851



1 the area of brain repair and it definitely

2 would revolutionize the treatment of

3 brain-injured patients.

4 He said there are clinical trials under

5 way and they are producing spectacular

6 results. Dr. Maxfield, as I'm sure you

7 observed, Judge, is not a person who is

8 given to much expressiveness. If he says

9 there are spectacular results that's because

10 there are. It would not be a word that you

11 would expect him to use.

12 He did not testify outside of his area

13 of expertise. He testified about his

14 experience, his knowledge and his training.

15 He noted also that Terri can swallow.

16 Mr. Felos on cross-examination asked him if

17 there are live blood vessels that are

18 surrounded by dead tissue. In other words,

19 if the brain could be dead, but there still

20 could be blood vessels that you could show

21 in one of these scans.

22 And Dr. Maxfield's answer to that was,

23 Well, that might be possible for a time, but

24 that's not the pattern that we've seen. So,

25 if you're seeing blood flow in the brain, if




852



1 you're seeing localization which is, after

2 all, how the tracer gets into the brain,

3 you're seeing viable cells.

4 Now, he noted that the PVS patient will

5 probably not have normal blood flow unless

6 it were a toxic situation. Dr. Maxfield

7 also flatly said you can't have blood flow

8 to connective tissue without working

9 neurons.

10 Now, he says specifically on cross, is

11 dead brain tissue revived? No. Penumbra

12 tissue is revived. Dead tissue does not

13 come back.

14 He says the difference between these

15 two scans gives the impression, and you can

16 see the differences, it's in these areas

17 right in here. The differences make it

18 appear that she has more tissue. It's

19 probably not that she has more tissue, it's

20 that for whatever reason and he said perhaps

21 the body's attempt to heal itself, for

22 whatever reason, some of those dysfunctional

23 cells are now functioning. They have been

24 brought back on line.

25 Are we so certain that we know




853



1 everything about the way the human brain

2 operates? Are we so certain that Terri can

3 never be helped? She's too far out? She

4 will never recover anything?

5 We don't know one-tenth. Maybe not

6 even one percent of what there is to know

7 about the complexity of the human brain.

8 It's the height of arrogance to sit on that

9 witness stand and pretend to know that which

10 is unknowable, namely, the claim to be able

11 to look inside her and see that she's not

12 aware.

13 There's no test for that. They agreed.

14 There is no way to test for inner awareness.

15 And imagine the agony she is feeling.

16 Now, Judge, she tried her hardest. She

17 tried her hardest. She has the right, the

18 statutory right, and retains that right even

19 though she's incapacitated, she retains the

20 right to rehabilitation.

21 Under 744.3215, a person who has been

22 determined to be incapacitated retains the

23 right, this is not a right that her husband

24 exercises on her behalf. She has it. To be

25 treated humanely with dignity and respect




854



1 and to be protected. To be protected

2 against abuse, neglect and exploitation and

3 to receive necessary services and

4 rehabilitation.

5 She's been medically neglected, Judge.

6 It's as though she's been on death row for

7 10 years. In fact, our prisoners on death

8 row get better medical care than she's

9 gotten right now. 30 minutes a year with a

10 doctor.

11 No teeth cleaning, no, you know, none

12 of the regular routine health maintenance

13 things that everybody gets. Some facts,

14 Judge, just don't need expert testimony.

15 Your judgment is just as valid as any

16 expert's. You don't need an expert to look

17 at those images and tell you that she's

18 responsive. That is not reflexive. It

19 would be the biggest strain of coincidences

20 ever if it were reflexive.

21 Do Terri and her mother love each

22 other? Obviously. Is Terri impaired? That

23 is also obvious. Is she in there? Is Terri

24 in there?

25 Now she's done her part, Judge. She




855



1 has shown us her spirit. She has tried as

2 hard as she could try under these

3 circumstances. She's trying to answer that

4 question that, Yes, I'm in here.

5 Now, Judge, would she try this hard if

6 she wanted to die? Wouldn't she already be

7 dead if she wanted to die? Wouldn't she

8 have given up and just expired?

9 When you look at these videotapes what

10 you see is a human spirit very nearly

11 crushed by most unimaginable circumstances

12 saying, Here I am. Here I am. I like that

13 balloon. I love my mother. I like piano

14 music.

15 She's a person, Judge. And the Court

16 has the heavy and unenviable duty of

17 figuring out what to do now. She's not

18 really had a chance.

19 Don't we owe her a chance, Judge?

20 Don't we own Terri Schiavo at long last a

21 chance to get better? Thank you, Judge.

22 THE COURT: Thank you. I don't know if

23 you underestimated your closing or if you

24 want more rebuttal time.

25 MS. ANDERSON: Let's see how much time,




856



1 about two hours and 20 minutes.

2 THE COURT: No, ma'am. Less than two

3 hours.

4 MS. ANDERSON: Okay.

5 THE COURT: Probably an hour and 45

6 minutes.

7 MS. ANDERSON: Great.

8 THE COURT: I really don't want to

9 break in the middle of your closing,

10 Mr. Felos. So would it be untoward if we

11 took an early lunch recess?

12 MR. FELOS: That's fine.

13 MS. ANDERSON: That's fine.

14 THE COURT: So let's say we'll be back

15 at 12:30 and then we'll get on with

16 Mr. Felos' closing. One question before we

17 leave, my notes are full of phonetic

18 spelling and medical terms. Would it be

19 fair to say that included in the exhibits

20 I'll be looking at will be the correct

21 spelling of all the medical terms we've had

22 in these past six days?

23 MS. ANDERSON: Yes. I have lost the

24 ability to pronounce encephalopathy today.

25 THE COURT: That was the first time.




857



1 You've done right well to this point.

2 Mr. Felos, the medical terms --

3 MR. FELOS: I don't know whether the

4 exhibits contain all the medical terms used,

5 Your Honor. I'm sure they contain many of

6 them.

7 THE COURT: Well, I just need a couple.

8 Some of them I'm not even sure where I start

9 in the dictionary. Okay. We will be in

10 recess until 12:30.

11 THE BAILIFF: All rise. The Court will

12 stand in recess until 12:30 p.m.

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

14 THE COURT: Mr. Felos, you may proceed

15 with your closing.

16 MR. FELOS: Thank you, Your Honor.

17 First on behalf of the Petitioner we would

18 like to thank the Court for its great care

19 and consideration throughout this difficult

20 proceeding.

21 Your Honor, of course this Court's

22 decision will depend heavily on the weight

23 of the testimony given by the expert

24 witnesses. And I think there is one way in

25 which to review that and get a feel for




858



1 that.

2 So I would ask the Court just to

3 indulge me for a moment. I don't know to

4 what extent Your Honor visualizes, but just

5 visualize for a moment, hypothetically, of

6 course, if you or your loved one had a

7 neurological incident and were in a facility

8 waiting for a doctor to come in to give you

9 an opinion or treat you who would you want

10 to see walk through that door?

11 Would you want to see Dr. Peter

12 Bambakidis walk through that door?

13 Dr. Melvin Greer walk through that door?

14 Would you like to see Dr. Ronald Cranford

15 walk through that door or would you like to

16 see Dr. William Hammesfahr or Dr. Maxfield

17 walk through your door?

18 Your Honor, I believe this week of

19 testimony shows that the doctors you would

20 want to see walk through that door are the

21 Dr. Bambakidis, the independent physician,

22 Drs. Greer and Cranford who have testified

23 here today.

24 Their stature in terms of credentials,

25 experience, vastly eclipse those of




859



1 Dr. Hammesfahr and Dr. Maxfield. I'm not

2 going to go through their backgrounds again.

3 The Court took extensive notes.

4 Suffice to say, that Dr. Cranford, in

5 essence, was part of the gold standard on

6 vegetative state. He probably knows more

7 about the vegetative state and the minimally

8 conscious state than almost any other doctor

9 nationwide.

10 Melvin Greer was president of the

11 American Academy of Neurology, the largest

12 body of neurologists nationwide for two

13 years.

14 Drs. Cranford and Greer have authored a

15 combined, what, close to 200 peer review

16 articles appearing in the most preeminent

17 medical publications, the Journal of the

18 American Medical Association, Neurology,

19 Annals of Neurology.

20 All three of the doctors who opined in

21 Petitioner's favor have current academic

22 appointments. Melvin Greer being an

23 esteemed and endowed professor of neurology

24 at the University of Florida, being the

25 chairman of the Department of Neurology for




860



1 26 years.

2 Dr. Cranford is a professor at the

3 University of Minnesota. Dr. Bambakidis, an

4 assistant professor of neurology at Case

5 Western University. All pending positions.

6 Where does Dr. Hammesfahr teach these

7 days? Where has Dr. Hammesfahr taught at

8 all? He hasn't.

9 Now, Dr. Maxfield did teach and did

10 have a marked career up to the point he

11 moved from New Orleans to Florida

12 approximately 30 years ago or a little less

13 than 30 years ago in 1994 -- excuse me, 1974

14 and hasn't held an academic position then

15 and really hasn't done any peer review

16 writing since then.

17 So, of course, you're going to look at

18 the credentials. Who are these people and

19 what have they brought to the Court in terms

20 of their experience, their stature in the

21 field?

22 They vastly eclipse that of

23 Dr. Maxfield and Dr. Hammesfahr. Of course

24 credentials don't mean, everything, Your

25 Honor. Credibility also goes to how the




861



1 witnesses presented themselves. Were they

2 evasive? Was their testimony impeached?

3 Now, this proceeding does hold a

4 remarkable similarity to the trial we had in

5 January of 2000 which is, of course, the

6 Court's opinion there is the law of the

7 case.

8 In that proceeding, the Respondents and

9 their witnesses were impeached by their

10 prior deposition statements numerous,

11 numerous times where Mr. Schiavo's testimony

12 was not. What occurred in this proceeding?

13 Dr. Greer had given a deposition. Was he

14 impeached at all by giving an inconsistent

15 statement on his deposition? No.

16 Dr. Cranford and Dr. Bambakidis both

17 testified extensively in the day-long

18 hearing on July 10th of 2002. Was their

19 prior testimony brought up to show an

20 inconsistent statement? No.

21 Dr. Maxfield and Dr. Hammesfahr gave

22 depositions, in the case of Dr. Hammesfahr,

23 less than two weeks before his trial

24 testimony and Dr. Maxfield about three weeks

25 prior to their trial testimony.




862



1 And yet -- especially Dr. Hammesfahr

2 and to a lesser extent Dr. Maxfield, were

3 impeached by inconsistent statements in

4 their deposition. They couldn't even keep

5 their stories straight in the span of three

6 weeks. And both were impeached by virtue of

7 their transcript, their testimony from the

8 July 10th, 2002 hearing.

9 Now, just before we move on I did want

10 to make -- I did want to make mention of the

11 conspicuous absence at these proceedings of

12 Dr. Webber. As you know from the Appellate

13 Court's opinion, the Appellate Court found

14 that only Dr. Webber's affidavit went so far

15 as to suggest colorable entitlement to this

16 hearing.

17 And the Appellate Court specifically

18 said, We do not restrict the Schindlers

19 presenting only the testimony of Dr. Webber.

20 It certainly sounds like the Appellate Court

21 expected him to be here and testify. What

22 happened to Dr. Webber and his opinion?

23 Now we heard the statement, I believe,

24 Dr. Hammesfahr projects honesty. Your

25 Honor, I admire the willpower that it must




863



1 take to say that with a straight face. His

2 testimony from the onset was evasive.

3 As you recall, the first matter of his

4 testimony was Edward White Hospital and his

5 privileges there. And he testified on the

6 stand, yes, I had privileges at Edward White

7 Hospital.

8 And I asked the question: Is there any

9 information you received recently which

10 would cause you to doubt that statement or

11 cause you to doubt the accuracy of that

12 statement? And he said, I received nothing

13 from Edward White Hospital. And I asked him

14 again and I said, Well, I'm not asking you

15 if you received anything from Edward White

16 Hospital. Did you receive any information

17 from any source which would lead you to

18 doubt the accuracy of that statement?

19 I had to ask him that question four or

20 five times until the Court finally had to

21 instruct him to answer that question in a

22 yes or no basis. And then finally, Your

23 Honor, through going back to his deposition

24 did he admit that he stated at his

25 deposition, I thought that I still had




864



1 privileges there. Just the most simple

2 matter of getting a straight answer from the

3 witness as to whether he has privileges took

4 the Court -- took 15 minutes.

5 And that's just the beginning of a

6 testimony that was given which is replete

7 with lack of candor. On his testimony, Your

8 Honor, regarding his Nobel Prize, I guess

9 it's undisputed because we couldn't get into

10 it in this proceeding, that he got a letter

11 of nomination from Congressman Bilirakis for

12 a Nobel Prize in medicine.

13 Of course, we were unable to explore

14 whether Congressman Bilirakis was even

15 eligible to make that nomination, but common

16 sense, Your Honor, I think which we don't

17 remand in these proceedings, would say that

18 if my neighbor writes a letter to the Nobel

19 committee nominating me for a Nobel Prize in

20 literature, I'm certainly not considered a

21 nominee.

22 But putting that aside, Dr. Hammesfahr

23 in his affidavit of May 5th or 6th, 2001,

24 not only said he was nominated, he said that

25 his nomination was accepted by the




865



1 Karolinska Institute in Sweden.

2 And it's interesting that that

3 affidavit which I specifically asked him,

4 Are you sworn to tell the truth? Was that

5 affidavit under truth -- was that affidavit

6 under -- supposed to be truthful? He said,

7 yes.

8 Then I asked him, Do you have any

9 personal knowledge of that? And he said,

10 What's personal knowledge? And then I had

11 to read him the first sentence in his

12 affidavit in which he states that he makes

13 the affidavit under personal knowledge and

14 then he admitted he had no direct personal

15 knowledge of that fact that he swore to in

16 his affidavit, but then he added, I have

17 indirect knowledge.

18 And this indirect knowledge was

19 Congressman Bilirakis' office called me,

20 said they got a letter from Sweden saying my

21 nomination was accepted and that was his

22 indirect knowledge.

23 Now, Your Honor, a couple of things

24 about that: First, is the shifting sands of

25 his statements under oath. When first asked




866



1 about that two weeks before he said he

2 couldn't remember for sure whether it was

3 the congressman or an aide who told him his

4 nomination was accepted.

5 About then a little later in the same

6 deposition he says, It was Congressman

7 Bilirakis and Congressman Bilirakis was

8 adamant that my nomination was accepted.

9 And he then said, I actually held in my

10 hands the letter from -- or a copy of the

11 letter from the Nobel Institute. But the

12 witness went on later to admit that over a

13 year later he wrote a letter to Congressman

14 Bilirakis saying, You should be aware that

15 your nomination for the Nobel Prize in

16 medicine was reviewed and investigated by

17 the Karolinska Institute who approved and

18 essentially second bid your nomination.

19 Your Honor, it is completely

20 inconceivable that if Congressman Bilirakis

21 called the witness and said your nomination

22 was accepted and was adamant about it, why

23 would the witness write a letter to

24 Congressman Bilirakis a year later to inform

25 him of that fact?




867



1 It's totally incredible. It doesn't

2 make sense at all. And when asked,

3 Dr. Hammesfahr, why would you write

4 Congressman Bilirakis to inform him of that

5 fact? He said, To refresh his recollection.

6 That answer is preposterous. Why would

7 you need to refresh the recollection of the

8 person who gave you this information in the

9 first place and was adamant about it?

10 Next, we talk a little about

11 Dr. Hammesfahr's advertising and promotion

12 of this Nobel nomination. And, again,

13 sending out mass advertising including

14 Congressman Bilirakis' letter of nomination.

15 Putting it on his letterhead. Having it on

16 his phone announcement.

17 It just strains plausibility, Your

18 Honor, that that witness who so promoted

19 himself to that extent just doesn't have a

20 copy of the letter in which his nomination

21 was accepted.

22 What would be more impressive,

23 attaching a letter of a Congressman

24 nominating you or a letter from the Nobel

25 Institute accepting your nomination? But he




868



1 doesn't have it. I think that's totally

2 incredible, Your Honor.

3 And I think it's important to tie in to

4 Dr. Hammesfahr's motivations about entering

5 this case to review what I would describe as

6 his opportunistic advertising.

7 I think to be fair in his testimony, he

8 may not have used the term "mass

9 advertising" although he did admit that he

10 hired a mailing house to distribute this and

11 he also admitted that the cost to remove

12 Congressman Bilirakis' nomination letter

13 from the advertising package, in his words,

14 would be onerous.

15 Now, what does it say about the

16 witness' character who receive a letter from

17 his congressman and then by his own

18 admission get a request from the congressman

19 not to use the letter any further for his

20 advertising and write the congressman back

21 and say, Well, the cost of doing this is so

22 huge. If you want to send your aides down

23 to remove your letter after your cost and

24 expense go ahead, but I'm not going to do it

25 and if you don't, we're going to send it




869



1 out.

2 Your Honor, I think that's shocking.

3 Shocking. And it's indicative of

4 Dr. Hammesfahr's attitude in this case.

5 Now, we know from Dr. Hammesfahr, he

6 finally admitted again after having to

7 refresh his recollection, go back in the

8 record, that he was cut off from Medicare in

9 1999 and he sustains himself on a cash

10 basis. Clients have to go in there and put

11 cash on the barrel.

12 Well, I would suggest, Your Honor, that

13 what a better way to get publicity for your

14 cash on the barrel practice than by entering

15 a case like this that has so much notoriety

16 which you are guaranteed publicity, Your

17 Honor.

18 And how is it that Dr. Hammesfahr found

19 his way into the case? Was he contacted by

20 Attorney Anderson? No. Was he contacted by

21 Mr. and Mrs. Schindler? No.

22 He said he first learned about the case

23 on or about the time Terri's feeding tube

24 was about to be removed or had been removed,

25 which would be the end of April in 2001.




870



1 And although he admits to watching

2 television, he says, I didn't know about the

3 case before then. This case has been so

4 well-publicized, Your Honor, I think that's

5 even -- that answer is pretty hard to take,

6 but I think his affidavit betrays him.

7 In his affidavit filed in May of 2001

8 he states -- which is only a few days after

9 he says he first found out about this case,

10 I have followed the case in the local media

11 with interest. Well, Your Honor, I'm not a

12 linguist but to me when you've been

13 following something in the media it connotes

14 a period of time.

15 So I assert that that shows that

16 Dr. Hammesfahr has been following this case

17 for some time and that his suggestion that

18 he first found out about the case in the end

19 of April 2001 is also unbelievable.

20 And he took it then upon himself, by

21 his own testimony he says, to call Attorney

22 Anderson. Now, aside from his lack of

23 candor, evasive answers, answers that are so

24 ridiculous that one would surmise that

25 they're simply untrue on those matters, how




871



1 can you explain or how did he explain that

2 on September 30th he was asked to define a

3 coma and he said, I don't have a definition

4 of coma.

5 Then yet less than two weeks he

6 testifies as to what a coma is? How is it

7 a -- I don't know how you square that. Did

8 he educate himself as to what a coma was in

9 just the last two weeks? I suppose that's

10 an explanation, Your Honor, but my gosh, if

11 he didn't know what a coma was or couldn't

12 define it before two weeks ago, what kind of

13 grand experience does he have in treating

14 patients in those conditions?

15 Another area of impeachment, in his

16 affidavit filed in May of 2001 he agrees and

17 he states, There's a reasonable probability

18 or likelihood that his therapy can

19 substantially or significantly improve

20 Theresa's Schiavo's mental condition. This

21 was in May of 2001.

22 He hadn't seen her. He hadn't examined

23 her. He hadn't performed any tests on her.

24 Yet, when talking about this same subject in

25 July of 2002 over a year later after he had




872



1 the opportunity at least to observe Terri

2 Schiavo asking about the possibility of her

3 improvement in neurological condition he

4 states, Who knows at this time.

5 How can one reconcile that testimony?

6 Those two sworn statements, Your Honor? Is

7 it that the more information he receives

8 about Terri Schiavo that caused him to

9 change his opinion as to the possibility for

10 improvement? I don't know. What other

11 explanation -- what other explanation is

12 there?

13 But how you can file an affidavit in an

14 effort -- and he knew what that affidavit

15 was going to be used for, to induce the

16 Court to vacate a judgment. How you can

17 file that affidavit and say, My treatment

18 can help her mental condition and then a

19 year later in testimony say, I don't know.

20 I can't say that now. I think it's also

21 indicative of his lack of candor and lack of

22 credibility.

23 Now, why is this so important? It's

24 particularly important in the case of

25 Dr. Hammesfahr based upon the question I




873



1 asked him, Dr. Hammesfahr, you say you've

2 treated a number of patients who were in the

3 same or worse condition than Terri Schiavo

4 and you say that their condition improved.

5 What can you provide other than your

6 testimony to substantiate that?

7 Now, from the stand he said -- he

8 mentioned one or two things and then again I

9 had to remind him of his deposition

10 statement. And what he said less than two

11 weeks before was, Well, I would have to

12 answer no. There is nothing I can provide

13 because the nature of the records I keep are

14 not susceptible to analysis to substantiate

15 my conclusions.

16 Well, Your Honor, anybody can come here

17 and say anything and make any claim, but

18 with Dr. Hammesfahr where is the proof? And

19 he's basically saying, I don't have it.

20 Just go ahead and believe me.

21 And the fact is, if that's what we're

22 to judge Dr. Hammesfahr's credibility of his

23 position on believing what he says, then his

24 testimony is an abysmal failure.

25 Also, what is very telling, Your Honor,




874



1 was the conclusion of Dr. Hammesfahr's

2 direct examination. When he was asked,

3 Would your therapies improve Terri Schiavo's

4 condition, he said yes.

5 Then I asked him -- I believe, the

6 first question I asked him on

7 cross-examination was, Do you have an

8 opinion, within a reasonable degree of

9 medical certainty, that your therapy can

10 improve Terri Schiavo's mental condition?

11 And his answer was, I can't say that.

12 Their own expert and witness could not

13 testify to a reasonable degree of medical

14 certainty that his therapies could improve

15 the mental condition of Terri Schiavo.

16 That is the primary question before the

17 Court. And by their witness' own testimony,

18 it fails on that point.

19 Also, Your Honor, let me read a little

20 bit from the Appellate Court. The Motion

21 for Relief from Judgment alleges evidence of

22 a new treatment that could dramatically

23 improve Mrs. Schiavo's condition and allow

24 her to have cognitive function to the level

25 of speech.




875



1 The Court in reversing -- this

2 Appellate Court in reversing this Court's

3 prior order remanded, and I quote, To

4 conduct an evidentiary hearing on these

5 specific claims. And the Court says, to

6 meet this burden they must establish this is

7 the Respondent's burden by a preponderance

8 of the evidence. To meet that burden they

9 must establish that new treatment offers

10 sufficient promise of increased cognitive

11 function in Mrs. Schiavo's cerebral cortex

12 significantly improving her quality of life.

13 Dr. Hammesfahr's testimony fails on

14 that point.

15 There's also another aspect, I guess,

16 or a subcategory of proof, Your Honor, in

17 which the testimony also fails. The

18 Appellate Court also said, amongst other

19 things, that this hearing was to be -- was

20 going to be for the purpose of assessing the

21 nature of the new medical treatments

22 described in the affidavits and their

23 acceptance in the relevant scientific

24 community.

25 I think the Appellate Court in its




876



1 wisdom was saying, Well, you can have

2 somebody come in and say just about opine on

3 just about any subject, but instructing this

4 Court to say, Well, we're not just

5 interested in what one person thinks, we

6 want to -- you should also find out whether

7 that therapy has a general acceptance in the

8 medical community or their words were in the

9 relevant scientific community.

10 If you recall, Your Honor, I asked

11 Dr. Bambakidis, I asked Dr. Greer and I

12 asked Dr. Cranford the question as to the

13 proffered therapies of Respondents. Do

14 these therapies have any acceptance in the

15 medical community for treatment of

16 brain-injured patients like Terri Schiavo?

17 The answer -- the resounding answer was no.

18 That question wasn't even asked by the

19 Respondents of Dr. Hammesfahr and

20 Dr. Maxfield. Neither of them gave an

21 opinion as to whether these treatments are

22 generally accepted in the medical community.

23 Now, we do have some articles that were

24 introduced into evidence. We have

25 Dr. Hammesfahr's article in which he treats




877



1 primarily whiplash patients with his

2 vasodilation technique. There is nothing in

3 that article that suggests that he -- that

4 that article is based upon treatment of a

5 patient who had brain damage and symptoms as

6 severe or worse than Theresa Schiavo.

7 Also, if you look at that article, Your

8 Honor, it also states that the patients who

9 are receiving this therapy are in the realm

10 of near proximity to the injury which is not

11 the case of Theresa Schiavo and timed out or

12 time from injury is a huge factor in this

13 case.

14 There is no dispute, Your Honor, that

15 there is a penumbra when there is injury to

16 the brain. All of the witnesses agreed with

17 that. All of the witnesses were familiar

18 with the term penumbra.

19 The difference was, Your Honor, that

20 Dr. Bambakidis, Greer and Cranford testified

21 that the ability to save damaged, but not

22 dead brain cells in the penumbra is very

23 time sensitive.

24 They may have disagreed as to whether

25 it was minutes, hours, a day or two, perhaps




878



1 a few days, but not 12 years, 13 years. I

2 didn't see -- the Court will review, the

3 Court will review, I'm sure, the articles

4 submitted.

5 I don't see any articles submitted in

6 evidence that show that the use of drugs or

7 medication in the penumbra can revive a

8 patient or improve a patient who is farther

9 out than that initial period.

10 In fact, most of the articles and this

11 is, Your Honor, just a smoke screen, it has

12 nothing to do with this case. Terri Schiavo

13 didn't have a stroke. Those articles are

14 about using medication for the prevention of

15 stroke.

16 Also about articles, we heard a very

17 curious proposition on the closing argument

18 of Respondents, Your Honor, regarding stem

19 cell research. There is plenty of studies

20 out there, Judge. Why don't you go online

21 and look for them yourself?

22 Well, number one, the suggestion that

23 this Court should take an independent --

24 it's own independent search of medical

25 materials and do its evidentiary -- do its




879



1 own secret evidentiary investigation of this

2 case of course is not proper and it's not

3 done. It's the job of the attorneys to

4 provide articles.

5 And I ask this question, Your Honor, if

6 indeed there are publications and studies

7 out there that show that stem cell research

8 could help restore a brain like Terri

9 Schiavo, why weren't they introduced into

10 evidence?

11 We seem to have proffered or introduced

12 into evidence on the part of the Respondent

13 every seemingly article that doesn't have to

14 do with this case. You would think if such

15 an article, publication or study were there

16 it would have been presented to you. It

17 wasn't and I think we can infer from that

18 it's not there. And the suggestion that

19 this Court should start digging into the

20 medical literature to find it is

21 preposterous.

22 Now, I want to move to the testimony of

23 Dr. Maxfield. The first thing that was

24 obvious from his testimony, Your Honor, is

25 that Dr. Maxfield doesn't have the beginning




880



1 notion or slightest idea of what a

2 vegetative condition is.

3 His initial answer was, It's a type of

4 coma only it's a more severe coma. Well, we

5 heard, Your Honor, from the other witnesses

6 and I think maybe even Dr. Hammesfahr said

7 this, is that a patient progresses from a

8 coma which is a state of unconsciousness to

9 a vegetative -- sometimes to a vegetative

10 state which is a state of wakeful

11 unconsciousness.

12 The medical records, Petitioner's

13 Exhibit 4, Your Honor. Petitioner's Exhibit

14 4 was the Mediplex records which states,

15 patient remains in coma for approximately

16 two months and progressed only to a

17 persistent vegetative state.

18 So Dr. Maxfield had it completely

19 wrong, Your Honor. Vegetative state is not

20 a more severe form of coma. It is a state

21 of unconsciousness with wakefulness that

22 sometimes coma patients who don't open their

23 eyes evolve to.

24 Then he also said about a vegetative

25 state, You can't be in a vegetative state




881



1 even if you have involuntary responses to

2 the environment.

3 Well, that is contrary to the

4 definition of all of the other doctors.

5 It's contrary to the findings in the medical

6 aspects of the persistent vegetative state.

7 And soon after that when I questioned

8 Dr. Maxfield a little bit further about

9 that, well, then he started to admit, Well,

10 maybe there are some responses that are

11 involuntary and can be part of the

12 vegetative condition.

13 But I think we're talking -- but I know

14 some doctors agree on things and some

15 doctors don't, but we're talking here, Your

16 Honor, something that is so basic in terms

17 of an understanding of what a vegetative

18 state is that Dr. Maxfield had no clue.

19 And we heard some things on the closing

20 argument that Dr. Maxfield wasn't -- was

21 only testifying within his expertise.

22 That's hogwash, Your Honor. He's not a

23 clinician. He testified that -- he

24 testified within a degree of medical

25 certainty that Terri Schiavo was not in a




882



1 persistent vegetative state.

2 How is that in his expertise? That's

3 outside of his expertise. While

4 neurodiagnostic tests may have some function

5 and may have some bearing in confirming a

6 vegetative condition, it's primarily a

7 clinical diagnosis.

8 And I find it particularly amusing,

9 Your Honor, that the Respondents are trying

10 to cast doubt on the opinion of Dr. Greer

11 because he only treats a vegetative patient

12 once every year or two, where Dr. Maxfield,

13 by his own admission, said that he's never

14 been called upon to make a clinical

15 diagnosis of persistent vegetative state.

16 He's not a neurologist and never written in

17 the field of neurology.

18 Now, as a neuroradiologist we have

19 Dr. Maxfield's testimony about these CT

20 scans. Your Honor, it's almost difficult to

21 formulate in words the ludicrous nature of

22 that testimony that Terri Schiavo --

23 comparing these two CT scans that her brain

24 appears more homogeneous and is working --

25 it was working better.




883



1 It is obvious to a third grader when

2 you look at these why the earlier CT scan is

3 grainier. I think it was Dr. Bambakidis who

4 voluntarily or just exclaimed, you know, not

5 too much clarity. It was of a machine of a

6 previous generation.

7 We've heard a lot about how the medical

8 field has advanced, how medical technology

9 has advanced. Well, so has CT imaging, Your

10 Honor. And who knows how many prior

11 generations that 1996 CT scan was. A number

12 of the witnesses mentioned the poor

13 resolution.

14 I even brought up -- I even brought up

15 the possibility with Dr. Maxfield, have you

16 ever enlarged a photograph? Yes, I have.

17 Don't you notice, Dr. Maxfield, as you

18 enlarge it, as you keep on enlarging it, it

19 gets grainier? Yes, I do.

20 Even Dr. Maxfield admitted that a

21 better comparison between these two CT

22 scans, the one for 2002 and the one for

23 1996, would be blowups of the same size.

24 And I think that another of the witnesses

25 also mentioned the even better comparison,




884



1 of course, would be on the same type of

2 machine.

3 To take a blurry ill-resolved earlier

4 image and from that say, Well, her brain is

5 more homogeneous. And when asked, What

6 would account for that? Well, we've learned

7 that there can be some brain -- some

8 regeneration of brain tissue. We've even

9 had opposing counsel try to distance the

10 Respondents from the comments of her own

11 witness admitting I think one or two times

12 in questioning that dead brain cells don't

13 regenerate. We know dead brain cells don't

14 regenerate.

15 I mean, the testimony of Dr. Maxfield

16 on that issue is so preposterous it leads to

17 one of two conclusions; either his

18 competence is so extremely poor or he's

19 testifying from an extreme lack of candor,

20 Your Honor.

21 Now, hyperbaric oxygen therapy. A

22 couple of things to note about

23 Dr. Maxfield's testimony. First of all, in

24 his work for the Palm Harbor -- there are

25 two companies in which he reads




885



1 neurodiagnostic films. He admits he doesn't

2 treat patients. He doesn't see patients.

3 The only reason he would see a patient

4 regarding those facilities is if there is

5 some problem or concern about administering

6 the tests. Who does he treat? Who has he

7 used this treatment on in order to give his

8 opinion?

9 You'll notice carefully in his

10 testimony he said he is a consultant to

11 Dr. Neubauer's facility in the east coast of

12 Florida. He does their neurodiagnostic

13 testing. I think he said he perhaps follows

14 patients or reviews their records or is

15 aware of what Dr. Neubauer is doing.

16 You know, for Dr. Maxfield we didn't

17 get any hands on, I've treated a patient in

18 this condition and she's improved. Well, I

19 think Dr. Neubauer has or he has one down

20 there or I've reviewed the records on that

21 and that was consistent of his whole

22 testimony on every subject, Your Honor.

23 Well, where is the study that stem cell

24 research can regenerate brain cells? We

25 didn't see a study, but he has a study at




886



1 the University of Pittsburg. He went to a

2 conference and heard somebody, that somebody

3 in Mexico is doing that or doing this.

4 Your Honor, we just heard hearsay. We

5 heard rank hearsay testimony from

6 Dr. Maxfield about what others may be doing,

7 not what he's doing himself.

8 Now, at least we got one article that

9 Dr. Hammesfahr wrote on his vasodilation

10 technique which, by the way, the testimony

11 of Dr. Cranford was it was not a peer

12 reviewed article which didn't have to do

13 with patients like Terri Schiavo. There had

14 been no articles about hyperbaric oxygen

15 therapy introduced into evidence.

16 I guess that's indicative, Your Honor,

17 that certainly treatment with hyperbaric

18 oxygen therapy of patients like Terri

19 Schiavo is not the prevailing practice in

20 the medical community.

21 Now, much was said about Dr. Cranford

22 and his opinions and he's written

23 extensively about this subject. Well, Your

24 Honor, I think that there are many, many of

25 us, in fact, the overwhelming majority of




887



1 people would agree that there are fates

2 worse than death.

3 I believe the overwhelming majority of

4 people would say if I were in such a

5 horribly impaired condition as Terri Schiavo

6 I'd rather not have cognizance of it than be

7 cognizant of it. Can you imagine the agony

8 and torture? Could we even conceive of the

9 torture and agony if Terri Schiavo had

10 cognition of her condition. Thank God.

11 Thank God she doesn't.

12 Now, Dr. Cranford is also a gadfly in

13 this area. He does have opinions and he

14 does have positions, but let's be fair about

15 them. He was asked about, Do you think

16 Terri Schiavo is a person and do you think

17 she has personhood? He answered, Yes.

18 Now, he did coauthor an article which

19 he said was not accepted and went nowhere

20 concerning the concept of personhood for

21 vegetative patients in terms of

22 constitutional law.

23 And I might add, Your Honor, although I

24 may not subscribe to every opinion of

25 everything written, in fairness to




888



1 Dr. Cranford, the law is different regarding

2 removal -- refusal and withdrawal of medical

3 treatment for patients who are in a

4 vegetative condition as opposed to patients

5 who are not in a vegetative condition, Your

6 Honor.

7 And the law is different in Florida.

8 And it's different in other states as well.

9 Until a very recent amendment to Chapter

10 765, in order to remove artificial life

11 support if there were no written directives,

12 Your Honor, or written designation of a

13 proxy you must -- you are required to have

14 clear and convincing evidence of the

15 patient's intent in order to carry out that

16 decision under the statute.

17 Then it was a few years ago, Your

18 Honor, in 1999, I believe, 765 was amended

19 to add 765.404 which was a special statute,

20 section of the statute on persistent

21 vegetative state.

22 And they said, when there is no

23 advanced directive and we have no evidence

24 as to what the intent of the patient is,

25 then under certain circumstances artificial




889



1 life support can be removed from a patient

2 in a persistent vegetative state if it's in

3 the best interest of the patient.

4 In other words, they moved from a

5 specific intent standard to a best interest

6 standard. Why was that, Your Honor? And

7 why is that in other states?

8 And one reason, Your Honor, is there

9 seems to be or seems to be a consensus

10 sufficient for legislative purposes to say,

11 If you have an individual who has no

12 cognition, who has no awareness of the

13 environment, and has no possibility of

14 recovering that, that, as a consensus, we

15 can say most of us in this situation would

16 choose not to be kept alive artificially.

17 And that is the basis between those changes

18 of the law.

19 So I just point that out, Your Honor,

20 to say that what Dr. Cranford was writing

21 about was the concept of right and

22 constitutional right for vegetative patients

23 and although his views may not -- his views

24 may challenge others and form disagreement,

25 there is a substantial basis in the law for




890



1 that.

2 Another thing about Dr. Cranford, Your

3 Honor, you could see the ease to which he

4 was testifying when talking about the

5 vegetative condition. And also, also, you

6 could see in his testimony his respect and

7 admiration for science. For fact. Not for

8 fiction.

9 We may agree that he may have been a

10 little short tempered as to fiction, but as

11 to fact he had a great respect. He was the

12 first to admit in his testimony where he

13 said something on the record or the report

14 reached a conclusion that wasn't perhaps

15 fully borne out he was the first to admit

16 that in his testimony, Your Honor.

17 He's the first to -- he's the first to

18 admit as well that there are no absolutes

19 when he was giving his opinion. He said

20 99.99 percent and, of course, we're talking

21 about certainties and this was the highest

22 certainty he gave, but, of course, no one

23 can give an opinion in absolutes.

24 Dr. Cranford also testified, and this

25 is important to note, Your Honor, separating




891



1 hearsay fiction from fact. His testimony

2 was that for non-traumatic patients who are

3 in a vegetative condition if there are no

4 signs of improvement after three months the

5 odds are drastically against you.

6 For all those patients once you get to

7 one year the odds are virtually nil, but he

8 acknowledged two patients; one was the

9 Childs' patient from Texas and his own

10 patient Sergeant Mac.

11 One started to show improvement after

12 15 months and I believe that was the Childs'

13 patient. His patient started to show

14 improvement after 22 months, Your Honor.

15 Now, as to his patient, if you will

16 recall, which 22 months he testified is the

17 longest verifiable patient or verifiable

18 situation in which a vegetative patient has

19 emerged from unconsciousness, 22 months.

20 He said, What did we do? We went and

21 looked -- this was an earlier patient of

22 his -- we went and looked at the CT scans

23 and found that Sergeant Mac, which was the

24 name of his patient, his CT scan was almost

25 normal. That's the best of the record, the




892



1 verifiable record, Your Honor. And we have

2 Terri Schiavo who is coming up shortly on 13

3 years post-cardiac arrest.

4 And, Your Honor, let me just digress

5 here. Again, it strains credulity that

6 after Terri Schiavo has been examined,

7 viewed, treated by legions of doctors at

8 Mediplex, brain injury and spinal cord

9 center for six months the first person who

10 comes along and says that there's a spinal

11 cord injury or a possibility is

12 Dr. Hammesfahr.

13 That is unbelievable testimony, Your

14 Honor. That in all studies, x-rays, MRIs,

15 examinations that she has had over 13 years

16 only Dr. Hammesfahr picked that up.

17 Dr. Bambakidis. Dr. Bambakidis

18 specifically said, Your Honor, when he was

19 shown the video done of Dr. Hammesfahr

20 pushing Terri up by her neck and having her

21 neck and head and upper back muscles rigid

22 so they moved in unison he said, that's

23 exactly what you would expect to see in a

24 patient like Terri Schiavo who's been in

25 this condition all these years.




893



1 You would expect to see those

2 contractures. You would expect to see that

3 movement. And Dr. Bambakidis, and I think

4 it was one other doctor, I don't know

5 whether it was Dr. Greer or Dr. Cranford,

6 both mentioned the specific medical term for

7 that, which I don't recall. It started with

8 an O, Your Honor.

9 But besides the opinions, let's look at

10 the test evidence. We have a SPECT scan in

11 which Dr. Maxfield -- even Dr. Maxfield

12 admitted was moderately to severely

13 abnormal.

14 We have Dr. Bambakidis who first read

15 the SPECT scan, read the report and then saw

16 the SPECT scan and he said the report, Your

17 Honor, as he testified, he said there was

18 faint -- very faint localization, more

19 localization in the subcortical areas of the

20 cerebellum, basal ganglia that has nothing

21 do with cognition, but motor function, and

22 some localization in the frontal lobes.

23 Then when Dr. Bambakidis saw the SPECT

24 scan he said, No, I didn't see localization

25 in the frontal lobes. So we have what these




894



1 witnesses have called abnormal, severely

2 abnormal and a SPECT scan that is consistent

3 with the diagnosis of permanent vegetative

4 state.

5 We have EEGs that are also consistent

6 with that, Your Honor. Now, yes, the EEGs

7 had artifacts, but Dr. Bambakidis noted that

8 on the first one the technician did a very

9 good job of screening the artifact.

10 And then I asked him, What was the

11 purpose of asking the technician to use a --

12 or to input a noxious stimulus to Terri to

13 squeeze her fingernail or something like

14 that and he said, You would expect to see --

15 you would expect to see in a CAT scan a

16 change in brain waves when that stimulus was

17 put on the patient and that there was no

18 change on the EEG when such a stimulus was

19 used by the technician on Terri Schiavo. So

20 the EEGs are consistent with the diagnosis

21 of persistent vegetative state.

22 We have -- we had some other evidence,

23 Your Honor, but we had the -- well, of

24 course, we had the CT scans which we've

25 talked about which I believe Dr. Cranford




895



1 said you can't get much worse than this.

2 And, of course, the ventricles, Your

3 Honor, haven't changed much. I mean,

4 they're grossly enlarged. They were grossly

5 enlarged in 1996 and they still are. And,

6 yes, they haven't changed much, but why?

7 Because in Dr. Cranford's testimony, There

8 is just not much brain left to atrophy.

9 There's not much brain left in the cerebral

10 cortex.

11 Both Dr. Bambakidis, Dr. Greer and

12 Dr. Cranford see no improvement from the

13 1996 to the 2002 CAT scan. And they also --

14 they also testified, Your Honor, yes, there

15 is tissue in Terri's brain. This is glial

16 tissue. Terri suffers from gliosis.

17 What we have in her brain is scarred

18 connective tissue. The tissue that supports

19 the neurons, enables the neurons to exist is

20 supporting structure, is the glial tissue,

21 and we have scarred and damage glial tissue.

22 And, by the way, I didn't hear

23 Dr. Maxfield at all testify that you could

24 have -- that if you had glial tissue alive

25 that you must have working neurons. In




896



1 fact, I heard from the witnesses the

2 opposite testimony, Your Honor.

3 Other evidence, the Respondent

4 introduced medical records from Hospice,

5 Your Honor, which I believe is Respondent's

6 Exhibit 12.

7 Well, there are some interesting notes

8 in the clinical notes, plan of care critical

9 notes. I'm reading from the exhibit on page

10 Bate Stamp 58. Celia Bachman. Mother

11 attempted to engage patient verbally, but

12 without noticeable response. Patient

13 groaned loudly while chair was being pushed,

14 but settled when stopped in shade.

15 Mother attempted to engage patient in

16 conversation re weather, being outside,

17 feeling softness of teddy bear, but no

18 observable appropriate response. That was

19 March 16th, 2002.

20 March 17th, 2002. No purposeful

21 movements noted.

22 Here is April 28th, 2001. Laughs when

23 alone frequently. Laughs when people are in

24 the room at times. No sign -- it's cut off,

25 it looks like intentional and not always a




897



1 visible or audible clue for purposes of

2 laugh.

3 April 30th, 2000. Patient turns head

4 towards noise, but does not focus eyes or

5 track. Patient does not follow any

6 commands, only startles to sudden or loud

7 noise.

8 Your Honor, I could go on and on with

9 similar notations in Exhibit 12, but you

10 won't find in Exhibit 12 from the people who

11 see Terri every day and care for her every

12 day, you won't see any notation of

13 purposeful movement, voluntary interaction

14 or responding to commands, which leads to

15 another point, Your Honor.

16 Dr. Hammesfahr's examination was three

17 hours, but the other doctors examined her 40

18 minutes. Your Honor, I think that it's

19 common sense and totally credible the

20 testimony of Dr. Bambakidis, Cranford and

21 Greer that their diagnosis and opinion is

22 based upon the totality of the evidence.

23 And part of that evidence is the medical

24 records.

25 Now, of all the doctors I believe only




898



1 Dr. Greer testified he reviewed all the

2 nurse's notes from Palm Gardens from 1994 to

3 2000 and from Hospice from 2000 to 2002 or

4 to the present or when he had received them

5 recently.

6 I didn't hear Dr. Maxfield testify he

7 examined that information. I didn't hear

8 Dr. Hammesfahr testify. In fact, Dr. Greer

9 had his hand up. I mean, how big was that

10 stack and he said, Like three feet high.

11 Dr. Greer had the benefit of the notes

12 and observations of hundreds and thousands

13 of hours of nursing care and aide care for

14 Theresa Schiavo.

15 He had the benefit of his opinion of

16 more -- at least the report of more

17 observation in terms of time than any of the

18 other witnesses and found that evidence to

19 be consistent with his opinion.

20 Now, the other evidence here are the

21 tapes, Your Honor. And I encourage the

22 Court, as I know the Court will, to review

23 the full videotapes because the clips shown

24 by the Respondents are not the entire visual

25 record of those examinations.




899



1 And, as Dr. Cranford said, Your Honor,

2 when showed the picture of Terri, and I

3 think he called it a cheap trick, you can

4 take an isolated frame, a one-second frame

5 or a still frame of what we have in what are

6 four hours of tape and try to draw a

7 conclusion from that. That's not a good

8 methodology. We had talked about

9 methodology. That's not a proper

10 methodology, Your Honor.

11 As you see these tapes, Your Honor, the

12 more you look, the less there is. Now, you

13 see Terri moan. You see Terri make facial

14 gestures. And, of course, Terri's moaning

15 is not entirely coincidental. If you're

16 sticking a pin in her foot and she moans,

17 no, that's not coincidental. It's as a

18 result of a noxious stimulus being inflicted

19 on the body.

20 Yes, some of her gestures, moans are a

21 response -- are an involuntarily response to

22 the environment. Some are random. In going

23 through my notes of the tape, Your Honor, as

24 I'm sure this Court will do, just start to

25 count the times when there's no response.




900



1 Mother goes up and says, Hi, Terri,

2 it's me, and kisses her. No response.

3 Mother says, Look this way, Terri. No

4 response. Dr. Hammesfahr says, Look at your

5 mother. No response. Dr. Hammesfahr says,

6 If this hurts, Terri, look at your mother.

7 No response.

8 Do we see on this tape, Terri, blink

9 once and she blinks once? Terri, blink

10 twice and she blinks twice? No. We don't

11 see this.

12 And the Respondents can't have it both

13 ways. On the one hand they say, Terri has

14 cognition because she -- her father was

15 talking about an incident from her past and

16 she laughed and cried.

17 Well, if Terri has the ability to

18 comprehend language and supposedly laugh and

19 respond to the context of what she heard,

20 then why can't -- why doesn't Terri laugh

21 when you say, Terri, please laugh? If she

22 has the ability to comprehend language why

23 can't she follow a simple command?

24 Now, again, Respondents have it both

25 ways, well, we said something to Terri and




901



1 there was a reaction. But then when she

2 doesn't do it it's because she has delayed

3 processing. Well, why was their alleged

4 reaction instantaneous in one situation, but

5 not in the other?

6 The most telling part of these tapes,

7 Your Honor, and this came out in I believe

8 the redirect examination of Dr. Bambakidis,

9 Dr. Bambakidis, as the other witnesses, were

10 shown two tapes. I'm going to give you the

11 designation number of these two tapes, Your

12 Honor. This is the excerpts that the

13 Respondents have put into evidence. One is

14 H01, which I guess H stand for Hammesfahr.

15 They have a notation Mary enters.

16 And the other is C02. Dr. Cranford.

17 This is after Mrs. Schindler has left and

18 Dr. Cranford is again with Terri. Examine

19 those segments very carefully, Your Honor.

20 And the telling portion of that is what

21 surprised Dr. Bambakidis.

22 After he saw -- he did remember that

23 when Dr. Cranford starts with Terri after

24 the mother leaves, Terri has a facial

25 expression, if you want to call it a smile,




902



1 very similar, if not identical, to the smile

2 in tape H01 with the mother.

3 And I had asked Dr. Bambakidis, in the

4 tape with the mother, H01, do you note that

5 the mother is physically manipulating Terri

6 and puts her hands on either side of her

7 head and moves her head and that's when

8 Terri smiles?

9 Dr. Bambakidis agreed. Then after he

10 watched Dr. Cranford's tape I said, Did you

11 notice in Dr. Cranford's tape that Terri's

12 supposed reaction occurred when Dr. Cranford

13 puts his hands on either side of Terri's

14 head, moves her head from the right to left

15 and that's exactly what happens?

16 Instead of having a blowup of the

17 picture of Terri's mom and Terri we could

18 have the same blowup, but it will be

19 Dr. Cranford. That's exactly what he did.

20 He was talking to Terri, no response,

21 nothing happening. He took his hands on

22 either side of her head. He moved her head

23 which is putting that physical stimulus and

24 Terri apparently had a smile and she moans.

25 We could put a big blowup of that, Your




903



1 Honor, and we could say, Doesn't Terri love

2 Dr. Cranford? Look at the love in her eyes

3 for Dr. Cranford. I'm sorry to disillusion

4 anyone, but it's unfortunate that Terri

5 doesn't have the cognition or the ability to

6 recognize and make that expression.

7 When you see the mother interact with

8 Terri it's the same thing and it happens

9 often on the tape. No smile when she talks

10 to her, but when she physically manipulates

11 her that smile appears. An involuntarily

12 response to a physical stimulus.

13 Well, then, on the tapes with

14 Dr. Hammesfahr, Your Honor, given what we've

15 said before basically it's hard to take

16 Dr. Hammesfahr's word for anything. I

17 looked at the tape and, I mean, we see his

18 feigned reaction, good Terri. Good Terri.

19 He's pressing what the other doctors

20 testified to was a contracted limb. And

21 when you apply pressure on the contracture

22 the leg is going to bounce back.

23 Now Dr. Hammesfahr can say, Well, after

24 it bounced back she was putting pressure on

25 my hand. I felt it. Well, it's not subject




904



1 to independent verification like the rest of

2 Dr. Hammesfahr's claims. And we should give

3 no more credence to that than we would his

4 other unsubstantiated claims.

5 Now, the other portion of the tape

6 where he claimed that Terri was responding

7 in that way was when he took the rollers

8 from her hands which, Your Honor, are not

9 toilet paper holders, took the rollers from

10 her hand and had his hand -- had his fingers

11 on Terri's palm.

12 And if you recall from his

13 cross-examination, Your Honor, he admitted

14 that one of the root reflexes that is most

15 seen in babies is the hand-clasping reflex.

16 If you touch an infant's or newborn's hand

17 the reflex is to grab the hand.

18 And the reason Terri or a vegetative

19 patient has that reflex is because the

20 higher centers of cognition are no longer

21 there to override these reflexes.

22 And so when I asked him, Dr.

23 Hammesfahr, were you putting any pressure on

24 Terri's hand on her palm he said, Yes, I was

25 rubbing her palm and I got -- then she put




905



1 pressure.

2 Well, of course she put pressure, Your

3 Honor, that's part of her -- that's part of

4 that reflex activity that is no longer

5 mediated through higher cognitive

6 functioning.

7 Now, we heard again and I guess I feel

8 compelled to raise it, a repeated

9 misunderstanding of the law in this area

10 regarding removal of life support. The

11 proposition that Chapter 765 of the Florida

12 Statutes somehow trumps a patient's

13 constitutional right to refuse medical

14 treatment is just not so.

15 We all know from basic law school, Your

16 Honor, that the Florida legislature in its

17 wisdom in by its statutory schemes cannot

18 modify our constitutional rights.

19 In addition to that, Your Honor.

20 Chapter 765 specifically states, 765.106,

21 preservation of existing rights. That the

22 provision of this chapter are cumulative to

23 the existing law regarding an individual's

24 right to refuse medical treatment and do not

25 impair any existing rights or




906



1 responsibilities that a patient, including a

2 minor, competent or incompetent person may

3 have under the state constitution or federal

4 constitution.

5 It is a fact, an established fact in

6 Florida and why we have to continually

7 restate it in this case, Your Honor, that

8 Florideans enjoy the right to refuse

9 unwanted medical treatment no matter what

10 that treatment is and no matter what

11 prognosis they have.

12 They need not be terminally ill. The

13 treatment need not be extraordinary or

14 ordinary. The Florida Supreme Court has

15 said we have a fundamental liberty interest

16 in controlling our body. If we don't want

17 medical treatment we don't have to have it.

18 And when we can't make that decision,

19 when we can't make what decision for

20 ourselves, Your Honor, another can make it

21 for us on the basis of clear and convincing

22 evidence.

23 So even though Theresa Schiavo is

24 terminally ill under Chapter 765, even

25 though she has an end-stage condition under




907



1 Chapter 765, and even though she is in a

2 permanent or persistent vegetative state

3 under Chapter 765, she need not be so in

4 order to have her intent not to be kept

5 alive artificially carried out.

6 Now, Your Honor, it's not me. It was

7 the Appellate Court, by the way, who

8 declared in Schiavo II that her condition

9 was terminal under the statute.

10 And it was the Appellate Court in

11 Schiavo III that said she had an end-stage

12 condition. And it was the Appellate Court

13 in Schiavo I which is still res judicata and

14 the law of this case that she is in a

15 persistent vegetative state.

16 And the function of this Court in this

17 proceeding is not to retry the entire case.

18 The function of the Court in this proceeding

19 is to test the allegation in the

20 Respondent's Motion for Relief from Judgment

21 that states there is a new treatment that

22 can dramatically improve Mrs. Schiavo's

23 condition and allow her to have cognitive

24 function and the level of speech. That is

25 what this Court is here to determine, Your




908



1 Honor.

2 We heard from the Respondents about

3 physical therapy. What does physical

4 therapy have to do with her current

5 condition and what the Court has to

6 determine now?

7 As the Court so aptly stated, What had

8 occurred has occurred. And what has

9 occurred, Your Honor, is that Terri Schiavo

10 has contractures that can't be helped. Now

11 you can massage it and get a temporary

12 extension which Dr. Hammesfahr did, but how

13 long did it take for her arm to go back to

14 the same position? It only took a short

15 period of time.

16 The testimony of Dr. Greer has been,

17 There is nothing you could have done to

18 prevent this. That the decorticate position

19 is a function of the signals the brain is

20 sending to the body.

21 Dr. Cranford said, There is nothing you

22 could have done to prevent this. We're not

23 here again to litigate the care that Theresa

24 Schiavo has gotten before. We litigated

25 that and we heard these charges and we had a




909



1 real long trial two years ago, Your Honor.

2 What is the law of the case? What did

3 the Court find in its judgment in January of

4 2000? That the reason Theresa Schiavo has

5 gotten such excellent medical care is

6 because of the efforts of her husband.

7 That's the law of the case. We're not here

8 to relitigate it.

9 We've had statements about Terri

10 Schiavo being kept in an isolation cell with

11 no treatment. Well, it's the law of the

12 case that she had experimental treatment to

13 insert electrodes, Your Honor. That she was

14 at the Mediplex facility and they did all

15 they could for her, Your Honor.

16 That from 1994 to 1996, which is

17 certainly in the last 10 years she had an

18 aide hired by Mr. Schiavo to take her to the

19 museum, to take her to the hair dresser, to

20 take her out in an effort to stimulate her.

21 It is simply not true to say that nothing

22 has been done to stimulate Terri Schiavo in

23 the last 10 years.

24 There was comment about Dr. Gambone's

25 testimony. Now, I think if there were any




910



1 uneasiness about Dr. Gambone or observable

2 in Dr. Gambone I think it's because no one

3 expected or he didn't expect to be

4 testifying on these matters.

5 As I recall, it was the Court's

6 intention because Dr. Gambone did the

7 general physical examination to testify

8 about that and that's what he was asked on

9 direct examination.

10 Dr. Gambone didn't expect when he came

11 in here today to be giving expert

12 neurological opinions on various subjects.

13 He had never seen the tapes. But what was

14 his opinion, Your Honor? His opinion was

15 that Theresa Schiavo was in a persistent

16 vegetative state.

17 Yes, he has many patients, but he, as

18 Dr. Greer, who talked to the Hospice nurses

19 and seen her and cared for her and had

20 probably spent more time with her than

21 anyone else within the past two years, yes,

22 relies on the information that the Hospice

23 nurses and staff have given him and as the

24 records reflect.

25 There is no evidence of any cognition.




911



1 It is also a misreading of his testimony to

2 say that Dr. Gambone was surprised about

3 many of -- about all that he saw on the

4 tapes.

5 I remember regarding the segment where

6 Theresa's eyes are wide open in

7 Dr. Hammesfahr's examination in which

8 Dr. Hammesfahr alleges that that's in

9 response to a command, but if you will see

10 the tape carefully you'll see that it's not.

11 Dr. Gambone said, I've seen her do

12 that. And why did she do it? For no

13 reason. She just did it. I was in the

14 room. I saw it. I wasn't doing anything

15 particular and she just opened her eyes wide

16 open. So Dr. Gambone has seen some of those

17 behaviors, Your Honor, and he stuck to his

18 opinion.

19 Now, it's a misstatement of

20 Dr. Bambakidis' testimony and I believe the

21 testimony of Dr. Greer and Dr. Cranford to

22 say that they said we don't treat vegetative

23 patients.

24 That is not what Dr. Bambakidis said.

25 He said, and I asked him the question,




912



1 Before a diagnosis of permanency is made, do

2 you offer treatments to vegetative patients?

3 And he said, Certainly I do. Certainly I

4 do. These doctors -- these doctors just

5 don't see patients then shuffle them off.

6 I mean, in an acute situation you don't

7 know how a patient is going to progress. Of

8 course they have experience treating

9 patients who are in vegetative conditions,

10 but they're also realists, Your Honor, and

11 out of respect and concern for families when

12 they've made a reasoned judgment, if that be

13 the case, if the patient hasn't progressed

14 within a certain amount of time, as a doctor

15 they have the duty to say the evidence shows

16 that if it hasn't happened by now it's

17 extremely unlikely to happen.

18 And that's what a responsible doctor

19 does. They level with the family. Do they

20 take every effort before that point is

21 reached? Sure, they do. Yes, they treat

22 vegetative patients.

23 Now, we heard regarding Dr. Cranford

24 the phrase inexplicable animus. Well, I

25 wouldn't call it animus, Your Honor. It's




913



1 certainly not inexplicable. I think it was

2 very clear what Dr. Cranford was saying that

3 the opinions or the methodology or the

4 claims are so outlandish, made by

5 Respondent's physicians are so outlandish,

6 so beyond belief that, in his words, as a

7 doctor and member of that profession, he

8 felt ashamed.

9 Now, Your Honor will have to read

10 between the lines, but I would suggest as

11 the testimony of Dr. Bambakidis and

12 Dr. Greer their opinion was not too far

13 behind, but they were certainly more polite

14 and less direct than Dr. Cranford.

15 And what is, you know, what is the

16 reason, Your Honor? Is that there is no

17 science, let alone no independent evidence,

18 but no scientific basis behind the opinions

19 of Dr. Maxfield and Dr. Hammesfahr.

20 Dr. Bambakidis, Dr. Greer, Dr. Cranford

21 both -- all have said increasing blood flow

22 to Terri Schiavo's brain is not going to

23 help anything.

24 The CT scan, the report of the CT scan

25 which is the Petitioner's Exhibit Number 3




914



1 says, there is very little brain matter left

2 in the cerebral cortex, Your Honor.

3 What is -- how is increasing blood flow

4 to the cerebral spinal fluid in those black

5 butterfly areas not only in the center, but

6 on the edges of the cerebral cortex, what is

7 that going to do?

8 How is increasing blood flow to scarred

9 glial tissue, how is that going to improve

10 Terri Schiavo's condition? How is

11 oxygenating the blood and fluids going to

12 improve her condition? By what scientific

13 mechanism can that happen? Through what

14 scientific mechanism can that occur?

15 And their testimony is, there isn't.

16 It doesn't. It won't. And that testimony

17 is credible. It's persuasive, Your Honor.

18 The claim that Terri can be taught a

19 communication system, Your Honor, was

20 rebuked by Dr. Cranford and I believe

21 Dr. Bambakidis as well. Cognition is needed

22 for communication, which is lacking here.

23 Also, Your Honor, you'll notice in the

24 tapes, if you watch them carefully, how

25 Dr. Hammesfahr I believe on more than one




915



1 occasion mistakes Terri hiccupping for a

2 supposedly voluntary response.

3 Also there was testimony, I believe, by

4 Dr. Greer and Dr. Bambakidis that there was

5 no spinal cord injury and the blood flow

6 into the limbs into Terri's legs were

7 consistent with a diagnosis of persistent

8 vegetative state.

9 Well, now, we had Dr. Hammesfahr point

10 out patients or whom he claims were his

11 patients sitting in the gallery, Your Honor,

12 but if you recall about those patients I

13 asked him, Did they talk before you treated

14 them? Could they talk? Could they

15 communicate? Could they walk? And his

16 answer was basically, Yes. One patient did

17 have trouble talking, but could communicate

18 in other one ways. One, I believe, walked

19 to his office.

20 That is no evidence. That is no

21 evidence at all, Your Honor, which would

22 substantiate his claim that he can

23 successfully treat a patient like Terri

24 Schiavo.

25 Now, we've heard a lot about the SPECT




916



1 scan. Dr. Bambakidis is familiar with a

2 SPECT scan. Dr. Cranford said it really

3 isn't used regarding confirmations for

4 persistent vegetative state, although the

5 Medical Aspects of the Persistent Vegetative

6 State says that if you do a SPECT scan you

7 would expect to see reduced blood flow which

8 is exactly what is shown in this SPECT scan,

9 but it also says that you can have a normal

10 SPECT scan or a scan that shows normal blood

11 flow in a patient with a persistent

12 vegetative state. So the SPECT scan really

13 doesn't tell us one thing or another.

14 Also, Your Honor, I think there's been

15 some confusion on the part of Respondents

16 with the SPECT scan and a CT scan. The CT

17 scan does not have a tracer that localizes.

18 That's the SPECT scan. That's how the SPECT

19 scan measures the flow of blood, by having

20 the tracer on the blood to see where the

21 blood goes. There's no such tracer in the

22 case of the CT scan which shows the

23 structure of the brain.

24 Your Honor, it's easy and commonplace

25 in cases like this to make emotional




917



1 appeals. And that, in essence, is what we

2 heard on the part of the Respondents. That

3 Terri must be in there. We have to give her

4 a chance. We have to give her hope. We

5 have to. She's trying hard. She's trying

6 so hard we can't let her down.

7 And, frankly, in listening to those

8 emotional appeals it's hard not to have

9 anyone's heartstrings touched, but we have

10 to go back to the facts. We have to go back

11 to the evidence. We have to look at what

12 credible evidence is in this case.

13 Counselor is not a neurologist. The

14 Court is not a neurologist, not a physician.

15 Yes, if Terri Schiavo on these tapes got up

16 and walked around, sure, we wouldn't have to

17 be a doctor to know that she's not in a

18 vegetative condition.

19 If we said, Terri, blink once for yes

20 and she blinks once and blink twice for no

21 and she would blink twice. I mean, if we

22 could see on these tapes evidence of her

23 ability to follow commands, if we saw any

24 consistent -- if we saw any consistent

25 responses we may be able, you know, we might




918



1 be able to make a conclusion, but they're

2 not there.

3 And they're not there to such an extent

4 to have three highly qualified, highly

5 credible, highly trained, highly experienced

6 neurologists conclude that Theresa Schiavo

7 is in a permanent vegetative state. That

8 there are no treatments that can help her to

9 restore cognitive function.

10 And that the proffered treatments by

11 the Respondents cannot do that. There's no

12 basis for the claim that they can and those

13 treatments are not prevailing in the medical

14 community.

15 As we all -- as we all would want Terri

16 Schiavo to get better, as we all would like

17 to see that happen, as we would all like to

18 believe, Your Honor, that 20 years in the

19 future or 10 years in the future there is

20 some promising new breakthrough that might

21 help a patient like that, the fact is that

22 that's not here. It's not now. It's not

23 available. It's not foreseeable in the near

24 future.

25 And all the reasoned judgment of




919



1 science and the facts show that,

2 unfortunately, Terri is in a persistent

3 vegetative state. She's not going to get

4 better.

5 The Respondents have just wholly failed

6 to carry their burden of proof in this

7 proceeding and so we respectfully request

8 the Court to deny the motion. Thank you.

9 THE COURT: Thank you. Why don't we

10 take 15 minutes and then we will come back

11 for rebuttal.

12 THE BAILIFF: All rise. Court is in

13 recess for 15 minutes.

14 (Thereupon, Court was in recess for 15 minutes.)

15 THE COURT: You may proceed,

16 Ms. Anderson.

17 MS. ANDERSON: Thank you, Judge. I had

18 a conversation last week or the week before

19 with a lawyer friend of mine who was

20 describing a mutual acquaintance and he said

21 that, who was also a lawyer, and he said

22 that person is very bright, but not only in

23 that lawyer, that third lawyer, not see the

24 forest through the trees, he's busily giving

25 every tree a name. I think that's what we




920



1 just heard.

2 Is this a cheap sensationalistic trick?

3 I invite the Court to look at the Cranford

4 exam tape over and over again and you will

5 not see that expression of love on her face.

6 You will not see her look at Ronald Cranford

7 the way she looks at her mother.

8 It seemed difficult for Dr. Cranford to

9 look at this blowup of Terri and her mother.

10 It seemed to anger him. He put me in mind

11 of Dr. Greer when he was on the witness

12 stand and I had to ask him twice to please

13 look at the video monitor while we were

14 playing the video clips. He wouldn't do it.

15 He turned away.

16 Impeachment. Proper impeachment is

17 different than character attacks. Character

18 attacks are not permissible under the law.

19 Were Dr. Hammesfahr and Dr. Maxfield

20 impeached by depo testimony? If they were,

21 it must have been when I was out of the

22 room.

23 Where is Dr. Webber? Where is

24 Dr. Barnhill. We were both free to

25 designate our experts and we did so. I




921



1 don't think the Court should be ascribing or

2 impugning any motive or any meaning to the

3 fact that I chose a board certified

4 neurologist and a quadruply certified

5 radiologist to be my witnesses given the

6 restrictions of the case.

7 Where does Dr. Hammesfahr teach? Well,

8 one place he teaches is at grand rounds at

9 the University of Florida by invitation

10 twice, giving CME credit on the level one as

11 he's done numerous places. Teaching does

12 not make a good doctor.

13 Once again, this issue of the Nobel

14 nomination comes up and it's hard to see how

15 Mr. Felos wants to bring it up again because

16 the fact is Congressman Bilirakis made the

17 nomination. Mr. Felos doesn't think he

18 should have and that is an issue that is

19 beyond the kin of Dr. Hammesfahr.

20 Why would he write a letter a year

21 later to remind Congressman Bilirakis that

22 he had made that nomination? Well, you

23 know, Congressman Bilirakis probably had a

24 lot on his mind, would be my guess, and he

25 was underscoring a point in the letter. Far




922



1 from impeaching credibility.

2 It really doesn't do -- doesn't make

3 any points. Now, he impugns

4 Dr. Hammesfahr's motives for being in the

5 case. Dr. Hammesfahr has not received any

6 money and has spent hundreds of hours. He

7 has volunteered hundreds of hours.

8 What he has gotten for it is the cheap

9 stunt yesterday and the attack in court. To

10 suggest -- for Mr. Felos, of all people, to

11 suggest that he's motivated by publicity

12 when every time Mr. Felos appears in

13 connection with this case he flaunts his

14 book --

15 MR. FELOS: Your Honor, I'm reluctant

16 to interrupt an argument, but I think this

17 is improper mud slinging and name calling

18 and it has no place here.

19 THE COURT: Okay, folks. Please

20 continue.

21 MS. ANDERSON: An example of that

22 recently is the statement in

23 Dr. Hammesfahr's affidavit which is in the

24 case file that did not come into evidence

25 here and as much of what counsel spoke




923



1 about.

2 The statement in Dr. Hammesfahr's

3 affidavit from last, I think it was May 6th,

4 May 4th or May 6th which he said he had been

5 following the case with interest.

6 Mr. Felos says that necessarily implies

7 following the case with interest for a long

8 time. So he's bootstrapped that additional

9 qualifier on to it and then says, And look

10 what he said in deposition. He didn't

11 really know about the case until somewhere

12 around the time the feeding tube was removed

13 last spring, which was at the end of April.

14 That's not impeachment. That is not proper

15 impeachment. That is bootstrapping of the

16 first rank.

17 He also said that Dr. Hammesfahr said

18 that at the beginning of his

19 cross-examination that Dr. Hammesfahr

20 testified, I can't say that there would be

21 mental improvement in Theresa Schiavo. That

22 is not what Dr. Hammesfahr said.

23 What he said was, he cannot predict

24 which will be improved first and what level

25 of improvement there will be. He said




924



1 exactly the opposite, in other words. He

2 said, I am even more confident now that I

3 have examined her that she'll improve.

4 The Court may have doubted its memory

5 as to some of these items that were just

6 raised because, in fact, some of these items

7 that were just raised and argued did not

8 occur during this hearing, were not argued

9 during this hearing.

10 Trust your own memory, Judge. The idea

11 that the Court can get online and do a

12 PubMed research is preposterous? I don't

13 think so. We don't have Dr. Maxfield or

14 Dr. Hammesfahr doing research on stem cell

15 and brain repair. They know about the

16 research. They're at least reading and

17 keeping up with what's going on.

18 Now, it simply is inaccurate to

19 confront Dr. Bambakidis, Dr. Greer and

20 Dr. Cranford with a begged question such as:

21 Is there any therapy that will bring back

22 dead brain cells?

23 It necessarily implies that

24 Dr. Hammesfahr is claiming his therapy will

25 bring back dead brain cells. In fact, he




925



1 stated just the opposite on the stand, just

2 the opposite.

3 It implies such a question that

4 Dr. Maxfield claimed that hyperbaric therapy

5 can bring back to life dead brain cells. He

6 also stated very clearly that that is not

7 what happened. It is the idling -- the

8 vital, but dysfunctional cells that are

9 effected with reoxygenation.

10 And so these doctors work themselves

11 into a frenzy, apparently, over a strongman

12 argument, an argument that was never

13 advanced. And perhaps that triggered

14 Dr. Cranford's ill temper. Perhaps that

15 misunderstanding, that fundamental

16 misunderstanding is what caused them to be

17 so adamant.

18 You may have recalled that each of

19 those doctors was asked if hormone

20 replacement therapy would help Terri. And

21 of course they said, no, it would have

22 nothing to do with it.

23 Merely asking the question implies that

24 Dr. Maxfield or Dr. Hammesfahr was

25 advocating hormone replacement therapy,




926



1 which, of course, they weren't. The words

2 hormone replacement therapy did not come out

3 of their mouths. They were not the ones to

4 make that suggestion. And so perhaps those

5 three witnesses were manipulated.

6 Dr. Hammesfahr, in his deposition, did

7 not say that he had nothing to substantiate

8 his claim of success. It's a

9 misrepresentation to the Court to say that

10 he did.

11 What he said, in response to the

12 question of, you say you've treated 50

13 patients like her, what he said was when

14 challenged, I don't keep medical records in

15 such a fashion that I could easily identify

16 for you which 50 patients those would be.

17 He did not say he has no proof. Of course

18 he has proof.

19 Is there a fate worse than death? Do

20 we kill people in this country because they

21 are disabled? Do we decide that people are

22 nonpersons? Can that law review article

23 equating unconsciousness with lack of

24 personhood be dismissed as merely the

25 provocative musings of a gadfly?




927



1 Perhaps, if it were just the only thing

2 to look at, but there's a lot more than

3 that. There's the speech at the Hemlock

4 Society Conference in which he talked about

5 patient killing as a morally neutral concept

6 under some circumstances. He didn't deny

7 that he made that statement. Is that a

8 gadfly comment or was he preaching to the

9 choir on that occasion?

10 The fact that most people would choose

11 not to be kept alive after they become brain

12 damaged is an affront to the law of the

13 State of Florida in which the Supreme Court

14 has repeatedly said that life is the default

15 position. When in doubt err on the side of

16 life. But it's also an affront to this fact

17 finding process. We don't take a vote.

18 It's not a majority vote. I would want to

19 die under these circumstances. You would

20 want to die, therefore, she must die.

21 Now, where are these legions of doctors

22 over the last 10 years with all those MRIs

23 and those x-rays and those CT scans?

24 They're not there. Once that medical

25 malpractice money came in from February of




928



1 '93 from then on out this young lady was put

2 on a shelf.

3 She has not exactly been swarmed over

4 by health care providers ordering up

5 urinalyses and CT scans. The reason that

6 the '96 CT scan was used in the 2000 trial

7 was that that was the most recent one. The

8 one before that was when she was down at

9 Mediplex.

10 There hadn't been any tests. There

11 hasn't been but precious little medical

12 care, precious little time with the doctor.

13 So why is Dr. Hammesfahr the only one

14 who mentioned her neck? Well, it could be

15 he's the only doctor in the last 10 years

16 who spent four hours with her and really

17 went over her thoroughly.

18 Dr. Bambakidis and Dr. Greer did not

19 palpate her neck. It's my recollection

20 Dr. Cranford palpated it on the neck and

21 when he touched her neck on the right side

22 like this, like this image shows, she smiled

23 because it's a learned response. That's

24 where my mom touches me. It's a learned

25 response, Judge. She first responds to her




929



1 mother's touch and then mom's voice.

2 On the Cranford tape you see it first

3 hand of that learned response. You touch

4 her where mom touches her and she gets that

5 hopeful little smile, but then it's not

6 mom's voice that follows the touch. You

7 will not see this image on the Cranford

8 tape. It's not there. That look is

9 reserved for mom.

10 Did you see in these four-and-a-half

11 hours of tape that she randomly laughed?

12 That Terri inappropriately laughs? No, you

13 don't. Which makes one wonder about the

14 integrity of the records at Hospice,

15 frankly, because you would think surely in

16 four-and-a-half hours of videotape you would

17 see some of this bizarre inappropriate

18 behavior and yet you don't.

19 It just so happens that Celia Bachman,

20 who was mentioned in that note from Hospice

21 and who is an officer of the Court, a member

22 of the Florida Bar, did go to visit Terri

23 one day and the contents of the note the

24 chart notes, as pointed out to you by

25 Mr. Felos, cannot be accurate because




930



1 Ms. Bachman did not see a nurse that day.

2 MR. FELOS: Your Honor, I object and

3 move to strike that. That obviously is not

4 part of the record as to what Ms. Bachman

5 did or didn't do other than what is recited

6 in the chart.

7 THE COURT: It is not part of the

8 record. It's closing argument, it's not

9 evidence so let's continue.

10 MS. ANDERSON: Now, the law in this

11 area is not something that I misunderstand,

12 Judge, particularly since it involves

13 constitutional law.

14 A constitutional provision does not

15 automatically trump a statute which is the

16 converse of what Mr. Felos said. He was

17 saying it is ridiculous to think that a

18 statutory right can take precedent or

19 somehow trump the constitutional right of

20 privacy.

21 The legislature presumes when it

22 enacted a statute such as 765.305 a

23 protective statute, a protected scheme, to

24 be exercising its legislative powers

25 consistent with the constitution.