172

1 A. Well, yes. You know, when we first started

2 dealing with this therapy, it was really an

3 anti-migraine medication. But we started having

4 patients, psychologists call us up and say within a

5 month of treatments, "what are you doing? These people

6 are getting better on the psychological tests."

7 We had a large amount of people return to work

8 in 90 days. We actually wrote a paper about that.

9 These were folks on Social Security disability between

10 one and ten years or so who returned to work within 90

11 days of starting vasodilators.

12 But not all -- they weren't necessarily

13 normal. They were returning to work off of Social

14 Security, but not normal for the most part. What that

15 means is that there is still injury, although, there is

16 also return of function, too.

17 Q. And they were not normal in the sense that

18 they had to continue with these medications?

19 A. No, they weren't normal in that they weren't

20 always normal. They were not back to their preinjury

21 baseline. They were -- you know, you don't always have

22 a psychological test or a physical exam on a patient

23 before an injury. But you can figure out pretty much

24 what they were on the basis of standardized school test

25 scores and as well as other standardized things we all






173

1 go through everyday. So you get an idea of what these

2 folks did to return to that level. But they did return

3 well enough where they were able to go back and hold

4 jobs.

5 So what that means is that there is a number

6 in those patients, a number where there is still injury

7 but also a reversible area where improvement can be

8 obtained.

9 Q. Did your findings lead you to believe that the

10 reversible area was larger than was previously

11 suspected?

12 A. Well, it was suspected there was no reversible

13 area. What was remarkable about this was several

14 things. I was at the Medical College of Virginia when a

15 lot of the early work on vasodilators was done and

16 successful. It was thought prior to this that there was

17 medication that would expand and increase blood flow to

18 the brain, that the blood brain barrier was insolvable

19 problem. First, we found it was solvable.

20 Q. Has any one you before used vasodilators

21 specifically for the treatment of brain injury?

22 A. Yes. Vasodilators have been tried

23 repetitively or the last 50 years for the treatment of

24 brain injury as well as the treatment of stroke.

25 Q. Had they been given by mouth?






174

1 A. They had been given by mouth as well as by

2 cream and as well as intravenous techniques.

3 Q. And traditionally, the blood brain barrier had

4 caused them to fail?

5 A. I think that the failures were for a variety

6 of reasons. I think one reason is the blood brain

7 barrier resistent to some medications. Others, I think

8 they gave the wrong dose. The monitoring tools out

9 there were not sufficient to follow the therapy.

10 The third reason that they failed is that some

11 of the medications that we use did not exist.

12 Q. So it's a combination of improvements in

13 medication and the technology?

14 A. Right. And the fourth is the double blind

15 study problem.

16 Q. What do you mean by that?

17 A. Well, in medicine in the United States,

18 historically, medical communication and medical

19 treatment came about from observing patients, seeing if

20 it worked, and then trying to reproduce it or to do more

21 of the same and observe the results and customize the

22 therapy.

23 Back about 20 years ago, the FDA, in order to

24 identify whether a new drug should be released, had to

25 develop a standardized testing mechanism. And that






175

1 standardized testing mechanism to determine whether a

2 new drug should be released was the double blind study

3 where you give one population of people one set of

4 medications. Everybody in that population gets the

5 identical dose. You give a second group of people a

6 different placebo, usually a placebo.

7 Q. And what was significant for your work about

8 the requirement of identical doses?

9 A. Well, it's extremely dangerous. When they try

10 to do the double blind studies with vasodilators, they

11 found that vasodilators caused strokes in many
patients.

12 You know, we never treat patients in clinical

13 practice as a double blind patient. We don't give them

14 all of the same dose that was first done in the original

15 papers. The dose we give for anything, whether it is an

16 infection or heart attack, depends on what that patient

17 needs and what side effects they get. If you don't

18 customize a dose to the patient, you could cause strokes

19 with medication. The reason you cause strokes is you

20 drop the blood pressure. It could decrease the blood

21 pressure.

22 Q. Now, what is the relationship between blood

23 pressure and blood flow inside the brain?

24 A. There is a -- essentially, blood flow is

25 determined by several different things in the brain. It






176

1 used to be thought that blood flow to the brain was

2 entirely dependent upon blood pressure. So, therefore,

3 it used to be thought that patients who had a blockage

4 in artery, you would allow their blood pressure to rise

5 to whatever level it wanted to. The idea being that you

6 had partial blockage in the blood vessels like a pipe.

7 You increase the blood pressure in one end, you force

8 more blood through that blocked area to the tissues

9 downstream in the brain. That's what the old theory

10 was.

11 In our work, that wasn't true. Our work's has

12 been reproduced by now quite a few major studies around

13 the world. What these studies show is blood flow to the

14 brain is more complicated. It's dependent upon blood

15 flow to the area of blockage, yes. But it's also

16 dependent upon the area of blockage. You can make that

17 area go away or get less as you get more blood to the

18 brain.

19 Q. And thus vasodilation?

20 A. And thus vasodilation.

21 And, third, it's depend -- the third is

22 dependent upon blood vessel downstream from the

23 blockage. If that blood vessel -- what happens in a

24 normal person is that that blood vessel in response to

25 blockage should dilate, make a partial vacuum, and suck






177

1 blood into the brain tissue. That does happen a little

2 bit, but these are not normal people. Those arteries

3 become injured and they lose the ability to autoregulate

4 or to function normally. They don't expand the way they

5 should and thus they don't pull enough blood to

6 compensate for the blockage.

7 Q. So your vasodilation therapy, in a sense, is a

8 substitute for autoregulation?

9 A. Right. Just like it is in the heart. You

10 know, the heart attack patient comes through the office

11 or the emergency room. They have a partial blockage.

12 And the medications given do not raise blood pressure,

13 the medication given vasodilate. They dilate small

14 blood vessels in the area damaged as well as the blocked

15 area themselves directly.

16 Q. Now, Dr. Hammesfahr, have you reviewed the

17 medical literature on these topics that you have touched

18 upon here this morning?

19 A. I have reviewed quite a bit of literature

20 about this, yes.

21 MS. ANDERSON: Your Honor, I have some

22 exhibits on medical literature that I would like to

23 approach the witness with and have him discuss. I

24 want him to read them into the record.

25 THE COURT: That's fine.






178

1 MR. FELOS: Your Honor, I'm going to interpose

2 my objection at this time. It is improper on

3 direct examination of an expert witness to rely on

4 authoritative text. And to that, I'm citing

5 Liberatore versus Hoffman, which is a 2002 Fourth

6 District case.

7 In that case, the court reversed the trial

8 court saying it abused its discretion in allowing

9 defendants to use bulletins published by the

10 American College of Obstetricians and Gynecologists

11 to bolster the testimony of their expert witness.

12 You will note on page -- I guess page eight of

13 this printout, "Experts cannot, on direct

14 examination, bolster their testimony by testifying

15 that a treatise agrees with their opinion.

16 Authoritative publications can only be used during

17 the cross-examination of an expert and not to

18 bolster the credibility of an expert."

19 And that's exactly what respondents' counsel

20 is trying to do here, bolster the credibility and

21 opinion of her expert on outside sources and it's

22 not proper on direct examination.

23 MS. ANDERSON: I offer that the abstract is

24 not bolstering evidence. But you will recall the

25 Second District wanted to know the state of






179

1 scientific literature. And these various abstracts

2 and articles go to that very point. He has simply

3 said that he has viewed the literature and it's out

4 there.

5 As I say, I am not offering him enough time to

6 go into it through substantive evidence. But

7 certainly the Second DCA wants to know what the

8 state of the scientific literature is, and it will

9 be very helpful to this court to know what the

10 state of scientific literature is in these areas of

11 stroke and the use of vasodilators for brain

12 injuries.

13 MR. FELOS: Your Honor, the Second District

14 also wants the court to follow rules of evidence

15 and follow the law. And in the -- we can parse

16 words about bolster and evidence and substantive,

17 but the word in this case is "use." They reversed

18 the trial court for allowing the defendants to use

19 the bulletins.

20 Authoritative publication can only be used

21 during cross-examination. And what opposing

22 counsel is doing is attempting to use these

23 bulletins to bolster the -- bulletins, articles,

24 treatises, whatever they are, to bolster the

25 opinion and credibility of an expert. It's not






180

1 proper on direct examination.

2 THE COURT: My guess is the trial judge in

3 this case, again, Mr. Felos, would not have a

4 lengthy opinion of the appellate court upon him or

5 her on how they are to proceed. I am required to

6 assess the new medical treatment and their

7 acceptance in the relevant scientific community.

8 So I'm not sure how I assess Dr. Hammesfahr's

9 treatment in the relevant scientific community

10 unless I hear from the relevant scientific

11 community. And quite candidly, documents take a

12 whole lot less time than a live witnesses.

13 We've restricted ourselves to the six

14 physicians. I think it would do me a disservice

15 not to have all of what the relevant scientific

16 community uses.

17 MR. FELOS: Well, Your Honor, so I gather the

18 Court is denying my objection?

19 THE COURT: That's where I'm headed,

20 Mr. Felos. I just -- in the abstract, you're

21 absolutely correct in that the doctor is not going

22 to be able to get on the stand and say this patient

23 of mine has whiplash and, therefore, he is --

24 that's just start from scratch lawsuit as opposed

25 to this particular litigation, which giving this






181

1 court, anyway, a guidebook of what I'm supposed to

2 do. Other than getting copies of these documents,

3 I don't know how I can assess the acceptance in the

4 relevant scientific community.

5 MR. FELOS: Well, that would be done, Your

6 Honor, through the witness's testimony. Not

7 through use of a -- not through use of external

8 publications, documents, and treatises.

9 MS. ANDERSON: You know --

10 MR. FELOS: And if I may, Your Honor, on this

11 topic. The proper procedure would be here, when

12 our witness testifies, opposing counsel, if she can

13 show that the witness admits that these treatises

14 are authoritative or she can independently

15 establish that to the Court, then you can cite from

16 those treatises on the cross-examination of those

17 witnesses.

18 That's what authoritative treatises are used

19 for in purposes of cross-examination. And if

20 they're found to be authoritative, she can use them

21 in cross-examination and bring them before the

22 court in that way, but they are not to be used on

23 direct examination of her own witness.

24 MS. ANDERSON: You know, Mr. Felos did not

25 object when I asked Dr. Hammesfahr if the medical






182

1 literature had progressed since 1994. In fact, he

2 did testify there has been quite a bit of research

3 on the use of drugs, specifically vasodilators as

4 it relates to vasospasm, cerebral and otherwise.

5 But in any event, Judge, the Second DCA has

6 sort of created a -- coupled together two aspects

7 of the Frye hearing which normally precedes an

8 evidentiary hearing. So that's why we're stuck.

9 We've got to provide them and provide you with the

10 literature base, and at the same time, provide

11 substantive opinion evidence about the ultimate

12 fact question.

13 So while I certainly agree, as you say, in the

14 abstract, it wouldn't ordinarily -- treatises are

15 used strictly for cross-examination. Here,

16 Dr. Hammesfahr has to be able to say what his

17 understanding of the current literature is.

18 THE COURT: Frye test, I'm not addressing that

19 on this subject in this case at this time.

20 Let me do this: Let me try and fashion

21 something and see if we can satisfy the Second

22 District as well as the Fourth District.

23 I'm going to allow this in. But unless some

24 other physician testifies these are good

25 authorities, I will allow Mr. Felos' motion to






183

1 strike. Now he is the only one that says these are

2 good, then I'll hear, again, his motion to

3 supplement here.

4 MS. ANDERSON: The motion about Mr. Schiavo?

5 THE COURT: This motion. So let's do that.

6 And we might want to reserve ruling on this. I'm

7 going to let it in but I will consider a motion to

8 strike, unless you can tie it up. Fair enough?

9 MS. ANDERSON: Perfect.

10 MR. FELOS: Your Honor, just to clarify this.

11 When you say "let it in," you don't mean to say

12 that these documents are accepted into evidence,

13 but that counsel can approach the witness and

14 discuss them.

15 THE COURT: If he identifies them, I'll let

16 them in subject to your motion at the end of your

17 case. They haven't been tied up to another witness

18 to start.

19 MS. ANDERSON: Well, why don't I ask

20 Dr. Hammesfahr if the Lancet, for example, is

21 considered an authoritative source? Because that's

22 the preliminary question.

23 THE COURT: Sure.

24 MR. FELOS: Your Honor, I guess -- and forgive

25 me because I don't quite understand. If these are






184

1 deemed to be authoritative, at least preliminarily,

2 and the witness is questioned about them, do I

3 understand the Court's ruling that these documents

4 can be used during the testimony of the witness as

5 they would on cross-examination under the normal

6 rule. But under the normal rule, even if they're

7 used for purposes of cross-examination, they're not

8 accepted as exhibits in evidence.

9 So that was my question: Is the Court

10 allowing their use in terms of questioning the

11 witness about them or is the Court accepting these

12 documents into evidence? If the Court is going

13 that further step, I formally object to the

14 introduction of these exhibits as evidence.

15 MS. ANDERSON: You know, the judges and the

16 law clerks who will be mightily relieved not to

17 have to do this research. I can stand here at this

18 podium and ask Dr. Hammesfahr to read the citations

19 into the record, if that would satisfy Mr. Felos.

20 But it seems awfully sudden, particularly when the

21 appellate court has specifically asked about the

22 acceptance in the relevant scientific community.

23 MR. FELOS: I'm not talking about the citation

24 but having the substantive articles introduced into

25 evidence.






185

1 THE COURT: Well, Mr. Felos, if they're not in

2 evidence, why would you need a reservation on a

3 motion to strike?

4 MR. FELOS: Well, because there's two parts

5 here. One is accepting them into evidence. The

6 other is their use in any fashion even though

7 they're not accepted into evidence.

8 MS. ANDERSON: Again, he has -- you know, we

9 are all sort of operating under this quasi

10 half-Camel-half-elephant-type of hearing where we

11 have to address Frye issues, but also we have to

12 illicit opinions and fact testimony.

13 THE COURT: Well --

14 MS. ANDERSON: So I think your ruling is

15 appropriate, Judge, under the circumstances.

16 THE COURT: Well, I'm not sure how Frye

17 applies because Frye is a rule of evidence. So I

18 think the Second District has said that

19 Professor Erhardt's book controls unless the

20 opinion of the Second District says it doesn't in a

21 specific hearing. And in this hearing, for the

22 purpose only of the court assessing several things,

23 one of which is acceptance of this new treatment in

24 the relevant scientific community.

25 Quite candidly, Mr. Felos, you're talking






186

1 about not wanting to get this witness to make a

2 proffer. If we do it your way, it may be eight

3 o'clock in the morning. So I'm not certain what

4 you really want the Court to do.

5 MR. FELOS: Well, Your Honor, what I would

6 want the Court to do is, number one, not use them

7 at all on direct examination and wait until

8 cross-examination of my witness. But since the

9 Court is allowing they can be used, show the

10 witness a little of the articles, mark that for

11 identification, and ask him are these articles --

12 do you consider authoritative. And if he says yes,

13 then counsel can question the witness about the

14 articles without the documents being introduced

15 into evidence.

16 THE COURT: Well, Mr. Felos, unless a

17 document, a pertinent portion of it's read into the

18 record, how in the world am I or the three other

19 judges in Tampa going to know what it says? Gee,

20 this is authoritative. I agree. All of us four

21 doctors agree this is authoritative. So I

22 enumerate this and scratch my head and say, what do

23 they say, who sent them, who wrote this book.

24 MS. ANDERSON: You know, Judge --

25 THE COURT: It's an impossible burden on the






187

1 court.

2 MR. FELOS: That would be developed through

3 the examination of the witnesses.

4 THE COURT: Would you rather the witness

5 testify ad nauseam as to what's contained in all

6 these articles or do you simply prefer to let these

7 articles in, if they're not tied up and he is the

8 only witness who can authenticate them? We will

9 hear you again only at this time on the motion to

10 strike.

11 I think I agree, if he is the only physician I

12 hear from that says that this particular article is

13 newsworthy from a medical prospective, then it is,

14 obviously. But I think we're better served from

15 judicial economy, if nothing else, just having the

16 burden of this in evidence. If they are tied up,

17 they stay in evidence. And if they are not tied

18 up, I will hear you.

19 MS. ANDERSON: May I approach the witness,

20 Your Honor?

21 BY MS. ANDERSON:

22 Q. Dr. Hammesfahr, I have handed you a number of

23 premarked exhibits for identification: Exhibit 24,

24 Exhibit 29, Exhibit 28, Exhibit 30, Exhibit 32, Exhibit

25 33, Exhibit 34, 35, 40, 41, 42, 44, 45, 46, 47, 50, 54,






188

1 58, 64, 72, 74, 75, and 76.

2 Do you have those before you?

3 A. Yes, I do.

4 Q. Is this a combination of abstracts, articles,

5 and articles themselves on medical topics?

6 A. Yes, it is.

7 Q. And do these articles appear in publications

8 that are considered authoritative in the medical

9 research world?

10 A. Yes, they are.

11 Q. Can you briefly name those publications?

12 A. Lancet, Stroke. Current Controls and Trials

13 in Cardiovascular Medicine. Medical Review, Liege,

14 L-I-E-G-E. Anesthetist. Cardiovascular Drug Therapy.

15 CNS Drugs.

16 Q. What does CNS stand for?

17 A. Central Nervous System.

18 Current Opinions of Cardiology. Medical

19 Science Monitor. Circulation. The British Medical

20 Journal. Journal of Hypertension. The Journal of

21 Cardiovascular Oncology. The Journal of Human

22 Hypertension.

23 Q. Dr. Hammesfahr, have there been any changes in

24 the last year or so as a result of research findings in

25 the treatment of stroke?






189

1 A. Yes. There have been dramatic changes in

2 prospectives on stroke in the last two and a half, three

3 years, yes.

4 Q. Can you explain to the court what those

5 changes are?

6 A. The changes essentially are that stroke is not

7 just an embolic phenomenon where a clot goes to the

8 brain and blocks off oxygen. But rather a stroke itself

9 and -- and all medical treatment, most medical treatment

10 prior to two-and-a-half years ago was based on this

11 concept that we were trying to stop embolisms to the

12 brain, and a few cases of hypertension.

13 But rather it's been determined and found that

14 we can treat the blood vessels in the brain, themselves

15 directly, both to prevent stroke as well as treating

16 stroke itself. So what has happened in the last two and

17 a half years or so is that the medications we identified

18 seven years ago, eight years ago, have now been

19 identified with widespread use in randomized studies of

20 sometimes thousands of patients that it should be used

21 in the treatment of stroke or prevention of stroke.

22 Q. So this group in '94, this group of patients

23 that you described earlier is now the subject of

24 research?

25 A. Right. What has been found is that these






190

1 types of medications do in fact work on the blood

2 vessels of the brain. They also find that certain

3 medications work better than other medications in the

4 brain, but they work regardless of the blood brain

5 barrier and that you could have dramatic improvements in

6 a patient's problem from these medications. For

7 instance, the reduction in stroke risk by 30 to

8 40 percent by those who are expected to have strokes.

9 Q. Is it that finding, that research finding that

10 dramatically changed stroke treatment in the last few

11 years?

12 A. Yes, it has. It used to be thought that --

13 now the recommendations are specific medications be used

14 in those patients for strokes and high risk of strokes.

15 Those medications are medicines that we advocate and

16 use, ACE inhibitors, nitrates, and so on. Second, that

17 these medicines' effect is not due to the blood pressure

18 effect but rather the effect on the brain's blood

19 vessels themselves.

20 So just as in cardiology, we use these

21 medicines to treat heart attacks for the vasodilators

22 quality. And the issue of the blood pressure is not an

23 issue other than how you customize the dose. This is

24 the same. We found that these medicines have a benefit,

25 and it's not due to blood pressure but due to the direct






191

1 effect on the blood vessels of the brain just like we

2 use on the blood vessels of the heart.

3 Also, interesting, to make a similar comment.

4 It also works in the blood vessels of the kidneys.

5 Q. What does research in cardiology have to do

6 with your field?

7 A. Well, most of these -- many of these articles

8 were actually done primarily by cardiologists and

9 circulatory experts with neurologists as a relatively

10 minor part of the team but a present part of the team.

11 Others of these articles are done specifically by stroke

12 specialist teams, headed by stroke specialist teams. So

13 being it's identified across the board now by people who

14 do vascular diseases, whether it's brain or other types.

15 Q. What is a stroke team in a hospital?

16 A. Well, a stroke team hospital specialists are

17 involved in the treatment of stroke.

18 Q. So it would consist of neurologists,

19 radiologists, interns?

20 A. Yes.

21 Q. Who else?

22 A. Emergency room physicians, and frequently

23 intensive care unit nurses and doctors, also.

24 Q. So it's a cross-disciplinary approach to a

25 particular stroke?






192

1 A. Very much, yes.

2 Q. Now, what does the term "perfusion" mean?

3 A. Perfusion means blood clot.

4 Q. So if the perfusion in the brain has been

5 damaged or reduced, it simply means that the blood flow

6 itself -- can blood flow be lowered if the pressure

7 remains strong?

8 A. I'm sorry?

9 Q. Can perfusion be lowered -- will we rarely see

10 lowered perfusion if the blood pressure is normal?

11 A. Yes. You can lower perfusion of brain tissue

12 if you lower blood pressure. Now, blood pressure is in

13 a range so that if you have a normal-low blood pressure

14 and you have a low blood pressure, you lower it using

15 the wrong medicine, you can lower the perfusion.

16 That was the problem with the early studies is

17 that they used the wrong medicine that resulted in a

18 lower blood pressure with a lower perfusion. Whereas,

19 these studies talked about lowering blood pressure into

20 a normal range or sometimes even in a low-normal range

21 and yet maintaining perfusion.

22 So if you use the right medicines, you have an

23 effect in the brain itself. If you use the right

24 medicine, but the wrong dose, you can lower perfusion.

25 You have to customize it.






193

1 Q. And how are you able to customize it?

2 A. Well, we customize it through repetitive

3 physical examinations as well as the monitoring that's

4 done, an ultrasound and electronic monitoring. So we

5 are using a method of customizing these outpatient's

6 medicine similar to what somebody in an emergency room

7 or intensive care unit setting would do. They use the

8 same technique of repetitive monitoring of the testing

9 and repetitive physical exam and blood pressure

10 monitoring.

11 Other ways that they have monitored here is

12 things like blood flow studies. There are different

13 ways of monitoring.

14 Q. Is Transcranial Doppler ultrasound an accepted

15 monitoring device?

16 A. Yes. Transcranial Doppler monitoring, you'd

17 go to Medline, there would be thousands of records.

18 Medline is the National Library of Medicine essentially

19 archived in many print journals, many medical journals

20 there. If you go in there and type in the words

21 "Transcranial Doppler monitoring," you will get a large

22 number of published papers that deal with the monitoring

23 of blood gas which are in blood vessels and guide to

24 therapy by the use of Transcranial Doppler.

25 Q. Now, what is titration?






194

1 A. Titration is the customizing of the dose --

2 titration of medicine is the customizing of the dose of

3 medicine to -- against some variable. That variable can

4 be blood pressure or could be chest pain, heart attack,

5 or could be neurological function. It's the customizing

6 of the dose of medication, both at one time as well as

7 over time, over months or years.

8 So your physician can treat blood pressure in

9 the office and he treats it -- changes the dose of blood

10 pressure every six months or a year is titrating the

11 medicine against blood pressure and against the

12 patient's physical response.

13 In the emergency room you titrate medication

14 against a patient's chest pain and having a heart attack

15 and their cardio function.

16 Q. Now, Dr. Hammesfahr, have you ever published

17 your observations and findings about vasospasm and

18 Transcranial Doppler, the use of Transcranial Doppler

19 and vasodilators?

20 A. Yes, I have.

21 MS. ANDERSON: May I approach the witness,

22 Your Honor?

23 THE COURT: Yes, ma'am.

24 BY MS. ANDERSON:

25 Q. Dr. Hammesfahr, I have given you Respondent's






195

1 Exhibit 17, premarked for identification, and ask you if

2 you recognize that document?

3 A. Yes, I do.

4 Q. What is it?

5 A. That's an article that was published in 1995

6 that deals with cerebral vasospasm. Is that the

7 question?

8 Q. Yes.

9 In brief, what is the subject matter -- what

10 is encompassed within the subject matter of this

11 article?

12 A. Briefly, what we identified in the paper and

13 discussed was that cerebral vasospasm is common to many

14 different disorders that it wasn't suspected in

15 previously or had very limited suspicions of it, and

16 that there is a medical approach to having reproduced a

17 consistent improvement in patients that suffer from

18 vasospasm. In that improvement, you use vasodilators to

19 monitor, Transcranial ultrasound, and physical

20 examinations.

21 Q. Now, did you find that your treatment protocol

22 was affected in a variety of neurological deficits?

23 A. Yes. This was a great surprise at that point

24 because vasospasm was only theoretically suspected in

25 some of these disorders and not suspected in other






196

1 disorders.

2 Q. What were some of the disorders?

3 A. Well, it was known to exist in stroke and

4 cerebral palsy, hypoxic encephalopathy, and anoxic

5 encephalopathy. But in those areas, it was primarily

6 known to exist through pathology and autopsy studies

7 done on patients and also on injured graphic studies

8 done on patients. It wasn't known that you could treat

9 a patient.

10 Where I came from the medical college of

11 Virginia, a great deal of the effort of the department

12 was spent on publishing and working on research treating

13 patients that had a subarachnoid type of stroke.

14 Q. What is a subarachnoid hemorrhage?

15 A. A subarachnoid hemorrhage is a condition where

16 a blood vessel breaks and causes the blood pressure to

17 affect the blood pressure to the brain, throughout the

18 brain, causes the pressure to affect the brain itself

19 and causes blood to spill which is causes a toxic injury

20 to the blood vessel.

21 Similar to what you get in anoxic

22 encephalopathy in some cases, because you have the

23 injury to the blood vessel which causes constriction of

24 the blood vessel. So there are several different

25 methods that would develop constriction or vasospasm of






197

1 the blood vessels and subarachnoid hemorrhage common to

2 stroke and common to anoxic and hypoxic encephalopathies

3 and common to cerebral palsy.

4 Q. So subarachnoid refers to what?

5 A. It refers to the location of blood vessel that

6 has ruptured in the brain. It's underneath the

7 arachnoid, which is a thin covering of the brain.

8 MS. ANDERSON: May I approach the witness,

9 Your Honor?

10 THE COURT: Yes, ma'am.

11 BY MS. ANDERSON:

12 Q. Dr. Hammesfahr, I have handed you what I have

13 premarked as Respondent's Exhibit 15 and ask you if you

14 recognize that?

15 A. Yes, I do.

16 Q. And how do you recognize that?

17 A. Well, this is a copy of my patent, which I

18 applied for, I think, in 1996 or 1997. Somewhere in

19 that time frame. It deals with the treatment through

20 titration of vascular injuries to the brain. Vascular

21 injuries to the brain include injuries which injure the

22 control mechanism that controls blood flow to the brain

23 thus causing vascular injury.

24 Q. This patent is on the technique that we talked

25 about this morning; is that correct?






198

1 A. Yes, it is.

2 Q. When was it issued?

3 A. It was issued --

4 Q. Hint: Top right-hand corner.

5 A. July 10, 2001.

6 Q. Now, why did you patent this?

7 A. I patented it for several reasons. For the

8 standpoint of medicine, it clearly identifies the state

9 of a prior art to have a patent issued. A patent is

10 issued for something new and novel and by definition,

11 not intuitively obvious to other practitioners in the

12 field. By having a patent, you are clearly identifying

13 the state of the prior art prior to these observations,

14 these discoveries.

15 Q. Now, can anybody just apply to the U.S.

16 government and get a patent for a medical procedure?

17 A. Well, anybody can apply. But what happens

18 after the application is that the patent goes to review

19 by patent officers.

20 MR. FELOS: Your Honor, I object. Lack of

21 foundation. I believe this witness has been

22 established as a medical person. He hasn't been

23 established as an expert in patent and the patent

24 process.

25 MS. ANDERSON: Well, I can ask him that






199

1 foundation question.

2 THE COURT: Just for my edification. Isn't a

3 patent just simply something that hasn't been

4 patented before?

5 BY MS. ANDERSON:

6 Q. Dr. Hammesfahr, can you answer that? It has

7 to be new, correct?

8 A. It has to be new.

9 Q. Does it also have to be anything else?

10 A. Well, it has to work. It has to be new. It

11 has to be --

12 MR. FELOS: Excuse me, Your Honor. I renew my

13 prior objection. I don't believe the witness is

14 qualified to testify as to what he recalls.

15 THE COURT: I don't know if he is either.

16 BY MS. ANDERSON:

17 Q. Well, do you know what review your patent

18 application underwent?

19 A. I know a great deal about what this patent

20 went through.

21 Q. How do you know that?

22 A. Because we go through communications with my

23 attorneys and the patent office directly and as well as

24 their reviews of what was published.

25 Q. By "them," you mean who, the patent office?






200

1 A. The patent office. The patent office in the

2 process of the patent will send back initial reviews and

3 hearings and ask for additional information.

4 Q. So this is ongoing dialog with the patent

5 office and you don't know until the end whenever you

6 satisfied that?

7 A. Correct.

8 Q. Is that right?

9 A. Right.

10 MS. ANDERSON: Does that answer your question?

11 THE COURT: My basic question is: To what

12 extent does a patent have to accomplish something?

13 MS. ANDERSON: He said it has to work.

14 THE COURT: Well, I don't know what the word

15 work means. There are lots of things that are

16 patented and ongoing.

17 MS. ANDERSON: And in terms of --

18 THE COURT: I'm not sure why you brought that

19 up.

20 BY MS. ANDERSON:

21 Q. In terms of treatment protocol, medical

22 treatment protocol, when you say it has to work, what do

23 you mean by that?

24 MR. FELOS: Your Honor, again, I renew my

25 objection. This witness is not qualified to






201

1 testify as to what standard of review for granting

2 patents is.

3 MS. ANDERSON: He knows as a patent applicant

4 what the government asked him to provide.

5 THE COURT: What the government told him to

6 provide?

7 MS. ANDERSON: What the government told him to

8 provide, yes.

9 THE COURT: Or what his lawyer told him?

10 BY MS. ANDERSON:

11 Q. Well, you were a part of this process, were

12 you not, Dr. Hammesfahr?

13 A. Yes, I was.

14 Q. And it lasted how many years?

15 A. It lasted about four to five years.

16 Q. Periodically, the patent office make inquiries

17 for additional information?

18 A. Yes, they did.

19 Q. Did they raise questions periodically?

20 A. Yes, they did.

21 Q. Were the people raising questions

22 medically-framed?

23 A. The people raising the questions relied on

24 information from background, medically trained --

25 MR. FELOS: Your Honor, I object. He is






202

1 testifying as to the state of mind of another

2 person.

3 MS. ANDERSON: No. No, he is not. There is

4 nowhere in that testimony about the state of mind.

5 He simply said that --

6 BY MS. ANDERSON:

7 Q. Are doctors involved in the patent review

8 process?

9 A. Doctors are involved in the part of the patent

10 review process that is one level behind the hearing

11 officers. So, yes.

12 MR. FELOS: Your Honor, I move to strike all

13 of that testimony on the basis that it's hearsay.

14 It's apparently what a patent examiner told him

15 that somebody in the review process was doing.

16 THE COURT: Well, this doctor will be

17 testifying as to medical matters, and a patent is

18 not a medical matter.

19 MS. ANDERSON: Well, Mr. Felos is the one who

20 had identified this angle, that the patent was an

21 issue.

22 THE COURT: He has done that.

23 MS. ANDERSON: Correct.

24 THE COURT: To have him testify as to all of

25 the steps that were done by others in order to






203

1 arrive at that is -- I'm not sure he is qualified

2 to do that.

3 MS. ANDERSON: Judge, that's fine. I did not

4 ask him those questions. It was Mr. Felos who is

5 making the objection.

6 MR. FELOS: Well, to the question. The man

7 identified the document as a patent, so he

8 identified a document that hasn't been sought to be

9 introduced into evidence. And the whole question

10 of what the procedure of applying for the patent is

11 and what he was told by the patent office and his

12 impressions of the patent law is hearsay and it's

13 also irrelevant.

14 THE COURT: He can't testify to what others

15 have done or what the standard involvement in

16 obtaining a patent would be unless you can qualify

17 him as an expert.

18 BY MS. ANDERSON:

19 Q. Dr. Hammesfahr, what is your patent number?

20 A. 6258032.

21 Q. The question that provoked that colloque was

22 why you got it patented. You said it has to be new and

23 it has to work, right?

24 A. Correct.

25 Q. Was it your intention to have stake and






204

1 ownership claim and demand royalties if another

2 physician used your treatment protocol?

3 A. That was not my intention; although, that is

4 legally what I can do.

5 Q. You have not exercised those rights?

6 A. I have not.

7 Q. Thank you.

8 What is the "Therapeutic Window Concept" that

9 is referred to in the patent?

10 MR. FELOS: Your Honor, I object. The patent

11 is not in evidence. He cannot refer to it from the

12 witness stand.

13 MS. ANDERSON: It has been identified, Judge.

14 I'll move it into evidence.

15 MR. FELOS: The fact that he has identified a

16 document does not mean that he can read from it

17 because it's not in evidence.

18 MS. ANDERSON: I'm not asking him to read from

19 it. I'm asking him to explain a term that is used

20 in the patent "therapeutic window." I am entitled

21 to ask a question about that term and that

22 document.

23 And by the way, Judge, I move into evidence at

24 this time all previously identified exhibits that

25 this witness has handled, including Exhibit Number






205

1 15 which is the patent. I'm asking him what the

2 term "therapeutic window" means.

3 MR. FELOS: Your Honor, I object to

4 introduction of the patent on, number one, lack of

5 communication, and number two, it's hearsay.

6 THE COURT: Well, every document is hearsay,

7 Mr. Felos.

8 MR. FELOS: What other document is hearsay?

9 THE COURT: Every single document is hearsay

10 unless it's introduced into court.

11 MR. FELOS: Your Honor, frankly, I'm not --

12 MS. ANDERSON: Let me get my Exhibit 15.

13 THE COURT: Now, the first bulk of documents,

14 you've already objected to those and I've overruled

15 the objection. So I will receive those and the

16 court reporter will have those numbers in the

17 record.

18 MS. ANDERSON: And also Exhibit 17, Your

19 Honor, I move to introduce into evidence at this

20 time, his document.

21 THE COURT: His paper?

22 MS. ANDERSON: His paper.

23 MR. FELOS: I object on the same basis as my

24 previous objection as to medical articles and also

25 as to hearsay.






206

1 THE COURT: Well, his article is hearsay? He

2 authored it. It's hearsay?

3 MR. FELOS: It's an -- it is a statement of

4 the declarant, but it was a statement not made

5 under oath, which was the definition of hearsay,

6 Your Honor.

7 MS. ANDERSON: What? That is not the

8 definition of hearsay.

9 THE COURT: What does hearsay have to do with

10 under oath, Mr. Felos? That's a new one on me.

11 MR. FELOS: Your Honor, hearsay --

12 MS. ANDERSON: Is an out-of-court statement

13 offered to prove the truth of the matter asserted

14 therein.

15 THE COURT: There's an exception for prior

16 testimony which is under oath.

17 MR. FELOS: "Hearsay is a statement made other

18 than one made by the declarant while testifying in

19 trial or hearing offered into evidence to prove the

20 truth of the matter asserted."

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