21 I submit the article is hearsay. Also, even

22 if it weren't hearsay, I am renewing my prior

23 objection, Your Honor, that this court has

24 overruled as to the other medical articles in that

25 it's not proper to use on direct examination.






207

1 As to the patent, what I have for Exhibit

2 Number 15 is a printout from a website.

3 MS. ANDERSON: It's on the United States

4 Patenting Trademark office's official website, is

5 what that is, and he authenticated it.

6 MR. FELOS: Well, the point is for

7 authentication. If it's supposed to be

8 self-authentication, it requires the signature of

9 the public official, Your Honor, so it's not

10 self-authenticating.

11 MS. ANDERSON: Dr. Hammesfahr authenticated

12 it.

13 THE COURT: I'm going to receive the other one

14 subject to that same motion to strike. I'm

15 troubled by the patent since I don't understand

16 what a patent is supposed to tell me.

17 MS. ANDERSON: Okay.

18 THE COURT: To me, you make a new procedure.

19 If the new procedure works, that means you pull the

20 trigger and the hammer falls, it works. But I

21 don't know what that tells me about it's science in

22 the relevant scientific community. My guess is

23 that there are medical patents out there that, you

24 know, are abandoned, for want of a better word.

25 MS. ANDERSON: Oh, sure. But one of the






208

1 things that you also have to consider hearing is

2 efficacy. That's one of the issues that the Second

3 DCA wants to know about, probable efficacy. And we

4 will address that again with Dr. Hammesfahr later

5 on.

6 THE COURT: But, again, how does a patent --

7 you have -- since I don't know what a patent means.

8 MS. ANDERSON: It tells you new. Now, again,

9 that's one of the things that the Second DCA said

10 that establishes, new. That's what that does at a

11 minimum.

12 I'm not saying, Judge -- well, whatever

13 Mr. Felos thinks I'm saying. All I'm saying is

14 Dr. Hammesfahr applied for and received a patent

15 from the United States government for new medical

16 therapy. Maybe he will tell the Second DCA

17 something about new, and if we read it, it will

18 tell them something about efficacy.

19 MR. FELOS: Your Honor, this patent also

20 contains hearsay within hearsay.

21 MS. ANDERSON: Like trial transcripts is a

22 public record.

23 Judge, can we move on? Have you made your

24 ruling?

25 THE COURT: No, I haven't. I'm still






209

1 wrestling with it.

2 Does the witness have the documents you wish

3 to be received or are they in your book?

4 MS. ANDERSON: The patent. You have them in

5 the evidence, if that's what you're asking.

6 THE COURT: You wish to bring into evidence

7 what exhibit?

8 MS. ANDERSON: It's in the book.

9 THE COURT: You will need to give me those

10 numbers.

11 MS. ANDERSON: The patent is exhibit?

12 THE COURT: Fifteen.

13 MS. ANDERSON: The article is exhibit?

14 THE COURT: Seventeen.

15 (Whereupon, the documents referred to were
received

16 in evidence as Respondents' Exhibit Numbers 15 and 17.)

17 BY MS. ANDERSON:

18 Q. Dr. Hammesfahr, would you read the exhibit

19 numbers on the article that you have in front you?

20 A. Twenty-four, 28, 25, 30, 32, 33, 34, 35, 40,

21 41, 42, 44, 45, 46, 47, 50, 54, 58, 64, 72, 74, 75, and

22 76.

23 Q. What effects did calcium channel blockers have

24 on vasospasm?

25 A. Certain calcium channel blockers were the






210

1 first to identify the use of treating vasospasm. Some

2 are very effective and some are less effective.

3 Q. What are Statins?

4 A. Statins were drugs that were originally

5 thought to treat cholesterol, high cholesterol, lower

6 cholesterol, thus decreasing cholesterol plaque

7 formation in helping to prevent stroke. But also

8 orthometric oxide relieves the body and thus having

9 immediate effect on the blood vessels by increasing

10 blood flow due to nitroglycerin and nitric oxide release

11 and changes.

12 Q. Do you use calcium channel blockers in and

13 stanton in your therapy?

14 A. Yes, we do.

15 Q. Are there other types of drugs that you use?

16 A. Yes, they are.

17 Q. What are they?

18 A. They are medications called ACE or ARB

19 medications. Those are two families of medications that

20 work on the nitroglycerin/nitric oxide pathway to the

21 body and enters into the converting enzyme pathway and

22 its component pathways.

23 Q. Now, angiotensin, as you said to me, as a

24 layman, is a drug that has the effect of lowering the

25 blood pressure. Am I not understanding that correctly?






211

1 A. Yes, it does. All vasodilators can lower

2 blood pressure if used in a higher dose because they

3 dilate blood vessels and lower blood pressure. So you

4 can lower blood pressure with any of these medications,

5 although, you don't have to to treat the underlying

6 disorder.

7 Q. Now, have you had success in recovering

8 cognitive function in your patients?

9 A. Yes. We have had improvement in the cognitive

10 function of the patient.

11 Q. Are there any examples of that in the

12 courtroom today?

13 A. Yes, they are.

14 Q. Can you tell the court -- can you identify the

15 patients in the audience today and tell the court

16 briefly what condition that patient was in when he first

17 presented to you?

18 A. Well, Miriam Sapiro, who's in a blue-green

19 outfit back by the column, had had a head injury and she

20 had difficulties with concentration, severe migraines.

21 Was one of our first patients that actually went on

22 these medications and has done very well since then, is

23 living independently.

24 Q. Was she not living independently when she

25 first came to you?






212

1 A. She was having a great deal of difficulty

2 living independently before we started.

3 Q. Has her cognitive function improved?

4 A. Oh yes.

5 Q. And do you have her evaluated how?

6 A. We have her evaluated with respect to

7 neuropsychological testing.

8 Q. Outside of your office?

9 A. Yes.

10 Q. By someone else outside of your office?

11 A. Yes.

12 Q. What else?

13 A. Robin Robinson is in the first row wearing

14 gold. She brought her father to me eight years after a

15 stroke. He was partially paralyzed. And he was a

16 psychologist, a professor of psychology, who was no

17 longer able to live independently. He started was on

18 medication. She kept a diary of three weeks during the

19 time frame when he cognitively -- he came in in a

20 wheelchair and walked home out of the wheelchair.

21 He has also had major cognitive improvements.

22 Three months later, he got out of the wheel chair, was

23 able to walk up and down steps, going to support

24 meetings. And also, he would live independently. Was

25 living in a non-independent status, was able to go home






213

1 for three or four months in an independent status. It

2 was eight years after his stroke.

3 Q. Eight years?

4 A. Eight years that I started treating him after

5 his stroke.

6 Q. Now, let me ask you a question about years

7 from original injury. In your experience with this

8 vasodilation therapy, does it make a difference how far

9 out from the injury the patient might be?

10 A. Yes, there is a difference.

11 Q. What is the difference?

12 A. Well, it's best to treat somebody who's having

13 a stroke the moment that they're having it, or within

14 the first hours or days or weeks. The farther out you

15 are, there is going to be more difficulty in getting the

16 same level of improvement as if you could see somebody

17 while they are having the stroke.

18 Q. Now, is that true -- or is there a point where

19 the patient reaches maximum medical improvement?

20 A. Yes, there is.

21 Q. And is there a consensus in the literature on

22 what that point is?

23 A. Yes, there is.

24 Q. What is that?

25 A. The general consensus of the published






214

1 reports, one done in Copenhagen recently of 1,200 --

2 1,197 patients is that by three month the person has

3 essentially reached the plateau stage beyond which

4 functional recovery is unlikely.

5 Q. And has that been your experience?

6 A. Well, that's been my experience prior to using

7 something like hyperbaric or vasodilators, yes. It

8 might go a little longer, six months or nine months, but

9 then you are having very little improvement.

10 Q. Now, if a patient is one year out or five

11 years out, is there any difference in terms of that

12 recoverability factor?

13 A. Well, you know, we're seeing -- it's sort of

14 like -- the concept is sort of like having a knee injury

15 with a torn cartilage. Once you have a torn cartilage

16 and you have your injury, you are either going to limp

17 around for a while and either recover or not recover.

18 If you don't recover, you will continue to limp until

19 you have some sort of a definitive treatment, like

20 surgery, and then you will start to feel better.

21 So in medicine, the concept of maximum medical

22 improvement is the degree of improvement that you will

23 get with whatever therapies you are on at that point.

24 Once you start a new therapy, there will be a new type

25 of maximum medical improvement. So a patient one year






215

1 out or five years out will still have improvement once

2 they start, in our case, vasodilators, hyperbaric, or

3 other therapies out there now.

4 Q. So you're not saying that a patient who's four

5 years out will be a better candidate for recovery than a

6 patient who is seven years out?

7 A. Well, we've had dramatic recoveries in

8 patients, dramatic sometimes right away and sometimes

9 over a year or two or three years. A patient can be a

10 year out as well as ten years or longer.

11 Shawn, back there, is a young man with

12 cerebral palsy approximately 13 years before I started

13 treating him. He could walk slightly before I started

14 treating him. His mother just told me today, a year

15 into treatment, he is walking to about five classrooms.

16 So you can get major improvements in patients

17 who have been plateaued for a very long period of time.

18 It's just like heart disease. If you don't treat a

19 person with medication after their heart attack, and

20 then three, five, ten years later start treating with

21 nitroglycerin or ACE inhibitors or calcium channel

22 blockers, you're going to see improvement in those

23 patients.

24 Q. And a common thread is vasospasm?

25 A. The common thread is increasing oxygen






216

1 delivery to the tissues. And whether that's done by

2 increasing blood flow through damaged blood vessels with

3 the medication ACE inhibitors or nitrates or calcium

4 channel blockers dilates damaged blood vessels and

5 allows improved blood flow to those areas, or whether

6 you do it through hyperbaric or whether you do it

7 through some other mechanism. There are many mechanisms

8 to increase that blood flow to the area or increase

9 oxygen delivered to the area.

10 And, of course, the more of these things you

11 do, the better. You can actually mix certain

12 modalities; hyperbaric and vasodilators with other

13 modalities out there.

14 Q. So the common thread is not vasospasm, the

15 common thread is reducing inadequate oxygenation to the

16 brain?

17 A. The common thread to getting people better is

18 increasing and improving the oxygen delivery and the

19 metabolism of those damaged nerves in number. You can

20 do that through a variety of mechanisms of which

21 vasodilation might increase the blood flow is one.

22 Hyperbaric is another one.

23 There are medicines that are used routinely in

24 certain patients that work strictly on metabolism. In

25 children, it's Ritalin, and that can be used for






217

1 brain-injury patients, too, working, again, on the

2 damaged nerves in number but working different

3 mechanisms. So there are many mechanisms to make that

4 number start to function again or to make certain cells

5 in that area to function again.

6 Q. What is a working definition of a reflex

7 action?

8 A. A reflex action is an action which is

9 essentially not under unconscious control. In fact,

10 it's difficult to have conscious control over that

11 action. It's fleeting. It's very rapid. It's

12 generally involved with self-protection of the body and

13 it's very rapid unconscious response.

14 Q. Do people who do not have brain injuries

15 exhibit reflexes?

16 A. Yes.

17 Q. As a neurologist, what does intact reflex

18 responses tell you?

19 A. Reflexes are of several different levels.

20 They essentially go from some part of the body that

21 interacts with the outside world, like the arm or the

22 foot or the eye to the spinal cord and then back to the

23 arm or the foot, or they may go on to the brain, then

24 back out. So you have different levels of reflex

25 activity.






218

1 The presence of the reflex simply tells you

2 that circuit that goes to the spinal cord or to the

3 brain and then back is intact. The health risk or how

4 active that reflex is gives you other information how it

5 deals with the nervous system or how injured it may be.

6 Q. What is the threat reflex?

7 A. The threat reflex is a self-protection reflex.

8 It's generally done through vision. It's something

9 coming rapidly towards your field of vision with a

10 blockage, of some sort, to light, and your eyes grab it

11 and may startle or jump to it.

12 Q. What is the startle reflex?

13 A. Startled reflex is a reflex of which the body

14 is trying to protect itself of something it doesn't

15 expect. So it's similar to the threat response, but

16 it's more of a total body response. So, usually it

17 involves the body withdrawing as close as it can from

18 the world around it and having the physical jump in that

19 you can frequently see.

20 Q. A twitch?

21 A. A twitch. Again, instantaneous.

22 Q. What is the Saccades, S-a-c-c-a-d-e-s, reflex?

23 A. Saccades are very quick motions of the eye

24 that the eye uses to find something it wants to look at

25 in fixing. So it's essentially a twitch of the eye






219

1 bringing the pupils directly at something.

2 There is a very common reflex that deals with

3 tracking called nystagmus in which you have twitches.

4 It occurs when we are driving on the road and somebody

5 is staring off and watching trees go by. You'll watch

6 the eye, it will twitch back and forth. It twitches and

7 picks up a tree, then moves slowly and follows the tree,

8 then twitches, follows another tree. You find it

9 through a very rapid psychotic movement and then

10 tracking it until it gets to the next one.

11 Q. How is the Saccades reflex related to brain

12 injury, if at all?

13 A. Well, you can have -- if you have -- because

14 it is a reflex, if you have a circuit that goes between

15 the eye and the control of mechanism of the eye muscles

16 injured or interrupted, you will lose that Saccadic

17 twitch into the direction of where the entry may be.

18 THE COURT: Why don't we use this as a time

19 for a break. We have been here for almost two

20 hours.

21 Doctor, I'm going to caution you. You are

22 still a witness on the witness stand. Please don't

23 talk to anybody during this break about the case,

24 about your testimony, or about what you intend to

25 testify about.






220

1 Let's take 15.

2 (Whereupon, a short recess was taken after

3 which the following proceedings transpired:)

4 BY MS. ANDERSON:

5 Q. Dr. Hammesfahr, I would like to hand you what

6 I have premarked as Exhibits 77 and 88. Eighty-eight is

7 from Lancet and 77 is from the New England Journal of

8 Medicine.

9 MS. ANDERSON: May I approach?

10 THE COURT: Yes, ma'am.

11 BY MS. ANDERSON:

12 Q. I'll ask you if you recognize those article or

13 articles?

14 A. Yes, I do.

15 Q. Are they articles that you have reviewed as

16 part of your ordinary medical practice in preparation

17 for testifying in this case?

18 A. Yes, I have.

19 Q. How do those articles relate to changes in the

20 last two years?

21 A. Well, they're incredibly important. The HOPE

22 Trial and PROGRESS Trial. They deal with the use of ACE

23 inhibitors in patients with strokes. They essentially

24 show that these medications should be given to all

25 patients who are at risk of having a stroke or have






221

1 previously had a stroke. Those who previously have had

2 a stroke are at high risk for a second stroke.

3 These are medicines whose side-effect is for

4 lowering the blood pressure, but that the improvement in

5 patients is so dramatic than those who don't get it that

6 even patients with low blood pressure should be given

7 these medicines, and it's safer to give them to patients

8 with low blood pressure than for them to live without

9 these medicines because of the affect on the brain, the

10 blood pressure in the brain.

11 Q. The P in PROGRESS stands for Perindopril,

12 P-E-R-I-N-D-O-P-R-I-L, right?

13 A. Correct.

14 Q. And what is the pharmacological effect of

15 Perindopril?

16 A. Perindopril is a violator of blood vessels.

17 Q. The results from -- were these studies

18 international in scope, by the way?

19 A. These studies were international in scope,

20 yes.

21 Q. How many patients overall?

22 A. The Progress seven -- 6,405 patients from 172

23 centers in Asia, Australia, and Europe were involved.

24 In the Hope study, 9,297 high risk patients were

25 involved.






222

1 Q. And do those research results represent a

2 C-change in the treatment of stroke?

3 A. Yes, they do.

4 Q. In what sense?

5 A. They essentially represent C-change in that is

6 now understood that medication can be used to increase

7 blood flow or to maintain blood flow to the brain and

8 that these medications will help those who had a stroke

9 or are at risk of a stroke. They change entirely our

10 approach from trying to stop an embolism, a clot from

11 going to the brain to trying to improve and maintain the

12 blood flow in the brain. And by improving or

13 maintaining blood flow to the brain, preventing stroke

14 or preventing other vascular injuries and actually

15 causing improvement in a variety of different ways.

16 Q. Previously, a patient presented in an

17 emergency room in the immediate aftermath of a stroke or

18 during a stroke, what was the proper treatment with

19 regard to trying to control blood pressure?

20 A. Controlling blood pressure in a patient with a

21 new stroke previously has not had a very good consensus.

22 Some people have tried to allow the blood pressure to

23 rise to a new level. Others have allowed the blood

24 pressure to rise, but not to dangerous levels. Of

25 course, they obviously define dangerous in a different






223

1 manner than those who allow blood pressure to go to any

2 level at all, and others have tried to lower blood

3 pressure to a more normal range. So there's not been a

4 good unified consistent consensus among the people.

5 Q. Does the results shown in the Progress Trial

6 and Hope Trial have an impact on the treatment of acute

7 stroke?

8 A. There's already impacting being seen from

9 these studies. As other studies are now primarily from

10 Europe, the centers associated with this original study,

11 are now reporting that they're advocating the use of

12 these medicines in the emergency room setting at the

13 time of original hospitalization. They are actually in

14 the process reporting these studies. Some of these

15 studies are in literature now.

16 Q. And has this information since its published

17 in the New England Journal been adopted as treatment

18 protocol in the United States?

19 A. I think there is a great deal of consensus

20 among specialists in the U.S. that this is true and

21 accurate and correct information, so it was published in

22 the New England Journal. How individual physicians

23 practice, though, is dependent upon that specific

24 physician as he sees that specific patient in front of

25 him.






224

1 Q. Dr. Hammesfahr, can you briefly, very briefly,

2 walk us through the treatment of new patients that you

3 treat?

4 A. Well, most of our patients --

5 MR. FELOS: Well, I object, Your Honor. The

6 question is vague. "New patient", new patient for

7 what?

8 THE COURT: I'm assuming it's for him.

9 BY MS. ANDERSON:

10 Q. New patient for you. Did you understand that

11 to be my question?

12 A. Yes, I do.

13 Q. Okay.

14 MR. FELOS: Your Honor, I object. I meant in

15 terms of ailment to the patient. What ailment are

16 we talking about?

17 THE COURT: Let's find out. But my guess is

18 he is going to tell us what this patient is

19 suffering from, because, otherwise, his answer

20 would make no sense at all.

21 BY MS. ANDERSON:

22 Q. Suppose a person comes to you as a new

23 patient. This patient has a brain injury of some

24 variety. What would you do for the patient?

25 A. We only primarily treat one disease now. We






225

1 primarily treat one type of a disease, presumably that's

2 neurovascular disease. The cause of the neurovascular

3 disease may vary, but neurovascular is neurovascular;

4 vascular disorders of the nervous system.

5 Now, a vascular injury to the brain or the

6 spinal cord can occur because of infection or can occur

7 because of embolism or anoxia or hypoxia or trauma, but

8 you're still left with injury to the nervous system from

9 that original problem and you're also left with a blood

10 vessel injury, which is similar from brain injury, but

11 different. So the etiology of what we treat is

12 important, but what we treat is actually the same

13 disease across the board with minor variation based upon

14 the actual cause of that disorder or etiology of that

15 disorder.

16 Q. So, in terms of your therapeutic concerns, it

17 matters not if the patient is a near drowning victim or

18 a heart attack victim or a stroke victim; is that what

19 you're saying?

20 A. It has -- in general, it does not matter.

21 There are some specific exclusions or exceptions that we

22 will look for. And it does matter with respect to their

23 long-term management.

24 Now, the cause of the injury -- the cause of

25 the treatment, the cause of the injury will alter the

226

1 long-term maintenance regimen results of that patient

2 dramatically. But with respect to the initial three

3 weeks, three months, or two years, it doesn't make that

4 much difference what is the cause of the disorder.

5 Q. Let's suppose the patient who has suffered a

6 cardiac arrest for a period of five months and as a

7 result has been diagnosed as suffering from anoxic

8 encephalopathy, what would your treatment protocol

9 dictate that you do?

10 A. Well, the treatment protocol varies with a

11 careful history, careful physical examination, a review

12 of other medical records, CAT scan evaluation or MRI

13 evaluation, obtaining an EEG or review of previous EEG

14 records. We generally also videotape our patients

15 during their initial evaluation.

16 Q. Now, is a CAT scan the same as a CT scan?

17 A. Yes, it is.

18 Q. Why do you have a CAT scan done?

19 A. We have a CAT scan done for a lot of different

20 reasons. Partially, it's to identify whether there are

21 other things that may be slowing the patient's expected

22 recovery.

23 Q. Such as?

24 A. Hydrocephalus, where there's accumulation of

25 spinal fluid inside of the brain.






227

1 Q. Why does that occur? Why does the brain

2 retain cerebral spinal fluid?

3 A. The brain can retain it because of scar tissue

4 that results at the time of the original accident.

5 Spinal fluid is made in the center of the brain and then

6 drains out into the spinal cord through very small,

7 almost pinhole-sized passageways. Injuries, strokes,

8 like anoxia encephalopathy, can result in chemicals

9 released into the spinal fluid that causes scarring,

10 trapping the -- or closing partially off that pinhole,

11 causing fluid buildup inside of the brain. That fluid

12 buildup causes pressure in the brain, damaging the

13 brain, as well as cutting off some of the normal blood

14 flow, blood flow patterns inside of the brain.

15 Q. What effects does vasospasm therapy, or your

16 therapy, have on fluid retention in the brain?

17 A. I'm not sure that it has much affect on fluid

18 retention in the brain. That would be sort of a

19 secondary problem that within treating you get the best

20 results in the patient.

21 Q. Can it been treated?

22 A. Yes, it can.

23 Q. How is it treated?

24 A. It can be treated through a variety of ways.

25 One of the ways is giving a mild medication, it's a type






228

1 of diuretic, Acetozalamid. Acetozalamid, it helps cuts

2 down the amount of spinal fluid production, so it allows

3 the drainage to occur that is naturally occurring by

4 cutting down some of the production and bringing things

5 back in balance.

6 Q. Are there other causes besides the scarring

7 over the pinhole drain hole in the brain that would

8 cause fluid retention in the brain?

9 A. Well, you could have a sort of chemical

10 meningitis in the middle of the brain brought on by the

11 release of chemicals from the stroke at the time, or

12 anything else, such as wires through the brain, can

13 frequently can cause infections in the center of the

14 brain which only show up in the spinal fluid tissue

15 there and it could cause some scar tissue, as well. But

16 there are things to look for, too, on the CAT scans.

17 Q. After you have taken a history and have done a

18 physical examination, ordered the radiological, what do

19 you do?

20 A. Monitoring the injury site, we use also a

21 carotid ultrasound and a Transcranial Doppler artery

22 ultrasound.

23 Q. What are you looking for with those tests?

24 A. The carotid artery and Transcranial Doppler

25 artery ultrasound are designed to look for the presence






229

1 of vasospasm in the specific blood vessels of the brain.

2 It gives us a guide for whether vasospasms are present

3 and also gives us a future guide for what medications to

4 use and how to use it on that patient.

5 Q. Now, you treat many patients who have come to

6 you with a diagnosis of persistent vegetative state?

7 A. Yes, I have.

8 Q. Do you recall how recently?

9 A. Within the last year.

10 Q. Have you been able to assist that patient or

11 those patients?

12 A. Most, we have. One, we have not.

13 Q. Do you have an explanation for the one

14 failure?

15 A. Yes.

16 Q. What is it?

17 A. Well, she came to us with many recurring and

18 ongoing urinary tract infections and pneumonias. We had

19 to -- you know, those infections made the administration

20 of the medications difficult or almost impossible. So

21 we had to -- we tried it with her briefly, repetitively,

22 between bouts of infections, but were never able to

23 actually put her on a full trial or course of

24 medications and had to stop our treatment of her until

25 those infections got controlled, which they never did.






230

1 Q. The infections existing elsewhere in the body

2 will have this effect of interfering with your program

3 medications?

4 A. Low level infection, mild infections do not.

5 Very serious infections do. Very serious infections can

6 cause the blood pressure to lower. The risk of lowering

7 blood pressure are strokes with or without those

8 medications. I'm talking about low or below normal

9 levels.

10 Q. What is the range of normal blood pressures?

11 A. Blood pressures range, you know -- the general

12 range of normal is 110 to 140 over 70, 75. Most people

13 being approximately 70, for the bottom number, 75. One

14 hundred and twenty to 140 for the top number.

15 Q. Would 90 over 60 be considered an abnormal

16 blood pressure number?

17 A. Ninety over 60 would be considered abnormal

18 blood pressure in that patient who does not routinely

19 have that blood pressure or does neurologically better

20 at a higher blood pressure.

21 Q. And the same would be true for 90 over 70?

22 A. Yes.

23 MS. ANDERSON: May I approach, Your Honor?

24 THE COURT: Sure.

25






231

1 BY MS. ANDERSON:

2 Q. Dr. Hammesfahr, I have handed you Exhibit 27,

3 23, 25, 26, 31, 38, 39, 43, 48, 49, 51, 52, 53, 57, 59,

4 61, 62, 63, 65, and 73.

5 Do you recognize these various abstracts?

6 A. Yes, I do.

7 Q. And do you recognize them as coming from

8 authoritative sources?

9 A. Yes, I do.

10 Q. What do these -- what does this second group

11 of abstracts concern?

12 A. They concern the use of vasodilators in blood

13 flow studies, essentially. They also discuss, to some

14 degree, experimental design.

15 MS. ANDERSON: Your Honor, I'd move those

16 exhibits into evidence at this time.

17 MR. FELOS: Your Honor, I renew my objection.

18 THE COURT: These are exhibits which I assume

19 are talking about blood flow design.

20 MS. ANDERSON: No. The use of drugs and blood

21 flow.

22 BY MS. ANDERSON:

23 Q. Did you just say blood flow design,

24 Dr. Hammesfahr?

25 A. No. There are one or two here that deal with






232

1 experimental design of clinical studies. To have a

2 double blind study or not to have a double blind study.

3 Do you need to have a double blind study. The rest of

4 them deal with the correlation between vasodilators and

5 blood flow. There are a variety of different

6 techniques.

7 THE COURT: What's, in general, dealing with

8 the testimony of the source?

9 BY MS. ANDERSON:

10 Q. Okay. Can you read where these articles or

11 abstracts were published?

12 A. These abstracts come from the National Library

13 of Medicine, and they include abstracts from The

14 American Journal of Cardiology, The New England Journal

15 of Medicine, The American Journal of Cardiology again,

16 Stroke, Lancet, archives.

17 THE COURT: I will accept these as in the

18 whole lot with the earlier ones that we received,

19 the magazines that were previously not identified

20 by other physicians.

21 MS. ANDERSON: That will fine. Thank you,

22 Judge.

23 THE COURT: Once again, may I have those

24 numbers, Doctor? Doctor, could you read the number

25 of those exhibits?






233

1 THE WITNESS: Sure. Twenty-seven, 23, 25, 26,

2 31, 38, 39, 43, 48, 49, 51, 53, 57, 59, 60, 61, 62,

3 63, 65, and 73.

4 THE COURT: Ms. Anderson, do you want those

5 marked for identification by this Court?

6 MS. ANDERSON: The ones that you have I would

7 consider to be offered to the Court for admission.

8 MR. FELOS: Your Honor, I have one question.

9 The first time Attorney Anderson read the list, I

10 wrote down 52. I don't know if I wrote that down

11 in error, but I didn't hear Dr. Hammesfahr mention

12 52. I want to clarify. Is there a 52?

13 THE COURT: I do not have 52 either, no.

14 THE WITNESS: I have 52 here, though.

15 MS. ANDERSON: Yes, 52 was intended to be part

16 of that.

17 THE COURT: I made a mistake. I'm sorry.

18 MS. ANDERSON: The title of 52 really is not

19 anything that I can pronounce.

20 THE COURT: Don't look at me.

21 BY MS. ANDERSON:

22 Q. It's 99 -- what is 99 M T-C-H-M-P-A-O?

23 A. It's a form of technetium which is used for

24 spec scans. It's a tracer to look at blood flow in the

25 brain as well as function in the brain done with






234

1 technetium in a spec scan.

2 Q. So that collection of numbers and letters in

3 the title refers to the tracer, the radiological tracer?

4 A. Correct.

5 THE COURT: Mr. Felos, I'm assuming you have

6 copies of these?

7 MR. FELOS: Yes, I do.

8 MS. ANDERSON: Yes, I have provided him with

9 copies of all of the exhibits.

10 BY MS. ANDERSON:

11 Q. Doctor, what does the term, decerebrate,

12 D-E-C-E-R-E-B-R-A-T-E, mean? Decerebrate.

13 A. Decerebrate is a term used properly in coma

14 patients; although, people will use it outside of a

15 patient with a coma. Essentially, it means that their

16 arms are extended straight, slightly internally rotated,

17 their hands are clinched, and their legs are straight in

18 front of them and their feet are sort of pushing down

19 like on a gas pedal with their back straight.

20 Q. Is that a rigid posture?

21 A. Yes, it is.

22 Q. And that is -- in other words, you could

23 not -- if you put the leg up, it would not bend at the

24 knee?

25 A. Correct.






235

1 Q. And is that a permanent indicator of a coma?

2 A. No. No. It is found in patients with coma

3 and it's found in patients who have massive injuries to

4 the cortex of the brain such that that area doesn't

5 function. But it is not -- it is not a prognostic sign.

6 It does not foretell the future. It simply foretells

7 the state at the time that you are examining them at

8 that moment.

9 Q. And it involves both the arms and legs?

10 A. Straight, yes.

11 Q. What is decorticate?

12 A. That, again, is a term reserved properly for

13 patients in coma. Although, it's frequently implied to

14 patients who are not in coma. But it is a condition

15 where patients have their legs extended and are rigid

16 and their arms flexed and their wrists flexed like this

17 (indicating).

18 They even get those same body positions, but

19 not being coma. And in that situation, it is not

20 properly called decorticate or decerebrate. Many of our

21 stroke patients have that sort of situation and come to

22 our office walking with those body positions that leaves

23 them half their volume. Again, it is more properly

24 termed due to spasticity.

25 Q. Spasticity?






236

1 A. Due to spasticity. And there are

2 characteristics of a spastic arm and spastic legs that

3 results in that type of posturing or that type of

4 holding the body in that fashion.

5 So properly termed, it's only seen in coma;

6 however, it has sort of spilled into the general

7 community to refer to anybody with that type of body

8 condition, decorticate or decerebrate, whether there is

9 coma or not present.

10 Q. Now, have you ever treated a patient with

11 contractures?

12 A. Yes.

13 Q. Has your treatment had any affect on

14 contractures?

15 A. Oh, certainly.

16 Q. Does it always have an affect on contractures?

17 A. More usually than not, yes, it is does. In

18 fact, that's a significant problem for us.

19 Q. A significant problem?

20 A. Well, as a patient is starting to walk, if

21 they had been using spasticity to hold their legs up, as

22 they start to reflex their body, they may mistake their

23 step. We have had some people actually break legs or

24 hips from tripping as they start to regain the ability

25 to walk and the spasticity reduces. The same thing goes






237

1 to the arms; we have had broken arms.

2 Q. Why would vasodilator therapy have an affect

3 on contractures?

4 A. Contractures are essentially a type of reflex

5 to the body. When the body doesn't give brain control,

6 or proper brain control, down to the arm or the leg, the

7 strong muscles of that extremity -- all of muscles

8 contract. But the strongest muscles contract harder

9 than the weaker muscles and pull the arm into a flexed

10 position and the legs go into an extended position. And

11 that's simply because all of the muscles are

12 contracting.

13 But the muscles in the arm being the strongest

14 are the biceps, the muscles that are involved in

15 flexion. In their hand, of course, is gripping flexion.

16 In the leg, the muscles that are strongest are those

17 that are involved in holding your body up against

18 gravity while walking. So those are the ones that

19 extend and straighten the legs.

20 Q. What are those?

21 A. The hamstrings or hip extensors are the

22 strongest, and all of the muscles involved in

23 straightening the leg and the foot are the strongest.

24 So when you start to improve brain function,

25 one of the things that the brain starts to do is cut






238

1 down the amount of abnormal contractions in the body,

2 then the spasticity starts to reduce itself so that the

3 arm starts to become more flexible and more pliable as

4 does the leg.

5 Q. Now, are contractures generally considered to

6 be permanent?

7 A. I mean, that's tough to answer. Because,

8 generally, a person who has had a stroke has

9 contractures. Yeah, they will tend to have a tendency

10 towards contractures. But with proper physical therapy,

11 those contractures can usually be prevented, or

12 prevented to a large degree.

13 Q. If they occur -- let's say there has been no

14 physical therapy and the patient is severely contracted.

15 Is it the conventional wisdom that contractures can only

16 be released with surgery?

17 A. No.

18 Q. Can you use physical therapy to release

19 contractures?

20 A. Certainly, you can use physical therapy. Most

21 commonly, physical therapy. And after that, medications

22 are either installed in a pump or we release medication

23 into the body continuously, which are muscle relaxers

24 for spasticity, or as pills. And there are other

25 techniques, including surgery, that we can use.






239

1 Q. Now, as part of your work in this case, did

2 you have occasion to observe Terry Schiavo without

3 actually examining her?

4 A. Yes, I did.

5 Q. Okay. Do you recall how many times you

6 observed her?

7 A. I think it's only once.

8 Q. Do you remember how long you observed her?

9 A. It was probably for half an hour to 40

10 minutes.

11 Q. Were her parents present during that

12 observation?

13 A. Her father was present, yes.

14 Q. Now, in addition to observing her, did you

15 physically examine her?

16 A. I guess I did.

17 Q. Do you recall what time of day your

18 examination of Terry began?

19 A. It started sometime in the morning.

20 Q. And when did it conclude approximately?

21 A. Probably around 3:00 in the afternoon.

22 Q. Why did you take so long to examine her?

23 A. Examining patients with brain injuries takes a

24 long time.

25 Q. Why?






240

1 A. There are a lot of reasons it takes a long

2 time. One of them is that you have to observe them.

3 You have to observe them over time and you have to

4 observe them with respect to people around them.

5 Second, they don't process the way the rest of us do.

6 So you can't go through examinations very rapidly. You

7 have to give them time and do different parts of the

8 exam very slowly and, very frequently, repetitively

9 while you try to identify how their body is working and

10 what can be done about it.

11 Q. So it simply takes -- it has to be a slower

12 exam; is that what you're saying?

13 A. It takes a long time. It's not just -- the

14 examination is a little bit different for the

15 brain-injured than for the average person that comes

16 through the door. Because of the communication problems

17 or language problems, you don't know if they understand

18 language, how they understand language. Do they

19 understand every word or do they come and go? You don't

20 know usually how well they see, what areas they can see

21 your body, and what areas they can't.

22 When you give them a command, they may not

23 respond to that command not right away. So you have to

24 observe them quite a while to see if they do respond

25 because there is a consistent delay. There is just a






241

1 lot more than your average patient.

2 Q. Now, were Mr. and Mrs. Schindler present

3 during your examination of Terry?

4 A. Yes, they were.

5 Q. Was Mr. Schiavo also present?

6 A. He was present for about half of the

7 examination, yes.

8 Q. Did you examine -- in addition to doing the

9 clinical examination, did you also look at the CT scan

10 of her brain done in July of this year?

11 A. Yes, I did.

12 MS. ANDERSON: Now, at this time, Your Honor,

13 I would like to start the videotape and have

14 Dr. Hammesfahr tell us how he proceeded in

15 examining her. It should appear on that screen on

16 the witness stand.

17 THE COURT: Now, contrary to what we will be

18 viewing, are you going to have him explain?

19 MS. ANDERSON: In some portions, I will have

20 him explain what we are seeing. There shouldn't be

21 a problem with volume control or technical problem.

22 But if it gets to be a problem, we will have him

23 stop the tape.

24 THE COURT: Is it too loud or too soft?

25 MS. ANDERSON: The volume control, I think, is






242

1 in a difficult place. If we are having trouble, it

2 sounds like gibberish, I will stop the tape.

3 BY MS. ANDERSON:

4 Q. Now, Dr. Hammesfahr is that what you saw when

5 you entered the room?

6 A. This actually occurred right before I entered

7 the room, as I recall. I don't have the audio. You can

8 tell when I entered the room with the audio. We had

9 this initially set up so that the videographer and

10 Mr. Schiavo were in the room. They were in the room

11 prior to me entering the room. Mr. Schiavo was not.

12 That's Mrs. Schindler. Then, I entered the room.

13 Q. What was the point of having -- was it her

14 father who was in the room?

15 A. No. I think it was Mr. Schiavo. I don't

16 think Mr. Schindler was in the room at that time.

17 Q. So Mr. Schiavo was in the room with Terry?

18 A. Right.

19 Q. What is that?

20 A. I don't hear it very well.

21 Q. Is that better?

22 A. Yes.

23 Q. What's that background noise that we are

24 hearing in this tape?

25 A. That's radio in the background.






243

1 That little blinking to this loud noise, that

2 is a little startle reflex that she has. She has a

3 facial quick-darting reflex when she glances to the

4 left, which is an orienting visual reflex.

5 Q. What is an orienting visual reflex?

6 A. It's a reflex designed to help identify

7 potential threats from the environment or things

8 happening. It occurs when a person -- for instance,

9 when you're driving, a person walks in your peripheral

10 vision, your eyes will dart to that side. Or, if you

11 heard a loud sound, you might dart to the side. It

12 happens momentarily.

13 Then from that point forward, if you continue

14 to look in the area, that's cognitive or voluntary.

15 Q. The initial glance --

16 A. The initial glances are reflex. But after

17 that first few milliseconds, if they continue to sustain

18 their gaze in a direct area, that's voluntary motion.

19 What was interesting is after you came in

20 here, she was having very little response to the people

21 around her, although maybe having some awareness to

22 music. It's hard to tell at this point.

23 Q. Here it appears as if she had gone to sleep?

24 A. We should continue.

25 This is interesting because right there, at






244

1 that sound, she had a response to that. I think that's

2 very interesting when you start to compare her to her

3 response to other people. She had not much response to

4 background music, not much response to Mr. Schiavo's

5 size.

6 Here she is hearing sounds. This is an

7 orientating cognitive awareness. She is aware of

8 background noises. She's hearing voices she wasn't

9 aware of. She stopped having sort of random motions and

10 she looked off to the left and then decides to ignore

11 it, based on this type of behavior.

12 Q. So the glance to the left to assess the threat

13 is reflexive?

14 A. Only if it lasts for maybe a quarter of a

15 second, beyond that it's voluntary.

16 Okay. Again, no response to sound. That's a

17 startle reflex. Again, very temporary.

18 MR. FELOS: Your Honor, I object. Yesterday

19 we had the time codes on. Can he do that today so

20 at least that would allow me to identify the

21 portions of the tape to which Dr. Hammesfahr is

22 referring?

23 THE VIDEOGRAPHER: This is 11:16 a.m.

24 MS. ANDERSON: Is this a VHS?

25 THE VIDEOGRAPHER: No. This is from the






245

1 laptop. This is one segment of 30 minutes 12

2 seconds. Starts at 11:16 and goes to 11:46.

3 MR. FELOS: Can we display it in this fashion

4 because we can identify what segment that's from

5 and what the code is from that segment?

6 MS. ANDERSON: The laptop doesn't show, so

7 Dr. Hammesfahr won't be able to do it.

8 THE VIDEOGRAPHER: We are having a problem

9 with the videotape and we had to run that over the

10 lunch. The videotape has the actual time of day on

11 it.

12 MR. FELOS: I don't need the actual time of

13 day, Your Honor. What is being displayed now is

14 the code for this segment of tape from 11:16 to

15 11:46, and it has the time code on it. All I

16 can -- I don't care what the reference is as long

17 as we have the reference, then we can identify

18 portions to which he is referring.

19 THE VIDEOGRAPHER: If I can play it back on

20 full screen. The actual image of Terry would be

21 substantially smaller and more difficult to detect.

22 THE COURT: Well, I don't know who that is

23 that's talking.

24 MS. ANDERSON: I'm sorry. This is Tom

25 Broderson of my office.






246

1 He makes a valid point that if the image is

2 minimized in order to capture of the elapsed time,

3 you are going to lose a lot of detail. Her eye

4 movement, for example, other parts.

5 THE COURT: So we had an ability to do it on

6 full screen?

7 MS. ANDERSON: Yes, on the digitized version.

8 But the running time, it's actual time of the day

9 of the clock. The date stamp, time stamp is on the

10 VHS, which is what I thought we were running.

11 THE VIDEOGRAPHER: If I may suggest. I have

12 some very rough notes on the contents that I can,

13 from time to time, tell you what minute, time of

14 day that pertains to, relatively close.

15 THE COURT: Well, the issue we had before was

16 using edited portions of the tape, and we needed

17 some basis to identify.

18 Mr. Felos, if this is the full tape, what's so

19 critical about having a particular time?

20 MR. FELOS: Well, Your Honor, I can identify

21 the portion of the tape and say, Dr. Hammesfahr,

22 you found that the patient did so and so at 11:32.

23 Wasn't that a hiccup or something like that. If we

24 have that, we have the opportunity to go back to

25 the tape at that time and review it.






247

1 MS. ANDERSON: If we are running digital

2 images, if Mr. Felos wishes, he can ask if that

3 this image can be brought to this format. It will

4 give us the elapsed time over in a corner.

5 MR. FELOS: I hate to keep interrupting the

6 presentation to see what is the time.

7 MS. ANDERSON: Well, the object here, of

8 course, is for the Court to be able to see the

9 maximum amount of information during this

10 examination.

11 MR. FELOS: In the same token, if

12 Dr. Hammesfahr feels we need to expand the picture

13 at any particular point of time, he could request

14 to do that at that time.

15 THE COURT: Do you want to watch the

16 secondhand, Mr. Felos?

17 MR. FELOS: I don't wear a watch.

18 MS. ANDERSON: Well, Mr. Broderson tells us he

19 might have that fixed over lunch.

20 THE COURT: Well, let's cross our fingers.

21 But my guess is that this particular portion will

22 take us to lunch.

23 MS. ANDERSON: Will take us to lunch?

24 THE COURT: Yes. That would be my guess.

25 MS. ANDERSON: Oh, yes. This leading time






248

1 before Dr. Hammesfahr comes in the room and begins

2 to work with her lasts about seven minutes, and

3 we're five minutes into it.

4 THE COURT: But wasn't this tape something

5 like 30 minutes?

6 MS. ANDERSON: It was a 30-minute segment. So

7 just run this one straight through?

8 THE COURT: I'm not telling you how to present

9 your case.

10 MS. ANDERSON: Is that what you're
suggesting?

11 THE COURT: Well, my thought is we should be

12 breaking around 12:20, plus or minus, for lunch.

13 MS. ANDERSON: Okay.

14 THE COURT: And my thought is this tape would

15 take us there.

16 MS. ANDERSON: That should satisfy Mr. Felos

17 because this will be within the first 30-minute

18 block of the entire examination.

19 THE COURT: I'm not certain it satisfies, but

20 I think it will certainly minimize whatever concern

21 he has.

22 MS. ANDERSON: Very good.

23 BY MS. ANDERSON:

24 Q. Continue, Dr. Hammesfahr.

25 A. That little glance she just had there was an






249

1 auditory reflex. You heard a quick sound.

2 Q. What was that, a radio sound, or what was it?

3 A. That was some sound in the background of the

4 room. Probably when I walked into the room or

5 something. Some sound from the background.

6 She is hearing voices, and you can see she is

7 becoming more aware. She is actually waking up and

8 becoming more aware of that sound. That's not

9 reflexive. The reflexes that I already talked about

10 were just quick twitches. That's what reflexes are.

11 Most of the sound during this time occurred,

12 this background, random sound beyond the radio occurred

13 towards the left where she was looking. That was where

14 Mr. Schiavo and myself were standing or sitting. That's

15 where the doorway was.

16 That's a startle reflex. She is starting to

17 wake up. You see how quick the reflexes are there, just

18 a twitch of the eye or of the face, that's just normal,

19 how it is for any of us. She hears more sounds, becomes

20 more aware. She became more aware.

21 MS. ANDERSON: Can you hold that for just a

22 minute, the volume?

23 BY MS. ANDERSON:

24 Q. Her eyes move to the left and then back to the

25 right in that segment we just saw. Did you observe






250

1 that?

2 A. Right.

3 Q. What do you call that?

4 A. Well, she is just waking up and becoming more

5 aware of her surroundings. Reflexes have the

6 characteristic that they happen each and every time.

7 They are under some cognition and voluntary control. So

8 when you hear repetitive sounds -- we don't startle

9 every time we see somebody walk in the room. We might

10 actually have our eyes glance, but we don't startle each

11 time. That control, that startle reflex, is a voluntary

12 or cognitive activity as you are aware of your

13 surroundings.

14 She startled earlier on much more frequently.

15 She is startling much less frequently now. Even now as

16 we begin to talk to her, she is aware. Her eyes looking

17 to the left and then she brings her eyes back more to

18 me.

19 Now, watch that. That's not a reflex. She

20 looked at her; she changed her facial expression.

21 Q. Her mother, you mean?

22 A. Yes. With her mother. She persistently

23 changed her facial expressions. She does not have the

24 startle or orienting reflexes. She is bringing her gaze

25 consistently towards her mother, in her general