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1 which it occurs and the frequency with which it

2 occurs.

3 Q. Now, are there other instances on these

4 tapes that you've seen where Terri Schiavo has

5 the same facial expression that we've called

6 smiling when her mother is not there?

7 A. Not to the same degree, in my opinion.

8 Q. But then again you haven't seen all the

9 tape, have you?

10 A. That is correct, but that is also why

11 when I observed Terri to begin with I walked into

12 the room prior to the time that her parents had

13 came in on a couple of occasions and watched her

14 to see what she was doing.

15 So I could see what her baseline, a

16 quote, as you would like to term it, the reflex

17 reactions were. And when her parents came in,

18 particularly her mother, there was a marked

19 difference in the way that she reacted and moved.

20 Q. Would you disagree that there are a

21 number of instances on these tapes in which

22 Terri's mother kisses her, comes up to Terri and

23 kisses her and says, Hi, Terri, where she has no

24 such reaction?

25 A. Not that I remember seeing, no.




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1 Q. Now, also I believe you testified that

2 Terri had a marked reaction to music?

3 A. On the one occasion when it was played

4 for her, yes.

5 Q. Have you seen that portion of the tape,

6 I believe which is the beginning of

7 Dr. Hammesfahr's examination, in which he has not

8 entered the room, but there's loud piano music

9 playing? Have you seen that portion of the tape?

10 A. I don't remember that, no.

11 Q. Now, in the situation you're referring

12 to I gather was something that is not on tape

13 where you had gone to observe Terri before the

14 tapes were made; is that correct?

15 A. That's correct.

16 Q. And --

17 A. That's when they were playing the

18 actual piano music for her.

19 Q. When you walked -- was the piano music

20 playing when you first walked into the room?

21 A. No. She was out in the hallway and I

22 walked up and watched her and observed her for a

23 period of time and then they started playing the

24 music.

25 Q. Okay. And then when did -- tell me




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1 what happened after that when the music started

2 playing.

3 A. With the music she immediately started

4 making facial motions and acting as if, as I've

5 said previously, I believe, that she was trying

6 to vocalize.

7 Q. And how could you know whether that is

8 part of Terri's primitive auditory orienting

9 reflex?

10 A. Because I had been there and watched

11 her for about five to 10 minutes to see what she

12 was doing and she was doing none of those motions

13 during that period of time until the music

14 started.

15 Q. Now, if these tapes showed that Terri

16 Schiavo -- that music is turned on and Terri

17 Schiavo doesn't immediately react, what would

18 that suggest to you?

19 A. It depends on the music that's being

20 played.

21 Q. Now, clarify this for me, if you can,

22 and I may have misheard you, did you say on your

23 direct examination that you haven't directly

24 compared the 1996 and 2002 CT scans?

25 A. No. I said that I had seen them, but I




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1 had not seen the blown up images.

2 Q. Okay. Now, did I hear you correctly on

3 your direct examination, did you state that you

4 believed that since -- that these CAT scans

5 show -- that these CAT scans show or indicate

6 that Terri Schiavo's brain has regenerated from

7 1996 to 2002?

8 A. That was my impression based on the

9 change that we see in the pattern of the brain

10 tissue that is there. I wouldn't say necessarily

11 regenerated, but has improved and appears more

12 normal on the current study than it did on the

13 first study.

14 Q. But you did use the word regenerate,

15 didn't you?

16 A. I think I said regenerate which would

17 be one of the things that would account for a

18 more smooth pattern on the current study, but

19 there's not been marked change in the size of the

20 ventricles.

21 Q. Can you explain to me the physiological

22 process in which a brain can regenerate itself?

23 A. That's based on current data that it

24 does occur. The brain is continually changing

25 some of the cells and what we're seeing is a more




165



1 smooth and more normal type pattern on the

2 current study than we did on the '96 study.

3 Q. So, as I understand it, you believe

4 that from 1996 to 2002 there has been some dead

5 brain tissue that has been revived in some way?

6 MS. ANDERSON: Objection, Your Honor,

7 argumentative.

8 THE WITNESS: I wouldn't say --

9 THE COURT: Overruled.

10 BY MR. FELOS:

11 Q. Please answer that, Doctor.

12 A. Yes. I would not say that it was dead

13 brain tissue, I would say that it was part of the

14 penumbra type brain tissue that is improved in

15 the way in which it looks. If it was dead tissue

16 it wouldn't have changed.

17 Q. I believe that -- I believe that your

18 support for that contention, and correct me if

19 I'm wrong, involved referring to the 1996 scan,

20 image seven, the tissue -- do you see the tissue

21 I'm pointing to?

22 A. Yes, I do.

23 Q. Okay. It was your contention that this

24 tissue looked more or less spotty or less grainy

25 and more homogeneous on the 2002 scan; is that




166



1 correct?

2 A. That is my impression, yes.

3 Q. Now, have you ever enlarged a

4 photograph, Dr. Maxwell?

5 A. Yes.

6 Q. You ever notice that when you take a

7 small photograph and you enlarge it, it tends to

8 become grainy?

9 A. That is a factor that does occur, yes.

10 Q. Yes. Now, isn't it a fact that the

11 1996 CAT scan has been blown up and enlarged

12 significantly more than the 2002 CAT scan; isn't

13 that correct?

14 A. That's correct.

15 Q. Okay. Well, wouldn't you expect the

16 image on the 1996 CAT scan that's been blown up

17 more to be a little -- to be more grainy or more

18 spotty, less homogenous or sharper than the image

19 on the 2002 CAT scan?

20 A. You have to look at that whole image

21 and not just one part of it.

22 Q. Well, let's talk about the image that

23 you were talking about which formed the basis of

24 your conclusion. Again, let's go back to image

25 seven on the 1996 CAT scan, the area that you




167



1 pointed to that was -- you felt was grainy or

2 spotty or not homogeneous.

3 Sir, isn't it a fact that the reason

4 that it appears that way is because the picture

5 had been blown up more?

6 A. In my opinion, no.

7 Q. Wouldn't a fairer comparison of the

8 films involve films that are blown up to the same

9 size?

10 A. Possibly.

11 Q. You mentioned that I think you've

12 seen -- you've reviewed at least 1000 scans of

13 patients with hypoxic encephalopathy; is that

14 correct?

15 A. I would say it's in that range, yes.

16 Q. Now, of those 1000 scans, how many of

17 those patients would you say had brain damage

18 equal to or worse than Theresa Schiavo?

19 A. I don't have any specific percentage.

20 Q. Now, getting back to the scans, I

21 believe you were talking about that the

22 cerebellum would be reflected in the numbered

23 images, the earlier numbered image on both or

24 earlier numbered images on both scans because the

25 scan is taken from the bottom to the top; is that




168



1 correct?

2 A. That is the position of the cerebellum,

3 yes.

4 Q. Okay. And so those areas that appear

5 to have more white in them, and I'm referring to

6 the 1996 scan which is image number three, which

7 it appears to be more white matter than gray;

8 would you agree?

9 A. That is the cerebella area that you're

10 looking at, yes.

11 Q. And, again, does that area, the

12 cerebellum pertains to motor and autonomic

13 functions, not consciousness; is that correct?

14 A. The cerebellum is more of your

15 coordinating center for motor function, correct.

16 Q. Okay. So the fact that Terri Schiavo

17 has a cerebellum that may be more intact

18 relatively does not necessarily mean she has

19 cognition, does it?

20 A. It does not, as we previously said.

21 Q. Now, would you consider this '99 CAT

22 scan to be severely abnormal?

23 MS. ANDERSON: Objection, there is no

24 '99 CAT scan.

25 THE COURT: That's true.




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1 MR. FELOS: Obviously I misspoke.

2 BY MR. FELOS:

3 Q. Would you consider the 1996 CAT scan to

4 be severely abnormal?

5 A. Yes, I would.

6 Q. And would you say the same for the 2002

7 CAT scan?

8 A. To a lesser degree, but still

9 significantly abnormal.

10 Q. Now, let's take a look, if we can, at

11 image nine of the 1996 scan. That is this one

12 down here.

13 A. Okay.

14 Q. Would you agree that that shows

15 severely enlarged ventricles?

16 A. Yes, I would.

17 Q. And is that the black area, it almost

18 looks like a little butterfly?

19 A. That's correct. That's the ventricular

20 area.

21 Q. And this black area shows -- indicates

22 that there is still cerebral spinal fluid; is

23 that correct?

24 A. That is the pattern that is shown, yes.

25 Q. All right. Will any amount of




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1 hyperbaric oxygen therapy improve the functioning

2 in the area of the brain that's reflected in that

3 black butterfly pattern?

4 A. That area does not really function as

5 far as brain is concerned. There is no brain

6 function from the cerebral spinal fluid except

7 support for the brain tissue and maintenance of

8 the nutrition for the brain tissue. So there's

9 no function from the ventricular system itself.

10 Q. So where the brain used to be but now

11 there is cerebral spinal fluid in that area

12 hyperbaric oxygen therapy would be of no help; is

13 that correct?

14 A. That we don't know for sure. We are

15 seeing the ventricles get smaller in some of the

16 cerebral palsy children that we're treating. And

17 it may occur in other cases also.

18 Q. Well, now, of course, the area of

19 ventricles could get smaller if somebody had a

20 normal pressure hydrocephalus that was relieved;

21 is that correct?

22 A. That could have occurred, but if that

23 was true, then it should have occurred at the

24 time that they put the catheter in.

25 Q. Would you agree that these scans and




171



1 from your review of the medical records that

2 these scans reveal that Terri Schiavo has

3 hydrocephalus ex vascular?

4 A. I would say that that is probably

5 correct. That is simply another way of saying it

6 is hydrocephalus secondary to loss of cerebral

7 tissue.

8 Q. Now, I think you made a distinction on

9 your direct examination between anoxic

10 encephalopathy and hypoxic encephalopathy; is

11 that correct?

12 A. I think that the two are part of a

13 pattern, but if it's a true anoxic

14 encephalopathy, that means that there is no

15 oxygen and under that circumstance the brain

16 usually dies. If it's hypoxic then there's a

17 chance for recovery.

18 Q. Now, I have in my notes that when you

19 were talking about the anoxic encephalopathy you

20 described that as having a big hole in the brain;

21 do you recall that?

22 A. Correct.

23 Q. Well, would you agree with me looking

24 at the 1996 scan, image nine or the 2002 scan and

25 I don't know where the number is here. I'm




172



1 looking at it. It's image 15. Don't those

2 pictures show a big hole in the brain?

3 A. But that is not a hole in the brain

4 tissue. That's the enlargement of the ventricles

5 which is secondary to some loss of brain tissue.

6 When I was talking about anoxic

7 encephalopathy, I'm talking about the large areas

8 of no localization in the brain tissue itself.

9 And on our CTs and MRIs we see that there is no

10 brain tissue in that area in addition to what we

11 see on a SPECT scan. So that's a different

12 entity.

13 MR. FELOS: Your Honor, I do have

14 probably about a half hour to 45 minutes

15 more on cross-examination. I was wondering

16 if we could take a short break.

17 THE COURT: Okay. 45 more minutes?

18 MR. FELOS: Yes.

19 THE COURT: Let's take a 10-minute

20 break. Doctor, you're still under oath and

21 still on the witness stand. Don't discuss

22 this case with anyone.

23 THE WITNESS: I won't.

24 (Thereupon, the Court was in recess for 10

25 minutes.)




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1 THE COURT: Doctor, you're still under

2 oath.

3 THE WITNESS: Yes, sir.

4 THE COURT: Mr. Felos.

5 MR. FELOS: Your Honor, I just wanted

6 to bring one matter to the attention of the

7 Court. We were talking earlier about the

8 number of films in the 2002 scan. I have

9 remembered more than one and so I had my

10 assistant bring me a hard copy of the

11 original of the 2002 scan which has, I

12 believe, four copies.

13 THE COURT: Four copies?

14 MR. FELOS: Excuse me, four sheets.

15 THE COURT: Okay.

16 MR. FELOS: Four sheets, Your Honor,

17 and I don't -- we brought these to a medical

18 imaging service that made a copy and

19 delivered them directly to Attorney

20 Anderson, so I don't know why she has one or

21 what the mix-up or foul-up was, but in

22 originals we do have four films.

23 THE COURT: I guess she'll sort it out

24 before the end of this case.

25 MS. ANDERSON: Well, you know, now is a




174



1 good time, actually, since none of us are

2 experts other than Dr. Maxfield. Is that

3 four copies of the same images?

4 MR. FELOS: No, these are four films.

5 So my suggestion was, Your Honor, to

6 introduce the entire CT scan into evidence.

7 MS. ANDERSON: Not until Dr. Maxfield

8 ascertains that they're four films of

9 different images.

10 BY MR. FELOS:

11 Q. Dr. Maxfield, can you take a look at

12 these four films and tell us, if you can, what

13 they are?

14 A. These are essentially the same images

15 that are there. One of them is run with a bone

16 one so you're seeing only the bony structure.

17 The other two images are run with a little bit of

18 variation of the setting that you see in the soft

19 tissue, which are these two.

20 And the fourth one is what I had

21 mentioned we did not have and that's the

22 scanogram that shows where the images are taken

23 relative to the patient. Then there's also one

24 image -- two images that are right up at the

25 skull, the top of the skull on the '02 study.




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1 Q. So --

2 A. So the pertinent images are the ones

3 that have been reproduced and shown here.

4 MR. FELOS: Your Honor, I would move to

5 introduce that into evidence as well so it

6 would be complete.

7 THE COURT: Well, let me ask a

8 question: Are those four additional images

9 to the three that you were talking about

10 today?

11 THE WITNESS: No, sir. The images that

12 are blown up and part of the exhibit, I

13 believe, of Number 10 was the SPECT scan --

14 the CT scan that is shown on the board here

15 of the smaller images.

16 These are the original films on them.

17 And one of the set of films is run with what

18 we call a bone window so you don't see any

19 of the tissue in the brain itself.

20 THE COURT: I thought this was a SPECT

21 scan.

22 MR. FELOS: No.

23 THE WITNESS: No. No. This is the CAT

24 scan.

25 THE COURT: I'm --




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1 MR. FELOS: Your Honor, one of those

2 four films had been enlarged and is this

3 Exhibit 10. There are three other films to

4 the CAT scan; is that correct, Dr. Maxfield?

5 THE WITNESS: To that imaging

6 procedure, yes.

7 MR. FELOS: Yes.

8 THE COURT: Is there an objection,

9 Ms. Anderson?

10 MS. ANDERSON: Here is my thought on

11 that since we were not furnished with these

12 other ones as Dr. Maxfield had not examined

13 them, if Mr. Felos intends to introduce them

14 into evidence and have any of the three

15 remaining physicians address those films

16 that Dr. Maxfield has not had a chance to --

17 THE COURT: Now, Mr. Felos told us just

18 a minute ago that these were delivered from

19 whoever to your office.

20 MS. ANDERSON: I got that that's blown

21 up right here. That's what I got. I don't

22 know how or why that happened, but if we

23 have -- if I have not had the opportunity to

24 have Dr. Maxfield look at all of the scans I

25 would object to having any inquiry made to




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1 the other physicians about those images that

2 Dr. Maxfield has not examined.

3 MR. FELOS: I don't have any objection

4 to Dr. Maxfield taking a look at the other

5 three films. I believe he just has. If he

6 would like to review them some more I have

7 no objection to that.

8 THE COURT: Well, when do you propose

9 we do this?

10 BY MR. FELOS:

11 Q. Well, Dr. Maxfield, you've just taken a

12 look at the four original films of the CT scan,

13 do you feel -- do you need any additional time to

14 review them?

15 A. I don't think so because, as I pointed

16 out, one sheet of the films is run with a bone

17 window, which does not permit us to look at any

18 of the tissues in the brain. It looks only at

19 the bony structure. So that really is not

20 pertinent since there was no traumatic fracture

21 or anything relative to the bones on this

22 patient.

23 The second of the films is the one that

24 I had mentioned earlier we did not have and that

25 is the scanogram which shows where the individual




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1 images are obtained. And on that scanogram there

2 are two additional images of the brain itself,

3 but these are up at the very top of the brain and

4 show just that bony structure. So I don't feel

5 that they have any significance in the

6 interpretation of the study.

7 The other set is a little bit different

8 window for soft tissues, but in just looking at

9 it here I don't feel that it changes what has

10 been said or is significantly different from what

11 is shown on the exhibit that has been admitted.

12 MR. FELOS: I would move to introduce

13 that into evidence, Your Honor.

14 MS. ANDERSON: If Mr. Maxfield is

15 confident that his opinion would not be

16 changed, any of his opinions would not be

17 changed by any of these additional films, I

18 have no objection to the entry of that

19 exhibit. However, I would need to get

20 copies of those other films.

21 THE COURT: Do you feel that any of the

22 additional scans would change your opinion?

23 THE WITNESS: No, I do not, as I

24 indicated earlier. The pertinent films are

25 the ones that have been reproduced.




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1 THE COURT: Thank you. They will be

2 received. Mr. Felos, if you will between

3 now and Friday have copies made of those

4 four and deliver a copy to Ms. Anderson and

5 we'll take what you have into evidence at

6 that time.

7 MR. FELOS: Okay.

8 THE COURT: Fair enough?

9 MR. FELOS: Yes. I don't know how

10 quickly the -- I will have the original for

11 the Court which means neither of us will

12 have copies, but I don't know how long it

13 would take to have copies, additional copies

14 made.

15 THE COURT: Well, if I have the

16 original 100 years later you wouldn't have

17 any copies, so why would you give them to

18 me?

19 MR. FELOS: I'm sufficient to have the

20 originals before the Court, Your Honor.

21 THE COURT: Well, she's not.

22 MS. ANDERSON: I need to have copies.

23 MR. FELOS: We'll do our best to have

24 copies made as soon as possible, Your Honor.

25 THE COURT: That's fine. That's why




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1 I'm saying Friday and that gives you three

2 days. All right. I don't know what exhibit

3 number that will be, but you'll give me a

4 number on Friday and we'll certainly mark

5 it.

6 BY MR. FELOS:

7 Q. I believe you mentioned a term "full

8 series" when talking about the administration of

9 hyperbaric oxygen therapy and I wanted to ask you

10 how many treatments would a full series be?

11 A. That depends upon the situation and the

12 response of the individual. There is no

13 definitive number in a full series. Usually you

14 treat the patient until they're showing no

15 further response or until you get them back to a

16 normal situation.

17 Q. And how long do you treat the

18 patient -- if there is no response, how long do

19 you keep them going?

20 A. Usually at the end of 20 treatments if

21 you've seen no involvement and in neurological

22 situations if there's been no improvement in the

23 SPECT brain scan at that point.

24 Q. Now, you testified, I gather, on the --

25 about your opinion of medical journals. Did you




181



1 testify that the research or matters in medical

2 journals are a year or two behind the times?

3 A. In general that is true because usually

4 the material is presented at a scientific meeting

5 and then it's submitted for publication and at

6 the time it appears in the journal it's usually

7 anywhere from one to two years before it actually

8 appears in print.

9 Q. And part of that time is a review

10 process. I believe your testimony was, reviews

11 take time; is that correct?

12 A. That is part of the process is the

13 article is reviewed and that's what was discussed

14 in the Journal of the American Medical

15 Association article on the publication of medical

16 literature.

17 Q. Isn't there a value to that review

18 process, Dr. Maxfield?

19 A. That is what the article from the JAMA

20 was, Journal of the American Medical Association,

21 was talking about. In fact what the reviewer

22 thinks is not necessarily what the value of the

23 article is.

24 And I can speak to that from personal

25 experience. I'm here today and we've been




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1 talking about computer tomography and the use of

2 computers in medicine and particularly in

3 radiology.

4 In fact the new meeting of the

5 Radiological Society of North America this year

6 is dedicated to the digitization of medicine. I

7 presented that paper as a coauthor to the

8 Radiological Society North American in 1965 on

9 the use of a digital computer to manipulate that

10 scan data images.

11 And this paper was presented at the

12 national meeting, the RSNA, but it was turned

13 down for publication on the basis that that was

14 not necessary. I would ask anybody to tell me

15 that computer manipulation of image data is not

16 necessary today.

17 Q. So I gather part of your aversion to

18 the review process is the fact that some of your

19 articles or that some of your articles that you

20 presented have not been accepted for publication?

21 A. Also, I know of many other important

22 articles that have not been published, too. I

23 think we mentioned earlier about the side effects

24 of cognitive defects in the coronary artery

25 bypass, which was only published at Duke this




183



1 last year, but the original work on that was more

2 than 10 years ago and it was never published.

3 Q. Is it your testimony here today that

4 you find no value in the review process?

5 A. No. I said that that is the reason

6 that I do not consider material authoritative,

7 but only informative because it's an ever

8 changing pattern in our medical knowledge.

9 Q. Now, isn't a value of the review

10 process that it screens out spurious claims or

11 unsubstantiated claims in the medical field?

12 A. That's the reason they're doing it,

13 but, as I pointed out, you talk to somebody today

14 in the field of radiology and tell them you're

15 going to take away their computers and see what

16 they're going to say. My paper was turned down

17 as not necessary and today it's the standard of

18 care.

19 Q. What's a stem cell, Dr. Maxfield?

20 A. A stem cell is a primitive cell that

21 has the ability to differentiate into different

22 types of cells. When the fertilization occurs

23 and you have only a few cells to begin with,

24 these are essentially stem cells because they

25 then eventually differentiate into different




184



1 organs of the body.

2 And you can find stem cells actually in

3 adults that have the ability to change to this as

4 to why we're now coming to the concept or there

5 may be the possibility of regeneration of brain

6 tissues.

7 And you can also get stem cells out of

8 the placental cord blood. So there are many

9 sources for stem cells. But basically it's a

10 rudimentary cell that has the ability to develop

11 into other kinds of cells.

12 Q. How much direct research -- how much

13 direct stem cell research have you done?

14 A. I have not done any direct stem cell

15 research. I'm simply aware of the field and had

16 been making recommendations to one of the groups

17 that I know that's doing stem cell clinical work

18 about adding hyperbaric to the program that

19 they're working on to see if they can improve

20 their results. This is essentially what the

21 Mexicans reported at the current meeting in San

22 Francisco on hyperbaric oxygen.

23 Q. You mentioned something about cutting a

24 spinal cord of a rat, then having the rat move

25 after application of hyperbaric oxygen therapy?




185



1 A. That's the paper by Dr. William Fife

2 from Texas A&M, yes.

3 Q. Now, you haven't found any -- in your

4 review of Terri Schiavo's medical records and

5 your observation of her, do you see any

6 indication of a spinal cord injury?

7 A. Not of a spinal cord injury, but that

8 goes back to the old concept of the central

9 nervous system which the spinal cord never

10 regenerates. We know unequivocally today that

11 that is not true.

12 Q. So your basis upon stem cell research

13 is basically what you've heard from others and

14 read from others; is that correct?

15 A. As far as stem cell research is

16 concerned that is -- I did not actually do stem

17 cell research, correct.

18 Q. Okay. Now, currently is there any

19 existing recognized stem cell treatment for

20 regenerating brain tissue?

21 A. It is being, to my personal knowledge,

22 investigated at the University of Pittsburg in

23 Pennsylvania. They have an ongoing clinical

24 program based on animal research that was done at

25 the University of South Florida.




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1 Q. I know you mentioned that research was

2 going on. My question was: Is there any stem

3 cell therapy available now or treatment now for a

4 patient to regenerate their brain?

5 A. This is the work that is being done at

6 the University of Pittsburg where they are

7 putting stem cells into areas of stroke in the

8 brain to try to generate -- to get regeneration

9 of the brain tissue.

10 And I know that they're doing this in

11 patients. It's still in a research protocol

12 because it has not been approved as a standard of

13 treatment at the present time.

14 Q. Do you know of any published paper

15 which has shown that a patient with neurological

16 damage the same or worse than Theresa Schiavo has

17 improved her condition through the application of

18 stem cells?

19 A. I don't know when -- that when you put

20 that criteria that is equal to or worse as to

21 showing improvement, but I know that there are

22 ones that are showing significant clinical

23 improvement with stem cell, particularly where

24 they're adding hyperbaric oxygen as the report

25 was from the Mexican group.




187



1 Q. And this you found out at the

2 hyperbaric conference you went to in

3 San Francisco a couple of weeks ago?

4 A. This data was presented at that

5 symposium, yes.

6 Going back to your question about

7 papers, I don't know if they had published any of

8 the data from the University of Pittsburg. I'm

9 familiar with it, because the former professor of

10 neurosurgery is a very close friend of mine and

11 we've been talking about it and their work up

12 there for years.

13 Q. Now, you testified regarding a

14 particular clip that you thought Terri was

15 responding to her father because he was talking

16 about a childhood incident or something about her

17 childhood and you believe she moaned in response;

18 is that correct?

19 A. That she was showing more facial

20 response and that was part of it, yes.

21 Q. Well, didn't that clip involve moaning,

22 a moaning sound?

23 A. Correct. That was part of the response

24 that she gave.

25 Q. Right. Now, isn't it a fact in that




188



1 tape that Terri's father was speaking to her

2 about a number of other matters before she

3 moaned?

4 A. He was speaking to her about some other

5 things, correct, but if you go back and watch

6 her, as I have done, for a period of time with no

7 one else around she does not do that type of

8 motion or did not do it in my presence.

9 Q. Well, I guess my question is: If her

10 father was talking to her for a period of time

11 and Terri moaned, how would you know that it was

12 in response to a certain question? Why didn't

13 she moan in response to another question or

14 another thing her father said earlier?

15 A. That's part of the response mechanism

16 and it's just like as people get older that they

17 can remember what happened to them as a kid, but

18 they can't remember where they put their car

19 keys.

20 Q. There was a segment on the tape

21 regarding tracking the lights, the Christmas

22 lights; do you recall that?

23 A. Yes.

24 Q. Do you recall also that when the father

25 takes the lights and takes them down that Terri




189



1 doesn't follow the lights downward? Do you

2 recall that from the tape?

3 A. She did not respond to the lights as

4 well as she did to the balloon, and did not

5 respond as well as she did in the other clip that

6 was Dr. Cranford's. Unfortunately, on that

7 videotape you don't see her eyes very well.

8 Q. I believe that you testified that there

9 is a significant probability that HBO therapy can

10 improve Terri Schiavo's cognitive functions; is

11 that correct?

12 A. If there is improvement with a test of

13 hyperbaric oxygen. And even without it, based on

14 some of the studies and cases that I am familiar

15 with, yes.

16 Q. So as I understand your opinion it's in

17 two parts; that you believe there's a significant

18 probability that HBO could improve her cognitive

19 function if her initial treatments -- if she

20 responds favorably to her initial treatments; is

21 that correct?

22 A. It's increased if she responds to her

23 initial treatment. The chance of good long-term

24 response would be significantly increased.

25 Though we also have patients that I'm familiar




190



1 with that were treated for a coma with hyperbaric

2 oxygen before we really were doing the SPECTs on

3 a routine basis. And the longest patient to come

4 out of a coma that I'm aware of that I've looked

5 at the videotapes on and also seen some of the

6 pictures on was 14 years.

7 Q. Now, can you give an opinion today,

8 within a reasonable degree of medical certainty,

9 that there's a significant probability that Terri

10 can -- Terri will respond favorably to initial

11 HBO treatment?

12 A. Based on the responses that I've seen

13 the patient make to her environment, the fact

14 that the most severely damaged part of her brain

15 on both the CT and the SPECT scan is the

16 occipital lobes where she has vision, the fact

17 that she can still see makes me feel that in all

18 medical probability she would show a significant

19 response.

20 Q. You used the word "we." Isn't it a

21 fact that when you were talking about other

22 patients being treated, isn't it a fact that you

23 testified before that you haven't been the

24 treating physician for any patients in the

25 condition the same or worse than Terri Schiavo




191



1 who improved by hyperbaric oxygen therapy?

2 A. I said I was not the treating

3 physician, but I was acting as a consultant for

4 the programs where those patients were treating.

5 Q. And you were acting in a consultant

6 capacity mainly as the nuclear imaging

7 consultant; is that correct?

8 A. Not necessarily because I've acted as a

9 consultant for programs that do hyperbaric oxygen

10 where they have not had access to SPECT scans.

11 Q. So you mention that you reviewed

12 records and saw tapes of those patients. Is that

13 what you mean when you say consultant capacity?

14 A. Correct. And have also participated in

15 the initial decision to treat those patients.

16 MR. FELOS: I have no other questions,

17 Your Honor.

18 THE COURT: Thank you.

19 MS. ANDERSON: I have just a few

20 questions.

21 THE COURT: I won't ask you to give a

22 number, Ms. Anderson.

23 MS. ANDERSON: I'm singularly bad at

24 it.

25 THE COURT: Well, I wouldn't say




192



1 singularly.

2 REDIRECT EXAMINATION

3 BY MS. ANDERSON:

4 Q. When you say you also participate in

5 initial treatment decisions of the patient, what

6 do you mean by that?

7 A. The information on the patient was

8 given to me to review and see if they were

9 candidates for hyperbaric oxygen therapy.

10 Q. So is it a joint decision between you

11 and another physician?

12 A. Well, predominately my decision because

13 I was at that point acting medical director for

14 the program.

15 Q. In what program?

16 A. If I said that they were going to be

17 treated they were treated. If I said don't treat

18 them, then they weren't treated.

19 Q. Are you talking about the hyperbaric

20 program that you were head of here in Pinellas

21 County?

22 A. Well, also the ones that I've treated

23 here, but also I've acted as a consultant for

24 other programs and have been a consultant for a

25 group in the Vancouver area in Canada where they




193



1 don't have the ability to get SPECT scans on

2 their patients that they see up there. We have

3 treated quite a number of those cerebral palsy

4 kids and anoxic encephalopathy patients and brain

5 trauma patients. In fact, that's one of the ones

6 that we had the videotape on. I don't know if

7 you showed that one or not.

8 Q. No, we haven't done that yet, Doctor.

9 So when you say "we" you're talking about the

10 team approach?

11 A. A team approach because even when you

12 make a decision to give hyperbaric oxygen therapy

13 you're usually not the individual that turns the

14 dials on the chamber though occasionally I have

15 in contrast to many hyperbaric physicians.

16 So it's a question of making the

17 decision to proceed with a course of treatment

18 and then having the technicians that usually run

19 the hyperbaric chambers actually treat the

20 patient. Then you see them in followup and

21 consultation and see the results that are

22 recorded by both the clinical evaluation of the

23 patient and also getting videotapes of the

24 patients.

25 Q. Okay. Is that generally true in




194



1 nuclear radiation as well, it's a team approach?

2 A. That's very true because the

3 radiologist who is in charge of the nuclear

4 medicine laboratory doesn't usually administer

5 the radioactive materials, even therapeutic

6 doses. It's done by the nuclear medicine

7 technician.

8 Q. And the attending physician is going to

9 be part of that team, correct?

10 A. He's part of that team that makes the

11 decision as to what should be done and is

12 responsible for the consequences of the treatment

13 that he authorizes.

14 Q. And so is this team approach for

15 patient care for serious illnesses or just for

16 when there's more than --

17 A. That's really for all types of

18 illnesses, a serious illness. Usually you have

19 additional consultants that are participating in

20 the decisions to treat, but sometimes they're

21 not.

22 We mentioned we use the hyperbaric

23 treatment for conditions which are not considered

24 usual and customary. Those are some of the

25 patients that I have made the decision to treat




195



1 fortunately with very good results.

2 Q. Now, let's go back to the graininess

3 issue on the larger blowup of the '96 scan. Is

4 there any possibility in your mind that the

5 differences you have observed and testified about

6 in the brain tissue is a function of graininess

7 resulting from the blowup?

8 A. No, it is not. That's what I had

9 mentioned earlier that you have to look at the

10 overall picture and if you go back and look at

11 some of the other areas other than the brain, the

12 graininess has not changed as significantly in

13 the smaller pictures in comparison to the bigger

14 pictures. So it's an overall pattern that you

15 have to look at.

16 Q. Now, is blowing up one of these films

17 like blowing up a snapshot negative?

18 A. That is true, but when you get

19 graininess it applies to the whole image and not

20 just to the localized area of the image.

21 Q. So, in other words, if there was going

22 to be a graininess attributable to difference in

23 one part of Terri's brain it would be true

24 throughout that particular image, that particular

25 frame?




196



1 A. You would see it in areas outside of

2 the brain area itself which you do not see in the

3 other portions of the image that is contained.

4 Q. I want to -- what is locum tenens?

5 That's spelled L-O-C-U-M, T-E-N-E-N-S, correct?

6 A. Correct. That means that we're doing

7 that to a medical practice and then working for a

8 short period of time as a fill-in individual in

9 radiology. That is what I do and that is what I

10 mentioned that I have worked in local hospitals

11 in this area on locum tenens basis. To be able

12 to do that, you have to have your credentials

13 reviewed by the hospital and get approved

14 hospital privileges.

15 Q. I see. Do you recall that Mr. Felos

16 read a couple of sentences from this New England

17 Journal article that started on Page 1500 and ran

18 over to 1501.

19 The second sentence was, In rare

20 incidences the patients who have no other

21 evidence of consciousness over a period of months

22 to years had some degree of briefly sustained

23 visual pursuit or fixation.

24 Do you remember that sentence?

25 A. That's right, but I don't believe the




197



1 first part of that sentence in rare instances was

2 read.

3 Q. Now, let me read to you the next

4 immediately following sentence and ask you a

5 question about it. Nevertheless, one should be

6 extremely cautious in making a diagnosis of the

7 vegetative state when there is any degree of

8 sustained visual pursuit, consistent and

9 reproducible visual fixation, or response to

10 threatening gestures?

11 A. That is of my opinion particularly when

12 it's reproducibly over a number of different days

13 and different periods of time.

14 Q. Did you observe reproducible

15 phenomenon?

16 A. In my opinion, yes.

17 Q. You also said that you were the medical

18 director of Hospice here in Pinellas County for a

19 couple of years. Do you remember when that was?

20 A. That was in the early 1980s I was a

21 medical director that essentially got the Hospice

22 program off the ground and going on a clinical

23 basis. I took a lot of flack for it

24 incidentally.

25 Q. So you are familiar with dying




198



1 patients?

2 A. Correct. And, as I've mentioned also,

3 the fact that practicing in radiation therapy you

4 have a significant number of patients who you are

5 not able to cure predominantly because you get

6 them at the later stages of cancer and that's the

7 reason that I've been very interested in the

8 early diagnosis of cancer, but it is an exciting

9 area that when I practiced radiation therapy I

10 had the ability to admit patients to my own

11 service in the hospital and therefore was

12 responsible for their care.

13 Q. So in those instances you were the

14 primary physician?

15 A. I was the primary physician, correct.

16 Q. You mention the phrase meditative coma;

17 do you recall that?

18 A. Meditative?

19 Q. Yes. Do you remember?

20 A. I don't remember that specific phrase.

21 Q. In your mind is coma a continuum?

22 A. A coma is a spectrum and there are

23 different stages and different degrees of coma.

24 Q. Can patients emerge fully from coma,

25 occasionally?




199



1 A. They can, yes. As I indicated, the

2 longest one that I am aware of that has responded

3 to hyperbaric oxygen that was 14 years and that

4 was an anoxic coma from carbon monoxide

5 poisoning.

6 Q. Did you actually read the films and the

7 imaging studies on that patient?

8 A. I've seen the videotapes. At that time

9 we weren't doing the -- as I remember, we weren't

10 doing SPECT scans.

11 Q. Are videotapes useful diagnostic tools

12 in assessing a patient's lack of progress?

13 A. In my opinion, yes, because it's an

14 objective way of permitting other people to look

15 at what the response of the patient is.

16 Q. Doctor, of what duration is a reflexive

17 action?

18 A. A reflexive action is usually a few

19 seconds. That if you stimulate a knee and get a

20 knee jerk that that occurs within a few minutes

21 as a reflex.

22 Q. Would Terri's interaction with her

23 mother that you observed in your mind be a

24 reflexive action?

25 A. In my opinion, no, because it's a




200



1 sustained activity that I can see over a period

2 of several minutes.

3 MS. ANDERSON: I think I have no

4 further questions, Your Honor.

5 THE COURT: Thank you. Any further

6 questions, Mr. Felos?

7 MR. FELOS: Yes, Your Honor.

8 RECROSS-EXAMINATION

9 BY MR. FELOS:

10 Q. Regarding these scans here,

11 Dr. Maxfield, you were just asked a question on

12 redirect examination, the fact that the '96 scan

13 is blown up more than the 2000 scan, would that

14 change your opinion that Terri's brain has

15 improved. And you said, no, and you -- but then

16 you said because of the overall pattern.

17 What did you mean by that comment?

18 A. Because in other areas of the images

19 you did not see the change in the graininess

20 because of the difference in size.

21 Q. Would you agree that in looking at the

22 2002 scan is sharper in appearance or focus than

23 the 1996?

24 A. You have no way of knowing what it was

25 without directly comparing it to the image




201



1 because not infrequently your printing on your

2 images is out of focus.

3 Q. That wasn't my question. My question

4 is: If you look at these two, does the 2002 scan

5 look sharper and more in focus to you?

6 A. It's more in focus, but I cannot say

7 that's because of the blowup of the size.

8 Q. You were asked -- you testified on

9 redirect about the team approach. And you

10 mentioned the teach approach of treating cerebral

11 palsy patients and patients with hypoxic

12 encephalopathy.

13 Were those cerebral palsy patients able

14 to talk at all?

15 A. Some of them have regained their

16 ability to talk. They've gone from blindness to

17 being able to see, from being unable to walk to

18 being able to walk.

19 Q. I'm talking about before treatment was

20 administered. Were those patients able to talk

21 in any way?

22 A. Some of them were not, correct.

23 Q. Was there any question in your mind

24 that the patients who couldn't talk were unable

25 to communicate?




202



1 A. No, because they could follow some

2 activities and responded to the individuals

3 around them. So they were not in a coma for the

4 majority, there are some of the CP patients that

5 are in a significant coma.

6 Q. You were asked again about as you

7 phrased it, Terri's interaction with her mother.

8 Would you agree that as shown on the tape is not

9 a consistent reproducible phenomenon?

10 A. I don't remember that we saw that much

11 on the tape that was shown today. It was a

12 reproducible phenomenon when I observed the

13 patient under three different days with her

14 mother.

15 Q. So are you saying today you can't

16 testify for a certainty that it was consistent?

17 A. Not based on what was shown on the

18 tape, no, that we looked at today.

19 MR. FELOS: Thank you.

20 FURTHER REDIRECT EXAMINATION

21 BY MS. ANDERSON:

22 Q. Dr. Maxfield, you have in your

23 possession the individual eight by ten blowup --

24 MR. FELOS: Excuse me, Your Honor. We

25 just went through recross. I didn't know




203



1 that -- I brought up no new matters on

2 recross examination. This is now we're

3 going back to direct rather than --

4 MS. ANDERSON: No, we're not. This is

5 related to the quality of the images --

6 THE COURT: Well, usually the one who

7 puts the witness on has the last word so I

8 usually don't allow recross.

9 MS. ANDERSON: This is just one little

10 area.

11 THE COURT: How many questions?

12 MS. ANDERSON: Probably two. Okay,

13 three.

14 BY MS. ANDERSON:

15 Q. Dr. Maxfield, do you have in your

16 possession a set of the individual image blowups

17 from the '96 scan and the 2002 scan? Is that

18 right there?

19 A. This is the blowup of the 2002.

20 Q. Okay. You already had in your

21 possession the blowups of the --

22 A. I previously had it, but I don't have

23 it. I think I returned that to you.

24 Q. Okay. I sorry. I thought you had them

25 with you today.




204



1 A. No, just the 2002 images.

2 Q. When you look at the blowup of these

3 images, does it change your opinion?

4 MR. FELOS: Your Honor, I haven't seen

5 these. Before the witness starts testifying

6 about them, I would like to see them and it

7 seems like we're going into a never-ending

8 examination of the witness.

9 MS. ANDERSON: I want the record to be

10 clear about the quantity of the blowup.

11 THE COURT: It's the same size that's

12 on the board, isn't it?

13 MR. FELOS: That appears to be, Your

14 Honor.

15 MS. ANDERSON: It looks like it is.

16 THE COURT: They appear to be the same

17 size as what's on the board.

18 MS. ANDERSON: Well, if that's the case

19 the question doesn't matter. It's the same

20 size.

21 MR. FELOS: That's what it appears to

22 be.

23 MS. ANDERSON: Okay. No further

24 questions, Your Honor.

25 THE COURT: Thank you. Doctor, thank




205



1 you very much. You're no longer under oath.

2 THE WITNESS: Okay. Thank you.

3 MS. ANDERSON: Judge, we have some

4 housekeeping I think about exhibits and I

5 would like to call Mr. Schiavo. I don't

6 know how you want to proceed. I think you

7 ruled after you heard three doctors you

8 would then decide the Motion to Quash a

9 subpoena on Mr. Schiavo.

10 THE COURT: If we could do that quickly

11 as well. I have a meeting I need to attend.

12 MR. FELOS: Well, Your Honor, if we're

13 going to open the door to additional

14 witnesses, then there are additional

15 witnesses I would like to call.

16 I was intending to subpoena Congressman

17 Bilirakis since his statement wasn't

18 introduced and I'm going to put him on the

19 stand for rebuttal. I can think of many

20 witnesses that I can call in this cause

21 besides the doctors and I don't believe for

22 many reasons as we've discussed before --

23 THE COURT: Are you arguing your motion

24 or are you arguing your chance to bring up

25 your motion?




206



1 MR. FELOS: I just thought I heard the

2 Court say that we had enough time to take

3 his testimony. Maybe I misheard that.

4 THE COURT: No, I didn't say that. She

5 wanted to bring up the Motion to Quash.

6 MR. FELOS: Oh, okay.

7 THE COURT: And I said we can if we

8 could do it expeditiously. I can wait until

9 the morning, but I did tell you we would do

10 after this witness and I would like to be

11 able to do that.

12 MR. FELOS: That's fine, Your Honor.

13 We could take it up now.

14 THE COURT: What else do we have on

15 housekeeping, exhibits?

16 MS. ANDERSON: We do have some

17 exhibits. I need to move some exhibits into

18 evidence. 77 and 88, I think.

19 THE COURT: Which are?

20 MS. ANDERSON: They are the full

21 articles on the Progress study and the HOPE

22 study. One published in Lancet and the

23 other in the New England Journal.

24 THE COURT: The full what about that?

25 MS. ANDERSON: The full articles as




207



1 opposed to the abstracts.

2 THE COURT: Is there any objection to

3 those, Mr. Felos?

4 MR. FELOS: Are those the ones that

5 were identified by Dr. Hammesfahr yesterday?

6 MS. ANDERSON: Correct, 77 and 88. 77

7 is the New England Journal and --

8 THE COURT: One of them had 3000-plus

9 participants and the other one I think was

10 closer to 10,000.

11 MS. ANDERSON: It was one published

12 concerning the Progress study was 9297

13 high-risk patients or that -- I'm sorry,

14 that was the HOPE study. Exhibit 88 was

15 published in Lancet and concerned the study

16 of 6105.

17 THE COURT: Close enough.

18 MR. FELOS: Your Honor, I renew my

19 previous objection as to the articles which

20 was that they were improperly -- you cannot

21 use on direct examination articles to

22 bolster the testimony of your own witness

23 and hearsay. So I would renew my previous

24 objections.

25 THE COURT: All right. I'm going to




208



1 treat them the same as the other. What

2 number were those?

3 MS. ANDERSON: 77 and 88, Your Honor.

4 THE COURT: Those will come in at the

5 conclusion of the case. If they have not

6 been identified as authoritative sources,

7 consider a Motion to Strike.

8 MS. ANDERSON: There are a couple of

9 other things too that I would like to take

10 up tomorrow morning. I want to go over my

11 exhibit list tonight to make sure that I

12 moved into evidence what I needed to have

13 done.

14 THE COURT: Do you want my copy of what

15 I've written down?

16 MS. ANDERSON: That would be great.

17 That's the real one.

18 THE COURT: Well, you're welcome to it

19 if you want it.

20 MS. ANDERSON: Okay.

21 THE COURT: But you have to give it

22 back.

23 MS. ANDERSON: I will. I will compare

24 it to mine.

25 THE COURT: What else housekeeping-wise




209



1 before we get into Mr. Felos' Motion to

2 Quash.

3 MS. ANDERSON: Because we had shown

4 clips I had a CD prepared with a copy for

5 Mr. Felos of the clips that we've shown with

6 a little --

7 THE COURT: All of them?

8 MS. ANDERSON: Yes, with a little table

9 of contents for the ease of the Court and

10 the DCA as well.

11 THE COURT: So if you would kindly

12 supply Mr. Felos that and give him until

13 Friday to determine if there's an issue with

14 that. Would that be enough time, Mr. Felos?

15 MR. FELOS: If I can ask a question, do

16 you intend to introduce the tapes in their

17 entirety as well or just the clips?

18 MS. ANDERSON: Right, and also the --

19 we have the original formatted ones.

20 THE COURT: Well, now when you say the

21 original format, are you intending to

22 introduce more than what the Court viewed?

23 MS. ANDERSON: More than the Court

24 viewed?

25 THE COURT: Yes.




210



1 MS. ANDERSON: Yes, there would be, for

2 example, I think the last 30 minutes of

3 Hammesfahr exam. Today we did not show all

4 of the Maxfield exam.

5 THE COURT: Is there an objection to

6 all the videos in her possession coming in?

7 MR. FELOS: I have no objection to the

8 entire tapes coming in.

9 THE COURT: Okay. But she wants to

10 introduce all the tapes in one little pile

11 and then a CD of what was actually played.

12 Do you have a problem with?

13 MR. FELOS: I would like to, if I

14 could, Your Honor mentioned before that I

15 could have a copy of the CD with the partial

16 and I would like to review that.

17 THE COURT: That's what she's going to

18 give you today.

19 MS. ANDERSON: Well, actually,

20 Mr. Rosen tells me that we don't have a

21 copy, we have just -- it's actually a

22 three-part CD set. So I think we could have

23 them tomorrow, if not, then on Friday.

24 THE COURT: All right. We will give

25 Mr. Felos a couple of days. If you could




211



1 get them to him by Friday he could have them

2 over the weekend. Instead of watching

3 football he can watch that.

4 All right. Let's go to this subpoena

5 on Mr. Michael Schiavo. You had indicated

6 earlier that you wanted him to fill in some

7 gaps, Ms. Anderson?

8 MS. ANDERSON: Dr. Gambone testified

9 that he relied extensively on what

10 Mr. Schiavo told him about Terri's history.

11 Of course he's her guardian. And also

12 relied on decisions about her current

13 medical treatment.

14 THE COURT: But how does that affect

15 the medical evidence on a current -- let me

16 just review my charge again.

17 MS. ANDERSON: Also, Judge, there is

18 the issue of -- I would say I have a

19 question or two that relates to that fourth

20 category that the DCA, any other matters --

21 THE COURT: That I rule relevant.

22 MS. ANDERSON: That you deem relevant.

23 THE COURT: Why don't you ask him if I

24 would deem it relevant.

25 MS. ANDERSON: I would like to do it




212



1 out of the presence of Mr. Schiavo who is in

2 the courtroom.

3 THE COURT: You can't do it outside of

4 the presence of his counsel.

5 MS. ANDERSON: No, but I think that we

6 can probably take it in camera and you can

7 instruct Mr. Felos not to reveal the subject

8 of the inquiry to Mr. Schiavo.

9 THE COURT: All right. Let's take --

10 could we do this sidebar?

11 MS. ANDERSON: Sure. I don't know

12 about the acoustics in this room, but --

13 THE COURT: Well, you can't hear

14 anything anyway, I don't think that -- if we

15 whisper nobody can hear us anyway.

16 MS. ANDERSON: Can we have an agreement

17 that Mr. Felos will not discuss the subject

18 that we're about to discuss to the client?

19 MR. FELOS: Well, I have a duty

20 obviously to report to my client and

21 zealously defend his interest. I mean, it's

22 hard for me to agree to something when I

23 don't know what we're talking about.

24 MS. ANDERSON: All right.

25 THE COURT: I'm going to gag Mr. Felos




213



1 for the moment. I will decide whether I

2 keep it on or not after I hear it.

3 MS. ANDERSON: He testified at the

4 trial in January of 2000 before the Court.

5 He told you, Your Honor, that she was

6 expressionless. She didn't move. She was

7 almost sitting in like a praying mantas

8 position.

9 I have never ever seen Terri have any

10 voluntary movement or follow through with

11 any commands. I have not seen Terri laugh

12 or smile. She makes a moaning noise. Her

13 mouth opens up. Kind of -- I would not call

14 that a smile.

15 He has said -- he has certainly

16 commented to the media this week that

17 there's nothing new on these tapes that have

18 been shown in court. That he's seen this

19 for 13 years.

20 THE COURT: These people have been

21 commenting to the media ever since I've been

22 involved in this case.

23 MS. ANDERSON: If he has seen what we

24 have seen on this tape, if he's been seeing

25 this for nearly 13 years he did not tell the




214



1 truth to the Court.

2 THE COURT: Well, the issue is whether

3 or not her movements are voluntary or

4 involuntary.

5 MS. ANDERSON: Uh-huh.

6 THE COURT: Now, a layperson telling me

7 they're involuntary doesn't help me.

8 MS. ANDERSON: He said he saw no

9 movement. He said he didn't see movement.

10 THE COURT: It says no voluntary

11 movements is what you said.

12 MS. ANDERSON: I could read it to you

13 verbatim.

14 THE COURT: That's what you just read,

15 I thought.

16 MS. ANDERSON: Here is the question,

17 Michael, you have spent more time with Terri

18 and have seen Terri more often than anyone

19 since her incident. Have you ever seen any

20 voluntary --

21 THE COURT: Slow down.

22 MS. ANDERSON: I'm sorry -- response on

23 her part in all of these years?

24 Answer: I have not.

25 Question: Does Terri -- does Terri




215



1 emit any noises? Does her face move? Her

2 head?

3 Answer: Terri will moan, but it's not

4 to anything. We could -- I could be sitting

5 next to her and she will start to moan. Her

6 eyes will blink. Her head will kind of

7 twitch. It will kind of move itself. She

8 also has --

9 THE COURT: Not quite so fast.

10 MS. ANDERSON: Okay. She goes into

11 this spasm where she will hyperflex her neck

12 when she makes these noises. She will move

13 her, I shouldn't say her arms move to where

14 it looks like it is tightening up.

15 She is almost sitting in like a praying

16 mantis position. I have never, ever seen

17 Terri have any voluntary movement or follow

18 through with any commands.

19 Does Terri have tears at times?

20 Answer: I notice she had a tear or

21 two, but to me it was after she would kind

22 of take a big deep breath, almost looked

23 like a yawn and her eyes would tear.

24 Question: Have you ever seen Terri

25 laugh or smile?




216



1 Answer: I have not seen Terri laugh or

2 smile. She makes a moaning noise and her

3 mouth opens up kind of, but I would not call

4 that a smile.

5 That is entirely inconsistent with

6 what's been seen on these videotapes this

7 week, Judge --

8 MR. FELOS: That's entirely consistent

9 in what we've seen on these videotapes --

10 MS. ANDERSON: Furthermore --

11 THE COURT: Don't talk over each other.

12 This lady has been nice all day and I don't

13 want her to have a tantrum.

14 MS. ANDERSON: Furthermore, Judge,

15 Dr. Gambone testified that he relied on

16 what Mr. Schiavo told him about Terri's

17 history when he took over her care in 1998.

18 I want to know what Mr. Schiavo told him.

19 THE COURT: I don't think it's germane.

20 MS. ANDERSON: Well, it is germane to

21 the extent that it influenced Dr. Gambone's

22 future course of care. I want to know why

23 he didn't define the evaluation on physical

24 therapy.

25 THE COURT: The therapy or lack of




217



1 therapy may or may not have resulted in what

2 we have now. The Second DCA says we're

3 starting with what we have now and going

4 forward. I don't think it matters if

5 Michael Schiavo was a good guy or a bad guy.

6 I don't think it matters if Dr. Gambone

7 should or shouldn't have done stuff in 1998

8 when he took over. I'm only interested in

9 is where do we find Terri Schiavo today,

10 what the new treatment looks like, what the

11 efficacy of the new treatment is and what

12 the Second DCA told me. And with that, they

13 said a limited hearing.

14 MS. ANDERSON: I understand that.

15 THE COURT: They said five witnesses.

16 I added one.

17 MS. ANDERSON: Uh-huh.

18 THE COURT: That's probably going to

19 get --

20 MS. ANDERSON: I don't think they care.

21 THE COURT: But I'm not going to open

22 this up to lay testimony because like

23 Mr. Felos says --

24 MS. ANDERSON: Okay.

25 THE COURT: -- goodness knows where we




218



1 stop.

2 MS. ANDERSON: All right.

3 THE COURT: You got your proffer on the

4 record.

5 MS. ANDERSON: All right. And I just

6 want to make clear to the Court that what

7 started me thinking about this is that

8 Dr. Gambone has relied on him to make

9 treatment decisions.

10 THE COURT: That's in my notes.

11 MS. ANDERSON: Okay.

12 MR. FELOS: Your Honor, can I disclose

13 the contents of this conversation to my

14 client?

15 THE COURT: Well, I'm quashing the

16 subpoena so it's academic at this point.

17 I'm just not going to open this up to lay

18 testimony, I apologize.

19 MR. FELOS: Sir, excuse me, Judge, I

20 was under a specific gag order and I really

21 need to know whether that's lifted.

22 THE COURT: It's gone.

23 MR. FELOS: It's gone. Thank you.

24 MS. ANDERSON: It doesn't matter.

25 MR. FELOS: Just to clarify, since the




219



1 blowups are in evidence they'll be here

2 overnight because I'm sure the other doctors

3 will be using them?

4 MS. ANDERSON: I don't have any problem

5 with that.

6 THE COURT: Well, if they're here

7 overnight, then that should be a problem.

8 Thursday is reserved for.

9 MR. FELOS: So at least for tomorrow

10 it's okay --

11 THE COURT: Yes. The courtroom would

12 be secured, will it not, Mr. Sheriff?

13 THE BAILIFF: It will be, sir.

14 THE COURT: So you can leave whatever

15 you want to here.

16 MS. ANDERSON: Who are you doing on

17 Friday? Who is coming on Friday?

18 MR. FELOS: Melvin Greer.

19 THE COURT: No relation.

20 MS. ANDERSON: No relation.

21 THE COURT: And that will be on the

22 record.

23 MS. ANDERSON: Right.

24 THE COURT: Are we agreeing and I

25 haven't seen the reports, but somebody is




220



1 going to need to tell me before we're done

2 if the reports are in or out.

3 MS. ANDERSON: He goes -- he does the

4 direct on Dr. Bambakitis and that --

5 THE COURT: Well, I'm saying, I'm

6 assuming from what I saw in the newspaper

7 that Dr. Bambakitis, in essence, agrees with

8 your position as opposed to Ms. Anderson's

9 position.

10 MR. FELOS: Yes, in his position. I

11 was going to proceed.

12 THE COURT: So you will go on direct

13 and she'll do cross, redirect and maybe

14 recross. Maybe reredirect.

15 MR. FELOS: Maybe.

16 THE COURT: Okay. Is that it?

17 Nine-thirty?

18 MS. ANDERSON: Nine-thirty tomorrow.

19 THE COURT: How long -- will he take

20 all day again?

21 MS. ANDERSON: I didn't think

22 Dr. Maxfield would take all day. I will not

23 make any more estimates.

24 THE COURT: Okay. See you all

25 tomorrow.




221



1 (Thereupon, testimony for October 15th, 2002 were

2 concluded.)

3 * * * * *

4 OCTOBER 16th, 2002

5 THE COURT: Are we ready?

6 MR. FELOS: Yes, Your Honor. I would

7 call Dr. Peter Bambakidis.

8 THE BAILIFF: Sir, step this way. Face

9 the Judge, raise your right hand to receive

10 the oath.

11 (Thereupon, the witness was duly sworn on oath.)

12 MS. ANDERSON: Your Honor, as a

13 preliminary matter, I know that we were

14 having difficulty in the July 10th hearing

15 hearing Dr. Bambakidis.

16 THE COURT: We have better audio today

17 than we did then, I believe.

18 MS. ANDERSON: Okay. If you would just

19 caution the witness to speak into that mic

20 it would be very helpful.

21 MR. FELOS: It looks hard not to from

22 his perspective.

23 THE COURT: If he gets any closer he's

24 going to swallow it. Please proceed, Mr.

25 Felos.




222



1 MR. FELOS: Thank you, Your Honor.

2 THEREUPON,

3 PETER BAMBAKIDIS, M.D.

4 WAS ADDUCED AS THE WITNESS HEREIN AND AFTER

5 BEING DULY SWORN ON OATH WAS EXAMINED AND

6 TESTIFIED AS FOLLOWS:

7 DIRECT EXAMINATION

8 BY MR. FELOS:

9 Q. Good morning, Dr. Bambakidis.

10 MS. ANDERSON: Wait, a minute. I can't

11 see the witness from here.

12 MR. FELOS: I can move this back, if

13 you want. Is that okay?

14 MS. ANDERSON: Yes.

15 BY MR. FELOS:

16 Q. Could you state your name for the

17 record, please?

18 A. Peter Bambakidis.

19 Q. And could you spell your last name for

20 the court reporter, please?

21 A. I'm used to doing that. B, as in boy,

22 A-M, as in Mary, B, as in boy, A-K-I-D, as in

23 David, I-S as in Sam.

24 Q. Okay. And are you employed at this

25 time?




223



1 A. Yes, I am.

2 Q. And how are you employed?

3 A. I'm a neurologist in the Department of

4 Neurology at the Cleveland Clinic Foundation in

5 Cleveland, Ohio.

6 Q. And do you reside then in Cleveland as

7 well?

8 A. I live in the western suburb of

9 Cleveland called Rocky River, Ohio.

10 Q. Dr. Bambakidis, I wanted to ask you

11 about your educational background. Could you

12 briefly describe that to the Court.

13 A. Yes. I attended the Case Western

14 Reserve University School of Medicine, graduating

15 in 1984. I then did a residency in neurology at

16 the Mayo Clinic from 1984 to 1988. From 1988 to

17 1989 I did a fellowship in

18 electroencephalography --

19 Q. Let me ask --

20 A. -- at the clinic.

21 Q. Let me ask you about that. First of

22 all, what is electroence --

23 electroencephalopathy -- electroencephalography

24 -- I said that wrong, but you can say it right.

25 A. I hope so. Electroencephalography is a




224



1 branch of clinical neurophysiology and that is a

2 way of assessing the functions of the nervous

3 system using electric -- electrical or autonomic

4 techniques with special instrumentation.

5 More specifically,

6 electroencephalography deals with the recording

7 of the electrical activity generated by the

8 brain, more precisely the cerebral cortex. Then

9 making interpretations as to the level

10 appropriateness or as the case may be abnormality

11 of cerebral function based on that particular

12 type of testing.

13 Q. And what is the device that measures

14 the electrical activity coming from the cerebral

15 cortex?

16 A. It's the electroencephalographic

17 apparatus itself and the tracing that is obtained

18 as a result of that is what we like to call

19 electroencephalogram.

20 Q. Can you describe briefly what that

21 apparatus is and how it works?

22 A. Yes, and I'll try to make it as basic

23 as I possibly can because it's a bit complicated.

24 Electrodes are attached to the surface of the

25 scalp in the standard locations based on their




225



1 distances between certain bony landmarks.

2 The signals from the scalp that are

3 generated by the brain are then amplified and

4 filtered as appropriate and displayed nowadays

5 using computer technology on a computer screen.

6 But in the older days when I trained it was on a

7 piece of paper.

8 So what you really did is a graph of

9 the electrical activity coming from the brain as

10 functions of time. And then you look at that in

11 various ways in different perspectives, much the

12 same way you would look at a sculpture, a piece

13 of art, from different angles in order to

14 appreciate its uniqueness and make an

15 interpretation from that based, number one, on

16 whether or not what you are seeing is coming from

17 the brain or some sort of artifact.

18 Number two --

19 Q. Excuse me. You used the word artifact?

20 A. Yes.

21 Q. What do you mean by that?

22 A. Well, the recording technique is so

23 sensitive that special attention has to be paid

24 to extra cerebral activity, that is, things that

25 are recorded that are not coming from the




226



1 cerebral cortex, but rather, for example, from

2 the patient opening and closing the eyes,

3 clicking their teeth together, swallowing or from

4 an aberration or abnormality of the recording

5 apparatus itself, like an electro artifact or a

6 problem with the amplifying system.

7 So once you exclude what you are seeing

8 is coming from the brain, then you have to decide

9 whether or not what you're seeing is normal or

10 abnormal given the patient's age and level of

11 alertness.

12 Q. Now, how were you able to exclude

13 artifacts when you interpret these readings?

14 A. Sometimes it's very difficult. And the

15 two basic approaches, number one, on the basis of

16 the electroencephalograph interpreters and

17 encephalophalographic interpreter's experience

18 and also in the experience of the technician to

19 troubleshoot as it were during the course of the

20 examination in which she sees activity that may,

21 in fact, be an artifact.

22 Q. So this area of medicine,

23 electroencephalography --

24 A. Yes.

25 Q. -- is what you were involved in in your




227



1 fellowship in 1988 and 1989?

2 A. Yes.

3 Q. And if you can continue with your

4 educational and professional background

5 subsequent to that fellowship.

6 A. Yes. I -- from 1989 to 1992 I was in

7 private practice in the western suburbs of

8 Cleveland and actually southwestern suburbs of

9 Cleveland as well. From 1992 to 1994 I was on

10 the faculty of Case Western University School of

11 Medicine, but during that period, that is '92 to

12 '94, I was a full-time member in the Department

13 of Neurology there.

14 From '94 to 2000 I was practicing

15 neurology in a multi-specialty group on the west

16 side of Cleveland based at the hospital with

17 which I'm affiliated or one of the hospitals in

18 which I am affiliated.

19 And since June of 2000 I've been, as I

20 mentioned initially, a member of the Department

21 of Neurology of the Cleveland Clinic Foundation.

22 Q. Did you happen to -- when you were at

23 the Mayo in Rochester, were you involved at all

24 in the development of a combined EEG and EMG?

25 A. Yes.




228



1 Q. Can you explain or tell us what an EMG

2 is?

3 A. Well, EMG is another major branch of

4 clinical neurophysiology. This primarily is

5 involved with the assessment of the peripheral

6 nervous system. That is, not directly the brain

7 and the spinal cord so much, but rather the

8 nerves as they leave the brain and spinal cord

9 travelling from the limbs down to the muscle and

10 to the skin.

11 So we're assessing muscle function and

12 indirectly in a clinical basis nerve function

13 with regard to sensation via that particular

14 technique.

15 Q. And what work did you do regarding the

16 development of a combined EEG and EMG?

17 A. Well, there is a curriculum change that

18 was being made in the training program in the

19 Department of Neurology and they approached me as

20 well as some other residents with regard to

21 providing input as to how that may be best

22 implemented.

23 Q. Now, are you currently licensed to

24 practice medicine in any states?

25 A. Yes, I am.




229



1 Q. Where are you licensed to practice

2 medicine?

3 A. In the State of Ohio and the State of

4 Minnesota.

5 Q. Now, do you hold any board

6 certifications?

7 A. Yes, I do.

8 Q. And what board certifications do you

9 hold?

10 A. I'm certified by the American Board of

11 Psychiatry and Neurology and Clinical Neurology,

12 that is adult neurology. I'm also certified by

13 that same board in a subspecialty of Clinical

14 Neurophysiology. In addition, there's a separate

15 board called the American Board of Clinical

16 Neurophysiology and I'm also certified in

17 clinical physiology by that board.

18 Q. Now, your certification by the American

19 Board of Psychiatry and Neurology, is that under

20 the American -- Board of American Specialities?

21 A. Yes, it is.

22 Q. Now, at the current time, do you hold

23 any academic appointments?

24 A. Yes. I'm assistant clinical professor

25 of neurology at the Case Western Reserve




230



1 University School of Medicine.

2 Q. All right. Dr. Bambakidis, did you

3 have an opportunity to examine Theresa Schiavo?

4 A. Yes, I did.

5 Q. I want to ask you prior to your

6 examination of Theresa Schiavo what materials did

7 you review regarding her?

8 A. If I recall correctly, and please allow

9 me to refer to my file, if you don't mind, from

10 time to time if I don't get the names absolutely

11 correct.

12 Q. Certainly.

13 A. I reviewed the records from her initial

14 hospitalization at Humana Northside Hospital, I

15 believe. There then was a period in which she

16 was in a rehabilitation facility and I forgot the

17 name of that. I think it is Bayfront; is that

18 correct maybe?

19 Q. There's a Bayfront facility here.

20 A. Yes. I've reviewed those records. I

21 also reviewed subsequent records when she was in

22 another rehabilitation facility that would have

23 been in 1991, I believe.

24 In addition, I reviewed the results of

25 the independant medical examination that was




231



1 performed by her generalist. And subsequent to

2 that there were subsequent -- there were

3 diagnostic studies that had been ordered in this

4 year and more recently and I also reviewed those

5 particular studies personally or reviewed the

6 reports of those studies.

7 Q. Okay. Well, now regarding the reports

8 and studies, did you review the report of the CT

9 scan performed in July of 2002?

10 A. Yes, I did.

11 Q. And did you review the actual films

12 themselves?

13 A. Yes, I did.

14 Q. Did you review the report of the EEG,

15 electroencephalogram, performed in July of 2002?

16 A. Yes. I believe I also looked at the

17 tracing, Mr. Felos.

18 Q. Okay. Did you review a -- it was a

19 short videotape of Theresa Schiavo that had been

20 introduced in evidence at the trial in January of

21 2000?

22 A. I believe I did not review that.

23 Q. Okay. Now, after your examination of

24 Theresa Schiavo did you have an opportunity to

25 review any additional materials concerning her?




232



1 A. Subsequent to my examination of Ms.

2 Schiavo I did review her data, first of all, the

3 initial studies that were -- additional studies

4 that were ordered subsequent to that. I believe

5 that I reviewed and I'm certain that I reviewed

6 those reports.

7 Q. Is that the subsequent bloodwork done

8 by Dr. Gambone?

9 A. Yes.

10 Q. Okay.

11 A. And I believe the SPECT scan that was

12 performed, an initial EEG report was performed,

13 an ultrasound of the carotid arteries also.

14 Q. Now, the subsequent EEG you reviewed

15 the report of the results; is that correct?

16 A. That's correct.

17 Q. Did you review the tracings?

18 A. No, I did not.

19 Q. Now, the SPECT scan, did you review the

20 results of the test?

21 A. Yes, I did.

22 Q. Did you review the film of the SPECT

23 scan?

24 A. Yes, I did.

25 Q. Have you had an opportunity since your




233



1 examination of Theresa Schiavo to review the 1996

2 CT scan?

3 A. Yes, briefly.

4 Q. And was that earlier this morning?

5 A. Yes.

6 Q. And did you have an opportunity to

7 review the videotapes of the examinations of Drs.

8 Hammesfahr, Cranford and Maxfield?

9 A. Yes, I did.

10 Q. Okay. Thank you. Excuse me one

11 moment, Judge. I would like to ask you first

12 about the July 2002 CT scan and I'm going to move

13 this back, so if you want to move around to see

14 the witness. Okay.

15 Dr. Bambakidis, I'm pointing to now a

16 enlargement of Respondent's Exhibit 10, which is

17 the 2002 CT scan. And if you're having

18 difficulty in looking at these blowups, with the

19 Court's permission, you may be able to walk down

20 and take a closer examination, if you find it

21 necessary.

22 Regarding the 2002 CT scan, what were

23 your findings or conclusions upon examination of

24 the films?

25 A. The film, more precisely this




234



1 particular study, is markedly abnormal.

2 Q. Uh-huh. And can you explain why?

3 A. Yes. There is a very, very prominent

4 enlargement of the fluid spaces within the brain.

5 The fluids space are a normal phenomena, but in

6 this case they are markedly large.

7 The other associated finding, the one

8 that is directly related to that, is the atrophy

9 and the loss of tissue affecting the cerebral

10 cortex, to a lesser degree the back part of the

11 brain, although perhaps it's not as well noted on

12 the CT as it would be on an MRI scan.

13 Q. Okay. Dr. Bambakidis, perhaps with the

14 Court's permission, if you could step down and

15 point to the particular images. The images are

16 sequentially numbered on this exhibit and perhaps

17 point that out that you are referring to in your

18 testimony.

19 A. Yes.

20 THE COURT: You'll need to bring your

21 microphone, Doctor.

22 THE BAILIFF: I have the remote mic for

23 him, Your Honor.

24 THE COURT: Do you? Okay. You won't

25 need your microphone. I'm sorry.




235



1 THE BAILIFF: Here is the remote. It's

2 on.

3 BY MR. FELOS:

4 Q. Doctor, I believe you first testified

5 as to a marked increase in the ventricles or what

6 were your words? How did you describe that?

7 A. Well, I would like to describe it in

8 non-technical language. The normal occurring

9 fluid spaces in the brain, basically.

10 And this is -- it's for me the most

11 striking feature that I see. And, in particular,

12 it's best appreciated if we go, for example, to

13 Image 15 it has the level of ventricles. These

14 are markedly enlarged. And that's also seen in

15 the next image, Image 16 as well and in others.

16 Q. Now, in Image 15 this darkened spot

17 that looks like a butterfly?

18 A. Yes.

19 Q. Is that what you mean by enlarged

20 ventricles?

21 A. Those are the ventricles and they are

22 markedly large.

23 Q. Okay. Now, what might that look like

24 in a normal CT scan?

25 A. Well, that would be -- they would be




236



1 much, much smaller than that. Of course there's

2 some normal variation in the size of the

3 ventricular system, the size of those ventricles,

4 the size of those fluid spaces and some of them

5 are in the process of aging, but this is clearly

6 very abnormal.

7 Q. And, in your opinion, why does Terri

8 Schiavo have these markedly enlarged ventricles?

9 A. Part of the reason that I picked Image

10 15 is because it very dramatically illustrates

11 the atrophy of the cortex along the sides. The

12 cortex is the very, very most of the -- most

13 highly developed part of the brain, if you will.

14 If you look on Image 15, there are

15 spaces of the same density or lack thereof that

16 you see in the ventricular system. That is, in

17 fact, open space and filled by cerebral spinal

18 fluid, which normally occupies those little

19 spaces.

20 The reason that that fluid is there is

21 because there's been such profound loss of

22 tissue. It's become filled in by that fluid.

23 And with the atrophy, there is, if you would or

24 if you will, a pulling or compensatory pulling of

25 the ventricles themselves so that they enlarge




237



1 accommodating to the fact that that normal brain

2 cortex has become lost. It's not there anymore,

3 so you have compensatory dilatation or

4 enlargement of that ventricular system.

5 Q. Now, is there any correlation,

6 Dr. Bambakidis, to this profound loss of cerebral

7 tissue and the clinical condition of the patient?

8 A. Yes.

9 Q. And what is that correlation?

10 A. Well, the correlation here is that

11 clearly on the basis of her history, both the

12 initial insult that occurred and her subsequent

13 course, that this scan in total, both the

14 prominent fluid spaces in the brain and the

15 atrophy reflect severe damage to the brain,

16 specifically to the cerebral cortex, as a

17 consequence of anoxic encephalopathy.

18 Q. What function does the cerebral cortex

19 play for a person?

20 A. Oh, it's very, very vital. Those

21 aspects of human existence involving awareness of

22 one's self, awareness of those around us, our

23 ability to communicate, our ability to experience

24 pleasure on a conscious level and our ability to

25 suffer as well is a function of the cerebral




238



1 cortex.

2 And it's frightening to think that such

3 a relatively small area of the brain has such an

4 important role in what makes us -- I don't mean

5 pejorative I was going to say totally human, to

6 have those experiences as well as those trials

7 and tribulations that come with being human.

8 Q. Okay. I want to bring your attention

9 to the 1996 CT scan which is blown up, which is

10 the enlargement of Exhibit 98, I believe.

11 A. Yes.

12 Q. Can you -- what is your interpretation

13 of the 1996 CT scan?

14 A. Mr. Felos, let me preface my comment or

15 my answer to that question by stating that the

16 two scans are not perfectly comparable. That the

17 quality of the more recent scan is better.

18 So strictly speaking, it's not like

19 we're comparing perfect oranges to perfect

20 oranges here, but if I were to see this scan

21 without the benefit of the other scan, my

22 conclusion would be that, again, is noted the

23 very, very prominent increase in the size of the

24 ventricular system, those fluid spaces in the

25 brain, and although not quite as well delineated,




239



1 nonetheless clearly so, the atrophy of the

2 cerebral cortex. And a good example of that

3 would be in Image 10 here.

4 Q. Okay. Now, Dr. Bambakidis, in your

5 opinion, is there a substantial difference in

6 these two CT scans?

7 A. Well, with the understanding that I'm a

8 neurologist and not a neuroradiologist and with

9 the understanding further that they're not

10 strictly comparable, there's no appreciable

11 difference between the two of them.

12 Q. Now, Doctor, I want to ask you this:

13 We heard testimony yesterday from Dr. Maxfield --

14 MS. ANDERSON: Objection, Your Honor.

15 It is wholly improper for one expert to

16 comment on the expert opinion of another

17 expert in a case. Professor Ehrhardt goes

18 on at some length about that.

19 THE COURT: Mr. Felos went on about

20 that earlier.

21 MS. ANDERSON: I think he did,

22 actually.

23 THE COURT: Okay.

24 MS. ANDERSON: So, I mean, as the Court

25 knows, and I'm sure as Mr. Felos knows, the




240



1 only proper comment as between the two

2 experts is one of methodology, not

3 conclusions, not opinions, not

4 qualifications.

5 MR. FELOS: Well, Your Honor, we're

6 here to present a rebuttal case and I

7 certainly have the right to have a -- our

8 witness comment on the conclusions of the

9 prior witnesses.

10 THE COURT: Mr. Felos, the law you

11 presented the other day works both ways,

12 doesn't it?

13 MR. FELOS: Well, Your Honor, the law I

14 presented the other day I believe concerned

15 using authoritative texts on direct

16 examination. We didn't discuss this the

17 other day.

18 THE COURT: Well, I think Ms. Anderson

19 is correct. I don't think it's appropriate

20 to say -- one expert to say another expert

21 is full of hot air. I think that you may

22 ask him questions, but do not tie it up to

23 anybody else who testified.

24 MR. FELOS: Yes, Your Honor.

25 BY MR. FELOS:




241



1 Q. Dr. Bambakidis, in -- will you agree or

2 disagree with the proposition that the 2002 CT

3 scans shows a marked improvement over the 1996 CT

4 scan?

5 MS. ANDERSON: Objection, leading.

6 MR. FELOS: I said would you agree or

7 disagree, Your Honor. That is not a leading

8 question.

9 THE COURT: I think that's okay.

10 THE WITNESS: I would tend to disagree,

11 Mr. Felos.

12 BY MR. FELOS:

13 Q. Is there anything on these CT scans, in

14 your opinion, which would support the conclusion

15 that Terri Schiavo's brain has regenerated from

16 1996 to 2002?

17 A. Let me take a closer look, if you don't

18 mind, to be certain.

19 Q. Go ahead.

20 A. I'm showing the cuts may not be the

21 same, so it makes it more difficult, from my

22 perspective, to interpret. Again, Mr. Felos,

23 within the limitations of the fact that these are

24 two separate scans of different qualities, I

25 don't see any evidence of improvement or




242



1 regeneration by the tissue.

2 Q. Thank you, Dr. Bambakidis. You can

3 resume your seat in the witness box.

4 A. (Witness complies.)

5 Q. Dr. Bambakidis, when cells die in the

6 brain can they regenerate themselves?

7 A. The best answer is no, although that's

8 an area of ongoing research. But for all

9 practical intents and purposes, the answer is no.

10 Q. Now, I want to talk about the EEGs.

11 First the ones taken in -- excuse me -- the one

12 performed in July of 2002 in which you read the

13 report and also -- you read the report and also

14 the tracings?

15 A. That's correct.

16 Q. Well, excuse me. Let me backtrack a

17 second.

18 Regarding the report on the 2002 CT

19 scan, did you concur with that report?

20 A. Yes, I did.

21 Q. Now, how would you interpret the

22 tracings of Terri Schiavo's 2002 EEG?

23 A. Well, I disagree with the

24 interpretation that was provided by the

25 electroencephalogram with that study.




243



1 Q. In what respect?

2 A. I believe, and please correct me if I'm

3 wrong, that that particular study and that

4 particular interpretation, rather, suggested that

5 there was no electrical activity in the cerebral

6 origin.

7 I disagreed with that for two reasons:

8 Number one, there were significant technical

9 difficulties there were encountered, artifacts

10 that we previously discussed. That compromises

11 the ability to meaningfully interpret that

12 particular tracing.

13 Number two, if my recollection serves

14 me correct, and I don't see why it wouldn't in

15 this particular situation, the activity that I

16 saw that I was convinced was coming from the

17 brain was, in fact, insufficient to state that

18 there was no activity coming from the brain.

19 In other words, there was electrical

20 activity coming from the brain itself.

21 Q. And from the electrical activity that

22 you determined was coming from the brain, how

23 would you read the scan?

24 A. Within the limitations of the study my

25 interpretation would be that it shows low




244



1 amplitude, diffuse slowing of the background

2 activity with little in the way of spontaneous

3 variability --

4 THE COURT REPORTER: I'm sorry, I

5 couldn't hear you. Could you please repeat

6 that?

7 THE WITNESS: With little in the way of

8 spontaneous variability or response to

9 external stimuli.

10 BY MR. FELOS:

11 Q. What does that mean in layman's terms?

12 A. I'm sorry, I'm probably being too

13 technical. Please forgive me. It means that the

14 electrical activity is low amplitude, abnormally

15 low amplitude, not as prominent as it should be

16 in a normal person.

17 That the frequencies are slower than

18 normal. And that the frequencies and the

19 amplitudes don't change spontaneously the way

20 they would in a normal individual. And they

21 don't respond to stimulus such as eye opening or

22 the application of painful stimulus that they

23 would in a normal individual.

24 Q. Now, did you give special

25 instructions -- I believe you had requested an




245



1 EEG to be performed. Did you include special

2 instructions with that?

3 A. Yes, I believe that I did, Mr. Felos.

4 Q. What were those special instructions?

5 A. Well, the response to eye opening, if,

6 in fact, that had to be passive eye opening. In

7 other words, having a technician open the

8 person's eyes to see if there was any change in

9 the electro cerebral rhythms.

10 And the other one would be the

11 application of a painful stimulus. Unfortunately

12 we have to do that sometimes in order to properly

13 assess the level of cerebral functioning. I

14 believe those were the two things that I

15 specifically requested.

16 Q. So what would the technician do to

17 follow up with your instruction?

18 A. Well, as I mentioned, passively opening

19 the eyes when the machine was running. And the

20 other would be to apply a painful stimulus such

21 as taking a person's Achilles tendon or ankle

22 tendon and squeezing it gently, but sufficient to

23 cause discomfort to see if there's a change in

24 the rhythms coming from the brain.

25 Q. And, as I understand it, in this EEG




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1 there were no change in the rhythms when those

2 noxious stimuli were applied?

3 A. My best recollection is that there was

4 not, but, again, subject to the limitations of

5 the study.

6 Q. Now, in a normal EEG, if a noxious

7 stimulus was applied to the patient, what would

8 you see in the tracer?

9 A. Well, we frequently see if the person

10 is drowsy an alerting response. In other words,

11 there's a dropoff in amplitude of the normal

12 background and a flattening of the background

13 which we did not see here, if my memory serves me

14 correctly.

15 Q. In -- do you have an opinion -- do you

16 have an opinion based upon the EEG as to what

17 Terri Schiavo's capacity is to consciously

18 interact with her environment?

19 A. With all due respect, Mr. Felos, that's

20 probably an unfair question because -- and it's

21 not that you would know that. It's probably --

22 it's beyond the scope of meaningful

23 interpretation of electroencephalography to

24 answer a question like that because we want to

25 tie it to the clinical status of the patient.




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1 What I can say is this is a very

2 typical EEG who is -- that is encountered with a

3 person with a history such as Ms. Schiavo's.

4 Q. Now, you also talked about the SPECT

5 scan?

6 A. Yes.

7 Q. What is a SPECT scan, Dr. Bambakidis?

8 A. A SPECT scan is a method of imaging the

9 brain that you also use a radioactive substance

10 that's injected. And my understanding is that it

11 is primary to assess flow and not necessarily

12 metabolism. So its primary purpose, again,

13 certainly I'm not an expert in the SPECT scan, is

14 to assess blood flow to certain regions of the

15 brain.

16 Q. Uh-huh. And you reviewed the test

17 results and the films of the SPECT scan?

18 A. Yes, I did.

19 Q. Did you concur with the results of the

20 test results?

21 A. Yes.

22 Q. Were there any differences that you had

23 with the results?

24 A. A bit of difference. When I looked at

25 the report I mistakenly -- what was written was




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1 that there was activity in the frontal lobes in

2 the cerebellum.

3 In my mind I assumed that there was

4 activity in the cerebral cortex in the frontal

5 lobes. When I looked at the scan, actually there

6 is activity in the frontal lobes, but it's not in

7 the cortex, that upper-most portion of the very

8 surface of the brain where those vital nerves

9 are.

10 Q. How would you describe the SPECT scan

11 that you read?

12 A. Well, I'm not certainly an expert in

13 SPECT, as I already mentioned, anymore

14 necessarily than I'm an expert in CT

15 interpretation, although I do more of that than

16 the SPECT scan specifically, but my

17 interpretation is that that's clearly an abnormal

18 study. That's clearly an abnormal study, the

19 SPECT scan.

20 Q. Now, you've also reviewed the results

21 of the ultrasound of the carotid artery; is that

22 correct?

23 A. That's correct, Mr. Felos.

24 Q. Did you concur with the results of that

25 test?




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1 A. Well, since I didn't have the

2 ultrasound films to review, I accepted the

3 results at face value which there is no way that

4 I could tell if it is correct or incorrect. But

5 it seems reasonable and I wouldn't be surprised

6 if it showed any significant abnormality in a

7 person of her age.

8 Q. All right. Now, in reviewing the

9 bloodwork performed on Theresa Schiavo, did you

10 find any abnormalities there?

11 A. No.

12 Q. The -- in fact, I want to discuss with

13 you your examination of the patient. On what

14 date did that occur, Dr. Bambakidis?

15 A. That was, I believe, on July 9th of

16 this year.

17 Q. And can you walk us through your

18 examination and tell us what you did, what you

19 observed -- or what you did, why you did it and

20 what you observed?

21 A. Briefly, the examination consisted of,

22 in this particular case, observing her posture as

23 she was actually lying in bed. And more

24 specifically after that, assessing her responses

25 to various stimuli, both visual, tactile and




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1 noxious and auditory.

2 That then follows an evaluation of the

3 cranial nerves, that is to say the muscles that

4 are responsible for moving the eyes, controlling

5 the power of the muscles in the face.

6 An assessment of the tendon reflex,

7 which is what neurologists and physicians

8 typically do with the little hammers that they

9 get out and pound on the limbs.

10 An assessment of the tone, that is, the

11 normal resistence or the appropriateness of the

12 resistance offered by the limbs as to movement.

13 And part and parcel, assessing the

14 response to stimuli, as I mentioned, the

15 application of a painful stimulus to observe the

16 patient's pattern of response to that.

17 Q. Now, let's start at the beginning

18 again. I believe you mentioned that you first

19 observed the position in which Theresa Schiavo

20 was lying in bed?

21 A. Yes.

22 Q. Was there anything of significance in

23 that?

24 A. Yes. From the onset, the posture of

25 her limbs was abnormal. It could be