931



1 There is a very large body of case law

2 in Florida that makes it clear that a trial

3 court is not permitted to willy-nilly

4 declare a statute unconstitutional.

5 A trial court, in fact, is under an

6 affirmative obligation to construe a statute

7 in such a way that it is constant with the

8 constitution, to give it a constitutional

9 reading and meaning.

10 A statute may only be declared

11 unconstitutionally invalid as a last resort.

12 As a last resort. Not as a first resort.

13 This is the position, Your Honor, that,

14 in effect, the Florida Supreme Court decided

15 in Krischner versus McIver. The same exact

16 argument was made. My constitutional right

17 trumps that statute.

18 Different statute, same constitutional

19 right. The Florida Supreme Court said, No,

20 that statute is constitutional. They've

21 answered this question. I don't

22 misunderstand Florida law.

23 If, however, the Court declares the

24 statute unconstitutional, the Attorney

25 General's Office comes in and defends the




932



1 statute on appeal. And so the argument is

2 not made directly, the argument is made

3 indirectly.

4 The indirect argument is, Well, she's

5 in PVS. She is terminal. She is in

6 end-stage condition, but it doesn't make any

7 difference because even if she weren't, her

8 condition doesn't matter. She has a

9 constitutional right of privacy to say, I

10 wish to be dead, please. Take out my

11 feeding tube.

12 That's not the way the statute works.

13 But he gets at it sideways, Judge, by making

14 the argument that way. The fact is the

15 Second DCA has sent this down three times.

16 It's not the law of the case -- or twice

17 rather. It's not the law of the case that

18 she's in PVS, that she's in end stage, that

19 she suffers from a terminal illness.

20 That's the question that you have to

21 decide, Judge. That's why it is back down

22 here. That's why it's here. The Second, I

23 think it's safe to say, is concerned about

24 perhaps making a mistake as Judge Blue, I

25 think it was said during oral argument last




933



1 fall, this is really not an ordinary civil

2 case that's just a fight about money. Where

3 somebody's life is at stake, we've got to be

4 100 percent certain.

5 Now, how can we be 100 percent

6 certain --

7 MR. FELOS: Your Honor, I move to

8 strike it. I move to strike as the comments

9 of Judge Blue are not part of the record in

10 this cause.

11 THE COURT: They're not and I wasn't

12 there, counselor. I can't disagree in what

13 she's saying, but it's not something that I

14 would consider --

15 MS. ANDERSON: Fine.

16 THE COURT: -- only what the gentleman

17 wrote in the opinion.

18 MS. ANDERSON: Okay. The law in

19 Florida is that when in doubt, you err on

20 the side of life. Before you end a life,

21 you certainly must comply with the

22 legislative scheme designed to protect life.

23 Now the experimental treatment was way

24 in the past. On the one hand, the physical

25 therapy that occurred is over, the damage is




934



1 done. We don't need to talk about that.

2 That's quite true, but one of her

3 rights, as I mentioned this morning, that

4 she does not give up when she is declared

5 incapacitated is the right to

6 rehabilitation.

7 Another right that she has as a patient

8 which is a new amendment to the Patient Bill

9 of Rights in Florida is the right to

10 alternative medicine. It is guaranteed

11 under the access to medical care clause in

12 the Patient Bill of Rights. So the law has

13 changed since the case was last before the

14 Court on a fact finding stage.

15 Your Honor, the argument that Theresa

16 Marie Schiavo has no spinal cord injury is a

17 question really that needs to be explored.

18 Guardianships are different than other

19 kinds of cases. Ordinarily at the

20 conclusion of a civil trial the trial

21 court's jurisdiction ends except for the

22 enforcement of the existing orders. The

23 trial court may not take actions that defeat

24 jurisdiction in the appeals court.

25 Guardianship is different to this




935



1 extent: Every day is a new day. Even if

2 some judgment of the trial court is on

3 appeal. The trial court has a continuing

4 day-by-day obligation every day to protect

5 the ward.

6 Why was Dr. Hammesfahr the first person

7 ever to mention the neck problem? Look how

8 Terri's face is flushed in this photograph.

9 Look at this area.

10 Dr. Bambakidis acknowledged that that

11 can be a symptom of a cord injury. She's

12 never had an orthopedic consult. Nobody has

13 ever looked at that neck.

14 Could she get better motion in her

15 limbs if there were some problem that could

16 be repaired easily enough? Have we raised

17 sufficient issues here? Have we raised

18 sufficient issues?

19 In the words of the Second DCA that

20 there might be some doubt that she should

21 die. Because if the Court is not 100

22 percent satisfied that the facts and the law

23 permit it, she can't be made a sacrificial

24 lamb on the stage of the right to die

25 movement. She's not a pawn in that game.




936



1 She deserves a chance, Judge. That's

2 all we're asking for is the opportunity to

3 prove that she could benefit from a chance.

4 Thank you, Judge.

5 THE COURT: Thank you. Just to let you

6 know, I'm not going to engage on an Internet

7 research exhibition. I'm sure you mentioned

8 that in good faith, but I think there are

9 some good decisions that said that I

10 shouldn't be doing that. So I will not be.

11 Okay. We had some housekeeping issues?

12 MS. ANDERSON: Yes.

13 MR. FELOS: Okay. Your Honor, we had*,

14 we have -- I have three orders. First we

15 have a proposed order to quash subpoena.

16 Does opposing counsel have any objection to

17 that?

18 MS. ANDERSON: I think it needs an

19 additional clause for the reasons that the

20 Court stated that no lay opinion was

21 warranted at this hearing.

22 MR. FELOS: Your Honor, let me give to

23 the Court the proposed order that had been

24 reviewed by opposing counsel. I believe it

25 succinctly rendered the Court's order.




937



1 THE COURT: It clearly was the

2 reasoning of the Court as you say,

3 Ms. Anderson. Would the record be

4 sufficient to supplement it if I sign this

5 order?

6 MS. ANDERSON: I would prefer that that

7 clause be in there.

8 THE COURT: Okay.

9 MS. ANDERSON: I have a reason for

10 that. It's not relevant here, but --

11 THE COURT: Well, the fact of the

12 matter is I did not intend to permit lay

13 testimony at this hearing.

14 MR. FELOS: Your Honor, the second is

15 a --

16 THE COURT: Well, wait a minute. Let's

17 get this one sorted out first, Mr. Felos.

18 MR. FELOS: Okay.

19 THE COURT: Having said that, I

20 certainly don't mind signing it. Did you

21 wish to prepare an order that you feel is

22 more along the line of what I rule?

23 MS. ANDERSON: I will, Your Honor.

24 MR. FELOS: The second, Your Honor, is

25 an order on Respondent's request for




938



1 additional medical tests. I've been -- I

2 have not received any indication that

3 counsel objects to the form of that order.

4 MS. ANDERSON: What are you talking

5 about? Oh, this is the thing from two weeks

6 ago?

7 THE COURT: Yes, I assume so.

8 MS. ANDERSON: Right. This is fine.

9 THE COURT: Okay. I do not have my

10 conform stamp, Mr. Felos. I will need to

11 take that back to my office.

12 MR. FELOS: Okay. Your Honor, the last

13 is -- just one moment. The last is a

14 proposed order on the Court's initial ruling

15 on the Motion to Restrict Access to Judicial

16 Records. In that one, Your Honor, I noted

17 in the order -- let me give you a copy of

18 the proposed order.

19 In that, Your Honor, I did note in

20 Paragraph 1 that the Court withheld ruling

21 on the Motion to Restrict Access to Judicial

22 Records and withheld ruling on the Motion to

23 Intervene.

24 In Paragraph 2, what I did is recited

25 verbatim the Court's oral ruling from the




939



1 hearing. Both of us have a copy of the

2 transcript, and so I just reflected in

3 Paragraph 2 verbatim, Your Honor, the

4 Court's oral ruling.

5 I've received no response from

6 Mr. McQuire to the proposed order. I did

7 receive a fax yesterday from Mr. Campbell

8 saying that he was going to submit his own

9 proposed order to the Court.

10 MS. ANDERSON: Judge, it's my position

11 that while it tracks verbatim what you said

12 from the bench, it inadvertently creates a

13 prior restraint on those stations that don't

14 have cameras in the courtroom.

15 After this hearing, the local

16 electronic media entered into a pooling

17 arrangement so there's only one camera in

18 the courtroom per day. And I don't think it

19 was your intent to prohibit those news

20 organizations without cameras in this

21 courtroom from broadcasting what happens in

22 the courtroom.

23 THE COURT: It is my intention to

24 prohibit anybody from getting this tape and

25 commercially using it other than in the




940



1 ordinary course of the disseminating news.

2 That was my intent.

3 MS. ANDERSON: What that order does is

4 to prohibit, for example, the pooled today

5 is Channel 9, it's to prohibit Channel 13

6 from broadcasting what occurred today and I

7 don't think that's the Court --

8 THE COURT: No. My intent is to

9 prohibit Channel 13 from utilizing that

10 other than in the ordinary course of Channel

11 13 disseminating the news.

12 MS. ANDERSON: You know, they don't

13 sell these tapes. In fact, when you try to

14 subpoena these tapes they hire their lawyers

15 to come in and get those subpoenas quashed.

16 THE COURT: That may be why Channel 8's

17 lawyer said they had no problem with that

18 because they don't intend to do that.

19 MS. ANDERSON: They don't share their

20 work product like that --

21 THE COURT: So they should have no

22 problem with this form of restraint.

23 MS. ANDERSON: That's not what the

24 order says. What I'm looking at is the part

25 that says that to the extent you have a




941



1 camera in the courtroom, you could broadcast

2 what you've taped for news purposes.

3 MR. FELOS: It doesn't restrain anyone

4 else, Your Honor. It said in general that

5 the media may video what's presented into

6 evidence and whatever they are doing may be

7 used only for transmission of ordinary news

8 reporting.

9 MS. ANDERSON: But then it goes on

10 actually --

11 THE COURT: Let me do this. Let me

12 take this back and I will create an order

13 that may or may not --

14 MR. FELOS: Here are additional copies

15 of the order and also stamped envelopes for

16 counsel to transmit whatever is rendered.

17 MS. ANDERSON: You're just trying to

18 preclude the commercial use of the images,

19 correct, Judge?

20 THE COURT: Yes, I am. Well,

21 commercial, that's a bad word because the

22 better their news is the more money they

23 make. So I'm not trying to --

24 MS. ANDERSON: No, that word actually

25 is a term of art.




942



1 THE COURT: Oh, is it? Okay.

2 MS. ANDERSON: In this world, yes.

3 THE COURT: With your background, I

4 will certainly take your word for it. Yes,

5 that's what I'm attempting to do.

6 MS. ANDERSON: That order didn't quite

7 do it.

8 THE COURT: Let me see if I could get

9 there. I will do the best that I can.

10 MR. FELOS: Your Honor, the other

11 matter was the introduction of Respondent's

12 evidence book?

13 MS. ANDERSON: Right.

14 THE COURT: Would the fullback kindly

15 bring that forward, please?

16 MS. ANDERSON: I have that here. Miss

17 Bachman had been the custodian of the

18 official exhibit book this week. So if you

19 don't mind, Your Honor, I will let her deal

20 with it.

21 THE COURT: I don't expect either one

22 of you to bring that book forward. You got

23 a gentleman over there that's more than able

24 to do that.

25 MS. ANDERSON: We've not taken anything




943



1 out of it yet because there are some

2 exhibits that --

3 THE COURT: So everything is in there

4 that was in there originally?

5 MS. ANDERSON: Yes. We've not removed

6 anything from the book, Your Honor.

7 THE COURT: Well, is everything that's

8 in the book admitted into evidence?

9 MS. ANDERSON: No.

10 THE COURT: No. Okay.

11 MR. FELOS: Your Honor, perhaps we

12 could take a short recess and counsel can

13 remove what's not in evidence from the book

14 and we can go through our lists and then

15 submit it to the Court.

16 MS. ANDERSON: No. What I'm saying is

17 before we take stuff out of that book we

18 need to move some additional stuff that's

19 already in the book into evidence.

20 In other words, we only want to go

21 through it one time taking stuff out.

22 THE COURT: I would hope that's all --

23 MR. FELOS: Well, Your Honor, we've

24 completed our closing arguments which was

25 based upon the evidence. You make closing




944



1 arguments as to the evidence in the

2 proceeding. It's too late now to introduce

3 additional materials into evidence.

4 THE COURT: Well, it's not prejudged

5 what she wishes to do. What is in here that

6 is not in evidence that you would like to

7 submit?

8 MS. BACHMAN: Your Honor, there are a

9 number of items in there that we would like

10 to withdraw all together. There are a few

11 other articles from scholarly sources,

12 authoritative sources that are on subject

13 matter that all of the witnesses discussed

14 in some fashion.

15 So we would like to offer those few

16 exhibits. Then there are some exhibits that

17 are not in the book yet, such as the eight

18 by ten photos that one of the witnesses left

19 the courtroom with, and the actual film.

20 There was reference that the '96 CT

21 film was already in the record, but we

22 didn't have it available for the Court.

23 We've now obtained that actual film and

24 would like to offer both the films as our

25 exhibits.




945



1 THE COURT: Okay. So we've got three

2 areas that you wish to supplement what's in.

3 And I'm assuming the first area which is an

4 oversight articles that you had and just

5 didn't give me numbers for?

6 MS. BACHMAN: To complicate things

7 further, Your Honor, it was an oversight and

8 there were two articles that were not listed

9 on the exhibit list, but were discussed

10 extensively, one of them by Dr. Cranford

11 that we would like to offer and the other is

12 the International Working Party Work that

13 was also discussed extensively by

14 Dr. Cranford --

15 MR. FELOS: Your Honor --

16 MS. BACHMAN: -- in response to

17 Ms. Anderson's questioning.

18 MR. FELOS: I don't recall anything

19 about the International Working Party Work.

20 I don't know what counsel is --

21 THE COURT: There was a very vague

22 reference --

23 MS. BACHMAN: The Royal Hospital, Your

24 Honor.

25 THE COURT: Is that the British work?




946



1 MS. ANDERSON: Yes, sir. There are two

2 things: One is that Professor Andrews.

3 That's on the exhibit list. I think that's

4 19, isn't it?

5 THE COURT: Does all this need to be

6 taken down or --

7 MS. ANDERSON: It doesn't need to be on

8 the record.

9 THE COURT: Mr. Felos, do you have a

10 problem with this not being on the record?

11 MR. FELOS: I would say let's keep it

12 on the record, Your Honor.

13 THE COURT: Okay.

14 MS. ANDERSON: No, I think it's a paper

15 that was published in Britain by the Royal

16 Neuro Disability Hospital partly in response

17 to this PVS paper.

18 THE COURT: I remember that being

19 talked about.

20 MS. ANDERSON: Okay. And --

21 THE COURT: I just didn't remember it

22 by that name and I assumed that --

23 MR. FELOS: Is that an existing

24 exhibit?

25 MS. ANDERSON: No. That's not an




947



1 existing numbered exhibit. That's called

2 International Working Party Paper on

3 Persistent Vegetative State. Okay. And

4 that I questioned the witnesses about. That

5 is where those statements come from, do you

6 agree that there is no test for inner

7 awareness.

8 THE COURT: My guess is that you didn't

9 refer to it specifically that way, though.

10 MS. ANDERSON: Right. It has a very

11 awkward title.

12 THE COURT: Didn't you refer to it more

13 by publication?

14 MS. ANDERSON: I referred to it as the

15 International Working Party --

16 MR. FELOS: Well, Your Honor, I object

17 to the introduction of that in evidence,

18 number one, I think it is too late. We had

19 a comment the other day as to timeliness.

20 It's on the exhibit list. I don't

21 believe any witness testified that it was

22 authoritative or contained in an

23 authoritative journal and it wasn't listed

24 on the witness list or rather the exhibit

25 list.




948



1 Had it been, it might have given me an

2 opportunity to find articles with different

3 points of view. I think it's a little late

4 in the game to --

5 THE COURT: It's my understanding this

6 offers a contraview of what your articles

7 say.

8 MR. FELOS: Well, then, Your Honor, I

9 would like to introduce the article that it

10 contradicts, the Medical Aspects of the

11 Persistent Vegetative State.

12 MS. ANDERSON: That's in.

13 THE COURT: I thought that's in the

14 record.

15 MR. FELOS: No, it's not in evidence.

16 MS. ANDERSON: Sure, it is.

17 MR. FELOS: No, it isn't.

18 MS. ANDERSON: Yes, it is.

19 MR. FELOS: Do you have that as an

20 exhibit?

21 MS. ANDERSON: The Medical Aspects of a

22 Persistent Vegetative State is in.

23 MR. FELOS: No. What exhibit number is

24 that?

25 MS. ANDERSON: Here's how this works,




949



1 Judge, in '94 the Multi-Society Task Force

2 published their report in two parts in the

3 New England Journal of Medicine, two

4 different issues.

5 In '95 Professor Andrews in Britain

6 from the Royal Neuro Disability Hospital

7 published his paper about the misdiagnosis

8 of PVS.

9 And in '96 this task force that had

10 been formed in Britain, but had members from

11 I think all of the Western European

12 countries, published their paper which was,

13 to some extent, a counterpoint reply to the

14 Multi-Society -- to the American report.

15 THE COURT: Well, I understood that was

16 basically it.

17 MS. ANDERSON: Right. That's it.

18 THE COURT: That was in rebuttal, if

19 you will.

20 MS. ANDERSON: But Dr. Cranford

21 actually wrote an editorial and I questioned

22 him about that. That was in response. That

23 editorial was published in the British

24 Medical Journal and was in response to the

25 International Working Party's Paper.




950



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

2 think -- the initial report is not in

3 evidence and having rebuttal reports --

4 THE COURT: Well, she says it is. Is

5 that in your book, that 1994 two part?

6 MS. ANDERSON: I think it's in, isn't

7 it? I'm pretty sure this is in evidence.

8 MR. FELOS: It's not in evidence.

9 MS. ANDERSON: Do you want it in

10 evidence? It doesn't make any difference to

11 me.

12 MR. FELOS: I didn't offer it, but what

13 I'm saying, Your Honor, is the first report

14 isn't in evidence and putting a rebuttal

15 report in evidence I don't think would be

16 proper.

17 MS. ANDERSON: What is in evidence? Is

18 part one of the Multi-Society Task Force

19 Report in evidence?

20 MR. FELOS: No.

21 MS. ANDERSON: Then what were you just

22 now referring to? You said the first report

23 is in evidence, what are you referring to?

24 MR. FELOS: I said the first report is

25 not in evidence.




951



1 MS. ANDERSON: You said it is in

2 evidence --

3 MR. FELOS: I misspoke.

4 MS. ANDERSON: Would it be helpful for

5 the Court to read it? To read both of them.

6 Go ahead. Whatever. I can always put it in

7 an appendix.

8 THE COURT: I guess I read both or I

9 read neither.

10 MS. ANDERSON: That's my position,

11 because they do provide an interesting

12 contrast. It's kind of a different

13 approach, two different approaches.

14 THE COURT: You know, it's going to be

15 hard enough for me to digest what I've heard

16 and I've got a whole bunch of other

17 articles. If you think it's critical I

18 guess I could read them both. I'm going to

19 try to get this order out -- I will not

20 physically be here the week of Thanksgiving.

21 That's only three days.

22 MS. ANDERSON: What day of the week is

23 Thanksgiving? It's always on Thursday.

24 What's the date?

25 THE COURT: I think the Saturday before




952



1 that is when I'm leaving, which is the 22nd.

2 So we're talking like four weeks from this

3 Saturday. So I'm hoping to have an order

4 out four weeks from this Friday. That's my

5 goal.

6 MR. FELOS: Your Honor, whatever the

7 Court's pleasure. If you want all three

8 articles in, that's fine. We'll introduce

9 the Medical Aspects of the Persistent

10 Vegetative State and the two other articles.

11 If the Court doesn't find it helpful or

12 necessary --

13 MS. ANDERSON: What other --

14 MR. FELOS: -- that's fine as well.

15 THE COURT: Until I read them I can't

16 tell you if they're going to be helpful.

17 Can you all agree that they're both in or

18 both out?

19 MS. ANDERSON: They don't have to be

20 in. I think it would be helpful, but Lord

21 knows you have enough technical information

22 to read there.

23 THE COURT: Mr. Felos?

24 MR. FELOS: Your Honor, I see no

25 particular need to have them in evidence




953



1 unless the Court wants them or feels a need.

2 THE COURT: All right. Then they will

3 be out, both will be out.

4 MS. ANDERSON: That's fine.

5 THE COURT: What's the other article

6 that we wanted to include?

7 MS. ANDERSON: There are some other

8 things that have been discussed that are in

9 the notebook, but haven't been moved into

10 evidence.

11 THE COURT: What do they involve?

12 MS. ANDERSON: 19 and 20 referred to --

13 see I think 19 is Professor Andrews'

14 published study that shows the 43 percent

15 misdiagnosis rate.

16 20 is a letter to the editor concerning

17 that article.

18 THE COURT: So that was Dr. Andrews?

19 MS. ANDERSON: Andrews is his name.

20 The letter to the editor is Nancy Childs and

21 that's 20, I believe. She's the person that

22 published the case study in the New England

23 Journal.

24 THE COURT: She's the one that had the

25 15-month recovery?




954



1 MS. ANDERSON: Right.

2 MR. FELOS: Your Honor, I don't know

3 why they're at this stage of the proceedings

4 seeking to introduce it into evidence. I

5 don't remember any testimony that the

6 British Medical Journal was an authoritative

7 publication.

8 MS. ANDERSON: I think Dr. Greer said

9 that. I'm pretty sure he did.

10 THE COURT: Well, I know he sure talked

11 about that.

12 MS. ANDERSON: The BMA is just like

13 JAMA.

14 THE COURT: I know he talked a lot

15 about that 43 percent.

16 MS. ANDERSON: And this is the source.

17 I can't remember if this is an abstract of

18 the article -- which the abstracts are very

19 convenient because they're only one page.

20 THE COURT: Thank you.

21 MS. ANDERSON: They're very short. It's

22 just the nitty-gritty. They don't have the

23 illustrations in them that the articles do.

24 THE COURT: All right. That's in.

25 What about Dr. Childs' letter to the editor?




955



1 MR. FELOS: Excuse me, Your Honor, if

2 we're going to add the article, the

3 Misdiagnosis of the Vegetative State which

4 refers to the earlier study, then I would

5 ask that the initial study be introduced

6 into evidence, the Medical Aspects of the

7 Persistent Vegetative State.

8 MS. ANDERSON: The misdiagnosis study

9 does not refer to the -- it's a stand alone

10 study, five-year retrospective study of the

11 admissions into the Royal Neuro Disability

12 Hospital. It simply comes in between the

13 American publication about PVS and the

14 British publication about PVS.

15 THE COURT: Well, I'll tell you, in the

16 case of Theresa Schiavo you either have a 40

17 percent misdiagnosis or a 60 percent

18 misdiagnosis. So the 43 percent is probably

19 the norm.

20 MS. ANDERSON: Well, I think there

21 is -- in some of this stuff there is an AMA

22 error in diagnosis standard of

23 one-and-a-half percent.

24 THE COURT: Well, we ought to just

25 trump that card to smithereens in this case




956



1 because we've got five doctors, two say no,

2 three say yes.

3 MR. FELOS: But four say yes and two

4 say no, Your Honor.

5 THE COURT: Well, Dr. Gambone is or was

6 inserted by the Court basically to handle

7 just the fact of her physical and her

8 current medical status.

9 I'm -- in terms of relying upon PVS and

10 those issues I don't need to look solely to

11 the doctors who I've never met prior to this

12 or this particular issue.

13 So let's let that come in. I'm not

14 sure -- I probably wouldn't read anything

15 more than the analysis because obviously

16 that's where we are.

17 MR. FELOS: Your Honor, as I understand

18 it, you're letting in Respondent's 19 and

19 20.

20 THE COURT: No, we haven't gotten to

21 Dr. Childs' letter to the editor yet. What

22 does that deal with?

23 MS. ANDERSON: Well, we were talking

24 about misdiagnosis paper, right?

25 THE COURT: Yes, ma'am.




957



1 MS. ANDERSON: That's 19.

2 THE COURT: Right.

3 MS. ANDERSON: That's called

4 Misdiagnosis of the Vegetative State

5 Retrospective Study in a Rehabilitation Unit

6 313 British Medical Journal, Pages 13

7 through 16.

8 THE COURT: What about Exhibit 20,

9 which is Dr. Childs' letter to the editor?

10 MS. ANDERSON: That's the letter to the

11 editor from Dr. Childs' and it was headlined

12 Misdiagnosis Certainly Occurs.

13 THE COURT: Well--

14 MS. ANDERSON: In the October edition.

15 October 12th edition of the British Medical

16 Journal of that year.

17 THE COURT: Well, the only testimony I

18 think we've heard about letters to the

19 editor is they're not necessarily reliable.

20 MS. ANDERSON: There are letters to the

21 editor.

22 THE COURT: That's the hearsay opinion

23 of one person. That's not anything peer

24 reviewed or researched.

25 MS. ANDERSON: Well, I mean, it's all




958



1 hearsay, Judge. All these. As you pointed

2 out, every piece of paper that comes into

3 Court is hearsay.

4 THE COURT: But some are more or less

5 hearsay. I think 19 ought to do what you

6 want.

7 MS. ANDERSON: Okay.

8 THE COURT: You probably don't need 20.

9 MS. ANDERSON: Okay.

10 THE COURT: What else? Actually 20

11 might be simpler to read than 19.

12 MS. ANDERSON: 37.

13 THE COURT: Which is? I'm not looking

14 at these --

15 MS. ANDERSON: Right.

16 THE COURT: -- as we're talking for the

17 same reason I didn't read the newspaper

18 story.

19 MS. ANDERSON: Right. As I recall,

20 it's a one-page abstract from the Journal of

21 Hypertension called Volhard Lecture Brain

22 Blood Pressure In Strokes in the Journal of

23 Hypertension. December of '98.

24 MR. FELOS: Your Honor, I don't recall

25 any testimony about the Journal of




959



1 Hypertension, its authoritative nature when

2 these articles were first introduced--

3 THE COURT: Okay.

4 MR. FELOS: -- when Dr. Hammesfahr was

5 on the stand. I mean I made an objection

6 which was a continuing objection as to

7 hearsay and also that these treatises can be

8 referred to and not introduced into

9 evidence.

10 The Court was of the opinion that if

11 the witness found the publication

12 authoritative they could be introduced, but

13 I don't recall even on by that standard any

14 testimony that the Journal of Hypertension

15 was declared by anyone to be authoritative.

16 MS. ANDERSON: Judge, I am not offering

17 this document for the truth of the matter

18 asserted.

19 THE COURT: What are you offering this

20 for?

21 MS. ANDERSON: I'm offering this

22 document to show the evolution of the state

23 of scientific knowledge.

24 MR. FELOS: How is that not for the

25 truth of the matter asserted? I mean,




960



1 obviously they're asserting that the person

2 who wrote it at that time believed it to be

3 true.

4 THE COURT: Almost sounds like a

5 conflict of evidence distinction.

6 MS. ANDERSON: Well, you know, I'm just

7 trying help the Court understand the medical

8 issues. It is misleading to say that

9 there's nothing that backs up Hammesfahr's

10 therapy because this is some of it. There

11 is a ton, actually.

12 MR. FELOS: Then why wasn't that

13 introduced or sought to be introduced when

14 he was on the stand commenting upon these

15 publications?

16 MS. ANDERSON: Well, actually, George,

17 I did introduce quite a bit when he was on

18 the stand. I'm just trying to be helpful,

19 you know.

20 THE COURT: What else did we have?

21 MS. ANDERSON: Yes or no on 37?

22 THE COURT: I'm going to cogitate --

23 MS. ANDERSON: Okay. That's a

24 legitimate alternative.

25 THE COURT: Yes, it is. Thank you.




961



1 MS. ANDERSON: 67 through 71 and 78

2 through 87. These relate to hyperbaric

3 things.

4 THE COURT: What are they?

5 MS. ANDERSON: Journal articles. And I

6 think two of these are chapters out of the

7 textbook on hyperbaric medicine that

8 Dr. Maxfield mentioned.

9 MR. FELOS: Your Honor, in fact,

10 Dr. Maxfield said the opposite, Your Honor.

11 As I recall Dr. Maxfield's testimony, he was

12 asked about some of these. He recognized

13 the journals and he said, I don't recognize

14 it and it was dropped at that point.

15 These articles weren't discussed by

16 him. He didn't recognize the publication.

17 They're hearsay. He didn't recognize them

18 as authoritative and I'd object to their

19 introduction.

20 MS. ANDERSON: If you care to read some

21 information about hyperbaric medicine I've

22 got it for you, Judge.

23 MR. FELOS: Your Honor, this is --

24 we're not at the public library having a

25 discussion, we're at a proceeding where the




962



1 Rules of Evidence apply.

2 MS. ANDERSON: We talked about this

3 textbook which is 70 or 71, I believe.

4 THE COURT: You know, I actually think

5 I have a far better understanding of

6 hyperbaric medicine than I do of the

7 vasodilation. It's been related to the

8 bends. I used to teach diving so I

9 understand the concept of that.

10 MS. ANDERSON: It's 71. That is a book

11 chapter entitled Hyperbaric Oxygen Therapy

12 in Global Cerebral Ischemia Anoxia and Coma.

13 THE COURT: What text?

14 MS. ANDERSON: Called the Textbook of

15 Hyperbaric Medicine. He did mention that.

16 MR. FELOS: I don't believe he

17 mentioned it. If he did, he certainly

18 didn't say it was authoritative. There is no

19 one who has said any of these hyperbaric

20 materials were authoritative.

21 It's just a hearsay opinion of some

22 author out there.

23 MS. ANDERSON: The other book chapter

24 is 79 out of the same textbook. That

25 chapter is called Hyperbaric Oxygen Therapy




963



1 in Neurosurgery.

2 It's much easier to understand, I'll

3 tell you that, than the vasodilation.

4 MR. FELOS: Well, then perhaps a

5 witness could have testified about it when

6 he was on the stand and given every

7 opportunity to cross-examine him about it,

8 Your Honor.

9 MS. ANDERSON: You know, Your Honor, a

10 life is at stake here and I think this

11 attitude is uncalled for. I really think it

12 is.

13 MR. FELOS: You know, I think this

14 sandbagging is uncalled for, too, Your

15 Honor. Not bringing it up during the

16 proceeding and then at the last moment

17 trying to get it in.

18 MS. ANDERSON: This is not sandbagging.

19 He has had these exhibits for

20 three-and-a-half weeks. There is

21 nothing --

22 MR. FELOS: I'm not saying--

23 MS. ANDERSON: This is housekeeping,

24 Judge.

25 THE COURT: Well, I had this book at




964



1 the start of the proceeding. I don't know

2 if was at the trial, a hearing, but we'll

3 call it a proceeding. I hadn't opened it,

4 really, because it wasn't in evidence.

5 And sooner or later we're going to make

6 sure that everything that I was going to

7 walk away from here is in evidence. So this

8 discussion could have been had yesterday

9 afternoon, it could have been had this

10 morning.

11 We agreed this morning that

12 housekeeping would come at the end of the

13 closing arguments. You wanted to take it up

14 earlier and Ms. Anderson was ready to go

15 with her closing arguement and I thought we

16 had an understanding that housekeeping we

17 will just defer until this afternoon and

18 that's why we're here, very much out of

19 order, but that's what the Court ruled.

20 If we would have done it this morning

21 it would have been prior to closing. I'm

22 not sure anything in here would have changed

23 your argument. Mr. Felos, you seemed

24 extremely well-prepared and you had these

25 things and you know what was testified to.




965



1 Some of this stuff she wants me to read

2 has nothing to do with what was testified

3 to, it's just for an understanding of the

4 subject matter, I would think.

5 MS. ANDERSON: Just some background

6 understanding, right. You know, we don't

7 have a jury here. The principles are

8 different in a jury trial after you've made

9 your closing argument if you suddenly add a

10 key piece of evidence.

11 I'm just trying to assist this Court

12 and the Second DCA. That's all I'm trying

13 to do.

14 THE COURT: We specifically deferred

15 this until after closing arguments so it's

16 not --

17 MS. ANDERSON: Yes.

18 THE COURT: So it's not --

19 MS. ANDERSON: I think he's waived this

20 particular argument, frankly.

21 THE COURT: Well --

22 MR. FELOS: How could I have waived an

23 argument regarding the lack of admissibility

24 when the materials haven't been sought to be

25 introduced into evidence?




966



1 It's my recollection, Your Honor, the

2 reason they weren't is Dr. Maxfield didn't

3 recognize the texts that were asked.

4 THE COURT: All right. Are there any

5 articles in evidence that deal with

6 hyperbaric therapy?

7 MS. ANDERSON: I don't think so. I

8 don't think so. Those two book chapters

9 would probably be most helpful to you.

10 THE COURT: No, I'm just talking about

11 you've got a whole bunch of these already in

12 evidence that we agreed to up front.

13 MR. FELOS: I don't think there are any

14 hyperbaric materials in evidence of that

15 nature.

16 THE COURT: All right. Why don't you

17 pick one.

18 MS. ANDERSON: One book chapter?

19 THE COURT: One something to deal with

20 hyperbaric.

21 MS. ANDERSON: The very best one.

22 THE COURT: If you're trying to be

23 helpful then be helpful because I do want to

24 understand the concepts.

25 MS. ANDERSON: 71, which is the




967



1 Hyperbaric Oxygen Therapy in Globel Cerebral

2 Ischemia, Anoxia and Coma.

3 THE COURT: All right. So 71 is in.

4 The others we will just put on the side.

5 What else do you need to enter or have

6 introduced?

7 MS. ANDERSON: Oh, I think this is in.

8 I think this was mentioned, 89. It's an

9 abstract. I think somebody talked about

10 this. I can't remember, I think it was one

11 of Mr. Felos' witnesses I believe.

12 Residual Cerebral Activity in

13 Behavioral Fragments Can Remain in a

14 Persistently Vegetative Brain. And that is

15 in the June 2002 issue of Brain. I think

16 maybe Dr. Cranford mentioned that. This is

17 just an abstract.

18 THE COURT: An abstract?

19 MS. ANDERSON: Yes, sir.

20 MR. FELOS: 89 had not been introduced,

21 Your Honor.

22 THE COURT: Eight. 88 is in.

23 MS. ANDERSON: Correct.

24 THE COURT: Any objection to that,

25 Mr. Felos?




968



1 MR. FELOS: Yes, Your Honor, the same

2 objection.

3 THE COURT: Do you recall Dr. Cranford

4 talking about that though?

5 MR. FELOS: I don't recall him talking

6 about that article, Your Honor.

7 THE COURT: This is the abstract of an

8 article?

9 MS. ANDERSON: Yes, sir.

10 THE COURT: What's the name of it

11 again?

12 MS. ANDERSON: Residual Cerebral

13 Activity and Behavioral Fragments can remain

14 in the Persistently Vegetative Brain. I'm

15 pretty sure it was Cranford. Maybe not. One

16 great thing about medical articles is their

17 titles tell you their subject. It does not

18 hold true of law review articles.

19 THE COURT: But I think I have a ton of

20 testimony on that very point.

21 MS. ANDERSON: Okay. You know, the

22 blowups have actually been admitted into

23 evidence. Are they going to stay in

24 evidence? Do you want me to take them away?

25 THE COURT: These on the board; is that




969



1 what you're talking about?

2 MS. ANDERSON: Yes, sir.

3 THE COURT: Well, I've got the eight by

4 tens and Dr. Maxfield--

5 MS. ANDERSON: Then Dr. Maxfield left

6 the courtroom with the 2002 ones.

7 THE COURT: Right.

8 MS. ANDERSON: So are the eight by ten

9 blowup sufficient for your purpose because

10 we also will be putting in the films

11 themselves.

12 THE COURT: As opposed to these guys?

13 MS. ANDERSON: Yes.

14 THE COURT: Right. Ms. DeBlaker will

15 appreciate it very much if these exhibits do

16 not come into evidence.

17 MS. ANDERSON: Yes, I think that's why

18 I'm asking.

19 THE COURT: Mr. Felos, do you have any

20 problem with that?

21 MR. FELOS: No.

22 THE COURT: Thank you.

23 MS. ANDERSON: Could we substitute them

24 or --

25 THE COURT: No, we --




970



1 MS. ANDERSON: We already gave numbers

2 to them.

3 THE COURT: Well, that's 88, isn't

4 that?

5 MS. BACHMAN: We made, Exhibit 98 we

6 made the eight by ten photos of the '96 CT

7 scan so we can withdraw Exhibit 96 and add

8 Exhibit 98 which are the photos.

9 THE COURT: It is 98, excuse me.

10 MR. FELOS: 96 I have listed as the

11 eight by tens of the 2002.

12 THE COURT: This is 98.

13 MR. FELOS: 98 was the eight by ten of

14 the 1996 CT scans.

15 MS. BACHMAN: Correct.

16 THE COURT: Okay. You're right. I'm

17 awaiting to receive 96 as soon as you can

18 get Dr. Maxfield to get them.

19 MS. ANDERSON: I'll probably have to go

20 get it.

21 MS. BACHMAN: Your Honor, since 96 was

22 identified as the large version of the '96

23 scan and the 2002 photos are going to come

24 in by eight by ten form.

25 Could we make those Exhibit 100, so




971



1 there's no confusion about those two

2 numbers. Just give the eight by ten new

3 numbers as we did with the '96 scan?

4 THE COURT: Were these 96; is that the

5 number we used?

6 MS. BACHMAN: Yes. We used 96 for the

7 large one and 98 for the small one.

8 THE COURT: All right. That makes

9 sense.

10 MS. BACHMAN: And Exhibit 10 was the

11 large 2002 and we'll make Exhibit 100 the

12 eight by tens of the 2002 when you get them.

13 THE COURT: That's fine.

14 MR. FELOS: So Exhibit 100 is the eight

15 by tens of the 2002 CT scan?

16 THE COURT: No -- yes.

17 MS. BACHMAN: We would like to offer

18 the '96 actual film as Exhibit 101 and the

19 2002 film as Exhibit 102.

20 THE COURT: Without objection?

21 MR. FELOS: I would like to see the

22 films.

23 THE COURT: Okay.

24 MR. FELOS: So 101 is the actual film

25 of 1996 and 102 is the actual film of the




972



1 2002?

2 MS. BACHMAN: Yes.

3 THE COURT: Mr. Felos, if you will look

4 at that and then you can get that to me when

5 you get Exhibit 100.

6 MR. FELOS: Yes, sir.

7 MS. BACHMAN: One other question, Your

8 Honor, but I believe the testimony with

9 regard to Petitioner's Exhibit 5 which was a

10 composite exhibit certain pieces of it were

11 identified by Bates number and discussed by

12 the witness.

13 It was -- it seemed that the other

14 pieces of that composite exhibit that were

15 not discussed with the witness were offered

16 to the Court may have inadvertently remained

17 in Composite Exhibit 5.

18 So my question is simply what is

19 Exhibit 5 for the Petitioner?

20 THE COURT: What is Exhibit 5 because

21 I'm not showing it on my sheet.

22 MR. FELOS: That was marked for

23 identification, but it wasn't introduced in

24 to evidence.

25 THE COURT: Okay.




973



1 MS. ANDERSON: The question is --

2 THE COURT: It doesn't matter. It's

3 not in evidence. It doesn't matter what it

4 is.

5 MS. BACHMAN: There were certain

6 documents that were identified by Bate

7 number. If they're going to be identified

8 and made a part of the record or they're not

9 going to be offered as part of the record at

10 all?

11 THE COURT: He's not offering that into

12 evidence so it doesn't matter.

13 MS. BACHMAN: Thank you.

14 MR. FELOS: So, Your Honor, perhaps we

15 can go through the list of Petitioner's

16 exhibits so we're all on the same page as to

17 what should be removed from the book.

18 THE COURT: I will give this book back

19 and let them remove what's not in evidence.

20 Also, I don't have this CD marked or

21 numbered or anything. I know it's in, but

22 could you tell me what number it is?

23 MS. BACHMAN: Exhibit 97 is Composite

24 CD.

25 THE COURT: Yes, it is Number 97.




974



1 Thank you.

2 MS. BACHMAN: Your Honor, the summary

3 list was to be part of the exhibit, but only

4 for assistance to the Court and not as

5 evidence in the cause.

6 THE COURT: Well, that's over here

7 someplace. Here it is. Mr. Felos?

8 MR. FELOS: Your Honor, I did want to

9 introduce one article, the Medical Aspects

10 of the Persistent Vegetative State.

11 THE COURT: I thought we said that

12 wasn't coming in.

13 MR. FELOS: That was until the

14 Petitioner's 19 was entered and introduced

15 the Misdiagnosis of a Vegetative State

16 Respective Study. Based upon that I'd move

17 to introduce the article.

18 THE COURT: Then I've got to take their

19 article.

20 MS. ANDERSON: Wait. Maybe I can clear

21 this up. As a person who has actually read

22 that article, Exhibit 19, it is not in

23 response to the American Multi-Society Task

24 Force Report. It just was published the

25 year after.




975



1 It's not in response to -- in fact,

2 Dr. Cranford wrote a letter to the editor

3 of the British Medical Journal complaining

4 that Dr. Andrews had not taken the American

5 report into account in that article. So

6 it's not in response to, it's just--

7 MR. FELOS: Your Honor, we had the

8 Respondent's introduce, what, 20, 30, 40

9 articles. I think we should be allowed to

10 introduce one.

11 THE COURT: Mr. Felos, then why don't I

12 rule on this next Thanksgiving. I mean, you

13 know, I'm trying to get stuff in here that I

14 can properly digest. And I thought we

15 agreed that it is 43 percent is probably

16 right on the money. There is nothing new

17 because this hearing 40 percent at an

18 absolute minimum had misdiagnosed PVS.

19 MR. FELOS: I certainly--

20 THE COURT: At an absolute minimum.

21 And at a maximum 60 percent of misdiagnosed.

22 So I don't know how that goes into your 94.

23 Now, if you're really insistent bring

24 it in and add four weeks because one of

25 those weeks I'll be gone. Whatever that




976



1 other exhibit is that I said we'll keep them

2 both out or let them both in--

3 MR. FELOS: I'm not going to cause to

4 delay the Court's action in this matter.

5 Certainly I just want to correct if there's

6 any misapprehension in the record it

7 certainly is not the position of the

8 Petitioner that there is a 43 misdiagnosis

9 rate for vegetative patients.

10 THE COURT: I didn't catch that, I'm

11 sorry?

12 MR. FELOS: I said it's certainly not

13 the position of the Petitioners and the

14 Petitioners had never agreed that there's a

15 43 percent misdiagnosis rate of vegetative

16 patients.

17 THE COURT: I'm not suggesting you have

18 to. All I suggested was, Mr. Felos, in this

19 case in this courtroom in the last seven

20 days there has been a minimum of a 40

21 percent misdiagnosis of PVS.

22 Do you agree with that?

23 MR. FELOS: Yes, Your Honor.

24 THE COURT: And a maximum of 60 percent

25 misdiagnosis; do you agree with that?




977



1 MR. FELOS: No, I disagree with that,

2 but I do agree that there's--

3 THE COURT: Well, if their doctors are

4 right 60 percent of the ones that testify

5 are misdiagnosed, right?

6 MR. FELOS: Based upon that

7 hypothetical, Your Honor.

8 THE COURT: Yes. So to suggest that 43

9 percent is simply untoward when I'm dealing

10 with at least 40, I'm not sure how that's

11 going to help me. I know there's

12 misdiagnosis, I've heard it from the witness

13 stand. I just don't know who I've heard it

14 from. So thank you for not pressing that

15 issue.

16 MR. FELOS: All right. You were about

17 to say before I interrupted you that you

18 were returning the book.

19 THE COURT: The book is over on their

20 table. Why don't you all take a few minutes

21 and make sure that what's in there is what

22 we agreed to be in. Let's stand at ease

23 until you all let me know you're ready.

24 Thank you.

25 (Thereupon, there was a break in the hearing.)




978



1 THE COURT: Did we agree?

2 MS. BACHMAN: We agreed, Your Honor.

3 THE COURT: Wonderful. May we have the

4 book, please?

5 MS. BACHMAN: The book and the two

6 films. We labeled the two films also.

7 THE COURT: Okay. Sheriff, could you

8 bring those up?

9 MR. FELOS: Your Honor, we agreed that

10 what the Court has accepted into evidence is

11 in the book, but, of course, our objections,

12 prior objections, are not waived.

13 THE COURT: Now nothing is waived.

14 It's just -- I just wanted you all to agree

15 that what was in the book is what the Court

16 agreed should be in the book.

17 MR. FELOS: That's correct, Your Honor.

18 THE COURT: Okay. All right. Anything

19 else from a housekeeping perspective?

20 MS. ANDERSON: No, Your Honor. I will

21 be bringing those blowups of the CT scans

22 scans --

23 THE COURT: All right.

24 MR. FELOS: -- to you as soon as I

25 track it down. I'll send -- should I bring




979



1 it to you or to the clerk's office?

2 THE COURT: No, I want it to me, but

3 why don't you just take it to St. Pete

4 courthouse to some judge down there and ask

5 them to have it in their office and that

6 will save you the trip.

7 MS. ANDERSON: I really enjoy driving

8 up here to Clearwater every single morning

9 at eight o'clock.

10 THE COURT: I'm not ordering you not

11 to, but I'm just saying if you want to save

12 about two-plus hours that's a good way to do

13 it.

14 MS. ANDERSON: Thank you.

15 THE COURT: Thank you. Anything

16 further?

17 MR. FELOS: Nothing, Your Honor.

18 THE COURT: All right. We will stand

19 adjourned then and I will continue to shoot

20 for the 21st of November is a Friday. If

21 it's not, it's the Friday that's closest to

22 that. I will do my best effort to do it by

23 then.

24 MS. ANDERSON: Judge, there's one

25 thing, I haven't had a chance to get in my




980



1 office and tap out a response to this

2 petition to prepaid funeral expenses, but I

3 have something to say about that and I

4 appreciate your not taking that up until I

5 get my response to you.

6 THE COURT: Okay.

7 MS. ANDERSON: Thank you.

8 THE COURT: Very well. Okay. Thank

9 you.

10 (Thereupon, the proceedings for 10/22/02 were

11 concluded.)

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981



1

2 CERTIFICATE OF REPORTER

3 STATE OF FLORIDA )

4 COUNTY OF PINELLAS )

5 I, CHARLENE M. KOCH, R.P.R.
certify that I was authorized to and did
6 stenographically report the foregoing proceedings; and
that the transcript is a true record of the
7 proceedings.

8 I FURTHER CERTIFY that I am not a relative,
employee, attorney or counsel of any of the parties
9 hereto, nor am I a relative or employee of such
attorney or counsel, nor do I have any interest in the
10 outcome or events of this action.

11
DATED this 22nd day of January, 2003.
12

13
_______________________________
14 CHARLENE M. KOCH, R.P.R.
Deputy Official Court Reporter
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