511



1 agree with that statement?

2 A. Given what qualifier?

3 Q. That for the diagnosis of a persistent

4 vegetative state and the diagnosis of the

5 cognitive status that relates to persistent

6 vegetative state, that diagnosis is time

7 dependent and cannot be made in short single

8 assessments even by competent and experienced

9 clinicians?

10 A. A competent and experienced clinician

11 can make a diagnosis based on records that are

12 considered to be valid, interview with

13 individuals who are third-party observers such as

14 nurses and the expertise of the individual

15 clinician. That's sufficient.

16 Q. Now, you have never observed Terri in

17 her mother's presence, have you?

18 A. No, but I saw a video of her mother

19 with Terri and in many of the videos with the

20 other physicians Mrs. Schiavo and Mr. Schiavo are

21 involved with doing something with Terri.

22 Q. Would you agree with this statement:

23 The ability to generate a behavioral response

24 fluctuates from day-to-day and hour-to-hour and

25 even minute-to-minute?




512



1 A. Once again, you're eliminating all

2 sorts of variables; if the patient has a fever,

3 if the patient hasn't eaten, if the patient is

4 agitated, et cetera. All of these issues will

5 alter a patient's behavioral responses and the

6 astute clinician needs to appreciate that and use

7 it as a guide, the information that's available,

8 the nursing record, the reports of others who

9 have seen the patient and so forth.

10 Q. Would a patient's responsiveness be

11 likely influenced by an infection somewhere in

12 the body?

13 A. Sure.

14 Q. Colonization of bacteria in the urine?

15 A. You have a patient who has a urinary

16 tract infection or a sepsis or a pneumonia. All

17 of these things can alter a patient's cognitive

18 reaction.

19 Q. And people with profound brain injuries

20 such as Terri Schiavo are going to be more

21 sensitive, are they not, to disruption elsewhere

22 in their body?

23 A. A person who has brain insult whether

24 it be a stroke or trauma or something such as

25 Ms. Schiavo will usually have a change that is




513



1 more apparent than in a patient who doesn't have

2 these type of CNS problems when they have an

3 infection that is associated with fever or chills

4 or something like this, yes.

5 Q. And so you would agree with that

6 statement, that it varies from day-to-day and

7 hour-to-hour and even minute-to-minute?

8 A. No, I'm going to agree with it only in

9 the context that I already mentioned to you. If

10 there is an added problem like an infection,

11 fine, that will cause a change. But over the

12 period of time when the patient does not have an

13 infection, when the patient is not in a position

14 where there is hunger as an issue and so forth

15 and so on then one relies upon the observers in

16 term of identifying this is what the patient

17 looks like. This is the way she is.

18 Q. Now, persistent vegetative state is

19 actually at least as much of a prognosis as it is

20 a diagnosis; would you not agree?

21 A. Well, I'm sorry, I don't use that

22 terminology. If you're asking what the prognosis

23 is in a patient who has persistent vegetative

24 state I could provide you some information from

25 the literature.




514



1 But if -- one does not say a stroke

2 problem is a diagnosis and a prognosis. It's a

3 matter of the issues from an epidemiological

4 standpoint. And in patients who have persistent

5 vegetative state who have recurrent infections of

6 pulmonary type their longevity is shortened

7 compared with a patient such as Ms. Schiavo who

8 has been by and large infection free.

9 Q. Do you know whether she had an

10 infection when you examined her?

11 A. Yes, she did not. I spoke to the staff

12 and found out what the story was with regard to

13 infection. I asked specifically about the

14 medication that she was taking. There was no

15 antibiotic. There was no issue with regard to

16 her being treated for a problem that might alter

17 my evaluation.

18 Q. Had she recently been treated with

19 antibiotics?

20 A. From my reports, antibiotics were not

21 commonly used for her. She had been treated

22 periodically, but not frequently.

23 Q. Had she been treated recently?

24 A. Well, I understand what your question

25 is. I don't remember how recent it was unless I




515



1 look at my notes about it. Over the past two

2 years she had two urinary tract infections.

3 Q. From what date; if you can tell me?

4 A. From the time I had seen her.

5 Q. At the time you had seen her?

6 A. That was the information provided to me

7 by Dawn and Darlene.

8 Q. So in the preceding -- I'm not sure

9 that I understand your answer. In the preceding

10 12 months she had had two urinary tract

11 infections?

12 A. In the preceding 24 months.

13 Q. Okay. Do you know if she's had any

14 urinary tract infections since she saw you?

15 A. No.

16 Q. Are urinary tract infections common in

17 persons with brain injury?

18 A. Yes.

19 Q. How do you know she did not have an

20 undiagnosed infection the day you saw her?

21 A. Ms. Schiavo's temperature was normal.

22 There was no alteration which would amount to her

23 vital signs in terms of blood pressure, pulse.

24 That's the only thing. I did not ask for her

25 urine to be collected so that we could determine




516



1 whether at that time she had a urinary tract

2 infection or not. And I am aware of the results

3 that Dr. Gambone obtained when he had laboratory

4 studies done.

5 Q. Dr. Greer, how much lag time is there

6 between laboratory developments or laboratory

7 findings and publication in an academic journal?

8 A. It depends upon the laboratory finding,

9 how exciting it is. Then we have what's called

10 expedited publication. By the time an article --

11 by the time the paper gets to the desk of the

12 editor who feels this is really great stuff let's

13 get it in we're talking about six weeks for the

14 expedited publication. By and large when I was

15 on the editorial board the lag time was as much

16 as six to eight months.

17 Q. And if research had resulted in

18 implication for the clinical setting, have you

19 seen any statistics about how long it takes to

20 affect clinical practice?

21 A. The issue here is multiple. It depends

22 upon the interest of the physician, the

23 environment where he or she works, the type of

24 educational experience that the clinician is

25 involved with on an ongoing basis.




517



1 What I do advise our students, for

2 example, is the best thing to do is not subscribe

3 to 12 or 15 journals as I do, but to get a new

4 standard text when it comes out every three or

5 four years. That will provide updated

6 information.

7 And I would suspect that unless there

8 was something that was very dramatic in terms of

9 a treatment approach that it takes a while for

10 the person out in the community who is practicing

11 medicine to be able to alter the practice based

12 on something unless it's extraordinarily dramatic

13 and we have a vaccine for a disease process or

14 something of this nature.

15 Q. Okay. Just a moment.

16 THE COURT: How much longer do you

17 have?

18 MS. ANDERSON: I didn't realize it was

19 so late, Your Honor. Well, I've

20 demonstrated my competence in estimating

21 time.

22 THE COURT: That has nothing to do with

23 competence or incompetence. I'm asking you

24 for --

25 MS. ANDERSON: Probably another 45




518



1 minutes to an hour.

2 THE COURT: Let's go ahead and break.

3 I know Dr. Greer doesn't eat lunch, but most

4 of the rest of us do. Mr. Felos?

5 MR. FELOS: Your Honor, I just wanted

6 to point out that Dr. Greer had mentioned

7 something about his schedule. I would have

8 no objection to continuing his

9 cross-examination and completing it before

10 the break. I believe that would be a

11 significant accommodation to the witness.

12 THE COURT: But we have other people in

13 the courtroom that need to eat probably.

14 MR. FELOS: I'm aware of that, Your

15 Honor. I'm just mentioning that on behalf

16 of the witness.

17 THE COURT: What's his schedule

18 complication?

19 THE WITNESS: I am the current

20 attending physician and I have somebody who

21 is covering for me and I need to get back to

22 take care of my other patient

23 responsibilities, sir.

24 THE COURT: Well, I need to be

25 cognizant of that, but also cognizant of the




519



1 court personnel, too.

2 MS. ANDERSON: Why don't we break for

3 lunch and I'll snap up my cross-examination.

4 THE COURT: Can we just grab a sandwich

5 in like 30 minutes instead of taking a whole

6 hour?

7 MS. ANDERSON: If they'll feed us.

8 THE COURT: Well, I would suggest that

9 you might go someplace that is a little more

10 time sensitive.

11 MS. ANDERSON: Okay.

12 THE COURT: Let's be back at one. That

13 gives us 32 minutes instead of an hour.

14 We'll stand in recess until one o'clock.

15 (Thereupon, Court was in recess for lunch.)

16 THE COURT: Okay. Are you ready to

17 proceed?

18 MS. ANDERSON: Yes, Your Honor.

19 BY MS. ANDERSON:

20 Q. Dr. Greer, what were the search terms

21 that you used?

22 A. I'm sorry?

23 Q. What were the search terms that you

24 gave your librarian to use to get a literature

25 search for you?




520



1 A. I would have given her search terms in

2 this particular case of the persistent vegetative

3 state.

4 Q. And what else?

5 A. Hyperbaric oxygen.

6 Q. What else?

7 A. That's about it.

8 Q. Nothing about vasodilation?

9 A. No, nothing about vasodilation.

10 Q. Anything about transcranial Doppler?

11 A. No, nothing in the search about

12 transcranial Doppler.

13 Q. Now, what does the literature say about

14 the life expectancy of a patient in a persistent

15 vegetative state? And I would ask you if you

16 could answer that question without referring to

17 your notes.

18 A. Well, the life expectancy is usually

19 most prominent in terms of death occurring within

20 two years after the diagnosis. There are

21 patients like Karen Quinlin who became very

22 famous who lived 10 years.

23 Ms. Schiavo has gone beyond the

24 expectations, but there are other patients who

25 with nursing care do survive.




521



1 Q. And what is the furthest out from the

2 injury?

3 A. I would have to take a look at my notes

4 and see if I could elicit that information, if

5 you'll allow me, otherwise I don't know.

6 Q. Can you tell me of those reported

7 instances of patients emerging from PVS, how far

8 out from the injury?

9 A. We're talking about months.

10 Q. Do you recall Dr. Nancy Childs?

11 A. No.

12 Q. From Texas?

13 A. No.

14 Q. Do you recall a case study in the New

15 England Journal of Medicine in which she reported

16 that a PVS patient of hers went home at 5.2 years

17 out from the injury?

18 A. I don't know it.

19 Q. You don't have any present recollection

20 of that?

21 A. No.

22 Q. Now, what --

23 MR. FELOS: Your Honor, I object.

24 Counsel over and over again is testifying

25 herself as to the results of certain




522



1 articles or treatises. If she has a

2 treatise that she wants to ask the witness

3 about, let her recite from the treatise

4 rather than have counsel's own testimony

5 about what she believes the treatise is

6 about. So I object to that question and I

7 move to strike it.

8 THE COURT: Well, the objection will be

9 sustained. I think when you start talking

10 about some of the 5.2 years I think that's

11 not a good question. So you could ask if he

12 knows about that particular person, but --

13 MS. ANDERSON: I asked him if he knew

14 about that case report in the New England

15 Journal.

16 THE COURT: But then you told us what

17 the case report was, the details of it.

18 MS. ANDERSON: Uh-huh. Okay.

19 THE COURT: See if you can stay away

20 from the details.

21 BY MS. ANDERSON:

22 Q. Have you ever read anything written by

23 Dr. Nancy Childs from Texas?

24 A. I don't remember the name.

25 Q. The name doesn't ring a bell with you?




523



1 A. No.

2 Q. The notes that you have made that are

3 on the rail in front of you, are those all of

4 your notes on this case?

5 A. Some of them contain other information.

6 For example, the cover letter from Mr. Felos, the

7 reports of Dr. Bambakidis, Dr. Cranford,

8 Dr. Hammesfhar, any affidavit that I signed.

9 Some of the articles like the persistent

10 vegetative state article that appeared in the New

11 England Journal of Medicine that we spoke about

12 briefly. That's what is in that pile.

13 Q. The yellow sheets are your notes,

14 correct?

15 A. Yes.

16 Q. Now, can you tell me when you made

17 those notes?

18 A. Contemporaneously with the information

19 that was received when articles were reviewed,

20 when reports came forth, when the video were

21 viewed and I took notes.

22 Q. Over how long a period of time did that

23 occur?

24 A. Mr. Felos sent all this information in

25 May, I believe, of this year. I can't tell you




524



1 for sure.

2 Q. Can you recall when you received it?

3 A. If you let me take a look --

4 Q. Just from your memory.

5 A. May of this year.

6 Q. And by what date were your notes

7 completed?

8 A. Well, I would say that they were

9 completed last night.

10 Q. Okay. What did you add last night?

11 A. I looked at the video of Dr. Cranford.

12 Q. Did you see Terri following the

13 balloon, tracking the balloon in that video?

14 A. Yes.

15 Q. Did you give her other than the device

16 that you described --

17 A. No, I didn't check with the balloon. I

18 used an optical kinetic tape and I used my finger

19 to see if she would react to visual stimuli.

20 Q. But that's without knowing the acuity

21 of her vision?

22 A. You don't need acuity of vision unless

23 the patient is totally blind, if there is some

24 perception, but one might expect to see a change

25 unless there is a gross change as Ms. Schiavo has




525



1 with regard to all brain function that interrupts

2 a functional response on a consistent basis. I

3 did not get any type of response. The others who

4 used the balloon got an intermittent,

5 inconsistent response.

6 Q. And so is it your testimony, then, that

7 when she appeared to track the balloon she wasn't

8 really tracking the balloon?

9 A. No, I believe this is a reflex

10 response.

11 Q. Now, reflexes are instantaneous; are

12 they not?

13 A. Let me understand what you're saying.

14 An instantaneous response is a definition of

15 reflex, no.

16 Q. Is it a reflex?

17 A. When --

18 Q. -- go ahead.

19 A. May I explain?

20 Q. You may.

21 A. When you're offering a stimulus this

22 will be able to provide an input to the brain in

23 a patient who has persistent vegetative state

24 which may then occur for a brief period of time.

25 You're talking about the incoming




526



1 stimulus to the vision, the outgoing stimulus to

2 the nerves and nuclei that control ocular

3 motility.

4 If you're going to throw the balloon up

5 there, not only does she have to recognize the

6 image of the balloon, but the eyes will then move

7 in response to the connection between the

8 occipital lobe and the brain stem.

9 Q. And would you agree that that is a very

10 quick passage of information?

11 A. Oh relatively quick, but it's not

12 instantaneous like her response to the startled

13 reaction when I clapped my hands.

14 Q. Would you describe that as a fleeting

15 response?

16 A. A what response?

17 Q. Fleeting.

18 A. Fleeting?

19 Q. Yes.

20 A. It's a consistent response. She

21 demonstrated this repeatedly.

22 Q. In terms of duration, I'm speaking?

23 A. Yes.

24 Q. It is fleeting?

25 A. She quieted down and that was the end




527



1 of it.

2 Q. In fact, when you test tendon reflexes

3 the response tends to be immediate and fleeting;

4 does it not?

5 A. No. When you're dealing with a patient

6 with such profound spasticity what happens is you

7 get a hang-up very commonly. You will hit the

8 tendon, the joint will move and then it may come

9 down more slowly. This is the hanging reaction

10 that one commonly sees in a patient who has a

11 profound involvement causing spasticity and

12 rigidity.

13 Q. And so during your observations of

14 Terri you observed her reflex responses of

15 various types, correct?

16 A. Yes.

17 Q. What was the longest duration of a

18 reflexive response that you observed?

19 A. Just a reflex response where there was

20 a hang-up, that was the longest.

21 Q. How much time did that take, you

22 suppose?

23 A. Well, I'm talking about a second or so.

24 Q. Less than a second, perhaps?

25 A. Could be.




528



1 Q. Typically would you say that reflexes

2 are of a fleeting nature?

3 A. Well, that's not a term that I would

4 use. A reflex response exists. It is not long

5 lasting.

6 Q. Would a reflex response last five

7 minutes?

8 A. As a rule, a reflex response, unless

9 you have a stimulus that's persistent, can last

10 for a period of time. The reflex, for example,

11 that occurs when you put a patient into a room

12 with a very bright light shining on the eye a

13 patient is going to see the bright light, but the

14 reflex response is the pupil area constriction

15 and the pupil area constriction which has no

16 voluntary control, it's a reflex reaction, will

17 persist as long as that bright light is shining

18 on the eye.

19 Q. Okay. And that's a physiological

20 autonomic reflex in response to some external

21 stimulation, correct?

22 A. They're all physiologic responses.

23 Q. Is there any emotional reflex in your

24 experience?

25 A. Well, in some patients, particularly




529



1 the individual who does have a brain problem such

2 as the patient who has a stroke or the patient

3 who has brain injury of one type or another,

4 there is a great deal of emotional lability that

5 may occur.

6 In such individuals this is something

7 that may cause an exaggerated reaction. For

8 example, if something does occur where the

9 individual recognizes something that is happy,

10 whether it's overtly recognized or not, the

11 patient may begin to laugh. And it may be an

12 exaggeration of a response where the individual

13 will react.

14 The same is true with crying or sadness

15 or tears where something is only mildly changed.

16 That can cause it. Now, both laughter and crying

17 may also occur as a result of internal stimuli.

18 An individual, for example, of a brain damaged

19 person who has poor borborygmi that means bowel

20 sounds that make a lot of noise, and you can feel

21 this reaction, this can induce one of these types

22 of reactions, a laugher spontaneously out of the

23 blue.

24 In patients who have multiple sclerosis

25 the term that is used for that is called




530



1 emotional lability.

2 Q. Lability?

3 A. Lability.

4 Q. And that refers to change-ability; does

5 it not?

6 A. It refers to what I was talking about,

7 something which is mildly humorous will cause the

8 patient with MS to burst out into gales of

9 laughter.

10 Q. So it may be an inappropriate response,

11 but a response it is?

12 A. It's a response, yes.

13 Q. Now, what was the name of that device

14 you used to test her visual tracking ability?

15 A. It's a standard neurologic test, optica

16 kinetic reflex. It's a strip of cloth and it has

17 black and white and black and white and I move it

18 across the patient's field of vision. And in the

19 patient who has an intact perception or impulse

20 of vision the patient will follow the lines as

21 they come across the field of vision.

22 Q. Now, before you went to see Terri

23 Schiavo at Hospice, had you gone through her

24 records?

25 A. Yes.




531



1 Q. And so you knew what to expect?

2 A. I knew what others had recognized.

3 Q. And to what degree is your opinion

4 based on your confidence in the accuracy of those

5 records from those earlier diagnosis?

6 A. My evaluation is based on the

7 confidence that I have in my evaluation and its

8 historical information is there for me to peruse

9 to understand what has gone on, but what's going

10 on when I see the patient is my own clinical

11 judgment.

12 Q. And is your clinical judgment the most

13 important factor in arriving at your diagnosis?

14 A. No, we've got three separate

15 components; one is the history.

16 Q. And you relied on the records for that?

17 A. And I relied upon what Dawn and Darlene

18 said.

19 Q. Okay.

20 A. The second is the examination. And the

21 third are tests that have been done that help

22 elucidate the nature of the problem.

23 Q. All right. Now, have you ever spoken

24 with my clients, Terri Schiavo's parents?

25 A. No.




532



1 Q. Did you have any desire to speak with

2 them?

3 A. No. One of your other physicians who

4 you asked to help you did call me on the phone.

5 Q. Dr. Maxfield?

6 A. Yes.

7 Q. Now, have you spoken with anyone else

8 other than Dr. Maxfield?

9 A. No.

10 Q. Concerning this case?

11 A. No. Mr. Felos is the only other one.

12 Q. How many times did you speak to

13 Mr. Felos?

14 A. I think we spoke about four times or

15 five times. Most commonly it was very brief.

16 Q. When was the last time you spoke with

17 Mr. Felos?

18 A. Yesterday at four o'clock.

19 Q. Did you meet with him?

20 A. No.

21 Q. Did you call him on the telephone?

22 A. He called me.

23 Q. And how long did your telephone

24 conversation last?

25 A. Less than 10 minutes.




533



1 Q. What was the contact with Mr. Felos

2 before that?

3 A. Basically it was the same general

4 concern, have you received --

5 MR. FELOS: Your Honor, I'll object to

6 this line of questioning. This gets into

7 the work product and privileged information.

8 Any discussions that I may have had with my

9 expert witnesses about the preparation of

10 the case, strategy of this case, aspects of

11 this case are privileged.

12 MS. ANDERSON: Let's establish that

13 first.

14 THE COURT: Privileged?

15 MR. FELOS: Yes, it's part of the work

16 product privilege, Your Honor.

17 THE COURT: Okay. You said work

18 product and privilege so you're saying it's

19 privileged because it's work product?

20 MR. FELOS: That's right, Your Honor.

21 THE COURT: You may inquire.

22 BY MS. ANDERSON:

23 Q. Originally Mr. Felos listed

24 Dr. Barnhill as the examining expert in this case

25 and then substituted your name. Do you know how




534



1 that came about?

2 A. It was because Dr. Barnhill recommended

3 that I be involved with this case.

4 MR. FELOS: Your Honor, I think that's

5 a misstatement of fact. I believe it was

6 Dr. Cranford who was substituted for

7 Dr. Barnhill, not Dr. Greer.

8 THE COURT: I don't know.

9 MR. FELOS: Well, I object to the

10 question on the basis that there is no

11 factual predicate for it.

12 BY MS. ANDERSON:

13 Q. Now --

14 THE COURT: I'm going to overrule it.

15 I'm not sure what relevance this has --

16 BY MS. ANDERSON:

17 Q. So Dr. Barnhill, it's your

18 understanding, recommended to Mr. Felos that he

19 call you to get you involved in the case?

20 A. Yes, that's my recollection.

21 Q. Okay. Now, as the summer progressed,

22 this past summer, and you created these notes,

23 after you examined her you already examined the

24 records, right?

25 A. Yes. Up to the point before the other




535



1 doctors had examined her, as I've mentioned.

2 Q. Right. So you relied on her historical

3 chart?

4 A. Everything except the examination of

5 Dr. Cranford, Dr. Maxfield, Dr. Hammesfhar, and

6 the other physician from Cleveland whose name I

7 have difficulty remembering.

8 Q. Bambakidis.

9 A. Bambakidis.

10 Q. And so those were notes that you added

11 once they filed their reports, correct?

12 A. Yes.

13 Q. And once you read their reports and so

14 forth?

15 A. Yes.

16 Q. So was there a period of time during

17 this summer that you made no addition to the

18 notes on this case?

19 A. That's right. When you're talking

20 about summer it's when I went away for a couple

21 of weeks and I didn't make any notes.

22 Q. Now, when did you do your literature

23 search?

24 A. Oh, again, when I used my own

25 independent library and initially I would suspect




536



1 it would be in June that I would have done

2 something like this.

3 Q. And you made notes on what you reviewed

4 at that time?

5 A. Yes, that which I felt was relevant

6 including that from my own sources.

7 Q. When was the last time before Terri

8 Schiavo you had examined a patient in a

9 persistent vegetative state?

10 A. A year before.

11 Q. In 2001?

12 A. Yes, I guess.

13 Q. And when before that?

14 A. I can't remember, but my contact with

15 patients with persistent vegetative state about

16 once every couple of years or so.

17 Q. Would you describe yourself as a

18 specialist in the persistent vegetative state?

19 A. No, I describe myself as a specialist

20 in neurology.

21 Q. Would you describe yourself as very

22 experienced in the treatment of persistent

23 vegetative state patients?

24 A. No, I do not feel that I am involved as

25 a treating physician in many persistent




537



1 vegetative state patients for me to accept that

2 appellation, but I am a person who feels

3 confident in patients that do have neurological

4 problems in terms of diagnosis and treatment.

5 Q. Now, what color are her eyes?

6 A. I don't know.

7 Q. Do you know what her blood pressure was

8 the day you saw her?

9 A. Yes, I have the reports that the nurses

10 gave me. Would you like me to say it or off the

11 top of my head?

12 Q. Can you remember what her blood

13 pressure was?

14 A. It was normal.

15 Q. It seemed normal to you?

16 A. Yes.

17 Q. Can you -- well, you don't remember the

18 number?

19 A. If I could look at the records I'll

20 give them to you.

21 Q. When is the last time that you reviewed

22 your notes?

23 A. Today.

24 Q. Did you go over your notes at any time

25 with Mr. Felos?




538



1 MR. FELOS: Your Honor, I'd renew my

2 objection.

3 THE COURT: Overruled. There's nothing

4 wrong with that question.

5 THE WITNESS: Mr. Felos has never seen

6 my notes.

7 BY MS. ANDERSON:

8 Q. Did you go over them, though, with him?

9 A. No. It had nothing to do with my

10 reporting to him anything other than the issues

11 that I already addressed. Yes, I will come and

12 be present in court. And the issues in terms of

13 travelling, the inconvenience and so forth was

14 all mentioned of late.

15 Q. Did you make any alterations to your

16 notes after any conversation with Mr. Felos?

17 A. No.

18 Q. When you saw Terri, did she appear to

19 you to be in any distress?

20 A. She did not appear to be in any acute

21 distress. She manifested the same elements of

22 intermittent groaning, intermittent furrowing of

23 her eyebrows, moving her eyes from side to side,

24 blinking rapidly, just like you've seen on the

25 videos that we've seen now four or five depicting




539



1 the patient and there was no change.

2 Q. Now, did you observe on any of the

3 videotapes besides Dr. Cranford's videotape that

4 she tracked the balloon with her eyes?

5 A. Yes, I think in Dr. Hammesfhar's study

6 evaluation she may have done a little tracking

7 vertically.

8 Q. Did she -- what do you mean by

9 vertically?

10 A. Up.

11 Q. She looked up?

12 A. Yep.

13 Q. Did you observe any balloon tracking in

14 Dr. Maxfield's exam?

15 A. Dr. Maxfield's exam on the video was

16 less than a minute-and-a-half and I don't

17 remember seeing any tracking that I feel

18 confident in stating, yes, it did exist.

19 Q. You did not receive the entire

20 videotape of Mr. Maxfield?

21 A. I got one that had a minute-and-a-half.

22 That's the only thing that I had from

23 Mr. Maxfield.

24 Q. Did you have a videotape that had more

25 than one examination on it?




540



1 A. That's the only thing that I looked at

2 was what happened. And I kept it on for a while,

3 but there was nothing further so that's as far as

4 I went with Mr. Maxfield.

5 Q. Did you have three tapes that you

6 looked at, three separate videotapes?

7 A. Dr. Hammesfahr had two, Dr. Cranford

8 had one, Dr. Maxfield had the one I just

9 mentioned.

10 Q. But you only had about a

11 minute-and-a-half of Dr. Maxfield's exam?

12 A. Yes.

13 Q. I see. Did you see on any of the

14 videotapes Terri and her mother when her mother

15 first came into the room?

16 A. Yes. I saw a videotape of Terri's

17 mother without anybody else on one of the

18 videotapes. I saw Terri's mother with other of

19 the examining physicians, including Dr. Cranford

20 and Dr. Hammesfhar and there may have been also

21 Dr. Maxfield. I don't remember. But the

22 patient's father was also present from time to

23 time.

24 Q. Did you see any change in Terri when

25 she perceived her mother's presence?




541



1 A. No, I didn't see --

2 MR. FELOS: Object to the form of the

3 question, Your Honor, as to Terri perceiving

4 her mother's presence.

5 MS. ANDERSON: You saw no change?

6 MR. FELOS: That's --

7 MS. ANDERSON: I'll withdraw the

8 question.

9 THE COURT: Okay. I'm not sure the

10 person perceives pain or responds to it

11 voluntarily. I'm not sure that's a bad

12 word.

13 MS. ANDERSON: Thank you, Judge.

14 BY MS. ANDERSON:

15 Q. Did you notice any change of expression

16 on Terri's face when her mother spoke to her?

17 A. I did not see anything that was

18 persistent in that regard any differently than

19 when Dawn or Darlene or I came close where there

20 was perhaps a minor alerting reaction of a reflex

21 response type.

22 Q. Would that reflex response have been

23 fleeting?

24 A. Yes.

25 MS. ANDERSON: Can we play H0-1,




542



1 please.

2 BY MS. ANDERSON:

3 Q. There will be an image on the screen

4 right next to you, Doctor.

5 A. Okay.

6 Q. Is this what Terri looked like when you

7 saw her?

8 A. Yes.

9 Q. Was that about the same response that

10 she gave to you when you introduced yourself?

11 A. No, I had some more reaction. I may

12 have touched her at the same time.

13 Q. Okay. Do her eyes track to the sounds

14 of her mother's voice?

15 A. Sometimes the eyes move in that

16 direction.

17 Q. In this particular piece of this

18 videotape?

19 A. She's lying with her head tilted to the

20 right and that's the direction where her eyes are

21 going.

22 Q. Did her eyes track to the side?

23 A. I don't remember seeing anything other

24 than the fact that the head was in that direction

25 and so too were the eyes.




543



1 Q. Did Terri ever look at you the way this

2 videotape depicts her expression?

3 A. She did exhibit a change in expression

4 when I moved her head and I touched her and

5 talked to her.

6 Q. Did she look like this?

7 A. No, she didn't look like this, but I

8 don't remember the exact sequence of what she

9 looked like. And, again, that's what the staff

10 said as well.

11 Q. So this would be a coincidence if it

12 merely appeared that Terri is smiling?

13 A. No, this is again a reflex response.

14 The muscles of the facial area will react to

15 sensory and auditory stimulation just when she

16 startles there's a facial grimace.

17 Q. Now, at what point did this reflex

18 response begin?

19 A. When the mother came over and made a

20 sound and then it became more prominent when she

21 touched her.

22 Q. And how long did the reflex response

23 last?

24 A. It depends on how long this stimulus

25 persists.




544



1 Q. Let's continue. So how long did this

2 look on Terri's face persist when you observed

3 her?

4 A. As long as I did, at least not

5 consistently, touched her, moved her head, spoke

6 to her.

7 Q. Did she also track to the sound of your

8 voice?

9 A. I don't remember that specifically.

10 She did move about. Her head, again, was

11 deviated particularly to the right and her eyes

12 were on the right side.

13 Q. Did she move her eyes to the left?

14 A. She moves somewhat to the left as well,

15 yes.

16 Q. Left of midline, I mean?

17 A. Yes.

18 Q. Did she do that while you were on her

19 left and speaking with her?

20 A. Yes, because I deliberately went over

21 to the other side to see if she can move her eyes

22 in that direction. She had normal extraocular

23 motility.

24 MS. ANDERSON: Let's play HO2.

25 BY MS. ANDERSON:




545



1 Q. Dr. Greer, on this piece of videotape,

2 H02, did she appear to laugh twice?

3 A. She appeared to make a sound that might

4 be construed as laughter or crying for that

5 matter.

6 Q. Many times brain-injured patients

7 make -- they have facial gestures and sometimes

8 it's difficult to tell whether it's a laugh or a

9 cry, isn't it?

10 A. Facial muscle contraction can sometimes

11 be mistaken for laughing or crying. It's a

12 reflex reaction which occurs in patients with

13 brain injury where the mouth is often open and

14 sounds will emerge and they're not necessarily

15 sobbing sounds or laughing sounds.

16 Q. Now, in her case it wasn't just the

17 sounds, but her face, her face muscles changed,

18 correct?

19 A. Yes.

20 Q. And that would be a reflex?

21 A. Yes.

22 Q. And what is the name of that reflex?

23 A. It's facial muscle contraction.

24 Q. Okay. In response to what?

25 A. Sound, tactile stimulation.




546



1 Q. And why did it appear to last for more

2 than an instant?

3 A. It depends upon the duration of the

4 stimulus just as I described before when we were

5 talking about light stimulus going to constrict

6 an eye or a pupil.

7 MS. ANDERSON: Let's see H09, please.

8 BY MS. ANDERSON:

9 Q. While Dr. Hammesfhar has a stethoscope

10 on her face do you see any reflex responses?

11 A. Not particularly. He had it on her

12 neck and her head.

13 Q. Right. Around the temple area. You

14 didn't notice any reflexes?

15 A. Not anything particular.

16 Q. Okay. Are you looking at the tape,

17 Doctor?

18 A. Yes. I momentarily put my head down.

19 Q. Can you see that her left arm is

20 different than her right on this segment?

21 A. I don't see any dramatic difference. I

22 see a difference because the right arm is flexed

23 to a greater extent than the left one.

24 Q. Okay. You say you did not palpate her

25 neck?




547



1 A. I did.

2 Q. And you didn't find anything other than

3 rigidity --

4 A. I found just the increase in tone.

5 There was no pathologic process beyond that.

6 Q. I see. Did it appear she closed her

7 eyes and kept them closed on command?

8 A. It appears that he held the lid and

9 stimulated the interior portion of the upper part

10 of the cheek and that may have stimulated the

11 eyelid closure.

12 Q. Did she not close her eyes before he

13 touched her?

14 A. I don't remember anything other than

15 her usually blinking.

16 Q. Now, would it be difficult to hold your

17 eyes closed when -- for anyone when someone was

18 tugging them open, the top and bottom?

19 A. This again is a reflex response as she

20 demonstrated when he flexed her head and the

21 eyelids opened wide and the eyes tended to go

22 upward.

23 Q. What was that -- what's the name of

24 that reflex?

25 A. I don't know if it has any particular




548



1 name, but it is a reflex response.

2 Q. How do you know?

3 A. Well, I guess it's because I've seen it

4 before.

5 Q. Okay. Would it be unusual to be able

6 to lift a patient's head, neck and upper

7 shoulders off the bed the way he did by putting

8 his hands behind her head and have the patient

9 raise up in just a solid line, no bending?

10 A. Is it difficult?

11 Q. Would it be unusual?

12 A. No.

13 Q. You've had that happen with patients?

14 A. Yes. It depends upon how big the

15 patient is, how strong the doctor is. This is

16 the type of posture that occurs as a result of

17 stimulation.

18 The patient will tend to arch backward

19 and maintain this particular position with her

20 head.

21 Q. Did her posture appear to change when

22 he put his hand up in the back of her head?

23 A. I didn't see any particular change. I

24 saw the head go up as he moved the head forward.

25 Q. Then --




549



1 A. The eyes go up, rather.

2 Q. Then what are you saying, that it's --

3 A. I'm saying that I did not see the whole

4 body come up any more so than if anyone else were

5 to pick it up. The salient features were the

6 eyes.

7 Q. You were focused on her eyes?

8 A. I'm sorry?

9 Q. You were focused on her eyes?

10 A. I was focused on the head and the eyes

11 and I recognized the upper trunk moving somewhat.

12 Q. You say she is in decerebrate posture?

13 A. There is a component of decerebrate

14 positioning characterized by the arm being

15 flexed, legs extended and the head having a

16 tendency of being arced backward. That's the

17 posture.

18 Q. What's the difference between

19 decerebrate posturing and decorticate posturing?

20 A. Excuse me. Decerebrate posturing are

21 the arms extended, decorticate is with the arms

22 flexed, you are correct.

23 Q. And --

24 A. It doesn't make any difference in terms

25 of pathological process.




550



1 Q. In both decorticate and decerebrate

2 posturing are the legs rigid?

3 A. The legs are stiff. Sometimes they are

4 extended and some patients that have decerebrate

5 positioning they may become flexed so that their

6 knees are up toward the abdomen.

7 MS. ANDERSON: Let's play H08, please.

8 Pause for a moment.

9 BY MS. ANDERSON:

10 Q. Other than her ankle, let's focus on

11 her knee there. Does her knee appear to be stiff

12 or rigid?

13 A. The knee is slightly bent in this

14 particular posture.

15 Q. Okay. Would Terri have a better muscle

16 mass and tone if she had received physical

17 therapy?

18 A. No.

19 Q. Okay. Did you note any left right

20 differential in terms of her strength?

21 A. No.

22 Q. You did not?

23 A. No.

24 Q. She did not appear to have any

25 differences of any sort between the left or the




551



1 right?

2 A. None that I documented when I examined

3 her. I don't remember anything.

4 Q. Okay.

5 MR. FELOS: Excuse me, Your Honor. Are

6 we going to replay the whole videotape or is

7 there going to be a question with it?

8 MS. ANDERSON: There's going to be a

9 question.

10 THE COURT: I don't know.

11 BY MS. ANDERSON:

12 Q. Would you agree that generally it's

13 more difficult for anyone to move against gravity

14 than with gravity?

15 A. Your question is, is it more difficult

16 to move against gravity than with gravity?

17 Q. Correct.

18 A. Yes, in general it's more difficult to

19 move against than with gravity.

20 Q. Did you interpret this piece of the

21 videotape as Terri pressing her leg against

22 Dr. Hammesfahr's hand?

23 A. What I interpreted is exhibiting an

24 increased quadriceps reflex response. That is

25 you press the leg and the reflex response caused




552



1 the quadriseps tendon to contract like the reflex

2 if you were to strike the tendon and the leg went

3 up.

4 Q. And would you not agree that an

5 important part of the clinical examination for

6 any physician is the feel of the muscle tone?

7 A. Tone is one of the components of

8 evaluating a patient.

9 Q. And a patient or a physician who

10 actually lays his hands on the patient during the

11 exam is better able to say what he felt than

12 someone observing that physician laying hands on

13 the patient?

14 A. Well, I don't understand how anyone is

15 going to be able to interpret what the physician

16 did when he touched a muscle group to determine

17 tone from observation.

18 Q. I understand.

19 A. On the other hand, one can see

20 contraction.

21 Q. In her ankles, correct?

22 A. Contraction in the quadriceps. He had

23 her elevated leg when he held her behind the knee

24 and he pressed it and the leg went up.

25 Q. Now, the contractures take months to




553



1 develop you say?

2 A. Fixed contractures take months to

3 develop, yes.

4 MR. FELOS: Your Honor, that's been

5 asked and answered. We've gone through that

6 before.

7 THE COURT: Yes, she has.

8 BY MS. ANDERSON:

9 Q. Looking at that image right now, are

10 both of her quadriceps, which is the thigh

11 muscle, correct?

12 A. Yes, they are upper thigh muscles.

13 Q. Are both sets of quadriceps contracted?

14 A. I can't see them contracted other than

15 to recognize that she keeps her leg in a slightly

16 flexed posture at the knee.

17 Q. And so that would be consistent with

18 decorticate or decerebrate posturing?

19 A. No, the whole picture together is a

20 picture of decorticate posturing. The fact

21 that --

22 Q. So her legs are not extended

23 necessarily all the way?

24 A. That's right, they're not extended all

25 the way, but they are mostly and in her feet one




554



1 can see the equinovarus posture.

2 Q. That's where it the heel is down?

3 A. The foot is down and in and the heel is

4 also down.

5 MS. ANDERSON: Let's go to H12, please.

6 BY MS. ANDERSON:

7 Q. How did you interpret Terri's left leg

8 up?

9 A. I just noted it raising up. I can only

10 interpret it on the basis of what you and I saw.

11 Q. Did you elicit such a response when you

12 examined Terri?

13 A. No.

14 Q. Did you pull the covers down and look

15 at her feet and her ankles and so forth?

16 A. Yes.

17 Q. And is that when you noticed the --

18 what did you call it, what particular kind of

19 cyanosis was it?

20 A. Acro.

21 Q. Acro? What does that prefix stand for?

22 A. I have no idea.

23 MS. ANDERSON: Let's go to C02.

24 BY MS. ANDERSON:

25 Q. Is that an example of a startled




555



1 reflex, Doctor?

2 A. Yes.

3 Q. That indicates to you that the brain

4 stem is intact?

5 A. Yes.

6 Q. Now, you turned her head?

7 A. Yes.

8 Q. You say?

9 A. Yes.

10 Q. From right to left?

11 A. Yes.

12 Q. Did she vocalize when you did that?

13 A. She probably did. I didn't note it

14 because she was vocalizing throughout various

15 components of my examination as well as

16 spontaneously.

17 Q. Did you notice her vocalizing

18 continuously and spontaneously throughout

19 Dr. Hammesfahr's examination?

20 A. I recognize that she was doing that.

21 That's as far as I could say.

22 Q. No. My question is -- did you -- it's

23 kind of a yes or no question?

24 A. The answer is no, I did not identify it

25 and put it in my memory stores.




556



1 Q. Were you in any way surprised when you

2 looked at the Hammesfahr tape at how much quieter

3 Terri was during his exam of her than what you

4 just described?

5 A. No.

6 Q. Why not?

7 A. Because there are times that she was

8 vocalizing and other times that she wasn't.

9 Q. So her vocalizing was not continuous?

10 A. No, it's not continuous. It's

11 intermittent just as from time to time as

12 described in all of the notes she will laugh for

13 no particular provocation.

14 Q. And so if she vocalizes, it's not in

15 response to a stimulus?

16 A. Yes, it may be a response to a

17 stimulus. It may be a response to a variety of

18 stimuli.

19 Q. Let's resume, please. Now, Dr. Greer,

20 you were not watching this then on the tape? Had

21 you seen this portion before?

22 A. Yeah.

23 Q. I would ask that you attend to the

24 video monitor, if you would, please.

25 A. I'm attending.




557



1 Q. Was that a reflex to a loud noise?

2 A. Probably.

3 Q. To the sound of Dr. Cranford raising

4 his voice a bit?

5 A. Yes.

6 Q. Did you raise your voice a bit with

7 her?

8 A. I may have sung to her. I made a loud

9 sound only with the clapping of the hands.

10 Q. Resume, please. Dr. Greer, I noticed

11 that you removed your glasses and you had them on

12 earlier. Are you having difficulty seeing this

13 screen?

14 A. No.

15 Q. I would ask really that you attend to

16 these images.

17 A. I am.

18 Q. Thank you. Did Dr. Cranford give

19 her -- leave her adequate time to respond to the

20 commands?

21 A. Leave her adequate time to do what?

22 Q. To respond to commands.

23 A. I would expect so.

24 Q. What do you mean by that answer?

25 A. There are many ways in which one can




558



1 wait for the patient's response. In this

2 circumstance, he gave her a command which

3 required a simple reaction and there was nothing

4 that was consistent that I saw. Some patients

5 take a while longer to react if they are subdued

6 as a result of anything else. I don't think

7 that's the case here.

8 Q. Now, by consistent you mean more than

9 once?

10 A. Yes.

11 Q. He gave her the command to look to the

12 right and she glanced to the right, right? You

13 saw that?

14 A. Yes.

15 Q. And then he gave the command to her

16 again to look to the right and before she did it

17 he gave her a new command; is that a fair

18 methodology?

19 A. No, it was not a fair methodology to

20 jump on top of one command, but I didn't see a

21 persistent type of reaction in looking to one

22 side or the other since she does that

23 spontaneously anyway.

24 Q. So you think it was a coincidence when

25 he said look to the right and she looked to the




559



1 right?

2 A. Where was he standing? Again the

3 auditory stimulus that causes the patient to gaze

4 in the direction in the sound. If you're going

5 to stand on the left side of the body and tell

6 the patient look to the right --

7 Q. Yes.

8 A. -- that's something else.

9 Q. Isn't that what he did just then?

10 A. I don't remember when he did that or

11 whether that was a spontaneous reaction of her

12 looking from one side to the other. I did not

13 find anything that showed me a consistent

14 response to a command.

15 Q. Would it alter your interpretation of

16 this tape if you -- if we wound it back and you

17 could see that he was standing on her left and he

18 asked her to look to the right --

19 A. No.

20 Q. -- and her eyes shifted to the right?

21 A. No, I think the same issue obtained. I

22 think her eyes moved from one side to the

23 other --

24 MR. FELOS: Your Honor, this

25 mischaracterizes the tape. When he said,




560



1 Terri, look to the right and she appears to

2 look to the right he's on her right side.

3 That was the point that the witness was

4 making. I think that mischaracterizes the

5 evidence to state it was otherwise.

6 THE COURT: I'm not sure what side he

7 was on, Mr. Felos. We had that question the

8 other day about what side would you think he

9 was on.

10 BY MS. ANDERSON:

11 Q. Did you noticed that he moved from one

12 side to the other during this part of the tape?

13 A. I noticed that he moved from one side

14 to the other.

15 Q. And you're not sure which side that

16 was?

17 A. No.

18 Q. Did you perceive that she was

19 responding to commands?

20 A. No, I didn't perceive that she was

21 following commands.

22 Q. Now, is it your clinical protocol that

23 a PVS patient must demonstrate the same behavior

24 two times on command?

25 A. No.




561



1 Q. Do you have any preferences or any

2 policies at all with regard to that?

3 A. My policy has to do with the Gestalt.

4 If I'm dealing with a patient who has a profound

5 static encephalopathy where many of components

6 have fit into the category of persistent

7 vegetative state exists that's what I consider

8 the patient.

9 The fact that the patient does follow

10 sometimes, the fact that the patient does appear

11 to be responsive to the extent the patient will

12 cry and laugh even as has been described in the

13 literature saying words, that still puts the

14 patient in the same category.

15 Q. Do you know whether Terri said words at

16 any point after her collapse?

17 A. May I take a look at my notes?

18 Q. Did you make a note of that? Can you

19 remember?

20 A. I remember. May I take a look at the

21 notes?

22 Q. Well, it's not important if you can't

23 remember.

24 A. Yes, I remember. There's one doctor

25 early in her career stating after the injury that




562



1 she said, no.

2 Q. Would that be significant to you?

3 A. It's not persistent. It's a word that

4 has been spoken according to this doctor and from

5 the literature there's cases of persistent

6 vegetative state do acknowledge that words are

7 spoken from time to time.

8 Q. Now, you are an experienced witness,

9 aren't you?

10 A. Yes.

11 Q. You have testified many times over the

12 years?

13 A. I've testified from time to time, yes.

14 Q. Did you testify at the trial of the

15 case of Clarita Bradley and Simon Bradley versus

16 AllState Insurance Company?

17 A. Yes.

18 Q. And did you testify for AllState

19 Insurance?

20 A. Yes.

21 Q. And did the Court in that case order a

22 new trial partly for the reason that he believed

23 you gave false testimony?

24 MR. FELOS: Your Honor, I object,

25 number one, we don't have the transcript,




563



1 judgment or any other portion of the record

2 in that case. And the result of a prior

3 case is just not relevant and germane to the

4 testimony of the witness in this case.

5 MS. ANDERSON: Credibility as Mr. Felos

6 has been saying all week is always relevant.

7 It is always important. The fact that he

8 doesn't have the order doesn't mean that I

9 can't ask the question and the witness

10 should answer the question.

11 THE COURT: But I'm not sure that that

12 is an allowable question. You're asking the

13 opinion of one person about this witness and

14 the only impeachment on that is familiarity

15 with the general reputation, as far as I

16 know.

17 MS. ANDERSON: I'm simply asking him if

18 a circuit judge found his testimony to be

19 false.

20 THE COURT: Unless you can show me a

21 case that that is a permitted line of

22 inquiry, I'm going to sustain the objection.

23 MS. ANDERSON: Okay. I have nothing

24 further, Your Honor. Oh, I do want to move

25 into evidence the one page of Dr. Greer's




564



1 notes.

2 THE COURT: Is there an objection?

3 Hearing none it will be marked as Number 99,

4 I believe, right?

5 MS. ANDERSON: I think that's correct,

6 Your Honor.

7 MR. FELOS: Well, Your Honor, as a

8 predicate to introducing that, number one,

9 the Respondent would have to show that the

10 witness had no present recollection of what

11 was on the note and his recollection was

12 refreshed in order to introduce such a

13 document under Section 613 of the evidence

14 code and I don't believe the witness

15 testified as such.

16 THE COURT: I think when the witness

17 reads something it's clearly refreshing the

18 witness' recollection. I'm going to allow

19 it.

20 MR. FELOS: And, Your Honor, even if

21 this is introduced, according at least to

22 Ehrhardt, a document so introduced is not

23 admissible as substantive evidence. The

24 document may only be used in assessing the

25 credibility of the witness.




565



1 So, if the Court is going to receive

2 the document, the document should be limited

3 to that purpose.

4 MS. ANDERSON: I'm not offering it for

5 the truth. The Court is correct, if he

6 testifies from it I'm entitled to have it

7 marked and have it made part of the record.

8 THE COURT: It is so marked.

9 MR. FELOS: Is it introduced for the

10 purpose of --

11 THE COURT: Mr. Felos, she agrees with

12 you.

13 MR. FELOS: Well --

14 THE COURT: It can't get any better

15 than that.

16 MS. ANDERSON: And it's so rare he's

17 not recognizing it when it occurs, Judge.

18 MR. FELOS: What's better than that is

19 the Court acknowledging that, Your Honor.

20 THE COURT: Mr. Felos, I'm not going to

21 get in the way of a stipulation of two very

22 competent counsels.

23 MR. FELOS: I have no questions of

24 Dr. Greer.

25 THE COURT: Thank you. Dr. Greer, you




566



1 are free to go with the thanks of the Court.

2 THE WITNESS: Thank you, Your Honor.

3 THE COURT: Have a safe journey.

4 THE WITNESS: Yes.

5 THE COURT: Mr. Sheriff, will this

6 courtroom be secured over the weekend?

7 THE BAILIFF: We will lock it up with

8 the Court's understanding that there are a

9 lot of people that have keys, maintenance

10 people and so forth. But we will lock it

11 and we will label it do not clean, et.

12 cetera.

13 THE COURT: Anything from a

14 housekeeping nature before we adjourn for

15 the weekend?

16 MS. ANDERSON: No, Your Honor.

17 THE COURT: Mr. Felos?

18 MR. FELOS: No, Your Honor.

19 THE COURT: Very well. We will

20 reconvene at nine-thirty a.m. On Monday

21 morning.

22 MS. ANDERSON: Very good.

23 THE COURT: Hope everyone has a good

24 weekend.

25 MS. ANDERSON: That will be Ronald




567



1 Cranford, correct?

2 MR. FELOS: Correct.

3 (Thereupon, testimony was concluded for October

4 17th, 2002.

5 OCTOBER 20TH, 2002

6 THE COURT: Good morning.

7 MS. ANDERSON: A couple housekeeping

8 matters.

9 THE COURT: Yes, ma'am.

10 MS. ANDERSON: Judge, because we took

11 our VHS copy of these tapes and digitized

12 them we never had a copy made in VHS format,

13 but I wanted to submit to the Court the VHS

14 copies of the total exams, all three exams.

15 And I don't think they're in. I think what

16 I gave you last week were the CDs that had

17 the selected clips. So I want to be sure

18 that the entire videotapes are in the

19 record.

20 THE COURT: Is there an objection?

21 MR. FELOS: To address that, Your

22 Honor, I have an entire set of the

23 videotapes that I was going to introduce.

24 MS. ANDERSON: Oh, fine.

25 MR. FELOS: So you need not have to




568



1 make copies or anything like that --

2 MS. ANDERSON: Perfect.

3 MR. FELOS: -- of the entire

4 examinations.

5 THE COURT: Okay.

6 MS. ANDERSON: Secondly, I need to

7 correct the record, Charlene, the court

8 reporter, transcribed some of Dr. Maxfield's

9 testimony and he did mention regeneration.

10 We'll discuss that more tomorrow.

11 And the third thing is that Dr. Greer's

12 P.A. is inactive, but it went inactive in

13 '91 and not '88 for whatever that detail is

14 worth. Thank you.

15 THE COURT: Are you testifying now?

16 MS. ANDERSON: No, I'm just correcting

17 the record. Judge, I went back and checked

18 my records.

19 THE COURT: But that was his testimony,

20 I thought.

21 MS. ANDERSON: His testimony was that

22 his P.A. was inactive.

23 THE COURT: Right.

24 MS. ANDERSON: He has a corporation

25 that's active.




569



1 THE COURT: Right.

2 MS. ANDERSON: So I'm just correcting

3 that.

4 THE COURT: All right.

5 MS. ANDERSON: Thank you.

6 THE COURT: Thank you. Mr. Felos.

7 MR. FELOS: I'm ready to proceed this

8 morning.

9 THE COURT: Please do that.

10 MR. FELOS: We would call Dr. Ronald

11 Cranford.

12 THEREUPON,

13 RONALD E. CRANFORD, M.D.

14 WAS ADDUCED AS THE WITNESS HEREIN AND AFTER

15 BEING DULY SWORN ON OATH WAS EXAMINED AND

16 TESTIFIED AS FOLLOWS:

17 MR. FELOS: Your Honor, before we start

18 I just did want to make mention I want to

19 thank Attorney Anderson we're going to use

20 her formatted system to play Dr. Cranford's

21 examination of Terri rather than our video

22 which will make it more convenient for the

23 Court. So I did want to thank Attorney

24 Anderson for that.

25 THE COURT: You folks have gotten more




570



1 agreeable today. Thank you.

2 DIRECT EXAMINATION

3 BY MR. FELOS:

4 Q. Could you state your name, please.

5 A. Ronald E. Cranford, C-R-A-N-F-O-R-D.

6 Q. And how are you employed, sir?

7 A. I'm an employee of Hennepin Faculty

8 Associates, which is a physician arm out of the

9 Hennepin County Medical Center in Minneapolis,

10 Minnesota.

11 Q. Are you a physician, sir?

12 A. Yes.

13 Q. And in what states are you licensed to

14 practice?

15 A. Just Minnesota. None others.

16 Q. Are you certified in any boards?

17 A. Yes.

18 Q. And what boards would that be?

19 A. American Board of Psychiatry and

20 Neurology.

21 Q. Dr. Cranford, could you briefly tell us

22 what your educational background is.

23 A. I did my undergraduate work at the

24 University of Illinois in Champaign-Urbana from

25 1958 to 1961. I did medical school from 1961 to




571



1 1965. University of Illinois in Chicago,

2 Illinois.

3 I did a straight medical internship at

4 Presbyterian St. Lukes in Chicago, Illinois, from

5 1965 to 1966. In 1966 to 1968 I was a flight

6 surgeon in the air medical evacuation causalities

7 and a neurologist in the United States Air Force

8 stationed in the Philippines in Southeast Asia.

9 From 1968 to 1971 I did my residency in

10 neurology at the University of Minnesota,

11 Department of Neurology in Minneapolis,

12 Minnesota. In 1971 to the present day I've been

13 at the same place doing the same work since 1971

14 at the Hennepin County Medical Center.

15 Q. What is the Hennepin Medical Center?

16 A. Hennepin County Medical Center is an

17 acute one level -- acute level one trauma center.

18 Every major city has a county hospital, if you

19 will. In Minnesota, Minneapolis the county

20 hospital is Hennepin County Medical Center. So

21 it's a level one trauma center that deals with --

22 Q. Excuse me, what do you mean when you

23 say it's a level one trauma center?

24 A. That means the highest level of trauma

25 where they helicopter in the most severe




572



1 causalities, the most severe injuries and the

2 like. So it's the highest level of care for

3 trauma.

4 And it's usually a hospital that takes

5 a lot of the emergencies as well. Because in an

6 acute care county hospital that's an academic

7 hospital for which we have interning residents

8 and medical students. It's not a private

9 practice hospital.

10 It's a county hospital which means a

11 lot of the lower socio-economic class, a lot of

12 indigent, a lot of people on medical assistance

13 will come to Hennepin County Medical Center for

14 their treatment.

15 Q. Does the Hennepin County Medical Center

16 have a neurology clinic?

17 A. A neurology clinic?

18 Q. Yes.

19 A. Yes.

20 Q. Do you hold any position in the

21 neurology clinic?

22 A. Yes, I'm head of the neurology clinic

23 at Hennepin County Medical Center, yes.

24 Q. And does it have a neurological

25 intensive care unit?




573



1 A. It no longer has an intensive care unit

2 per se. It did from oh, 1971 to about -- 1995 or

3 1996 I was chair -- I was head of the

4 neurological intensive care unit for 20 years, in

5 1971 to 1991.

6 And then because of changes in the

7 hospital the neurological intensive care unit was

8 incorporated into the surgical intensive care

9 unit so we no longer have any discrete

10 neurological intensive care unit per se, but it's

11 now housed in the surgical intensive care unit.

12 Q. Do you hold any academic appointments,

13 Dr. Cranford?

14 A. Yes.

15 Q. What is that?

16 A. I'm a professor of neurology at the

17 University of Minnesota Medical School in

18 Minneapolis and I'm a faculty associate at the

19 Center for Bioethics at the University of

20 Minnesota.

21 Q. Dr. Cranford, what is the American

22 Academy of Neurology?

23 A. The American Academy of Neurology is

24 the largest group of neurologists in the country,

25 the other being the American Neurological




574



1 Association. This is the national specialist

2 society, if you will, in neurology with

3 approximately 10,000 neurologists.

4 Q. Now, have you had any positions or

5 served in any positions for the American Academy

6 of Neurology?

7 A. Yes, I have.

8 Q. And what are those?

9 A. I was the second chairman of the Ethics

10 and Humanities Subcommittee of the American

11 Academy of Neurology -- I can't remember the

12 dates offhand, but it's from the 1970s to the

13 early 1990s. So about 15 to 20 years. I was

14 chairman of the Ethics Committee of the American

15 Academy of Neurology.

16 Q. Does the American Academy of Neurology

17 have a practice committee?

18 A. Yes. The practice committee is the

19 larger committee which overlooks the ethics

20 committee and I have been on the practice

21 committee for 15, 20 years, yes.

22 Q. Dr. Cranford, which's the National

23 Conference of Commissioners on Uniform State

24 Laws?

25 A. The National Conference of




575



1 Commissioners on Uniform State Law is a large

2 group that meets to develop model laws for

3 individual states, a voluntary group of lawyers

4 that meets on a regular basis stationed I think

5 in Virginia and they come up with model laws on a

6 wide variety of subjects, but then the individual

7 states can elect to adopt or not.

8 Q. Have you served -- have you ever served

9 in the capacity as an adviser to that group?

10 A. Yes, I did.

11 Q. Please tell us on what subject did you

12 advise them?

13 A. Well, in the early days in the 1970s

14 and 1980s the major issue was brain death, both

15 the medical aspects and legal aspects. And there

16 was a question about laws on brain death.

17 And they developed a model uniform law

18 on determination of death which I think it was

19 proposed by the National Conference of

20 Commissioners by the Uniform State Laws in 1978,

21 as I recall.

22 And that was then widely adopted

23 nationwide in most states. And most states have

24 either a Uniform Determination of Death Law or a

25 similar law. I think all 50 states now have it.




576



1 The main medical advisers of that,

2 because they wanted to make sure that the

3 language of the law in terms of the definition of

4 brain death was consistent with the medical

5 definition and the medical criteria for brain

6 death.

7 These were the earlier stages of

8 determination of brain death when it wasn't clear

9 what the medical criteria were and there was not

10 a consensus on the criteria nor was there a

11 consensus on the law that should be passed.

12 So from the 1970s into the 1980s there

13 was a developing consensus on that. So I was one

14 of the main links and advisers to the actually

15 five or six key people that developed the Uniform

16 Determination of Death Act in the late 1970s or

17 1980s.

18 Q. What is Law, Medicine & Health Care of

19 the American Society of Law?

20 A. Law, Medical & Health Care is a journal

21 that is one of the two journals published by the

22 American Society of Law and Medical Ethics that's

23 been published for 20, 30 years. They have two

24 journals and one is Law, Medicine & Health Care.

25 Q. Have you served in any capacity for




577



1 that publication?

2 A. I've been on the board of editors of

3 that for 15, 20 years. I've been both president

4 of the American Society of Law and Medicine

5 Ethics in the early 1980s, sometime for a couple

6 of years.

7 Q. Dr. Cranford, what is the -- what was

8 the President's Commission for the Study of

9 Ethical Problems in Medicine and Biomedical and

10 Behavioral Research?

11 A. There have been several presidential

12 commissions appointed by various presidents to

13 look at broad cutting in issues. The first one

14 was on protective human subjects of research

15 coming after various problems in the medical

16 profession related to research and that was the

17 first one.

18 The second one arose in the late 1970s

19 and was a group of 10 people from around the

20 country appointed by respective presidents to

21 look at issues related to a broad variety of

22 subjects primarily -- the main one was

23 determination of treatment and related issues,

24 Doppler treatment, patients who are permanently

25 unconscious and things like.




578



1 And for a period of four to five years

2 held hearings in Washington and then published 10

3 separate books on various topics in medical

4 ethics in the early 1980s.

5 Q. Did you serve in any capacity in

6 connection with those presidential commissions?

7 A. Yes. I spent a lot of time with that.

8 I was an adviser to that and was primarily the

9 adviser on the book on termination of treatment,

10 also the chapter on brain death. There was a

11 whole book on brain death at that time.

12 And that's the time that we were

13 developing a consensus on the Uniform

14 Determination of Death Act. So I was a medical

15 adviser, if you will, ethical adviser to them on

16 the brain death book, and also on the terminating

17 life sustaining treatment book, which was a very

18 big book in termination of treatment.

19 That was published in 1983, I believe.

20 And I think the one on the brain death was

21 probably earlier than that, 1981 or 1982.

22 Q. Dr. Cranford, have you written any

23 books?

24 A. Yes, one.

25 Q. Okay. And what's the name of your




579



1 book? What was that about?

2 A. Institutional Ethics -- Institutional

3 Ethics Committees & Health Care Decision Making

4 that was published in 1978. And then I coedited

5 that as a first book on Ethics Committees in the

6 United States after we held the first conference

7 on ethics committees, institute of ethics

8 committees, in the United States.

9 In 1984 we held the conference and the

10 book was published in 1986. This was the first

11 national conference of the ethics committee

12 nationwide and in Washington, D.C. and I was

13 chairman of the conference.

14 Then we became -- held the book two

15 years later with the editor who was the director

16 of the -- executive director of the American

17 Society of Law, Medicine & Health Care. So that

18 was the first book on ethics committees in 1986

19 and 1976.

20 Q. Have you written any medical-related

21 articles?

22 A. Yes.

23 Q. Can you estimate how many you've

24 written?

25 A. I don't think I've written quite 100




580



1 yet. I think it's more in the 90s the last time

2 I looked.

3 Q. Can you mention some of the medical

4 publications in which your articles have been

5 published?

6 A. Well, my early study was done on

7 Intravenous Administration of Dilantin and after

8 that I started writing on brain death from the

9 medical, legal and ethical standpoint.

10 And subsequent I've written on the

11 permanently unconscious patient, patients with

12 severe brain damage from a medical, ethic and

13 legal standpoint and on ethics committees and

14 health care decision making.

15 I've written quite a few articles on

16 the health care decision making in an institution

17 setting. And a lot of it had been related to the

18 medical, legal and medical aspects of the

19 vegetative state on brain death, lock-in syndrome

20 and related syndromes. Most of them are centered

21 in that general area.

22 Q. Could you mention the publications that

23 those articles have been published in some of

24 them?

25 A. The standard peer-review references:




581



1 The Journal of Neurology, the New England Journal

2 of Medicine, the Journal of the American Medical

3 Association, Annals of Internal Medicine. The

4 standard stuff ones.

5 I don't think I've ever been published

6 in -- which is a major peer-reviewed article, I

7 know, a major one, I had not been published in

8 the Archives of Neurology, I don't think.

9 But the other ones I've published one

10 or more articles in many of the standard

11 peer-reviewed journals. Also a lot of the legal

12 journals I've published in as well.

13 Q. Dr. Cranford, have you participated in

14 any special reports of the medical organizations

15 on Multi-Society Task Force Reports?

16 A. Yes, I have.

17 Q. Okay. Could you tell the Court what --

18 first of all, what is a special report on

19 Multi-Society Report as opposed to an article?

20 A. Well, the Multi-Society Task Force

21 report is by a group of people in especially

22 obstetrics and gynecology, pediatrics who will

23 have a common interest in some particular topic,

24 it could be child abuse in pediatrics or OB-GYN,

25 obstetrics and gynecology.




582



1 It may have indications for certain

2 section and they feel a need for a general

3 consensus standard or guideline, if you will,

4 among the medical community.

5 And so the specialities are most

6 relevant to that particular area and often have

7 legal or medical implications, will develop a

8 Multi-Society Task Force Report representing

9 three to five to six or seven specialities in

10 that area.

11 And they'll spend anywhere from one to

12 three to four years meeting periodically at that

13 time and they'll produce a report which is then

14 usually approved by all of the respective

15 organizations to the executive committees of all

16 these organization and it's usually published in

17 the standard peer-review journals such as the

18 Journal of the American Medical Association, the

19 New England Journal of Medicine or something

20 similar to that.

21 Q. Now, you've mentioned a couple of times

22 the phrase "peer review." What is that,

23 Dr. Cranford?

24 A. Peer review is a situation where a

25 doctor will submit something to a peer-review




583



1 organization and it undergoes peer review in the

2 sense that it's sent out to people that

3 specialize in that area to review it.

4 But it's sent out and reviewed by three

5 reviewers to review it and it's brought back to

6 the editor and the editor will send it back. He

7 might say you need to make changes here or reduce

8 it here and make a comment or just reject it.

9 So the peer-review process is a rather

10 stringent process that works pretty well in the

11 United States for accepting credible articles in

12 the peer review journal. The most common

13 journals are the New England Journal of Medicine

14 and the Journal of the American Medical

15 Association are the two most prominent in the

16 medical profession.

17 Q. What's the value then of peer review?

18 A. Well, the value is if it goes into peer

19 review and it has a fair amount of credibility

20 because you had three fellow specialists review

21 it critically to look at it who don't know who

22 you are and you don't know who they are. So it's

23 done anonymously almost always.

24 So somebody can look at the article and

25 tell who wrote it because you're a fellow




584



1 specialist, but most of the time you can't tell

2 who wrote it, so you critically review it and

3 send it back. You try to be as objective as you

4 can and say this is a strong article, it's a weak

5 article. It should be rejected out of hand. It

6 should be possibly accepted with major revisions.

7 It is to be accepted with minor revisions. It

8 should be accepted without revisions.

9 They have five categories that could

10 vary with the journal, but they have five

11 categories and it goes up to three separate

12 people. And that peer review can take anywhere

13 from a month to two to six months or longer to

14 set it up.

15 So it's a very extensive peer review

16 process. When it's published that means that

17 that article has been thoroughly evaluated by two

18 or three specialists in the field, plus the

19 editor of that journal who may decide to review

20 it himself or review it with reviewers to see

21 what they have to say.

22 Then you could send it back to the

23 author and the author will sometimes accept or

24 reject what the person says. And also they'll

25 engage in a dialog so you could have a reviewer




585



1 say that this area is weak, it should be approved

2 from this standpoint.

3 Then when they sent it back the editor

4 will say, you know, this section had been graded

5 by all three reviewers as weak. We think you

6 need to weaken this section or strengthen this

7 section et cetera or shorten it.

8 That's the worst thing of all when they

9 send it back and they say, it's a good paper, but

10 you've got to shorten it by 10 or 20 percent.

11 Nobody wants to shorten their paper by 10 or 20

12 percent.

13 So it's really devastating when it

14 comes back and it's a good paper, but it's too

15 long and you've got to shorten it by 10 or 20

16 percent. It's agonizing to shorten it.

17 So when you get into this dialog and

18 then can you send it back. Sometimes I disagree

19 with what the reviewer says. I'm not going to

20 change it and you take your chances.

21 Most of the time you go along and you

22 say, Well, okay, I'll go along with what the

23 other reviewer said, you know, the element

24 about -- I'll bend towards that way. But it's a

25 very critical process and it's tough on your ego




586



1 when they send it back, especially when you have

2 a strong section of a paper and they write back

3 and say this is a weak section and you think it's

4 a strong section.

5 When you're thinking it's a strong

6 section and they think it's the weaker section of

7 your paper, that kind of blows your ego, but you

8 have to go along with the process.

9 That's just the nature of peer review

10 in the medical field. It usually works extremely

11 well. One of the major weaknesses is that you

12 don't have the opportunity to examine the

13 original data because you don't see the original

14 data.

15 You have to rely on the data that's

16 submitted. So where they're having a problem in

17 the peer review area it's been because no one had

18 an opportunity to examine the original data when

19 there's been scandals, if you will, in the

20 medical field or the science field because they

21 have a chance to review the original data and how

22 it was submitted. So that's a weakness in the

23 peer review process, if you will.

24 Q. Now, getting back to the special report

25 and Multi-Society Task Force reports,




587



1 Dr. Cranford, what is Medical Aspect of the

2 Persistent Vegetative State Statement of a

3 Multi-Society Task Force?

4 A. Well, that's a report that was

5 submitted to five organizations. And what

6 happened was in the 1970s and the 1980s there

7 came along a whole series of cases first on brain

8 death nationwide in individual states, then on

9 the vegetative state.

10 And there are a lot of cases starting

11 with Karen Quinlin in 1975 and 1976 then on to

12 the 1980s of patients that were in a vegetative

13 state. And one of the major issues in the court

14 was not just obviously the legal and ethical

15 issue, but it was the medical issue.

16 What did it mean to be in a vegetative

17 state? What are the criteria of the vegetative

18 state? What are the studies that should be done?

19 How long should a patient in a vegetative state

20 live? On and on and on. Do they experience pain

21 and suffering?

22 So in the late -- in the mid 1980s

23 several groups were working with each other in

24 the American Academy of Pediatrics, the American

25 Neurologic Association, the American Association




588



1 of Neurological Surgeons, the American Academy of

2 Neurology and one other group -- I have to think

3 which one that was.

4 We interacted with each other and we

5 said, you know, there's a lot of confusion in the

6 courts in Quinlin, and Brophy in Massachusetts

7 and Jones in New Jersey. All these patients were

8 in a vegetative state, about what it means to be

9 in a vegetative state from a medical aspect, not

10 just a legal ethical.

11 As the group got together on the basis

12 of a very successful report prior to that on

13 brain death which is a multi society group in

14 brain death in children as a multi society group

15 and they formed the task force of five

16 organizations.

17 And we had two representatives from

18 each of the five special organizations meet

19 informally. I think we met for like two to three

20 years informally. Nationwide we met four, five

21 six times and collected a tremendous amount of

22 literature on that and then came up with a report

23 which was then turned back and submitted to the

24 ethics committee of each organization and then to

25 the practice committee and then to the executive




589



1 committee.

2 It was approved by all five

3 organizations. Then after that approval, it was

4 sent back and submitted to the New England

5 Journal of Medicine for publication. And they

6 peer reviewed it and said we had to cut it by 20

7 percent, which is agonizing, but we did.

8 Then we subsequently published and

9 shortly thereafter in the New England Journal of

10 Medicine. So it is a consensus statement of a

11 multi society task force -- a lot of speciality

12 studies after the task force report came out.

13 We had one on brain death --

14 Q. Sticking with the one medical aspect of

15 the persistent vegetative state, were you a

16 representative of one of the participating

17 societies?

18 A. Yes. I was the representative of the

19 American Academy of Neurology and I was

20 cochairman of the task force.

21 Q. So you participated in the authorship

22 of that article?

23 A. Yes. It's not authorship. When you

24 said authorship we're not authors, but when you

25 have a task force report you have a task force




590



1 that does it and you have cochairs.

2 My cochair was from the Pediatric

3 Neurology Society. And we were cochairs and you

4 have other people represented, 10 of us. We work

5 with a lot of people.

6 So it's not authored per se, it was

7 cochaired with the task force to develop a

8 document. And the report is not just the task

9 force it's -- if you will, it's a consensus

10 statement advocated by that particular specialty

11 organization, so it's not like an author per se.

12 Q. Yes. Now, you mentioned that part of

13 the work with the task force was to, I believe,

14 assemble data or investigate into that area; is

15 that correct?

16 A. Yes. Yes.

17 Q. What sort of data did the task force

18 look for and assemble?

19 A. Well, besides the world's literature

20 and reviewing the world's literature by doing

21 computer research, we spent a lot of time

22 checking out specific things within the

23 literature to find out their value or not.

24 For example, there was something called

25 a National Coma Data Bank in Washington that had




591



1 published some articles on recovery from coma and

2 how long they'd been in a coma.

3 There were several cases, there were

4 six cases that were unusual. So what I and

5 Cochair Steve Ashwal spent many, many months

6 doing was interacting with the authors of

7 actually the Coma Data Bank to look at those six

8 specific cases to see if recovery occurred and

9 when it occurred.

10 So we spent a lot of time interacting

11 not just with the literature, but talking with

12 ourselves and then general specialists around the

13 country and overseas to check the world's

14 literature.

15 Then when we find something unusual

16 like there's a case of outliers, if you will,

17 usually recovery from a vegetative state we would

18 track those down and find out how valid they

19 were.

20 We would actually interact with the

21 doctors in those cases. We spent a lot of time

22 reviewing and detective work in pursuing all of

23 these interesting cases and actually

24 corresponding with the doctors.

25 We were successful in doing this




592



1 because we had the authority, if you will, to

2 proceed with five special organizations, so a lot

3 of people were willing to interact with us

4 because they knew we were cochairs of this task

5 force. They knew we were pursuing and we were

6 representing these major groups and they knew we

7 would probably come up with some --

8 MS. ANDERSON: Your Honor, I hate to

9 interrupt Dr. Cranford, but he's given

10 really long narrative responses that are not

11 responsive to the question. I'm kind of

12 losing track of what he's talking about.

13 Perhaps there could be a few more questions

14 and a little less rambling.

15 MR. FELOS: Well, Your Honor, I don't

16 believe the witness is rambling in the

17 least. I think he's directly responding to

18 the question.

19 THE COURT: It does seem like it's a

20 direct response, although it's wordy.

21 That's responsive as a witness. Please

22 continue.

23 MR. FELOS: Thank you, Your Honor.

24 BY MR. FELOS:

25 Q. Dr. Cranford, how has the Medical




593



1 Aspects of the Persistent Vegetative State

2 Statement of Multi-Society Task Force been

3 received in the medical community?

4 A. I think it's been well received. I

5 think it's widely quoted. People try to disagree

6 with it, but they haven't found that much to

7 disagree with.

8 I think it was very successful because

9 there were a lot of rehabilitation groups that

10 disagreed with it and came up with a new report

11 called the Minimally Conscious State that tried

12 to supplement it and disagree with certain parts

13 of the task force report. I think it's been

14 fairly successful and widely quoted in court

15 cases subsequently on medical aspects.

16 Q. Dr. Cranford --

17 MS. ANDERSON: I want to object to that

18 answer, Judge. It's improper bolstering of

19 his testimony.

20 THE COURT: What's improper? Widely

21 quoted?

22 MS. ANDERSON: It is improper what

23 Dr. Cranford just said to say this is my

24 work and everybody agrees with me. That's

25 improper bolstering.




594



1 THE COURT: I don't think he said

2 everyone agrees.

3 MS. ANDERSON: What he says was it's

4 well received and it's widely quoted and

5 used as the standard in the courtroom.

6 That's what he said and that is improper

7 bolstering. In effect what he's saying is

8 everybody agrees with me.

9 MR. FELOS: Your Honor, we've had

10 testimony the entire week about this report

11 and its authoritativeness. I believe it's a

12 proper question and it's certainly not

13 bolstering. The witness was very candid

14 that some people don't agree with the

15 report.

16 THE COURT: Well, I think it's

17 collateral, if anything. I'm going to

18 overrule the objection and allow the answer

19 to stand.

20 MR. FELOS: Thank you.

21 BY MR. FELOS:

22 Q. Dr. Cranford, how many patients, in

23 terms of number, would you estimate that you've

24 examined or observed who were in a vegetative

25 state?




595



1 A. I wouldn't know precisely. It would be

2 in the hundreds. And I would really have no idea

3 if it could be 100 or 500. You know, I just

4 would have no way of knowing. It would be in the

5 hundreds, that's all that I can say. It

6 certainly wouldn't be in the thousands, but it

7 would be in the hundreds.

8 Q. Dr. Cranford, what is a vegetative

9 state from the medical perspective?

10 A. The vegetative state is a patient who

11 is awake, but unaware. It's a unconscious state

12 where the eyes are open and the patient has

13 sleep/wake cycles. So the basic thing is the

14 patient who is awake who has sleep/wake cycles,

15 but who is completely unconscious because their

16 neocortex is non-functioning. That's the basic

17 definition of the vegetative state.

18 Q. And what is the distinction between a

19 vegetative state and a persistent vegetative

20 state?

21 A. A persistent vegetative state has been

22 used in various ways. When this syndrome was

23 originally described in 1972 by Plum & Jonnatt

24 they used the term persistent which means it

25 happened for a long time.




596



1 Subsequently we use the term persistent

2 meaning it lasted longer than one month. But

3 that's not the key word. But persistent is used

4 now, according to the task force report, to mean

5 longer than one month.

6 But neurologists use the word

7 persistent a lot of different ways,

8 unfortunately, and it's not been widely accepted

9 that the task force report is agreed to by

10 everybody.

11 Some say persistent is meaning

12 permanent and some meaning persistent lasting

13 longer than a month. Some people say anything in

14 a vegetative state for any period of time is in a

15 persistent vegetative state.

16 So the persistent is, in my opinion, is

17 not achieving a high order consensus among

18 practicing neurologists and neurosurgeons and

19 rehabilitationists who work in this field.

20 Q. What distinguishes a vegetative state

21 from a coma?

22 A. The coma is eyes closed

23 unconsciousness. In a vegetative state, the

24 higher centers are non-functioning, specifically

25 the neocortex, the higher centers of the cerebral




597



1 hemispheres.

2 In a coma the lower centers of the

3 brain stem, specifically the reticular activating

4 system is involved. So a coma is a patient with

5 eyes closed unconsciousness.

6 So the level of unconsciousness in a

7 coma is generally occurring without a wake or

8 sleep cycle, which is a coma.

9 So coma is eyes closed unconsciousness

10 and the vegetative state is an eyes open

11 unconsciousness. They're both unconscious, if

12 you're talking about the deep level of coma in

13 the vegetative state they look entirely different

14 at the bedside.

15 Q. What is a locked-in syndrome?

16 A. A locked-in syndrome essentially is a

17 patient who has a normal or near normal thinking,

18 but is so severely paralyzed that they look like

19 they're either in a coma or they look like

20 they're severely brain damaged or they look like

21 they're in a vegetative state, but yet their

22 thinking is totally normal.

23 So it's usually a brain stem issue

24 where you've knocked out major motor pathway so

25 that they can't move in all four extremities and




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1 they often can't move their eyes. They may not

2 move their face.

3 So they are extremely severely

4 paralyzed, but locked in, when used the way it

5 should be, means that their thinking and their

6 consciousness is either normal or near normal.

7 So there's a massive disparity between

8 consciousness and motor movement.

9 Q. Can patients in a locked-in syndrome

10 communicate non-verbally?

11 A. Yes.

12 Q. And how do they do that?

13 A. Well, you have to establish a

14 communication system with them. If you establish

15 a communication system with them, then they can

16 write books. They can communicate.

17 So with newer technology it appears

18 that they can write. They usually do it through

19 one little movement of their head or their eyes.

20 So they communicate by movement of their eyes in

21 several directions, by their lids, by one little

22 movement -- even by facial movement.

23 If you can hook them up and set up a

24 communication system then they can communicate

25 perfectly. They can spell things out for you and




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1 go on from that standpoint.

2 So you can establish an elaborate

3 communication system with them through non-verbal

4 communication.

5 Q. Are patients in a persistent vegetative

6 state immobile?

7 A. Yes. Immobile means inability to move.

8 And they're either completely immobile or they're

9 markedly immobile because some can move about.

10 Some can be restless and actually have

11 spontaneous turning to some degree. So they're

12 either markedly immobile or completely immobile.

13 Q. Well, can a patient in a persistent

14 vegetative state move their head?

15 A. Yes.

16 Q. Can they move their limbs?

17 A. Yes.

18 Q. Can they make any sounds?

19 A. Oh, yes.

20 Q. What type of sounds can the patient in

21 a persistent vegetative state make?

22 A. A patient in a persistent vegetative

23 state can moan. They can laugh. They can groan.

24 They can make guttural sounds. They can make

25 squeals. Moans and groans are probably more




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1 common than laughter, per se. But they can make

2 any kind of sound that duplicates what appears to

3 be a basic emotion of happiness, anger or

4 sadness.

5 Q. Can they make any facial expresses?

6 A. Yes.

7 Q. Such as?

8 A. The most common would probably be a

9 grimace where you painfully stimulate them and

10 they certainly can grimace, but they can smile.

11 They can sneer. They can have all sorts of

12 painful looks on their face. It looks like

13 they're in pain. So it could be a wide gamut of

14 facial expressions.

15 Q. Now, can those expressions and sounds

16 or movements you've mentioned, can they occur

17 spontaneously?

18 A. Yes, they can occur spontaneously.

19 Q. Can they occur in response to a

20 specific stimulus?

21 A. Yes, they can occur in response to a

22 specific stimulus, yes.

23 Q. Could you explain to the Court how can

24 a smile or tears be an involuntary action?

25 A. Well, there's a syndrome called