771



1 permanent vegetative state case. That's

2 irreversible. And with this degree of atrophy

3 after 12 years you wouldn't even think of it.

4 There's no remote possibility of using it. I

5 wouldn't.

6 MR. FELOS: Okay. I have no other

7 questions, Your Honor.

8 THE COURT: Recross?

9 RECROSS-EXAMINATION

10 BY MS. ANDERSON:

11 Q. Dr. Cranford, you say you are following

12 10 or 20 patients all around the country and in

13 Minnesota?

14 A. Yes.

15 Q. What do you mean by following?

16 A. These are cases I've been consulted on.

17 These are cases that I followed from the

18 beginning when a patient had severe brain damage

19 in a particularly tragic circumstance where they

20 were younger or middle-aged where the family

21 still wants to continue treatment.

22 These are cases in litigation that I've

23 been involved with, not from the standpoint of

24 liability of causation, but from the standpoint

25 of my expertise as a medical expert in




772



1 determining the condition of the patient and from

2 people that call me around the country about this

3 patient or that patient who may or may not

4 recover, and patients where the doctors have

5 called me and said, We have a patient here. The

6 family is concerned the patient is getting better

7 or improving, do you want to discuss it with the

8 family? Do you want records sent to you? Do you

9 want to see the patient?

10 So I will often work with the family in

11 these circumstances and follow patients along

12 with the family to answer their questions and

13 make recommendations for testing to be done or

14 other doctors to see the patient.

15 Several in Minnesota I followed for

16 some time. That kind of thing because of my work

17 in this area as a presumed national expert so

18 people will often call me to verify the condition

19 of not only vegetative, but they may be minimally

20 conscious patients as well.

21 Q. Now, of the 10 or 20 patients that you

22 are following, how many of those patients are the

23 subject of litigation of one sort or another?

24 A. I would just be estimating, Ms.

25 Anderson, but I would say that 25 to 50 percent




773



1 are subjects of litigation, not right to die, but

2 of other kinds of litigation.

3 Q. Now, in fact, the Florida patient --

4 the Florida case is a litigation case; is it not?

5 A. Yes, what I mentioned before with the

6 HBO.

7 Q. Yes.

8 A. That is a litigation case, that's

9 right.

10 Q. You're not really following that

11 patient, are you? Haven't you been hired by the

12 insurance company?

13 A. I don't know who hired me, but I'm

14 working for the law firm that's representing, I

15 think, the construction company that built the

16 road on which the patient had an accident.

17 And my value in that case is to follow

18 the patient from the standpoint of the condition

19 of the patient and see if there's any improvement

20 and to evaluate the depositions and examinations

21 of the other physicians that are involved in the

22 case.

23 So I'm following it from that

24 standpoint, yes.

25 Q. So you're not following the patient in




774



1 the sense that her attending physician sends you

2 records say once a month?

3 A. No.

4 Q. You're not following that patient in

5 the sense that you have access to her to go

6 examine her and make record entries, chart

7 entries?

8 A. No, not in that case.

9 Q. In fact, you've been hired as a defense

10 expert in that case, correct?

11 A. Yes.

12 Q. And you think perhaps 25 to 50 percent

13 of the patients are situations like that?

14 A. Yes.

15 MS. ANDERSON: I have no further

16 questions, Your Honor.

17 THE COURT: Thank you. Anything

18 further, Mr. Felos?

19 MR. FELOS: No, Your Honor.

20 THE COURT: Doctor, You may stand down.

21 Thank you very much. Does that conclude

22 today?

23 MR. FELOS: Your Honor, I have some

24 matters to introduce into evidence. First I

25 wanted to introduce into evidence




775



1 Petitioner's Exhibit 9, which is the

2 videotape of Dr. Cranford's examination.

3 Petitioner's Exhibit 10, which is the

4 two tapes which are the videos of

5 Dr. Hammesfahr's examination.

6 Petitioner's Exhibit 11, which is the

7 videotape of Mr. Maxfield's examination.

8 THE COURT: And I believe you concur

9 with that, Ms. Anderson?

10 MS. ANDERSON: Yes, Your Honor.

11 THE COURT: Now does this replace this

12 CD that you --

13 MS. ANDERSON: No.

14 THE COURT: That's in addition?

15 MS. ANDERSON: No, those are the clips

16 what we showed. These are the full unedited

17 exams on VHS.

18 THE COURT: Are they marked?

19 MR. FELOS: Yes, Your Honor. Your

20 Honor, I also wanted to introduce into

21 evidence materials that I have received just

22 the past few days from the Florida

23 Department of Health which I have marked as

24 Petitioner's Exhibit 12, which consists of

25 an affidavit of Shirley J. Whitset




776



1 (phonetic) an attorney employed by the

2 Department of Health to prosecute medical

3 doctors for licensing violations as well as

4 the documents attached thereto.

5 THE COURT: What possible hearsay

6 exception does that come in under?

7 MR. FELOS: Well, Your Honor, number

8 one they are public records and that's the

9 exception.

10 THE COURT: An affidavit is a public

11 record?

12 MR. FELOS: Well, she states that she's

13 the --

14 THE COURT: Don't tell me what she

15 says.

16 MR. FELOS: Well, in terms of whether

17 they are public records or not, Your Honor,

18 these are records of a state -- these are

19 records of a state agency and the Florida

20 Department of Health is a state agency and

21 the affiant is the keeper of the records.

22 THE COURT: The attorney is the keeper

23 of the records?

24 MR. FELOS: Yes. That's what she

25 states in the affidavit.




777



1 MS. ANDERSON: I cannot cross-examine

2 an affidavit and this is why the proper time

3 to have taken this up would have been

4 somewhat earlier in this hearing.

5 MR. FELOS: I realize that these were

6 not on my witness list, but I only received

7 this information within the last couple of

8 days, Your Honor.

9 MS. ANDERSON: I have case law and a

10 lot to say about this, Judge. But you put

11 your finger on the main thing which is it's

12 an affidavit. The reason that we have

13 record custodians testify is for this very

14 reason. For all I know these are not the

15 complete records. I certainly can't

16 cross-examine this woman.

17 This is the same thing that comes at

18 the very end of the hearing of testimony in

19 this hearing.

20 THE COURT: Oh, let's be more gracious

21 than that.

22 MS. ANDERSON: Okay. It is what the

23 case law calls surprise. It is prejudicial.

24 In fact it is really 403 Evidence, to tell

25 you the truth. It's not probative. It's




778



1 designed to poison the well.

2 It's designed to taint the Court's

3 mind, but more importantly it's all hearsay.

4 And if we were going to go into this I could

5 go about three weeks on this.

6 THE COURT: No, you won't.

7 MS. ANDERSON: I could. I could.

8 THE COURT: Ms. Anderson, I never said

9 you couldn't do something.

10 MS. ANDERSON: You may not be in the

11 room, but I could do it.

12 MR. FELOS: Your Honor, the records

13 are, number one, they're self-authenticating

14 because they bear a signature of the state's

15 employee who says she's the custodian of

16 the -- the keeper of these state records.

17 And as far as hearsay, public records

18 is Section 803(8) of the evidence code makes

19 them a hearsay exception for public records.

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

21 contribute any fault or blame, but I do

22 think that at the eleventh hour the

23 timeliness of these items is certainly too

24 short for the Court to consider them.

25 I would think the prejudicial value far




779



1 outweighs the probative value, so I'm going

2 to agree with Ms. Anderson.

3 MR. FELOS: Your Honor, what I would

4 like to do then is --

5 THE COURT: If you want to put them in

6 a brown envelope --

7 MR. FELOS: At the Court's specific

8 brown envelope suggestion I do have a brown

9 envelope with the other materials that I had

10 proffered and I will put it in there.

11 MS. ANDERSON: What other materials?

12 What is in there?

13 MR. FELOS: The other materials since

14 you don't want me to identify them.

15 MS. ANDERSON: Oh, I see. Right.

16 MR. FELOS: That I had proffered.

17 MS. ANDERSON: Right.

18 THE COURT: Don't tell me what's in

19 there.

20 MR. FELOS: Well, I wasn't. Your

21 Honor, what I will do is just put it in the

22 brown envelope and we'll just identify this

23 as Petitioner's proffer.

24 MS. ANDERSON: Judge, would you seal

25 that, please?




780



1 THE COURT: I can't at the moment, but

2 I --

3 MR. FELOS: It's sealed.

4 THE COURT: No, it's not. It's not

5 sealed. As soon as I get back to my office

6 I will take Scotch tape and seal it.

7 MS. ANDERSON: Thank you, Judge.

8 THE COURT: But what I'm going to do is

9 I will write, sealed by Court this 21st day

10 of October, 2002. That will be sealed as

11 soon as I get back.

12 MS. ANDERSON: Thank you so much.

13 THE COURT: Anything further,

14 Mr. Felos?

15 MR. FELOS: No, Your Honor.

16 THE COURT: Now, you had given me a

17 book?

18 MS. ANDERSON: Yes, sir.

19 THE COURT: That is real thick.

20 MR. FELOS: Actually, there is one

21 thing, Your Honor, and I think the Court has

22 touched on it now. I just wanted to make

23 sure that we were in sync as to the

24 Respondent's documents in evidence so we can

25 have Respondent remove from the book those




781



1 items that were not introduced into

2 evidence.

3 THE COURT: I thought I was going

4 there. You got there first. Do you want to

5 look through this and just let me know?

6 MS. ANDERSON: Judge, why don't I take

7 your exhibit list then again --

8 THE COURT: Do you just want to wait

9 and bring this back tomorrow?

10 MS. ANDERSON: Yes.

11 THE COURT: That's easier than me

12 hanging around. This thing is heavy. There

13 is a very big guy back there that just stood

14 up who will be the keeper of that.

15 MS. ANDERSON: The staff fullback?

16 THE COURT: He could be an offensive

17 tackle.

18 MR. FELOS: Also I did want to inquire

19 of Your Honor, I believe, and correct me if

20 I'm wrong, that Respondent's Exhibit Number

21 6 was identified as the eight by tens of the

22 2002 CT scan and I was wondering whether

23 those actually are in existence and

24 admitted.

25 MS. ANDERSON: I think that




782



1 Dr. Maxfield got away from us from the stand

2 with those in his possession.

3 THE COURT: What are these --

4 MS. ANDERSON: That's my recollection.

5 THE COURT: These look like those.

6 MS. ANDERSON: If it has the scanogram

7 it's probably the '96.

8 MR. FELOS: Those, I believe, is

9 Exhibit 98, Your Honor, which are the eight

10 by tens of the '96 CT scans.

11 THE COURT: This is 96.

12 MS. ANDERSON: Yes.

13 THE COURT: I thought that's what you

14 were talking about.

15 MS. ANDERSON: Right.

16 MR. FELOS: That should be Exhibit 98,

17 Your Honor.

18 THE COURT: Yes, it is.

19 MR. FELOS: Exhibit 96 was to be the

20 eight by tens of the 2002 CAT scan.

21 MS. ANDERSON: Right. Dr. Maxfield got

22 away with them. With the Court's permission

23 I'll get them back from him and just do a

24 late submission.

25 THE COURT: Well, I'm certainly not




783



1 going to rule tomorrow so if you could get

2 them back to me in a week to 10 days I'm

3 sure that will be more than enough time.

4 Will you trust Ms. Anderson as an

5 officer of the Court to get me the accurate

6 documents?

7 MR. FELOS: You mean the eight by tens

8 of the --

9 THE COURT: Yes.

10 MR. FELOS: Yes, I would just like a

11 copy.

12 MS. ANDERSON: They are hard to fake.

13 Now, we will begin at nine-thirty tomorrow,

14 Judge?

15 THE COURT: That's based on your

16 representation that you think your closing

17 will take three hours, right?

18 MS. ANDERSON: That should --

19 THE COURT: You wish to bifurcate?

20 MS. ANDERSON: Right.

21 THE COURT: We figured two-and-a-half

22 for your primary argument, break for lunch,

23 Mr. Felos' primary and then your 30 minutes.

24 MS. ANDERSON: That was my

25 understanding.




784



1 THE COURT: Plus or minus.

2 MS. ANDERSON: Right.

3 MR. FELOS: Hopefully mine,

4 Your Honor --

5 THE COURT: I'm not going to sit here

6 and hold up a card that says, you've got 30

7 seconds to go.

8 MS. ANDERSON: You know in the U.S.

9 Supreme Court they have lights on the podium

10 and they leave. When the red light goes on

11 they get up and leave.

12 THE COURT: I kind of look at it like

13 this, if you've taken the time to prepare it

14 and you think it's worth saying and it's

15 relevant I'm here to listen.

16 MS. ANDERSON: Thank you, Judge.

17 THE COURT: So we will use that as a

18 guide.

19 MS. ANDERSON: Thank you.

20 THE COURT: Let's stand in recess until

21 nine-thirty tomorrow.

22 (Thereupon, the proceedings of 10/20/02 were

23 concluded.)

24 OCTOBER 22nd, 2002

25 THE COURT: Are you all ready to




785



1 proceed?

2 MR. FELOS: Mr. Felos, I neglected to

3 take this back and Scotch tape it like I

4 said I was going to do. I brought my Scotch

5 tape this morning. Make sure that they seal

6 this, please. Then one final question: Are

7 the physicians' reports to be in evidence?

8 MS. ANDERSON: No, they're actually

9 hearsay, Judge. And there is authority in

10 the DCA where the physicians' reports come

11 in where --

12 THE COURT: Well --

13 MS. ANDERSON: -- testified. Nobody

14 has offered them. They're in the court

15 file, but nobody had offered them into

16 evidence.

17 THE COURT: Well, I just want to make

18 sure that you all --

19 MS. ANDERSON: I saw that. I saw that.

20 Judge, there is one thing that I think I

21 ought to bring up this morning before we

22 begin.

23 THE COURT: All right.

24 MS. ANDERSON: In that envelope that

25 Mr. Felos is handing you are documents that




786



1 you declined to admit into evidence

2 yesterday. After you did that, Mr. Felos

3 here in the courtroom handed them out to

4 reporters.

5 I think that that action shows two

6 things: Number one, it shows that the

7 documents were not offered in good faith

8 here. They were used as a means of handing

9 them out to reporters.

10 And, secondly, it's disrespectful to

11 the Court and to the process to do that. It

12 was an attempt, a transparent attempt, I

13 think, to generate some publicity that will

14 influence the Court. I think Mr. --

15 THE COURT: Well, it would only

16 influence the Court if the Court read the

17 article.

18 MS. ANDERSON: Right. I think

19 Mr. Felos is bating the Court. I think it's

20 inappropriate and I think that his act of

21 passing out documents even though they're

22 public records and any reporter certainly

23 could have gotten them, the fact that he

24 passed those out under those circumstances

25 warrants an admonishment from the Court.




787



1 MR. FELOS: Your Honor, if I may --

2 THE COURT: Well, just to put your

3 concern at rest about that story, I saw the

4 headline and I declined to read any further.

5 MS. ANDERSON: Thank you.

6 THE COURT: And my thought was if that

7 paper is still hanging around after I rule I

8 may read the article, but I believe the

9 Court could be influenced just like jurors

10 can. So I have not read the article and I

11 will not read the article.

12 MS. ANDERSON: Thank you.

13 THE COURT: Until subsequent to the

14 time that an order has been entered in this

15 cause.

16 MR. FELOS: Your Honor, I take

17 objection to those remarks. I think they

18 are totally inappropriate and

19 inappropriately brought up.

20 These are public records. We've heard

21 from the other side about prior restraint,

22 freedom of the press, complaints about

23 restriction to public information.

24 Those documents were released as a

25 matter of public information as public




788



1 records in no way to influence the Court or

2 influence these proceedings, Your Honor.

3 MS. ANDERSON: Right.

4 THE COURT: Well, you should have known

5 that they were going to be published,

6 Mr. Felos. And they're not a public record

7 in this cause. They are a public record

8 perhaps where the agency is located. I have

9 no idea where that is, probably Tallahassee.

10 If the press had wanted it, I'm sure

11 they could have found them. But in this

12 cause or in this envelope it says do not

13 open without Court order, so they're not

14 really a public document yet here.

15 MR. FELOS: Well, they're a public

16 document, Your Honor, open to anyone and

17 they were released, in fact, by the

18 Department of Health. Those are public

19 records. Those are not confidential or

20 sealed records, Your Honor.

21 THE COURT: I understand. They are not

22 public records in Clearwater, Pinellas

23 County, Florida, is my point. And in this

24 case file they are sealed. The Court hasn't

25 seen them.




789



1 Had the Court read the news story this

2 morning, the Court would have read what you

3 wanted the Court to read. So I'm certainly

4 not going to admonish anybody, but I'm a

5 little concerned when I saw the story --

6 MR. FELOS: Well, it was not given to

7 the press in any way to influence the Court

8 or to have the Court read, Your Honor.

9 THE COURT: Okay. So be it.

10 MR. FELOS: Your Honor, before we start

11 today I did want to take up a couple of

12 matters about pending orders.

13 MS. ANDERSON: Your Honor, we have

14 several housekeeping matters that need to be

15 attended to and perhaps we could do it at

16 the end of the day.

17 THE COURT: You're ready to go, hun?

18 MS. ANDERSON: I am.

19 THE COURT: I bet you are.

20 MS. ANDERSON: Uh-huh.

21 THE COURT: I'll tell you something

22 that I did read was the article in the Tampa

23 Bay business.

24 MS. ANDERSON: Oh, yes.

25 THE COURT: 1000 to 1200 hours. It




790



1 showed.

2 MS. ANDERSON: That's a lot.

3 THE COURT: It showed.

4 MS. ANDERSON: Thank you.

5 THE COURT: We also have heard evidence

6 as housekeeping, so she will prefer to do it

7 at the end of the day.

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

9 THE COURT: Let's do it then. Just

10 remind me, please.

11 MS. ANDERSON: Your Honor, before we

12 begin this morning, I want to thank the

13 Court for the courtesy that has been

14 extended to us, particularly the courtesy

15 that's been extended by the courtroom staff,

16 the bailiffs, the court reporter and also

17 the staff at the -- I guess it's the

18 technology center here at the Clearwater

19 Courthouse. It's been very helpful in

20 making a smooth and effective management and

21 we appreciate it. We think that it's

22 probably been more effective and more

23 efficient because of the assistance that

24 we've received.

25 THE COURT: Thank you.




791



1 MS. ANDERSON: This has been a very

2 unusual hearing. Six doctors all day long

3 back to back days is a, probably a first in

4 this county and maybe a first in Florida

5 jurisprudence. A lot of technical

6 information. Very difficult to absorb on

7 first hearing.

8 We heard a lot of testimony about

9 different aspects of neurology. The

10 principal concepts that I think the Court

11 should keep in mind in analyzing the

12 evidence is that oxygen is the fuel of the

13 brain.

14 If the brain is deprived of oxygen

15 either totally or partially for about five

16 minutes or longer, the brain is going to

17 suffer damage.

18 The cause of the oxygen deprivation can

19 come from many sources. It can be hanging,

20 drowning, strangulation, asphyxiation, blunt

21 head trauma. It could be a cardiac arrest.

22 It could be any number of things.

23 The end result is the same, hypoxic or

24 anoxic encephalopathy. In layman's words

25 brain damage caused by oxygen deprivation or




792



1 reduced oxygen.

2 Terri Schiavo suffered some sort of

3 oxygen deprivation back in February of 1990.

4 We've heard her brain damage described in

5 the records as anoxic and hypoxic. We've

6 heard both terms used from the stand, too.

7 But all the doctors agree that it is

8 simply a matter of degree. It is not a

9 difference in kind it is simply a difference

10 in degree.

11 Now, in Florida, Terri's life cannot be

12 ended where she hasn't left a written

13 advance directive except under a statutory

14 scheme that the legislature has imposed in

15 these situations to protect against

16 impropriety.

17 In general, 765.305 provides that there

18 will be no reasonable medical probability of

19 recovering capacity so that she can tell us

20 whether she wants to live or die for herself

21 and she is either in an end-stage condition,

22 she is in a persistent vegetative state or

23 her condition is permanent.

24 So the protective statutory scheme is

25 A, plus B, C or D. None of these physicians




793



1 who testified claimed that she was in

2 end-stage oriented distress. So the

3 question before the Court is, is Terri

4 Schiavo presently today in a persistent

5 vegetative state?

6 The same chapter in the definition

7 section 765.101 defines permanent vegetative

8 state or persistent vegetative state as

9 permanent and irreversible, unconsciousness.

10 Unconsciousness, in which there is the

11 absence of voluntary action or cognitive

12 behavior of any kind. Of any kind.

13 And the inability to communicate or

14 interact purposefully with the environment.

15 That is not what we saw on those videotapes.

16 Dr. Gambone, who has been her treating

17 physician for four-and-a-half years, and

18 says that he tries to see Terri about once

19 every four months for about 10 minutes. So

20 she's seeing him 30 minutes a year. That's

21 all that she's seeing him.

22 He's never seen her in the presence of

23 her parents or her siblings. He testified

24 she has had not any physical therapy since

25 she's been his patient. He thought a




794



1 physical therapy evaluation should be done

2 and Mr. Schiavo would not permit it.

3 And he made -- Dr. Gambone himself in

4 his own handwriting, and this is in Exhibit

5 12, made a notation that the husband had

6 declined that evaluation.

7 Dr. Cranford agreed that we always try

8 to prevent contractures in patients like

9 this with physical therapy. She is severely

10 contracted because she's had no therapy.

11 Dr. Gambone visibly startled on that

12 witness stand. He visibly started. I think

13 the Court and Dr. Gambone were looking at

14 monitors simultaneously so you may not have

15 seen it, but when he saw that image of Terri

16 reacting to her mother, smiling at her

17 mother, he visibly startled in his seat.

18 We recall that I had asked Dr. Gambone

19 if he would be surprised at a series of

20 things. Surprised if he saw her smiling at

21 her mother. Surprised if she shut her eyes

22 on command or if she opened her eyes wide on

23 command. If she visually tracked an object.

24 I asked him if he would be surprised at

25 each one of those things and he said, yes, I




795



1 would be surprised. I would be surprised.

2 And it would be inconsistent with his

3 diagnosis of PVS.

4 The longest amount of time he's ever

5 spent with her was the first time that he

6 saw her he spent about an hour with her

7 observing her, he said, and flipping through

8 her chart, going through her chart.

9 So it's no wonder, frankly, it's no

10 wonder that he was surprised at what he saw.

11 As the afternoon wore on with him he became

12 more and more agitated. He began to

13 stutter. The Court may remember that, that

14 Dr. Gambone actually began to stutter and he

15 began pulling at his necktie.

16 Finally Dr. Gambone said, he just sort

17 of threw up his hands and said, I'm not an

18 expert in this. I relied on Dr. Barnhill.

19 And to the extent that I know what

20 information there is about her that's not in

21 the record I got it from Mr. Schiavo.

22 He acknowledges that she's never had a

23 mammogram and doesn't know when her last PAP

24 smear was. He thinks it was maybe in 1996.

25 He knows that her teeth were examined, but




796



1 he doesn't think they were cleaned this

2 year.

3 He ordered two urinalysis done this

4 year and both times they were abnormal.

5 Both times they showed bacteria in her

6 urine.

7 The fact that Dr. Gambone was not

8 proffered as an expert, the fact that he

9 only sees her by his own testimony about 30

10 minutes a year, the fact that he has had a

11 grossly inadequate opportunity to observe

12 Terri simply because the man is busy, he

13 works 20 hours a week for United Health Care

14 and in addition has 282 other patients the

15 Court should probably consider Dr. Gambone

16 not as an expert witness, but as a fact

17 witness.

18 Now, perhaps the Court was surprised at

19 hearing first hand from her attending

20 physician how little medical care she

21 receives. Perhaps the Court was surprised

22 to hear Dr. Gambone say that the nurses call

23 him from time to time particularly if Terri

24 starts moaning.

25 The nurses interpret that as moaning in




797



1 pain and so he will prescribe pain

2 medication for Terri to stop the moaning.

3 And yet, on the other hand, he says she

4 can't feel pain. Why do you medicate a

5 patient for pain if the patient can't feel

6 pain? Why do you do that?

7 It's as though there is a body of

8 received and uncontestable information that

9 they all got in medical school and their own

10 experience and their own observation are at

11 odds with it and they can't process that.

12 So they keep going back to what they learned

13 in medical school.

14 If she's in PVS she can't feel pain.

15 The fact that she moans and I medicate her

16 for pain doesn't mean that she can feel pain

17 because she's in PVS.

18 There's a certain intellectual

19 disconnect in this testimony. It is as

20 though the label that is hung on this

21 patient determines, forms, guides what they

22 permit themselves to see.

23 If she's in PVS she only has brain stem

24 reflexes. If she's in PVS she doesn't feel

25 pain. If she's in PVS she doesn't have




798



1 voluntary movement.

2 She can't visually track. And so when

3 they see that she's visually tracks, when

4 they see that she smiles at her mother, when

5 they see that she laughs sometimes at

6 inappropriate context, their brain won't

7 take that in because she's in PVS.

8 And how do we know that she's in PVS?

9 Well, because all of these other doctors

10 says that she's in PVS. But her doctor only

11 spends 30 minutes a year with her and there

12 aren't any other doctors who come and see

13 her. There isn't anybody else.

14 It's as though she's literally been in

15 an isolation cell for 10 years. Who among

16 us lying in bed for 10 years without any

17 physical therapy, without any systematic

18 programs of stimulation would not be a

19 little less responsive at the end of 10

20 years?

21 Is it really fair to withhold therapy

22 from her for 10 years in what appears to be

23 a deliberate, perhaps negligent attempt to

24 depress her responsiveness and then say,

25 Look, Judge Greer. Look, she's




799



1 non-responsive. Is that fair? Has she been

2 given a fair chance?

3 Dr. Gambone testified that he put the

4 DNR, the do not resuscitate order on her

5 chart when he took her case over in February

6 of 1998 from Dr. Mulroy.

7 He pull that DNR on there at the

8 instruction really of Mr. Schiavo. And he

9 candidly acknowledged from the stand that

10 whatever he knows about this patient that

11 isn't in the records comes from her

12 guardian. He had never met her parents

13 until he saw them here in this courtroom.

14 He has never seen them.

15 He doesn't know how often she gets to

16 go outside because he's never written an

17 order that said she can't go outside. He's

18 never tested her hearing or her eyesight or

19 even taken her blood pressure.

20 It's sort of a comment on the state of

21 modern healthcare I think what's happened to

22 her. She's been put on a shelf and ignored.

23 So the task before the Court is given

24 the other five witnesses, the expert

25 witnesses, how is the Court to decide and to




800



1 sift and to analyze among this conflicted

2 testimony? Is it a simple nose count, three

3 to two? Three of them said she's in PVS

4 with no hope of recovery and two say

5 otherwise?

6 I'd submit to the Court that the way to

7 look at these five physicians' testimony is

8 the way any Court analyzes any day of the

9 week live witnesses' testimony; you look at

10 credibility. You look at demeanor on the

11 witness stand.

12 You look at -- you analyze the

13 opportunity to observe. The methodology in

14 the case of an expert witnesses' bias and

15 then you decide the weight to give to each

16 witness. Those are particularly fact

17 finder's functions. It is not a nose count.

18 The only two expert witnesses who

19 actually treat severely brain damaged

20 patients with the aim of getting them better

21 who testified to this Court are

22 Dr. Hammesfhar and Dr. Maxfield.

23 None of the other three doctors, by

24 their own admission, none of them treat PVS

25 patients. None of them is presently the




801



1 attending physician to a PVS patient.

2 The reason is very simple, urologists

3 typically work in hospitals as these three

4 physicians do, deal with the acute care

5 situation; the patient who comes in with the

6 blunt head trauma, the patient who comes in

7 with a stroke in progress, the patient who

8 comes in with a closed head injury as a

9 result of a motor vehicle accident. Those

10 are the patients they treat.

11 And once those patients get stabilized,

12 then the patient passes down the pipeline to

13 another type of doctor, the rehabilitation

14 phase. It's really the rehabilitation

15 doctors whose patient populations are the

16 long-term disabled.

17 It's the rehab doctors who could

18 probably best speak to the treatment as

19 opposed to the mere management of the PVS

20 patients.

21 Just as lawyers specialize in areas of

22 law practice after they go to law school, so

23 do doctors even within the same specialty.

24 A transaction lawyer's opinion, for example,

25 expert opinion about the death penalty




802



1 litigation really would not hold much weight

2 with any Court. The Court would recognize

3 that the skills involved, the body of

4 knowledge, are quite different.

5 It's the same with doctors. Each of

6 these doctors testified. Each of them.

7 They do not follow a treatment regimen to

8 get a PVS patient better and yet they don't

9 treat them. They're not the attendees.

10 None knows of any such regimen

11 although they admitted don't really keep up

12 with the rehabilitation literature.

13 Dr. Greer basically said we give them a

14 couple of months and that's it. Doesn't

15 think rehabilitation therapy is necessary or

16 advisable.

17 As he was giving that testimony I was

18 wondering what his colleagues in the College

19 of Medicine who specialize in rehabilitation

20 medicine would think about that opinion.

21 None of these physicians really are

22 familiar with either hyperbaric oxygen

23 therapy or with the vasodilator therapy of

24 Dr. Hammesfhar. They don't -- none of them

25 claimed to be experts in either technique.




803



1 It was obvious from their

2 misunderstanding, actually, that there --

3 that they don't even have a fundamental

4 understanding of it. Apparently they had

5 been told that the vasodilation technique

6 brought back dead brain cells to life.

7 Both Dr. Hammesfhar and Dr. Maxfield

8 specifically said that is not what these

9 therapies do. That is not what's happening.

10 And so it's a strongman's argument for these

11 doctors to say these techniques which I

12 don't really understand, don't use and don't

13 know anything about and won't work and it's

14 really a peculiarly unscientific frame of

15 mind to reject evidence out of hand without

16 fully exploring the evidence.

17 Given this admitted lack of experience

18 in treating, treating, not just managing,

19 but treating PVS patients, the testimony of

20 these three doctors should be given little,

21 if any, weight by the Court.

22 They have a general knowledge that some

23 rehab goes on in rehab centers, nursing

24 facilities. They're not really involved in

25 it unless they're called in on a consult.




804



1 They know generally that emergence from PVS

2 is a relatively rare phenomenon.

3 And, by the way, how would a patient

4 emerge from a PVS if it's permanent? What

5 happens in that patient's brain? Was it a

6 misdiagnosis at the outset or was it, as

7 Dr. Maxfield said, the body's attempt to

8 heal itself?

9 How would a patient come out of PVS?

10 There was no explanation for that from

11 Dr. Cranford, Dr. Greer. And Dr. Bambakidis

12 said, interestingly enough, he acknowledged

13 that the current research is headed in the

14 direction of regenerating brain cells.

15 Dr. Bambakidis agreed with that proposition.

16 There is no question that just this

17 year alone there had been an extraordinary

18 explosion in medical research and knowledge

19 about the way the brain operates.

20 Dr. Bambakidis specifically admitted on

21 the stand when I asked him that he really

22 could not consider himself to be very

23 experienced in the treatment of PVS

24 patients.

25 The reason I asked him that question




805



1 using the very words in the Second DCA's

2 opinion is to establish that the typical

3 neurologist is not very experienced in the

4 treatment of PVS patients.

5 Underlying the rationale of the Second

6 DCA's opinion is the assumption that it's

7 neurologists who treat these patients. In

8 fact, we've learned otherwise in this

9 courtroom with the exception of a person

10 like Dr. Hammesfhar who happens to be a

11 neurologist.

12 Neurologists tend as a group to treat

13 in the acute care phase. They tend to be

14 more diagnosticians. More diagnosticians

15 than they are treating doctors.

16 So by contrast, both Dr. Hammesfhar and

17 Dr. Maxfield have years of experience.

18 Dr. Hammesfhar said that he had treated

19 probably a couple thousand patients with

20 various forms of brain insult or injury to

21 get better. He has moved beyond diagnosis

22 for treatment.

23 That's the only testimony, the only

24 qualified testimony before the Court. It

25 would be different if these other three




806



1 physicians said, Oh, yes, I've been trying

2 to devise a regimen for 15 years and I just

3 can't find anything that will work. So I

4 know that what I've tried these regimens A

5 through L do not work. That's not what they

6 testified to.

7 What they said is, I don't know of any.

8 I haven't tried anything, but I don't know

9 of any. And I know that whatever they're

10 saying won't work.

11 Now, the Court should take note of the

12 fact that neither Dr. Hammesfhar nor

13 Dr. Maxfield impugned the integrity of the

14 other physicians in this case. They were --

15 all of these doctors were furnished with one

16 another's reports.

17 Neither Hammesfhar nor Maxfield called

18 the other doctors names as Dr. Cranford

19 impugned their integrity. The Court perhaps

20 observed yesterday afternoon Dr. Cranford's

21 really quite inexplicable animus towards

22 Dr. Hammesfhar and Dr. Maxfield and a third

23 doctor, Dr. Burke, whose letter to the

24 editor was printed in the Neurology Journal

25 criticizing Dr. Cranford's work on the




807



1 minimally conscious state.

2 He criticized Dr. Burke and dismissed

3 him for always bringing up the lessons

4 learned in the Nuremberg trial. Dr. Cranford

5 exhibited on the stand yesterday a

6 temperament that beseeched a closed mind.

7 And he takes personal umbrage at anyone

8 who suggests in any way that he doesn't know

9 everything. He's sure that nothing can be

10 done for these patients, but Dr. Cranford

11 offers no explanation for the patients who

12 emerge from PVS.

13 And you will recall it was under

14 Mr. Felos' questioning that Dr. Cranford

15 discussed the documented instances of

16 emergence from PVS. Are those miraculous

17 cases or is it more likely as the British

18 study suggests, the study done by

19 Dr. Andrews of the Royal Neuro Disability

20 Hospital? I think that is Exhibit 19, if

21 I'm not mistaken.

22 Is it a case of misdiagnosis?

23 Dr. Cranford himself acknowledged that we're

24 not dealing with certainty in misdiagnosis

25 although he's really certain on Terri. But




808



1 bear in mind, she's showing signs of

2 awareness. She's showing signs of

3 reactivity.

4 And she has had zero help. She's had

5 no therapy to help her get better. Is it

6 fair? Is it equitable to say, You can't get

7 better? You've got brain damage and we're

8 not going to help you even try to get

9 better.

10 Frankly, Dr. Cranford, who was so sure

11 that nothing could ever be done to help

12 these patient is not really credible on that

13 point, because you will recall that I asked

14 him if he was familiar with the recent

15 studies of a large group of PVS patients and

16 the use of bromocriptine which as he said is

17 a neuro-stimulator.

18 He was familiar with that study, and

19 no, he wasn't familiar with it. He doesn't

20 actually have to see the scans. You will

21 recall I offered him the opportunity to

22 compare side-by-side the '96 CT scan and the

23 '02 CT scan and he just dismissed that.

24 He's got a closed mind on the subject

25 because he has an agenda. He came to




809



1 Florida not so much to talk about Terri

2 Schiavo, but to talk about his agenda, his

3 area of expertise, which is the termination

4 of the life of disabled people that he's

5 been working on for 25 years now.

6 This is why he flies all over the

7 country and he tries to disguise litigation

8 engagements as following the patient. You

9 will recall he said he was following 10 or

10 20 patients in Minnesota and all around the

11 country.

12 What he really meant was, I've been

13 retained to testify in court cases either

14 like this or retained in tort cases usually

15 by the insurance company to establish that

16 these patients won't live very long. That's

17 what he does for a living. That's what he

18 means by following patients.

19 Another ground on which the Court can

20 analyze his testimony and I've already

21 mentioned it is the opportunity to observe.

22 Dr. Gambone testified he tries to get in to

23 see her about every four months, spends

24 about 20 minutes, half of that time with the

25 patient and half talking to the nurses. So




810



1 it literally works out to 30 minutes a year.

2 And, again, he's never seen her in the

3 presence of her parents or her siblings. So

4 it's a small wonder that Dr. Gambone

5 practically jumped out of his skin on the

6 witness stand when he saw the Hammesfhar

7 videotape. He had never seen Terri like

8 that.

9 Dr. Hammesfhar spent about four hours

10 examining her, plus he had observed her on

11 one previous day. The Court will recall

12 that you permitted the physicians to observe

13 Terri to try to establish a rapport to give

14 the doctor to lay a plan before they

15 actually examined her.

16 Dr. Hammesfhar spent about four hours

17 with Terri, which is probably the longest

18 period of time since she got sick that any

19 single doctor has spent with her.

20 All you have to do is look at that

21 videotape to see how careful and methodical

22 and compassionate, how compassionate he was

23 in dealing with her.

24 Dr. Maxfield, who is a neuroradiologist

25 of unquestioned credentials and




811



1 unquestionable credentials testified that he

2 spent three days, three different days in

3 succession last spring observing her.

4 He observed her react to the piano

5 music. He observed her reacting to her

6 mother. And he went back because he's not a

7 hands-on neurologist, he went back for the

8 videotaped examination and once again she

9 exhibited reactivity to her environment.

10 It was in his videotape that probably

11 the most wrenching, the most wrenching image

12 occurs and that is when her father speaks to

13 her about her lazy eye. How as a small

14 child she used to let her eye roam out just

15 to torment her mother and her mother would

16 say, Terri, stop it.

17 Terri laughed. She laughed when her

18 dad was talking to her about that. She

19 laughed two times and then she began to cry.

20 Dr. Cranford and Dr. Greer will tell

21 you reflex an appropriate response. Reflex

22 does not mean either through the higher

23 structures of the brain. How coincident

24 that she laughed and then cried about that

25 story.




812



1 You've got a total of about, oh, I

2 guess four-and-a-half hours of videotape.

3 You don't see that. You don't see

4 inappropriate non-stimulus induced behavior.

5 The only other time on these videos

6 when you see Terri laugh and she laughs

7 twice when she hears that piano music that's

8 played at the beginning of the Hammesfhar

9 video. And yet these doctors will have you

10 believe that's coincidence. No awareness.

11 Judge, there are some things that the

12 finder of fact need not receive the expert

13 testimony. The fundamental rule of expert

14 testimony, in fact, is that it has to be on

15 an issue that is beyond the kin of the

16 ordinary person.

17 You don't need to have an expert

18 witness tell you what your eyes tell you.

19 Your eyes tell you, your intellect tells you

20 when you look at these videotapes she's

21 reacting to her environment.

22 There is an image early on in the

23 Hammesfhar tape when her mother comes in and

24 begins manhandling her around fixing her

25 pillows and so forth. Terri looks up in her




813



1 mother's face with a look of pure love and

2 her mother looks back at her with the same

3 look.

4 It's a startling image. You read the

5 record in this case up until the moment you

6 see that image and you think that Terri

7 Schiavo is a vegetable. Is a carrot. You

8 see that image and it does not square with

9 what so many people have been thinking all

10 these months she was like.

11 She's not a vegetable. She's not a

12 houseplant that turns to the sun because her

13 mother comes into the room. She's not an

14 inanimate, insensate object. She does not

15 lack personhood.

16 Dr. Bambakidis' plane, as you will

17 recall, was delayed. He and Dr. Cranford

18 both examined Terri on the afternoon and

19 evening of July 9th. There was a big

20 hearing scheduled on July 10th. They flew

21 in for that hearing and took the opportunity

22 to go and see Terri at Hospice.

23 In Dr. Bambakidis' case he got delayed

24 for three hours on the ground in Charlotte

25 and his examination only lasted about 30




814



1 minutes. By the time he got to Hospice, her

2 parents had already gone home so he, like

3 Dr. Gambone, did not see Terri in the

4 presence of her parents.

5 Dr. Bambakidis did a very thorough

6 record review of the records that he was

7 furnished and you'll recall that he did note

8 that Terri had originally presented with a

9 rigid neck at the emergency room back in

10 1990 when she collapsed.

11 He noted that she was contracted all

12 over and opined that her neck had

13 contractures. But then I asked him, Do you

14 remember that admission summary at Northside

15 Hospital in February of '90 somebody found

16 it unusual enough to make a note that she

17 presented with a rigid neck.

18 Contractures take months, if not years,

19 to develop. She came into the hospital with

20 a rigid neck. Maybe it resolved during the

21 intervening nearly 13 years now and it's

22 back. Who knows. We know for sure that on

23 this chart there's not been any attention

24 being paid to it.

25 And, in fact, Dr. Hammesfhar believes




815



1 there's an injury in her neck, an

2 undiagnosed, untreated injury in her neck.

3 Do you recall the cluster of symptoms, the

4 excessive sweating, the facial rashes or

5 ache, and the cyanotic toes?

6 That particular cluster of symptoms is

7 a documented indicator of a spinal cord

8 injury. Dr. Bambakidis acknowledged it.

9 Dr. Hammesfhar testified about it.

10 Dr. Greer had never heard of it. I

11 don't know, maybe he doesn't treat patients

12 who have spinal cord injuries. He only

13 spent 45 minutes with her and not in the

14 presence of her mother.

15 He only saw her one time. And he

16 really came close to saying it wouldn't be

17 necessary for him to examine her clinically.

18 He can just rely on the records because,

19 after all, the records are trustworthy. The

20 records have been basically written at the

21 instruction of Michael Schiavo.

22 And there are doctors' opinions in

23 those records. Again, it's that

24 unwillingness to look at the patient with

25 fresh eyes. What's going on with this




816



1 patient? Why is her neck so swollen and

2 rigid? Why are her toes sort of Wedgewood

3 blue, clearly visible in the Hammesfhar

4 video?

5 Dr. Hammesfhar testified that these

6 types of exams take a long time.

7 Dr. Bambakidis and Cranford and Greer all

8 agreed that the diagnosis is time dependent

9 in PVS. It's time dependent because the

10 patient's reaction can vary from day-to-day

11 and hour-to-hour.

12 On the one hand, they acknowledge that

13 that's the case. On the other hand, seeing

14 her for 30 minutes on the day when she

15 appears to have had a cold is adequate time

16 for Terri Schiavo because, after all, she's

17 in PVS. That's in her records for 12 years.

18 She's in PVS. No need to take a fresh look

19 at her.

20 If you'll recall a week ago when we

21 went through the entire Hammesfhar videotape

22 up until about the last 30 minutes, I think,

23 Terri -- there's a noticeable shift in her

24 body language, in her facial expression, in

25 the orientation of her head about 45 minutes




817



1 into that exam. From about 11:35 to about

2 12:10, 12:15 or so.

3 Dr. Hammesfhar is working on her arm,

4 massaging that contracted left arm. You can

5 see it happen. You can see it happen on the

6 video. When she feels the release of that

7 pain her chin comes down, she turns her head

8 to the left at his direction. It is subtle,

9 but if you know what's happening it's

10 dramatic. It's as though she's saying, Hey,

11 who are you? It is the first release of

12 pain that she's had in so many years, Judge.

13 He testified that at that moment she

14 began to focus on him and began to pay

15 attention to him. And he also testified,

16 you'll recall, Judge, that she cooperated in

17 the exam. She did things that are

18 difficult. She tried.

19 He told her to squeeze her eyes shut

20 and hold them shut and she did that. Try

21 that on yourself, Judge. That's a hard

22 thing to do.

23 Dr. Greer is the only one who commented

24 on that besides Dr. Hammesfhar. Dr. Greer

25 said, oh, that's reflex. Well, try that.




818



1 Squeeze your eyes together. And if it's not

2 voluntary and you try to pull them apart

3 they don't come apart.

4 The fact is that he could not open up

5 her eyes with his finger, one finger on the

6 bottom and one finger on the top. The fact

7 that he could not do that indicates she was

8 following a command.

9 What precious little brain tissue she

10 has left she was acknowledging his command.

11 That's the kind of observation, Judge, that

12 common sense tells you that had to have been

13 on command.

14 You didn't see her squeeze her eyes

15 shut like that anyplace else in the totality

16 of the four-and-a-half hours of videotape.

17 You don't see her eyes sort of rolling

18 around in her head throughout these

19 examinations.

20 Observe how closely she attended to

21 Dr. Hammesfhar once he gave her some pain

22 relief right after he gets the arm extended

23 almost to 160 degrees, he said about 160, a

24 thing that could not ever happen, according

25 to Dr. Greer. No one could ever get any of




819



1 her limbs extended properly. These are

2 permanent contractures. Nothing could be

3 done for them.

4 Which, frankly, in my mind, makes me

5 wonder if he was telling the truth when he

6 said that he looked at the videotape or if

7 he did look at it if he could remember that

8 he looked at it or remember what he saw.

9 If you look at Terri's eyes right after

10 Dr. Hammesfahr gets that arm extended he

11 stands up to go get the blood pressure cuff.

12 He comes around to the foot of the bed

13 talking to the videographer. Her eyes

14 following him. You can see it on that tape.

15 She follows him. There are other places on

16 the tape where she turns, she turns and

17 follows his voice.

18 In evaluating these five physicians'

19 testimony then you have to factor in how

20 much time did each have to observe Terri?

21 If he was in there for 10 minutes, you're

22 not going to see much reaction out of her or

23 even 30 unless her mom comes in. It doesn't

24 happen. That's not who she is.

25 But given the frantic pace and the




820



1 caseload of physicians today, nobody has

2 time to go and spend time with her and

3 establish a patient rapport and do what

4 Dr. Hammesfhar did.

5 He's demonstrated for not just this

6 Court, but the whole world the truth, the

7 inadvertent truth of Dr. Cranford's

8 statement from 10 years ago. We are not

9 dealing with certainties in this diagnosis.

10 Another category, another filter,

11 another judging function is to consider the

12 demeanor of witnesses. I've already spoken

13 about Dr. Gambone's sort of emotional

14 meltdown almost on the stand.

15 I think his was a honest response. I

16 think he was honestly surprised by what he

17 saw in that exam. In fact, he said, I've

18 never seen her do this. She's never reacted

19 to me this way and I had no idea that

20 anybody else could get a reaction like that

21 out of her. I think, frankly, he was

22 slightly horrified.

23 Dr. Hammesfhar was on the stand for

24 about 10 hours of testimony. He's in his

25 mid-40s. He is -- he projects honesty and




821



1 sincerity and compassion for his patients.

2 He has chosen a different path, there is no

3 question.

4 All of these doctors have good training

5 credentials. His credentials are just as

6 good as any of these other doctors, but he

7 chose not to work in the institutional

8 setting. He chose to strike off on his own

9 after he finished his fellowship training.

10 And because he's not dead between the

11 ears, he began noticing some interesting

12 results in patients and he explored it.

13 He didn't say, my eyes must be

14 deceiving me. I didn't learn this in

15 medical school. This can't be happening.

16 He explored it.

17 Dr. Maxfield, a 50-year physician.

18 Fifty years. Absolutely sterling

19 credentials. Johns Hopkins, the Oschner

20 Foundation, Tulane, LSU.

21 You may recall, Judge, and I think that

22 you probably took some notes about his

23 credentials, that he set up the U.S. Navy's

24 nuclear decontamination program back in 1956

25 when the Navy launched its first




822



1 nuclear-powered submarine, Nautilus.

2 His testimony was clear. It was

3 unequivocal and it was knowledgable. There

4 is no doubt that Dr. Maxfield knows what

5 he's talking about in radiology and nuclear

6 medicine.

7 And this is the man who is, as he said

8 in his deposition, he's only working half

9 time now that he's in his 70s, a mere 12

10 hours a day.

11 He also has that intellect that you see

12 occasionally in some doctors of his

13 generation, a total commitment to his job.

14 He's probably not a fun guy at a party. All

15 he does is work. That's all he cares about.

16 But because he's been at it so long it

17 is really quite phenomenal for Dr. Cranford

18 to have said Dr. Maxfield was incompetent.

19 Many adjectives might describe Dr. Maxfield,

20 that's not one of them and yet that's what

21 Dr. Cranford called him.

22 Now, Dr. Greer has a very distinguished

23 career behind him, but I really don't think

24 that he has any independent memory of this

25 case. I'm not sure if you noticed it,




823



1 Judge, but when Dr. Greer sat down on the

2 witness stand just as Mr. Felos asked him to

3 define PVS he dropped his notes. They went

4 into the witness box and sort of shuffled

5 his notes around his feet.

6 So the first 15 or 20 seconds of that

7 answer he was just filling air time while he

8 frantically scrambled to get his notes back

9 together. You'll recall that when I asked

10 to see that notes on cross-examination and

11 we marked it and made it an exhibit and

12 after that I wouldn't let him look at his

13 notes. I asked him to test his memory. He

14 did not have a memory. He did not have an

15 independent memory.

16 You remember he didn't know what her

17 eye color was. She has huge brown eyes. If

18 you remember nothing else about her you

19 remember that. You got the impression that

20 this was a very senior, distinguished

21 professor who was greatly annoyed that he

22 had to be here.

23 And, in fact, apparently at his request

24 Dr. Felos tried to cut short his

25 cross-examination because he had an




824



1 important business elsewhere unlike this

2 foolishness here where it's only a matter of

3 life or death.

4 Frankly, I don't think Dr. Greer had

5 looked at those videotapes. He said he had,

6 but the content of his answers indicated to

7 me that he had not. He referred to

8 Dr. Maxfield's exam as only lasting a

9 minute-and-a-half. I don't know what that

10 was based on, unless Mr. Felos had showed

11 him a clip, one of the clips.

12 But both of the clips that are in

13 evidence from the Maxfield exam are longer

14 than a minute-and-a-half, so I don't know

15 what Dr. Greer was referring to. Maybe he

16 turned his VCR off or left the room or

17 something. I don't know.

18 But he also said that Dr. Hammesfhar

19 started his examination about 12:30, which

20 is about an hour and 15 minutes into

21 Dr. Hammesfahr's exam.

22 So any testimony from him that is based

23 on his observation of the video I think has

24 to be totally disregarded because I just

25 don't think that he looked at the videos.




825



1 If he did look at them, Judge, he flatly had

2 no memory of what he had seen when he sat in

3 that witness stand.

4 And why is the University of Florida

5 getting the money that he's charging against

6 Terri's medical fund? I could not make

7 heads or tails, frankly, about his answer

8 about a class of cases that the university

9 bills on, including this one, versus a class

10 of cases that his private company bills on.

11 Now he seemed to be saying that the

12 University gets the income if it's a

13 teaching function. The University gets the

14 benefit of his labor. So I guess what he

15 was saying was that the University gets this

16 income because he was teaching us, I guess.

17 He also said that he does not put the

18 weight of the University's name on his

19 testimony in those cases that he bills

20 through his private company. You will

21 recall it was pretty evasive. No, he was

22 downright evasive about how much money he

23 makes. How much he bills for that company.

24 Now, Dr. Cranford is almost in a

25 special category. He was long-winded. He




826



1 speechified at every opportunity. He gave

2 non-responsive answers.

3 His demeanor on the stand became more

4 unusual as the day wore on yesterday. By

5 the end of the day, I don't know if you

6 noticed it, Judge, his face was bright red

7 and he was holding his head.

8 Earlier he had started stroking his

9 thigh. He engaged in some very unusual body

10 language that said to me that he was

11 agitated. I think what he was agitated

12 about was that I confronted him with a clear

13 pattern of this death scheme that he's been

14 formulating for 20 or 25 years.

15 You'll recall that he had an outburst

16 on the stand, a couple of outbursts and used

17 abusive language. I asked him to stop

18 calling his professional colleagues names.

19 And then he did it again and the Court had

20 to admonish him about it.

21 But even after that he almost was

22 sputtering about the idea the someone had

23 the affrontery to say that Terri Schiavo

24 might be helped.

25 In the world of Ronald Cranford, these




827



1 patients should be eliminated. They need to

2 be eliminated. They are a drag on society

3 and he's written a lot about that, Judge.

4 He calls Dr. Maxfield incompetent even

5 though it didn't seem to have registered on

6 him that Dr. Maxfield is a 50-year

7 radiologist.

8 So we come to this question, is help

9 available for Terri? In a way the Second

10 DCA has stacked the deck against it. It has

11 to be new therapy, but it has to be accepted

12 in the literature.

13 Dr. Maxfield testified that it probably

14 takes six to eight years from the time that

15 there are research findings to the time that

16 the actual practice has changed.

17 So, if it must be new can it be

18 accepted in the literature? If it's

19 accepted in the literature can it be new?

20 Are they mutually exclusive? What does the

21 Second DCA mean?

22 Well, the best way to answer that

23 question is to listen to what Dr. Maxfield

24 and Dr. Hammesfhar had to say.

25 Dr. Hammesfhar who testified a week ago




828



1 yesterday said that he's treated 2 to 3000

2 patients using this therapy which he has a

3 patent on, you will recall.

4 Basically what happens is when the

5 brain is injured is that the body loses the

6 ability to engage in what's called

7 autoregulation, that is, the blood vessels'

8 ability to dilate and constrict to

9 compensate as they do over the course of the

10 day in a normal person in a normal brain.

11 If the brain is injured, the brain

12 loses that ability to make it -- to expand

13 blood vessels and constrict blood vessels.

14 In the simplest terms, his vasodilation

15 therapy replaces the body's autoregulation

16 response where it's been destroyed.

17 His therapy was -- the idea behind his

18 therapy were tried about 20 years ago and

19 failed. He has succeeded, he testified, for

20 two reasons; the medications are different

21 and better and the technology has improved.

22 Now, it's a false hypothesis to say

23 that either Dr. Hammesfhar or Dr. Maxfield

24 said that their therapy, either hyperbaric

25 or with vasodilation therapy, will bring




829



1 back to life dead brain cells. That's not

2 what either one of them said.

3 They both spoke about the brain's

4 penumbra. This is an area of reversible

5 damage clearly documented in the literature.

6 Clearly vasodilators are used in heart

7 attacks. Nitroglycerin is a vasodilator.

8 It's used in heart attacks to relieve the

9 pain in heart attacks.

10 You get that same dilation effect with

11 brain injuries. He is simply using cardiac

12 medications in the brain setting.

13 Current research, and by current I mean

14 in the last five years or so, that this area

15 of the penumbra is much larger and much more

16 longer lasting than previously thought.

17 When Dr. Greer said a penumbra lasts

18 from 24 to 48 hours after a stroke what you

19 were hearing there was a voice from the

20 past. That's the way medicine thought in

21 the 1950s. That is not current thinking.

22 The literature in evidence will show that.

23 Dr. Hammesfhar also testified that

24 it's now been established in a research

25 setting that you can decrease blood pressure




830



1 without decreasing blood flow to the brain,

2 which had previously been thought to be a

3 problem.

4 He testified that he can -- there have

5 been these huge changes in the treatment of

6 strokes in Project Access and Project HOPE.

7 Progress and Access actually are the three

8 big trials that have just dramatically

9 changed the way strokes are treated in the

10 last year or so.

11 He testified about those trials and

12 said we know now from these big trials that

13 we can treat the blood vessels in the brain

14 in order to treat or prevent a stroke.

15 The medications being tested in those

16 trials has a direct effect on the brain's

17 blood vessels. Those findings confirm

18 Dr. Hammesfhar's theories and practice.

19 Don't forget that he has some patients

20 in the audience when he described to the

21 Court what they were like when they came in

22 and you saw them for yourself. One of these

23 patients has been here every day this week

24 and last week.

25 You'll recall that he talked about




831



1 perfusion, that's a word P-E-R-F-U-S-I-O-N.

2 That means blood flow. All of these doctors

3 seem to be outraged at the idea that

4 increasing blood flow in the brain would

5 somehow help the patient.

6 They apparently, from what I could make

7 out from their testimony, simply didn't

8 understand that he's not talking about dead

9 brain tissue. In fact, dead brain cells

10 tend to dissolve and be absorbed by the

11 body. They're not in the brain anymore.

12 What he's talking about is

13 revitalizing, bringing function back to

14 those idling or hibernating dysfunctional

15 cells in the penumbra.

16 The second big group of studies that

17 were admitted into evidence during

18 Dr. Hammesfahr's testimony relate to the use

19 of vasodilators and blood flow studies.

20 Now, when he began talking about his

21 examination of Terri he pointed out when I

22 asked him if she could be taught to

23 communicate because certainly she vocalizes

24 and she seemed to -- the vocalization does

25 not appear to be random. If you look at the




832



1 tapes you know when Dr. Cranford, for

2 example, pinched her to wake her up she

3 swopped a little bit. She had been quiet in

4 the exam up until that point. She

5 vocalized. That would be coincidence, I

6 guess.

7 Dr. Hammesfhar pointed out that by the

8 end of the examination he was convinced that

9 she is already communicating. She is

10 communicating the best way she knows how.

11 She follows commands to the extent that you

12 give her time to respond.

13 She clearly was talking. You can see

14 it on his tape. She has gaze preference.

15 She's responding to different communications

16 techniques he testifies. So she's not

17 starting at ground zero. Her IQ is not

18 zero.

19 And he pointed out the difficulty of

20 crossing that language barrier that exists

21 between the severely brain-damaged patient

22 and somebody that wants to help that patient

23 get better you have to learn -- you the

24 therapist have to learn devise techniques to

25 communicate with that patient. That's just




833



1 standard SOP. That is nothing unusual.

2 Now, who would ever have thought that

3 Dr. Melvin Greer, a man of his stature would

4 never have heard of Stephen Hawking? Who

5 would have ever suspected that?

6 Dr. Cranford had. He went on at some

7 length about how Stephen Hawking is the most

8 famous example of locked-in syndrome.

9 Dr. Greer, however, said it would be

10 very rare to use the communication board

11 with a brain-damaged patient. The fact that

12 is what they're invented for. That's

13 what -- that's what the good is that they

14 can do.

15 Terri may be on the point where with

16 just a little bit of work she could be

17 brought sufficiently up to cognitive

18 function that she can tell us, take my

19 feeding tube out and let me depart this

20 plane of existence or help. Please help me.

21 Wouldn't it be good if Terri could tell

22 us. Wouldn't it be good if never again a

23 lawyer stood up in court and compared her to

24 a houseplant.

25 Dr. Hammesfhar also at one point in the




834



1 examination took the paper towel rolls out

2 of her hand or the toilet paper rolls or

3 whatever they are and put his finger in

4 there and gave her the command to squeeze if

5 she could.

6 He testified that there's a tiny little

7 movement in her thumb that you can see on

8 the videotape if you watch it over and over

9 again. He testified that there was a little

10 slight pressure at that point in the

11 examination. And there is no doubt in his

12 mind, there is no doubt that she squeezed

13 his finger as much as she could. As much as

14 she could, particularly given the

15 possibility that she has an undiagnosed,

16 untreated neck injury.

17 He pointed out that PVS patients don't

18 squeeze hands. They don't open eyes on

19 command. And then there's part of the

20 videotape where he said to her, Give me a

21 wide-eyed stare, Terri. Can you open your

22 eyes real wide? Could you do it? And he

23 waits for her to do it and she finally does

24 it and her eyebrows go up and she's got this

25 look of triumph on her face that you just




835



1 can't deny. That would be another

2 coincidence, though, according to the

3 doctors who are emissaries from the flat

4 earth society.

5 You know, Judge, there must have been

6 people standing on the beach at Kitty Hawk,

7 North Carolina in 1903 telling those Wright

8 brothers that their plane is not going to

9 fly. It's not going to get off the ground.

10 You've got to be crazy. I know this is not

11 going to work. There are always those who

12 resist or do not foresee progress.

13 In today's medical research

14 environment, though, there has been an

15 absolutely exponential explosion of medical

16 knowledge. I invite the Court to go online

17 to PubMed which is tied into the National

18 Library of Medical -- National Institute of

19 Health and use stem cell and brain as

20 research terms. Type those as research

21 terms. You will have your socks knocked off

22 about what's been published this year.

23 Dr. Hammesfhar testified that if he had

24 to give her a descriptive diagnosis he would

25 say that she is partially receptive aphasic.




836



1 And that she is expressively aphasic. He

2 takes notes of her impaired vision and that

3 she has little voluntary motion.

4 He doesn't write her off. He doesn't

5 say there is nothing I can do to help her or

6 anyone else. He testified she is aware and

7 that's the difference with someone who is in

8 a persistent vegetative state.

9 He said in a way she reminds him of a

10 person who is in -- who does suffer from the

11 locked-in syndrome because she's more of a

12 face without a body, although she can move

13 her body somewhat.

14 He was surprised and excited when he

15 was testing her strength in her lower

16 extremities and she was able to push against

17 gravity, against his hand when he asked her

18 to.

19 There's a part of his exam where he

20 feels it and he says to her, good job. And

21 then he is concentrating and he doesn't say

22 much on the tape, but he's trying to figure

23 out a way to show that it's not a springing

24 action.

25 So when he removes his hand, he removes




837



1 it laterally and her leg goes up. It is a

2 dramatic moment on that video. In his mind

3 he testified that's probably the single most

4 dramatic response that she gave him. The

5 idea that after all these years with no

6 therapy she is still able to do that he

7 found extraordinary.

8 He testified that she doesn't have

9 doll's eyes, you will remember he talked

10 about that. They're not fixed like they're

11 in -- like she's in a deep coma. As he put

12 it, her eyes go wherever she wants them to

13 go.

14 I showed him some of Dr. Cranford's

15 examination, particularly the part with the

16 balloon, and Dr. Hammesfhar said that's

17 really not fair to do to a brain-injured

18 person, to give them rapid commands like

19 that. And particularly to give them

20 conflicting commands or two-part commands.

21 Dr. Cranford since acknowledged that

22 his exam was defective. Dr. Greer

23 acknowledged also it would not be fair to

24 step on the response time for a

25 brain-injured patient during this kind of




838



1 exam.

2 His opinion after this exam was that

3 she is not in PVS. His opinion further is

4 that he thinks she will improve with this

5 therapy. He does not make any guarantees

6 about which area will improve first or to

7 what degree it will improve, but given his

8 limited access to her and what he has been

9 able to determine so far, he's relatively

10 confident that he can help her.

11 Now, on cross-examination he refined

12 that testimony a bit and said, with our

13 therapy I cannot be sure which areas will

14 improve and the degree of improvement.

15 But he's even more sure now after

16 having examined her that she's not in PVS

17 and that he could help her.

18 It was significant to Dr. Hammesfhar

19 also that when Terri was at Mediplex back in

20 1991 or '92, I guess, before the malpractice

21 trial occurred, significant to

22 Dr. Hammesfhar is that her medical records

23 from Mediplex showed that she spoke some

24 words during her therapy, which meant that

25 post-injury she had speech capability,




839



1 post-injury.

2 The fact that she's not speaking today

3 may or may not be a function of the fact

4 that she's received no speech therapy.

5 Would Terri be walking? Would she be

6 talking today? Would she at least be in

7 better shape than she is today if she had

8 been better treated?

9 That's a heartbreaking question to

10 consider, frankly.

11 On cross-examination Dr. Hammesfhar

12 clearly and specifically said that he does

13 not claim that his therapy regenerates dead

14 brain tissue. And he said increasing blood

15 flow to the dead brain will not regenerate

16 dead brain.

17 What he's talking about is the recovery

18 of dysfunctional idling cells inside that

19 penumbra. He's never claimed that his

20 therapy regenerates dead cells.

21 He testified that he has treated

22 probably about 100 patients over the years

23 with anoxic encephalopathy and that maybe 50

24 of those patients were as bad or worse than

25 Terri. And this is when he amused us and




840



1 his patients in the audience and described

2 what their course of treatments had been

3 like.

4 He also mentions stem cell therapy.

5 And in discussing this issue of how you

6 recover functioning in cells that are not

7 functioning and the difference between that

8 and regeneration he said that's the whole

9 idea behind stem cell therapy. You actually

10 grow new brain cells with stem cell therapy.

11 Now, he said his treatment might do

12 that, but it's speculation and anyway it's

13 not the point of this therapy. He doesn't

14 make that claim. His point is to get blood

15 into areas where, in the brain where

16 previously there has been restricted or no

17 blood flow.

18 And, of course, his findings about her

19 neck was very positive at 8:15 at night when

20 Mr. Felos was arguing with him about her

21 neck. Remember Dr. Hammesfhar put his hand

22 behind Terri's head and lifted her head, her

23 neck and her entire upper body off of the

24 bed as though she had an iron rod in her

25 spine running up into her skull. He lifted




841



1 it up straight as a board.

2 He was very certain on that stand, I

3 have never seen a neck like that with one

4 exception. It's not a normal neck. It's

5 not a contracted neck.

6 Now, in Dr. Maxfield's testimony -- did

7 you want to take a break, Judge?

8 THE COURT: No.

9 MS. ANDERSON: In Dr. Maxfield's

10 testimony he observed that it's taken 100

11 years to understand hyperbaric principles.

12 They've been around that long. And that in

13 this country Medicare and Medicaid who, by

14 the way, have approved Dr. Hammesfhar's

15 therapy for payment, that in this country

16 Medicare and Medicaid has identified 11

17 accepted uses for hyperbaric therapy whereas

18 in other parts of the world, specifically

19 Russia, I think he mentioned, there were 73

20 approved uses.

21 Ten or 15 years ago, hyperbaric was not

22 used for wound healing. Today it's standard

23 and routine. Is medical -- is the state of

24 medical knowledge a static thing? It is

25 not. It is not static.




842



1 Dr. Maxfield described to the Court

2 what a CT scan shows. It shows fluids

3 inside the skull, density of tissue inside

4 the skull and the measurements are done in

5 Hounsfield units.

6 He defined the CT scan with contrast

7 and without contrast and why you use it with

8 contrast. He said as far as actual brain

9 function goes that work is now being done

10 with spectroscopy and it's at the research

11 stage.

12 The best available right now is the

13 SPECT scan, which is not the same as the PET

14 scan. The SPECT scan, the tracer is carried

15 into the brain by the blood.

16 A regular scan does not indicate blood

17 flow because the scan is not done at the

18 time of the administration of the tracer.

19 So you can actually see the blood perfuse

20 into the brain.

21 The SPECT scan is used to evaluate the

22 pattern of functioning brain tissue. That's

23 what it's used for. Now, it does it by

24 means of following the blood flow.

25 The PET scan is the research technique




843



1 that gives us information about where

2 metabolic function of the brain is. It has

3 now become the gold standard, Dr. Maxfield

4 testified, in evaluating patients before

5 surgery. For example, in cancer because it

6 will show up a tumor.

7 In the PET scan glucose metabolism is

8 mentioned. None of the doctors who

9 testified, aside from Dr. Maxfield, are

10 familiar with SPECT scans. They don't use

11 them. They are used in hyperbaric therapy

12 because it is a means of measuring actual

13 functioning tissue in the brain.

14 Now, it's peculiar that they're not

15 used because they're a lot cheaper and

16 they're a lot more available than the PET

17 scans.

18 Dr. Maxfield testified that the first

19 day he observed her back in the springtime

20 she had a very marked reaction to piano

21 music. You remember he said that there was

22 a piano music at Hospice that day. And

23 Terri's bed was out in the hallway and she

24 had a marked reaction, he said, to the

25 music.




844



1 He said there was more facial movement

2 as if she were trying almost to make sounds

3 in time to the music. There was no doubt in

4 his mind that she was reacting.

5 When he compared the two ventricles or

6 compared the two scans from '96 and '02 he

7 gave very obviously knowledgeable testimony

8 about what he was looking at.

9 He said first of all the ventricles are

10 not significantly different in size. So

11 there has not been, as the ventricles

12 expand, loss of additional tissue. The

13 ventricles are about the same size now as

14 then.

15 What he did spot is that her brain in

16 several places appears more normal now than

17 it did six years ago. He testified that

18 there is more homogeneous appearance in the

19 brain tissue in the 2002 study than in the

20 '96 study.

21 It's certainly an abnormal brain, but

22 it has a more normal appearance. He said

23 there has been some regeneration of brain

24 tissue and noted that in medical school, and

25 bear in mind that he graduated in 1953, I




845



1 think, in medical school we were taught that

2 this was not possible, but recent studies

3 are showing that it is.

4 You may recall that he discussed the

5 animal trials that are being done at the

6 University of Pittsburg where they severed

7 the spinal column of the rats and after

8 treating them they come back or are able to

9 move their lower bodies.

10 He has reviewed, he said, probably

11 20,000 brain studies over the years. He has

12 very frequently reviewed studies of the

13 anoxic encephalopathy brain.

14 Now, he has looked at CT scans of

15 patients who are receiving hyperbaric oxygen

16 therapy. And he says there is a good

17 correlation between the clinical symptoms

18 that the patient exhibits and changes in the

19 scan.

20 The brain becomes more normal in

21 appearance with improvements. He mentions

22 the penumbra also. This has been described

23 as the penumbra surrounding brain damage.

24 And it shows on the CT scan.

25 He noted that in her occipital lobes




846



1 which are at the back of the skull that this

2 is the clinical pattern that occurs with

3 damage to the occipitals and would probably

4 result in partial blindness.

5 He discussed the cerebral hemispheres

6 and the cerebellum and the temporal lobes

7 and the frontal lobes and the parietal

8 lobes. He pointed each of these structures

9 in the brain out.

10 And then I asked him if she had tissue

11 in all of those areas and he said yes to

12 some greater or lesser extent. I asked him

13 to rank order the tissue that she has from

14 the most damaged to the least damaged and he

15 rank ordered it this way: The occipital

16 lobes, the cerebral cortex where motor

17 function is controlled, the frontal lobes,

18 cerebellum, and then basal gangliar.

19 So she's got tissue in all the areas of

20 her brain to some greater or lesser extent.

21 He said we see localization. Remember that

22 word, localization. That's a word that

23 refers to the physical phenomenon of a

24 tracer in effect illuminating structures

25 inside the brain by getting into the tissue.




847



1 If there's no tissue there you're not

2 going to see it on the scan. There's not

3 going to be anything on the scan. That's

4 why in the ventricles on these studies you

5 don't see any tissue because it's fluid.

6 In order to see the tissue you're

7 seeing the tracer as it localizes, it's

8 called. He said we see localization in all

9 areas of the brain although it is not

10 normal. It is not a normal brain by any

11 stretch of the imagination, but he's

12 confident that there is viable tissue in all

13 areas of Terri's brain.

14 He also said that when you compare this

15 CT scan, the '02 CT scan, that Mr. Bailiff

16 is moving around now right, thank you, when

17 you compare the '02 CT scan to the SPECT

18 scan they are -- they confirm each other.

19 There is blood flow that shows up in

20 the SPECT scan in areas on the CT scan that

21 shows that there is tissue. So there is

22 viable tissue. It is getting some blood

23 flow. And so the question becomes, Would

24 she benefit from therapy to the point where

25 you could recover function?




848



1 And he points out that the degree of

2 localization is the function of degree of

3 how much the particular brain tissue is

4 viable. The better it's working, the more

5 localization there's going to be. There

6 will be decreased localization.

7 And that's why these areas are faint.

8 There are areas of faint localization in

9 Terri's brain. Given these laboratory

10 findings, these imaging findings,

11 Dr. Maxfield testified that he would expect

12 her to have some degree of awareness, given

13 this much brain tissue and this much

14 localization.

15 He said there is pretty good

16 localization in the front of the brain in

17 these images up here. And there is less in

18 the back which would be consistent with her

19 partial blindness because if she has damage

20 in the occipital lobes that's where the

21 sight functions are.

22 He has himself personally seen

23 improvement in more hypoxic and anoxic scans

24 that were worse than this. Now, he pointed

25 out that there are more than 23,000 articles




849



1 concerning hyperbaric medicine. He can't

2 read them all, but he does try to keep

3 current on them.

4 He mentioned, as you will recall,

5 Judge, the International Hyperbaric

6 Conference that had been held in San

7 Francisco, what, I guess it was two weekends

8 ago now.

9 There's a laboratory of some doctors in

10 Mexico who are using stem cells and

11 hyperbaric therapy on brain and spinal cord

12 injuries. And they have a case study that

13 they presented at that symposium where a man

14 who had been paralyzed for three years with

15 that combination of therapy is walking.

16 So we're right on the edge and I think

17 you only have to look at Christopher Reeves

18 to realize that, you know, these days what

19 absolutely to a moral certainty everybody

20 knew could not be done yesterday is going to

21 be done tomorrow.

22 Dr. Maxfield made that point, that what

23 we knew or thought we knew about the central

24 nervous system is just no longer true. He

25 pointed out that at Harvard, at the




850



1 Cleveland Clinic and even at the Hennepin

2 Medical Center where Dr. Cranford works

3 there is hyperbaric research going on right

4 now, according to the current trials and

5 publications.

6 He has seen some papers in the

7 literature. He also pointed out that there

8 is about an average of between one and two

9 years between the time a paper is presented

10 at a journal, which is usually the first way

11 that physicians share knowledge with each

12 other. It's usually done as a presentation.

13 So there's a one to two-year lag time

14 at that point and then there is a

15 significant lag time after that to get the

16 paper into publication and then into

17 practice.

18 So it is Dr. Maxfield's opinion that

19 there's a significant probability she would

20 improve with hyperbaric oxygen therapy based

21 on the scans and the examination and

22 observations of the patient.

23 Now, he mentioned that International

24 Conference the week before and said that

25 hyperbaric oxygen is showing real promise in