COURT: Question the witness.

23 BY MR. FELOS:

24 Q. Do you recognize Petitioner's Exhibit 8 to be

25 the document that I gave you at your deposition on the






414

1 official Nobel website?

2 MS. ANDERSON: Wait a second, Dr. Hammesfahr.

3 I object to the predicate of that question

4 because I believe it's argumentative and assumes

5 facts not in evidence.

6 THE COURT: Well, it assumes facts not in

7 evidence.

8 MS. ANDERSON: For all I know is, it's a Nobel

9 groupie that started that website.

10 THE COURT: I'm sustaining the objection.

11 BY MR. FELOS:

12 Q. Sir, the documents in Petitioner's Exhibit 8,

13 were they given to you to review in your deposition?

14 A. Looks like three or four pages that were given

15 to me during my deposition.

16 Q. So you reviewed the -- you reviewed, at one

17 time, the information contained in Exhibit 8; is that

18 correct?

19 A. Partially, yes.

20 Q. Did that -- as a result of reviewing that

21 information, did you state that you would do a further

22 investigation regarding the accuracy of your

23 representation regarding your Nobel nomination?

24 MS. ANDERSON: Objection. That's no place in

25 the deposition. May I please have page and line.






415

1 MR. FELOS: I'm just asking him.

2 THE COURT: Well, tell him where and when he

3 might have made those statements, Mr. Felos.

4 BY MR. FELOS:

5 Q. Well, can you tell me in your deposition -- or

6 state where in your deposition after reviewing those

7 imperials that you would do further investigation of the

8 accuracy of your claims that you are a Nobel nominee?

9 A. If you could, read it to me.

10 Q. Did you understand the question, sir?

11 A. I don't recall.

12 Q. And did you say that?

13 A. I don't recall.

14 Q. Let me read from your deposition?

15 A. Can you hand that back, please?

16 Q. Question, page 255. Question: "Well you --

17 THE COURT: Doctor, please have a seat. We

18 are going to break in a minute.

19 BY MR. FELOS:

20 Q. Question: "Well, you mentioned before it's

21 very important for a doctor to be accurate in

22 representing his qualifications."

23 MS. ANDERSON: That's 255?

24 MR. FELOS: 255.

25 BY MR. FELOS:






416

1 Q. "After looking at this, don't you feel that

2 you want to do at least a further investigation yourself

3 to find out what those criteria were back in 1999?"

4 Answer: "I probably will do further

5 investigation?"

6 THE COURT: I probably would is not I will.

7 MR. FELOS: I probably will do further

8 investigation.

9 THE COURT: Well, I probably will is not the

10 same as I will.

11 BY MR. FELOS:

12 Q. Is it fair to say, Dr. Hammesfahr, that after

13 reviewing those materials you had some concerns about

14 the accuracy of your claim that you are a Nobel nominee?

15 MS. ANDERSON: Irrelevant and immaterial.

16 THE COURT: This should be the last answer.

17 THE WITNESS: No, I have no concerns about

18 being a Nobel Prize nominee.

19 BY MR. FELOS:

20 Q. Well, why did you say that you would probably

21 do further investigation after reviewing that?

22 A. Possibly to handle the question better the

23 next time or for anyone that raises a similar question.

24 MR. FELOS: Your Honor, if you would like to

25 break for dinner, I did want to to save time






417

1 instead of continuing to examination of the

2 witness. I regarding materials I believe I can use

3 as authoritative sources, I did want to proffer

4 that information on the record?

5 THE COURT: If you want to take up part of

6 your lunchtime or suppertime doing that, you are

7 more than welcome to do that.

8 MS. ANDERSON: Well, is it going to be another

9 hour four hours?

10 THE COURT: I'm not sure. Mr. Felos, can you

11 help us with that question?

12 MR. FELOS: Well, Your Honor, let me see if I

13 can give you an indication. Your Honor, I'm

14 probably, at this pace, looking at being at this

15 for a couple hours. Dr. Hammesfahr, if you want to

16 take a short break.

17 THE COURT: Let's take a short recess.

18 (Whereupon, a short recess was taken, after

19 which the following proceedings transpired:)

20 MR. FELOS: For the record, Petitioner

21 intended to utilize the materials from the official

22 website of the Nobel committee in 1997 predating

23 the witness's Nobel nomination for 1999, which

24 lists the criteria of those eligible to make a

25 nomination for a Nobel Prize in medicine for






418

1 purposes of establishing through cross-examination

2 and the authoritative sources that the nominator,

3 Congressman Bilirakis, is not eligible to make a

4 Nobel Prize nomination.

5 BY MR. FELOS:

6 Q. Dr. Hammesfahr, in your direct examination,

7 you mentioned the word "coma" a number of times.

8 A. Correct.

9 Q. What is your definition of coma?

10 A. Under responsive.

11 Q. Do you recall from your deposition, page

12 seven, line 14, I asked a question: "What is your

13 definition of a coma?"

14 Answer: "I don't have a specific definition

15 of coma."

16 Can you tell me why ten days ago you had no

17 definition of a coma and yet today you do?

18 A. It's primarily because the way you treat

19 patients. When I look at a patient, I often think that

20 they are -- I will look at their degree of response in a

21 slightly different fashion than I would four years ago,

22 five years ago, ten years ago. But I think the

23 definition of a coma I have to use is that patients are

24 unresponsive to their environment.

25 Q. That wasn't my question. My question is why






419

1 can you define if today but you couldn't two weeks ago?

2 A. The two weeks ago, I was looking in terms of

3 giving you an answer that dealt with a continuum of

4 different types of coma, rather than I am focusing on a

5 single common thread that these things have. So, I

6 think this is my best response.

7 Q. So a coma -- you define a coma as

8 unconsciousness?

9 A. Unresponsiveness to the environment around.

10 Q. Dr. Hammesfahr, are you familiar with the

11 statement put out by the Multi-Society Task Force on

12 persistent vegetative state called "Medical Aspects of

13 Persistent Vegetative State", published by the New

14 England Journal of Medicine in 1994?

15 A. No.

16 Q. So I gather that you can't agree that that

17 treatise is authoritative, do you?

18 A. I can't. I don't know anything about it.

19 MR. FELOS: Your Honor, I intend to use it for

20 purposes of cross-examination, and, then, I will

21 ask the Court for determination of its

22 authoritative nature. And in support of that, Your

23 Honor, first --

24 THE COURT: Excuse me. We had a number of

25 articles introduced early on. It was my






420

1 understanding that this witness identified those as

2 being authoritative treatises.

3 MS. ANDERSON: I'm sorry. Your mic went off.

4 I will stipulate that the New England Journal

5 is an authoritative resource information. And, of

6 course, this is the Multi-Society Task Force report

7 which was published in the New England Journal is

8 the report authoritative. I think that is what he

9 was asking.

10 THE COURT: That is what he was asking.

11 MR. FELOS: Your Honor, I can attest, Your

12 Honor, that the standard that we are using on

13 cross-examination is the authoritative treatise on

14 different factors where it published the witnesses

15 already mentioned in terms of the authoritative

16 source. If that's the only source of

17 determination, I think that that's sufficient.

18 THE COURT: Well, Gray's Anatomy is an

19 authoritative source page one through the last page

20 are considered that. You can't pick and choose

21 chapters then, do you.

22 MS. ANDERSON: No. The Court's understanding

23 of this issue is correct.

24 THE COURT: So if the New England Journal of

25 Medicine is an authoritative source, I'm assuming






421

1 that the article would be authoritative.

2 MS. ANDERSON: He is understanding it's an

3 authoritative source for research information. The

4 Multi-Society Task Force is not a resource.

5 THE COURT: Well, you know far more about it

6 than I do. This is the first time I have heard it.

7 MS. ANDERSON: And in fact, Judge, the report

8 is part controversy, so...

9 MR. FELOS: That's not the --

10 THE COURT: Lots of things are based on

11 controversy.

12 MS. ANDERSON: Well, I mean that goes to the

13 authoritativeness. I guess what he is trying to

14 say is -- I don't know what he is trying to say.

15 MR. FELOS: Well, Your Honor --

16 THE COURT: I assume the New England Journal

17 of Medicine has articles about stem cell research.

18 MR. FELOS: Your Honor, I'm asking the Court

19 to declare this as authoritative for use in

20 cross-examination pursuant to Section 7907.16. And

21 the standard -- the standard, Your Honor, is

22 what -- is there any credible -- that the witness

23 acknowledges that their work is authoritative to

24 that effect, then the standard -- is there any

25 credible basis for which the Court to make that






422

1 determination. As I was saying before I was

2 interrupted, Your Honor, there -- we wish to

3 present to you credible information. This is the

4 affidavit of Dr. Greer, Your Honor, stating it's

5 authoritative. The Court has also had the

6 testimony of Dr. Cranford on July 10 to the same

7 effect, Your Honor.

8 THE COURT: This particular writing is

9 authoritative?

10 MR. FELOS: Yes. Dr. Greer has stated that he

11 is familiar with the medical aspect of the

12 persistent vegetative state issued by the

13 Multi-Society Task Force about PVS, which was

14 published by the New England Journal of Medicine in

15 1994.

16 THE COURT: Not so fast, please.

17 MR. FELOS: After being recognized the above

18 of being authoritative, if not the authoritative

19 work on the subject of the manual aspect of

20 persistent vegetative state.

21 Dr. Cranford, when asked the same question --

22 and this is his testimony from the transcript.

23 He's asked whether the medical aspect of the

24 persistent vegetative state of the Multi-Society

25 Task Force. He goes on to explain how it was






423

1 compiled and et cetera. And I ask him how that

2 particular study was regarded any medical

3 community.

4 "Well, I think it's the whole standard, I

5 think it's the most definitive study. It's the

6 standard by which everything else compared and I

7 think it is probably the gold standard, if you

8 will, for looking at this medical aspects of the

9 persist vegetative state."

10 "It was written in 1994 and there is also more

11 articles coming out. There was the first report on

12 persistent vegetative state. There was five

13 different specialties or societies going to the

14 board and each of those specialty societies were

15 approved by the board. So I think it's the most

16 definitive report on the vegetative state."

17 Also, Your Honor, I have a number of our cases

18 which have cited -- made citations to this

19 particular article. In addition, Your Honor, there

20 is a case, the Kirpatrick versus Walther case in

21 which --

22 MS. ANDERSON: Your Honor, we have stipulated

23 that the New England Journal is authoritative. I

24 don't know what Mr. Felos is doing. And I'd really

25 move to strike the hearsay comment.






424

1 THE COURT: So he may use this to examine the

2 witness?

3 MS. ANDERSON: Well, we stipulated that the

4 New England journal is authoritative.

5 MR. FELOS: Well, if the Court is declaring it

6 is authoritative, then that solves that.

7 THE COURT: I don't need to declare it. It

8 was stipulated. That's better than me declaring it

9 because it is not subjects to review.

10 BY MR. FELOS:

11 Q. On page 1502 of the report?

12 MS. ANDERSON: Wait a minute, please. Give me

13 a copy of the report if you're going to quote from

14 it.

15 MR. FELOS: Your Honor, I don't have a copy.

16 This is my only copy.

17 MS. ANDERSON: In this case, I will ask the

18 Court not to permit Mr. Felos to read portions of

19 the report into evidence.

20 THE COURT: Well, he is going to ask a

21 question based upon the report.

22 MS. ANDERSON: Well, I don't want him to read

23 the report. Particularly, when I don't have a copy

24 of it.

25 MR. FELOS: Well, Your Honor, we can take a






425

1 break and make a copy, if that's the issue. I'm

2 sorry I don't have an additional copy because I'm

3 not introducing it into evidence. I'm using it to

4 cross-examine the witness as is permitted by the

5 rules.

6 THE COURT: Go ahead.

7 BY MR. FELOS:

8 Q. On page 1502 of the report, it defines coma

9 as -- well, let me read it to you. "Coma is deep

10 sustained pathologic unconsciousness that results from

11 the assumption of the attending particular activating

12 system in need of the brain stem or multi cerebral

13 hemispheres. The eyes remain closed and the patient

14 cannot be aroused."

15 Do you agree with that definition?

16 A. I think it's a good definition of coma.

17 Q. Now what is a vegetative state?

18 A. A vegetative state is a form of a coma.

19 Q. Well, what is the primary distinguishing

20 characteristic between a coma and vegetative state?

21 A. A vegetative state is where a patient who was

22 in a coma appears to be alert and not in coma.

23 "Appears" is the operative word.

24 Q. Would you agree that the distinguishing

25 feature is that a patient in a vegetative state does has






426

1 a super sleep cycle?

2 A. I believe they may have a super sleep cycle.

3 Q. You believe that a person in a coma may have a

4 sleep cycle?

5 A. The patient in the vegetative state.

6 Q. Now, you mentioned that a vegetative state is

7 a type of a coma. Do I have it from that that,

8 according to your definition, in a vegetative state, a

9 patient has no responsiveness to the environment?

10 A. A patient appears to be cognizant and aware of

11 the environment and responds to his environment.

12 Q. So, according to your definition of a

13 vegetative state, if a patient responds in any way to

14 their environment or surroundings, they are not in a

15 vegetative condition?

16 A. I think I would have to see a specific

17 patient, a specific type of response to render an

18 opinion on that.

19 Q. Well, what response to the environment or

20 surroundings, Dr. Hammesfahr, can you think of which

21 would not contraindicate a vegetative state?

22 A. Can you rephrase the question?

23 Q. Dr. Hammesfahr, can you think of a response to

24 the environment that a patient could have and still be

25 in a vegetative state?






427

1 A. Yes.

2 Q. And what are those responses?

3 A. I think the patient can have a startle

4 response and still be in a vegetative state.

5 Q. Any other responses that you can think of?

6 A. They may have also a brief oriented reflex,

7 also.

8 Q. So, then, there are situations -- well, would

9 you agree that the fact that a patient can voluntary

10 respond to the environment does not, by itself,

11 contraindicate a vegetative state?

12 A. I think a person can have certain reflexes and

13 still be in a vegetative state.

14 Q. Now, is it true that one of the reasons that

15 you concluded -- or, you concluded that Terry Schiavo is

16 not in a vegetative state; is that correct?

17 A. Correct.

18 Q. And is one of the reasons to support that

19 conclusion is that you believe she responds to pain?

20 A. Yes, she does respond to pain.

21 Q. Now, can't a response to pain be an

22 involuntary response, Dr. Hammesfahr?

23 A. Yes, you can have involuntary response to

24 pain.

25 Q. So the mere fact that Terry Schiavo responds






428

1 to pain does not necessarily mean she is not in a

2 vegetative state, does it?

3 A. I have seen patients in a vegetative state

4 respond to pain.

5 Q. Dr. Hammesfahr, let me -- I want you to refer

6 to the report that you wrote and was filed in this case.

7 That's a September 12, 2002 report. Are you familiar

8 with the report?

9 A. Yes.

10 Q. There is a portion of your report in which you

11 are reciting Terry's medical history?

12 A. Correct.

13 Q. And I want to bring your attention to your

14 recitation of her medical history at Mediplex in

15 Bradenton. And let me read to you this little paragraph

16 from your report.

17 "She was eventually transferred to Mediplex in

18 Bradenton for intensive rehabilitation. She was poorly

19 responsive. However, after a brain stimulator was

20 placed in 11/90, the staff started to report greater

21 interactions of the patient with her environment,

22 including, intermittently apparently following commands,

23 turning head to voice, tracking visually, et cetera."

24 Do you recall that, Dr. Hammesfahr?

25 A. Yes.






429

1 Q. On what did you base is that statement in your

2 report?

3 A. It was on review of my notes of the records.

4 Q. Of Mediplex medical records that you reviewed?

5 A. Of the records provided to me, which were

6 extensive.

7 Q. Now, I gather from your statement in the

8 report that the brain stimulator was placed on the

9 patient while she was at Mediplex in Bradenton?

10 A. I don't recall at this time.

11 Q. Let me show you Petitioner's Exhibit 4, which

12 is already in evidence. And these are the discharge

13 summaries from Mediplex Rehab in Bradenton.

14 Would you agree in looking at the admission

15 and discharge statement in the first place that these

16 records reflect the patient was admitted to Mediplex in

17 Bradenton on January 29, 1991?

18 A. Yes, I would.

19 Q. So your statement in the report that the brain

20 stimulator was placed in the patient at -- in November,

21 1990, that would not indicate that it was placed in the

22 patients while she was in Mediplex, would it?

23 A. No, it would not.

24 Q. So that information in your report is

25 incorrect?






430

1 MS. ANDERSON: Objection. That's improper

2 impeachment. That's not a what the report said.

3 MR. FELOS: It certainly is what it says.

4 THE COURT: I'm not sure how relevant that is

5 for me to decide.

6 BY MR. FELOS:

7 Q. Now, the records do reflect that the -- after

8 implantation before the patient went to Mediplex, that

9 her brain was stimulated while at Mediplex, doesn't it?

10 A. Yes.

11 Q. Now, you state in your report that the staff

12 reported - and I want to point out a particular thing.

13 The patient intermittently apparently followed
commands.

14 Now, I would like you to read, if you can,

15 from page two of Petitioner's Exhibit 4, the last

16 sentence, paragraph two.

17 A. Do you want me to read it aloud?

18 Q. Yes.

19 A. "Terry's best try has a range of two to three

20 at this time but does not even and consistently respond

21 to commands."

22 Q. What is the basis for your report statement

23 that the nurses report Terry intermittently apparently

24 follow commands?

25 A. It was the basis of review of notes and what






431

1 they said.

2 Q. Would you agree that the discharge summary

3 indicates otherwise?

4 A. This discharge summary indicates otherwise,

5 yes.

6 Q. Now, is it your contention in your report that

7 the patient improved while at Mediplex in Bradenton?

8 Now, I believe there was some testimony here upon direct

9 examination and in your reading of the records, was it

10 your impression that the patient improved while at

11 Mediplex in Bradenton?

12 A. It was my impression at the time that she was

13 more functional during her period at Mediplex and

14 before, yes.

15 Q. I want to you look at the last page of

16 Petitioner's Exhibit 4 and read the last sentence.

17 A. "Overall, Mrs. Schiavo has remained medically

18 stable; however, showed no improvements."

19 Q. Do you have any explanation why in the

20 discharge summary the doctor had stated that she is

21 showing no improvement, while you conclude from your

22 review of her medical records there she had?

23 A. I cannot.

24 Q. I believe on direct examination you also

25 stated that the records reflected that Terry Schiavo






432

1 spoke at Mediplex in Bradenton. I didn't see anything

2 in the discharge summarize to that effect.

3 On what information do you base that

4 conclusion?

5 A. My review of the records, which were

6 extensive. In it I found a some of nursing staff

7 reported and physical therapy reported intermittently

8 the patients saying words in an appropriate setting.

9 Q. You believe that Mrs. Schiavo has a spinal

10 cord injury?

11 A. Yes.

12 Q. Now, Mediplex rehab in Bradenton, are you

13 familiar with that facility?

14 A. No.

15 Q. You are not aware that is a treatment facility

16 for brain and spinal cord injuries?

17 A. No.

18 Q. Why is it -- do you know why it is that no one

19 at Mediplex ever found any evidence of a spinal cord

20 injury?

21 A. No.

22 MS. ANDERSON: That was a non-foundation

23 question; objection.

24 THE COURT: I have a question, Mr. Felos. I'm

25 suppose to hold this hearing only for the purpose






433

1 of discussing her current medical condition, the

2 nature of the new medical treatment, and the

3 acceptance of the treatment in the relevant

4 scientific community, the probable efficacy of the

5 new treatment, and any other factors the trial

6 court deems relevant. What does Mediplex have to

7 do with any of those?

8 MR. FELOS: Well, it has a number of things to

9 do with it, Your Honor. The witness's opinion as

10 to Terry Schiavo's condition and her prognosis is

11 in part due from his review of her medical history.

12 MS. ANDERSON: There is no evidence in this

13 testimony today that that's the case.

14 MR. FELOS: Well, it's certainly in his

15 report.

16 THE COURT: The report --

17 MS. ANDERSON: The report is not in evidence.

18 THE COURT: The report is not in evidence.

19 Now, if you want to impeach him on what he has

20 testified to, fine. But let's not dredge up things

21 to get him to say and then impeach him in his

22 report. Unless the report is moved into evidence,

23 I'll not read it.

24 MR. FELOS: Your Honor, this is his report of

25 his evaluation and examination of the patient.






434

1 And, certainly, if he has had -- if he makes

2 statements that are not consistent with the record

3 and medical information, I think that's fair

4 impeachment.

5 MS. ANDERSON: Judge, may I have --

6 THE COURT: How do you impeach someone on

7 something that's not in evidence?

8 MR. FELOS: Well, number one, Your Honor, did

9 he testify on direct examination that the patient

10 improved at Mediplex and also that the patient

11 spoke at Mediplex.

12 MS. ANDERSON: He did not.

13 THE COURT: I don't think so.

14 MR. FELOS: I recall that.

15 THE COURT: I do not. And maybe one of us has

16 a better memory than the other, but I do not recall

17 that. First time I heard that this afternoon or

18 today I think is on cross-examination.

19 MR. FELOS: And also, Your Honor, I don't know

20 if Dr. Hammesfahr's medical report is going to be

21 introduced into evidence or sought to be introduced

22 into evidence at a later stage in these proceedings

23 at the conclusion of Respondent's case. I don't

24 have an opportunity to call back Dr. Hammesfahr and

25 question him about his report if it is subsequently






435

1 introduced into evidence.

2 THE COURT: Well, the fact that she may have a

3 spinal cord injury when he examined her, obviously

4 every day of her -- assuming she does have, for the

5 purpose of this discussion. Every day prior to her

6 sustaining, she didn't have it. Now, are you going

7 to take every day of her life from Mediplex up

8 through then and see if you can discount every

9 single day she didn't have it. I don't know where

10 you're going with that.

11 I have a direction given me by the Second

12 District Court of Appeals that I need to make some

13 decisions and I'm not sure how this helps me make a

14 decision.

15 MR. FELOS: Well, Your Honor, we have an

16 assertion that she has a spinal cord injury. I

17 think it's a fair statement to ask why in all of

18 these years and all of these x-rays and all of

19 these doctors who have examined a patient, there is

20 no evidence a spinal cord injury.

21 MS. ANDERSON: Well, what mystery is that?

22 The only evidence we have of how she has been

23 treated over these intervening years is from

24 Dr. Gambone.

25 MR. FELOS: No, we have the medical records






436

1 that the witness revised.

2 MS. ANDERSON: They are not in evidence.

3 MR. FELOS: No, but he took them into account

4 in forming his opinion.

5 THE COURT: Why don't you just ask him did he

6 find anything in the medical records that he

7 reviewed that leads him to conclude she had a

8 spinal cord injury at some point prior to him

9 examining him?

10 MR. FELOS: I was going to ask him that.

11 THE COURT: Well, why don't we go right there.

12 I think that's legitimate. But Mr. Felos, you're

13 going back to 1991. And I'm assuming you're going

14 to go agonizingly through every other place she

15 was.

16 MR. FELOS: No, I was not intending upon doing

17 that, Your Honor.

18 THE COURT: Well, maybe you need to give me a

19 sign. I don't know.

20 BY MR. FELOS:

21 Q. Dr. Hammesfahr, in your review of the

22 patient's medical records, did you find any diagnosis of

23 spinal cord injury?

24 A. No.

25 Q. Have you reviewed Dr. Maxfield's report in






437

1 this matter?

2 A. Prepared for Ms. Anderson?

3 Q. Yes.

4 A. No, I haven't.

5 Q. Doctor, do you know whether Dr. Maxfield has

6 reported any evidence of a spinal cord injury?

7 A. No, I do not.

8 Q. Dr. Hammesfahr, you testified a number of

9 times on your direct examination that Mrs. Schiavo can

10 swallow her saliva. In determining whether or not a

11 person is in a persistent vegetative state, why is that

12 fact important, in your opinion?

13 A. I don't think it's important in determining

14 whether she's in a vegetative state.

15 Q. So you would agree, then, that vegetative

16 patients also have the reflexive ability to swallow

17 saliva?

18 A. Frequently.

19 Q. Is it your contention that you feel the

20 patient is aware because she responds to visual outlooks

21 and sounds?

22 A. It is my belief that she is aware in part

23 because of her ability to visually track and visually

24 respond to objects in her surroundings.

25 Q. I want you to read a portion of the Medical






438

1 Aspects of the Vegetative State.

2 MS. ANDERSON: I'm sorry. You want to read a

3 portion of what?

4 MR. FELOS: The Medical Aspects of the

5 Vegetative State.

6 BY MR. FELOS:

7 Q. On page 1500, they say "As a result of the

8 relevant preservation of brain stem functions, most

9 patients in a vegetative state retain good to normal

10 reflexive regulation of vision and eye movement. Would

11 you agree with that?

12 A. I don't have any argument with that.

13 Q. Now, they also say, "Patients in a vegetative

14 state often have inconsistent primitive auditory or

15 visual reflexes characterizing the turning of the head

16 and eyes towards peripheral sounds or movements."

17 Would you agree with that?

18 A. We can see proof of auditory visual reflexes,

19 yes.

20 Q. "And in rare cases, in rare cases, patients

21 who have no other evidence of consciousness over a

22 period of months or years have some degree of briefly

23 sustained visual pursuit or fixation which is believed

24 to be mediated in the brain stem structures." Would you

25 agree with that?






439

1 A. I'm not sure what they mean by that.

2 Q. What part of that do you not understand?

3 A. Well, if you read it again.

4 Q. "In rare cases, patients who have no other

5 evidence of consciousness over a period of months or

6 years, have some degree of previous sustained visual

7 pursuit or fixation which is believed to be mediated in

8 the brain stem structures?

9 A. Well, they are describing visual pursuit or

10 fixation and describing a period of time associated with

11 that visual pursuit or fixation. I'm not sure what

12 they're actually describing as far as visual pursuit or

13 fixation. I also don't understand what they mean by the

14 term brief.

15 Q. Now, isn't it true that Terry Schiavo may turn

16 her heads or eyes towards sound and the fact that she

17 does that significant of a binary or auditory or visual

18 oriented reflex?

19 A. It may be in certain situations that she does

20 it.

21 Q. Now, what specifically on the tapes,

22 Dr. Hammesfahr, is an example of a same reproducible

23 visual or auditory response?

24 MS. ANDERSON: Objection; vague. I'm not sure

25 what tape he is referring to.






440

1 MR. FELOS: The tapes you saw today.

2 THE COURT: Overruled. You can answer the

3 question.

4 THE WITNESS: Well, I think I described that

5 as we went through the tapes. The differences

6 between reflexive activities that the person

7 sustained and persistent visual gaze patterns.

8 Certainly, her tracking of objects in her visual

9 fields was an example of a voluntary action.

10 BY MR. FELOS:

11 Q. Would you agree that Terry Schiavo was not

12 immobile?

13 A. Terry Schiavo has very limited mobility,

14 extremely limited. Now, we almost have to get into

15 defining mobility because she obviously can't transfer

16 from bed to a chair on her own.

17 Q. Is mobility, a lack of mobility -- or is

18 mobility contraindicative of a vegetative state?

19 A. Could you define mobility to me?

20 Q. Well, let me ask you if you would agree with

21 this: Reading from page 1500. "Patients in a

22 vegetative state are usually not immobile. They may

23 move the trunk or limbs in meaningless ways. They may

24 occasionally smile, and a few may even shed tears. Some

25 utter grunts, on rare occasions moan or scream." Would






441

1 you agree with that?

2 A. I think it depends on the specific patient and

3 specific situation. As to whether that patient moans

4 represents a person that has PVS or maybe represents a

5 person with a locked-in syndrome.

6 Q. Well, the fact that Terry Schiavo moans in and

7 of itself doesn't indicate a vegetative condition?

8 A. Moaning in a vegetative state patient is

9 something that is a regular activity or response to

10 internal pain or external pain situation. We don't see

11 that random meaning quality in her. Her vocalizations

12 to sounds she makes do not represent a vegetative state

13 pattern.

14 Q. Weren't there instances of Terry moaning on

15 the tape for no apparent reason?

16 A. I don't recall.

17 Q. Now, we talked in your testimony about eye

18 movements. Now, I notice on the tape on occasion Terry

19 opens her eyes, closes her eyes, and blinks her eyes; is

20 that correct?

21 A. Yes.

22 Q. Now, if someone were to say to Terry, Terry --

23 let's say her eyes were closed -- "Terry open your eyes,

24 eventually they would open at some time, wouldn't they?

25 A. I would think that might happen to some






442

1 degree.

2 Q. And the converse is true; if Terry is not

3 blinking her eyes, if you ask Terry, blink your eyes,

4 isn't it also true that sooner or later she'll blink her

5 eyes?

6 A. I don't think that sooner or later a person

7 would blink their eyes.

8 Q. So, then, opening her eyes, closing her eyes,

9 blinking her eyes is no indication of cognitive

10 awareness, is it?

11 A. In that setting that you are describing, it

12 depends on the situation.

13 Q. Now, you talked in your direct examination

14 about delay in processing. How is one to know

15 whether -- if you say -- if Terry's eyes are closed and

16 you say, Terry, open your eyes, and five minutes later

17 she does, how is one to know whether that's a random

18 action or a delay in the processing of a command?

19 A. Depends upon the specific situation.

20 Q. Would you agree that that will be extremely

21 difficult to tell?

22 A. No. It may be or may not be. It depends upon

23 a specific situation.

24 Q. Now, you talked about your treatment of

25 vasodilation. Now, is that treatment dependent upon






443

1 there being live brain tissue?

2 A. Are you talking about my treatment on

3 vasodilation?

4 Q. Yes.

5 A. I assume we are using it for treatment of a

6 brain injury?

7 Q. Yes.

8 A. If there is a brain injury, then there is

9 still existent brain.

10 Q. And you don't claim that your treatment can

11 regenerate dead brain tissue?

12 A. No.

13 Q. And if brain tissue was already dead,

14 increasing the blood flow to it would not improve the

15 patient's neurological condition, would it?

16 A. Increasing the blood flow would not improve

17 the function of a dead brain, no.

18 Q. Now, do you review the results of the CT scan

19 that was performed in July?

20 A. I reviewed one from July, yes, or that time

21 frame. I'm not sure exactly when it was.

22 Q. What was your reading of the -- excuse me.

23 What do you recall the test results say? What were the

24 results of the test that were reported by the physician?

25 I think we have that in an exhibit.






444

1 MR. FELOS: Your Honor, could you hand me -- I

2 believe it's Exhibit Number 3.

3 BY MR. FELOS:

4 Q. That is Petitioner's Exhibit 3 in evidence.

5 Is that the results of the CT scan in July?

6 A. Yes, it is.

7 Q. Do you agree with the reading of the -- on

8 those results?

9 A. I agree with the impression; although, I'm not

10 entirely sure about whether the hydrocephalus is

11 entirely a hydrocephalus ex vascular or whether there

12 are other elements of hydrocephalus.

13 Q. Do you agree with their report that there is

14 varying brain matter in the cerebral hemispheres?

15 A. No.

16 Q. Now, to have cognitive brain function, Dr.

17 Hammesfahr, don't you have to have operating neurons?

18 A. Yes.

19 Q. And aren't there a different type of cells in

20 the brain besides neurons?

21 A. Yes.

22 Q. And what type of cells are those?

23 A. There are a lot of different type of cells in

24 the brain.

25 Q. What are neuroglial cells?






445

1 A. The neuroglial cells are equivalent to

2 fibroblasts in the rest of the body. They develop and

3 form the structure on which the neurons live and on

4 which the axon, which are wires to the brain, are able

5 to pass and travel. Neuroglial cells complete that

6 structure.

7 Q. So as I understand it, the glial cells connect

8 the tissue to the brain that supports the neurons?

9 A. Right.

10 Q. Now, if you have live glial cells in the

11 brain -- if you have an area where there are live glial

12 cells but dead neurons, could that portion of brain be

13 restored to function?

14 A. Maybe. Esoteric of stem cells, no. That's

15 exactly that theory where you have that structure of

16 stem cells to regenerate neuron tissue in that region.

17 Q. Could your therapy restore function to an area

18 with live glial cells but dead neurons?

19 A. That's not the purpose of my therapy.

20 Q. Okay. So is the answer to that question is

21 no?

22 A. No. The answer is actually I don't know.

23 Q. Could you explain to me how restoring the

24 blood flow to glial cells in an area where there are

25 dead neurons could increase the cognitive function of






446

1 the patient?

2 A. We are now in the role of speculation and

3 hypothesis. It is not part of the actual -- my plan of

4 treatment. If you want me to speculate, I will be happy

5 to speculate, but it is pure speculation.

6 Q. Dr. Hammesfahr, do you assert that an

7 otherwise responsive person can be put in a vegetative

8 state as a result of a minor infection?

9 A. I think a minor infection that places somebody

10 to a vegetative state is, by definition, not a minor

11 infection.

12 Q. Well, do you recall I asked you on July 10 --

13 I'm reading from page 220 of your transcript, line 24.

14 "You know, if you have a kidney stone that has a minor

15 infection in it, it could take a person from more

16 responsive to less responsive. It can take a person

17 from a responsive individual into a persistent

18 vegetative state."

19 Can you explain the difference in your answer

20 back in July when I took your deposition?

21 A. Well, it's a difference in the way you

22 interpreted the question. The point I was trying to

23 make previously is when you have a neurologically

24 injured individual, that person is not normal by

25 definition; they're neurologically injured. They will






447

1 tend to not function and not respond to the world around

2 them and actually deteriorate their abilities slightly

3 with very minor other problems in the body. So you can

4 have a person who's responding -- in fact, our emergency

5 rooms have them frequently, who responds in the

6 functions in the home and then get a urinary tract

7 infection that is brought into the hospital

8 unresponsive, but it's a urinary tract infection without

9 actual leakage of the bacteria that will corrupt the

10 body raising the blood pressure.

11 So the point I was trying to reach there is if

12 you have a neurologically compromised individual, that

13 person could be more or less compromised based on what

14 else is happening in the body, based on minor

15 infections, sore throats. Now, if you have a normal

16 person, like any of us in this room, and give us minor

17 infections, I will not expect that to take a person into

18 an apparent PVS state.

19 Q. In your review of the medical records, did you

20 find any neurologist who gave a diagnosis to

21 Terry Schiavo other than me of a persistent vegetative

22 state?

23 MS. ANDERSON: Objection, Your Honor. He is

24 asking -- I think he is asking him to comment on

25 the opinion of other physicians, which is kind of a






448

1 back-door way of violate this rule about the

2 impropriety of one expert commenting on the opinion

3 of another expert. He can only comment on

4 methodology.

5 MR. FELOS: I don't understand that objection,

6 Your Honor. I'm just asking him if he found

7 another diagnosis in his review of the medical

8 records.

9 THE COURT: That's not commenting upon it.

10 It's stumbling over it. Object overruled.

11 THE WITNESS: I don't recall.

12 BY MR. FELOS:

13 Q. You don't that think if you saw a doctor's

14 diagnosis in your review medical records that

15 Terry Schiavo was not in a persistent vegetative state,

16 you don't think you would remember that?

17 A. Are you asking for all doctors?

18 Q. Well, let's confine it to neurologist.

19 A. I don't recall.

20 Q. That wasn't the question. My question was:

21 In your review of the medical records, if you saw a

22 diagnosis from a neurologist that Terry Schiavo was not

23 in a persistent vegetative state, you don't think you

24 would remember that?

25 A. Obviously, I don't remember it. I don't






449

1 recall.

2 THE COURT: Okay. Let's take a ten-minute

3 break, if we can.

4 (Whereupon, a short recess was taken after

5 which the following proceedings transpired:)

6 BY MR. FELOS:

7 Q. Dr. Hammesfahr, you had requested on July 10

8 certain tests to be performed on Terry Schiavo, didn't

9 you?

10 A. Yes, I did.

11 Q. And you had requested a -- I believe you had

12 requested an ultrasound of a gallbladder; is that

13 correct?

14 A. Well, of that general region of body. I was

15 interested in ultrasound.

16 Q. Well, didn't you specifically request an

17 ultrasound of the gallbladder?

18 A. Yes. I was concerned about possible leftover

19 residual gallbladder tissue in that area.

20 Q. Explain to me how possible residual

21 gallbladder tissue could possibly be relevant in any way

22 in testing the woman's condition?

23 A. Again, it probably wasn't, of course, but we

24 had to ask for every test that we thought might be

25 potentially of value without first seeing the patient.






450

1 So we did that for a backward situation.

2 One thing that can happen with patient is that

3 we had a surgery removing the gallbladder and had the

4 gallbladder removed, that some tissue can be left behind

5 resulting in an infection that can be seen resulting in

6 changes.

7 Q. You testified on direct examination, I

8 believe - and correct me if I am wrong - that you

9 treated approximately 100 patients with anoxic

10 encephalopathy?

11 A. That would be my best guess at this time.

12 Q. Of those 100 patients, how many were in the

13 same condition or worse than Teresa Schiavo?

14 A. Sixty. Again, I would say I have seen worse.

15 We are talking about since 1995 or '94.

16 Q. And those 60, how many came to you for

17 treatment more than five years after their acute

18 incident or acute injury?

19 A. I don't know.

20 Q. There have been a normal number of medical

21 articles and abstracts introduced. Do any of them say

22 that Toradol is an effective medication for treatment of

23 the vegetative -- a patient in a vegetative condition?

24 A. No.

25 Q. Do any of them say nitroglycerin is an






451

1 effective medication for a patient in a vegetative

2 condition?

3 A. No.

4 Q. Now, I believe you testified here are major

5 studies around the world that show that your

6 vasodilation techniques work; is that correct?

7 A. I don't think that's quite the testimony.

8 Q. What did you say?

9 A. I think what I was saying is that there are

10 major studies around the word that discuss vasodilation,

11 how vasodilators improve the central nervous system's

12 function and prevents stroke.

13 Q. So those studies don't say, do they, that

14 vasodilation technique is a technique to remedy a

15 permanent persistent vegetative condition?

16 A. I don't know of studies that say that.

17 Q. Now, I believe in evidence was an article that

18 you authored; is that correct?

19 A. Correct.

20 Q. From your pile there, Dr. Hammesfahr, can you

21 show me Exhibit 17, which I believe is in the pile?

22 A. Yes, I can.

23 Q. Thank you. Now, of the subjects of your study

24 for your article, wasn't the predominant group of

25 subjects whiplash patients?






452

1 A. The predominant group of people in my article

2 there I think were brain injury patients.

3 Q. Let me read to you on your first page of your

4 article abstract, "A clinical review and correlation

5 among 38 whiplash patients, 19 patients with MS like

6 syndrome, and one with MS associated breast implants, as

7 well five migraine patients."

8 A. Okay.

9 Q. And my question is: Wasn't the primary group

10 of subjects in your article whiplash patients?

11 A. They did have whiplash as some of their

12 problems, yes.

13 Q. Well, you described them in your own words as

14 whiplash patients; is that correct?

15 A. In that sense, yes.

16 Q. Were any of those patients in your article in

17 a condition equal to or more severe than Teresa Schiavo?

18 A. No.

19 Q. Do you -- of the materials that had been filed

20 that the court introduced, the articles and abstracts,

21 do any of them contend that calcium channel blockers are

22 an effective treatment modality for a patient in a

23 vegetative condition?

24 A. I think some of them discovered the use of

25 calcium channel blockers in the use of coma patients. I






453

1 don't believe there is a differentiation for vegetative

2 patients.

3 Q. Do you know which articles?

4 A. I don't know right now. But I can look

5 through this right now, if I take a moment.

6 Q. Can you recall any articles, any of these

7 articles contending that the use of Statins is an

8 effective treatment to improve neurological condition of

9 vegetative patients?

10 A. No, they don't.

11 Q. Now, you mentioned a couple names of patients

12 who I believe were in the courtroom earlier. One was

13 one of those Miriam Sapiro.

14 A. Yes.

15 Q. And do I recall your testimony correctly that

16 using your vasodilation therapy, she had cognitive

17 improvement?

18 A. Yes.

19 Q. What was her condition when she first came to

20 you?

21 A. She had a brain injury from an accident.

22 Q. Was she able to speak when she first came to

23 you?

24 A. Yes.

25 Q. Was she able to walk when she first came to






454

1 you?

2 A. Yes.

3 Q. And the name of the other patient was a

4 Ray Robinson; is that correct?

5 A. Robbie Robinson.

6 Q. Robbie Robinson. And he had a cardiac arrest?

7 A. The patient was Dr. Edward Robinson, and he

8 had a stroke. The patient -- the person I referred to

9 was Robbie Robinson, his daughter.

10 Q. So that patient was not in the audience, her

11 father?

12 A. Correct.

13 Q. Now, Dr. Robinson, what was his condition when

14 he first came to you?

15 A. Dr. Robinson had very severe memory problems,

16 balance problems, and paralysis.

17 Q. Could Dr. Robinson talk at all when he first

18 came to you?

19 A. Yes, he could.

20 Q. Could he walk at all?

21 A. He could walk slightly.

22 Q. Now, would you agree there's some patients who

23 come to you for your therapy who see no improvement?

24 A. That occurs, but it appears to be very rare.

25 Q. Now, you paid particular attention to -- I






455

1 believe it was articles 77 and 88, which are marked as

2 numbers 77 and 88. Now, let me read you the title so I

3 make sure that we are talking about the same articles

4 that you testified that are particularly significant.

5 One marked 77 is "Effects of an angiotensin converting

6 enzyme in Perindopril on cardiovascular events in high

7 risk patients"?

8 A. Yes, it is.

9 Q. And the other article, Exhibit 88, concerns

10 Perindopril base blood pressure lowering; is that

11 correct?

12 A. Yes.

13 Q. Now, am I correct in my understanding that

14 these articles stand for proposition that the treatments

15 or medications proposed have a significant effect in

16 reducing stroke?

17 A. Correct.

18 Q. Do either of those articles contend that

19 application of their treatments or medications improve

20 the neurological condition of a patient in a vegetative

21 state?

22 A. No.

23 Q. Are you -- do you contend today,

24 Dr. Hammesfahr, that Terry Schiavo has normal pressure

25 hydrocephalus?






456

1 A. I don't know for sure.

2 Q. Do you have the contention that she has

3 hydrocephalus ex vascular?

4 A. I think she does have hydrocephalus ex

5 vascular. You can have, of course, both conditions in

6 the same person.

7 Q. And hydrocephalus ex vascular is a condition,

8 isn't it, where the accumulation of cerebral spinal

9 fluid as a result of atrophy of the brain?

10 A. Correct.

11 Q. And, of course, in those portions of

12 Terry Schiavo's cerebral cortex, because her brain has

13 atrophied and been replaced by cerebral spinal fluid,

14 there is no hope of reviving function in that?

15 MS. ANDERSON: Judge, I want to object on lack

16 of foundation grounds.

17 MR. FELOS: Excuse me. Would you read back

18 the question.

19 (Whereupon the court reporter read back the

20 requested portion.)

21 MR. FELOS: Your Honor, I don't know if I said

22 what was read back. But if I did, I want to

23 rephrase it because I didn't understand the

24 question.

25 THE COURT: But I understood it. It sounded






457

1 like what you said. But be that as it may. If you

2 rephrase it, then we will take care of

3 Ms. Anderson's objection.

4 BY MR. FELOS:

5 Q. Those areas of Terry Schiavo's cerebral cortex

6 have been replaced by cerebral spinal fluid because the

7 brain has atrophied, would you agree?

8 MS. ANDERSON: Mr. Felos is testifying. There

9 is no foundation.

10 THE COURT: Yes, there is. This witness

11 testified she had some hydrocephalus ex vascular,

12 which is where there is water that has replaced

13 brain.

14 MS. ANDERSON: Doctor, if you can answer the

15 question, go for it. I don't think that's what he

16 said, so I'm just renewing my objection.

17 BY MR. FELOS:

18 Q. Can you go ahead and answer the question?

19 A. Yeah, I did, I think. Let me say this. In

20 the area of brain atrophy, where there is truly brain

21 death, no surviving tissue, sort of stem cells

22 regenerating, which can be from the brain itself or be

23 from reviving by surgery, sort of, stem cell reviving,

24 that is there forever.

25 Q. Okay. Thank you.






458

1 A. Hold on. I'm not done yet.

2 The second question is he in hydrocephalus ex

3 vascular, where you can have brain atrophy and spinal

4 fluid, extra spinal fluid may be in an area because of

5 the atrophy of the brain. And atrophy has two terms

6 here. The first is dissolved brain tissue. The second

7 is shrunken neurons. In the case where you have

8 shrunken neurons due to poor blood flow, those neurons

9 may regenerate the size thus reducing the region. So in

10 this case, some of that resolves. In the case of

11 hydrocephalus, that is non-communicating hydrocephalus

12 means there is a build to the pressure in the sender of

13 the brain squeezing and squishing parts of that brain

14 tissue.

15 If that then is removed, you may have the

16 expansion of the existing brain tissue into the area

17 that was previously filled with spinal fluid. So if we

18 say hydrocephalus ex vascular, I have to say that maybe

19 that would actually get better with proper treatment.

20 If we add on the fact that there are other conditions

21 she has, or may have those other conditions, if she has

22 them, it would be expected that the hydrocephalus will

23 lessen. And we have seen patients with cerebral

24 atrophy, once they get treatment, those areas shrink in

25 size when the brain matter increases in size.






459

1 Q. But you testified that you can't say within a

2 reasonable degree of medical probability that Terry has

3 normal pressure hydrocephalus. I think you called it

4 non-communicating?

5 A. I called it non-communicating. No, I can't.

6 Q. Okay. Thank you. Is there any in the medical

7 literature submitted into evidence -- is there anything

8 in that literature which states you need to have a blood

9 pressure reading before doing a neurological exam?

10 A. I don't know.

11 Q. Could you cite to me a treatise or article

12 that says you have to have a blood pressure reading for

13 a neurological exam?

14 A. I think you will find that in knowledge of the

15 blood pressure at the time of the neurological

16 examination be found in almost any basic text designed

17 for training residents in neurology. At some point in

18 that text.

19 Q. Now, you talked in your direct examination

20 about a startle reflex. And I believe you used the term

21 overriding a startled reflex. Do you recall that?

22 A. Yes.

23 Q. What did you mean by that?

24 A. All of us, at some time, will have -- all of

25 us virtually throughout the day will have a startled






460

1 reflex present for much of our waking hours as well as

2 our light sleeping hours. If you go to a child and clap

3 above their head when they are sleeping, you see them

4 jump. That's a startled reflex. But we do don't go

5 through the day jumping. That's because the higher

6 cognitive functioning tends to suppress that reflex in

7 us, and that's what we were seeing with her. Most of

8 our times, you don't see that happening. You don't see

9 a controlling aspect to the reflex.

10 Q. So being able to suppress the reflex is

11 indicative of cognitive function?

12 A. Yes.

13 Q. Or overriding reflex is indicative of

14 cognitive function?

15 A. It is indicative of higher cerebral

16 functioning, which usually accompanies cognitive

17 functioning.

18 Q. On a newborn, isn't a reflex to clasp its

19 fingers when pressure is put on the palm?

20 A. It could be.

21 Q. And I'm sure you have often seen that, when

22 you put your fingers in a baby's hands and it will

23 close; would you agree we that?

24 A. And they also not close, too.

25 Q. Now, when you were asking Terry to grasp --






461

1 you had your fingers inside of her hands when you were

2 asking her to grasp your hand or apply pressure. Did

3 you testify that you were putting pressure on her palm

4 or touching her palm?

5 A. I was, at times, giving her a squeeze.

6 Q. A squeeze. Now, wouldn't her squeezes, then,

7 be indicative of a lack of cognition because of her

8 inability to override her reflex to grasp?

9 A. What I felt was not a reflex.

10 Q. Well, how do you know?

11 A. I've spent a lot of time in neurology. I've

12 dealt with and have examined a lot of patients. What I

13 had there was not a reflex.

14 Q. Well, would you agree that if an adult patient

15 repeatedly grasped or closed the hand to pressure on the

16 palm, that would be indicative of a reflex action?

17 A. That a patient repeatedly squeezes in response

18 to pressure?

19 Q. Yes.

20 A. That would represent what?

21 Q. That would represent a reflex action.

22 A. No, I wouldn't.

23 Q. You mentioned a number of times that saliva is

24 harder to swallow than anything else. Do you recall

25 that?






462

1 A. Liquid is harder to swallow than anything

2 else.

3 Q. In the literature that has been presented into

4 evidence, is that in any of those treatises or

5 abstracts?

6 A. No.

7 Q. Now, as I understand your direct testimony,

8 you mentioned that the drive to contract muscles is part

9 of or indicative of a persistent vegetative state, and

10 because you were able to massage, extend Terry's left

11 arm, that that was indicative that she is not

12 vegetative. Is that a correct restatement of your

13 testimony?

14 A. No.

15 Q. Well, let's take that part by part. Do you

16 contend that the drive to contract muscles is part of a

17 persistent vegetative state?

18 A. It is frequently seen in a persistent

19 vegetative state.

20 Q. Okay. Now, Terry's neck area contracted,

21 right?

22 A. Yes.

23 Q. So why isn't the crux of her neck area

24 indicative of her vegetative status rather than

25 indicative of a spinal cord injury, as you testified?






463

1 A. You know, I have examined a large number of

2 comatose patients over the years that were felt to be in

3 a vegetative state, and I never have felt a neck like

4 that in anyone except for one other patient in all of

5 those years.

6 Q. Now, I believe you testified that Terry does

7 suffer from contractures?

8 A. Yes.

9 Q. Is a contracture a contraction of a muscle?

10 A. It is.

11 Q. Now, if the muscle that is in contracture, or

12 contracted, if you apply pressure to that muscle, when

13 you release the pressure will the muscle spring back?

14 A. Yes.

15 Q. And isn't that exactly what was happening when

16 you were pressing down Terry's leg and you'd release it,

17 her leg was bouncing back?

18 A. No.

19 Q. I didn't see you observe your tape through

20 this, and correction me if I missed this. On those

21 tapes, did you give Terry a command like to blink once

22 for yes or twice for no?

23 A. No.

24 Q. And ask her questions like, if your name is

25 Terry Schiavo, blink once for yes and twice for no?






464

1 A. No.

2 Q. Is there any reason why you didn't engage in

3 that type of testing or examination?

4 A. During part of the examination I asked her to

5 do specific things, look at her mother at certain times

6 when she felt pain or look at me. And at other times, I

7 also asked her to close her eyes, blink, and so on, at a

8 specific time with the idea to develop a communication

9 system, if I could find she could do it in a reasonable

10 time frame and consistently in response to higher level

11 function. She wasn't able to do it in a way that could

12 develop a coding mechanism at that time.

13 Q. Is that because the responses weren't

14 consistent?

15 A. I think that there was a problem with how the

16 exam is performed and the amount of time allowable to

17 examine the patient. In order to be able to develop a

18 degree of consistency of responses to the level of --

19 trying to have a person answer higher level questions,

20 we weren't able to do that at that time.

21 Q. Would you agree that a locked-in -- patients

22 in a locked-in syndrome do have the ability to blink

23 their eyes traditionally?

24 A. No. I think many locked-in syndromes can do

25 that and some can't.






465

1 Q. Now, there was a portion of your examination

2 that you had the stethoscope to Terry Schiavo's neck and

3 head, I believe. And I think you testified that you

4 were checking on her blood flow; is that correct?

5 A. Correct.

6 Q. Did you find anything abnormal?

7 A. No. That's not designed to look at the

8 microcirculation. You have to look at it with other

9 tools, like spec scan an Transcranial Dopplers.

10 Q. And there was a test on your a ultrasound of

11 the carotid arteries; is that correct?

12 A. Yes, that's correct.

13 Q. And did you review the results of that test?

14 A. Yes.

15 Q. And what was the results of that test?

16 A. That they were normal.

17 Q. Are any of the exhibits or articles and

18 abstracts introduced in evidence -- do any of them

19 pertain to stem cell research?

20 A. No.

21 Q. Dr. Hammesfahr, have you ever heard of a

22 website called the "Quack Watch" website?

23 A. Yes.

24 MS. ANDERSON: Objection; relevance,

25 Foundation material.






466

1 THE COURT: He just asked you for a yes or no

2 answer.

3 MS. ANDERSON: Well, he is worried about

4 the -- he has me trained.

5 BY MR. FELOS:

6 Q. Well, Dr. Hammesfahr, to your understanding

7 what is that website?

8 A. I don't know.

9 Q. Do you know whether you have ever been listed

10 on that website?

11 A. Yes.

12 Q. And you have, haven't you?

13 A. Yes, I have.

14 MR. FELOS: I have no other questions.

15 THE COURT: Thank you.

16 REDIRECT EXAMINATION

17 BY MS. ANDERSON:

18 Q. You said that you had never felt a neck like

19 that except for one other patient, right?

20 A. Correct.

21 Q. What was the cause of injury in the other

22 patient?

23 A. The person had an anoxic encephalous due to

24 attempted strangulation.

25 Q. You made some comments about what happened at






467

1 Mediplex on the discharge summaries from the nurse's

2 notes?

3 A. Nursing notes.

4 Q. Did the nursing notes say that she said "no"

5 and "stop" while she was in therapy?

6 MR. FELOS: Objection; leading; hearsay.

7 BY MS. ANDERSON:

8 Q. What do they say she said when she was in

9 therapy?

10 A. There were time she said "no" and "stop" when

11 things were reported as being uncomfortable and painful.

12 Q. Is that consistent with your examination of

13 her during any part of her exam, not that she was

14 speaking, but that she was reacting to the pain?

15 A. She was reacting in a way that included

16 cognitive awareness of the patient beyond just the

17 reflex of awareness.

18 Q. Do you think Mr. Felos has a stronger reflex?

19 A. Yes.

20 Q. That doesn't mean he is in pain?

21 A. No.

22 Q. In fact, don't normal people have some

23 characteristics of people who are in PVS?

24 A. Certainly.

25 Q. Does the fact that Terry Schiavo has some






468

1 characteristics of a patient in PVS mean that she is in

2 PVS?

3 A. No.

4 BY MS. ANDERSON:

5 Q. I have one other question. Are you familiar

6 with that British studies of about misdiagnosis, the

7 rates of PVS?

8 A. I am familiar with a study by the British that

9 deal with that issue.

10 Q. Do you remember what the error rate or

11 misdiagnosis was?

12 A. It was approximately 47 to 49 percent. And

13 there was letters of that also that discussed it a

14 little bit further. Some of the follow-up letters in

15 these journal articles made a comment that using the

16 task force analysis in many of these cases of

17 misdiagnosis, the patients were found to be in a

18 non-vegetative state within 16 days of admission. They

19 were either miracle workers or that the task force

20 analysis of persistent vegetative state should be

21 relooked at.

22 Q. Published in the British Medical Journal?

23 A. Yes.

24 Q. Is that an authoritative source?

25 A. Yes. It's one of the more that we discussed






469

1 earlier as authoritative.

2 MS. ANDERSON: I have no further questions at

3 this time.

4 THE COURT: Thank you. Something new was

5 brought up on redirect, so I guess you are entitled

6 to a cross.

7 RECROSS-EXAMINATION

8 BY MR. FELOS:

9 Q. Isn't it also true that patients in vegetative

10 conditions are often misdiagnosed in terms of cognition?

11 A. This is a separate question from the issue of

12 the British Medical Journal we just talked about,

13 correct. You are not suggesting the British Medical

14 Journal's author of that group were, themselves, making

15 this diagnosis of cognition. This is a separate issue

16 entirely.

17 THE COURT: He asks the questions, Doctor.

18 THE WITNESS: I'm just asking a question.

19 THE COURT: Clarify.

20 BY MR. FELOS:

21 Q. Can you answer the question.

22 A. Yes. Absolutely.

23 Q. Okay. Absolutely. And the facts reading from

24 the medical aspect of the persistent vegetative state

25 they talk about the movements of the patient, smiling,






470

1 the shedding of tears, moaning, grunts, these motor

2 activities may mislead suggestions purposeful movements,

3 yet, these responses show no evidence of psychological

4 awareness or the indication of their behavior. Would

5 you agree with that?

6 A. I think that is editorial comment of theirs

7 and I think that the case needs to be reviewed. In what

8 context was it made?

9 Q. I didn't ask you in what context it was made.

10 I just asked whether you agree with that or not.

11 A. I don't agree with it.

12 Q. In your office, Dr. Hammesfahr, if one were to

13 look at your medical records --

14 MS. ANDERSON: Your Honor, I think we might be

15 beyond the scope of redirect examination.

16 MR. FELOS: Not at all. There was a question

17 about the nursing notes at Mediplex in Bradenton on

18 redirect examination.

19 BY MR. FELOS:

20 Q. If we were looking at your medical records, do

21 you think one should reasonably rely on your notes and

22 assessments of the patient rather than your nurses'?

23 A. I think that nursing notes are very important

24 part of the medical records. It could add to the

25 physician's records in that good quality nursing notes






471

1 frequently identify features in the patient which have

2 been missed by the physician. So I consider them a

3 pertinent part of the medical records and should be

4 considered a pertinent part of the medical records, not

5 a replacement of the physician's records, but certainly

6 an admission to them.

7 Q. And the nurses' notes and physician's records

8 are in conflict with the physician's records operated?

9 A. I think that there are conflicts, that more

10 people need to look to that specific patient, because I

11 don't believe that the physician's notes always carry

12 greater weight in accuracy and observations than nursing

13 staff or others.

14 MR. FELOS: No other questions.

15 MS. ANDERSON: No further questions, Your

16 Honor.

17 THE COURT: Thank you, Doctor. You are free

18 to go.

19 You were giving exhibits three back to me.

20 MS. ANDERSON: What time will we begin

21 tomorrow, Judge?

22 THE COURT: Assuming everyone is here, we will

23 begin at 9:30.

24

25






474

1 CERTIFICATE OF REPORTER

2 STATE OF FLORIDA )

3 COUNTY OF PINELLAS)

4 I, TONYA H. MAGEE, RPR, Registered Professional
Reporter, Notary Public, State of Florida at Large:
5
DO HEREBY CERTIFY that the foregoing proceedings
6 were taken before me at the time and place set forth
in the caption thereof; the proceedings were
7 stenographically reported by me in shorthand, and the
foregoing pages, numbered 274 through 473 inclusive,
8 constitute a true and correct transcript of my said
stenographic notes.
9
I further certify that I am not a relative,
10 employee, attorney, or counsel of any of the parties,
nor relative or employee of such attorney or counsel,
11 nor financially interested in the outcome of the
foregoing action.
12

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

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

18 Acknowledged before the undersigned
this 23rd day of January, 2003,
19 by Tonya H. Magee, who is personally
known to me.
20
_______________________________
21 Notary Public, State of Florida

22

23

24

25