2

1 APPEARANCES :

2 GEORGE J. FELOS, ESQUIRE

  CONSTANCE FELOS, ESQUIRE

3 640 Douglas Avenue

  Dunedin, FL 34698

4

5 Attorneys for Petitioner

6

  PAMELA CAMPBELL, ESQUIRE

7 The Alexander Building

  535 Central Avenue

8 Suite 403

  St. Petersburg, FL 33701

9

10 Attorney for Respondents

11

12 INDEX

                                                Page

13 WITNESS

   MICHAEL SCHIAVO

14    Direct Examination by Mr. Felos            20

      Cross-Examination by Ms. Campbell          74

15    Redirect Examination by Mr. Felos          89

16 SCOTT SCHIAVO

      Direct Examination by Mr. Felos            90

17    Cross-Examination by Ms. Campbell         108

      Redirect Examination by Mr. Felos         117

18

   JAMES BARNHILL, MD

     Direct Examination by Ms. Felos            121

     Cross-Examination by Ms. Campbell          159

     Redirect Examination by Ms. Felos          171

21

   EXHIBITS                - PETITIONER'S

22                                             Page

     Exhibit No.                1                25

23   Exhibit No.                2                25

     Exhibit No.                3                56

24   Exhibit No.                4                71

     Exhibit No.                5               134

25

 

(177)

1  APPEARANCES:

   GEORGE J. FELOS, ESQUIRE

   CONSTANCE FELOS, ESQUIRE

   640 Douglas Avenue

   Dunedin, FL 34698

4

   Attorneys for Petitioner

5

   PAMELA CAMPBELL, ESQUIRE

6  The Alexander Building

   535 Central Avenue

7  Suite 403

   St. Petersburg, FL 33701

8

   Attorney for Respondents

9

10 INDEX

                                               Page

11

    WITNESS

12

    FATHER GERARD MURPHY

13      Direct Examination by Mr. Felos         178

        Voir Dire Examination by Ms. Campbell   185

14      Direct Examination Continued            187

        Cross-Examination by Ms. Campbell       203

15      Redirect Examination by Mr. Felos       218

        Recross-Examination by Ms. Campbell     223

16

    JOAN SCHIAVO

17      Direct Examination by Mr. Felos         224

        Cross-Examination by Ms. Campbell       237

i8      Redirect Examination by Mr. Felos       244

19  VINCENT GAMBONE, MD

        Direct Examination by Mr. Felos         246

20      Cross-Examination by Ms. Campbell       260

        Redirect Examination by Mr. Felos       275

21

    BEVERLY TYLER

22      Direct Examination by Mr. Fe-Los        281

        Cross-Examination by Ms. Campbell       307

23      Redirect Examination by Mr. Felos       319

24      Petitioner Rests                        323

25

 

(326)

   APPEARANCES:

   GEORGE C. FELOS, ESQUIRE

   CONSTANCE FELOS, ESQUIRE

   640 Douglas Avenue

   Dunedin, FL 34698

   Attorneys for Petitioner

  

   PAMELA CAMPBELL, ESQUIRE

   The Alexander Building

   535 Central Avenue

   Suite 403

   St. Petersburg, FL 33701

   Attorney for Respondents

  

   INDEX

                                              Page

   WITNESS

   MARY SCHINDLER

        Direct Examination by Ms. Campbell     328

        Cross-Examination by Mr. Felos         398

        Redirect Examination by Ms. Campbell   439

        Recross-Examination by Mr. Felos       444

        Further Redirect Examination           464

        Further Recross-Examination            468

   MICHAEL VITADAMO

        Direct Examination by Ms. Campbell     446

        Voir Dire Examination by Mr. Felos     449

        Direct Examination Continued           462

        Cross-Examination by Mr. Felos         463

   ROBERT SCHINDLER, JR.

        Direct Examination by Ms. Campbell     475

        Cross-Examination by Mr. Felos         492

        Redirect Examination by Ms. Campbell   510

   EXHIBITS

                                               Page

   Respondent's Exhibit       1                463

 

(517)

1  APPEARANCES:

2

   GEORGE J. FELOS, ESQUIRE

3  CONSTANCE FELOS, ESQUIRE

   640 Douglas Avenue

4  Dunedin, FL 34698

5  Attorneys for Petitioner

 

   PAMELA CAMPBELL, ESQUIRE

   The Alexander Building

7  535 Central Avenue

   Suite 403

8  St. Petersburg, FL 33701

9  Attorney for Respondents

 

10 INDEX

                                                Page

11 WITNESS

12 SUZANNE CARR

         Direct Examination by Ms. Campbell     518

13       Cross-Examination by Ms. Felos         529

14 ROBERT SCHINDLER

         Direct Examination by Ms. Campbell     549

15       Cross-Examination by Mr. Felos         599

         Redirect Examination by Ms. Campbell   661

16       Recross-Examination by Mr. Felos       665

         Further Redirect Examination           670

17       Further Recross-Examination            672

18 MARY SCHINDLER

         Further Redirect Examination           675

19       Further Recross-Examination            677

20

22

23

24

25

 

(681)

   APPEARANCES:

   GEORGE J. FELOS, ESQUIRE

   CONSTANCE FELOS, ESQUIRE

   640 Douglas Avenue

   Dunedin, FL 34698

   Attorneys for Petitioner

  

   PAMELA CAMPBELL, ESQUIRE

   The Alexander Building

   535 Central Avenue

   Suite 403

   St. Petersburg, FL 33701

   Attorney for Respondents

  

   INDEX

                                                Page

   WITNESS

   RICHARD PEARSE

         Direct Examination by Ms. Campbell     682

         Cross-Examination by Mr. Felos         702

         Redirect Examination by Ms. Campbell   749

         Recross-Examination by Mr. Felos       755

         Further Redirect Examination           756

         Further Recross-Examination            757

   DIANE MEYER

         Direct Examination by Ms. Campbell     762

         Cross-Examination by Mr. Felos         774

         Redirect Examination by Ms. Campbell   792

         Recross-Examination by Mr. Felos       795

   JACKIE RHODES

         Direct Examination by Ms. Campbell     799

         Cross-Examination by Mr. Felos         317

         Redirect Examination by Ms. Campbell   830

         Respondents Rest                       833

  EXHIBITS

                                               Page

         Petitioner's Exhibit   8               833

 

(841)                                         

1 APPEARANCES:

2 GEORGE J. FELOS, ESQUIRE

  CONSTANCE FELOS, ESQUIRE

3 640 Douglas Avenue

  Dunedin, FL 34698

4 Attorneys for Petitioner

5

  PAMELA CAMPBELL, ESQUIRE

6 The Alexander Building

  535 Central Avenue

7 Suite 403

  St. Petersburg, FL 33701

8 Attorney for Respondents

9

10 INDEX

                                               Page

11 WITNESS

   JAMES BARNHILL, MD

12          Rebuttal Direct by Ms. Felos       842

            Rebuttal Cross by Ms. Campbell     862

13          Rebuttal Redirect by Ms. Felos     863

14          ELLEN DELANCEY

            Rebuttal Direct by Mr. Felos       865

15          Rebuttal Cross by Ms. Campbell     869

            Rebuttal Redirect by Mr. Felos     870

16 BRIAN SCHIAVO

17          Proffer Examination by Mr. Felos   882

18 JOAN SCHIAVO

            Rebuttal Direct by Mr. Felos       886

19 DIANE COMES

20          Rebuttal Direct by Mr. Felos       888

            Rebuttal Cross by Ms. Campbell     893

21 MICHAEL SCHIAVO

22          Rebuttal Direct by Mr. Felos       893

23 JAMES SHEEHAN

            Rebuttal Direct by Mr. Felos       910

24          Rebuttal Cross by Ms. Campbell     913

            Rebuttal Redirect by Mr. Felos     916

25

 

5

1 Your Honor, in this case there are no winners.

2 Whatever the outcome of this case, everyone has

3 lost. A little less than ten years ago, February

4 1990, a beautiful vivacious young woman's heart

5 stopped beating. Her brain was deprived of oxygen

6 and since that time she's existed in a permanent

7 vegetative state, whereas her parents have agreed

8 in the pleadings, it's an irreversible, profoundly

9 debilitating condition.

10 On that day close to ten years ago, my

11 client, Mr. Schiavo, lost the wife he knew. Her

12 parents lost their dreams and hopes of a full life

13 with their daughter and her siblings, and friends

14 lost a shining presence in their lives. So in

15 this case, there is no final judgment order,

16 decree, that can ever bring Theresa Schiavo back.

17 If this Court grants the petition and

18 permits Theresa Schiavo's artificial life support

19 to be removed, all the parties will have to suffer

20 the agony of watching a beloved one die, even

21 though it is my client's belief and wish that is

22 what his wife wanted. If this Court does not

23 grant the petition, Theresa Schiavo's body will be

24 maintained in this condition, perhaps for decades,

25 and there is--no-victory or win in that for anyone.

 

6

1 The evidence will show in this case that

2 Theresa had a conventional childhood. She was

3 brought up by her parents. They were practicing

4 Catholics at the time. She meets Michael in

5 community college in the Philadelphia area. They

6 fell in love. They married. They lived there

7 from, as a married couple, from 1984 to 1986.

8 They met in 1982. They had a family oriented life

9 in Philadelphia, both with Michael and Theresa's

10 family.

11 They moved to Florida in 1986. She

12 worked for Prudential Insurance and he worked in

13 food service management as a restaurant manager,

14 assistant restaurant manager, working nights. You

15 will also hear evidence that Theresa once had a

16 weight problem. Was heavy in her early adulthood

17 and lost a significant amount of weight. You will

18 hear evidence that Theresa wanted to become

19 pregnant. Wanted to have a family. Was under a

20 doctor's care to become pregnant, and while under

21 that doctor's care, developed a potassium

22 imbalance which caused her heart to stop beating,

23 which caused the incident in question.

24 You will hear much evidence as to how

25 Mr. Schiavo cared for his wife. Fought for his

 

7

1 wife. Fought to get experimental treatment for

2 his wife. Raised funds for his wife to go out to

3 California and have electrical implants to try to

4 stimulate her brain. Engaged in fund raisers.

5 How he stayed with her for day and night for

6 periods of years. How he has been termed, as he

7 has been termed, as a nursing home administrator's

8 worst nightmare. How he has gotten for Theresa a

9 level of care that most other patients would not

10 have received.

11 You will hear evidence how he hired a

12 private aide over a 2-year period to take Theresa

13 out to museums, hairdressers, beauty makeovers, to

14 try to stimulate her in some hope that she may

15 improve or may revive. You will also hear

16 evidence from physicians, Your Honor, that there

17 is no hope of recovery for Theresa. That she is

18 in a permanent vegetative condition.

19 You will also hear doctor's evidence

20 that the process of removal of a feeding tube and

21 the death process involved there takes seven to

22 ten days. That a patient does not starve to

23 death. A patient quickly develops an electrolyte

24 imbalance which causes death within a short time,

25 and that death as a result of this process is not

 

8

1 painful.

2 You will hear disputed evidence as to

3 the cognition of Theresa Schiavo. I am sure you

4 will hear evidence by the respondent that they

5 believe Theresa is aware of their presence.

6 However, it is important for the Court to remember

7 that that is really a non issue in this case. The

8 major issue in this case is what Terri's intent

9 was.

10 And we will present testimony from Mr.

11 Schiavo and his brother and sister-in-law as to

12 conversations Theresa Schiavo had with them in

13 which she stated that if she had to be dependent

14 on the care of others, she would not want to live

15 that way. She would rather die. Also, if she was

16 in that condition, she would not want to be kept

17 alive or maintained artificially. Her wishes were

18 not contingent upon being totally unconscious or

19 vegetative, but broadly expressed in that way. So

20 although there may be dispute in this case as to

21 whether Theresa has some awareness of her

22 surroundings, minimal awareness, it really is a

23 non issue in terms of her expression of intent.

24 There may be some evidence that while

25 Theresa was living with her parents, she may have

 

9

1 made comments about the Karen Ann Quinlan case.

2 We believe that the Court will not find that

3 evidence particularly credible, and certainly if

4 it is, contrary to her later statements, would

5 have been a change of position for Theresa.

6 You will also receive testimony, Your

7 Honor, from some experts. One will be an expert

8 witness testifying as to the doctrine and policies

9 of the Catholic church regarding artificial life

10 support. That testimony will show that the

11 request of the petitioner in this case is highly

12 consistent with the teachings of the Catholic

13 faith.

14 You will also hear evidence from an

15 expert in American's attitudes and expressions

16 concerning end of life care, who will also testify

17 that the manner of expression, the manner in which

18 Theresa expressed her wishes, is very consistent

19 with how Americans do that. That usually these

20 statements are made as a catalyst to a particular

21 event and illness of a relative; watching a movie

22 or television program where someone is impaired.

23 That is how these expressions are usually and

24 customarily made.

25 You will also hear in this trial

 

10

1 testimony regarding the relationship between the

2 parties, the petitioner and respondents, which was

3 a good relationship and a supportive relationship

4 until the malpractice award was given in this

5 case. You will hear evidence that in 1992 a

6 verdict was issued in a medical malpractice case

7 brought on Theresa's behalf and Theresa, the

8 guardianship estate, netted over $700,000 and that

9 Mr. Schiavo netted approximately $300,000 in a

10 loss of consortium award.

11 You will hear evidence -- you will hear

12 testimony from the respondents that there was an

13 alleged agreement between Mr. Schiavo and the

14 respondents that he would split his loss of

15 consortium award with them. You will hear

16 testimony from Mr. Schiavo that that was not the

17 case. You will hear testimony that the

18 respondents were in significant financial

19 difficulties at that time and were upset that they

20 didn't receive a portion of Mr. Schiavo's award.

21 You will hear testimony of basically an

22 unfortunate falling apart of that relationship and

23 also testimony that shortly after that falling

24 apart, the respondents filed a suit in this court

25 to remove Mr. Schiavo as Theresa's guardian

 

11

1 alleging that he was in a relationship with

2 another woman, that he was not caring for her

3 medically, and that he had a financial conflict of

4 interest. You will hear testimony that that suit

5 was dismissed with prejudice by the respondents.

6 There will be testimony that three years

7 after Theresa's incident, yes, Mr. Schiavo did

8 have a relationship and is in a relationship

9 currently. You will hear testimony that, yes, Mr.

10 Schiavo wants to have a family in the future. He

11 wants to be a father in the future. And you will

12 also hear that that doesn't mean that he doesn't

13 love Terri and will always love Terri and wants

14 what's best for her.

15 You will hear testimony that it's always

16 been the respondents' wish for Mr. Schiavo to move

17 on with his life, and Mr. and Mrs. Schindler take

18 over the guardianship and take over the care of

19 Terri. You will hear testimony regarding the

20 Schindlers' beliefs concerning medical treatment

21 and their wishes concerning Terri. Terri's

22 medical treatment. Some of that evidence, which

23 may be disturbing.

24 You will hear testimony that the

25 Schindlers, if in Terri's condition, would want

 

12

1 all possible medical treatment to keep them alive

2 at all costs, even if they were permanently

3 unconscious. You will hear testimony that they

4 would choose chemotherapy. They would choose, if

5 they developed gangrene, they would choose to have

6 their limbs amputated to remain in a permanent

7 vegetative condition.

8 You will also hear testimony from

9 Theresa's father that if Terri needed open heart

10 surgery, he would choose to have open heart

11 surgery performed on her rather than have her die.

12 You will hear testimony from her father that if

13 Theresa developed gangrene and limbs needed to be

14 amputated, he would choose to have that for his

15 daughter. You will also hear testimony,

16 Your Honor, that those beliefs and intents have

17 nothing to do with being Catholic or part of the

18 Catholic faith.

19 You will hear -- I am sure you will hear

20 testimony in this case about the guardianship

21 estate, and yes, if Theresa Schiavo dies at this

22 time and the petition is granted, Mr. Schiavo will

23 inherit those funds of Theresa's Schiavo's

24 intestate. You will hear testimony that Mr. and

25 Mrs. Schindler also, if the petition is denied and

 

13

1 Mr. Schiavo does remarry, will be Theresa's

2 intestate heirs and will inherit.

3 At the end of the evidence, the Court I

4 believe will conclude that Mr. Schiavo is not

5 concerned with finances, with money, financial

6 gain, but always has been concerned with the best

7 interests of his wife. You will also hear

8 evidence regarding the time period that has

9 elapsed since Terri's incident and the request to

10 remove the feeding tube. It has been ten years,

11 and the argument has been made and was made by the

12 guardian ad litem's report that is in the file

13 that that somehow affects Mr. Schiavo's

14 credibility.

15 The Court will hear evidence for the

16 first four years or so that Mr. Schiavo

17 aggressively, aggressively treated or tried to

18 seek treatment for Terri in the hope of recovery.

19 Despite doctor's advice there was no hope, he did

20 not give up hope. And I believe the evidence will

21 show he can't be faulted for trying as hard as he

22 did to help his wife in the hope of recovery.

23 In 1994, at the suggestion of his

24 doctors, the Court will hear that Mr. Schiavo made

25 a decision not to treat an infection, which would

 

14

1 have resulted in Terri's death. In response to

2 that, Your Honor, the evidence will show that Mr.

3 and Mrs. Schindler amended their petition to

4 remove Mr. Schiavo as guardian, alleging he was

5 not treating the infection and alleging that

6 constituted an abuse of Terri.

7 The evidence will show that at that

8 time, my client was emotionally unable to proceed.

9 After making a decision not to treat an infection,

10 he was attacked for it and not emotionally able to

11 proceed with the removal of the feeding tube.

12 That about a year later, he started to take steps

13 to do that which has resulted in this petition.

14 The Court will, as part of the evidence

15 in this case, review the report of the guardian ad

16 litem and also the suggestion of bias filed in

17 response. The Court will also hear testimony that

18 the guardian ad litem at the time he issued his

19 report had one piece of evidence regarding Terri's

20 intent and that was the statements relayed to him

21 by Mr. Schiavo. You will hear the guardian ad

22 litem testify that had he known of the statements

23 of Mr. Schiavo's brother and sister-in-law, that

24 his conclusions may very well have been

25 different.

 

15

1 You will also hear testimony regarding

2 the guardian ad litem of his personal feelings

3 regarding removal of feeding tubes. The guardian

4 ad litem has been very candid, and the evidence

5 will show, personally, he has great difficulty

6 with placing removal of artificial provision of

7 sustenance as medical treatment, which is the law

8 in Florida.

9 You will hear testimony of the guardian

10 ad litem to the effect that he believes patients

11 should not have the right, although the Supreme

12 Court of Florida has given the patient the right

13 to cease food and water, in his belief that should

14 not be the case and the patient should not have

15 that right. We will argue to the Court that may

16 have affected the close call, and I use the words

17 of the guardian ad litem, the close call he made

18 in his report.

19 We believe at the conclusion of the case

20 the Court will find clear and convincing evidence

21 that Theresa Schiavo would not want to be kept

22 alive in this condition and would want the feeding

23 tube removed. Also, if it's necessary for the

24 Court's determination, we believe the Court will

25 find the removal of the feeding tube is in Theresa

 

16

1 Schiavo's best interest. I say, if necessary,

2 Your Honor.

3 Obviously, the primary question before

4 the Court is Theresa's intent. If the Court does

5 not find clear and convincing intent, which we

6 believe the Court will do, but if that should

7 occur, we intend to argue to the Court that the

8 Court does have the authority, absent clear and

9 convincing evidence of intent under a best

0 interest test, to grant the petition.

11 Your Honor, in closing here, while the

12 petitioner agrees that life is sacred and should

13 be preserved, he also believes, and we will

14 suggest to the Court, that neither the law, nor

15 Theresa's religion, or moral dictates would

16 require that life be artificially preserved at all

17 costs. Thank you.

18 THE COURT: Thank you, Mr. Felos.

19 Ms. Campbell.

20 MS. CAMPBELL: Mr. Felos has already

21 very eloquently and accurately set forth a lot of

22 the history in this case going over the dates and

23 times of the testimony dictated here in the next

24 week. Our differences where we come is as to what

25 the Court will find and also the credibility of

 

17

1 the witnesses.

2 Mr. Felos has his witnesses that will

3 tell what Ms. Terri Schiavo's wishes would be

4 regarding the feeding tube. You will also hear

5 from our side of it. On our side, you will hear

6 from a long childhood friend of Terri’s. You will

7 also hear from a co-worker that was more closely

8 related to Terri close to the time of the incident

9 of the accident, which was February of 1990.

10 You will hear a lot of medical testimony

11 concerning the persistent vegetative state that

12 Theresa Schiavo currently exists in. We do not

13 doubt she's in a permanent vegetative state.

14 However, a lot goes to the cognitive activity and

15 brain activity of Theresa Schiavo. In reading

16 through some of the medical records, you will hear

17 testimony about her no recognition. However, you

18 will hear testimony from our side there is

19 recognition. She does recognize her mother.

20 There is a videotape we would like for

21 the Court to see, very brief, that is a videotape

22 capturing this relationship between Terri and her

23 mother that was recently taken. The guardian ad

24 litem, Richard Pearse, who was appointed in this

25 case, he will be testifying. The guardian ad

 

18

1 litem was appointed to investigate and make a

2 report to this Court, which he did, which the

3 court file contains a copy of his report.

4 Mr. Pearse thoroughly investigated the

5 whole case and interviewed various witnesses; met

6 with people at the nursing home staff; saw

7 different physicians; and came to the ultimate

8 conclusion that the feeding tube should be

9 maintained. It's our position here that the

10 guiding case for the court in setting precedence

11 is the Estele Browning case, which sets forth that

12 clear and convincing evidence should be

13 established of the patient's wishes, and that if

14 it's oral evidence, that the petitioner would bear

15 the burden of showing this was by clear and

16 convincing evidence.

17 We do not believe, as the guardian ad

18 litem also found, that the evidence you will hear

19 is credible. We have contradictory evidence that

20 will show in fact that it is not credible as to

21 what her wishes her. You will also hear from her

22 long time childhood friend that when the Karen Ann

23 Quinlan case was being discussed in conversations

24 between Terri Schiavo and this long childhood

25 friend regarding the Karen Ann Quinlan case, which

 

19

1 we believe ultimately sets forth Terri's beliefs,

2 it would be in the situation she is in one that

3 she would not ultimately choose to be in the

4 situation she is in, but the circumstances she

5 faces, that Theresa Schiavo would want to maintain

6 her feeding tube.

7 As a public policy statement, we also

8 believe the Court is firmly held to review the

9 conflict of interest of Michael Schiavo and the

10 financial situation that would rest in the

11 intestate estate. There is case law precedent to

12 that which we will be arguing in our closing

13 argument that we believe firmly sets forth this

14 conflict of interest. Thank you and good luck for

15 this week.

16 THE COURT: Call your first witness.

17 MR. FELOS: Thank you, Your Honor. Call

18 Mr. Schiavo.

19 THE COURT: Call your first witness.

20 MR. FELOS: Thank you, Your Honor. Call

21 Mr. Schiavo.

22 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

23 THE COURT.)

24

25

 

20

1 DIRECT EXAMINATION

2 BY MR. FELOS:

3 Q State your full name and current address

4 for the record, please.

5 A My name is Michael Schiavo. My address

6 is 2807 Marie Court, Clearwater, Florida.

7 Q What is your date of birth?

8 A 4-3-63.

9 Q Mr. Schiavo, how are you employed at

10 this time?

11 A I work for Morton Plant/Mease

12 Countryside Hospital as a respiratory therapist.

13 Q Please tell the Court what your

14 employment background is.

15 A I worked for Morton Plant/Mease ever

16 since I became a respiratory therapist five years

17 ago.

18 Q Before that?

19 A I worked for various amounts of

20 restaurants. Right before I got into medical, I

21 worked for Agostino's Restaurant.

22 Q Um-hmm.

23 A Prior to that, I worked for the

24 Columbia. And prior to that, I worked for the

25 Breckenridge Hotel.

 

21

1 Q Tell the Court, please, what your

2 educational background is.

3 A I went to community college for about a

4 year-and-a-half in the Philadelphia area. Bucks

5 County Community College, starting, I believe, in

6 1983. Don't hold me to the dates. I'm not good

7 with dates. I went to St. Pete Junior College. I

8 received a certificate for my EMT license.

9 Q What is that?

10 A Emergency Medical Technician. I went

11 back to school and received an AS degree in

12 respiratory therapy and back to back received my

13 SA in nursing. I just took my boards and passed

14 last week.

15 Q Where did you grow up, Mr. Schiavo?

16 A Levittown, Pennsylvania. Suburb of

17 Philadelphia.

18 Q    Tell us about your family background.

19 Are your parents alive? Do you have brothers and

20 sisters?

21 A I have four older brothers. My mother

22 is deceased. It will be three years in July. My

23 father is still alive living here in Florida.

24 Q Did you have a relationship with any of

25 your grandparents?

 

22

1 A Yes. I did. All my grandparents.

2 Q Do you recall, were any of your

3 grandparents on life support?

4 A Yes. My father's mother.

5 Q How did that come about?

6 A She had a heart attack. Prior to that,

7 she had open heart ten years prior to that. She

8 had a heart attack. She ended up on a ventilator,

9 which was against her wishes. She had a living

10 will in place. A DNR in place.

11 The doctors did intubate her. My family

12 showed up. It was told to the doctor this was not

13 her wishes. Her living will and DNR was shown to

14 the doctor, I believe, and the ventilator was

15 removed.

16 Q Where were you and Terri living when

17 your grandmother died?

18 A Here in Florida. St. Pete Beach.

19 Q Did you attend the funeral?

20 A Yes. We did. We flew up.

21 Q Did Terri know or have a relationship

22 with your grandmother?

23 A She had a close relationship with my

24 grandmother.

25 Q 1 Do you recall any conversations-at the

 

23

1 funeral, the funeral luncheon after that,

2 regarding the issue of your grandmother's life

3 support?

4 A I vaguely remember a conversation that

5 happened, but my brother, Scott, had the

6 conversation. He would know better about the

7 conversation.

8 Q Is there anyone in your family that has

9 a particular reputation for having a good memory?

10 A My brother, Scott. We always tease him

11about having the mind of an elephant.

12 Q Please tell me how you and Terri met?

13 A At Bucks County Community College in one

14 of our classes. I can't remember which class it

15 was.

16 Q Tell us a little about your courtship

17 with Terri.

18 A Terri and I dated approximately about a

19 year. We did the usual things. Family parties.

20 Movies. We went to dinner a lot. We were engaged

21 probably about a year into our relationship. We

22 were engaged for a year before we got married.-

23 Q When did you and Terri marry?

24 A November 10, 1984.

25 Q Where did that occur?

 

24

1 A In Huntingdon Valley, PA.

2 Q Is that a suburb?

3 A Suburb of Philadelphia.

4 Q Describe for us Terri's personality.

5 A She was a very outspoken person. She

6 believed in what she believed in. But on the

7 other hand, she had a heart of gold. Somebody

8 that was sweet. Very personable. You would meet

9 her and just be charmed with her. Somebody -- to

10 me, she was everything.

11 Q Before you met -- when you met Terri,

12 what was her weight?

13 A Approximately 155 pounds.

14 Q Before you met Terri, had she been

15 heavier?

16 A Yes. She was in her early childhood.

17 Q Did she lose any weight during the

18 course of your marriage?

19 A Terri lost weight throughout the course

20 of our marriage. Yes. She did.

21 Q I would like to show you, Mr. Schiavo,

22 Petitioner's Exhibit Number One and Number Two

23 marked for identification and ask you if you can

24 identify what those are, please.

25 A This young lady right here is Terri.

 

25

1 That is her sister, Suzanne. This is when they

2 used to go away to -- I forget. They used to stay

3 at a hotel every year. This is Terri in Florida,

4 I believe. Actually on our honeymoon. This is

5 Terri and I. This is a good picture of her. This

6 is Terri right before we left for Florida. This

7 is Terri right here at her brother's graduation.

8 Q In Petitioner's Exhibit Number One, was

9 that the weight of Terri approximately at the time

10 you married her?

11 A The bottom picture? No.

12 Q The top picture?

13 A The top picture, yes.

14 Q In Petitioner's Exhibit Number Two, is

15 that Terri's approximate weight during your

16 marriage?

17 A Yes.

18 MR. FELOS: Your Honor, we move to

19 introduce these photos into evidence.

20 THE COURT: Is there an objection?

21 MS. CAMPBELL: No objection, Your Honor.

22 THE COURT: So received.

23 (THEREUPON, PETITIONER'S EXHIBITS NUMBERS 1 &

24 2 WERE RECEIVED IN EVIDENCE.)

25 1 Q (By Mr. Felos) Now that the Court has

 

26

1 had the benefit to see the photographs, I'd like

2 to bring your attention to Petitioner's Exhibit

3 One. If you can explain to the Court what those

4 two pictures are?

5 A The bottom picture here was Terri at a

6 younger age. This is on a family vacation. To

7 the right of her, far right, is her sister,

8 Suzanne. The top picture is, I believe is -- that

a was our honeymoon.

10 Q Okay. Now Petitioner's Exhibit Number

11 Two, can you explain when approximately these

12 pictures were taken, and where, starting with the

13 upper left?

14 A The upper left, that is Terri and I

15 outside of our apartment at Thunder Bay. I don't

16 know the approximate year of that. Date. To the

17 right of that is a party thrown for us about a

18 week before we left for Florida. That is my

19 mother with her back toward you. My brother and

20 sister-in-law.

21 Down on the bottom on the left with the

22 truck leasing, that is her brother's graduation.

23 That is Terri in the white. That is her sister in

24 the black. To the right of that, that is a

25 picture at Disney-World. I believe that is -- I

 

27

1 don't know the approximate date on that one.

2 The bottom, that is Terri bending down

3 with the blond hair to the right of Santa Claus in

4 the back with the red suit. That is approximately

5 about six or so months prior to her accident.

6 Q Did you notice that Terri was losing

7 weight during the course of the marriage?

a A Yes. I did.

9 Q To your knowledge, while living with

10 Terri, did you know whether or not she ever had an

11 eating disorder such as anorexia or bulimia?

12 A I did not. No. There was speculation

13 made to that, but there was nothing ever proven in

14 court as to that diagnosis.

15 Q Once you were married, tell us the type

16 of things that Terri and you liked to do together.

17 A After we are were married, I did work a

18 lot. I worked a lot of nights. On the days off

19 that I did have, we would go to the movies. Spent

20 a lot of time with her parents. We would go out

21 to dinner a lot. Spend time at home.

22 Q Were you in love with your wife?

23 A I was deeply in love with my wife and I

24 still am.

25 1 Q How long did you live in Philadelphia

 

27

1 don't know the approximate date on that one.

2 The bottom, that is Terri bending down

3 with the blond hair to the right of Santa Claus in

4 the back with the red suit. That is approximately

5 about six or so months prior to her accident.

6 Q Did you notice that Terri was losing

7 weight during the course of the marriage?

8 A Yes. I did.

9 Q To your knowledge, while living with

10 Terri, did you know whether or not she ever had an

11 eating disorder such as anorexia or bulimia?

12 A I did not. No. There was speculation

13 made to that, but there was nothing ever proven in

14 court as to that diagnosis.

15 Q Once you were married, tell us the type

16 of things that Terri and you liked to do together.

17 A After we are were married, I did work a

18 lot. I worked a lot of nights. On the days off

19 that I did have, we would go to the movies. Spent

20 a lot of time with her parents. We would go out

21 to dinner a lot. Spend time at home.

22 Q Were you in love with your wife?

23 A I was deeply in love with my wife and I

24 still am.

25 Q How long did you live in Philadelphia

 

28

1 after your marriage in 1984?

2 A I believe -- don't hold me to dates. I

3 believe about a year-and-a-half. I'm sure we left

4 for Florida in 1986.

5 Q Did you and Terri socialize with any of

6 your family members?

7 A All the time. We went to frequent

8 birthday parties. We had a lot of little kids.

9 We went to adult parties. Kids' parties.

10 Holidays. We spent a lot of time with family.

11 Q Where did your parents and siblings live

12 at that time?

13 A I'm sorry?

14 Q Where did your parents and siblings live

15 at that time?

16 A My parents lived in Levittown,

17 Pennsylvania. My brother, one brother in Trevose,

18 Pennsylvania. One brother lived in Fairless

19 Hills. One brother li�ued in Philadelphia. One

20 brother was not married yet. Kind of lived with

21 my parents and had his own place for a while.

22 Q Was that all in the greater Philadelphia

23 area?

24 A Yes.

25 Q Was Terri particularly close to any of

 

29

1 your brothers or sister-in-laws?

2 A Terri was very close with my brothers.

3 Especially my sister-in-laws and especially my

4 sister-in-law, Joan. They were best friends.

5 Q At that time, how would you describe

6 your relationship with Terri's parents and family

7 while you were living in Philadelphia?

8 A I believe we had a close relationship.

9 She was very close with her brother, Bobby. She

10 was not so close with her sister, Suzanne.

11 Q Did Terri have any close friends in

12 particular in the Philadelphia area?

13 A She had a very close friend, Sue Cobb.

14 She had other acquaintances. Other friends.

15 Q Why is it that you and Terri decided to

16 move to Florida?

17 A We were over the cold. We wanted

18 something new.

19 Q After you and Terri were married, but

20 before you moved to Florida, did you ever take any

21 trips here?

22 A Yes. We did. I remember one

23 especially.

24 Q What was particularly special about that

25 trip?

 

30

1 A That is before we left her grandmother

2 was gravely ill.

3 Q Um-hmm. Did Terri have any concerns

4 about taking the trip to Florida given her

5 grandmother's condition?

6 A She was very concerned. She did not

7 want to leave her grandmother. She was pretty ill

8 at the time. She was in the hospital in intensive

9 care.

10 Q Do you know why she decided to take the

11 trip?

12 A Her mother told us to go.

13 Q Did the subject of Terri's grandmother

14 -- by the way, did you fly, drive, or take the

15 train?

16 A We took a train.

17 Q Did the subject of Terri's grandmother

18 come up at all during that train trip?

19 A Yes. It did. We were taking the train

20 trip. We are sitting there. Terri was reading a

21 book. She put the book down and looked at me.

22 She says, "I'm kind of concerned about leaving."

23 I told her, "Your mom said to go." She says,

24 "Well, I'm concerned about my grandmother. What

25 if she dies? Who is going to take care of my

 

31

1 uncle?" She says, "If I ever have to be a burden

2 to anybody, I don't want to live like that."

3 Q You made reference -- did you say

4 anything in response 'Co that?

5 A I told her that -- I told her that she

6 should remember that for me, too.

7 Q Do you know why Terri made a reference

8 to her uncle in connection with her grandmother's

9 illness?

10 A Years prior, her uncle was in a severe

11 car accident. He was depressed because his wife

12 and child were killed in a car accident. They

13 were hit by a train coming home from the mall. He

14 became, as what Terri says, severely depressed.

15 Had a few drinks one night. Went out. On the

16 drive home, he hit a tree. He ended up in a comma

17 for a few weeks.

18 When he came out of his comma, he was

19 pretty much severely handicapped. Had a lot of

20 impediments. Had to live with his mother.

21 Q Did -- regarding Terri's uncle, did you

22 ever meet him?

23 A Yes. I did.

24 Q You observed his condition?

25 A Yes.

 

32

1 Q Did you observe any infirmities in the

2 uncle?

3 A Her uncle had paralyzed -- I believe his

4 right arm was paralyzed, I believe. He had a

5 severe limp. He used a cane. He had slurred

6 speech. Difficulty. He had to sit for long

7 periods. He could not get up and move around a

8 lot. Difficulty in thought processes, I believe.

0 That he could not process his thoughts quick

10 enough with his answers.

11 Q Again, why was Terri concerned about her

12 uncle because of her grandmother?

13 A Because he lived with the grandmother

14 and she basically helped take care of him.

15 Q After -- by the way, after the

16 conversation on the train, what happened to

17 Terri's grandmother?

18 A She died while we were here in Florida.

19 Q Michael, did you have any other

20 conversations at all with Terri about removal of

21 life support?

22 A Yes. I did.

23 Q Tell us about those, please.

24 A Terri and I would be home. We would be

25 1 watching TV. You know, a documentary would come

 

33

1 on. It would depict you know adults, children

2 that are being sustained and kept alive by parents

3 at home. People that had to be on ventilators.

4 People getting tube feedings. Medications

5 throughout. IVs.

6 She made the comment to me that she

7 would never want to be like that. Don't ever keep

8 her alive on anything artificial. She did not

9 want to live like that. I looked at her and I

10 said do the same for me.

11 Q Do you recall how many conversations

12 like that you had with Terri in response to a TV

13 program or documentary?

14 A It was two, two or three times.

15 Q When you moved to Florida, when you

16 first moved to Florida, where did you live?

17 A We lived in the Schindler's condominium.

18 Q How long did you live there?

19 A Approximately a year.

20 Q Did you pay rent?

21 A We paid rent when we could. The

22 Schindlers were gracious enough to let us slide

23 when we had to. Terri was not working at the

24 time.

25 Q Okay. Then after living in Mr. and Mrs.

 

34

1 Schindler's condo, where did you live?

2 A We moved to Thunder Bay apartments on

3 4th Street.

4 Q St. Petersburg?

5 A St. Petersburg.

6 Q Tell us a little bit about the logistics

7 of your life down here in terms of schedule. You

8 said Terri did not work initially. Did she

9 eventually find employment?

10 A Terri did not work initially. I started

11 work at Olga's Kitchen as a manager. Terri did

12 not work for a while. About four months. She

13 previously worked at Prudential up north, and she

14 went to Prudential here and they hired her on as a

15 transfer. That is where she stayed.

16 Q Was that Prudential Securities?

17 Prudential Insurance?

18 A Prudential Insurance.

19 Q Did Terri work days or nights?

20 A Days.

21 Q What were your hours?

22 A My hours usually were 4:00 to close.

23 3:00 to close.

24 Q Closing is?

25 A Sometimes midnight. Sometimes 11:00.

 

35

1 Sometimes I was home at 1:00 in the morning.

2 Q How did Terri feel about you working all

3 those nights?

4 A She was not particularly thrilled with

5 , it, but she knew I had to do that.

6 Q Did the two of you -- did Terri have any

7 particularly close friends at Prudential?

8 A She had acquaintances She had

9 friends. I would not say they were close.

10 Q Did the two of you have any close mutual

11 friends here in Florida?

12 A We did not have mutual friends. We had

13 acquaintances we both knew. We did not have any

14 close mutual friends.

15 Q Did Terri's parents move to Florida at

16 some time?

17 A I believe it was a year later after

18 Terri and I moved here.

19 Q After the Schindlers moved to Florida,

20 but before Terri's medical accident, how would you

21 describe the relationship you and Terri had with

22 Mr. and Mrs. Schindler?

23 A I'm sorry. Repeat that question.

24 Q Once the Schindlers moved to Florida,

25 how would you de-scribe the relationship you and

 

36

1 Terri had with her parents down here? Did you see

2 each other often?

3 A Terri saw the Schindlers probably more

4 than I did. In my own opinion, I thought we were

5 pretty close.

6 Q Tell me a little bit about -- tell us a

7 little about Terri's religious practice from the

8 time you knew her. Well, do you know what faith

9 Terri was brought up?

10 A Terri was brought up Catholic.

11 Q During the time that you knew Terri or

12 let's say from the time you were married, how

13 often would Terri go to mass?

14 A I'm sorry. Repeat that for me, George.

15 Q How often would Terri go to mass?

16 A Not very often. Once every few months.

17 Q Did you go with her?

18 A Yes. I did.

19 Q Every time?

20 A Yes. I did.

21 Q Did Terri ever receive communion when

22 she attended mass?

23 A No. She did not.

24 Q Did Terri ever participate in the

25 sacrament of confession?

 

37

1 A No. She did not.

2 Q Did you and Terri ever consider having a

3 family?

4 A Yes. We did.

5 Q What was -- what were your feelings

6 about that and Terri's feelings?

7 A Terri adored children. She wanted

8 children desparately [sic], as I did.

9 Q Was there a time when the two of you

10 actually decided to start a family?

11 A Yes. It was -- we decided to wait about

12 five years before we really wanted to start a

13 family. It was probably the beginning of 1989 we

14 started, I believe.

15 Q Did Terri ever became pregnant?

16 A No. She did not.

17 Q What was the difficulty?

18 A Terri was not receiving her period.

19 Q Did you or Terri ever seek medical

20 advice or treatment regarding your desire to have

21 children?

22 A Terri did. Yes. She was seeing a

23 family physician and a gynecologist.

24 Q Who was that?

25 A The gynecologist was Dr. Egel.

 

38

1 Q Did Dr. Egel --

2 A Egel. E-g-e-l.

3 Q What time period was Terri consulting

4 with Dr. Egel in an effort to become pregnant?

5 A I believe starting in the beginning of

6 1989.

7 Q How long did her -- how long did she go

8 to Dr. Egel?

9 A For a period of about a year.

10 Q Michael, tell me what occurred on

11 February 25, 1990.

12 A I got home late from work that night. I

13 came in the house. Terri woke up. She heard me.

14 I gave her a kiss good night. She gave me a kiss

15 good night. A few hours later, I was getting out

16 of bed for some reason and I heard this thud. So

17 I ran out into the hall and I found Terri on the

18 floor. I knelt down next to her and I turned her

19 over because she sort of fell on her face. On her

20 stomach and face.

21 I turned her over going, "Terri, Terri.

22 You okay?" She kind of had this gurgling noise.

23 I laid her down and ran over and called 911. I

24 was hysterical. I called 911. I called her

25 brother, who lived in the same complex as we did.

 

39

1 I ran back to Terri. She was not moving. I held

2 her in my arms until her brother got there. I

3 rocked her. I didn't know what to do. I was

4 hysterical. It was a horrible moment.

5 Q Do you know how long it was before the

6 paramedics came?

7 A Had to be a good six minutes or so.

8 Q What happened when the paramedics came?

9 A I moved away. Her brother was sitting

10 in the kitchen around the corner. I moved away

11 and they started working on Terri. They put the

12 leads on. I heard them say she is flat line.

13 Start CPR. I am standing there going what is

14 happening here? Why is this happening? Why isn't

15 her heart beating? I was just a mess. I was

16 hysterical.

17 Q Where did the paramedics take her?

18 A To Humana Northside, St. Pete.

19 Q Did you ride with the paramedics?

20 A Yes. I did.

21 Q What is Terri's condition as a result of

22 the incident that occurred on February 25, 1990?

23 A She's in a chronic vegetative state

24 anoxic encephalopathy due to cardiac arrest.

25 Q For those of us who did not go to school

 

40

1 in medicine --

2 A Lack of oxygen because her heart was not

3 pumping to her brain.

4 Q Can Terri run?

5 A No.

6 Q Can Terri walk?

7 A No.

8 Q Can Terri stand on her own?

9 A No. She can't.

10 Q Sit on her own?

11 A No. She can't.

12 Q Can Terri turn over?

13 A No. She can't.

14 Q Does she talk?

15 A No.

16 Q Can she eat?

17 A No.

18 Q Can she drink?

19 A No. She can't.

20 Q Can she swallow?

21 A No.

22 Q Can she go the bathroom?

23 A No.

24 Q Can she brush her teeth?

25 A No.

 

41

1 Q Can Terri clip her fingernails?

2 A No.

3 Q Comb her hair?

4 A No.

5 Q Can Terri dress herself?

6 A No. She cannot.

7 Q How are all those activities done for

8 Terri?

9 A I have her in a nursing home. The

10 facility employees do all that for her. She has

11 to be intubated by one person. She wears a diaper

12 which has to be cleaned, and you know, whether she

13 has a EM, they have to change the diaper. Clean

14 her. She has her period, which is at times

15 extremely heavy and messy. They have to clean

16 her. They have to do her hair. Her teeth. They

17 have to do total care for Terri.

18 She can't turn. They have to come in

19 every two hours and turn her. They have to place

20 her in a chair. They have to put the side rails

21 up on the chair to hold her in place.

22 Q Is there a neck support on the chair?

23 A Concave headrest more of. Her head fits

24 into the support.

25 1 Q In addition to the total care Terri has

 

42

1 received, I would like you to tell the Court some

2 of the additional medical problems Terri has had.

3 A Terri has had numerous, numerous urinary

4 tract infections. She has had her left little toe

5 removed due to osteomyelitis.

6 Q What is that?

7 A Bone infection that was caused by a

8 pressure sore.

9 Q Has Terri ever had to be hospitalized

10 because of the urinary tract infections?

11 A Yes, she has. Numerous amounts of time

12 for that.

13 Q For the removal of her toe?

14 A Yes.

15 Q Go on.

16 A She has kidney stones. She had her

17 gallbladder removed.

18 Q Did that require hospitalization?

19 A Yes. It did.

20 Q She had vaginitis. She had pelvic

21 inflammatory disease. She had I believe two D and

22 Cs.

23 Q Did the pelvic inflammatory disease, or

24 D and Cs, require hospitalization?

25 1 A Twenty-four hour admits.

 

43

1 Q Um-hmm.

2 A She has had respiratory problems. She

3 had dehydration.

4 Q What respiratory problems?

5 A Upper congestion. She can't control her

6 gag. When she fills up, she has to be constantly

7 suctioned down her nose or in the back of her

8 throat. She was put on some aerosol medications

9 that helped dry and relieve the congestion. She

10 has to be watched at those points because she

11 can't control her gag and she will choke.

12 Q Has Terri been hospitalized due to

13 respiratory infections?

14 A Yes.

15 Q Go on, please.

16 A I lost my train of thought.

17 Q Did Terri ever suffer seizures?

18 A Yes. She's suffered seizures. She

19 makes constant muscle twitching. She has severe

20 contractures of the hands, the elbows, the knees,

21 the feet. Her foot drop is to the point where --

22 Q What is a foot drop?

23 A Foot drop is where your foot drops and

24 sticks into a certain spot. Her feet are

25 basically lower than her leg, when she sticks it

 

44

1 out. She's had a couple cysts removed off her

2 neck. Numerous amounts of things. I'm trying to

3 think. She has a food tube that has been infected

4 a few times that she had to be taken to the doctor

5 to remove.

6 Q Gastronomy tube?

7 A Yes. Infection. Inflammation around

8 that. Due to contractures in elbows, now the skin

9 in between is starting to break down. She's had,

10 she has constant diarrhea which leads to

11 dehydration which leads to --

12 Q Has she ever been hospitalized [sic] for

13 dehydration or diarrhea?

14 A She has in the past. This previous

15 dehydration she stayed in the nursing home.

16 Q Michael, you have spent more time with

17 Terri and have seen Terri more often than anyone

18 since her incident. Have you ever seen any

19 voluntary or volitional response on her part in

20 all these years?

21 A I have not.

22 Q Does Terri, does Terri emit any noises?

23 Does her face move? Her head?

24 A Terri will moan, but it's not to

25 anything. We could -- I could be sitting next to

 

45

1 her and she will start to moan. Her eyes will

2 blink. Her head will kind of twitch. It will

3 kind of move itself. She also has -- she goes

4 into this spasm where she will hyperflex her neck

5 and will make these noises.

6 She will move her, I shouldn't say --

7 her arms move to where it looks like it is

8 tightening up and she is almost sitting in like a

9 praying mantis position. I have never ever seen

10 Terri have any voluntary movement or follow

11 through with any commands.

12 Q Does Terri have tears at times?

13 A I have noticed she had a tear or two,

14 but to me it was after she would kind of take a

15 big deep breath. Almost looks like a yawn, and

16 her eyes would tear.

17 Q Have you ever seen Terri laugh or smile?

18 A I have not seen Terri laugh or smile.

19 She makes a moaning noise and her mouth opens up

20 kind of, but I would not call that a smile.

21 Q Do you know of any treatment method or

22 drug or thing that can be done which will improve

23 Terri's condition?

24 A No. I don't.

25 Q Has any doctor informed you there is any

 

46

1 treatment method, drug, or thing that can be done

2 to improve Terri's condition?

3 A No.

4 Q What steps, if any, did you take in

5 order to try to improve Terri's condition?

6 A When this first happened I, you know,

7 she was at Bayfront for rehab. And we found this

8 doctor in California that was doing experimental

9 surgeries on people that are in vegetative

10 states. He was placing a stimulator inside their

11 brain in hopes that that would stimulate the

12 dormant cells that were not actually dead yet. I

13 took her there.

14 The doctor was Hoshibushi (phonetic).

15 He was doing experimental surgery. The protocol

16 was one month. There was no improvement from

17 that. I brought Terri back. I hired a private

18 aide.

19 Q Let me backtrack. When was it that you

20 brought Terri to California? Do you recall?

21 A I believe 1 91. ' 92.

22 Q That was before the medical malpractice

23 award?

24 A Yes. It was.

25 Q How did you come by the funds in order

 

47

1 to send Terri to California?

2 A We were on the news. I sold hot dogs on

3 St. Pete Beach. Sold pretzels. The association

4 where we lived got involved with us. Had a

5 Valentine's dance for her. They helped. We

6 raised some money to get her out there.

7 Q Did you go to California with Terri?

8 A Yes. I did.

9 Q You mentioned that stimulators were put

10 into Terri. Where were they put into Terri?

11 A Into her brain. Right on top of the

12 gray matter, which is the top part of your brain.

13 Q How were they -- were these electric

14 stimulators?

15 A It looked like your hand and had wires

16 that came out at a certain point of your brain.

17 It was electrodes in the back. I don't want to

18 say electrodes. I don't know what it was called.

19 Placed here that the wires ran off of. Ran down

20 the side of her neck and would go into her chest.

21 It looked like a pacemaker. They turn off and on

22 at that point.

23 Q An external device?

24 A Right.

25 1 Q You mentioned when you came back you

 

48

1 hired a private aide?

2 A Yes. I did.

3 Q Tell me why you did that.

4 A To continue to stimulate Terri. I

5 wanted to make sure she was dressed in everday [sic]

6 clothes. I had Diane take her to museums. I had

7 Diane make sure when I was not there that she was

8 taken her for walks. I had Diane take her to

9 museums. To beauty makeovers. I made Terri's

10 hair done the way she did it. Makeup on.

11 Earrings. Necklaces.

12 Q Were any of these efforts successful,

13 Mike?

14 A No. They were not.

15 Q Have you ever received any opinion from

16 any doctor or physician to the effect that Terri

17 has any mental ability?

18 A No. I have not.

19 Q Any opinion from any doctor or physician

20 that she has any cognitive skill or cognitive

21 interaction with her environment?

22 A No. I have not,

23 Q I would like to outline with you Terri's

24 care after the accident. You mentioned that she

25 went to Humana Northside?

 

49

1 A Yes. She did.

2 Q How long was she in Humana Northside?

3 A Approximately two-and-a-half months.

4 Q Was she in the ICU?

5 A Yes. She was. I spent the first

6 sixteen days and nights there. Never left her.

7 Q Where did you sleep?

8 A Sometimes right next to her. Sometimes,

9 most of the times, out in the waiting room on the

10 chairs.

11 Q After those first sixteen days, did

12 you -- how often did you see Terri at Humana

13 Northside?

14 A I came every day.

15 Q Where did Terri go after Humana

16 Northside?

17 A She went to College Harbor.

18 Q What type of facility is that?

19 A Skilled nursing.

20 Q How long did you see Terri at College

21 Harbor?

22 A I saw Terri every day.

23 Q How much time did you spend?

24 A I went in the morning. Left in the

25 evening. Spent 8, 10, 12 hours a day.

 

50

1 Q After College Harbor, where did Terri

2 go?

3 A She went to Bayfront --

4 Q Um-hmm.

5 A -- Medical Center under the care of

6 Dr. Baras.

7 Q What was the purpose of Bayfront?

8 A She had 90 days of skilled rehab.

9 Q Was there any problem in getting the

10 insurance money for Bayfront?

11 A Yes. There was. I had to actually

12 fight the insurance company for that.

13 Q What type of rehabilitation was given to

14 Terri at Bayfront?

15 A Aggressive rehabilitation. They also

16 got to take the trach out. Remove the trach.

17 Q When you say rehabilitation, is that

18 physical therapy?

19 A Physical, occupational. Special

20 therapists worked with her.

21 Q Other than removing the trach, was

22 there any improvement in Terri's condition?

23 A No. There was not.

24 Q How often did you see Terri at Bayfront?

25 A I was there every day.

 

51

1 Q Where did Terri go after Bayfront?

2 A She went to my home.

3 Q How long was Terri at home?

4 A Approximately four months, I believe.

5 Q Who took care of her at your home?

6 A I did 98 percent of it. My

7 mother-in-law did help. My father-in-law

8 basically did not do much at all.

9 Q Were your in-laws living with you at

10 that time?

11 A Yes. They were.

12 Q Why is it you said she was home for

13 about four months? Why didn't she stay home

14 longer than that?

15 A Because Terri needs total care. It is a

16 lot of work. We could not afford nurses. I could

17 not do it by myself. My mother-in-law was afraid

18 to have her there. My father-in-law was concerned

19 about that.

20 Q Did your mother-in-law express why she

21 was afraid?

22 A In case something happened to Terri that

23 she didn't know how to do.

24 Q After Terri was at home, where did she

25 go?

 

52

1 A She went back to College Harbor.

2 Q How long was she there?

3 A She was there for a couple of weeks.

4 Q How often did you see her at College

5 Harbor?

6 A Every day.

7 Q And from College Harbor?

8 A She went to California.

9 Q Where were you in California for this

10 experimental treatment?

11 A We went to the University of California

12 at San Francisco Hospital.

13 Q How long were you there?

14 A At the hospital, itself, we were there

15 about a week. For the rehab portion, we were

16 there about a month. A little over a month and a

17 week.

18 Q How often did you see Terri in the

19 hospital in the rehab in California?

20 A At the hospital, I stayed in her room 24

21 hours a day. I slept in a cot next to her. At

22 the rehab center, I was there every day with her.

23 Morning, noon, and night.

24 Q When you came home from California,

25 where did Terri go?

 

53

1 A She came home with us, with me, for a

2 couple of weeks.

3 Q Who took care of her at home?

4 A I did, plus we were able to, since we

5 had the money from the fund raisers, we were able

6 to afford a couple of nurses to come in and help

7 us.

8 Q After Terri was at home a short time,

9 after that where did she go?

10 A Bradenton Medical Rehab.

11 Q What type of institution is Mediplex

12 (phonetic) ?

13 A Mediplex deals mainly with brain

14 injury, strokes, anything that has to do with the

15 brain.

16 Q How long was Terri at Mediplex in

17 Bradenton?

18 A Approximately three months.

19 Q Why did Terri leave Mediplex?

20 A Because the doctors informed us there

21 was nothing more they can do for Terri and we had

22 to find a facility to put her in or take her home.

23 Q How often did you see Terri at Mediplex

24 in Bradenton?

25 1 A Every day.

 

54

1 Q Where did Terri go after Mediplex?

2 A Sabal Palms.

3 Q Where is that located?

4 A In Largo, I believe.

5 Q At Sabal Palms, did you have any

6 conflicts or disputes with the nursing home

7 regarding Terri's care?

8 A Yes. I did. I had many conflicts and

9 disputes. They had a lot of agency nurses on the

10 floor and they did not have enough staff. Terri

11 was getting the wrong medications. Terri was

12 laying in her dirty diaper for hours and hours on

13 end. Many grievances. She was not getting her

14 shower. Her teeth were not getting done. Her

15 medication to her mouth was not put on. When she

16 had the osteomyelitis, it was not cleaned properly

17 after the hospitalization.

18 They did not have enough CNAs on the

19 floor to care for the people and the amount of

20 care that was needed for certain people.

21 Q What did you do to make sure that those

22 deficiencies did not affect Terri's care?

23 A I went through the grievance policy that

24 they give to the family members when there is a

25 problem.

 

55

1 Q What were those?

2 A It was a form you filled out. The

3 grievance. You handed it in. The Director of

4 Nurses would read them and supposedly they would

5 fix them. And they would write you a little

6 letter back, and most of the time nothing was done

7 because they did not have enough staff to handle

8 the problems.

9 Q Were you a particularly popular person

10 with the nursing home administration?

11 A No. I was not.

12 Q At some point, did the nursing home take

13 some sort of legal action against you?

14 A Yes. They did.

15 Q Tell us about that, please.

16 A They basically tried to have me

17 restrained from the nursing home.

18 Q What was -- how did that play out,

19 Mr. Schiavo?

20 A It kind of coincided with the

21 Schindler's petition.

22 Q Was the nursing home successful?

23 A They were not.

24 Q Did the court appoint a guardian ad

25 litem to investigate the nursing home charges?

 

56

1 A Yes.

2 Q Did the guardian ad litem issue a

3 report?

4 A Yes. He did.

5 MR. FELOS: Your Honor, we, at the

6 status conference last week, agreed to take

7 judicial notice of the prior matters in the file,

8 but for convenience, I would like to introduce

9 into evidence Petitioner's Exhibit Number Three

10 which are certain pleadings and documents from

11 prior proceedings.

12 THE COURT: Is there an objection?

13 MS. CAMPBELL: No, Your Honor.

14 THE COURT: Thank you. They will be

15 received as Petitioner's Number Three.

16 (THEREUPON, PETITIONER'S EXHIBIT 3 WAS

17 RECEIVED IN EVIDENCE.)

18 Q (By Mr. Felos) Mr. Schiavo, I would

19 like you to read a paragraph from the report of

20 John Pacaric, (phonetic). Report of the guardian

21 ad litem. This is the paragraph that starts on

22 the bottom of Page 2 of the report and ends on top

23 of Page 3.

24 A The guardian of the person, Michael

25 Schiavo, is reported by everyone interviewed to be

 

57

1 attentive to the pleas of his wife. He is at the

2 nursing home on almost a daily basis. He is

3 constantly reviewing the ward's chart at the

4 nursing home and not hesitant to point out errors

5 and omissions in the care of his wife. There are

6 reported incidents of the guardian yelling and

7 screaming in the hallways, nurses in tears, and

8 intimidation of the staff by Mr. Schiavo.

9 Although I have concluded Mr. Schiavo is

10 a nursing home administrator's nightmare, I

11 believe that the ward gets care and attention from

12 the staff at Sabal Palms as a result of Mr.

13 Schiavo's advocacy and defending on her behalf. A

14 family member of another resident at Sabal Palms

15 reports that his relative receives less care as a

16 result of the staff spending so much time with

17 Mrs. Schiavo.

18 Q How often did you see Terri at Sabal

19 Palms?

20 A Every day at Sabal Palms.

21 Q How long was she there?

22 A Approximately two years, I want to say.

23 Q How long would you see her?

24 A Um, 8, 10 hours a day.

25 Q Did you have a dispute with Mr. and Mrs.

 

58

1 Schindler at Sabal Palms Nursing Home in February

2 of 1993?

3 A Yes. I did.

4 Q Describe, please, what happened at Sabal

5 Palms on February 14, 1993.

6 A February 14th I was in Theresa's room.

7 I had the door closed. I was studying for some

8 homework I had. The Schindlers came into the room

9 and they went over and said hello to Theresa. The

10 first words out of my father-in-law's mouth was

11 how much money he was going to get. I was, what

12 do you mean? Well, you owe me money.

13 I said to him to stop everything. I

14 said I did not receive any money. I gave it all

15 to Terri. He then, in turn, pointed at Terri and

16 said how much money is she going to give me. I

17 said to him you need to talk to the guardian of

18 the property. I'm not that person. With that, he

19 call me a few choice words, went out and slammed

20 the door.

21 With those words, I followed him and my

22 mother-in-law stepped in the way. She started.

23 saying this is my daughter, our daughter, and we

24 deserve some of that money.

25 Q Mr. Schiavo, do you know what money

 

59

1 Mr. Schindler was talking about?

2 A He was talking about the award that I

3 received.

4 Q Approximately how much did you receive

5 net in your loss of consortium award?

6 A Approximately 300,000.

7 Q Was Mr. Schindler -- let me backtrack.

8 When did that case come to trial?

9 A The malpractice?

10 Q Yes.

11 A Um.

12 Q Does November '92 sound right to you?

13 A Yes.

14 Q How much in funds did Terri receive net?

15 A I think she netted 700,000.

16 Q Who was sued?

17 A The doctors were. Doctor Egel and

18 Power.

19 Q The gynecologist Terri was seeing to

20 become pregnant?

21 A Right. And the family doctor.

22 Q Was Mr. Schindler aware of the

23 malpractice proceeding?

24 A Yes.

25 Q He attended the trial?

 

60

1 A Yes.

2 Q Do you know whether or not he was there

3 the day the verdict was entered?

4 A Yes. He was there with pencil and

5 paper. He wrote the verdict amounts down to the

6 point that he was so upset that he thought the

7 judge did not calculate right. He could not go to

8 work the next day.

9 Q Did Mr. Schindler ever tell you why he

10 thought he was entitled to a portion of your loss

11 of consortium award?

12 A Because it was his daughter and he

13 deserved it.

14 Q Did you ever say to Mr. and Mrs.

15 Schindler that you would split with them your loss

16 of consortium award or pay them any portion of it?

17 A No. I did not.

18 Q I think you testified that you told

19 Mr. Schindler that you gave your money away?

20 A Yes. I did.

21 Q Was that a correct statement?

22 A No. It was not.

23 Q Why did you say this?

24 A Just basically to shut him up because he

25 was screaming.

 

61

1 Q At that time, in that dispute with

2 Mr. and Mrs. Schindler that day, was there any

3 discussion of lawsuits or lawyers?

4 A Yes. I got through. My mother-in-law

5 went outside. He was standing there. His fists

6 were clenched. He got in my face. Said he's

7 coming down on me. Going to get on this

8 guardianship and he was going to get a lawyer.

9 Q At any time have you told Mr. or Mrs.

10 Schindler that they could not come to the nursing

11 home or visit Terri?

12 A No. I did not.

13 Q Did you ever tell the nursing home not

14 to give the Schindlers information on Terri's

15 medical condition?

16 A At one point, yes.

17 Q Why did you do that?

18 A When Terri was in the hospital for, I

19 believe a urinary tract -- no. I forget what she

20 was in the hospital for. It was for some

21 hospitalization. And the Schindlers never showed

22 up or even called about her care.

23 Q Did you change your position about

24 giving the Schindlers access to medical

25 information?

 

62

1 A Yes. I did.

2 Q Looking back on it, was that a moment

3 that you are proud of?

4 A No. I was not. It was done. It was

5 emotions running. I was angry.

6 Q Back then in 1993, that was still three

7 years after Terri's incident, how were you doing

8 emotionally? How were you taking it?

9 A I'm sorry. Repeat that, George.

10 Q Back in 1993, how well were you coping

11 emotionally with what happened to Terri? How were

12 you doing?

13 A I don't know how I was doing it. I was

14 an emotional wreck. I was seeing a

15 psychiatrist. A psychologist, I should say. I

16 had a lot of unanswered questions of why.

17 Q Did you ever tell your in-laws that

18 Terri would be better off dead than coming out of

19 her coma?

20 A No. I did not, sir.

21 Q Did you ever have a conversation or make

22 a statement about her coming out of the coma?

23 A I made a mention to Mr. Schindler one

24 day out in the hall. I said, this was after

25 probably four or five years of Terri being in this

 

63

1 condition, I said to him maybe it was in Terri's

2 best interests. It was not feasible to come out

3 and find out you are going to be a quadraplegic

4 and you can't walk anymore.

5 Q On what basis did you believe she would

6 be a quadraplegic?

7 A The doctors have told me that in the

8 past.

9 Q How has her (sic) relationship been with

10 Mr. and Mrs. Schindler since the February '93

11 incident?

12 A How has my relationship been?

13 Q Yes.

14 A I have not spoken to them since, except

15 through trials or --

16 Q Have they spoken to you?

17 A No. They have not. I did, on one

18 occasion when Terri had her gallbladder removed, I

19 did on one occasion when the mother called the

20 nursing home, I tried to talk to her and she

21 refused to talk to me.

22 Q Did Mr. Schindler ever follow up on his

23 threat to get a lawyer?

24 A Yes. He did.

25 Q I believe a petition was filed in July

 

64

1 of 1993. Later that year. What were you sued

2 for, Mr. Schiavo? What was the Schindlers asking

3 the Court to do?

4 A That I was not taking care of Terri.

5 was seeing other people. And that I was in

6 conflict due to her money that if Terri died I

7 would inherit it.

8 Q Mr. Schiavo, since Terri's incident, did

9 you have any intimate relations with another

10 woman?

11 A Yes. I did.

12 Q when did that occur?

13 A Approximately five years after the

14 incident. I don't know the exact dates.

15 Q How long did that relationship last?

16 A Approximately eight months.

17 Q Did Mr. and Mrs. Schindler know about

18 it?

19 A Yes. They did. Mr. Schindler wanted me

20 to do it. He condoned it, along with Mrs.

21 Schindler. They met the person I was seeing.

22 Q Do you currently have an intimate

23 relationship with a woman?

24 A Yes. I do.

25 1 Q How long have you known her?

 

65

1 Five-and-a-half years.

2 Q Would you like to have a family

3 sometime?

4 A Very much so.

5 Q Because you're involved, because you

6 I have a relationship with someone else, does that

7 I mean you don't love Terri?

8 A I love Terri very deeply. I always

9 will.

10 Q Michael, does your petition have

11 anything to do with Terri's money at all?

12 A No. It does not.

13 Q How was the lawsuit the Schindler's

14 brought against you disposed of?

15 A They dismissed their case with prejudice

16 as long as I would not seek attorney's fees.

17 Q At some point in time, did you move

18 Terri from Sabal Palms Nursing Center?

19 A Yes. I did.

20 Q Where did Terri move to?

21 A Palm Garden, Largo.

22 Q Is that where she is currently staying?

23 A Yes. It is.

24 Q When did that occur?

25 A 1996, 1 believe.

 

66

1 Q How often did you -- how often do you

2 see Terri at Palm Garden in Largo?

3 A Currently?

4 Q Yes.

5 A Once or twice a week.

6 Q What do you do? How long do you stay?

7 What do you do when you see Terri?

8 A An hour-and-a-half, two hours. I

9 usually get there when Olga is bringing her out of

10 the shower. Help lift her. Get her dressed.

11 Usually blow dry her hair. Dry her hands off.

12 Put her pads in her hands. Usually check over her

13 skin. Make sure she does not have any tears or

14 whatever.

15 Q Do you still buy Terri's clothes for

16 her?

17 A Yes.

18 Q Do you still help dress Terri?

19 A Yes. Make sure she has her haircut

20 appointment. Do her wash. Make sure all her

21 needs are met.

22 Q By the way, Mr. Schiavo, all the times

23 that Terri has been hospitalized, how many times

24 would you say Terri has been hospitalized?

25 A Hospitalized?

 

67

1 Q For the various medical problems you

2 testified to before.

3 A Twenty times.

4 Q Has she ever been in the hospital one

5 day when you were not there?

6 A No. She has not.

7 Q How many times has Terri gone to the

8 doctor?

9 A Over a hundred, 130.

10 Q What is the logistics, mechanism of

11 getting Terri to the doctor?

12 A Depending on what the problem is, prior

13 we used to have to put her in SunStar ambulance.

14 Now she basically is transported by wheelchair

15 transport.

16 Q In those hundred or so doctor visits,

17 has there ever been a doctor visit for Terri where

18 you have not been there with her?

19 A No. There has not. I was there for

20 every one of them.

21 Q Was there a point in Terri's care where

22 you came to the decision that she should not be

23 medically treated for an infection?

24 A Yes. There was.

25 Q When did that occur?

 

68

1 A I believe it was in '94. ' 93, ' 94.

2 Q When did -- tell me how that came about?

3 A I took Terri to the doctors for a

4 bladder infection. The doctor recommended that we

5 don't treat the infection and that Terri should

6 have a "Do Not Resuscitate" order in place.

7 Q How did you feel about that when you

8 heard that?

9 A I was emotional, but I felt it was what

10 Terri would want.

11 Q Did you bring up the subject of the DNR

12 order, not treating the infection, first?

13 A No. The doctor did.

14 Q Did you make a decision to implement,

15 institute, a Do Not Resuscitate order and Do Not

16 Treat The Infection?

17 A Yes. I did.

1 Q What would have been the medical

19 consequences of not treating that infection?

20 A Terri -- the infection would basically

21 turn into a septic-type infection throughout her

22 body. It would naturally shut down her organs.

23 A painless process.

24 Q Was that decision implemented?

25 A Yes. It was.

 

69

1 Q Did the nursing home react to it at all?

2 A Yes. They did. They started getting

3 all upset. Telling me it was against the law to

4 do something like that.

5 Q How did -- did Mr. and Mrs. Schindler do

6 anything in response to your decision not to treat

7 the infection?

8 A They amended their original petition

9 and brought the new amended petition against me

10 that I was not treating the infection.

11 Q Didn't they accuse you of abusing Terri

12 by not treating the infection?

13 A Yes. They did.

14 Q Did you back off of the decision at

15 that time?

16 A Yes. I did. I had the nursing home, I

17 had the petition, and my emotions were running.

18 So I backed way off.

19 Q Back then in, I believe it was March of

20 1994, the Schindler's amended their petition in

21 regarding the decision not to treat. At that

22 time, why didn't you pursue removal of the feeding

23 tube?

24 A Because at that time my emotions were

25 1 running. I couldn't -- I was ready to do the

 

70

1 natural thing. I was not ready to pull the

2 feeding tube at that time.

3 Q Even though you knew Terri wanted it?

4 A Yes.

5 Q Why were you not able?

6 A It was -- I was not ready for that yet.

7 Q The Schindlers dismissed their petition

8 with prejudice in September of 1995 and this

9 petition was filed in 19 -- your current petition

10 to remove artificial life support was filed in May

11 of 1988 (sic) Why did you wait two-and-a-half

12 years to file the petition?

13 A I did not wait. I met you in the

14 beginning of 1996, I believe. I was talking to

15 another attorney.

16 Q Well, okay. I have to caution you not

17 to testify as to any communication you might have

18 with your attorney because of attorney/client

19 privilege. Let me ask it this way. Did you seek

20 to put into motion your decision to remove the

21 feeding tube before the petition was filed in May

22 of 1988 (sic) ?

23 THE COURT: You keep saying '88.

24 MR. FELOS: ' 98. Thank you,

25 Your Honor.

 

71

1 Q (By Mr. Felos) When did you make the

2 decision and start putting it in motion?

3 A In 1995. End of 1995.

4 Q Mr. Schiavo, I would like to show you

5 Petitioner's Exhibit Number Four for

6 identification and ask you if you can identify

7 what those are.

8 A This is an affidavit from Dr. Gambone.

9 I believe it explains Terri's condition.

10 Q Affidavit of Dr. Gambone and affidavit

11 of --

12 A I'm sorry. James Barnhill.

13 Q And?

14 A Dr. Kamp.

15 MR. FELOS: Your Honor, I move to

16 introduce these into evidence as Petitioner's

17 Exhibit Number Four.

18 THE COURT: Is there an objection?

19 MS. CAMPBELL: No objection.

20 THE COURT: Thank you. They will be so

21 received.

22 (THEREUPON, PETITIONER'S EXHIBIT 4 WAS

23 RECEIVED IN EVIDENCE.)

24 Q (By Mr. Felos) Mr. Schiavo, you

25 mentioned that your mother passed away. When did

 

72

1 that occur?

2 A 1997. July.

3 Q Did that experience at all affect your

4 decision to bring this petition?

5 A My mother gave me a gift when she was

6 dying. We stopped her feeding because that is

7 what she wanted, and her medications. She gave me

8 that gift that it was okay to die.

9 Q Mr. Schiavo, why have you filed this

10 petition? Why are you asking the Court for

11 permission to remove Terri's feeding tube?

12 A Because that is what Terri wanted, and

13 its my responsibility because I love her so much

14 to follow out what she wanted.

15 MR. FELOS: Thank you. No further

16 questions.

17 THE COURT: Why don't we take a short

18 break. Five minutes ought to be enough to stretch

19 and use the facilities and get back.

20 THE BAILIFF: All rise. Court stands in

21 recess.

22 (THEREUPON, A RECESS WAS HAD FROM 10:40 -

23 10:50 A.M.)

24 MR. FELOS: Your Honor, may I step out

25 and find co-counsel?

 

73

1 THE COURT: Yes, sir.

2 THE BAILIFF: Circuit court is back in

3 session.

4 THE COURT: Thank you.

5 MR. FELOS: May we approach a moment?

6 (THEREUPON, THE FOLLOWING PROCEEDINGS WERE

7 HAD AT THE BENCH.)

8 MR. FELOS: Your Honor, my client

9 requests that the proceedings not be recorded by

10 the media, and he believes that it would impair

11 the privacy rights of the ward and we make that

12 request.

13 THE COURT: What is the legal basis for

14 that? Is there any authority for keeping the

15 media out of here?

16 MR. FELOS: I have not researched the

17 issue, Your Honor. I have no case to present.

18 THE COURT: The bases are juvenile

19 proceedings are private and they cannot be in

20 those, but they can be outside the court. Its

21 interesting they can take -

22 MR. FELOS: There is some precedent in

23 the guardianship statute. There is a provision

24 for the court to be closed in incompetency

25 proceedings.

 

74

1 THE COURT: Incompetency proceedings.

2 And I have so ruled the media had no right to

3 those files or proceedings. This is different.

4 Do you know of any authority?

5 MS. CAMPBELL: I don't know of any.

6 While I'd like to see it agreed to, I don't know

7 of any legal authority that we could, because I

8 don't think there is anything under Chapter 119.

9 THE COURT: Absent authority, I don't

10 know how I can ask them to leave. If you would

11 like to take an additional recess and see if you

12 can prevail upon them, I'm willing to do that, but

13 I don't know of any legal authority for them to

14 not be here.

15 MR. FELOS: Then I say let's proceed, if

16 that is the ruling of the Court.

17 THE COURT: Thank you.

18 1 CROSS-EXAMINATION

19 BY MS. CAMPBELL:

20 Q Good morning, Mr. Schiavo. As you

21 recall, I am Pam Campbell. I represent Mr. and

22 Mrs. Schindler.

23 A Good morning.

24 Q The relationship that you currently

25 have, the lady's name, is it Jody Sintonsay

 

75

1 (phonetic) ?

2 A Yes.

3 Q Could you describe that relationship for

4 me?

5 A We are boyfriend/girlfriend. We live

6 together.

7 Q Would you consider her your fiancee?

8 A I would consider her -- yes. Yes.

9 Q Has she ever been so noticed as anything

10 in writing in the newspaper as your fiancee?

11 A Yes.

12 Q You and she own a house together; is

13 that correct?

14 A Yes.

15 Q Can you recall going on the train tip

16 incident that you referred to with Mr. Felos, can

17 can you recall the time frame when you and Terri

18 were coming on the train to Florida?

19 A What do you mean the time frame?

20 Q When was that?

21 A I believe it was in '86. -

22 1986?

23 A Yeah. '86. I'm not good with dates and

24 times, like I told you before.

25 Q Wasn't it in October of 1985?

 

76

1 A I don't recall the month. It was the

2 month that her grandmother passed away.

3 Q You were married November of '84?

4 A November 10th. Yes.

5 Q You came to the Schindlers' condominium

6 in St. Petersburg for a honeymoon right after

7 that?

8 A Correct.

9 Q Then in '85, the spring of '85, did you

10 come back to St. Petersburg for a vacation?

11 A Did we come back?

12 Q A plane trip?

13 A I don't believe so. I don't recall

14 that.

15 Q After Terri's accident, which was

16 February 1990, were you employed at that time?

17 A After Terri's accident? Yes. I was.

18 Q Shortly after the accident, didn't you

19 stop working at Agostino's?

20 A Yes.

21 Q When did you then become reemployed?

22 A I went back to Agostino's for a month or

23 so. I worked part-time for them. They were under

24 new ownership so -- and that went belly up. Then

25 I just -- I didn't work. I went back to school in

 

77

1 '93,I believe.

2 Q And you began your employment with

3 Morton Plant in 1996?

4 A Correct.

5 Q So basically from the beginning of 1990

6 until 1996 you were unemployed; is that correct?

7 A Yes.

8 Q You were talking about some of the fund

9 raisers that you testified to previously. Can you

10 tell me about some of the details of the fund

11 raisers?

12 A We sold hot dogs, or I sold hot dogs on

13 St. Petersburg Beach. We sold pretzels at the

14 Publix. We had a Valentine's Day dance for her

15 with the association. The association I believe,

16 around Christmas, they put a luminary -- you buy

17 the bag in Terri's name. They did that on St.

18 Pete Beach to help raise money.

19 Q Where were all those funds that you were

20 raising, where were they being maintained?

21 A At First Union Bank.

22 Q Did she work for Prudential at the time?

23 A Yes.

24 Q Did the Prudential employees get

25 together and have a fund racier?

 

78

1 A I don't recall. I don't remember that.

2 Q Was there a fund raiser promoted by the

3 St. Petersburg Times, Channel 10 and Channel 8?

4 A Yes. I said I was on the news.

5 Q About how much money did all those

6 different fund raisers raise?

7 A Probably close to about 20,000. I'm not

8 sure. You would have to check on the old

9 records.

10 Q Did you also receive a payment, pay-out,

11 from Prudential from insurance proceeds that Terri

12 was entitled to?

13 A It was her life insurance, yes, that she

14 was entitled to.

15 Q How much was that?

16 A 10,000.

17 Q Did you also receive Terri's social

18 security checks during that time frame?

19 A No. Terri could not get social security

20 because she was still receiving her payment from

21 work.

22 Q Did you receive any SSI from Terri?

23 A No.

24 Q Did you move to Florida from

25 Philadelphia in April 1986?

 

79

1 A That sounds correct.

2 Q And you lived in the Schindlers' condo?

3 A Yes. We did.

4 Q How much rent were you paying at the

5 time?

6 A I don't recall.

7 Q About $400 a month?

8 A Sounds correct. Yeah.

9 Q Now you testified previously that

10 afterwards you moved to Thunder Bay. Isn't it

11 true that you moved to McGregor Place?

12 A Yes. Yes. I'm sorry. I forgot about

13 that one.

14 Q You moved to McGregor Place in September

15 1989; is that correct?

16 A I don't remember the date.

17 Q If you could bear with me and listen to

18 the time frame. I believe you testified that you

19 moved into the Schindlers' condo in April of '86

20 and then moved to McGregor Place, I'm asking you,

21 in 1989? Was it previously to --

22 A I don't recall the dates, ma'am.

23 Q Was it right prior to Terri's accident,

24 which would have been in February 1990?

25 A I don't recall the dates that we moved

 

80

1 in there and moved around. The accident happened

2 at Thunder Bay.

3 Q How long did you live in McGregor Place?

4 A I just remembered it. I don't

5 remember.

6 Q Months?

7 A It was a few months. Yeah.

8 Q How long did you live in Thunder Bay

9 prior to Terri's accident?

10 A Eight months, I believe. I'm not sure.

11 Q During that entire time that you were

12 living in the Schindlers' condo, from '86 until

13 sometime in '89, were you paying rent consistently

14 during that time?

15 A No. We were not.

16 MR. FELOS: Objection. I believe that

17 is a mischaracterization of his testimony. He

18 didn't testify that he lived in the Schindler's

19 condo from '86 to 1989.

20 THE COURT: I'll overrule the

21 objection. I think there is enough in there to

22 allow that kind of question.

23 THE WITNESS: I'm sorry. Repeat the

24 question.

25 Q (By Ms. Campbell) Did you pay rent to

 

81

1 the Schindlers then during that entire time you

2 were living in the Schindler's condo?

3 A No. They were gracious and let us slide

4 a couple months when we could not afford it.

5 Q Just a few months?

6 AI don't remember how many months, ma'am.

7 Q Did the Schindlers assist you in moving

8 from Philadelphia to St. Petersburg?

9 A No. I don't recall.

10 Q Did they contribute $900 for your moving

11 expenses?

12 A I don't recall that.

13 Q When you moved from the Schindlers'

14 condo, is it your testimony then that you moved

15 from the Schindlers' condo to McGregor Place?

16 A That would have to be. Yeah.

17 Q When you moved from the condo to

18 McGregor Place, did the Schindlers loan you money

19 at that time to secure a new apartment?

20 A I don't recall.

21 Q Right after Terri's accident, wasn't

22 Mrs. Schindler right there by your side helping

23 with Terri each step of the way?

24 A Not all the time. No.

25 Q Would you describe your relationship as

 

82

1 close in trying to assist Terri?

2 A My mother-in-law and I were close. Yes.

3 Q In February of 1991, a year after the

4 accident, didn't you, the three of you, live

5 together?

6 A Yes.

7 Q You and Mr. and Mrs. Schindler?

8 A Yes.

9 Q With the hopes that Terri would then

10 ultimately come home and live there with you?

11 A Yes.

12 Q At that time, were you sharing in the

13 expenses, you and the Schindlers?

14 A Which home are you speaking of?

15 Q Hemosita in Del Mar?

16 A That home was in my name. I was paying

17 half the rent. Mr. and Mrs. Schindler and their

18 daughter were paying the other half.

19 Q Other expenses that you shared, Florida

20 Power, telephone bill, they were shared as well?

21 A Yes.

22 Q You were in the larger home with hopes-

23 that Terri would be able to come and live there

24 with you?

25 A We- were-in -the larger home, but it was

 

83

1 not with the hopes that Terri could live with us.

2 Because we only rented the place.

3 Q Was there a reason why it was in, the

4 lease was in your name as opposed to

5 Mr. Schindler's name?

6 A Because Mr. and Mrs. Schindler went

7 bankrupt and they could not get credit.

8 Q But you all shared the home equally?

9 A Mr. and Mrs. Schindler and Suzanne and

10 myself.

11 Q Was there a time then in that you moved

12 from that house to another house with the

13 Schindlers?

14 A No.

15 Q When you were describing the different

16 places where Terri went, from Northside to

17 Bayfront and to the Mediplex, College Harbor,

18 would Mrs. Schindler go with you to those

19 individual facilities to visit Terri?

20 A She went. Yes. But not all the time.

21 Q The time Terri was home living in the

22 home with you, Mrs. Schindler lived there, too?

23 A Yes.

24 Q Did she assist you in taking care of

25 Terri during that time frame?

 

84

1 A Yes. She did.

2 Q The incident then that happened, the

3 disagreement in Terri's room in February of 1993

4 between you and Mr. and Mrs. Schindler, to that

5 time frame, was it shortly thereafter that you

6 decided to withhold medical information from the

7 Schindlers?

8 A I don't know the exact time frame, but I

9 believe it was.

10 Q Do you recall then how long it was then

11 until you started allowing the Schindlers to learn

12 more about the medical condition of their

13 daughter?

14 A I don't recall the time frame.

15 Q Do you recall in 1996 your attorney,

16 Deborah Bushnell, sending a letter to the

17 Schindlers allowing them to now be able to get

18 information about their daughter?

19 A Yes. I remember that.

20 Q Prior to that kind of communication

21 going in 1996 -- so from '93 to 1996, did you

22 allow the nursing home to talk to Mr. and Mrs.

23 Schindler about their daughter's medical

24 condition?

25 A Yeah. Um-hmm.

 

85

1 Q It's your testimony here today that the

2 nursing home was permitted, from 1993 to 1996, to

3 discuss Terri's medical condition with the

4 Schindlers?

5 A I believe after I left I told them not

6 to -- to disregard or whatever, that other order.

7 Yeah. I'm not sure of the exact time frame.

8 Q Would it surprise you to know that the

9 nursing home was not giving out information during

10 that time frame to Mr. and Mrs. Schindler?

11 MR. FELOS: Objection. Lack of

12 foundation.

13 THE COURT: Overruled.

14 A I'm sorry. Repeat your question.

15 Q (By Ms. Campbell) Would it surprise you

16 to know that the nursing home was not giving out

17 information to Mr. and Mrs. Schindler from '93 to

18 '96?

19 A The way Sabal Palms went, it would not

20 surprise me. But I know they get information.

21 Q I'm sorry. What was the last point?

22 A I know they did get information.

23 Q Who do you believe they received

24 information from?

25 A Elaine Nelson. The social worker.

 

86

1 Q From Sabal Palms?

2 A Yes.

3 Q And the different facilities that you

4 would take Terri to, for example when she would go

5 to Largo Medical Center for hospitalization, were

6 you ever requested as the guardian as to whether

7 or not there were any advanced directives from

8 Theresa Schiavo?

9 A From the hospital?

10 Q Yes.

11 A I don't remember any of those.

12 Q On any of the hospital admission dates,

13 do you recall anyone from admissions going over

14 paperwork with you?

15 A Yeah.

16 Q Do you recall them asking you whether or

17 not Theresa Schiavo had any advanced directives

18 such as a living will?

19 A I don't recall them asking that.

20 Q What do you believe that your testimony

21 would have been to that? What do you think your

22 answer would have been?

23 A If they would have asked me at that time

24 frame that she was --

25 Q The question is whether or not she had a

 

87

1 living will?

2 A My answer would be no. She does not

3 have a living will.

4 Q Did you ever seek legal assistance or

5 authorize an attorney to demand payment

6 reimbursement to you of the Schindlers for some

7 money for a credit card debt?

8 A This -- I don't recall that.

9 Q In 1993, do you recall an attorney Jan

10 Piper?

11 A Yes. I do.

12 Q Do you recall Mr. Piper sending a letter

13 to Mr. and Mrs. Schindler on your behalf demanding

14 payment of, a refund of some credit card debt?

15 A I remember him sending a letter. I

16 don't know if it was about a credit card.

17 Q What was your recollection of what was

18 the dispute between you and Mr. and Mrs.

19 Schindler?

20 A I don't remember, but I don't think it

21 was a credit card.

22 Q You do recall Mr. Piper sending a letter

23 on your behalf to the Schindlers? A demand

24 letter?

25 A I do recall that. Yes.

 

88

1 Q Is it your testimony here today that

2 you never agreed with Mr. and Mrs. Schindler to

3 reimburse them for any of the expenses that they

4 had advanced to you and Terri in the way of moving

5 expenses?

6 A I never agreed with them.

7 Q You never agreed to reimburse them?

8 A I never agreed. They never even brought

9 it up.

10 Q So your testimony is today that you and

11 the Schindlers never discussed repayment of any of

12 the loans made to you?

13 A No. We have never discussed that.

14 MR. FELOS: Your Honor, objection. The

15 question is improper because the witness has

16 denied that there were any loans. The question

17 is --

18 THE COURT: The question is did you ever

19 agree to reimburse. I don't know how you

20 categorize it. We can get real technical. I

21 think the Court understands the nature of the

22 question. I will allow it.

23 MS. CAMPBELL: The question went to a

24 discussion between he and the Schindlers, and I

25 believe the answer was no. There was no other

 

89

1 discussions. No further questions.

2 THE COURT: Thank you. Redirect?

3 REDIRECT EXAMINATION

4 BY MR. FELOS:

5 Q Just to clarify a couple of things, Mr.

6 Schiavo, there was some testimony about life

7 insurance. Was in fact the payments that Terri

8 received disability payments from Prudential?

9 A Yes.

10 Q Not life insurance benefits?

11 A Yes.

12 Q You also testified about social security

13 benefits. I recall you saying that Terri did not

14 receive social security benefits. Was that during

15 the time she was receiving disability from

16 Prudential?

17 A Say it again to me.

18 Q Did Terri ever -- did Terri ever receive

19 any social security benefits while she was

20 receiving disability payments from Prudential?

21 A No.

22 Q Did she receive social security payments

23 after that?

24 A Yes.

25 Q In fact, are you aware of any written

 

90

1 advanced directive by Terri regarding removal of

2 life support and medical treatment? Are you aware

3 of any living will executed by Terri?

4 A No. I'm not.

5 Q I believe you mentioned you were

6 engaged. How long have you been engaged?

7 A Four years.

8 Q Do you have a wedding date?

9 A We have no wedding date set.

10 MR. FELOS: I have no other questions.

11 THE COURT: Thank you. You can stand

12 down, Mr. Schiavo.

13 THE WITNESS: Thank you.

14 THE COURT: Call your next witness.

15 MR. FELOS: We call Scott Schiavo.

16 THE COURT: Raise your right hand for

17 me, please.

18 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

19 THE COURT.)

20 THE COURT: Thank you, sir. Have a

21 seat there, please.

22 DIRECT EXAMINATION

23 BY MS. FELOS:

24 Q Good morning. State your full name for

25 the record, please.

 

91

1 A Scott Schiavo.

2 Q Mr. Schiavo, where do you live?

3 A In Carmel, Indiana.

4 Q How long have you been there?

5 A A little over three years.

6 Q Where did you live before then?

7 A In Trevose, Pennsylvania.

8 Q Approximately where is that located?

9 A It's, I guess close to northeast

10 Philadelphia.

11 Q Thank you. Have you lived in the

12 Philadelphia area most of your life?

13 A The suburbs of Philadelphia. Yes. All

14 my life.

15 Q Mr. Schiavo, what is your educational

16 background?

17 A I graduated high school. I graduated

18 from Philadelphia School of Offset Printing.

19 Q Are you currently employed?

20 A Yes. I am.

21 Q What do you do?

22 A I'm a landscaper.

23 Q What do you do in your work?

24 A I install irrigation systems.

25 Q Are you related to Mike Schiavo?

 

92

1 A Yes.

2 Q How?

3 A He is my younger brother.

4 Q Tell us about your general family

5 background. Are your parents still living?

6 A My father is. Yes.

7 Q Your mother?

8 A She passed away.

9 Q Approximately when was that?

10 A What year is it? Its going to be three

11 years this July.

12 Q What about your grandparents, are they

13 still alive?

14 A No. They have passed away.

15 Q You have brothers?

16 A Yes. I do. Four.

17 Q How many?

18 A Four.

19 Q Any sisters?

20 A No. I don't.

21 Q Are all the brothers living?

22 A Yes. They are.

23 Q What about are they married?

24 A Yes. They are.

25 1 Q So you have how many sister-in-laws?

 

93

1 A I have four.

2 Q So Theresa Schiavo, Michael's wife, is

3 your sister-in-law; is that correct?

4 A Yes. She is.

5 Q When did you meet her?

6 A I believe it was around October. I

7 believe it was of 1983.

8 Q How did you meet her?

9 A At a family gathering at my brother's

10 house.

11 Q What kind of gathering was this?

12 A If I remember correctly, it was my

13 brother's birthday.

14 Q Was this a date or something that Mike

15 had with her?

16 A Yes.

17 Q They were not married yet?

18 A No. He brought her there on a date to

19 meet the family.

20 Q Did you then see Theresa after that

21 period of time when you first met her that

22 evening?

23 A On other occasions?

24 Q Um-hmm.

25 A Yes. Many.

 

94

1 Q In what way? When did you have occasion

2 to see her again?

3 A Typically, family gatherings. There was

4 times that Mike and Terri would stop into my house

5 or -- but it was mainly family gatherings.

6 Q So they just would pop in or --

7 A Yeah. That is the way we were. You did

8 not need an invite to come to any of our houses.

9 If you were around the corner, you stopped in. It

10 was pretty much an open door family type of deal.

11 You did not have to call somebody up and invite

12 them over to visit or whatever. They just stopped

13 in.

14 Q So how often would you say you saw

15 Terri?

16 A On average I would say one to two times

17 a week depending on the holiday season. Because

18 we had several birthdays or a couple each month or

19 whatever.

20 Q Were you married then?

21 A Yes. I was.

22 Q Any children?

23 A I have one. I had one at the time.

24 Q What is the child's name?

25 A Her name is Aileen.

 

95

1 Q When was she born?

2 A In February of 1983.

3 Q Okay. Probably you might have met Terri

4 before then?

5 A Yes. Before the baby was born.

6 Q I think you said 1 83.

7 A I'm sorry. The baby was born -- let me

8 get the dates right here. She was born in

9 February of '93 (sic)

10 Q ' 83?

11 A The baby was born before Terri.

12 Because we met Terri in October of 1983.

13 Q Did Terri take any special interest in

14 Aileen?

15 A My daughter, five weeks old, had

16 developed SIDS. She was taken to Children's

17 Hospital of Philadelphia.

18 Q Um-hmm.

19 A Terri would call us. When we came home,

20 of course all my family would come to see us.

21 This and that. See the baby. But Terri, she had

22 brought her a little stuffed puppy that my

23 daughter still has to this day.

24 Q And how old is she now?

25 A Seventeen in February.

 

96

1 Q What was Terri like when you were seeing

2 so much of her?

3 A As in?

4 Q What kind of personality did she have?

5 A A beautiful person. Terri was

6 outgoing. The first we met her, I guess at any

7 date your first time coming to a family she was

8 kind of uncomfortable, not knowing everybody when

9 she came in. But after, boy, an hour or so, she

10 just lightened up. By the end of the night, she

11 was having a great time when she knew everybody.

12 My brother is kind of a crazy guy.

13 Likes to have a good time. She loosened up real

14 nice. I have never seen Terri uncomfortable

15 around my family or any event since then.

16 Q So she was friendly?

17 A Yes.

18 Q What about a sense of humor? Did she

19 have a sense of humor?

20 A Yes. In fact, I still to this day have

21 a card she sent my wife on a postcard from Florida

22 of some gentlemen with their back sides bared and

23 a little letter saying to my wife, "Geez, Karen,

24 these are my four new boyfriends. Do you want to

25 come over?"

 

97

1 Q She was joking around?

2 A Yes. She was joking around. She just

3 had that type of sense of humor. Like my whole

4 family. She sort of like built into it.

5 Q Did you ever see Terri without Mike?

6 A Yes. I have. There is times when Mike

7 -- Mike was a manager for McDonald's and he also

8 at the time. And she would, if there was a

9 family get together, whatever, Terri would show

10 up. Terri didn't -- she was -- she sort of

11 blended in with us.

12 Same thing, she stopped at our house

13 before on a night that Mike was working because

14 they only lived around the corner from where we

15 lived. She would show up. Sit down and watch TV

16 with us. Talk to my wife about things. You know

17 how girls get together and chat. She would do

18 stuff like that.

19 Q What kind of relationship did you have

20 with Terri?

21 A Um, I would say more as a sister than a

22 sister-in-law. That goes for all of us. My

23 mother always said that she never had any

24 daughters, but she had her four girls.

25 Q It's okay. Are you okay?

 

98

1 A Yeah. It's a tough thing.

2 Q Let's kind of go back for a little bit

3 of recollection.

4 A No. She would -- our family is -- we

5 have sister-in-laws, brother-in-laws, whatever.

6 They became more of a sister or brother, it was,

7 and was not treated as inlaws.

8 Q Okay. Thank you. Have you seen Terri

9 since the medical accident that she had?

10 A Yes.

11 Q When would that have been? You saw her

12 down here, I presume?

13 A Yes. It was. I came out here in --

14 I'm trying to think of the date.

15 Q That's okay. We can come back to it. I

16 can see you need to relax a little bit.

17 A I believe it was in 1990 --

18 approximately six years ago.

19 Q So '94? Something like that?

20 A Yeah.

21 Q Okay. That is the only time you have

22 been in Florida in the last 10 years or so?

23 A Yeah.

24 Q Something -- did you do any recording or

25 something for Terri when her accident first

 

99

1 occurred?

2 A Yes. When Terri -- when this first

3 happened to Terri, we were all told Mike was

4 trying to do whatever he could for Terri. They

5 had said to stimulate Terri's listening skills I

6 guess, and her brain, that if she heard familiar

7 voices and everything else -- so we all had met at

8 my mother and father's house when they are living

9 back in Lovelton, Pennsylvania.

10 We took turns and went into my parent's

11 bedroom and we each made our own little recording

12 on the tape to talk to Terri. We then sent it to

13 Mike where he had purchased a Sony walkman tape

14 for her to listen to.

15 Q Besides Terri, have you ever had a

16 relative maintained on artificial life support?

17 A Yes. My grandmother.

18 Q Tell us a little bit about how that

19 happened.

20 A Well, she had -- it was a touchy

21 situation because she had signed a-living will, a

22 DNR, but the doctor at the time did not have it in

23 his hand. When she had taken a turn for the

24 worse, they performed I guess CPR and put her on

25 the life support system.

 

100

1 Q Then what happened?

2 A Well, it was totally against her will

3 and there was nothing we could do because they

4 said once you're on it, you can't just turn it

5 off.

6 Q So that is what they told you?

7 A Yes. And her doctor mentioned there

8 are ways they can work with the medication or

9 whatever because at the time she was only being

10 kept alive by a machine. She was pretty much

11 gone. It upset us all because it was not the way

12 she wanted to be kept alive. To see her like

13 that, it was not the memory that we all wanted.

14 Q When you say "we all", who was there?

15 A At the time it was my mother and father,

16 my two aunts, two uncles, my three older brothers,

17 and two of my sister-in-laws because at the time

18 my one brother was not married. Myself. My wife

19 was home with my kids because we had an infant at

20 the time.

21 I got a phone call that Saturday morning

22 that she was not doing well. So my one brother

23 picked me up on the way to the hospital.

24 Q So it sounds like the whole family was

25 there except for --

 

101

1 A Yes. Well, Mike was not. Mike was

2 living here in Florida.

3 Q When did your grandmother die?

4 A She passed on that same day, later on.

5 Q Did Mike and Terri come up for the

6 funeral?

7 A Yes. They came for the funeral at that

8 time.

9 Q Were there any conversations at the

10 funeral or after regarding your grandmother?

11 A Yes. There was. At a luncheon that we

12 had, you know, my family, friends and stuff.

13 Q Kind of describe that for us.

14 A We went to a, it's called a country club

15 but we went there for a luncheon afterwards.

16 There was family, friends, relatives. We were

17 sitting around. At the time, it was pretty much

18 all the brothers and sisters sitting around the

19 table.

20 And we were discussing, talking about my

21 grandmother, because she was a great woman. We

22 were kind of upset about the way that she left the

23 world. It was not her wish the way she wanted to

24 live.

25 Q So where were you sitting?

 

102

1 A We were sitting around somewhat of a

2 round table. We were all sitting around it at the

3 time. My wife was to my right and it was pretty

4 much boy/girl all the way around. We came out.

5 Terri was sitting on my left-hand side.

6 I was really upset because they did this

7 to my grandmother. We were all like "it stinks".

8 The only reason why they put you on these things

9 is to raise more money for the hospital.

10 Basically that is the way I felt.

11 If somebody is gone, why keep them on a

12 machine? If -- they are great machines if you are

13 going to save somebody's life or open heart

14 surgery, this and that, but when somebody is gone

15 that means God intends for them to go, and if they

16 are going to be kept alive on a machine, they are

17 not really living.

18 And Terri made mention at that

19 conversation that, "If I ever go like that, just

20 let me go. Don't leave me there. I don't want to

21 be kept alive on a machine." Pretty much

22 everybody at that table that was in the discussion

23 had made the same comment. No way I want to be

24 kept alive on a machine.

25 Q What do you mean by machine?

 

103

1 A Artificially. It is something that is

2 breathing for you. It is not really your own

3 heart pumping air into your blood and oxygen to

4 your brain and everything else. It is an

5 artificial way of being kept alive.

6 Q Does that mean anything else? Anything

7 to do with tubes or other kind of artificial life

8 support?

9 A There is also the case that -- my

10 sister-in-law, for one. She passed away. The

11 reason why I was out here for and I saw Terri is

12 that my sister-in-law was diagnosed with

13 inoperable brain cancer. This is my wife's

14 sister. Her last wish was for my wife's whole

15 family to go to Disney World. When we came out

16 here, my wife's grandmother had lived in

17 Clearwater, so we stayed here a couple of days.

18 That is when I saw Terri for the first,

19 time after the incident. But when we went home,

20 it was within six months that my sister-in-law had

21 to be put on a feeding tube because she could not

22 eat or swallow. She lost all ability to swallow

23 her food and everything else.

24 Q So what happened?

25 A So they put her on a feeding tube.

 

104

1 Q Did they take it out?

2 A Yes. Because it was doing -- she could

3 not have a bowel movement. She started to

4 actually throw up her own feces because it was

5 backing up in her system.

6 Q When you are referring to, as you have,

7 to a number of situations such as the grandmother

8 and sister, you talk about artificial life support

9 and machines, you are looking at the whole

10 artificial life support system?

11 A Yes. Artificial life support, to me

12 it's all well and great if it is going to help

13 somebody live for a period that, you know, there

14 is a new heart coming in and you know they are

15 waiting for that and it's going to keep them alive

16 until that heart is transplanted or whatever. But

17 if there is nothing there, why prolong that

18 person's agony?

19 Q So in your understanding, at the time

20 you were at your grandmother's funeral luncheon

21 and the conversation was between all the brothers

22 and sister-in-laws -

23 A Yes.

24 Q -- Terri shared that opinion?

25 A Yes. She did.

 

105

1 Q If Terri did not share that opinion, do

2 you think she would have spoken up?

3 A If she didn't?

4 Q Right.

5 A I feel if she did not share that

6 opinion, she would not have said anything. The

7 only reason she said it is because she shared the

8 same opinion as us. If -- I guess is what I'm

9 trying to say --

10 Q Well, we don't need to guess.

11 A Well, I think if she didn't want it, I

12 think she would have --

13 Q You mentioned what she said at the time.

14 A Yes.

15 Q Now were there any other occasions where

16 an issue on artificial life support came up that

17 you had between you and Terri? Any other

18 conversations about artificial life support?

19 A I believe it was basically that, you

20 know, because we had talked about it at the table.

21 Q So that was the only time it ever came

22 up?

23 A Yes.

24 Q When did you first mention this

25 recollection of that event?

 

106

1 A When did I?

2 Q How did that come about?

3 A How did I?

4 Q How did you -- how did it come about

5 that you mentioned that you remembered this event

6 at your grandmother's funeral?

7 A It was something that -- we all talked

8 about it that day. It was like we all went home,

9 grieved, and had to pretty much go on with our

10 lives. Never in my wildest dreams did I ever see

11 this happening to Terri, but when this was all

12 coming about --

13 Q When you say this was all coming about,

14 like when? The last couple of years or -

15 A No. No. It came up when I spoke to

16 Mike's lawyer about if I had ever heard Terri

17 mention this or that. If she ever came to me, sat

18 down and talked to me about something. This and

19 that. I had mentioned that on this date that at

20 my grandmother's funeral we talked about this as a

21 family. As all the kids in the family.

22 And Terri was sitting with us and Terri

23 made the mention that she would never want to be

24 kept alive like that. You know, if it is her time

25 to go, it's her time to go.

 

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1 Q Do you remember approximately when that

2 was when you talked to -- it was Mr. Felos, I

3 presume?

4 A He called me on a Sunday morning.

5 Q Within the last year?

6 A Yes. It was either September or

7 October.

8 Q Okay.

9 A I work seven days a week.

10 Q Of 1 99?

11 A Yes.

12 Q Okay. I don't have any -- maybe I do.

13 Excuse me. With respect to the last question when

14 you spoke to Mr. Felos sometime in September/

15 October of '99, did you tell Mike about this

16 before that time or after you spoke with

17 Mr. Felos?

18 A It was after. It was after Mike.

19 Because Mike had -- I talked to Mike. Told him I

20 spoke to his lawyer. He asked me how it went. I

21 told him "Everything I knew, Mike." He had said

22 what was that? I said, "Do you remember

23 grandmom's funeral at the dinner?" He said I

24 didn't think about that.

25 I said my mother used to kid me saying

 

108

1 that if you want to know something, call Scott

2 because he knows it. I seem to remember stuff for

3 some reason.

4 MS. FELOS: Thank you. I have no

5 further questions.

6 THE COURT: Thank you. Cross-

7 examination?

8 CROSS-EXAMINATION

9 BY MS. CAMPBELL:

10 Q Mr. Schiavo, my name is Pam Campbell. I

11 am the attorney for Mr. and Mrs. Schindler,

12 Theresa's parents. What year did your grandmother

13 die?

14 A She passed away in February of 1986

15 ' 88.

16 Q Do you recall when Terri and Mike moved

17 to Florida?

18 A They moved to Florida, I believe in the

19 spring of, let's see. I believe the spring of '85

20 or '86. ' 86, I believe.

21 Q Did you see Terri or Mike very much

22 after they moved to Florida?

23 A Just when they came back. In fact, they

24 surprised me one night. I had called my father's

25 house from work. Mike answered the phone. You

 

109

1 know, it was like Mike. "No. You've got the

2 wrong number." I hung up. I called back. My dad

3 answered. I said, "Was that Mike?" He said no.

4 No.

5 Later on that night -- I had lived in a

6 mobile home. I was putting up new skirting. As I

7 came back in the house, there was Mike and Terri.

8 I said, "You son of a gun. I knew you were

9 there." When they came back, they would stop in

10 and see us.

11 Q Was that prior to your grandmother's

12 death?

13 A Yes.

14 Q Do you have any advance directives such

15 as a living will?

16 A Myself?

17 Q Yes.

18 A Yes. I do.

19 Q What would your personal wishes be?

20 A My personal wishes are if I'm in a

21 situation that I cannot be saved, I just want to

22 go.

23 Q Would you want artficial [sic] nutrition and

24 hydration withdrawn or withheld?

25 A No (sic) Not if it was not going to

 

110

1 save me within a week or two. If I was waiting

2 for a new heart or something, yes. But if there

3 was no outlook in my life, I would not want to

4 live like this. No.

5 Q How long of a time frame would you

6 expect somebody to wait for the artificial heart

7 in the hypothetical?

8 A I would say a week. Two weeks at the

9 most.

10 Q At this luncheon where your grandmother

11 was discussed, did your brother share in your

12 anger? You testified you were angry and upset

13 about what happened to your grandmother. Did your

14 brother share in that?

15 MS. FELOS: Objection. He never said

16 anger. He did say upset.

17 Q (By Ms. Campbell) Excuse me. Did your

18 brother share in the upset?

19 A Sure. We all were. It was something

20 that, you know, knowing my grandmother, it was

21 upsetting to see, to walk in to say goodbye to

22 your grandmother and the machine has her lifting

23 off the bed for air. Her chest pumping up. When

24 you go to talk to her, she stared at the ceiling.

25 This was not my grandmother living

 

111

1 there. As far as I was concerned, her spirit had

2 already gone to Heaven.

3 Q How long was your grandmother on the

4 ventilator?

5 A From the early morning hours till mid

6 afternoon of the same day.

7 Q So it was on that same day that you saw

8 your grandmother in that condition?

9 A Yes.

10 Q At this luncheon, how many people were

11 at the luncheon?

12 A I could not give you an absolute honest

13 figure. Several people were there. A lot of

14 relatives. Some friends of hers.

15 Q Was Michael Schiavo there?

16 A Yes.

17 Q Approximately how large was the table?

18 A I believe it sat, I think a seating of

19 twelve.

20 Q Was it just one table of family members

21 and friends?

22 A No. No. In fact, we had some cousins

23 there. Two of my cousins that were not married

24 where sitting with us, too.

25 1 Q So did your family occupy several tables

 

112

1 within this country club setting?

2 A Yes.

3 Q Was Michael sitting on the other side of

4 Terri?

5 A Yes. He was.

6 Q Did you specifically hear Terri make the

7 comment?

8 A Yes. I did. With my own ears. She was

9 sitting to my left.

10 Q She was not just sharing the opinion

11 that was expressed at the table?

12 A No. She had made a statement that if I

13 was in this predicament, let me go. If it is my

14 time, it is my time.

15 Q Are you aware of what kind of feeding

16 tube or ventilator, any kind of life support

17 system that Terri is on currently?

18 A Am I aware of them?

19 Q Um-hmm.

20 A I'm aware she is on a feeding tube.

21 Yes.

22 Q Is Terri on a ventilator?

23 A No. She's not.

24 Q Have you seen Terri this visit?

25 A No. I just got in last night. I got up

 

113

1 this morning and came here, but I do expect to go

2 see her before I leave.

3 Q You testified the prior time for you to

4 see Terri was about six years ago?

5 A Yes. Approximately. It was in -- yeah.

6 Approximately six years ago.

7 Q In that six year time frame, have you

8 made any other tapes or any other kind of

9 communication for Terri to listen to?

10 A No. I did not.

11 Q Did you ever talk with Michael Schiavo,

12 prior to your talking with his attorney, about

13 Terri's conversation at the grandmother's funeral

14 luncheon?

15 A No. I did not. Like I said, we left

16 there that day. We did see each other before Mike

17 and Terri had left again to come back to Florida,

18 but I mean, it was all a statement that we were

19 talking about because it was fresh in our mind.

20 We had just buried our grandmother. It

21 is not the way she would want to leave the world

22 the way she was left. We were all -- so pretty

23 much like a conversation at dinner. Its not

24 something you bring up everyday because you just

25 don't think about it. You go on with your life.

 

114

1 When I was approached and asked if I

2 ever heard this or Terri make a statement of this

3 matter, yes. I did hear, with my own ears, Terri

4 make a statement.

5 Q When Terri's accident occurred in

6 February 1990, did you come to Florida then?

7 A No. I did not. But my brother, Brian,

8 called me and told me about this incident. And

9 the first thing I was doing was going for my

10 credit card to call. My wife said to me, "Look,

11 Scott. If they need you there, I know they will

12 call you." I was like, "I've got to be there for

13 them." Talking to my brother, Brian, he said

14 "Mom, dad, and I are going. You've got kids. A

15 job. We will keep you informed and everything

16 else."

17 So that is basically what we did. It

18 was not going to do Terri any good to have us, all

19 five of us, clamoring around.

20 Q From the time of the accident then until

21 six years ago when you came to see Terri, were you

22 with Terri during that time frame?

23 A No. I was not. I could not afford it.

24 Like I said, it was -- the first -- my first

25 instinct was get a ticket and be there for Terri.

 

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1 When I calmed down and stopped -- at the time, I

2 had three children. An infant. It was

3 financially impossible for m& to do this.

4 Q When you came down six years ago, were

5 you surprised to learn that Terri was on a feeding

6 tube?

7 A No. I was -- at the time, I was told

8 she was on it.

9 Q Did you see a feeding tube?

10 A No. She was not being fed at the time.

11 Q Did you remind Michael, at the time, of

12 Terri's comments about not wanting to live like

13 that?

14 A No. Because that day, it was a very

15 tough year for myself. My son was diagnosed with

16 juvenile diabetes February 1st of that year, and

17 on April 6th of that year my sister-in-law was

18 diagnosed with brain cancer. Everything was

19 snowballing. I had a lot on my plate at the time.

20 Then when I went to see Terri, it was a very tough

21 afternoon. It just didn't click or anything.

22 Q When you saw Terri, on that day was it?

23 Just one day?

24 A Yes.

25 Q Did she make any response or reaction to

 

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1 you?

2 A Absolutely none.

3 Q Were her eyes open or closed?

4 A She just stared at the ceiling.

5 Q Did her head turn toward you when you

6 talked to her?

7 A I don't believe so. No.

8 Q Do you know whether Mr. Felos spoke

9 with any other of your brothers?

10 A To be honest with you, I don't believe

11 so. I personally don't know if he talked to any

12 of them.

13 Q Why do you think he specifically spoke

14 then to you?

15 A Because I told Mike that if he needed me

16 for anything, I'm there for you. That is

17 basically why.

18 Q Are you and Mike still real close?

19 A We are all close, my brothers. Any one

20 of us would be there for him. I mean, we were.

21 Q When your mother passed away, was that

22 here in Pinellas County?

23 A No. It was not.

24 Q Where did she pass away?

25 A She passed away in Langhorne,

 

1 Pennsylvania.

2 Q Was her funeral held there?

3 A Yes.

4 MS. CAMPBELL: No further questions.

5 THE COURT: Thank you. Redirect?

6 REDIRECT EXAMINATION

7 BY MS. FELOS:

8 Q Mr. Schiavo, you wanted your

9 grandmother's wishes honored; didn't you?

10 A Yes.

11 Q You would want your wishes honored?

12 A Yes. I would.

13 Q You would want anybody's wishes honored;

14 isn't that correct?

15 A I believe that.

16 Q Whatever the person wished, you

17 would want to go along with that?

18 A Yes. That is what they wished.

19 Q Have you ever been in Florida in the

20 last ten years where you did not see Terri?

21 A No.

22 Q When you were in her nursing home room-,

23 what other things did you observe? Ms. Campbell

24 mentioned a few things. What other things did you

25 observe about her-?--

 

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1 A It was very uneasy for me to see her

2 arms and legs, which were curled up, twisted. It

3 was -- it was just like it was not Terri. It was

4 like an old beat up car. Just mangled up. It was

5 sickening.

6 Q You don't know personally who Mr. Felos

7 spoke to; do you?

8 A No. Not personally.

9 Q You don't have that information; is that

10 correct?

11 A No. I don't know.

12 MS. FELOS: Thank you. No further

13 questions.

14 THE COURT: Anything further?

15 MS. CAMPBELL: No, Your Honor.

16 THE COURT: Thank you. You may stand

17 down. Why don't we break for lunch now. Be back

18 at 1:15 by my watch. I have about 12 to 12:00.

19 THE BAILIFF: All rise. Court stands in

20 recess.

21 (THEREUPON, COURT RESUMED AT 1:15 P.M.)

22 THE BAILIFF: All rise. Circuit court

23 is back in session.

24 THE COURT: Are you ready to proceed?

25 MS. FELOS: Yes, judge. We are having

 

119

1 some technical difficulties. If you would bear

2 with us for one moment.

3 THE COURT: Very well.

4 MR. FELOS: Your Honor, at this time, I

5 wanted to read a portion of the depositions of

6 Robert and Mary Schindler.

7 THE COURT: Mr. Felos, do you want to do

8 that a little slower than normal?

9 MR. FELOS: This is from the deposition

10 of Robert Schindler taken August 12, 1999

11 starting on Page 67, Line 24.

12 Question. Hypothetically, if Terri told

13 Michael I don't want to be kept alive artficially [sic],

14 would that change your position in this case?

15 Answer. No.

16 Next from the deposition of Mary

17 Schindler taken August 12, 1999 starting on Page

18 62.

19 Question. And Mr. Schiavo then says

20 that Theresa told him that if anything happened to

21 her where she had to be cared for by others, open

22 quotation, please don't let me live like that,

23 close quotation. Does that seem to be unusual or

24 out of character for Theresa?

25 Answer. I don't know. I don't know

 

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1 that.

2 Moving to Page 63, Line 7. Now

3 hypothetically, this is a hypothetical question,

4 I want you just to assume for purposes of this

5 question that Theresa really did say that. Would

6 that change your position as to whether her life

7 support should be removed in this case?

8 Answer. No.

9 Page 63, Line 23. Again, a hypothetical

10 question. Assuming, just for purposes of this

11 question, that in response to watching those

12 television news shows or programs that with people

13 on life support that Theresa in fact did say that

14 she would not want her life maintained by

15 artificial means, would that change your position

16 as to the removal of her feeding tube?

17 Answer. No.

18 THE COURT: Ms. Campbell, do you wish to

19 have. other portions of those depositions read at

20 this time?

21 MS. CAMPBELL: No, Your Honor. Not at

22 this time. Thank you.

23 MR. FELOS: Your Honor, we call our next

24 witness, Dr. James Barnhill.

25 THE BAILIFF: Would you stand right

 

121

1 here, face the judge, and raise your right hand.

2 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

3 THE COURT.)

4 THE COURT: Thank you, sir.

5 THE BAILIFF: Be seated right in this

6 box.

7 DIRECT EXAMINATION

8 BY MS. FELOS:

9 Q Good afternoon. Would you state your

10 name for the record, please?

11 A James Barnhill.

12 Q And you are a medical doctor?

13 A Yes. I am.

14 Q I'm going to ask you a few questions

15 about your credentials. Where did you receive

16 your medical degree?

17 A University of Florida.

18 Q When was that?

19 A 1978.

20 Q Have you done an internship, and if so,

21 where?

22 A Yes. I also did an internship at the

23 University of Florida. That was followed by a

24 residency at the University of Florida. A

25 residency in neurology.

 

122

1 Q Have you done any other type of study,

2 internship, or residency other than that?

3 A No.

4 Q How long have you been practicing

5 medicine?

6 A I graduated medical school in 1978. I

7 guess since 1978.

8 Q Thank you. Do you have any board

9 certifications?

10 A Yes. I am certified by the American

11 Board of Psychiatry and Neurology in neurology.

12 Q Are you in private practice?

13 A Yes. I am.

14 Q Do you also act as a consulting

15 physician for other physician's patients?

16 A That is the majority of the type of work

17 I do. Yes.

18 Q I see. Do you often render opinions

19 with respect to neurologic disorders?

20 A On a daily basis. Yes.

21 Q Have you ever testified in a court case

22 before?

23 A Yes. I have.

24 Q What case might that be?

25 A I have testified in a number of

 

123

1 different types of cases. Personal injury cases.

2 Malpractice cases. Another case involving a

3 feeding tube in a patient with a persistent

4 vegetative state.

5 Q So you have testified in a case

6 specifically with regard to removal of artificial

7 life support; is that correct?

8 A Yes.

9 Q Do you recall the name of the case?

10 A Browning.

11 Q Thank you. How many cases would you say

12 you have testified about neurological orders?

13 A You mean in court or deposition?

14 Q In court.

15 A Half a dozen perhaps over the past

16 sixteen years.

17 Q So you have been accepted and approved

18 by courts for expert testimony; is that correct?

19 A Yes.

20 MS. FELOS: Thank you. Your Honor, we

21 would like to tender this witness as an expert

22 witness and ask if opposing counsel wants to voir

23 dire.

24 MS. CAMPBELL: I have no objection to

25 Dr. Barnhill.

 

124

1 THE COURT: Thank you very much.

2 Q (By Ms. Felos) Thank you, judge. Now

3 with respect to this matter, this is an adversary

4 proceeding where Mr. Michael Schiavo, who is

5 Theresa Schiavo's husband and guardian of the

6 person, seeks to have a feeding tube removed from

7 Theresa Schiavo, which I will refer to possibly as

8 the ward or patient or by her name. Her name is

9 Theresa Marie Schiavo. Have you examined this

10 patient?

11 A Yes. I have.

12 Q Would you tell us when you have -- how

13 many times and when that might be that you

14 examined the patient?

15 A I examined her twice. The first time

16 was in March of 1998. The second time was last

17 week, January 19th, to be precise.

18 Q Of year 2000? This year?

19 A Right. Yes.

20 Q Thank you. Where did you examine the

21 patient?

22 A At Palm Garden Nursing Home in Largo.

23 Q Thank you. Have you reviewed any

24 records of Mrs. Schiavo?

25 A Yes. I have.

 

125

1 Q Can you identify what records they would

2 be?

3 A On both occasions, when I went down to

4 the nursing home, I reviewed the chart that is

5 kept there on her. It is a pretty large chart.

6 And I have reviewed a CAT scan of her brain and an

7 EEG.

8 Q Have you formed an opinion with respect

9 to whether Mrs. Schiavo is competent to make

10 medical treatment decisions for herself?

11 A I have.

12 Q And what is that opinion?

13 A She is not competent to do that.

14 Q Is there any reasonable medical

15 probability that Mrs. Schiavo will regain capacity

16 to make medical treatment decisions on her own?

17 A No.

18 Q Have you reviewed the definitions of

19 persistent vegetative state set forth in the

20 Florida Statutes?

21 A Yes. I have.

22 Q Have you reviewed the definitions of the

23 word "terminal" as set forth in the Florida

24 Statutes?

25 A Yes. I have.

 

126

1 Q Have you formed an opinion as to whether

2 Mrs. Schiavo is in a persistent vegetative state

3 as set forth in the statute?

4 A I have and she is.

5 Q Would you tell us how you reached that

6 conclusion with respect to her vegetative state as

7 it pertains to the Florida Statutes that you

8 reviewed.

9 A Basically, a persistent vegetative state

10 is a diagnosis and I formed that diagnosis based

11 on the usual procedure which is to obtain history,

12 examine the patient, and review laboratory data.

13 In this case, the history is based on the chart.

14 The patient can't provide any history. Then I

15 performed a physical examination. Then I reviewed

16 the CAT scan and EEG.

17 Q Thank you. Have you found Mrs.

18 Schiavo's condition to be permanent?

19 A Yes.

20 Q Have you found that condition to be

21 irreversible?

22 A Yes.

23 Q Is it your opinion that Mrs. Schiavo is

24 unconscious?

25 A Yes.

 

127

1 Q Would you also say that Mrs. Schiavo has

2 an absence of voluntary action or cognitive

3 behavior of any kind?

4 A I would.

5 Q Does Mrs. Schiavo have the inability to

6 communicate or interact purposefully with the

7 environment?

8 A She does.

9 MS. FELOS: Thank you.

10 MS. CAMPBELL: Excuse me. What was that

11 answer?

12 THE WITNESS: Yes.

13 Q (By Ms. Felos) You have provided an

14 affidavit for this proceeding, I believe, and I

15 believe it's also in evidence, Your Honor. It has

16 already been admitted into evidence previously.

17 In that affidavit, you make the statement that

18 Mrs. Schiavo is in a terminal condition. What do

19 you mean by that?

20 A She has an irreversible medical

21 condition for which there is no treatment or cure

22 and which, from which she will die if she does not

23 continue to receive supportive measures,

24 specifically the feeding tube.

25 Q Let's talk a little bit about persistent

 

128

1 vegetative state. Now the Florida Statutes sets

2 forth the definition that you have reviewed and we

3 have mentioned here in court today. Are there any

4 other guidelines that you consider when you are

5 determining whether or not a patient is in a

6 persistent vegetative state?

7 A The American Academy of Neurology has a

8 physician paper. The American Academy of

9 Neurology is an authoritative body that has

10 positions on various topics related to the

11 specialty of neurology, and their paper outlines

12 criteria that permit this diagnosis which are

13 similar to those in the Florida Statute.

14 They add the qualifier of time and they

15 basically say that there needs to be three months

16 pass between the initial insult, whatever it might

17 be, and being able to make this diagnosis as

18 permanent or persistant [sic]. They have other aspects

19 that they propose that you should find. One is

20 the presence of sleep/wake cycles.

21 Virtually all patients who have severe

22 brain injuries that initially result in coma and

23 subsequently result in a persistent vegetative

24 state will at some point pass from an appearance

25 of being in a comma or a sleep to an appearance of

 

129

1 having cycles of apparent wakefulness and apparent

2 sleep. They also emphasize repeated examination.

3 The rest of the criteria, more or less,

4 amounts to the same things that are set forth in

5 the statute regarding the absence of cognitive

6 behavior, voluntary action, and an inability to

7 communicate or interact in some way that would

8 imply awareness.

9 Q Thank you. So if I understand this

10 correctly then, the guidelines that you are using

11 to determine whether a patient is in a persistent

12 vegetative state also includes what we would say

13 more definitive or stringent criteria than even

14 the Florida Statute does, one of which would be a

15 time period that the patient would have had to

16 have been in this state, which would be a period

17 of three months, and also a description of sleep/

18 wake cycles which would differentiate between what

19 might be a comma versus a vegetative state. Would

20 that be a fair description?

21 A I would agree. I think the academy

22 guidelines are more stringent. I think the state

23 statute guidelines, lacking a time criteria, you

24 could have a problem if you evaluated someone at

25 one week and used those criteria.

 

130

1 Thank you. You know, we hear about a

2 patient -- I think there was something in the news

3 somewhere out West where a patient was supposedly

4 in a comma and woke up and was perfectly normal.

5 Obviously, that is not an evidentiary thing.

6 Nobody has taken that beyond a newspaper article,

7 but how would you explain something like that or

8 can you?

9 A Well, I can think of a couple possible

10 explanations. The first is a miracle, which is by

11 definition, not something I or anybody else can

12 explain. It's a devine [sic] act. I don't rule that

13 out, but that is more or less what that would

14 require, if that were to in fact happen. Unless

15 in fact that patient was not in a comma because of

16 structural brain damage.

17 There are people who appear to be in

18 vegetative states or comatose type states that

19 perhaps are catatonic, which is a psychiatric

20 condition. There are case reports in the medical

21 literature where people have been in prolonged

22 comas and regained some level of function. I have

23 never seen that. I do not know from personal

24 experience that that's possible, so short of a

25 miracle or not having severe structural brain

 

131

1 damage.

2 Q Thank you. So what is the probability

3 that Theresa Schiavo could become conscious again?

4 A Zero.

5 Q Are there medical tests that support

6 your opinion other than clinical examination and

7 diagnosis?

8 A I think her CAT scan is extremely

9 telling in that regard because it shows severe

10 structural brain damage. And I might say that

11 consciousness, which can be defined in various

12 ways, can most simply be put as an awareness of

13 self or environment. We believe it requires a

14 structural integrity of the brain. The higher

15 brain. What we call the cerebral cortex. That

16 part of the brain that is different in man than in

17 lower animals. That part of the brain is a very

18 complex network, integrated network of functions.

19 When you have overwhelming, severe brain

20 damage destroying large portions of the brain and

21 connections between different areas of the brain,

22 you are no longer capable of having consciousness

23 defined as awareness of self and environment.

24 That does not mean that you are brain dead. It

25 does not mean that reflex activity that is

 

132

1 generated in the lower brain areas will be

2 absent. In fact, it usually is present.

3 One of the phenomena that exists is a

4 phenomena called release phenomena and that is

5 part of what the higher brain -- the cerebral

6 cortex, the cerebral hemisphere -- does is to

7 supress [sic] primitive reflex behavior.

8 A good example is that a baby does not

9 have to be taught or does not have to be aware or

10 think about anything in order to suck. If you put

11 a bottle or nipple in a baby's mouth, it will suck

12 unless there is something wrong with it. That is

13 a primitive reflex. As you get older and your

14 cerebral hemispheres develop and in fact make

15 connections down, you suppress that. So in a

16 normal adult, you will not see that behavior. The

17 sucking reflex disappears.

18 There are a number of reflexes like

19 that. If you put your hand or fingers in a baby's

20 hand, the baby will reflexively grab your hand.

21 The baby is not thinking about it. It does not

22 mean anything to the baby. I'm talking about a

23 1-day-old baby. As time goes by, the cerebral

24 cortex developes [sic]. A process called myelination

25 ensues and this reflex behavior becomes inhibited.

 

133

1 So in normal adults, you will not see,

2 if you put your fingers if a patient's hand and

3 the brain is normal, they will not grab your hand

4 reflexively. In fact, when you see that sort of

5 thing, when you see a suck reflex come back or a

6 grasp reflex, or any of a number of other

7 reflexes, what you can know is there is brain

8 damage here because the cortex, which is supposed

9 to suppress this reflex, is not doing it.

10 Q I see. You mention the CAT scan and how

11 you reviewed Theresa Schiavo's CAT scan. Let me

12 show you what's been -- we have marked this as

13 Petitioner's Exhibit Number Four for

14 identification, and I'll ask you if you recognize

15 it?

16 A Yes. This is the CAT scan of Theresa

17 Schiavo dated May 9, 1996 done at Northside

18 Hospital.

19 MS. FELOS: Thank you. Ms. Campbell, I

20 don't have copies of this. Your Honor, if I might

21 offer this into evidence and we will use it.

22 THE COURT: Is there an objection?

23 MS. CAMPBELL: No.

24 THE COURT: Now your series of

25 affidavits was admitted as Exhibit Number Four.

 

134

1 Do you want me to remark this as five?

2 MS. FELOS: As Exhibit Number Five.

3 Thank you, judge.

4 (THEREUPON, PETITIONER'S EXHIBIT 5 WAS

5 RECEIVED IN EVIDENCE.)

6 THE COURT: This goes in here, so I can

7 mark the outside?

8 MS. FELOS: Yes. I put stickers on

9 both, so as not to get confused.

10 Q (By Ms. Felos) Dr. Barnhill, we have

11 some audiovisual, attempt at least to look at this

12 under, with the use of this audiovisual

13 equipment. So I will ask, if you would like to

14 come down here and take a look at this. Begin at

15 least to look at this. And if you could explain a

16 little bit about this and then -- actually, judge,

17 we probably ought to also offer this.

18 THE COURT: Can you see?

19 MS. CAMPBELL: Yes.

20 MS. FELOS: Judge, we also have another

21 CAT scan. This CAT scan is Dr. Barnhill's CAT

22 scan.

23 Q (By Ms. Felos) Dr. Barnhill, I'll show

24 you what is marked as Petitioner's Exhibit Number

25 Six and this is A, B, and C, and ask you if you

 

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1 recognize it.

2 A That is my CAT scan, CAT scan of my

3 brain, done in March of 1988. It's presumably

4 normal.

5 MS. FELOS: I'll show it to opposing

6 counsel.

7 MS. CAMPBELL: Thank you.

8 MS. FELOS: Do you have the envelope?

9 THE COURT: Is there an objection to

10 coming in as Petitioner's Six?

11 MS. CAMPBELL: No, Your Honor.

12 MS. FELOS: I marked them A, B, and C to

13 try to make sense out of them.

14 THE COURT: Since the reporter is not

15 doing this with a camera, I am assuming the one on

16 the left, is that yours?

17 THE WITNESS: This one on my left -- on

18 your left is the patient, Ms. Schiavo.

19 THE COURT: The one on the right is you?

20 THE WITNESS: The one on the right is

21 me.

22 THE COURT: So let us, when we are -

23 referencing one or the other, let's say left or

24 right and that way the transcript will pick up

25 exactly what- you----are- talking about.

 

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1 THE WITNESS: Yes sir.

2 THE COURT: Thank you.

3 (THEREUPON, PETITIONER'S EXHIBIT 6 WAS

4 RECEIVED IN EVIDENCE.)

5 Q (By Ms. Felos) Dr. Barnhill, we have

6 two screens set up here. The one on the left is

7 the CAT scan of Theresa Schiavo; is that correct?

8 A Yes.

9 Q That was done in May of 1996?

10 A Right. ' 96.

11 Q The one on the right is a CAT scan of

12 your brain and you stated that you believe that is

13 a CAT scan of a normal brain?

14 A Yes.

15 Q I also note here, and it is a little

16 difficult to see, so it may be helpful if you can

17 point out the areas that don't show up extremely

18 well on the screen.

19 A Can I just --

20 Q Please. If you would.

21 A What I'm trying to show is my normal CAT

22 scan which is just, for people that are not used

23 to looking at these, what you would expect to

24 see. The way these images are taken is a machine,

25 a computer, basically takes slices through the

 

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1 head which are as if you were to cut the head, say

2 front to back, look inside, and then take a series

3 of slices up and down.

4 So on my CAT scan, this one is higher

5 than this one, and this is only part of the study

6 of mine. There is three separate pieces of film

7 that go from above to below. On the patient, the

8 one on the left, all of the images are on the same

9 piece of film, but the same principle applies.

10 I'm trying to communicate that you have to look at

11 the same comparable slice to get some idea what

12 structures you are looking at.

13 This one in the center, right here, of

14 mine on the right shows basically a white circle,

15 which is my skull. In the very center of this is

16 a black, almost looks like a butterfly. Those are

17 called the ventricles. Those are normal fluid

18 filled spaces inside the brain. There is a little

19 white dot in the middle, which is a little calcium

20 deposit in my pineal gland. That occurs in normal

21 people. It serves as a reference, a landmark, so

 you kind of know where you are. It should be in

23 the middle. It should be right about there.

24 What is notable about this normal is

25 that these, this little butterfly area, is small.

 

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1 It does not take up very much of this space inside

2 my skull. And the rest of the inside of my skull

3 is filled with tissue, which is brain.

4 This is an old CAT scan. We have better

5 ones now, but even in an old CAT scan you can

6 appreciate that there is a lot of tissue between

7 the butterfly and the edge of the skull. So there

8 is a lot of brain tissue in there, which is the

9 way it should be.

10 I'm going to pick a comparable level, if

11 I can find her pineal gland. I'm looking at the

12 patient's scan on the left. Her pineal gland was

13 not calcified, but roughly on the same level, I'm

14 now pointing at on the lower left of this screen

15 you can again see a butterfly, but it is a huge

16 butterfly. What that is, the ventricles, which

17 are these normal fluid filled spaces, have become

18 very large. And you see next to the butterfly,

19 you see some kind of grayish white stuff. Then

20 you see a lot black on either side. That black

21 area is spinal fluid where there used to be brain.

22 The reason that the butterfly, the

23 ventricle, is so large and there is so much black

24 stuff on the edges underneath the surface of the

25 skull is that area used to be occupied by brain

 

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1 and no longer is. It is now occupied by spinal

2 fluid because the brain tissue died at the time of

3 the cardiac arrest and lack of oxygen that

4 occurred at that time back in 1990.

5 There is very little inside this skull

6 other than spinal fluid. There is spinal fluid in

7 the center on the ventricles. There is spinal

8 fluid on the edges where the cortex, where the

9 brain matter has been damaged, and there are sort

10 of ribbons of brain tissue between there. That

11 brain tissue that's in there is undoubtedly

12 scarred and damaged and does not work, based on

13 the clinical examination; based on the presence,

14 for example, of these release reflexes is not

15 working normal.

16 In fact, in my opinion, you could not

17 have this scan, this appearance of a scan, and

18 have anything other than a persistent vegetative

19 state. Now you don't make that diagnosis on the

20 scan alone. You make it in conjunction with the

21 history and the physical findings and you have to

22 put all three together. This scan supports the

23 clinical findings of a patient who has only reflex

24 behavior and no awareness, therefore, no

25 consciousness.

 

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1 Q Thank you. I am having a difficult time

2 seeing the ventricles in this one here. Can we

3 just switch this? If I can't see it, I doubt the

4 judge can.

5 A The projector on the left now has my

6 brain, which is a better projector, I guess. One

7 of the reasons you have trouble seeing it is

8 because there is not very much of the black in the

9 center, the butterfly, and that's the way it

10 should be.

11 Q Maybe you can outline what the normal

12 brain would look like with respect to the

13 ventricles.

14 A These little areas here. Then on the

15 sides, there would be little tiny extensions. At

16 a higher level, you might get this level, you can

17 see that there is a pattern where there is fluid

18 in here. That is comparable to -- the patient's

19 scan, angled the way the cuts were taken, was

20 different, so I don't have exactly a comparable

21 one, but I think you can see that this one is

22 close.

23 Q So this is approximately the same angle

24 as we see in --

25 A It's a different angle, but it's about

 

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1 the same level. The angle would be if you cut

2 this way versus this way, you would get different

3 things. But there is a tremendous -- I mean, my

4 ventricles are 10 percent the size of her

5 ventricles.

6 Q You are saying that the significance of

7 that -- say that again.

8 A My ventricles are about a tenth of the

9 size of hers.

10 Q So the ventricles of the normal brain

11 are approximately a tenth of the size of the

12 ventricles in this CAT scan, which is Theresa

13 Schiavo's?

14 A I think that would be a rough estimate.

15 Yes.

16 Q And the significance of that is the

17 ventricles are filled with fluid or the area where

18 the ventricles used to occupy? Could you explain

19 that?

20 A The significance of it is that before

21 what happened to her, there was brain tissue

22 there. The brain tissue died. Nature will not

23 permit a vacuum in that area where brain used to

24 be and it died and is now filled up with spinal

2S fluid.

 

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1 Q The result of that filling up with

2 spinal fluid is, the result of that in the

3 clinical examination of the patient, is what?

4 A It's not really a result. This is the

5 effect. The effect of severe brain damage is that

6 spinal fluid has accumulated and made these

7 ventricles so large. The significance of having

8 spinal fluid in there is simply that is the

9 physiological response. When you have a space, it

10 has to be filled with something.

11 The significance of showing this CAT

12 scan patient's versus mine is there is almost no

13 brain tissue in here. In her's. What is in the

14 skull, there is tissue inside the skull, and there

15 are content tissues. The contents in her skull

16 are mostly spinal fluid.

17 Q What did you say about scar tissue

18 again?

19 A What is known from survivors, well, from

20 autopsy cases of people who have had cardiac

21 arrests and survived for a period of time and then

22 died, if you look at the residual brain tissue

23 that's inside, what you basically see are a few

24 scattered areas and a few nerve cells amidst

25 fields of scar tissue. The nerve cells, some may

 

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1 be there, but they are trapped in scar. They

2 can't talk to their neighbors. They can't

3 communicate with other parts of the brain, which

4 is part of this immigration process that is

5 necessary, it is believed, to generate

0 consciousness.

7 Q So in other words, what cells are there,

8 this is what you meant by connectedness? You

9 mentioned the term connected. Connected to what?

10 It sounds like that's what you are explaining.

11 A They are disconnected. There are cells

12 in there, I have no doubt, but I think the cells

13 in there are not connected to each other in a way

14 they can integrate data, which is what the brain

15 does to generate consciousness.

16 Q All right. Is there anything else you

17 want to show us with respect to this, the

18 comparison of these CAT scans, that would be

19 helpful?

20 A I would answer questions.

21 Q All right. Dr. Barnhill, these tests on

22 Theresa Schiavo were done about 3-and-a-half, 4

23 years ago. Do you think it would be necessary to

24 have them done again? To review them again?

25 A NO.

 

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1 Q Why do you say that?

2 A They can't get better. This is

3 irreversible. It is known that this type of

4 injury never gets better. You really would not

5 learn anything by doing these scans. There might

6 be circumstances wherein a patient like this, you

7 would want to do another scan if they fell and hit

8 their head and you would now want to find out if

9 bleeding occurred in there.

10 But there really would be no, on a

11 routine, assuming nothing like that happened, on a

12 routine basis there would be nothing you would

13 learn.

14 Q So brain tissue does not regenerate?

15 A Not when it's damaged to this degree.

16 Q Now in your affidavit of May 1st you

17 stated that Theresa Schiavo's condition is

18 terminal. You examined her on, I believe the 19th

19 of January. Has your opinion regarding her

20 terminal condition changed?

21 A No. It has not.

22 Q Now how did you arrive at your opinion?

23 Again, I might have asked you this before, but how

24 did you arrive at your opinion that she's

25 terminal?

 

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1 She has a medical condition arising from

2 illness or injury which is irreversible and will

3 lead to her death. Treatment is not contingent

4 and the only treatment being provided is, I'm not

5 sure it's the only treatment, but the life

6 sustaining treatment being provided here is a

7 feeding tube.

8 Q So but for the feeding tube, Theresa

9 Schiavo would die?

10 A Yes.

11 Q Is there any treatment whatsoever,

12 whether it be medical, surgical, anything that can

13 reverse the brain damage that Theresa has

14 sustained?

15 A No.

16 Q Is there anything that would allow her

17 to be not in a vegetative, persistent vegetative

18 state or terminal?

19 A I understand they tried some

20 experimental stimulator that they put in there a

21 couple of years afterwards. I can understand that

22 is a grasping at straws thing and that did not

23 work. There is nothing known to science that will

24 help this.

25 Q Thank you. Now, you have a considerable

 

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1 amount of experience with removal of feeding tubes

2 in vegetative or comatose patients; don't you?

3 A Probably more with not putting them in

4 in the first place, but also some removing them.

5 Q Can you tell us a little bit about

6 this? Your experience with respect to this?

7 A During the course of my practice as a

8 general neurologist in a community hospital, I

9 probably see several times a month, at least in

10 the winter when it is really busy, patients who

11 have severe strokes; cerebral hemorrhages;

12 ruptured aneurysms; sometimes head injuries;

13 sometimes they have Alzheimer's disease and then

14 have some other thing happen to them and they are

15 in a position where they are unable to swallow.

16 They are unable to maintain, be maintained without

17 resorting to artificial nutrition and hydration.

18 So very commonly, once a week at least,

19 I'm in a situation where that decision comes up.

20 What we basically go on is the guideline from the

21 family hopefully conveying to us what the patient

22 would want under those circumstances. So the

23 decision that is discussed is whether or not it

24 would be advisable to sustain the patient with a

25 feeding tube.

 

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1 And this is in the acute phase, but you

2 can tell in the acute phase largely based on the

3 clinical history, what happens in the first few

4 days, and what the scan shows that the outcome is

5 likely to be a persistent vegetative state.

6 Q With respect to, go into what happens

7 when the feeding tube, say, is removed or

8 artificial feeding is not induced and the patient

9 is dying. Do you have some experience with that

10 dying process?

11 A I do.

12 Q How does it happen?

13 A I used to see this more. Current

14 restrictions on being in a hospital, and this

15 happens mostly at nursing homes now. Patients are

16 not allowed to die in hospitals. Not considered

17 sick enough. But the ones I have been involved

18 with, where the patient was under my direct care

19 and supervision during the hospitalization, and

20 there have been several, the usual scenario is the

21 patient is either in a comma or a situation where

22 they are starting to become sort of-this

23 sleep/wake cycle return. Some periods of apparent

24 alertness, or arousal, or wakefulness but without

25 evidence of awareness_

 

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1 Basically it is a process that takes a

2 week or two weeks sometimes. My observation has

3 been that the patient just sort of slips away.

4 Just sort of eases out. There has not, I have

5 never seen descriptions of an agony type of a

6 process. What tends to happen physiologically is

7 that the dehydration, lack of water, produces a

8 concentration of sodium, which as that goes up,

9 and also other chemicals in the blood, the patient

10 becomes more and more sleepy or unconscious. If

11 they are unconscious already, it's kind of hard to

12 tell that. If there were brief periods of

13 apparent wakefulness, those become less. Go away.

14 Ultimately, in most cases probably what

15 happens is, the potassium level in the blood goes

16 high enough that the heart stops. The heart will

17 stop in response to a high a potassium. I

18 hesitate to say it is a peaceful death, but I will

19 say that it is pretty unremarkable.

20 Q All right. Thank you. Now you have

21 reviewed the records of the nursing home. You

22 have your opinion, and your opinion is that

23 Theresa Schiavo has a complete lack of cognition.

24 And have you found that opinion is consistent with

25 other neurologists' opinions that you have

 

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1 reviewed, if you have?

2 A I have found that. On the chart this

3 last visit last week that I made, there was an

4 assessment by Dr. Karp, who is a neurologist, who

5 essentially reported the same thing. There was

6 also another neurologist, Dr. DeSousa, who had

7 seen her, I believe in 1 96, who concluded the same

8 thing.

9 From a documentation standpoint, the

10 chart lists among diagnoses chronic vegetative

11 state. That is basically what is all over the

12 chart from the medical providers.

13 Q Thank you. You said you also reviewed

14 the EEG?

15 A Yes. I did.

16 Q And those findings were consistent with

17 your diagnosis? Anything remarkable there?

18 A The EEG, let me just say, is a

19 sensitive, but not specific test. What it

20 measures is electrical activity originating within

21 the first few centimeters underneath the skull.

22 This EEG is very abnormal. The EEG shows low

23 amplitude or small waves that are very slow. This

24 is the kind of pattern you would expect to see in

25 severe brain damage.

 

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1 The EEG was probably done, and was

2 useful primarily, in that it did not show seizure

3 activity. Seizure activity is something you would

4 want to put the patient on medication for. Also,

5 if someone is having seizure activity, on the EEG

6 you can’t really judge the consciousness of that

7 patient because the seizure activity itself may be

8 the cause of lack of awareness or lack of

9 consciousness.

10 Q And you did not find that here on this

11 EEG?

12 A No. There was no seizure.

13 Q Low amplitude and slow waves --

14 A Right.

15 Q Which is consistent with the brain

16 damage that you found on the CAT scan and clinical

17 examination; is that correct?

18 A Yes.

19 Q Now there have been, through the

20 depositions actually in this case and some of the

21 other things that have been already mentioned

22 here, that Theresa Schiavo moves her head, arms,

23 and legs. How would you equate that, that kind of

24 movement, with the diagnosis you made here in your

25 opinion?

 

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1 A She has reflex behaviors. Reflex

2 actions that imply her spinal cord and lower brain

3 stem are intact. Breathing is a good example.

4 She breathes. If she had damage to her brain

5 stem, lower brain stem, she would not breathe.

6 Breathing is a reflex activity. Normal people

7 have conscious control, to some extent, over it.

8 It happens whether or not you think about it.

9 Everything that I saw in my examination

10 of her, everything that I have seen described on

11 the chart, is consistent with reflex activity.

12 Activity that occurs without awareness of it

13 occurring.

14 Q I remember Mike Schiavo mentioned that

15 sometimes Theresa moans or has a sound like

16 moaning. How would you rectify that? How would

17 that fit with your diagnosis?

18 A Reflex activity. The generators for

19 moaning basically are the vocal cords and upper

20 airway. Those structures are innervated through

21 the lower brain stem. Moaning is a manifestation

22 of the fact that those structures are intact.

23 That is all. It does not mean anything else.

24 Q What about things like shifts in facial

25 expressions? You can call them whatever you

 

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1 want. Smiling. I don't know that you have to

2 call it that, but shifts in movement of the face?

3 A Same thing. One of the tests I do on a

4 comatose patient to assess structural integrity of

5 the brain stem is I will inflict pain to see if

6 there is movement of the facial muscles. It is

7 called a grimace response. That when a patient is

8 in a comma and they are clearly unconscious by

9 anybody's criteria, yet they move their face in

10 response to stimulation.

11 Q What is that?

12 A It is a reflex. Just as if I tap on the

13 knee and the leg moves. If you apply a stimulus,

14 then you will get some sort of response. The way

15 reflexes work is the stimulus is conveyed into

16 part of the brain processed at, I'll say in the

17 spinal cord or brain stem, and it generates a

18 response by another nerve. All of that happens

19 below the level of awareness.

20 Q What about response to sound? Someone

21 might say that Theresa may turn her head. Is

22 there a reflex with respect to, with respect to

23 sound?

24 A There is.

25 Q Tell us about that.

 

153

1 A It is called orientation reflex. Again,

2 sound, whether it be a human voice or whatever,

3 the origin of the sound is transduced into the

4 brain stem via the eardrum. The auditory nerve

5 into the brain stem where there is processing.

6 Depending on the nature of the sound, various

7 pathways go up or down to trigger various

8 reflexes.

9 Everybody here undoubtedly, at some

10 point or another, has been startled by a loud

11 sound. You are aware after you were startled and

12 you jerked, but you were not aware of it at the

13 time you were startled. The awareness comes on

14 afterwards. So the point being is a reflex can be

15 triggered by sound and you have no awareness of

16 that happening until it has happened.

17 Q Did you find that in Theresa Schiavo?

18 A She did startle. So she has in fact

19 sound processing circuitry in her brain stem.

20 That was an important thing, too, when you examine

21 someone and you go in and talk to them to make

22 sure they are not deaf.

23 So that is one of the first things I do

24 when I examine somebody is make sure that the

25 hearing mechanism works. And the way to do that

 

154

1 is look for a startle reflex.

2 Q I see. So that is called a startle

3 reflex?

4 A Right.

5 Q What about eyes? Seeing? Can Theresa

6 Schiavo see?

7 A I have got two different results on

8 that. I don't think that she sees with

9 comprehension. I think she has intact reflexes.

10 The pupils will react. When I saw her last week,

11 she no longer was blinking to threat, which means

12 you give a visual threat. What I do is I flick my

13 fingers in front of the patient's eye. Look for a

14 blink.

15 She did do that when I saw her the first

16 time. I am not sure what it means. It's probably

17 not good, in terms of level of function, to not

18 blink to threat as compared to blinking to threat,

19 but it really does not make much difference. If

20 she blinks to threat, is it again a reflex

21 activity which is processed.

22 The anatomy is pretty well worked out.

23 It is processed well, well below the level of

24 brain structures not to be necessary for

25 consciousness.

 

155

1 Q So there may be further deterioration

2 that has occurred in the last few years and would

3 that be in the brain stem or is that just

4 insignificant?

5 A I think it is probably more incidental

6 and not really significant to me.

7 Q So is Theresa Schiavo blind in that

8 case?

9 A Well, if I went back three times over

10 the course of a week, and maybe for some reason I

11 got a blink to threat one time and not another,

12 but I could convince myself there was a blink to

13 threat, is she blind? Well, yes and no. I will

14 give you an example. There is a known syndrome

15 where people have strokes which involve both

16 occipital lobes where visual processing occurs.

17 They can see, but they are blind.

18 Everything works, but once the

19 information goes back there -- and she has the

20 same kind of damage -- it can't be processed. But

21 there are people who have strictly that. Who can

22 walk around things without seeing them. If you

23 ask them what they see, they don't see anything

24 but they walk around the post. It's in the brain

25 stem.

 

156

1 Are they blind in the sense they can't

2 tell you anything? Yes. Can they act in the

3 environment purposefully? Are they blind in that

4 sense? No. She is not able to process any visual

5 information, based on lack of any other evidence

6 that she can and based on the appearance of the

7 CAT scan, except at a reflex level.

8 Q Could she follow something with her

9 eyes?

10 A She did not.

11 Q Did not?

12 A Right.

13 Q Now what about something like laughing

14 or crying? Is there anything that might explain

15 something like that?

16 A Yes. There is. It is again -- and I

17 sound like a broken record -- reflex behavior.

18 There are many well documented cases of

19 disassociation between emotional behavior and

20 emotional feeling in people with brain damage. It

21 kind of goes like this. There are states called

22 pathologic laughter or crying, which generally are

23 seen in people who had disconnections between

24 parts of the brain that process consciously and

25 parts of the brain that generate activities such

 

157

1 as laughing or crying.

2 Those activities are generated again at

3 low brain stem or upper brain stem levels. So a

4 person in this state who might be fully conscious

5 and can talk to you might cry or laugh and you ask

6 them if -- are you sad? Are you happy? Do you

7 feel the way you are behaving? And they will say

8 no. I'm crying, but I don't feel sad. I feel

9 absolutely fine.

10 I have seen it. This is unquestionably

11 something that happens. The implication in this

12 case is any activity that is seen in this case has

13 to be disconnected from any feeling based on the

14 appearance of all the other exams, the presence of

15 the release phenomena, the appearance of the CAT

16 scan, and such severe damage.

17 Q Now if it were reported that Theresa

18 Schiavo changed her facial expression in response

19 to say a comment by someone about a TV program or

20 something like that, let's say a relative, someone

21 in her family, what would you -- how would you

22 respond to something like that?

23 A Well --

24 Q In your experience with many of these

25 cases.

 

158

1 A I think my experience has been in many

2 cases that people tend to see or interpret things

3 based on their own expectations and beliefs and

4 wants. If you want to see it, you are more likely

5 to see it. I don't think this is conscious. I

6 think it is perhaps some sort of defense mechanism

7 to help deal with the reality of the situation.

8 I see this all the time in the Intensive

9 Care Unit when someone has an acute massive brain

10 injury and the spouse, the children, somebody will

11 say you know, they mumbled. Or I said their name

12 and they answered. I'll do an exam on that

13 patient and that patient is in a deep comma.

14 Or they will misinterpret things. Such

15 as, I put my hand in his hand and he squeezed my

16 hand because I told him I'm here. Well, that is a

17 release reflex. That is a phenomena that would

18 occur no matter what. You could put a stick in

19 the hand, anybody's hand, and that will happen.

20 So it is not -- I think it is a perceptual

21 phenomena. I don't think that is what's

22 happening. I think it's related to the perception

23 of the viewer.

24 Q So you would say that Theresa Schiavo is

25 not aware of the presence of others, nor does she

 

159

1 act in any voluntary way, or have cognitive

2 behavior? Would that be a correct statement?

3 A Yes.

4 MS. FELOS: I have no further questions

5 at this time, Your Honor.

6 THE COURT: Ms. Campbell.

7 CROSS-EXAMINATION

8 BY MS. CAMPBELL:

9 Q Good afternoon, Dr. Barnhill. My name

10 is Pam Campbell. I am an attorney representing

11 Mr. And Mrs. Schindler in this case. Have you had

12 the opportunity to meet Mr. and Mrs. Schindler,

13 the parents of Theresa Schiavo?

14 A I have not.

15 Q You were talking about the general

16 statistics of the patients that you primarily deal

17 with. How old are those patients generally?

18 A The average patient is probably in their

19 seventies, but in terms of this type of thing, I

20 see patients anywhere probably from about 20 to

21 100.

22 Q You said that you considered the wishes

23 that you believed to be the patient's. What has

24 been explained to you would be the wishes of

25 Theresa Schiavo?

 

160

1 A I don't think that has been explained to

2 me at all.

3 Q Are you familiar with what the parents

4 have expressed their wishes that they believe

5 Theresa's wishes are?

6 A I don't think explicitly, I conclude,

7 since we are having this trial, that they probably

8 want the tube continued.

9 Q But you have not been explained that one

10 way or the other?

11 A Not explicitly.

12 Q When you say that you reviewed the

13 different records, the chart of Theresa Schiavo,

14 did you review the different nursing records?

15 Notes, specifically?

16 A I always look at nursing notes. That is

17 your main source of information. Yes.

18 Q How far back would you have gone in

19 reviewing the nursing notes?

20 A I'm not sure if I wrote it down. When

21 the patient has been in a facility for many years,

22 they tend to thin these out and put them somewhere

23 else and there is a certain current amount. I did

24 review a minimal data set dated February 11,

25 1998. I can't tell you how far back. I'm

 

161

1 guessing those notes go back six months to a year,

2 if that.

3 Q On the note of February 11, 1998, were

4 you referring to the DNR order? That specific

5 notation in the note?

6 A I don't have that written down. I think

7 what I noted was the MDS, which is a form

8 completed by the nursing staff that sort of

9 outlines the functional status of the patient.

10 That was, I believe dated February 11, 1998, that

11 she was described as comatose and totally

12 dependent.

13 Q Have you ever seen Theresa Schiavo with

14 her mother, Mrs. Schindler?

15 A No.

16 Q In reviewing some of the nursing notes,

17 if I can read a couple of them to you and get your

18 reaction. A nursing note dated February 26,

19 1997. Some staff believes that she --

20 MR. FELOS: Your Honor, if she is

21 referring to a specific document, I would like to

22 have a copy. I don't know if you intend to

23 introduce them into evidence. I know they are not

24 on your document list.

25 MS CAMPBELL: No. I do not intend to

 

162

1 admit them into evidence. These are records that

2 Mr. Felos provided to me. I am asking for his

3 reaction based on these notes.

4 MR. FELOS: Your Honor, if counsel is

5 going to read from the nursing notes and they are

6 not going into evidence, I would object on that

7 basis.

8 THE COURT: Well, I think an expert can

9 rely on matters that are not in evidence, but the

10 fact that he might rely on them does not make them

11 admissible. So we either need to have them

12 identified, marked, or -- you can't admit them on

13 cross, obviously. I don't think you can just read

14 from something and have them be admitted.

15 MR. FELOS: Thank you, Your Honor.

16 Q (By Ms. Campbell) If routinely in the

17 nursing notes it referred to the patient laughing,

18 for example in response to someone telling a joke,

19 how would you consider that with your previous

20 testimony?

21 A Well, again, laughter can occur as a

22 reflex activity. My belief would be, unless I saw

23 consistently with my own eyes that that was, that

24 the laughter occurred, but if in fact it occurred

25 in response to that stimulus that would imply a

 

163

1 degree of cortical integration, that I don't

2 believe this patient has.

3 If I can demonstrate that for myself, I

4 would not be able to say that she met the criteria

5 for persistent vegetative state. Would I accept

6 that observation from someone else? No. Because

7 there is so much other evidence and I have seen

8 for myself what this patient looks like. It has

9 to be borne in mind that there is reflex activity.

10 There are actually people in vegetative

11 states that are capable of intermittent what we

12 believe to be cortically brain based functions,

13 such as saying words. Higher brain based. How

14 can a person say a word being in a vegetative

15 state? The answer appears to be there is a little

16 island of cells that can do that. Trigger a

17 mechanism to say a word. Can that imply awareness

18 in the framework to imply awareness? The answer

19 is no. There is too much damage in that patient.

20 So, I mean, you are kind of asking me

21 what do I think if she laughs in response to a

22 joke, if that is true, she's apparently aware and

23 therefore conscious. Do I believe that is true?

24 No.

2S Q Did you tell Mrs. Schiavo a joke?

 

164

1 A I did not.

2 Q Did you talk to her in any meaningful

3 way? Calling out her name, asking for or seeking

4 any kind of response from her?

5 A I did.

6 Q Were her eyes open when you called her

7 name?

8 A Yes.

9 Q Did she appear to look at you?

10 A No.

11 Q If you heard testimony that a particular

12 person, her mother, came on a regular basis and

13 she would routinely laugh and/or cry in response

14 to the mother's voice, how would you square that

15 with your previous testimony?

16 A Again behavior, laughter behavior,

17 crying behavior, is observable behavior which I

18 believe is a reflex that is induced by a

19 stimulus. The stimulus might be the mother's

20 voice. It might not be. Exhibiting the behavior

21 does not imply there is awareness of the behavior

22 in a patient who is quadraplegic, whose arms are

23 drawn up, who is in a state of total inability to

24 communicate. Does not respond in any way to

25 directed questions. Can't hear anything.

 

165

1 It is inconsistent. It has to be a

2 reflex behavior. I do not believe that type of

3 behavior constitutes proof that there is

4 awareness, I guess is my response.

5 Q If you witnessed that as a pattern on a

6 regular basis, weekly basis, the same voices

7 providing the stimulus for the laughter, and add

8 to that relaxed, hand relaxes, what would your

9 reaction be to that?

10 A If I witnessed it. If there is some

11 kind of consciousness present.

12 Q Thank you. Now in your prior testimony

13 you talked about the definition of terminal which

14 the definition in the statute says under Chapter

15 765 paren 15. Terminal condition means a

16 condition caused by injury, disease, or illness

17 from which there is no reasonable probability of

18 recovery and which without treatment can be

19 expected to cause death. Are you defining without

20 treatment the removal of the feeding tube?

21 A Yes.

22 Q Are you aware of any other kind of

23 treatment that is being provided to Mrs. Schiavo

24 that would expect death or cause death to occur?

25 A The time I saw her last week she was on

 

166

1 some various medications, but these are more

2 comfort measures. They are not life sustaining

3 kind of measures. I think that, and I'm not

4 positive about this, that she has been on

5 antibiotics periodically for infections, and if

6 those treatments were stopped -- in other words,

7 if she got pneumonia and was not given

8 antibiotics, that would be life threatening.

9 Q Why do you consider feeding, the

10 artificial nutrition and hydration, treatment

11 instead of care and comport?

12 MR. FELOS: Your Honor, I object. That

13 is a legal matter determined by the Florida

14 Supreme Court to be medical treatment, therefore

15 the question is irrelevant.

16 THE COURT: Counsel?

17 MS. CAMPBELL: I believe he has

18 testified earlier about the guidelines from

19 his, The American -- I don't know the exact

20 name -- but the American guidelines he was

21 referring to previously that they were more

22 stringent than the Florida Statutes. I can reword

23 my question to say from his particular guidelines,

24 if there were any medical reason.

25 THE COURT: Well, the courts have

 

167

1 already ruled that the feeding tube is a medical

2 treatment. I'm not sure what his agreeing with

3 the court or disagreeing with the court would have

4 to do with deciding. How would it be relevant?

5 MS. CAMPBELL: Because he stated his

6 opinion as a medical physician. So if -- and

7 his -- in his statement of consulting physician he

8 has said that she is terminal, which in going over

9 the definition of terminal, it refers to what I

10 just said as far as without treatment.

11 THE COURT: In that treatment I'll

12 allow.

13 MS. CAMPBELL: Thank you.

14 Q (By Ms. Campbell) Dr. Barnhill, let me

15 rephrase the question. In your experience as a

16 physician, and referring back to the guidelines,

17 is it the belief of the American Board of

18 Psychiatry and Neurology that, and they are the

19 ones that issue the guidelines, are there

20 guidelines specifically pertaining to artificial

21 nutrition or hydration being considered care

22 and/or treatment or comfort?

23 A I think you are referring to the

24 American Academy of Neurology?

25 Q Yes.

 

168

1 A In this particular position paper I have

2 with me, here is what they say. I'll quote them.

3 Physicians and the family must determine

4 appropriate levels of treatment relative to the

5 administration or withdrawl [sic] of, number one,

6 medications. Number two, supplemental oxygen,

7 antibiotics. Three, complex organ sustaining

8 treatment such as dialysis. Four, administration

9 of blood products. Five, artificial hydration and

10 nutrition.

11 Once persistent vegetative state is

12 considered permanent, a "do not resuscitate" order

13 is appropriate. What they basically are saying is

14 it is a treatment and its provision or withholding

15 of is a decision that has to be made by the

16 physicians and family. I'm not sure I answered

17 your question.

18 Q So they combine feeding and nutrition,

19 hydration and nutrition, with all the other life

20 support type measures?

21 A Yes. They do.

22 Q Are you familiar with Dr. Hoshibushi

23 (phonetic) and his treatment of Theresa Schiavo?

24 A physician from the University of California in

25 San Francisco that implanted the electrodes?

 

169

1 A The only thing I know is that it was

2 done, or I can see on the scan there is a thing in

3 there, some kind of metal, that is presumably the

4 result of that procedure.

5 Q So you can see them on the CAT scan?

6 That was the next question.

7 A Yes.

8 Q The CAT scan that you reviewed was from

9 1996. Did you review prior CAT scans?

10 A I did not.

11 Q Doctor, are you aware of any prior CAT

12 scans?

13 A I remember reading in the records that

14 there had been, but I never saw them or I don't

15 think I saw reports either. It would not change

16 anything.

17 Q It would not change anything meaning

18 your opinion of how she is currently?

19 A It would not change anything in the way

20 she is currently.

21 Q Do you know one way or the other

22 whether the implants that were implanted into

23 Theresa Schiavo, whether they were beneficial one

24 way or the other from any tests or reports that

25 you reviewed in her medical records?

 

170

1 A There is nothing in the records, but I'm

2 not sure what the goal of that treatment was. But

3 I have seen her twice, and if the goal was to make

4 her in some way conscious, it did not work.

5 Q Would you consider Theresa Schiavo to be

6 brain dead?

7 A No.

8 Q Why not?

9 A Brain death is a medical/legal term,

10 more legal than medical, that implies irreversible

11 loss of brain function, including the brain stem.

12 And she has multiple brain stem functions intact.

13 Q You testified earlier regarding the

14 disconnect from the feeling versus the emotional

15 level in response to laughter. How would you know

16 for certain that there was a complete disconnect

17 of the feeling versus the emotional level, for

18 example, in laughter?

19 A I can't know for certain.

20 Q So it would be possible that she would

21 have some feeling level there if there was

22 demonstrated a pattern of repeated laughter of a

23 specific stimulus?

24 A It's possible.

25 MS. CAMPBELL: No further questions.

 

171

1 Thank you.

2 THE COURT: Redirect?

3 REDIRECT EXAMINATION

4 BY MS. FELOS:

5 Q Dr. Barnhill, tell us about the tests

6 that you performed in a clinical examination of

7 Theresa Schiavo and other patients who are in

8 persistent vegetative states.

9 A I can sort of go through what I did.

10 It's pretty much the same both times. First part,

11 you know, I go in the room. I look. I see before

12 me and make certain observations visually. The

13 patient was lying in bed. Head and eyes up to the

14 right. Head is extended back. Her limbs, her

15 upper limbs were in flexion. Contractures,

16 meaning they are drawn up against her chest and

17 her hands are pulled down. Her legs are stiff and

18 extended. Her feet are pushed, like the toes are

19 pushed down. That is a typical posture for

20 someone who has had a severe brain -- upper motor

21 neuron posture.

22 Q Say that again?

23 A Upper motor neuron posture. It is the

24 typical pattern of muscle tone that develops after

25 severe brain injury. Sometimes in spinal card

 

172

1 high spinal cord as well, but central nervous

2 system injury. Then I perceived this patient

3 appeared to be aware: Not aware. Alert, Awake:

4 Not aware. Eyes are open. Then I called her

5 name. No response. I then made a loud hand clap

6 to assure myself that hearing was intact. There

7 was a startle reflex.

8 Q What kind of startle reflex was it? A

9 blinking of the eye?

10 A I think a blink, and it might have been

11 a visible startle. I can't remember exactly. But

12 there was clearly, in my mind, a response to a

13 loud noise. I then tested to see if there was any

14 response to visual threat or tracking. I flicked

15 my fingers in front of the eyes to see if there

16 was anything there. Moved my hand around. I take

17 a penlight out of my pocket and move it around to

18 see if there was tracking. There was not. Her

19 eyes would move about seemingly at random. Those

20 are calling roving extra ocular movements.

21 Q Say that again?

22 A Roving extra ocular movements. People's

23 eyes just sort of roll around. I could not get

24 myself to -- upon asking or telling the patient

25 move your eyes to the right, left, up -- get

 

173

1 anything that was a response to that.

2 There was some moaning both times. I

3 think actually the first time I saw her she was

4 sitting up in her chair. I don't know what that

5 has to do with it, but I just flashed on that

6 visual image.

7 In response to my attempting to turn the

8 head out of this contractured position to the

9 right to see if I could get her eyes to move in a

10 certain way, that is all I got from there. She

11 had release phenomena. Release reflexes as I

12 talked about. She had a suck reflex. If you

13 put -- what I used was a cotton tip applicator

14 against her lips and they would purse out. She

15 would try to suck that.

16 She had a root reflex, which is the same

17 thing a baby will do if you stroke the check. It

18 orients as if seeking the nipple. She had no

19 reflexes to tapping on tendons. A manisfestation [sic]

20 of being contractured into this position for so

21 many years. I spent a lot of time throughout the

22 course of checking, say limb reflexes, talking to

23 her. Trying to get her to orient to me, respond

24 to me in some way. Stick out your tongue. Move

25 your eyes. Show me your teeth. Turn your head.

 

174

1 There was no response.

2 Q Did you try to put your -- you mentioned

3 before about putting your finger in her hand?

4 A I tried. Her hands are so tightly

5 contractured that to open them up, to do that

6 would be painful, if she can perceive pain. But I

7 can pretty well tell you that if you have seen

8 anybody with a stroke whose arms looked like that

9 and I tried to do it, it hurts. So I did not get

10 my fingers in there. Her hands were already

11 grasping.

12 Q A lot of what has been mentioned here

13 has to do with patterns of behavior. I think I

14 heard you say, well, if there is a specific

15 pattern of behavior in response to specific

16 stimuli, then you would consider there could be

17 consciousness. Let me read to you from a

18 deposition. This is a deposition taken of Mary

19 Schindler on August 12, 1999. Page 41, Line 8.

20 And this is a question about some sort of action

21 on behalf of Theresa. Her response is: Sometimes

22 she'll turn her head and look right at me.

23 Now here she says "sometimes", which

24 would indicate this is not a pattern of behavior.

25 Would her statement of "sometimes she'll turn her

 

175

1 head" be consistent with your current opinion and

2 diagnosis?

3 A Sure. Sure. She will turn her head

4 sometimes.

5 Q Now if Mary Schindler were to say she

6 looked right at me sometimes, would that be

7 consistent with your opinion?

8 Sure. The eyes move. The head moves.

9 At some point they are going to settle on some

10 particular place.

11 MS. FELOS: I have no further questions

12 THE COURT: Anything further?

13 MS. CAMPBELL: Nothing further.

14 THE COURT: Is this witness under

15 subpoena?

16 MS. FELOS: Yes.

17 THE COURT: Has he completed his

18 testimony or do we need to retain him?

19 MS. FELOS: I don't think we do.

20 MS. CAMPBELL: No.

21 THE COURT: Thank you very much, doctor.

22 You are released from your subpoena.

23

24

25

 

176

1  CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

   STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

2  PROBATE DIVISION

   CASE NO. 90-2908-GD3

3

4  IN RE: THE GUARDIANSHIP OF

   THERESA MARIE SCHIAVO,

5

   Incapacitated.

6

7  MICHAEL SCHIAVO, AS GUARDIAN OF THE

   PERSON OF THERESA MARIE SCHIAVO,

8

   Petitioner,

9  APPEAL

   vs.

10

   ROBERT SCHINDLER AND MARY SCHINDLER,

11

   Respondents.

12

13 BEFORE: GEORGE W. GREER

           Circuit Court Judge

14

   PLACE: Clearwater Courthouse

15 Clearwater, FL 33756

16 DATE: January 24, 2000

17 TIME: 3:00 p.m.

18 REPORTED BY: Beth Ann Erickson, RPR

   Court Reporter

19 Notary Public

20

   TRIAL

21

22

   ROBERT A. DEMPSTER & ASSOCIATES

23 501 South Fort Harrison

   Clearwater, Florida 33756

24 (813) 464-4858

   Volume II Pages 176-324

25

   copy

 

177

1  APPEARANCES:

   GEORGE J. FELOS, ESQUIRE

   CONSTANCE FELOS, ESQUIRE

   640 Douglas Avenue

   Dunedin, FL 34698

4

   Attorneys for Petitioner

5

   PAMELA CAMPBELL, ESQUIRE

6  The Alexander Building

   535 Central Avenue

7  Suite 403

   St. Petersburg, FL 33701

8

   Attorney for Respondents

9

10 INDEX

                                               Page

11

    WITNESS

12

    FATHER GERARD MURPHY

13      Direct Examination by Mr. Felos         178

        Voir Dire Examination by Ms. Campbell   185

14      Direct Examination Continued            187

        Cross-Examination by Ms. Campbell       203

15      Redirect Examination by Mr. Felos       218

        Recross-Examination by Ms. Campbell     223

16

    JOAN SCHIAVO

17      Direct Examination by Mr. Felos         224

        Cross-Examination by Ms. Campbell       237

i8      Redirect Examination by Mr. Felos       244

19  VINCENT GAMBONE, MD

        Direct Examination by Mr. Felos         246

20      Cross-Examination by Ms. Campbell       260

        Redirect Examination by Mr. Felos       275

21

    BEVERLY TYLER

22      Direct Examination by Mr. Fe-Los        281

        Cross-Examination by Ms. Campbell       307

23      Redirect Examination by Mr. Felos       319

24      Petitioner Rests                        323

25

 

178

1 PROCEEDINGS

2 MR. FELOS: Call Father Murphy.

3 THE BAILIFF: Stand here, raise your

4 right hand to take the oath.

5 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

6 THE COURT.)

7 DIRECT EXAMINATION

8 BY MR. FELOS:

9 Q State your full name, please.

10 A Gerard Murphy.

11 Q Father Murphy, are you an ordained

12 priest in any particular faith?

13 A Yes. Roman Catholic.

14 Q To what work are you assigned in the

15 church at this time?

16 A At present, I am the pastor of St. Ann's

17 Church, Ridge Manner, in Hernando County.

18 Q Can you tell us about St. Ann's parish?

19 A Very small. A country parish. About

20 400 families. Mostly elderly. People are sick.

21 On the edge of life.

22 Q Father Murphy, can you please tell us

23 your educational and clerical background?

24 A Well, I graduated from college, seminary

25 college. Then went to graduate school. Four

 

179

1 years of theology. Also graduated with six units

2 of clinical pastoral education, which is an

3 international movement of supervised pastors

4 ministry. Each unit was 400 hours of supervised

5 ministry in the health care setting. So I

6 achieved 2400 hours of intensive supervised

7 training.

8 Q What degree did you obtain in graduate

9 school?

10 A Masters of Divinity.

11 Q Your undergraduate degree was in?

12 A Bachelors of Philosophy.

13 Q Father Murphy, when were you ordained?

14 A 1979. May.

15 Q I'd like you to describe for us,

16 chronologically, your work in the church since

17 that time.

18 A Okay. The first eight years I was an

19 assistant pastor at Most Holy Name in Gulfport

20 Florida. From there I went for a year to Bayfront

21 Medical Center, actually St. Mary's in downtown

22 St. Pete, to be the Catholic chaplain at Bayfront

23 Medical Center. I went back to Most Holy Name for

24 a year-and-a-half, two years. Then I was employed

25 by Sarasota Memorial Hospital as a Catholic

 

180

1 chaplain for three years. Back to St. Petersburg

2 as Director of Pastoral Care at St. Anthony's.

3 And several more years as assistant pastor helping

4 out in parishes throughout the dioceses where

5 needed. And three years in my present assignment

6 as pastor.

7 Q Let's talk first about, it was Holy Name

8 parish in Gulfport?

9 A Yes.

10 Q You were there about eight years?

11 A Eight years.

12 Q Please describe the nature of your

13 clerical work there.

14 A Ninety percent of my parish work was at

15 the hospital. Palms of Pasadena is small, but

16 very active. Virtually all the census was

17 Catholic. Ninety percent of my time was there.

18 Q With your work at Palms of Pasadena

19 while at Most Holy Name parish, did you have the

20 opportunity to work with families and counsel

21 families who were faced with end of life care and

22 medical treatment decisions?

23 A Definitely.

24 Q Removal of life support decisions?

25 A Definitely.

 

181

1 Q I believe you mentioned that during that

2 period you were the chaplain at Bayfront Medical

3 Center?

4 A I was assigned to St. Mary's Catholic

5 church downtown, but I covered Bayfront for them.

6 Q Please describe your duties as chaplain

7 at Bayfront.

8 A Well, you know, certainly it's

9 administration of the sacrament, but a much larger

10 role than that today. Simply because there are so

11 many questions, moral questions. It is not as

12 easy to die as it used to be. So there are an

13 awful lot of questions that come up. It is a

14 matter of helping families work their way through

15 it.

16 Q How many families would you say you

17 counseled and worked with in that area when you

18 were chaplain at Bayfront?

19 A At Bayfront for that year, a hundred

20 probably.

21 Q And before at Most Holy Name parish, how

22 many?

23 A Hundreds.

24 Q I believe you mentioned that after,

25 after your service at Most Holy Name parish, you

 

182

1 were the Catholic chaplain at Sarasota Memorial

2 Hospital?

3 A Yes.

4 Q And how long?

5 A Just under three years.

6 Q Tell us about the nature of your duties

7 at Sarasota Memorial Hospital as chaplain.

8 A Same as at the previous hospital.

9 However, this time I was employed by the hospital,

10 so my time was exclusively theirs. At Sarasota, I

11 was co-chairman of the Violation Commission and

12 virtually all my work was in bioethical

13 consultations with families and physicians.

14 Q Please describe the workings of the

15 Bioethics Committee at Sarasota Hospital.

16 A A large group of people from all the

17 disciplines in the hospital. Social workers.

18 Physicians. Attorneys. Risk management.

19 Everyone who has any input into the hospital

20 system. And presenting from that large group was

21 a small group that made consultations. So if

22 there was a family that had a problem, a physician

23 that had a problem, or nurse, they had access to

24 the consultation.

25 They would call us, and then a

 

183

1 representative group of us would meet with them,

2 everyone, and try to resolve the situation.

3 Q Is it fair to say that the situations

4 where cases were presented to the Bioethics

5 Committee regarding removal of life support were

6 the tough cases?

7 A Sure. By all means.

8 Q After Sarasota Memorial, I believe you

9 mentioned you were the Director of Pastoral Care

10 at St. Anthony's Hospital?

11 A Yes.

12 Q Is that a religious -- does St.

13 Anthony's have a religious affiliation?

14 A It's run by Franciscan Sisters of

15 Albany.

16 Q Is that a Catholic hospital?

17 A Yes.

18 Q How about Sarasota Memorial?

19 A No. County.

20 Q Please tell us your duties as Director

21 of Pastoral Care at St. Anthony's

22 A It was more administration, although I

23 did keep my hands in ethics. I was the co-founder

24 of their first bioethics committee. It was just

25 starting. It was getting it off the ground,

 

184

1 rather than real well organized like Sarasota.

2 Q Father Murphy, is it possible for you to

3 tell us on how many occasions you have rendered

4 pastoral clinical care regarding the subject of

5 life care?

6 A Over the course of my priesthood?

7 Q Yes.

8 A I would say hundreds.

9 Q Father Murphy, have you done any

10 research or writing regarding the opinions of the

11 Catholic church as it concerns end of life care

12 and treatment issues? The religious and moral

13 implications of that?

14 A Yes. I do quite a bit of writing and

15 publishing. I have written a series of pamphlets.

16 I have published articles in clerical journals.

17 Mostly because of my desire to educate. I find

18 that most people have no idea what the Catholic

19 church teaches. Even Catholics. And I think that

20 is gives rise to grave misunderstandings and I

21 have real fears about that.

22 So I have taken to writing and public

23 speaking about it. We give talks around the

24 dioceses. I take that very seriously and I do

25 quite a bit of that.

 

185

1 Q You mentioned you had written a number

2 of pamphlets on this subject. Are they used and

3 distributed to any particular audiences or groups?

4 A Sure. Everywhere I can. I sent one,

5 two of them, to a priest in one of the magazines I

6 publish in frequently. He put a thing in his

7 column. So I was deluged all over the country,

8 but mostly in the State of Florida we distribute

9 them to parishes wherever we can. Hospitals.

10 Q Is the distribution of those pamphlets

11 authorized by the church authorities?

12 A Yes.

13 MR. FELOS: Your Honor, at this time we

14 offer Father Murphy as an expert in the area of

15 the Catholic church's position on end of life care

16 and treatment issues and clinical counseling on

17 end of life care and treatment issues.

18 THE COURT: Do you wish to voir dire?

19 MS. CAMPBELL: Yes. I do. Thank you.

20 VOIR DIRE EXAMINATION

21 BY MS. CAMPBELL:

22 Q Father Murphy, which diocese are you

23 with?

24 A I am secular as opposed to being a

25 Jesuit or Dominican or Franciscan, which follow

 

186

1 the rule of that particular saint. I was just

2 ordained to a diocese and obey a bishop.

3 Q You said you went to four years of

4 theology. Where was that?

5 A Seminary of St. Vincent De Paul. Boyton

6 Beach.

7 Q Do you have any education as a medical

8 ethicist?

9 A No. Not formal training.

10 Q Do you have any education as a moral

11 theologist [sic]?

12 A From my training, I mean seminary

13 training, sure. We take courses in that.

14 Q So that would be included in the four

15 years of theology?

16 A Yes, ma'am.

17 Are you considered a moral theologian?

18 A It depends in whose eyes. I'm the one

19 they call in the diocese of St. Petersburg when

20 they have questions.

21 Q Do you function in any official capacity

22 to the diocese?

23 A Yes. The diocese chaplain for the

24 Catholic Medical Association. The statewide

25 chaplain for the Catholic Medical Association. I

 

187

1 am a member of Dioceses and Task Force in assisted

2 suicide. Formerly certified as a national

3 chaplain. I let my membership lapse.

4 MS. CAMPBELL: I have no objection.

5 Thank you.

6 THE COURT: Thank you. Proceed,

7 Mr. Felos.

8 Q (By Mr. Felos) Father, in the Catholic

9 church, do papal teachings or pronouncements hold

10 primacy as compared to the teachings and

11 pronouncements of bishops or cardinals?

12 A Yes. The pope sets the tone.

13 Q Are there any papal pronouncements or

14 teachings in the area on use or removal of

15 artificial life support?

16 A In 1953, Pope Pius the IV met with a

17 group of physicians who considered those questions

18 in conference. Pius was almost prophetic in

19 foreseeing what would happen fifty -- forty years

20 later. The teaching that he taught was that

21 Catholics are mortally bound to respect life and

22 to care for life, but not at all costs.

23 He introduced the concept of extordinary [sic]

24 versus ordinary means. A Catholic is mortally

25 bound to take advantage of ordinary,

 

188

1 proportionate or disproportionate.

2 Q Has the phraseology proportionate or

3 disproportionate, as opposed to ordinary, been

4 explored more prevalent in the Catholic church as

5 of late?

6 A Yes. Sure. Because of the problem it

7 is not as easy to die as it used to be. Nature

8 would have taken care of a great many situations

9 30 or 40 years ago. My belief in the health care

10 system is that technology is a two-edged sword.

11 The wonderful technology meant to heal and save

12 people and get them back on the road can also

13 interfere with nature.

14 Q What factors does the Catholic church

15 take into consideration in determining whether a

16 treatment is an ordinary action as opposed to

17 extraordinary or proportionate as opposed to

18 disproportionate?

19 A It's not the procedure. Its the

20 perception of the patient. Is the procedure, is

21. it too emotionally draining? Is it too

22 psychologically repugnant? It is too expensive?

23 Does it offer no hope of treatment -- of recovery

24 or little or no hope? Based upon all those

25 factors, then you make your moral decision based

 

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1 upon those issues.

2 Q So as I understand it, the standard by

3 which those moral criteria are examined is the

4 subjective standard of the patient?

5 A Yes.

6 Q In some of the literature I've read,

7 I've come across the terms burdensome and

8 useless. That is, a Catholic is not required to

9 have a medical treatment if it is burdensome or

10 useless. How do those concepts fit in with the

11 ones with what you just mentioned?

12 A Maybe if I gave an example it might be

13 easier. You look like kind of a healthy guy. Say

14 you caught pneumonia this flu season. You go to

15 your doctor. He would prescribe a course of

16 antibiotics for you. You would be better soon and

17 back on the road.

18 But as a case I actually handled in

19 Bayfront, St. Petersburg, many years ago, a woman

20 in her late seventies was filled with cancer in

21 the bronchial tree. She was dying. She came down

22 with that pneumonia and the daughter insisted that

23 the mother be treated for that pneumonia. I said

24 why are you doing this? What do you hope to

25 accomplish?

 

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What you always have to do is weigh the

2 proportion. What do you hope to accomplish

3 against what it is going to take to get there. In

4 that case, all she was doing was keeping the

5 mother alive for an extra three or four weeks in

6 order to die. So that was clearly a case of

7 prolonging the inevitable, as opposed to someone

8 like you who comes down with that pneumonia.

9 Q Does the church then permit the

10 consideration of whether or not the patient has

11 any hope of recovery in whether the treatment may

12 help the patient recover in considering whether it

13 is ordinary or extraordinary?

14 A Yes.

15 Q Let's take a case that medical treatment

16 or artificial life support may be medically

17 beneficial. If artificial life support may be

18 medically beneficial, if the patient deemed it too

19 psychologically or emotionally burdensome for

20 himself or herself, could such a patient refuse

21 artificial life support and still be in compliance

22 with the church's teachings?

23 A Yes.

24 Q Father Murphy, what materials did you

25 review in preparation for your testimony in this

 

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1 case?

2 A The depostions [sic] of the family. The

3 depositions of the -- the deposition of the

4 husband. I'm not sure about that. I'm not sure.

5 I know I reviewed the family and the report of the

6 physicians.

7 Q I want you to assume, Father Murphy, for

8 purposes of this question that Theresa Schiavo

9 told her husband that if she were dependent on the

10 care of others she would not want to live like

11 that. And also Theresa Schiavo mentioned to her

12 husband and to her brother and sister-in-law that

13 she would not want to be kept alive artificially.

14 Assuming that information to be correct,

15 Father, would the removal of Theresa Schiavo's

16 feeding tube be consistent or inconsistent with

17 the position of the Catholic church?

18 A After all that has transpired, I

19 believe, yes, it would be consistent with the

20 teaching of the Catholic church.

21 Q How would you define, Father Murphy, a

22 practicing Catholic?

23 A Off, that's a tough one.

24 Q Let me rephrase it. Does the church

25 have any particular definition of what a

 

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1 practicing Catholic is?

2 A Certainly. We have what we call Easter

3 duty, which means sometime from Lent to Trinity

4 Sunday, in that three or four month window, a

5 Catholic is required to receive holy communion.

6 If necessary, confession. Catholics are mortally

7 bound to assist at mass. Attend mass every

8 Sunday. Every holy day of obligation. Certainly

9 those are all criteria for a practicing Catholic.

10 Q If Theresa Schiavo had not taken

11 communion over a two year period before her

12 medical incident and not participated in

13 confession, would she be considered by the church

14 to be a practicing Catholic?

15 A Not according to the criteria. No.

16 Practicing, no.

17 Q Now Father Murphy, if a patient is in a

18 permanent vegetataive [sic] condition, maintained by

19 artificial life support, and the patient's intent

20 is not known, can a loved one who has the best

21 interests of the patient at heart authorize

22 removal of artificial life support consistent with

23 church teachings?

24 A I think in a case like this where so

25 much time and effort has elapsed, I think, yes, it

 

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1 would be consistent. You have to remember, the

2 church will always uphold the ideal. One of the

3 things they will do is hit the brakes, as it were,

4 to make sure nobody is rushing into judgment.

5 Trying to push the patient out of the picture.

6 In view of the length and effort here, I

7 would say yes. What you would hope for is

8 somebody who cared about the best interest of the

9 patient to make the decision for them.

10 Q And such a decision by that -- a

11 decision to remove the feeding tube by such a

12 person would be consistent with the church

13 teachings?

14 A I believe so, from my understanding of

15 the church teachings.

16 Q You mentioned you reviewed the

17 depositions of Theresa's parents and siblings?

18 A Yes.

19 Q I want to ask you some questions about

20 those.

21 A Yes.

22 Q There are statements by Mr. and Mrs.

23 Schindler and their siblings that if they were in

24 a permanent vegetative or unconscious state, with

25 no hope of recovery, that they would want all

 

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1 medical treatments and procedures to keep them

2 alive. Do you recall those statements in the

3 depositions you read?

4 A Yes.

5 Q Is that the position of the Catholic

6 church?

7 A Well, they would certainly be able --

8 certainly be permitted to do that.

9 Q Um-hmm.

10 A The church would not tell them what they

11 should do, only what they may do. If that is

12 their wish, then that would certainly be

13 permissible.

14 Q But does the Catholic church require,

15 require someone to have all medical treatments and

16 procedures to keep them alive?

17 A No. In fact, Pope Pius said that in

18 1953. It was a direct quote. He said that kind

19 of suffering may be admirable, but certainly not

20 required.

21 Q In fact, even if a patient is not

22 vegetative, does the Catholic church require all

23 medical treatments to keep the patient alive?

24 A No.

25 Q There were also statements in the

 

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1 deposition also to the effect -- and these are

2 statements by the mother and the brother and

3 sister -- that if they were in that permanent

4 unconscious statement with no hope of recovery and

5 had gangrene and their limbs had to be amputated

6 that they would choose that rather than to die.

7 Do you recall reading that?

8 A Yes.

9 Q Does the Catholic church require any

10 11 12 by a person like that?

13 14 Q In all your years of pastoral clinical

15 counseling, Father Murphy, have you ever come

16 across such extreme opinions?

17 A With all due respect, no.

18 Q Have you, from your pastoral clinical

19 experience, have you come across any dynamic which

20 would explain such a viewpoint?

21 A I think grief is a large part of it.

22 And I think there is a healthy versus unhealthy

23 grieving process. I think everybody goes through

24 it in a different way and at a different time

25 speed. There is no set time frame, I think, for

 

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1 grief.

2 I was just reminiscing yesterday about

3 my own grief for my mother. I concluded it just

4 two weeks ago. When I was ordained, I bought

5 myself this ring, or a copy of the original, which

6 is envisioned as a commitment to Christ. Kind of

7 like my wedding ring for the church.

8 When my mother died a year-and-a-half

9 ago, I put it on her finger in the casket and wore

10 her anniversary ring from my father. About two

11 weeks ago, it was time to let go. I got this copy

12 and put her ring away. I think that is an example

13 of the grieving process.

14 I knew of a little old lady in Sarasota,

15 after 60 or 70 years of marriage, every night she

16 set a place at the table for her deceased husband,

17 and eventually stopped about a year later. I

18 think that is a healthy kind of grieving. But the

19 other side is not being able to let go at all. I

20 think that is very problematic.

21 Q In the Catholic faith, is death

22 something that a practicing Catholic need fear?

23 A No. No. In fact, that is a fundamental

24 part of the Catholic faith. We call ourselves a

25 pilgrim people. Life here on earth is really seen

 

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1 as a temporary stay. Catholics believe that our

2 destiny is Heaven. Therefore, you can't do

3 everything to prevent yourself from getting

4 there.

5 What is so hard to deal with in

6 educating Catholics in these issues is that death

7 1 is a part of life. It is a part of life. It's

8 part of the process. No, Catholics should not

9 fear death.

10 Q There was a statement in Mrs.

11 Schindler's deposition that, in addition to

12 wanting every type of medical treatment to

13 preserve herself in a permanent unconscious state,

14 should hypothetically she be in that state, that

15 she would, if medical treatment impoverished her

16 family, that she would still want that treatment.

17 Is there any recognition in the Catholic

18 faith in this area about the cost of treatment?

19 Is the cost of treatment ever a factor?

20 A That's one of the criteria in deciding

21 whether it's proportionate or disproportionate.

22 Excessive or ordinary. What you would hope is

23 that somebody is helping the patient work through

24 those issues. That, you know, maybe you need to

25 rethink that. You know, that again, the church

 

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1 would not tell them what to do, but you know, a

2 good bioethical consult or caring pastor I think

3 would help somebody like that say, you know, maybe

4 we need to take another look at this. You know,

5 talk a little bit more.

6 Q So hypothetically, if a patient had a

7 choice whether to receive a treatment or not, and

8 the treatment let's say, let's say that offered no

9 hope of recovery and the patient decided not to

10 have it because they didn't want to place a

11 financial burden on their family, would such a

12 decision by the patient be consistent with

13 Catholic teachings?

14 A Absolutely.

15 Q Now in the deposition of Theresa's

16 siblings, do you recall there was discussion of

17 God's will?

18 A Um-hmm.

19 Q I believe there were a number of

20 statements. Well, Terri ought to remain alive

21 because -- she should be treated -- she should

22 have all type of medical treatment to keep her

23 alive because it's God's will. If it was God's

24 will that she die, she would be dead with medical

25 treatment in place. Is such a position consistent

 

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1 with Catholic teaching?

2 A No. I don't think so. I'll tell you

3 why. When I mentioned the two-edged sword, God's

4 will could have been easily done fifty years ago.

5 I think this is a case where the wonderful

6 technology, rather than being an act of health and

7 recovery, has become the obstacle for nature

8 taking its course. I think it's a good example.

9 You know, there's also the case of my

10 father. My father, I found him crying in his bed

11 one day. He was dying of cancer and it was hard

12 to tell which was worse, getting up and going for

13 chemo or the cancer. He wanted to know if it

14 would be a sin if he stopped going to chemo. I

15 said of course not. He did stop and he died

16 peacefully thereafter.

17 I said there is another example of where

18 chemo does wonderful things for people, or it can,

19 but what is the good that you hope to achieve?

20 For my father, it was only prolonging the

21 inevitable. He was not going to get better. So

22 in that case, the chemotherapy which was meant to

23 be the agent of health, became the obstacle.

24 Q Father Murphy, I'd like to read you a

25 portion from Mary Schindler's deposition of August

 

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1 12, 1999. This is Page 39, Line 16.

2 Question. Well, in your mind, does

3 there come a point in time when the experience of

4 discomfort or pain on the part of the patient

5 becomes a factor in deciding whether to remove

6 life support?

7 Answer. No.

8 Under Catholic, under the teachings of

9 the Catholic church, is the pain or discomfort of

10 the patient, that the patient might feel, is that

11 a valid factor to be considered --

12 A Yes.

13 Q -- in determining whether care is

14 ordinary or extraordinary?

15 A Yes.

16 Q How does that become a factor?

17 A As you know, Catholics have an

18 understanding of suffering as being redemptive.

19 You know, Mother Theresa of Calcutta always said

20 that. Certainly suffering had a higher redemptive

21 value, but certainly you are not bound to take all

22 the suffering that comes your way. That is --

23 that was my father's case. My father basically

24 arrived at the notion that enough is enough. All

25 we are doing is prolonging the inevitable.

 

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1 Q Father Murphy, there was a section in

2 the depositions of Mr. and Mrs. Schindler read in

3 court already. You may remember them. Mr. and

4 Mrs. Schindler were basically asked, just

5 hypothetically, assume these were Terri's wishes.

6 That she did not want to be kept alive

7 artificially and that she did not want to be kept

8 alive if she were a burden to others. Would that

9 change your position in this case?

10 They both answered no.

11 My question is, is disregarding the

12 intent of the patient consistent at all with

13 Catholic teachings?

14 A No. It is the perception of the patient

15 that determines the morality of the action. Not

16 the family, not the doctor, but the perception of

17 the patient.

18 Q In Terri's sister's deposition, she

19 made the statement that taking away life support

20 is murder. Is that the position of the Catholic

21 church?

22 A Absolutely not. My father's case again.

23 There are still people telling me that my father

24 killed himself. Absolutely not true. Absolutely

25 inconsistent with church teaching. All they do is

 

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1 allow nature to take its course.

2 Q I believe the sister also made the

3 statement in her deposition that a patient may

4 have medical treatment, even if it's against his

5 or her will, if it can keep the patient alive.

6 A Absolutely not.

7 Q Do you recall in the deposition of

8 Theresa's brother his testimony that he believes

9 his parents or his parents believe, Mr. and Mrs.

10 Schindler, that Terri is aware of their presence,

11 and he testified that Terri's continued life is a

12 joy to him? A joy to him and his family to keep

13 Terri alive in this condition?

14 He was even asked -- he was even asked

15 if Terri needed -- if Terri needed a respirator to

16 keep her alive, would it still give you joy to

17 have her alive on a respirator? And he said yes.

18 He was asked if her limb had to be

19 amputated, would it give you joy to have her alive

20 in this condition? And he said yes.

21 My question is, Father, what are the

22 teachings of the Catholic church regarding keeping

23 a loved one alive for your own personal pleasure

24 or benefit?

25 A I think that is contrary to the gospel.

 

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1 We all take pleasure in relationships with people,

2 family. People who get married. I think, you

3 know, keeping someone around strictly for your own

4 pleasure strikes me as very anti-gospal [sic]. Sounds

5 more like using someone than loving someone.

6 MR. FELOS: I have no other questions.

7 Thank you, father.

8 CROSS-EXAMINATION

9 BY MS. CAMPBELL:

10 Q Good afternoon. My name is Pam

11 Campbell. I represent Mr. and Mrs. Schindler.

12 Have you had the opportunity to meet Mr. and Mrs.

13 Schindler?

14 A No. I regret that. I wish I were their

15 pastor.

16 Q Have you had the opportunity to meet

17 Theresa Schiavo in this case?

18 A No.

19 Q When you say you reviewed the

20 depositions of the family, who were -- whose

21 depositions were you specifically referring to?

22 A I remember Mr. and Mrs. Schindler. I

23 remember a woman named Carr. And a brother.

24 Q The woman named Carr, Suzanne Carr, the

25 sister?

 

204

1 A Yes.

2 Q Did you review any medical records of

3 Theresa Schiavo?

4 A I read a summary of the physician who

5 went and reviewed the case.

6 Q Do you recall the name of the physician?

7 A Karp.

8 Q Dr. Karp? K-a-r-p?

9 A As I recall, that is him.

10 Q It was about three pages long?

11 A Yes.

12 Q How did you get personally involved in

13 end of life issues?

14 A That's a long story. I discovered early

15 on in the priesthood, for me it was kind of a

16 loveless marriage until I started visiting

17 hospitals and taking care of the sick and dying.

18 For me that resonated deeply. I was very, very

19 sick as a child. Almost died as a child. So I

20 felt a natural inclination -- empathy, not

21 inclination -- for people in those circumstances.

22 So that really set the tone for my

23 priesthood. And more and more in recent years, my

24 interest has been fueled by what I see are very

25 dark horizons in health care and the necessity to

 

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1 help families get through.

2 Q Can you be more specific in what you

3 mean, dark horizons?

4 A Yes. I think that Catholics

5 particularly make no distinction between allowing

6 yourself to die from an illness and actively

7 killing yourself. That is why there are people to

8 this day that think my father killed himself by

9 removing chemotherapy. I think that is a

10 tremendous factor.

11 And I think when assisted suicide passes

12 in the State of Florida, as I believe it will,

13 that they will not have to market it because the

14 people I know, and I think with due respect, the

15 reason I found this such an unusual situation is

16 that virtually everyone I know is terrified of a

17 case like this. That is why I believe they would

18 line up to take a pill or shot and go to sleep.

19 My mother's death is a perfect example.

20 She was a good Catholic. I think if she had a

21 chance to review her last week on earth, I'm not

22 so sure if she would have taken a pill and wanted

23 to go to sleep. That is what I mean by dark

24 horizons that fuel my attention.

25 I have stepped up my writing, works,

 

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1 publishing, with the medical association to try to

2 educate clearly what is morally necessary.

3 Q Do you support, personally, physician

4 assisted suicide?

5 A Absolutely not.

6 Q Do you think that the church's teachings

7 would be in support of physician assisted suicide?

8 A Absolutely not.

9 Q What would be the church's position on

10 euthanasia?

11 A Absolutely not.

12 Q Suicide?

13 A Absolutely not, except that what the

14 church would recognize is that a person who

15 commits suicide is very likely in a diminished

16 capacity, so in terms of judging the morality of

17 their action, they would not be held morally

18 accountable. In order to sin, you have to clearly

19 want to do it and have the competence to be able

20 to sin.

21 Q And the church, they have a position

22 against abortion?

23 A Definitely.

24 Q You stated earlier that many Catholics

25 1 are confused as to what the church's position

 

207

1 would be?

2 A Yes.

3 Q Is it understandable to you why that

4 would occur when the church's position on

5 euthanasia, suicide, and abortion is such a pro

6 life stance? Do you understand my question?

7 A Um, that is a good question. Yeah. I'd

8 say so, but I would think that the average,

9 elderly Catholic is used to a Catholicism that

10 tells them exactly what to do. I'd say you are

11 probably right. There is merit in your question.

12 Q Would it be your understanding that

13 probably, in general, practicing Catholics would

14 believe that it would be the church's position to

15 support artificial feeding, hydration, nutrition?

16 That the church's position would be to support

17 that?

18 A Probably. Just like my family, father,

19 asked me if stopping chemo would be a sin.

20 Q Your father was Catholic?

21 A Irish-.

22 Q Have you ever had your deposition taken?

23 A No, ma'am.

24 Q In reading through the deposition of Mr.

25 and Mrs. Schindler--and Terri's siblings, could you

 

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1 get the sense of the room in the deposition when

2 you were reading through those?

3 A A little bit.

4 Q Could you get the feel of the emotions

5 past the black and white page?

6 A A little bit.

7 Q Could you sense that perhaps the people

8 that were being deposed felt they were being

9 backed into a corner?

10 A I don't think so. That was not my

11 sense. Do you want to know how I felt?

12 Q Yes.

13 A The sense that I felt more was great

14 empathy. Not just because I'm a good pastor, but

15 I watched my parents bury two of their own

16 children. I know it destroyed them. My mother

17 never got over it. My father did. They were an

18 interesting case in grief.

19 So my heart, without knowing them, my

20 heart goes out to the Schindlers because this must

21 be killing them. But, you know, it was awful for

22 me to be a son and yet very good for me to be a

23 son to my parents to help them work through it. I

24 don't think most people have that. They have to

25 rely on what they hear on radio or see on

 

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1 television or something.

2 Q In weighing the benefits and burdens of

3 a position in making a determination with a

4 family, you talked about cost --

5 A Yes.

6 Q -- being a factor. Are you aware of the

7 financial circumstances of this particular case?

8 A Not really. That there is money

9 involved. I don't recall dollars. Amounts.

10 Q Is it your impression that cost is a

11 factor here? The cost of her care being a benefit

12 or burden?

13 A Yes. But I think that would be my own

14 surmise. Knowing what health care cost in

15 general, years and years of health care must be

16 astronomical, I would think. That is just a hunch

17 on my part.

18 Q You have not reviewed her medical

19 records to have assessments of her medical costs?

20 A No.

21 Q To your knowledge, has Theresa Schiavo's

22 condition been evaluated by any bioethics

23 committee?

24 A No. Not to my knowledge. That is, I

25 think, probably a flaw in this case. It would

 

210

1 have been great if they had.

2 Q Generally, had she been at St.

3 Anthony's, for example, and this case was

4 presented through, would that have gone through

5 the Bioethics Committee?

6 A You see, someone will have to call for

7 it. Whether it is a family member -- I assume,

8 given the dynamics of the situation, I assume one

9 of them or the physician would have said could we

10 sit down. Yes. It would have happened.

11 Q Are you aware whether or not there is a

12 bioethics committee at Palm Garden in Largo?

13 A I have no idea. I don't even know where

14 that is.

15 Q Generally, when this comes up in a

16 hospital setting, in a Catholic hospital setting,

17 does it not go through a committee?

18 A Yes. You would not have seen that five

19 or ten years ago. Nowadays, I assume it's almost

20 automatic.

21 Q So a number of people would be reviewing

22 the benefits and burdens of Theresa Schiavo's

23 personal case?

24 A Yes.

25 1 Q Have you discussed this case with other

 

211

1 Catholic colleagues of yours in the medical ethics

2 area?

3 A Yes. Two of them that we work together

4 on doing consultations in the diocese. I

5 discussed in general the situation with the two of

6 them.

7 Q But you have never talked to the

8 Schindlers to receive their input?

9 A No.

10 Q In a committee setting, when a true

11 committee would have been formed to review Theresa

12 Schiavo's circumstances, would the husband's

13 feelings have been taken into consideration?

14 A Everyone's feelings would have to be

15 taken into consideration. That is one of the

16 goals of the ethics connotation is to try to get

17 everybody moving at the same pace.

18 Q So in this case, have you had the

19 benefit of any of the other family's --

20 A No.

21 Q thoughts on this?

22 A No. If I recall, Mr. Felos told me that

23 I was contacted by somebody in the family and I'm

24 sure I told him whatever -- because I get calls

25 all the time -- and I'm sure I told him what I

 

212

1 tell everybody. You have my home phone number.

2 Private number. Cell number. I would be happy to

3 sit down with you and the family. Call.

4 Q Do you recall maybe being contacted by a

5 Richard Pearse of the guardian ad litem?

6 A I think that is the name.

7 Q Probably it was Mr. Pearse and not one

8 of the Schindlers?

9 A Okay. I'm sorry.

10 Q Would that be your recollection?

11 A I recognize the name Pearse.

12 Q He was the guardian ad litem appointed

13 in this case.

14 A Okay.

15 Q Are you familiar with the ethical and

16 religious directives of Catholic Health Care

17 Services published by the National Conference of

18 Catholic Biships [sic]?

19 A Yes, ma'am.

20 Q What would be your general thoughts

21 concerning that publication?

22 A I think it's the teaching of the church.

23 What the bishops teach.

24 Q Are you familiar with the specific

25 1 detectives under issues for care and issues and

 

213

1 care for the dying?

2 A Yes, ma'am.

3 Q Would you specifically be familiar with

4 number 58?

5 A No.

6 Q If I read that to you, would you tell

7 me -- I would like to read that for you and tell

8 me if that is within your same mind set. The

9 directive 58 says there should be a presumption --

10 MR. FELOS: Excuse me. If she is going

11 to be reading from a source like that, does

12 counsel have additional copies so that I can

13 follow it and perhaps Father Murphy as well?

14 MS. CAMPBELL: I do not have additional

15 copies. I would be glad to let Mr. Felos look

16 over my shoulder.

17 THE COURT: Very well.

18 Q (By Ms. Campbell) Number 58 says there

19 should be a presumption in favor of providing

20 nutrition and hydration to all patients, including

21 patients who require medically assisted nutrition

22 and hydration, as long as this is of sufficient

23 benefit that outweighs the burdens involved to the

24 patient. Does that sound familiar?

25 A Yes.

 

214

1 Q How would you square that directive with

2 your earlier testimony concerning Theresa Schiavo?

3 A As I think I said earlier, the church

4 will always take the high road. They will always

5 uphold the ideal. They will always resist

6 immediate action. I think they always want to

7 slow down, take advantage of every possible

8 opportunity, to make sure that the outcome is not

9 promising.

10 So even Cardinal Bernadine, who taught

11 us so much about how to die well, that was one of

12 his most forceful arguments is that artificial

13 hydration and nutrition is not mandatory in every

14 single case. You have to go back and evaluate the

15 proportion. Where are you going? What do you

16 hope to achieve against what is it going to take

17 to get there? What is the outcome that you are

18 looking for?

19 Q Have you ever worked with one of the

20 patients in many of the hundreds of families that

21 you worked with that have received, or believed

22 they have received, a miracle from God?

23 A Sure. My father.

24 Q Would they, would that involve

25 continuation of life?

 

215

1 A Um-hmm. Yes.

2 Q In this case, if you witnessed Theresa

3 Schiavo with her mother and there was an

4 outpouring of love between the two of them, would

5 that be something that would be a factor in your

6 consideration of whether or not it would be

7 acceptable to withdraw a feeding tube?

8 MR. FELOS: I object to that question

9 for lack of foundation. I heard no testimony -- I

10 deposed Mrs. Schindler. She has taken no

11 depositions. I don't recall any testimony of an

12 outpouring of love from Theresa. I would object

13 on lack of foundation to that question.

14 THE COURT: I certainly have heard

15 enough.

16 MS. CAMPBELL: I'll rephrase.

17 Q (By Ms. Campbell) If you witnessed

18 Mrs. Schindler, Theresa's mother, with Theresa and

19 watched her laughter, her smiling, on a, say a

20 regular basis whenever Mrs. Schindler would visit,

21 is that something you would consider?

22 A I would consider it.

23 Q How would that -- would that change your

24 opinion in this case?

25 A It could.

 

216

1 Q Could you elaborate on how you think

2 that could?

3 A Well, what I would look for is the

4 lesson that one of the chiefs of intensive care at

5 All Children's told me. He said, Father, you

6 divide up the brain. There is a part of the brain

7 that is who the person was. Then there is a part

8 of the brain what the person was. Who the person

9 was is gone and they are not coming back. But

10 what the person was is still functioning.

11 So he described for me local stimuli.

12 Things that appear to be cognizance, appear to be

13 awareness. Again, I'm not a physician. I would

14 want to talk to the physician about that. So I

15 would give you a cautious yes, I could consider

16 it.

17 Q But you would consider the physician's

18 input?

19 A Well, that is his expertise. That is

20 not mine.

21 Q Do you think that would do anything with

22 any teaching of perhaps God's will and for a

23 miracle?

24 A I don't mean this as flip as it sounds.

25 If God is going to work a miracle, he does not

 

217

1 need machinery or technology. I think he will

2 just do it. So I have never been persuaded by the

3 argument that we have to keep all the machinery

4 going so God can work his miracle. I don't

5 believe God needs that.

6 Q Do you think there is a timetable that

7 God expects you to consider one way or the other?

8 A No. I mean in terms of, I don't think

9 it's six months or a year or whatever. But I

10 think that when it becomes a long, long time, I

11 think a good pastor would have to sit down with

12 the principals involved and say maybe, maybe it's

13 time to let go.

14 Q This would be a pastor that probably

15 worked with the family?

16 A Yes. Sure.

17 Q It would be a pastor maybe that had

18 witnessed any type of relationship between the

19 incapacitated, or ward, and the people that are

20 asking for the feeding tube to be maintained?

21 A Sure.

22 MS. CAMPBELL: I have no further

23 questions.

24 THE COURT: Redirect?

25 MR. FELOS: Yes, Your Honor.

 

218

1 REDIRECT EXAMINATION

2 BY MR. FELOS:

3 Q In the portion of the ethical and

4 religious directives which was read to you by

5 opposing counsel, Father, it does state that

6 providing nutrition and hydration is conditioned

7 by the phrase "as long as this is of sufficient

8 benefit to outweigh the burdens to the patient."

9 That gets back to the factors we talked about on

10 direct examination; doesn't it?

11 A Yes.

12 Q Those factors are looked at in the mind

13 of the patient?

14 A Yes.

15 Q Let's assume again that Theresa Schiavo

16 expressed an intent not to be kept alive

17 artificially. Does the fact that her mother

18 derives joy from being with Theresa, does that

19 negate Theresa's intent?

20 A No.

21 Q Let's even assume for purposes of this

22 question that Theresa does smile and laugh and her

23 mother derives joy from that. Does that negate

24 Theresa's intent?

25 A No.

 

219

1 Q As to Theresa and whether this continued

2 life maintained artificially is burdensome, that

3 was for Theresa to decide, not her mother; isn't

4 that correct?

5 A Yes.

6 Q You were asked the question whether you

7 talked to Mr. and Mrs. Schindler?

8 A Yes

9 Q Did you talk to Mr. Schiavo?

10 A No.

11 Q There was -- you mentioned Mother

12 Theresa, by the way. Did you ever work in any of

13 Mother Theresa's centers?

14 A Yes. I tried to volunteer as much as I

15 could up at the Washington -- in Washington, DC.

16 It's an AIDS Hospice right near Catholic U. I go

17 there a couple times a year.

18 Q What type of work do you do there?

19 A Just loving the patients. Watching the

20 nuns. They have taught me so much about the care

21 of the dying. You don't see any machinery there.

22 All you see is the nuns bathing these old people.

23 Just loving them.

24 Q Have you ever participated in any

25 patient care yourself?

 

220

1 A Sure. I never forget them. While

2 talking about them, I was in DC last week. A

3 black man dying of AIDS named Willie, I held

4 Willie in my arms after I baptized him. One of

5 the little nuns took a spoonful of Ensure. Took a

6 piece of the communion wafer and poured it down

7 Willie's throat. He died shortly thereafter. I

8 can still feel Willie's skin and bones. To me,

9 that is what compassion is all about. Suffering

10 with people.

11 Q So your interest and knowledge in this

12 area is not just purely theoretical?

13 A No. Certainly much more I'd say because

14 I have been there.

15 Q There was some discussion about

16 submitting this case to a bioethics committee.

17 A Um-hmm.

18 Q Isn't it correct that such a bioethics

19 committee, or review process, is designed to bring

20 a consensus among the participants in decision

21 making?

22 A Well --

23 Q If you have, let's say a family dispute

24 as to care, that the purpose of the review process

25 is to try to reach a common ground?

 

221

1 A In terms of heart and mind, yes. But

2 for example, as in the case of my mother, it took

3 two or three days to work my two brothers. I was

4 the surrogate. So it was my right to make the

5 decision.

6 So if you mean consensus to validate my

7 decision, no, but what you hope to do is get

8 everybody emotionally on the road to recovery.

9 Q Were you aware that Mr. Schiavo proposed

10 to the Schindlers to participate in hospice

11 counseling?

12 A No.

13 Q You noted that the ethics committee -

14 in many cases like this in the hospital it may be

15 submitted to an ethics committee. Do you know

16 whether that is the case in nursing homes?

17 A Yes.

18 Q When you say a case like this, do you

19 mean a case that involves a family dispute?

20 A Yes.

21 Q Isn't it true that feeding tubes are

22 routinely removed from unconscious patients in

23 hosptals [sic] and nursing home settings?

24 A Definitely hospitals. I'm not certain

25 about every nursing home. Definitely hospitals.

 

222

1 Q Father, there was, you mentioned that

2 something could be learned by how the patients are

3 treated at Mother Theresa's Hospice. How are

4 elderly nuns and priests treated in end of life

5 situations like this?

6 A I often tell my own colleagues that we'd

7 learn a lot if we went to these old nunneries and

8 watched the way they take care of the old nuns.

9 It's ice chips. Maybe a spoonful of soup or

10 Gatorade, if they can tolerate it. Face clothes

11 on the forehead. Holding their hand. That I

12 think is dying with dignity.

13 The machinery and everything, that is

14 what was heartbreaking about my mother's situation

15 because there was not enough chance to give her

16 the love like I knew she deserved. I could never

17 get in the room.

18 4 There was some talk about assisted

19 suicide and I just want to clear this up. How do

20 you feel about physician assisted suicide?

21 A Absolutely against it. It is morally

22 wrong to do anything to take your life.

23 4 Correct me if I'm wrong. Was the gist

24 of your testimony that you believe that people

25 might be given to physician assisted suicide

 

223

1 because they will receive medical treatment

2 against their will?

3 A Absolutely.

4 Q That is why you are teaching people to

5 let them know that under the Catholic faith you

6 don't have to be treated at all costs?

7 A Absolutely.

8 Q And the consequence of people believing,

9 that may force them, lead them, to take their own

10 life?

11 A Absolutely.

12 Q That is the dark horizon [sic] in the medical

13 system that you are afraid of today?

14 A In my view, yes.

15 MR. FELOS: I have no other questions.

16 THE COURT: Recross?

17 MS. CAMPBELL: One, please.

18 RECROSS-EXAMINATION

19 BY MS. CAMPBELL:

20 Q Would you consider the credibility of

21 the statement -- for example, in this case you

22 heard there was a statement made as to the wishes

23 of Theresa Schiavo. Would you consider the

24 credibility of circumstances around that statement

25 in considering her wishes?

 

224

1 A Credibility? If you mean in terms of

2 did someone want to DC everything in 36 hours or

3 72 hours, I certainly would say there is something

4 wrong here. In view of the length of time here,

5 yes, I would consider it. I would be concerned

6 about factors, factors surrounding that.

7 MS. CAMPBELL: Thank you.

8 THE COURT: Anything further?

9 MR. FELOS: No, Your Honor.

10 THE COURT: Is Father Murphy under

11 subpoena?

12 MR. FELOS: No. He is not.

13 THE COURT: Father, thank you very

14 much. You are free to go. All right, Mr. Felos.

15 Call your next witness.

16 MR. FELOS: Joan Schiavo.

17 THE BAILIFF: Stop here. Raise your

18 right hand. Face the judge for me.

19 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

20 THE COURT.)

21 THE COURT: Thank you. Have a seat.

22 DIRECT EXAMINATION

23 BY MR. FELOS:

24 Q State your full name, please.

25 A Joan Schiavo.

 

225

1 Q Where do you live?

2 A Philadelphia, Pennsylvania.

3 Q Are you married?

4 A Yes. I am.

5 Q To whom are you married, Mrs. Schiavo?

6 A William F. Schiavo, Jr.

7 Q Are you related to Michael and Terri

8 Schiavo?

9 A Yes. I am.

10 Q How are you related to them?

11 A I'm married to his oldest brother,

12 Bill.

13 Q When were you and Bill married?

14 A November 11, 1978.

15 Q Tell us, please, your educational

16 background.

17 A I have twelve years of a Catholic

18 education. Two-and-a-half years of college, but I

19 did not finish college.

20 Q Do you have a family?

21 A Yes. I do.

22 Q How many children?

23 A Three. Two boys and a girl.

24 Q Tell us a little bit about your

25 employment background. Where are you presently

 

226

1 employed?

2 A I worked at a place called Bets

3 Laboratory for eleven years. I stopped working

4 when I had children. Opened up --

5 Q What did you do at Bets Laboratory?

6 A I was a secretary: My friend and I

7 opened up our own cleaning business after my

8 children were a little bit older. I presently

9 stopped working, doing that, and I start a new job

10 next week as a medical secretary.

11 Q Do you know Theresa Schiavo?

12 A Yes. I do.

13 Q When did you first meet Terri?

14 A I met Terri at a party that my husband

15 and I had years ago. She came to it. It was the

16 first time she met us.

17 Q Was she married to Mike at that time?

18 A No. They were dating.

19 Q I notice you had a smile on your face

20 when you said you met her at that party. Was

21 there anything that happened at that party that

22 was particularly --

23 A Terri and Michael had come in. Michael

24 had introduced us to her. She was sitting beside

25 me at the time. My husband was out front at the

 

227

1 time. Everybody was drinking. And he was

2 somewhat loaded at the time.

3 He came walking in the house goofing

4 around. He told everybody -- there was a song or

5 something on the radio. He came in dancing. He

6 yelled out, "Everybody drop your pants," and Terri

7 cracked up laughing. I knew then that we were

8 going to get along just fine.

9 Q In the time period that Terri and Mike

10 lived in Philadelphia, which was I think about the

11 beginning of '86 -- let me backtrack. Do you

12 recall when it was you first met Terri?

13 A Well, I was married at the time. I

14 don't recall the year. I had already had B. J.

15 '84. Maybe '82, '81. I don't recall the definite

16 year.

17 Q In the years that you lived in

18 Philadelphia after you met Terri, how often would

19 you see Terri?

20 A In the beginning, I did not see her that

21 often because I didn't know her that well. I

22 would run into her every once in a while at my

23 inlaw's [sic] house. Every once in a while her and

24 Michael would come down on the weekend to see us,

25 and at that time, my son, B. J.

 

228

1 Q As you got to know Terri a bit more, did

2 you start to see each other more often?

3 A Yes. Saw her a lot on the weekends.

4 Talked to her a lot on the phone and saw her

5 during the week.

6 Q Did a friendship develop between the two

7 of you?

8 A Yes.

9 Q How would you describe your friendship

10 with Terri?

11 A Terri was my best friend and like a

12 sister that I never had.

13 Q When that friendship developed, how

14 often would you speak to each other on the phone?

15 A On the phone I would say maybe, out of

16 seven days, we talked to each other four or five.

17 Q Um-hmm. How often during the week would

18 you see her when you were best friends?

19 A Mostly on the weekends. Maybe two

20 times. Two or three times out of the week she had

21 either come to see us or I'd go down to her

22 family's house.

23 Q Between talking to her on the phone and

24 seeing her, would it be fair to say you had

25 contact with her almost everyday?

 

229

1 A Yes.

2 Q How would you describe Terri's

3 personality?

4 A She was great. She was a lot of fun.

5 Very caring. Was always there if you needed her.

6 Always there to listen if you had a problem. She

7 would do anything for you. She was a good person.

8 Q Did you ever -- would "shy" be a word

9 you would use to describe Terri?

10 A No.

11 Q Would "reserved" be a word that you

12 would use to describe Terri?

13 A No. Real outgoing. Always smiling.

14 Q Did she ever seem to be afraid to speak

15 up or tell her mind?

16 A No.

17 Q What type of things, when you became

18 best friends, what type of things did you talk

19 about?

20 A Did we talk about?

21 Q Um-hmm.

22 A Kids. Shopping. My husband. Michael.

23 Just general conversation.

24 Q Did you ever confide in each other?

25 A All the time.

 

230

1 Q What type of things -- did you and Terri

2 ever go out together?

3 A Yes.

4 Q What type of things did you do?

5 A Went to the movies. We went to the mall

6 a lot. Sometimes we went to the movies. We went

7 clubbing.

8 Q You mean nightclubbing?

9 A Yes.

10 Q Did you take your husbands?

11 A Sometimes. Not all the time.

12 Q Now I think you mentioned before that

13 sometimes Terri would come over to your house?

14 A Yes.

15 Q Did you ever go over to Terri's house?

16 A Um-hmm.

17 Q Before Terri was married, do you know

18 whether she lived with her parents?

19 A She lived with her parents. Yes.

20 Q Did you ever go over to Terri's parent's

21 house?

22 A Yeah. I would just walk in.

23 Q Did you and Terri ever have a

24 conversation about the subject of artificial life

25 support?

 

231

1 A Yes.

2 Q Tell me, please, how that came about.

3 A A friend of mine and her husband had a

4 baby. It was their first baby, and the baby was

5 born sickly. They had to put the baby on a

6 ventilator or machines to keep the baby alive.

7 And they had to make that decision if they wanted

8 to take the baby off the tubes and all.

9 So during that time, I had talked to

10 Terri about it a lot because I was upset for my

11 girlfriend. They finally made that decision to

12 take the baby off the machine.

13 Q How long of a time was that from when

14 that first came up for your girlfriend until the

15 situation resolved for your girlfriend?

16 A Well, they didn't know anything was

17 wrong with the baby until after the baby was

18 born.

19 Q Um-hmm.

20 A I would say only within a few months.

21 Maybe not even.

22 Q I guess my question was, was this an

23 ongoing subject that you talked to Terri about?

24 In other words, did it take a while for the

25 parents of the baby to make that decision and

 

232

1 implement it?

2 A It took -- I guess for the parents it

3 took a little bit of time to make that decision

4 because it was their first born baby, and nobody

5 wants to see that happen. But they knew, for the

6 baby's sake, there was not anything they could

7 ever really do for the baby. I would say within,

8 maybe within a month's time.

9 Q How many times would you say you talked

10 to Terri?

11 A About that?

12 Q About that situation with your

13 girlfriend and her baby.

14 A When it first happened, it seemed like

15 we talked about it a lot. When I talked to her.

16 Q What did Terri have to say in response

17 to your telling her about that?

18 A She had said that if her and Michael

19 were ever put in that kind of a situation that

20 that would be a situation that she really would

21 not want to have to deal with, but she knows that

22 her and Michael would make the best decision and

23 that would be to do the same thing my girlfriend

24 and her husband did because she would not want to

25 put the baby through anything like that.

 

233

1 Q What was the decision the parents made?

2 A They took all the tubing and everything

3 off the baby.

4 Q Did you ever have occasion to discuss

5 with Terri, when talking about the girlfriend [sic], what

6 your personal preferences may be regarding

7 artificial life support?

8 A Yeah. We had watched a movie one time

9 on television. It was about somebody. I don't

10 remember. I don't remember the movie. It was

11 about a guy who had an accident and he was in a

12 comma. There was no help for him. We had stated

13 that if that ever happened to one of us, in our

14 lifetime, we would not want to go through that.

15 That we would want it stated in our will we would

16 want the tubes and everything taken out.

17 Q When you say "we" had stated it --

18 A Myself and her.

19 Q As best you can recall, what did Terri

20 say in response to seeing that movie?

21 A She did not like the movie. Just the

22 whole aspect of family and friends having to come

23 and see their son or friend like that, she thought

24 it was horrible.

25 Q Do you know what type of life support

 

234

1 the person in the movie was on? Do you recall?

2 A No. I don't know all the different -- I

3 just know there was some tubes in him. Like what

4 you call the breathing machine. The feeding

5 machine. I don't know all the different names of

6 the machines.

7 Q About how well do you recall these

8 conversations with Terri?

9 A Well --

10 Q I mean, are you sure Terri did not say

11 something like, "Gee, if that is me, don't pull

12 the plug. I want to stay alive like that."?

13 A No. No. I know she didn't say that.

14 Q Did Terri say anything about being

15 afraid to die and not wanting to let go?

16 A Hm-umm. You mean if she was on those

17 machines or in general?

18 Q Talking about those machines.

19 A No. She did not want to live like that.

20 She didn't want to go through that. Have people

21 come and see her like that. Do that to her family

22 and friends.

23 Q That is what she said?

24 A Um-hmm.

25 Q Mrs. Schiavo, when did you first relay

 

235

1 this information to either me or Mr. Schiavo? Do

2 you know when you first told somebody about this

3 information about Terri?

4 A It was you.

5 Q Do you recall when that was in?

6 A September. The fall.

7 Q Did you ever tell Mike about it?

8 A No.

9 Q Regarding the conversations stimulated

10 by the friend's baby, how many times would you say

11 Terri expressed her agreement with the parent's

12 decision not to continue life support?

13 A She agreed with it.

14 Q My question is you said you talked to

15 Terri about that a number of times?

16 A Um-hmm.

17 Q Did she express her opinion about it

18 once, or did she express her opinion about it more

19 than once?

20 A More. Several times. I'd say if I

21 talked to Terri maybe 14 days about it, she

22 probably expressed her opinion 12 out of the 14.

23 Q So this was not an isolated comment on

24 her part?

25 A No.

 

236

1 Q When Terri and Mike moved to Florida,

2 did that affect your friendship with her?

3 A It did not. I talked to her every day.

4 Q How -

5 A I didn't see her, but talked to her all

6 the time.

7 Q As time went on, after she moved down

8 here, did you get a chance to visit her?

9 A No. I did not have the finances to get

10 down to visit. I wanted to. Just did not have

11 the finances.

12 Q After she was here for a while, about

13 how often would you talk to her?

14 A Maybe, out of seven days a week, maybe

15 five.

16 Q How long would the two of you talk on

17 the phone?

18 A Well, when she called me, we talked a

19 little bit longer. When I called her, it was

20 maybe a little bit less.

21 Q In your testimony, you made some

22 reference to making wills. What was that again?

23 You mentioned something about you and Terri

24 talking about making wills?

25 A We had said during the time with that

 

237

1 movie, at one time we had said that if, that we

2 had always wanted stated, my husband and myself,

3 make up a will. She would want it stated, and

4 myself, I would, if it came down to something like

5 that, we would not want any kind of life support

6 MR. FELOS: Okay. Thank you.

7 THE COURT: Cross-examination?

8 CROSS-EXAMINATION

9 BY MS. CAMPBELL:

10 Q Good afternoon, Mrs. Schiavo. My name

11 is Pam Campbell. I'm the attorney representing

12 Mr. and Mrs. Schindler in this case.

13 A Hi.

14 Q Can you tell me approximately when was

15 the circumstances with your friend's baby? What

16 year?

17 A What year? Maybe '85 or '86.

18 Q It was before or after Terri and Mike

19 were married?

20 A After.

21 Q After?

22 A Um-hmm.

23 Q Were her comments in response, in your

24 conversations pertaining to the issue with the

25 baby, were they mostly surrounding if she and

 

238

1 Michael had a baby that this is what they would

2 want to do with the baby?

3 A Could you rephrase?

4 Q Um-hmm. When you were having this

5 conversation with her about your friend's baby --

6 A Right.

7 Q -- you are saying Terri made comments

8 about that. Were her comments based on what she,

9 what she would want to do if she and Michael's

10 child were in a hypothetical setting?

11 A You mean as far as she stating what her

12 and Michael would do in that situation?

13 Q Right. Right. With a baby.

14 A She told me what her and Michael would

15 want to do if it was her and Michael in that

16 situation.

17 Q So her comments were more for a child as

18 opposed to herself?

19 A At that time.

20 Q When was it that you were watching this

21 movie, approximately, from a time frame?

22 A It was after that happened with my

23 friend's baby. I don't know how many years or

24 months or days. But I would say within a two year

25 period maybe.

 

239

1 Q Had they moved to Florida yet?

2 A No.

3 Q So they were still living in the

4 Philadelphia area?

5 A Um-hmm.

6 Q Can you describe the scene in the movie

7 with the man and the tubes?

8 A He was a younger man. I don't remember

9 the movie. If I'm not mistaken, it was a diving

10 accident into a pool. He passed away at the end

11 of the movie. I don't remember the movie. I

12 really don't remember the movie.

13 Q Okay. Do you remember what the man

14 looked like? Whether or not he was in a hospital

15 setting?

16 A In the movie he was in a hospital

17 setting.

18 Q Do you recall where the tubes were

19 coming from?

20 A His mouth. He had some in his arm.

21 Q Was it the graphic recitation of that

22 picture in the movie which stimulated the comments

23 from Terri?

24 A I think it was the whole situation of

25 the movie. I don't think that was, it was just

 

240

1 that part. That part was very upsetting, but the

2 whole situation of the movie.

3 Q Was there a long period of time between

4 his accident and then his hospital stay and his

5 death in the movie?

6 A What is a movie? Everything is done

7 within a two hour period anyway, so -- he had the

8 accident. He was in the hospital. He passed

9 away. I'm trying to remember. Maybe months to a

10 year. I forget how long.

11 Q Do you remember when Terri and Mike

12 moved to Florida?

13 A Yeah.

14 Q When was that?

15 A I don't remember the year. I remembered

16 it. I didn't want them to go.

17 Q Did you talk to Terri -- you were

18 testifying about how frequently you talked to her.

19 Five out of seven days?

20 A Um-hmm.

21 Q Was that right up to the time of the

22 accident?

23 A Um-hmm. I talked to her two days before

24 it happened.

25 Q Did she ever discuss with you problems

 

241

1 that she and Mike were having?

2 A No. I mean, no marriage is perfect.

3 Mine is not. It was nothing out of the ordinary.

4 Q Did she discuss with you her desire to

5 become pregnant?

6 A She wanted children.

7 Q Do you know that she was going to a

8 doctor concerning fertility issues?

9 A I'm trying to remember. Yeah.

10 Q Do you recall how long of a period she

11 had been trying to get pregnant?

12 A No. That I don't remember.

13 Q After she came, after she and Michael

14 moved to Florida, did you get to see Terri after

15 that?

16 A No. I had three children. My husband

17 had a new job. The money was not there. But I

18 would have loved to have gone to see her.

19 Q Since the accident which occurred to

20 Terri in February of 1990, did you see Terri

21 during that time frame?

22 A Hm-umm. I questioned my inlaws all the

23 time about it. My brother-in-law. Everybody kept

24 me informed on what was going on.

25 Q Have you seen Terri recently?

 

242

1 A No. But I intend to see her while I'm

2 here.

3 Q Do you know what type of life sustaining

4 measures are being taken for Terri?

5 A What do I understand the update of her

6 condition is? Is that what you mean?

7 Q Do you -- is it your understanding that

8 Terri is on a ventilator?

9 A Um --

10 Q The thing that makes her chest go up and

11 down like you described in the movie?

12 A No. I don't know. I thought it was

13 just the feeding machine. Feeding tube.

14 Q Do you know what a feeding tube would

15 look like?

16 A No.

17 Q So you have not seen Terri as to what

18 she looks like?

19 A No.

20 Q You don't know if she has, is connected

21 to tubes or anything like that?

22 A No.

23 Q When this first happened to Terri, were

24 you aware of what type of life support she was

25 having then?

 

243

1 A When it first happened?

2 Q Um-hmm.

3 A Yeah. Breathing machine. Feeding tube.

4 Q Did you tell Michael any of her

5 comments before?

6 A Hm-umm.

7 Q Did you relay any of the comments about

8 Terri's not wanting to live in a condition like

9 that to Michael during that time frame?

10 A Not at all. He was going through too

11 much at the time. I didn't mention it.

12 Q So during this nine year period, you

13 still have never told him about it?

14 A No.

15 Q Doesn't it seem odd that you would not

16 tell him?

17 A I think if he questioned me, I would

18 have told him. He never questioned me. It never

19 came up in a conversation between him and I. If

20 he would have said something to me, I would have.

21 MS. CAMPBELL: I have no further

22 questions. Thank you.

23 THE COURT: Redirect?

24

25

 

244

1 REDIRECT EXAMINATION

2 BY MR. FELOS:

3 Q You were asked a question about Terri

4 wanting to get pregnant and seeing a doctor. Did

5 Terri ever mention anything to you about the

6 frequency of her periods or not getting periods?

7 A They were not real frequent.

8 Q Now the opposing attorney asked you a

9 question when did you have the conversations with

10 Terri about the girlfriend's baby.

11 A Um-hmm

12 Q I believe you used the words "after

13 Terri had moved". I want you to clarify that.

14 Did you mean after she moved from her parent's

15 home in Philadelphia or after she moved to Florida

16 with Mike?

17 A The situation with my girlfriend's baby

18 was when she lived here, not in Florida.

19 Q When she lived where?

20 A With Michael.

21 Q In what city?

22 A Pennsylvania. Philadelphia.

23 Q So the conversations you had with Terri

24 about the girlfriend's baby was, I think you

25 mentioned, was in Philadelphia?

 

245

1 A Um-hmm.

2 Q Do you know that Terri lived with her

3 parents in Philadelphia and then, when she

4 married, she moved and lived with Mike in

5 Philadelphia?

6 A Um-hmm.

7 Q The movie on television was that, that

8 occurred before or after the -- did you testify

9 that occurred before the conversations you had

10 about the baby? Let me ask it again. The

11 conversation you had with Terri about a TV show

12 and the diver not wanting be on life support, was

13 that before or after the situation came up with

14 your girlfriend?

15 A After.

16 MR. FELOS: No other questions,

17 Your Honor.

18 THE COURT: Any re-cross?

19 MS. CAMPBELL: No thank you.

20 THE COURT: You can stand down. I

21 assume she's not under subpoena?

22 MR. FELOS: She is not.

23 THE COURT: Anything else this afternoon?

24 MR. FELOS: Fortunately, or

25 unfortunately, we have exhausted our witnesses,

 

246

1 too, and should be concluding tomorrow morning.

2 So I want to mention that, so opposing counsel

3 knows to have her witnesses ready for the start of

4 her case.

5 THE COURT: Very well. Stand in recess

6 until 9:00 a.m. tomorrow morning.

7 (THEREUPON, COURT RECESSED AT 4:35 P.M. ON

8 1-24-00 AND THE FOLLOWING PROCEEDINGS WERE HAD ON

9 1-25-00 AT 9:00 A.M.)

10 THE COURT: Petitioner ready to proceed

11 in this case?

12 MR. FELOS: Yes.

13 THE COURT: Respondent ready to proceed?

14 MS. CAMPBELL: Yes, Your Honor.

15 THE COURT: Call your next witness.

16 MR. FELOS: We call Dr. Vincent

17 Gambone.

18 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

19 THE COURT.)

20 DIRECT EXAMINATION

21 BY MR. FELOS:

22 Q State your full name, please.

23 A Victor Gambone.

24 Q Where do you live?

25 A Dunedin.

 

247

1 Q How are you employed?

2 A I'm a physician.

3 Q Are you a medical doctor?

4 A Yes. A medical doctor licensed in the

5 State of Florida.

6 Q Can you tell us, please, your

7 educational background?

8 A Yes. A graduate of Penn State

9 University, where I did my undergraduate work and

10 also my received my medical degree. I did my

11 internal medicine training at the University of

12 South Florida in Tampa. I'm board certified in

13 internal medicine and I'm board certified in

14 geriatric medicine. I'm also board certified in

15 medical direction and long-term care. I'm also

16 certified by the American Board of Quality

17 Assurance and Utilization Review.

18 Q When you use the term "board certified",

19 can you briefly explain what that means?

20 A Yes. This is one way of establishing

21 core knowledge and expertise in a particular

22 field, which is recognized nationally.

23 Q Again, you were board certified in

24 geriatric medicine?

25 A Yes.

 

248

1 Q The last one you mentioned was?

2 A Quality Assurance and Utilization

3 Review.

4 Q For long-term care?

5 A No. In general for medical quality

6 assurance.

7 Q Can you explain briefly what that is?

8 A Yes. It's, I received special training

9 in ways of assuring that quality exists in the

10 work that is done in the medical profession. So I

11 might be called on to be on committees or to

12 review work of other physicians for quality.

13 Q Dr. Gambone, do you know Theresa

14 Schiavo?

15 A Yes.

16 Q Are you her primary treating physician?

17 A Yes. I am.

18 Q How long have you been Theresa's primary

19 treating physician?

20 A For almost two years.

21 Q Can you tell us a little bit about your

22 duties. As a primary treating physician, what do

23 you consider your duties to be regarding Theresa?

24 A My duties are to assure that she

25 receives proper medical care in the facility where

 

249

1 she resides.

2 Q How many times have you visited Theresa?

3 A I visit her at least every other month.

4 Occasionally more often than that. I would

5 estimate I have visited her probably ten times

6 during the past year. There have been other

7 physicians, or a physician who works with me, who

8 visits her periodically in my absence.

9 Q Now describe for us, please, the

10 procedure that you would undergo, the procedure

11 you underwent on your initial examination of

12 Theresa.

13 A An initial examination, it was a

14 comprehensive examination and I review the prior

15 records. I took a current history from those who

16 would give me history. That is Michael, her

17 husband, and also the care-givers at the nursing

18 home. After reviewing the records, I performed a

19 physical examination and then made a report of

20 that examination.

21 Q In the course of your examination, did

22 you talk to Theresa? Did you ask her questions?

23 A Yes. I tried to elicit some response

24 from her, either verbally or visually. These are

25 -- were some of the tests that I performed.

 

250

1 Q On each of your visits after your

2 initial visit, did you try to elicit some response

3 from Theresa?

4 A Yes. Whenever I would greet any of my

5 patients, even though they may be comatose or

6 unconscious, I would always greet them with their

7 name.

8 Q In all your visits to Theresa, have you

9 ever noticed any response by Theresa which would

10 lead you to believe that she has cognition?

11 A No.

12 Q When is the last time you visited

13 Theresa?

14 A The last time was, I believe it was a

15 Friday. Probably was the 7th of January.

16 Q How would you describe Theresa's

17 condition in medical terms?

18 A I would describe her condition as a

19 vegetative state.

20 Q Dr. Gambone, do you know of any

21 treatment, modality, or thing that can be done for

22 Theresa which will improve her condition?

23 A No. I don't.

24 Q Now let's talk a little bit about the

25 nursing home. Is there a nurse on duty that

 

251

1 supervises the care of patients when the

2 physicians are not there?

3 A Yes. There are nurses on duty 24 hours

4 a day.

5 Q If there were any change in Theresa's

6 condition, such as Theresa said something or

7 Theresa responded in some way, what would be the

8 duty of the nursing home regarding communication

9 to you?

10 A Any change in condition, and this would

11 be considered a significant change in condition,

12 should this occur, the nurse would immediately

13 report this to the physician.

14 Q Has any nurse ever reported any such

15 change in condition to you?

16 A No, sir.

17 Q Please describe Theresa's physical

18 condition as opposed to her mental condition.

19 A Physically, I would describe her

20 condition as very good. Excellent.

21 Q Does she have any physical problems?

22 A The physical problems that she has are

23 related to her neurologic condition.

24 Q What are those physical problems?

25 A Contractures in which the stronger

 

252

1 muscles of the body would react against the weaker

2 ones and so the flexor muscles -- so your hands

3 would contract. She has contractions. They have

4 worked with those contractions over the years.

5 Q We have heard some testimony about a

6 dropped foot. Does she have a dropped foot?

7 A Yes. Because of the neurologic damage,

8 that is another related condition.

9 Q When muscles become unused and

10 contractured over a period of time, is there any

11 permanent damage to the muscular system? In other

12 words, if Theresa, hypothetically Theresa awoke

13 and regained consciousness, would she have the use

14 of those limbs?

15 A Over this period of time it would be

16 unlikely because without activity, electrical

17 activity of the muscles, death of the muscles

18 occur. Death of the end plate which is, and I'll

19 try not to be too technical here, but the nerve

20 muscle inner connection. There is death of that

21 area or destruction of that area without use,

22 without the electrical chemical activity that is

23 necessary to maintain it.

24 Q So is it fair to say that, if

25 hypothetically Theresa Schiavo regained

 

253

1 consciousness, she would be a quadraplegic?

2 A I would say that she certainly would

3 have serious impairments, and I could not tell you

4 exactly what they are. But quadriplegia [sic] is a

5 medical term and you know, it may appear the same

6 to you -- to a lay person. Yes. The weakness

7 that she would have would be similar to

8 quadraplegia [sic].

9 Q Um-hmm. Is a patient in a vegetative --

10 is a patient who has lost the swallow reflex -- or

11 let me backtrack. Does Theresa Schiavo have a

12 swallow reflex? Can she take in fluids?

13 A No. She cannot.

14 Q Does a patient who has lost the swallow

15 reflex, are they subject to any greater incidents

16 of any maladies such as infections or any

17 particular problems?

18 A Yes. Without the swallow reflex, just

19 the normal secretions in your mouth, your saliva

20 could go into the lung. Because normally we just,

21 when fluid collects in the back of her throat

22 throughout the day, we just swallow and put it

23 into the stomach. Without that reflex, its more

24 likely for that fluid to go into the lungs.

25 Q What happens when that occurs in such a

 

254

1 patient?

2 A Normally someone would cough to bring up

3 the phlegm, but even with the cough reflex, still

4 fluid can get down into the lungs. So she is at a

5 high risk for what we consider the aspiration,

6 which is allowing fluid or other contents to go

7 into the lung.

8 Q We have heard some testimony before

9 about that Theresa has had respiratory

10 infections. Would that have any connection with

11 the aspiration you mentioned?

12 A Yes. It could. During the two years I

13 have taken care of her that has not been a problem

14 that I recall, but there is history to suggest

15 this was a problem in the past.

16 Q You mentioned that you found her in

17 exceptionally good physical condition?

18 A Yes.

19 Q What do you attribute that to?

20 A Well, because I take care of many

21 residents in nursing homes, a lot has to do with

22 the care provided, because she is totally

23 dependent on others to provide her care. By

24 paying very close attention to detail in her care,

25 this has allowed her to, at least during the time

 

255

1 period I have been taking care of her, maintain a

2 very good physical condition.

3 Q Have you ever had patients or a

4 patient's family complain that nursing home

5 personnel just don't give that high quality of

6 care on all occasions?

7 A Yes. I have heard of instances where

8 there was some laxity in the care given.

9 Q What role does the family of the patient

10 have regarding -- is there any role the family of

11 the patient has in assuring the patient gets good

12 nursing home care?

13 A My experience has been that the more

14 attention the family gives to the care, the more

15 visits that are made, minor things are brought to

16 the attention of the staff and attended to before

17 they become major problems. So its very

18 important for the family to be involved, or an

19 interested party to be involved, in the care.

20 Q Have you found Mr. Schiavo to be

21 involved in Theresa's care?

22 A Yes. Very much so. And Michael has

23 requested that if there are any changes in

24 treatments, any, even the slightest problems, that

25 he is to be notified immediately. I have spoken

 

256

1 to him on various occasions about any changes I

2 thought may be needed in her care.

3 Q Dr. Gambone, you previously signed an

4 affidavit in this case. Let me show it to you.

5 Do you have a copy of that in your file?

6 A Yes. I do.

7 Q If you can refer to the copy in your

8 file. In paragraph three of your affidavit you

9 state that Theresa Marie Schiavo is not competent

10 to make medical treatment decisions for herself

11 and does not have a reasonable probability of

12 recovering competency so that she may exercise

13 directly her right to withdraw or withhold life

14 prolonging procedures.

15 Can you tell us how you reached the

16 conclusion that Theresa is not competent to make

17 medical treatment decisions and why there is no

18 probability she can regain that capacity?

19 A Yes. I think this is part and parcel

20 with her vegetative state in that she cannot, she

21 does not exhibit any cognitive behavior. Any

22 volitional movement. Any ability that I could

23 perceive of her awareness of her environment or

24 surroundings.

25 Q In your affidavit, you also state that

 

257

1 Theresa Marie Schiavo's condition is terminal.

2 Let me, to refresh your recollection, read to you

3 the statutory definition of terminal. Terminal

4 condition means a condition caused by injury,

S disease, or illness from which there is no

6 reasonable medical probability of recovery and

7 which without treatment can be expected to cause

8 death.

9 Can you explain to us how you reached

10 the opinion that Theresa's physical condition is

11 terminal?

12 A Yes. She has a feeding tube which is

13 placed into the stomach that allows us to provide

14 her with nutrition and hydration necessary for

15 life. Without this particular treatment, she

16 would pass on probably in a matter of weeks.

17 Q Have you had any -- have you treated any

18 patients in which feeding tubes were removed?

19 A Yes. I have.

20 Q Have you cared for patients who died as

21 a result of removal of artificial provisions of

22 sustenance?

23 A Yes. I have.

24 Q Can you explain, medically, how that

25 occurs?

 

258

1 A Yes. Without food and nutrition, the

2 body uses its own energy sources, and when they

3 are exhausted, the vital organs shut down.

4 Particularly the kidneys. When the kidneys

5 deteriorate poisons, which are actually breakdown

6 products of metabolism, accumulate in the body.

7 We use the word uremia to describe this

8 condition. Uremia is a condition which puts one

9 into a deep sleep and they would pass on in their

10 sleep.

11 Q I think you mentioned when a patient

12 does not receive nutrition. Is that the same case

13 for hydration? When a patient receives no

14 hydration at all?

15 A Yes. It is the same condition. It

16 would, I think, be difficult to give hydration and

17 no nutrition because it would prolong the process

18 of dying. It would extend it probably a month or

19 maybe more.

20 Q Does Theresa receive her hydration

21 through the gastric tube as well?

22 A Yes. She does.

23 Q If Theresa no longer receives nutrition

24 and hydration through the gastric tube, in your

25 1 estimation, how many days approximately would it

 

259

1 be before she died?

2 A It would probably be within a couple of

3 weeks.

4 Q In your experience in treating patients

5 who have so died, from a medical standpoint, was

6 it a painful death? Did they require pain

7 medications or significant pain medications as a

8 result of withholding fluids and nutrition?

9 A No. I have never noted anyone to

10 express pain or show signs of pain. Grimacing.

11 Agitation.

12 Q Are you aware of any -- have there been

13 any studies or articles written about the question

14 of whether a death by that means is painful?

15 A Yes. There has been quite a bit of

16 literature from the hospice organization. Also,

17 there were recent medical articles in the Journal

18 of the American Medical Association and also in

19 the New England Journal of Medicine which

20 discusses withdrawl [sic] of feeding tubes and the

21 process of dying. In all the literature that I

22 have reviewed, this is not a painful process.

23 MR. FELOS: Thank you, Dr. Gambone.

24 THE COURT: Cross-examination?

25

 

260

1 CROSS-EXAMINATION

2 BY MS. CAMPBELL:

3 Q Good morning, Dr. Gambone. My name is

4 Pam Campbell and I represent Terri's parents, Mr.

5 and Mrs. Schindler in this action. Have you ever

6 had the occasion to meet Mr. and Mrs. Schindler?

7 A No. I have not.

8 Q Are you aware of their position

9 concerning Terri's feeding tube, whether it should

10 be maintained or not?

11 A Yes. I am.

112 Q How long have you been a practicing

13 physician?

14 A I have been in practice in the State of

15 Florida since 1976.

16 Q Is that when you also received your

17 Florida license?

18 A Yes, ma'am.

19 Q Does Terri have a menstrual period?

20 A Yes.

21 Q Does that cause any extra problems for

22 her?

23 A No more than any woman, but this is

24 something that has to be attended to by the staff

25 because she cannot care for herself.

 

261

1 Q Could she get pregnant?

2 A Yes. She can.

3 Q What would be Terri's life expectancy if

4 the feeding tube were to be maintained?

5 A I cannot give you a definite answer.

6 She is in good physical condition. As far as I

7 know, there is not a lot of data on studies of

8 individuals like this and how long they would live

9 on a tube.

10 Q Do you recall what those articles

11 suggest in the way of a life span?

12 A The articles suggest a shortened life

13 span, but I could not give you a specific number

14 because many of these people are starting at

15 different ages. She's starting at a very young

16 age and there just is not a lot of information

17 about someone that young.

18 Q What is the average age of the patients

19 that you treat?

20 A The average age is probably about 80,

21 85.

22 Q So Theresa is considerably one of your

23 younger patients?

24 A Yes. She is.

25 In all the patients you have treated,

 

262

1 have there been any times when those patients, in

2 a similar vegetative state as Theresa, have come

3 out of that vegetative state?

4 A Not that I know of.

5 Q None that you specifically treated?

6 A Yes. That is correct.

7 Q You testified with Mr. Felos that you

8 had not been contacted ever regarding a change in

9 condition regarding Theresa. Could you elaborate

10 on that a little bit more?

11 MR. FELOS: Your Honor, I object to the

12 form of the question. I believe the testimony and

13 question was were you ever contacted regarding a

14 change of condition regarding Theresa's

15 cognizance. He said no.

16 MS. CAMPBELL: It is my recollection it

17 was not specifically to cognizance, so that is

18 what I was trying to get to.

19 THE COURT: Well, the question had to do

20 with if something happened, how would you handle

21 it. The doctor said those type of changes, if

22 significant, they would contact the physician. I

23 think he simply testified as to procedure. I

24 think your question is appropriate.

25 Q (By Ms. Campbell) Thank you. Doctor,

 

263

1 have you ever been contacted by any of the nurses

2 in the two years you have taken care of Theresa

3 regarding any change in her condition?

4 A Yes. I believe I have.

5 Q Would that be in regard to any laughter?

6 A No.

7 Q Would it be in regard to any twitching?

8 A Not that I recall.

9 Q Perhaps a fever?

10 A Yes. There was an instance where she

11 had an upper respiratory infection that I recall.

12 Q So any medical type of change in

13 Theresa, one way or the other, the nurses would

14 contact you?

15 A Yes.

16 Q When you go to the nursing home, do you

17 review the chart each time?

18 A Yes.

19 Q Do you specifically review the nursing

20 notes?

21 A Yes.

22 Q Do you review the recreation notes?

23 A Not really.

24 Q Do you review the social service

25 progress notes?

 

264

1 A From time to time I do.

2 Q Were you taking care of Theresa Schiavo

3 since February 1997?

4 A 1998.

5 Q 1998 is when you first took over?

6 A Um-hmm.

7 Q Do you recall reading in there any

8 progress notes concerning Terri laughing at jokes-

9 A No. I don't recall.

10 Q Would that make a difference to you in

11 your opinion in the affidavit that you filed with

12 this Court?

13 A I guess that this is very unusual

14 information that I was not aware of.

15 Q I'd like to read to you some of the

16 notes and see if that would bear a change on the

17 affidavit that you have filed.

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

19 have gone through this objection et al before.

20 Counsel is not introducing in evidence the medical

21 records, social service notes of the facility, and

22 because they are not being introduced into

23 evidence, she can't read the contents of those

24 documents in the proceedings, which in essence

25 will make them evidence.

 

265

1 We object on those grounds. In

2 addition, as a matter of fairness, Your Honor,

3 there are probably a couple thousand pages of

4 medical records for Theresa Schiavo which were

5 subpoenaed and both sides had copies. Had

6 opposing counsel mentioned there would be the

7 introduction of some medical records in this

8 trial, we then would have had an opportunity to

9 have one of our witnesses comb the thousands of

10 pages of records and specifically present to the

11 Court the thousands of entries in those records

12 stating the patient was nonresponsive.

13 But we have not done that because these

14 records were not to be introduced into evidence.

15 So I think it's unfair to now selectively take one

16 or two lines of those thousands of pages and try

17 to get them into evidence by reading them.

18 THE COURT: What is the basis of your

19 statement that they are not coming into evidence?

20 MR. FELOS: Your Honor, we exchanged a

21 list of documents that each party -- after the

22 status conference, we exchanged a list of

23 documents that the parties were going to

24 introduce. We listed our documents. We were told

25 the documents that the respondents were going to

 

266

1 introduce and the medical records were not listed.

2 THE COURT: Ms. Campbell?

3 MS. CAMPBELL: I think it would be

4 proper under the impeachment process. This doctor

S has testified that he reviewed the records and

6 came up with his opinion to render before this

7 Court in the form of an affidavit. If there are

8 records -- when he says he reviewed the records,

9 they are voluminous, but the records that I

10 specifically am going to refer to are since his

11 care.

12 I would believe that if he is making a

13 statement of an opinion based on her records and

14 on his experience with this patient, he would be

15 aware of what these notes say specifically

16 pertaining to her laughter. Mr. Felos is the one

17 who provided me with these records.

18 MR. FELOS: Your Honor, number one, we

19 can't cross-examine a line in the medical records.

20 If counsel wanted to present evidence that a

21 social service worker perhaps interpreted

22 Theresa's Schiavo's sounds as laughter, she had

23 the opportunity to find the social service worker

24 and subpoena her as a witness. List her as a

25 witness and subject her to cross-examination.

 

267

1 Number one, the records are hearsay.

2 But number two, even beyond that point,

3 because they were not going to be introduced and

4 used, we did not take the step of going through

5 the balance of the thousands of pages of records

6 to have an opportunity to rebut that.

7 THE COURT: Well, clearly they are

8 hearsay, but there are exceptions to the hearsay

9 rule. One of them is business records. You know,

10 the way Mr. Erhardt drafted the statute,

11 contemporaneously by business documents. I don't

12 know what the record is because it's not in

13 evidence.

14 Were this a trial over simply dollars, I

15 would probably hold you to a little higher

16 standard than what you put on your pretrial

17 statement. For the very limited purpose, although

18 I'm not sure it matters what happened three years

19 ago, I think what really matters is what the

20 condition is today, but for the limited purpose of

21 impeachment, I'll permit you to allow the doctor

22 to read the note.

23 MS. CAMPBELL: Thank you.

24 THE COURT: The evidence is such,

25 because it has not been listed, but for

 

268

1 impeachment purposes see if that alters --

2 MS. CAMPBELL: As one note of

3 correction, we didn't have a pretrial order in

4 this case which required the exchange of evidence.

5 Both parties did give each other a list, but there

6 was not a specific pretrial order that was

7 provided in this case.

8 THE COURT: We will stand corrected

9 then, although with the caliber of attorneys, I am

10 not sure I need an order. So you may show the

11 notes. You will, for the record, tell us what

12 date those notes are and who is the author.

113 MR. FELOS: May I see the notes you are

14 going to show?

15 MS. CAMPBELL: May I approach the

16 witness?

17 THE COURT: Yes.

18 4 (By Ms. Campbell) Doctor, I am showing

19 you a page out of the activities progress notes

20 dated 2-11-98. Were you treating Theresa in

21 February of '98 to your knowledge?

22 A Yes. The date of my first visit was

23 February the 5th. This is dated February 11th.

24 Q If you can go halfway down in the middle

25 of the note where it begins "staff residents are

 

269

1 familiar If you could please read that

2 sentence.

3 A Before I read that sentence --

4 Q Um-hmm.

5 A -- could I just ask -- I see that this

6 is signed by a CTR. Could you explain to me what

7 a CTR is?

8 Q I'm not too sure. Looks like her name

9 is Marie. I'm not sure what the last name is.

10 A I'm not familiar with the term CTR, as

11 to what that signifies.

12 Q I'm not familiar, other than what the

13 note refers to. If you would like to take a

14 minute and read the whole note.

15 A Yeah. It would help me to know who this

16 person is, and you know, are they a recreational

17 therapist? Is this a medical person?

18 MR. FELOS: I believe, if it would

19 assist the proceedings, this is a recreational

20 therapist.

21 THE WITNESS: All right.

22 MS. CAMPBELL: If you would like to take

23 a minute and read the full note.

24 A Okay. Resident's status is unchanged.

25 She is minimally responsive, oriented times one.

 

270

1 Q (By Ms. Campbell) If you really -- I'd

2 just like you to read that silently to yourself

3 and then go down to the main part where it says

4 residents are familiar.

5 A Oh. Okay. Would you like me to read

6 where it says staff residents?

7 THE COURT: We don't need that into the

8 record.

9 MS. CAMPBELL: Okay.

10 THE COURT: It almost does sound like

11 that is true hearsay.

12 MS. CAMPBELL: Okay. If you can take a

13 minute to read that note.

14 THE WITNESS: Yes. I have read it.

15 Q (By Ms. Campbell) Thank you. I will

16 take it back. Do you see where it specifically

17 refers to visitors stopping to tell her jokes?

18 A Yes. It also says that she occasionally

19 laughs. It does not suggest a cause/effect

20 relationship.

21 Q I'm now going to, I would like to now

22 show you recreation notes dated July 23, 1999. If

23 you can specifically read this first portion of

24 it.

25 A This is signed on a different page. Do

 

271

1 you know who made this entry?

2 Q I do not. Would these typically be

3 notes that you would have available to you to look

4 at in the file?

5 A Yes. Those notes are available to me

6 and I did not review those notes from the

7 recreational therapist.

8 Q Excuse me. I do have the second page.

9 It does not really have any notes on it, just the

10 signature.

11 A Okay. Thank you.

12 MR. FELOS: May I see the signature?

13 Q (By Ms. Campbell) On these notes, do

14 you see any comments about --

15 MR. FELOS: Your Honor, I object. I

16 believe what the Court has allowed or instructed

17 is the witness may read the notes and then be

18 asked whether it changes his opinion, without

19 having the substance of the note read or

20 explained.

21 THE COURT: I believe that was what we

22 are to do was to permit the doctor to read the

23 notes to see if they altered his opinion.

24 Q (By Ms. Campbell) Have you ever

25 witnessed Theresa Schiavo laughing?

 

272

[missing text]

 

273

1 I will give you an example. When I

2 examined her, Terri will look around. Her eyes

3 will move right to left. And when you enter the

4 room, if you enter the room when she is looking,

5 she turns her eyes to that side. It appears that

6 she is acknowledging you. It appears that way.

7 You can walk up to Terri and take your hand and

8 put it over her eye and she will not blink.

9 You can take anyone who has the least

10 bit of consciousness and put their hand anywhere

11 near their eye, from the side, and they will

12 blink. And she will continue to look, but will

13 not blink. It is hard for me to appreciate that

14 she knows that something else is there if she

15 can't even appreciate a threat, which is a very

16 basic instinct.

17 Q Are you aware or does Terri currently

18 receive any physical or occupational therapy?

19 A She has from time to time. I think at

20 this point therapy is provided on, they use the

21 term on a restorative basis. It is not done by a

22 licensed therapist. It is done by nursing staff

23 who have been trained in therapy.

24 Q How often does she receive that kind of

25 restorative therapy?

 

274

1 A She should receive this restorative

2 therapy every day as part of the nursing care.

3 Q Would that assist in any stimulation to

4 be provided to Theresa?

5 A You know, I would -- I'm not sure what

6 you are getting at, but I would assume that any

7 type of stimulation would be something, even just

8 in the daily care, which is something that could

9 provoke some response if it was present.

10 Q Is Theresa currently being treated for

11 any infections in the two years you have been

12 treating her?

13 A I recall an upper respiratory infection

14 during that period of time.

15 Q And she was treated?

16 A Yes.

17 Q Have you at any time since you have been

18 taking care of her had Mr. Schiavo ask you not to

19 treat an infection?

20 A No. There were never any occasions

21 where he withheld any treatment that I recall. He

22 was very cooperative.

23 Q Are you aware of any discussions that

24 took place between the nursing home and Mr.

25 Schiavo concerning the treatment of infections for

 

275

1 Theresa?

2 A No. Not that I recall.

3 Q Not in the two years you have been

4 treating her?

5 A No.

6 MS. CAMPBELL: I have no further

7 questions.

8 THE COURT: Redirect?

9 MR. FELOS: Thank you, Your Honor.

10 REDIRECT EXAMINATION

11 BY MR. FELOS:

12 Q You were asked about the treatment of

13 infections, whether under your care Terri has been

14 treated for any infections, and you mentioned a

15 respiratory infection. In fact, hasn't Terri had

16 a bladder infection that was treated?

17 A Yes. Now that you mention it, she also

18 has had a bladder infection.

19 Q How was that bladder infection treated?

20 A With an antibiotic.

21 Q How were the antibiotics administered?

22 A Through the feeding tube.

23 Q Were there any IVs?

24 A I don't recall. But, you know, I really

25 was not prepared to give this detail on her two

 

276

1 year history.

2 Q Um-hmm.

3 A Whether we used an IV at some point in

4 time.

5 Q In your testimony, I believe in the

6 cross-examination you centered on the word

7 "occasional" when Ms. Campbell did read a portion

8 of the notes. I think you made the comment that

9 because the word occasional was used, that would

10 tend to suggest that these are not cognitive

11 responses on Terri's part. Can you explain a

12 little bit more why that is so?

13 A Well, the way it was written, I guess

14 you would have to read the statement, but the way

15 it was written, it is just that passersby are

16 making jokes and occasionally she laughed. Now,

17 okay, does that mean that from that information I

18 should conclude that she was laughing at their

19 jokes? This was a, you know, she received some

20 information which she processed and then decided

21 to laugh in response to it?

22 Q You were on cross-examination and

23 opposing counsel mentioned that Theresa's mother

24 believes that Terri laughs and responds.

25 Theresa's mother testified in her deposition that

 

277

1 one of the actions that she takes to be a

2 cognitive response of Terri is that when she

3 speaks on one side of Terri, Terri will move her

4 head. However, in her deposition, Mrs. Schindler

5 said sometimes she will turn her head and look

6 right at me.

7 The fact that Theresa does not turn her

8 head every time to look at her mother, would that

9 support or detract from your opinion?

10 A I think a consistency would be helpful

11 to me. If you said nine out of ten times she

12 turned to me, that would have some meaning. But

13 if it was occasional, a random act --

14 Q Sometimes?

15 A -- suggests a more random act rather

16 than a purposeful act. That is what I can glean

17 from the information that you have provided and

18 from the notes of the recreational therapist.

19 Q You were also asked about, I think

20 menstrual pain or pain or moaning. Do you agree

21 with the opinion of Dr. Barnhill that moans that

22 Terri has in response to certain stimuli that we.

23 would consider painful is a brain stem response?

24 A Yes. I would. I think that, if I can

25 just give you an. example, that if you were to

 

278

1 touch a hot stove with your finger, you would pull

2 it away very rapidly or before you really

3 perceived what had happened because that is a

4 higher function. I think this is a brain stem

5 response.

6 Q Okay. How often do you go to nursing

7 homes?

8 A Every day.

9 Q You are familiar with -- you are board

10 certified in making sure people get quality care?

11 A Yes, sir.

12 Q Is it fair to say you are somewhat

13 familiar with how nursing homes work?

14 A Yes, sir.

15 Q Do you have any idea as to what

16 training a person who is in the activity program

17 of a nursing home might have? Do they go to

18 medical school?

19 A No. They do not.

20 Q Do they go to nursing school?

21 A No. They do not.

22 Q Do you know whether they have any

23 clinical training or skills to be hired to sit

24 with the residents and play cards with them or

25 watch TV with them as engaged in activities with

 

279

1 them?

2 A I'm not aware of the specific

3 qualifications of the individuals that had made

4 notes in the record.

5 Q Would you disagree that -- would you

6 disagree with the statement that no specific

7 training is required for those positions?

8 A Perhaps that is true. I really could

9 not say for sure.

10 Q As a physician, would you give much

11 weight to a medical diagnosis given by someone

12 hired by a nursing home to play cards or watch

13 television with a resident?

14 A Would you repeat that question again?

15 Q Would you give, as a physician, would

16 you give much weight to a medical opinion given by

17 an individual hired by a nursing home to play

18 cards and have activities with a patient?

19 A I certainly would respect their opinion

20 and would review the situation myself and try to

21 recreate what they have described. You know, in

22 my experience and from my discussions with others

23 who are more knowledgeable of medical issues,

24 this was not apparent to my observation or the

25 observation of those whose judgment I feel, you

 

280

1 know, is worthy of note.

2 Q Thank you. Dr. Gambone, you are a

3 caring physician; you are interested in Theresa's

4 welfare; is that correct?

5 A Yes. I am.

6 Q Is there any reason whatsoever that you

7 would not say you believe Theresa was responsive

8 or had cognition if you felt that was so?

9 A No. There is no reason for me not to

10 only give you the information that I have and

11 make an opinion based upon my knowledge and

12 expertise in the area.

13 MR. FELOS: Okay. Thank you.

14 THE COURT: Any recross?

15 MS. CAMPBELL: No.

16 THE COURT: Is Dr. Gambone under

17 subpoena?

18 THE WITNESS: Yes.

19 THE COURT: Is there any reason for him

20 to be retained further?

21 MR. FELOS: No.

22 MS. CAMPBELL: No, Your Honor.

23 THE COURT: Thank you. Doctor, you are

24 released from your subpoena.

25 THE WITNESS: Thank you.

 

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1 MR. FELOS: Call Beverly Tyler.

2 THE BAILIFF: Stop and stand here. Face

3 the judge. Raise your right hand to receive the

4 oath.

5 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

6 THE COURT.)

7 THE COURT: Be seated in that chair,

8 please.

9 DIRECT EXAMINATION

10 BY MR. FELOS:

11 Q Good morning.

12 A Good morning.

13 Q State your full name and address,

14 please.

15 A My name is Beverly Tyler. 158 Adair

16 Street in Decatur, Georgia.

17 Q How are you employed at this time,

18 Ms. Tyler?

19 A Executive director of an organization

20 called Georgia Health Decisions.

21 Q Can you tell us what is Georgia Health

22 Decisions?

23 A Sure. We are a nonprofit organization

24 in Georgia. Federally tax exempt. Our mission is

25 threefold. Educate Georgians about health care

 

282

1 issues, understand their attitudes and values

2 around health care decisions, and report those to

3 people who make health policy in our state.

4 Q Tell us a little bit about the structure

5 of your organization. How many employees?

6 A There are eight employees at Georgia

7 Health Decisions. Three of them live in Atlanta.

8 Others are community based. We do a lot of

9 community based work around the state. There is a

10 volunteer Board of Directors of about 40 people

11 and many volunteers who work on projects

12 throughout the state.

13 Q Why was Georgia Health Decisions formed?

14 A We began our organization in 1991. It

15 was sort of at the height of, at the time, talking

16 about health care reform in the state. We had not

17 had much managed care. Twenty-two percent were

18 uninsured. There were a lot of rising costs in

19 insurance. A lot of those issues everybody in the

20 country faced. A lot of plans about health care

21 reform. We were the public voice._ We formed to

22 be the public voice in health care issues.

23 Q Have you been executive director since

24 the organization was formed?

25 A I have. Since 1991.

 

283

1 Q What is the source of funding?

2 A Its a charitable foundation

3 primarily. We get some founding on a project

4 basis from state government. Not a regular

5 funding from the state government.

6 Q Ms. Tyler, please tell us your

7 educational background. Also your employment

8 background prior to being executive director of

9 Georgia Health Decisions.

10 A Masters. Bachelors. Masters in

11 Geography from the Univsity [sic] of Georgia. My first

12 employment was from 1 71 to 1 73, environmental

13 planner, Georgia Department of Transportation. My

14 second employment was at an architectural firm,

15 Stevens Wilkinson Marketing Directors. There was

16 thirteen years prior to coming to Georgia Health

17 Decisions.

18 Q Why is it that a health care related

19 organization selected somebody whose educational

20 employment background was outside of health care

21 for that position?

22 A Because the whole premise-of Georgia.

23 Health Decisions was to bring the public voice

24 into the health care system without any

25 preconceived ideas about what that should be or

 

284

1 what the solutions for health care were. The

2 people, the Board that was forming Georgia Health

3 Decisions at that time, was afraid if they hired

4 somebody with a health care background that they

5 would come with a lot of baggage. A lot of

6 preconceived ideas with the solutions. They

7 specifically looked for someone outside of health

8 care.

9 Q Refreshing approach. Ms. Tyler, are you

10 familiar with a report by American Health

11 Decisions titled "The Quest to Die with Dignity"?

12 An analysis of American values, opinions, and

13 attitudes concerning end of life care?

14 A I was the primary author of that

15 report. It is a focus group study. I conducted

16 at least half, maybe more, of the focus groups

17 related to that study.

18 Q What was the overall purpose of this

19 report?

20 A Well, the overall purpose was to really

21 try to understand how Americans feel about health

22 care issues at the end of life. To sort of

23 identify their values, opinions, and attitudes.

24 It was funded by the Robert Wood Johnson

25 Foundation because they were interested in

 

285

1 beginning two initiatives. One, to educate

2 physicians about health care at end of life. The

3 other, to create a sort of statewide public

4 awareness campaign around health care issues

5 around the end of life. They wanted to know the

6 public starting point on those issues as they

7 funded those two other projects.

8 Q Was this report issued by American

9 Health Decisions rather than Georgia Health

10 Decisions, which was your organization?

11 A Sure. American Health Decisions is sort

12 of a loose affiliation of a number of state

13 associations who do similar things to what we do.

14 The Robert Wood Johnson Foundation was familiar

15 with those and called several of us to a meeting

16 together to talk about how to do this approach.

17 What expertise that American Health Decisions had

18 to do this.

19 It became clear that Georgia Health

20 Decisions was sort of the organization with the

21 most experience in this. Because it was a

22 national study, it seemed appropriate that

23 American Health Decisions be the grantee for the

24 grant, although Georgia Health Decisions sort of

25 led the effort. Wisconsin also had a small role

 

286

1 in the development of the study.

2 Q How much did the Robert Wood Johnson

3 Foundation pay to fund this research and report?

4 A About $250,000.

5 Q You mentioned a little bit about how the

6 report was conducted. I would like to go into

7 that in more specifics. What you mentioned is

8 something about a focus group research. Can you

9 explain a little more what that is? How the

10 methodology of the research was conducted?

11 A This is qualitative as opposed to

12 quantitative. Qualitative is often done when you

13 want to find out why people feel the way they do.

14 How do they come to the values they have. To

15 explore more the attitudes and opinions that you

16 can't get in a simple yes or no answer where you

17 can count answers.

18 So focus groups are small conversations

19 led by a trained facilitator with a predetermined

20 set of questions asked in every group so you are

21 having the same conversation with the same

22 people. The participants are randomly selected to

23 represent the cross section of people you are

24 trying to get the opinions and attitudes of.

25 The conversations are recorded, and

 

287

1 transcribed, and later analyzed in different ways

2 to figure out what are the recurring feelings.

3 What are the recurring attitudes and opinions of

4 people that participated.

5 Q How is it determined how many focus

6 groups you had and how many people are in them?

7 A It depends on what you are trying to

8 reach. We were trying to reach a cross section of

9 Americans. We did a certain number of groups.

10 Twelve throughout the country. Sort of randomly

11 selected cross demographics. Different ages,

12 incomes, racial backgrounds, religious

13 backgrounds.

14 We wanted to know if there were

15 differences of opinion on end of life care

16 because of age, religious background, ethnic

17 background. So we did a number of specific groups

18 with people of a certain religious background, age

19 background, or ethnic background.

20 Q How many focus groups and actual

21 participants were there in this study?

22 A Thirty-six in this study across the

23 country. About 385 participants.

24 Q Thirty-six groups with 385 participants?

25 A Yes.

 

288

1 Q Were there any other professionals

2 assisting you in the focus group research and data

3 collection analysis?

4 A Sure.

5 Who were those people?

6 A The primary team was a woman name Terri

7 Lofton (phonetic), a medical anthropologist, who

8 is trained to look at conversations and draw out

9 what the values or underlying conversations are.

10 A public policy analyst, Michael Perry, was

11 involved. I did part of the analysis. A

12 statistician name Frank Miller did part and an

13 ethosist [sic] from Wisconsin, Dr. Jack Stanley.

14 Q Ms. Tyler, when was that report issued?

15 A In September of 1997.

16 Q Have you participated in any further

17 research and study in this area since the

18 publication of your report?

19 A I have. Based on some of the findings

20 we had from this study, we went back to Georgia

21 and wanted to explore some of the -issues a little

22 deeper in Georgia. We held twelve focus groups

23 randomly in Georgia with Georgia citizens. Nine

24 with health care professionals. We most recently

25 have done eleven focus groups with family members

 

289

1 of patients tied in to hospitals in Georgia in the

2 last year. Also done similar work in North

3 Carolina. We continue to do some work on this

4 issue.

5 Q Have you presented the findings in your

6 report to any professional organization?

7 A Quite a number.

8 Q Tell us a few.

9 A The national meeting of the American

10 Society on Aging. National Hospice Organization.

11 At John Hopkins Institute, I've been a guest

12 lecturer on this issue.

13 Q Have you lectured on end of life issues

14 before any organizations?

15 A Sure.

16 Q To your knowledge, Ms. Tyler, has there

17 ever been undertaken or published a study or

18 report in this area as extensive as "The Quest to

19 Die with Dignity"?

20 A No. No. The reason being, it's pretty

21 expensive an undertaking to do this nationwide.

22 You have to have a funder be interested in getting

23 the information, like Robert Wood Johnson was, to

24 be able to do this work.

25 Q At this time, I offer the witness as an

 

290

1 expert on the subject of American's values,

2 opinions, and attitudes concerning end of life

3 care.

4 THE COURT: Do you wish to voir dire?

5 MS. CAMPBELL: No, Your Honor. I accept

6 those as expert in that area.

7 THE COURT: Excuse me?

8 MS. CAMPBELL: I accept her as an expert

9 in that particular area.

10 THE COURT: Thank you.

11 Q (By Mr. Felos) Ms. Tyler, what

12 materials have you reviewed in preparation for

13 your testimony?

14 A I reviewed paragraph ten from the

15 suggestion of bias on the part of the guardian ad

16 !item. I reread the deposition of Robert

17 Schindler, deposition of Mary Schindler, the

18 deposition of Robert Schindler, Jr. and the

19 deposition of Susan Carr.

20 Q In your research and report, did you

21 take note of the ways in which persons express

22 their desires and feelings regarding the

23 application of artificial life support and other

24 end of life medical treatment issues?

25 A Yes. I think one of the key things we

 

291

1 found is how difficult the conversation is about

2 death and dying. How much people avoid the

3 conversation. Generally, it's stimulated by

4 outside stimulus. It is a very short

5 conversation, unless people have had sort of a

6 family experience that leads them to have a more

7 indepth [sic] conversation on this issue, or if they are

8 in the middle of a terminal illness themselves.

9 For the most part, avoidance and very short

10 conversations.

11 Q Let's backtrack from the fact that oral

12 statements tend to be categorized by an event and

13 look at written directives.

14 A Okay.

15 Q What percentage of adult Americans have

16 living wills, if you know?

17 A That is -- there are no strong

18 statistics on that because of the issues, issues

19 of language or those kinds of things, but the best

20 estimates from people in the field are about 13 to

21 15 percent of people actually have a written

22 document. Generally those are people older --

23 over 50, over 55 -- who have had some catalyst in

24 wanting to complete a document of that nature.

25 Q Would it be fair to say that a person in

 

292

1 their twenties would be much less likely than the

2 national average to have a written living will or

3 directive?

4 A Absolutely. It's not a conversation

5 that people in their twenties have. it's

6 certainly not something they feel compelled to do,

7 because they are young, healthy. It's not going

8 to happen to them for years to come. Like I said,

9 there are no statistics. My personal opinion is

10 that I would be surprised if 2 percent of the

11 population in their twenties actually had a

12 written document.

13 Q Of the population in their twenties?

14 A Um-hmm.

15 Q The fact that Theresa Schiavo did not

16 have a written advanced directive specifying her

17 medical treatment wishes, because of that fact, do

18 you think it is fair to say because she did not

19 have an advanced directive that she wanted to be

20 kept alive artificially?

21 A No. Not at all. Most people who do not

22 have advanced directives would tell us when their

23 time came they would like to die naturally. The

24 main issues why people don't have them is because

25 they don't like the document. They don't

 

293

1 understand. They have a whole problem with the

2 legal business of putting it in writing, but they

3 trust their family members to do what they want

4 done for them.

5 Q Let's go back to the method in which

6 oral statements are made. Was that addressed

7 anywhere in your report? The issue of how

8 conversations come about?

9 A Yeah. Like I said, a lot of them are

10 started by some kind of external stimulus. I

11 marked a passage in the report that might help

12 clarify that for you. If you need to know, it is

13 on Page 18 of the report.

14 Some of those in focus groups who had

15 conversations with a local --

16 THE COURT: Stop. You read much quicker

17 than you talk. Our court reporter is super, but

18 the machine has a limitation, so slow done,

19 please.

20 A I will. Thank you. Some of those of

21 the focus groups who had coversations [sic] with the

22 loved one appeared to have not really had a

23 conversation at all, but rather to have made a

24 spontaneous observation about something they do

25 not want to happen to them. They told of vague

 

294

1 references to being hooked up to machines or

2 seeing a television program and having said don't

3 let that happen to me. Many of the focus groups

4 believed that is good enough.

5 When talking about loved ones, many

6 participants made comments like "they just know

7 how I feel" and "I trust them to make the right

8 decisions" suggesting they do not feel compelled

9 to write these wishes down as advanced directives

10 So for most people, some kind of

11 external stimulus. Some short conversation where

12 you say that I don't want that to ever happen to

13 me.

14 Q So I gather, based upon your research,

15 that the average American does not sit down one

16 day and go to their spouse and say, "Well, gee.

17 If I happen to be in a totally impaired condition

18 with minimal degree of consciousness, then under

19 those circumstances, this is what I'd like you to

20 do for me."?

21 A No. Not at all. First of all, you

22 know, I told you we avoid having that conversation

23 altogether anyway. We actually avoid even

24 associating with people going through death and

25 dying, unless we have to. For most people, it's

 

295

1 not sort of in the realm of consciousness the kind

2 of decisions that may need to be made one day.

3 The kind of decisions that should they be in that

4 place in their life, without that consent or

5 awareness. You don't have a detailed conversation

6 about specific treatments that you would or would

7 not want.

8 So they use these metaphors or

9 euphemisms like "being hooked up", "pull the

10 plug". Those kinds of things.

11 Q Now in this case, Ms. Tyler, there has

12 been evidence that Theresa Schiavo, in response to

13 her grandmother's impending death and the

14 dependency issue of her uncle, said to her husband

15 that if I had to be cared for by others, please

16 don't let me live like that. And in response to a

17 television program where somebody was severely

18 impaired or on machines, either said to a

19 sister-in-law or her husband, "Not for me. I

20 don't want to be kept alive artificially."

21 Assuming that occurred, do you have an

22 opinion whether such declarations of Theresa -

23 Schiavo were made in a manner consistent with the

24 way you found declarations to be made in your

25 report?

 

296

1 A Yes. I mean, they really reflect many

2 of the underlying values people bring to this

3 discussion. Sort of the value of freedom and

4 independence and self-reliance of not wanting to

5 be cared for by something else. Not wanting to be

6 a burden to family. Wanting death with dignity.

7 Wanting a quality of life that provides them some

8 level of independence. Again, I have passages

9 that I could read to you regarding those values.

10 Q Let me backtrack a little bit first.

11 A Okay.

12 Q I think you already mentioned in your

13 report that people use phrases like "hooked up on

14 machines". As you got into your focus groups and

15 probed that deeper, what did people mean when they

16 said "I don't want to be hooked up to machines"?

17 A They basically meant they don't want

18 their life artificially extended. If they can't

19 live on their own, they don't want a machine or

20 some other kind of life sustaining treatments to

21 keep them alive beyond their natural death. Like

22 again, a euphemism to all the kinds of things that

23 could be done to a person to extend their life

24 beyond their natural death.

25 Q Including artificial hydration and

 

297

1 nutrition?

2 A Yes.

3 Q In your focus group research, were

4 people familiar with the nature of the medical

5 devices used to sustain people? I mean, did they

6 know how a respirator worked? What has to be done

7 to intubate a patient? How artificial provision

8 of sustenance and hydration is made? Did people

9 understand the technicalities of how that was

10 done?

11 A Only those who had been through the

12 experience with a loved one or someone close to

13 them. But the normal person, lay person who has

14 never been through that, they really don't. They

15 don't have any clue and they don't want to think

16 about it or talk about it and certainly not find

17 out about it on their own.

18 They use the terms "don't put me on

19 machines". "Don't hook me up". "If it is my

20 time, pull the plug". Do you want me to sort of

21 read the report?

22 Q A euphemism which means what to them?

23 A Which means let me die a natural death.

24 When it's my time, it's my time. Sort of let me

25 go.

 

298

1 Q I think we touched on this. On some of

2 the factors that were included in that

3 expression. Not being a burden. Being

4 self-reliant. Let me ask it this way. What

5 factors did you find most concerned people

6 regarding end of life medical treatment and

7 application of artificial life support?

8 A Quality of life is probably the primary

9 concern. Quality of life also deals with

10 self-reliance, independence, being able to take

11 care of themselves. Not being a burden on their

12 family. Having some kind of dignity at the end of

13 their lives. Quality of life really was a key

14 factor. People define that in different ways.

15 Q Did you cite in your report -- do you

16 have any examples in your report that demonstrate

17 that concern that most people felt when using

18 these metaphors?

19 A About quality of life?

20 Q Yes.

21 A Um-hmm. While some individuals maintain

22 they could gain satisfaction from life if they

23 were aware and could only minimally communicate,

24 others contend that quality of life would be

25 conditional upon their being independent and

 

299

1 having some degree of mental comprehension and

2 physical ability. Being dependent on others for

3 every need envoked [sic] images of indignity and

4 humiliation.

5 Q I think you mentioned values of being

6 self-reliant or freedom and personal control.

7 Were there any examples of this?

8 A Given the uncertainty about the proper

9 usage and benefits of medical technology, many

10 participants feared they or a loved one may remain

11 on life support without the possibility of

12 regaining a semblance of normal life, being in a

13 vegetative state or unconsciously aware kept on

14 life support artificially. Being hooked in a trap

15 which they are ensnared by dependency to the wires

16 that plug them into an exterior power source and

17 food tubes that deliver food and oxygen.

18 This entrapment occurs because they no

19 longer have control of choices as individuals, but

20 are subordinate to the rules and procedures of

21 medical and legal institutions. So a lot of

22 conversation about that.

23 Q Were these prevalent, or consistent

24 themes that you found among individuals?

25 A Very consistent. I would say that it

 

300

1 surprised me, the consistency with which the

2 people talk about that. When it is their time,

3 they would like to have a natural death. They

4 don't want to be hooked up to machines. They want

5 to sort of go naturally.

6 This issue of self-reliance and

7 independence and being a burden is really quite

8 prevalent.

9 Q Was there any themes, or did the fact of

10 the probability of recovering, factor into a

11 person's feelings as to whether they would want

12 artificial life support?

13 A Certainly. I mean, people don't say

14 that they never want any kind of life support if

15 it can give them a normal quality of life. If it

16 can return them to some quality of life, they

17 certainly will do what they call try it for a

18 while.

19 What they really don't want, when people

20 say I don't want to be on machines, they don't

21 necessarily mean I don't want to be on a machine

22 ever, but they don't want to live on machines is

23 what they mean. To be on them to prolong death

24 when death is, would be the natural extension of

25 what happens to them.

 

301

1 Q Or when there is no hope of improvement?

2 A When there is no hope of improvement.

3 Q Did you come across any themes in your

4 report about how a patient felt or person felt

5 about their personal appearance about not wanting

6 to be seen by others if they were in an impaired

7 or unconscious state?

8 A There was sort of an under theme of that

9 that came out. We did not pursue it a lot because

10 it did not become obvious until we had read a lot

11 of the transcripts, but there were a number of

12 people, because of a control issue, who did not

13 want to die in front of somebody because they

14 don't like to be seen as vulnerable and weak. So,

15 yes. It was not as prevalent a theme as many of

16 the other themes that came out of the study.

17 Q In your opinion, Ms. Tyler, were the

18 oral declarations as relayed to you of Theresa

19 Schiavo consistent or inconsistent of the

20 predominant values of the persons found in your

21 report?

22 A Exactly what we expected, particularly

23 for someone her age. That she would not have had

24 an intense conversation about this issue, that

25 her conversation would have been the result of a

 

302

1 personal illness, an uncle, a grandmother's

2 illness, a television show. Somebody that they

3 know.

4 That it would have been short

5 conversations like I would not want to live that

6 way. I would not want people to take care of me.

7 I would not want to be hooked up. If that happens

8 to me, pull the plug. Those are typical kinds of

9 conversations. Yes, it would be a typical way

10 that people would convey their wishes on this

11 issue.

12 Q You may recall in the depositions of Mr.

13 and Mrs. Schindler and their daughter, Susan, and

14 son, Robert, statements to the effect that if they

15 were in a permanent or vegetative state with no

16 hope of recovery that they would want all medical

17 treatments whatsoever to keep them alive. I think

18 three out of the four said if they developed

19 gangerine [sic] and needed to have limbs amputated to

20 maintain life in that condition, they would do so

21 rather than choose to die. Do you recall those

22 statements?

23 A I do.

24 Q In your research and interviews and

25 focus groups of hundreds of people, have you ever

 

303

1 come across a belief or expression that extreme?

2 A I have not. We certainly had people

3 that say, yes, I want to be kept alive, but not to

4 the extreme that they want amputation or surgery

5 or anything like that if they were in a vegetative

6 state.

7 Q In the deposition of Mrs. Schindler,

8 she mentioned that if she was in that condition, a

9 permanent vegetative state, even if the medical

10 treatment impoverished her family, she would still

11 want it. Do you recall that statement?

12 A I do.

13 Q Was the cost of care and burden on a

14 family, financial burden on a family, something

15 that was a theme that came up in your research?

16 A Very much so. As a matter of fact, when

17 they talked about being a burden, the first thing

18 they talk about is a financial burden and not

19 wanting to exhaust family resources to take care

20 of me if there is no hope of recovery. I would

21 not want my family to be left financially

22 strapped. I would not want to use up all our

23 resources.

24 So being a burden sort of starts with

25 being a financial burden and working its way

 

304

1 through to be a physical and emotional burden.

2 Q I would like to read to you from Mary

3 Schindler's deposition of August 12, 1999. Page

4 39, Line 16.

5 Question. Well, in your mind, does

6 there come a point in time where the experience of

7 discomfort or pain on the part of the patient

8 becomes a factor in deciding whether to remove

9 life support?

10 Answer. No.

11 Were the persons in your focus groups at

12 all concerned about suffering pain in end of life

13 care and how that issue of pain related to

14 continued artificial treatment?

15 A Certainly. Pain is -- we talked to

16 people about how far they would go to pursue care

17 and what should be done as far as treatment of

18 people with terminal illness. One of the first

19 things is do whatever you can to manage pain.

20 That is everyone's primary concern. Both as a

21 patient and as a family member, that is a primary

22 concern.

23 The compassion of not wanting someone to

24 be in pain, they would say, "I don't care. Give

25 them as much pain relief as they need, even if it

 

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1 hastens death, even if it makes them sort of

2 unconscious, because I don't want to see my loved

3 one suffer." So pain is really a key issue with

4 people who are talking about how far to pursue

5 care and how much pain medication to administer.

6 Q In determining in your study, for the

7 average person in determining if a person

8 determined they did not want to be kept alive

9 artificially, they wanted to go when their time

10 came, they did not want to be taken care of by

11 others, they did not want to be a burden, did you

12 see much distinction in that belief for a patient

13 who might be in a vegetative state as opposed to a

14 patient who might be significantly and permanently

15 impaired?

16 A Certainly. Because when you talk about

17 quality of life, cognizance seems to be a key

18 there. You know, if people can be cognizant and

19 can be aware and communicate in some way with

20 their loved ones, many people define that as

21 quality of live to continue as opposed to when you

22 sort of lose that level of cognizance, that

23 ability to communicate in any way to have

24 meaningful exchanges.

25 Q What did they mean by communicate and

 

306

1 have meaningful exchanges?

2 A Let me see if I can find some examples

3 that might help that. The importance of

4 self-reliance was most evident in participants'

5 discussion concerning quality of life. This

6 feeling was dramatically expressed by a guy in New

7 Orleans who confided "I really, truly would rather

8 be dead than to sit down and have somebody do just

9 about everything for me."

10 Ed Leeman (phonetic) from West Virginia

11 defined quality of life as being able to care for

12 your basic needs. Feed yourself. Go to the

13 bathroom. Get up and move about. Do things for

14 yourself. As long as you don't consider yourself

15 a burden on people. A man from Maine admitted he

16 would not want anyone to take care of him, and an

17 Indiana woman felt strongly that she did not want

18 to depend on someone else. Those are the kinds of

19 ways people talked about this quality of life.

20 Q Well, when people said, gee, I would

21 want to stay alive if I could communicate, what

22 did they mean? Did they mean talking?

23 Conversation?

24 A No. They did not necessarily have to

25 have conversations. What they had to have is some

 

307

1 cue of I'm sending you a signal; I'm sending you

2 one back. We understand what is going on with

3 each other. I'm conveying to you my wishes. A

4 lot of times you can still do that even if you

5 can't talk. You can write it down or it's a

6 conveying of wishes. Conveying an exchange of

7 thought processes.

8 MR. FELOS: I have no further

9 questions. Thank you.

10 THE COURT: Ms. Campbell, cross-

11 examination?

12 CROSS-EXAMINATION

13 BY MS. CAMPBELL:

14 Q Thank you. Good morning, Ms. Tyler. My

15 name is Pam Campbell. I am the attorney for Mr.

16 and Mrs. Schindler, the parents of Theresa

17 Schiavo.

18 A Certainly.

19 Q Is there an organization similar to

20 yours in Florida?

21 A There is not a Florida Health

22 Decisions. There is an organization called Aging

23 with Dignity that does some of the similar kinds

24 of work around health care at end of life helping

25 people prepare and-have conversations.

 

308

1 Q Did they participate in this national

2 study?

3 A They did not.

4 Q Out of your study, there were 385

5 participants?

6 A Um-hmm.

7 Q So your comments and readings this

8 morning from the different parts of the study are

9 based on these 385 participants?

10 A They are.

11 Q What was the average age of the

12 participant?

13 A I can't tell you. What we did was, for

14 twelve of the groups, we did a cross section of

15 the American population and recruited individuals

16 to represent the different age groups of the

17 population. Then we did some groups specifically

18 with participants that were 18 to 34; 35 to 55;

19 55 to 65 and over 65. That way we did not ever

20 alienate the average age of all groups together.

21 Q Did you notice a distinction in people

22 of the age group of 25 to 35 versus older people

23 70 and up?

24 A There was some very, very small

25 distinctions. What we really came away from this

 

309

1 report feeling was the magnitude of which most of

2 the major themes out of the report were prevalent

3 throughout the society, throughout age groups,

4 throughout the religious groups, throughout the

5 ethnic groups.

6 The differences we saw were on specific

7 issues like physician assisted suicide and very

8 specific things like that. The broad feelings,

9 values, were pretty widely held throughout the

10 population.

11 Q Were any of these participants from

12 Florida?

13 A Yes. They were.

14 Q Do you know how many?

15 A We did two focus groups in Florida. So

16 there must have been about 24 to 28. Something

17 like that.

18 Q How did you become a participant in the

19 study?

20 A Because of the prior work that we have

21 done at Georgia Health Decisions, we have been

22 doing this work in Georgia since 1991 and trying

23 to understand citizen's values around health care,

24 we have held probably 700 to 800 focus groups in

25 Georgia. We held thousands of community forums.

 

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1 Q My question is really more how would a

2 person become a participant in this study?

3 A They were randomly recruited from a call

4 List. When we go into the city, we contract with

5 an independent contractor that does this kind of

6 thing for a living. They randomly recruited

7 people. They tell them what the conversation is

8 going to be. We pay participants to come to get a

9 cross section of people. If need be, we actually

10 go out and provide transportation, if people have

11 trouble getting there, to try to make sure we do

12 get a good cross section of individuals.

13 Q Was there a type of average pay for

14 participants to be involved?

15 A Yes. It was between 35 to $50.

16 Generally, if you were in a rural area, you pay

17 somebody $35. If you were in New York City, you

18 had to pay a little more to try to get -- to

19 entice them.

20 Q Would the focus groups be at one

21 particular setting?

22 A Yes.

23 Q So they received anywhere from 35 to $55

24 for an afternoon of discussion?

25 1 A It was two-and-a-half hours. Everybody

 

311

1 in one focus group would get paid the same amount

2 of money. So if it were in Indianapolis, you

3 might have gotten $35. If you were in New York

4 City, you might have gotten $50.

5 Q In your statistical configuration, was

6 there any way to know or question these people as

7 to their personal experience with end of life

8 decisions?

9 A We did. In addition to the focus

10 groups, we had 29 participants that were either

11 terminally ill at the time or had a family member

12 or someone who recently died that we did indepth [sic]

13 telephone interviews with, one-on-one, to get that

14 personal experience of, recent experience of

15 people going through that situation.

16 But when you randomly recruit people,

17 you will get the cross section of people who have

18 had that experience; who have not had the

19 experience. Going through it all, those

20 experiences come to the table in this kind of

21 research.

22 Q Do you know the statistics as far as how

23 many people have gone through the experience of a

24 loved one as opposed to -- personal experience as

25 opposed to an ill person?

 

312

1 A I don't. Because this is quantitative [sic]

2 research. You don't have the quantatative [sic] numbers

3 that you are getting at. You can't say from focus

4 group research, you can't say therefore 65 percent

5 of the people in the country feel this way. It is

6 not that kind of research. It is more when you

7 are trying to get to what underlies people's

8 values. What they say. Why they say it.

9 Q Where were the two focus groups in

10 Florida held?

11 A I think one was in Miami. The other one

12 was in Jacksonville.

13 Q Did you have a specific focus group on

14 the Catholic faith?

15 A We did.

16 Q How many people participated in that

17 group?

18 A We had two groups. So again, there

19 would have been somewhere between 24 and 28.

20 Q Did you notice -- what other types of

21 faiths did you have focus groups tan?

22 A Protestant, Jewish and Muslim.

23 Q Did you notice any significant

24 difference in the Catholics over --

25 A Not on the primary issues. Again, there

 

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1 were only like seven very specific issues that we

2 saw any differences among any of the categories.

3 Let's see. The Catholic response for this group

4 shows that they are more likely to trust

5 physicians. They are somewhat more comfortable

6 with discussions about death. More likely to

7 agree that physicians should initiate end of life

8 discussions and less likely to support mandatory

9 living wills. They are split in support for

10 physician assisted suicide.

11 So those are the only distinctions we

12 could attach to someone being Catholic, as opposed

13 to another religion.

14 Q Was part of that focus group or one of

15 the questions for them to discuss the issue of

16 artificial feeding? Nutrition and hydration?

17 A We did not discuss specific treatments

18 about extension of life because we were getting

19 more at general ideas of opinions and attitudes,

20 and because most people are not that familiar with

21 these specific kinds of treatments.

22 But when we ask -- when people would

23 make these comments about pulling the plug, we

24 would ask what does that mean to you. We would

25 ask questions like would that also include

 

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1 artificial feedings. Those kind of things.

2 Q Did you find in the different focus

3 groups a difference between people's values and

4 beliefs on life sustaining as to a ventilator

5 versus food? Artificial sustenance?

6 A Not in general. No. No. If the -

7 sort of the determining factor is if anything is

8 sort of keeping me alive and I can't get better,

9 if I'm not going to regain a quality of life, then

10 I would not generally, the prevailing attitude is

11 I would not want that.

12 So the key, the key is is there a hope

13 for me to get better. Would I regain a quality of

14 life. If I'm not going to do that, don't do

15 anything to prolong my death.

16 Q Was there a specific question for these

17 groups to discuss the distinction between the

18 differences of a ventilator versus artificial

19 sustenance?

20 A No.

21 Q So your comments pertaining to that are

22 from the comments that would have been asked

23 voluntarily to pursue a further question?

24 A Right. When the topic would come to the

25 table, the facilitator would ask the question what

 

315

1 does that mean to you.

2 Q These were groups of about twelve people

3 each?

4 A Yeah. Twelve to fourteen.

5 Q Have you ever met Theresa Schiavo?

6 A I have not.

7 Q Have you met with her parents?

8 A I have not.

9 Q You stated that you had reviewed

10 paragraph eleven of the suggestion of bias on the

11 part of the guardian ad litem; is that correct?

12 A Um-hmm. Let me make sure that was the

13 paragraph that I -- paragraph ten.

14 Q Ten.

15 A Um-hmm.

16 Q Did you read the report of the guardian

17 ad litem?

18 A I did not.

19 Q Were you informed in any way about

20 comments that Theresa would have made pertaining

21 to maintaining life on a feeding tube or any kind

22 of artificial sustenance?

23 A No. No. I read this and I read the

24 depositions.

25 Q So you were not given any of the

 

316

1 information that the parents would have thought

2 their daughter's wishes would be?

3 A No. Well, other than what is in the

4 deposition. I did read the depositions.

5 Q Which were the depositions taken by

6 Mr. Felos; correct?

7 A I assume.

8 Q Would the credibility of any of the

9 statements contained in paragraph ten, would that

10 change your opinion as to, one way or the other,

11 as to whether or not Theresa fell within the norm

12 of your study?

13 A Paragraph ten basically, to me, said

14 this is how she had her conversation. That it was

15 a response to a stimulus. It was reaction to a

16 loved one that was ill. It was in reaction to an

17 uncle or grandmother. So from reading those

18 paragraphs, those pages, it was a typical way that

19 people have conversations.

20 Q Would it also be typical if she made

21 comments the other way?

22 A It would have been typical in the

23 stimulus for the conversation, some external

24 stimulus. There are people who do say I want to

25 be kept alive no matter what, but it also would

 

317

1 probably be stimulated by some external stimulus

2 like a TV show. Like a loved one who is ill.

3 Particularly for somebody in that age group.

4 They do not normally sit down and

5 inititate [sic] a conversation about, gee, one day I may

6 be in a car wreck or terminally ill and if that

7 happens, I want feeding tubes. I want blood

8 products. It is just not what people, even in

9 their fifties, normally do. So having a stimulus

10 is a catalyst, really, for having these

11 conversations.

12 Q So based on your experience and the

13 study you have been involved in, the typical part

14 is Theresa's making comments, one way or the

15 other, related to a relative or a TV show?

16 A Yes. Stimulants. The prevalent

17 attitude. Like I said, I do not know Theresa, so

18 I can't testify about her comments, but prevalent

19 attitudes throughout the population tend to go

20 toward not wanting to prolong life through

21 artificial means.

22 Q In your focus groups, did you make any

23 distinction on end of life versus a parent versus

24 the end of life of a child?

25 A We did not. That is because when I say

 

318

1 child, I mean somebody under 18.

2 Q Excuse me. I'll narrow it. A child

3 being from the prospective of a parent, having

4 your own parent die versus your own child die.

5 A I think that, you know, a loved one,

6 having a loved one die or to be in that situation

7 is a very emotional kind of thing. That people

8 often, when they are having to struggle with these

9 decisions, are struggling from the viewpoint of

10 loss and emotional loss on their own part rather

11 than what is the best care, what is the best thing

12 for the loved one.

13 Anybody over age, you know -- it became

14 clear that anybody over 18 has the right to make

15 decisions for themselves. The laws in Georgia and

16 I assume in Florida give people the right, over

17 18, to make decisions on how far they want to

18 extend their life. The primary thing that came

19 out is if those wishes are known, then family

20 members, physicians, whoever else, should be

21 obligated to follow those wishes, if there is some

22 way to understand those wishes.

23 Q Are you familiar with the financial

24 issues of this case?

25 A No. Not really. No.

 

319

1 Q Are you aware whether or not there is

2 any financial burden or hardship on anyone for

3 Theresa's care?

4 A No. I'm not aware of that.

5 MS. CAMPBELL: Thank you. No other

6 questions.

7 THE COURT: Redirect?

8 REDIRECT EXAMINATION

9 BY MR. FELOS:

10 Q You were asked about your focus group of

11 Catholics. The prevalent themes that you talked

12 about on direct examination, I want to ask you if

13 they pertain to Catholics. The prevalent theme of

14 self-reliance, that people don't want to be

15 maintained artificially if they are incontinent,

16 can't eat, can't brush their hair, can't brush

17 their teeth, if they are totally dependent, is

18 that any different for Catholics?

19 A No.

20 Q The prevalent theme that artificial life

21 support was not deemed to be considered beneficial

22 if there was no hope of recovery, was that any

23 different for Catholics?

24 A No.

25 Q The prevalent theme regarding quality of

 

320

1 life, that if you can't make your wishes known, if

2 you can't communicate, if you can't have an

3 interchange, if you can't have some enjoyment of

4 life, that people don't want to be maintained

5 artificially, is that any different for Catholics?

6 A No.

7 Q You were asked about the typicality of

8 Theresa's expressions and that they were triggered

9 by a catalyst and that's how people make them.

10 Regarding the content of her expression as relayed

11 to you, in your opinion, were they typical of the

12 comments, the prevalent comments in your report?

13 A Very prevalent. I would say that, you

14 know, of the 385 people that we talked to maybe a

15 handful of them would say no matter what, I want

16 to be kept alive. Put me on machines. You know.

17 So there were just -- the other attitude

18 of when it's my time, it's my time, if there is no

19 hope of recovery, quality of life was so prevalent

20 in those conversations. It really was.

21 Q Talking about younger people, did you

22 have any participants in their twenties?

23 A Yes. In two focus groups all

24 participants were 18 to 34 and scattered

25 throughout the other groups as well.

 

321

1 Q Was there any difference in terms of the

2 prevelant [sic] attitudes among the younger people than

3 the older people?

4 A One specific one that is not too

5 relative to this case is that they were less

6 fearful of talking about death, and that they were

7 more skeptical of physicians. Just very odd

8 things like that. Nothing on the prevalent themes

9 or values and attitudes.

10 Q You were asked about the number of focus

11 groups. How people were selected. You had social

12 scientists working on this report?

13 A We did.

14 Q You had a statistician working on this

15 report?

16 A We did.

17 Q Did those persons and yourself take any

18 care to make sure that you had enough people,

19 enough focus groups in enough areas, so this would

20 be accepted as a social science work rather than

21 an anecdotal reporting of what people said?

22 A Absolutely. There was a lot of thought

23 in the preparation where we would go. Who the

24 facilitators would like for each group and

25 following through with each group to make sure

 

322

1 that we would -- we stay on top of it. Recruiting

2 for every group and looking at demographics to

3 make sure they were the cross section we need.

4 I have done this work for nine years.

5 The first lesson I learned is that if people don't

6 like what is in the report, they will question

7 your methodology. So you better have that tight

8 or you don't have much group to stand on. This

9 report has been accepted very well across the

10 country as a good social science report.

11 MR. FELOS: Thank you.

12 THE COURT: Any recross?

13 MS. CAMPBELL: No, Your Honor.

14 THE COURT: Thank you, ma'am. You may

15 I stand down. Further witnesses?

16 MR. FELOS: No further witnesses at this

17 time. We do have on our subpoena and listed as a

18 witness Mr. Pearse, but opposing counsel and I

19 have agreed, rather than have Mr. Pearse come

20 twice, once now and then called in respondent's

21 case, that respondents will call Mr. Pearse and I

22 can get my questions in during cross-examination.

23 I wanted to inform the Court of that.

24 The only other thing I had at this time

25 in the case, before we close, is the introduction

 

323

1 of the suggestion of bias. Your Honor, what

2 number are we up to?

3 THE COURT: I believe that is Number

4 Seven. Is there an objection?

5 MS. CAMPBELL: No, Your Honor.

6 THE COURT: Thank you. It will be

7 received. With this having been received, Mr.

8 Felos, does the petitioner rest?

9 MR. FELOS: One moment. Let me go

10 through my list here. Yes. That is it at this

11 time.

12 THE COURT: Thank you.

13 MS. CAMPBELL: Your Honor, since its

14 quarter of 11:00, my first witness is Mary

15 Schindler and I think she will take quite a

16 while. I would suggest an early lunch hour and

17 then come back. I'll begin with her. Then that

18 will give us appropriate time, rather than break

19 her testimony up.

20 THE COURT: It is time for a break. The

21 bailiff reminded me it is overdue. I have

22 something to do over the noon hour, so we'll just

23 be back at 1:00. It does make sense for us to

24 break until then probably, rather than have her on

25 for an hour, then you cannot talk to her over the

 

324

1 noon hour. So why don't we stand in recess until

2 one o'clock.

3 MS. CAMPBELL: Thank you, Your Honor.

4 THE BAILIFF: All rise. Circuit court

5 is in recess until one o'clock.

6 AKEN AT 10 : 50 A.M.

7 (THEREUPON, A RECESS WAS

8 UNTIL 1 : 00 P.M. )

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325

1 CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

  STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

2 PROBATE DIVISION CASE NO. 90-2908-GD3

3

4 IN RE: THE GUARDIANSHIP OF THERESA MARIE SCHIAVO,

5 Incapacitated.

6

7 MICHAEL SCHIAVO, AS GUARDIAN OF THE PERSON OF THERESA MARIE SCHIAVO,

8 Petitioner,

9 APPEAL vs.

10 ROBERT SCHINDLER AND MARY SCHINDLER,

11 Respondents.

12

13 BEFORE: GEORGE W. GREER Circuit Court Judge

14 PLACE: Clearwater Courthouse

15 Clearwater, FL 33756

16 DATE: January 25, 2000

17 TIME: 1: 00 P.M.

18 REPORTED BY: Beth Ann Erickson, RPR Court Reporter

19 Notary Public

20 TRIAL

21

22 ROBERT A. DEMPSTER & ASSOCIATES

23 501 South Fort Harrison Clearwater, Florida 33756

24 (8131) 464-4858 Volume III Pages 325 - 515

25

 

326

   APPEARANCES:

   GEORGE C. FELOS, ESQUIRE

   CONSTANCE FELOS, ESQUIRE

   640 Douglas Avenue

   Dunedin, FL 34698

   Attorneys for Petitioner

  

   PAMELA CAMPBELL, ESQUIRE

   The Alexander Building

   535 Central Avenue

   Suite 403

   St. Petersburg, FL 33701

   Attorney for Respondents

  

   INDEX

                                              Page

   WITNESS

   MARY SCHINDLER

        Direct Examination by Ms. Campbell     328

        Cross-Examination by Mr. Felos         398

        Redirect Examination by Ms. Campbell   439

        Recross-Examination by Mr. Felos       444

        Further Redirect Examination           464

        Further Recross-Examination            468

   MICHAEL VITADAMO

        Direct Examination by Ms. Campbell     446

        Voir Dire Examination by Mr. Felos     449

        Direct Examination Continued           462

        Cross-Examination by Mr. Felos         463

   ROBERT SCHINDLER, JR.

        Direct Examination by Ms. Campbell     475

        Cross-Examination by Mr. Felos         492

        Redirect Examination by Ms. Campbell   510

   EXHIBITS

                                               Page

   Respondent's Exhibit       1                463

 

327

1 PROCEEDINGS

2 THE BAILIFF: All rise.

3 THE COURT: Be seated, please.

4 THE BAILIFF: Circuit court is back in

5 session.

6 THE COURT: Ms. Campbell, are

7 respondents ready to proceed?

8 MS. CAMPBELL: Thank you very much.

9 Your Honor, I first would like to call Mary

10 Schindler to the stand.

11 THE BAILIFF: Stop right here. Face the

12 judge. Raise your right hand to receive the oath.

13 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

14 THE COURT.)

15 THE COURT: Thank you, ma'am. Have a

16 seat here.

17 THE BAILIFF: Be seated in the witness

18 box, please.

19 MS. CAMPBELL: I've taken the liberty of

20 moving the TV/VCR here, rather than have it lugged

21 in at the appropriate time. Does that block any

22 of your view? Should I move it back?

23 MR. FEL OS : No.

24 MS. CAMPBELL: It will save the time of

25 getting it lugged in.

 

328

1 THE COURT: Fine.

2 DIRECT EXAMINATION

3 BY MS . CAMPBELL :

4 Q Please state your full name.

5 A Mary Schindler.

6 Q What is your address?

7 A 6372 Palma Del Mar, St. Pete.

8 Q You have a soft voice. You need to

9 speak up.

10 A Okay.

11 Q How long have you lived at that address?

12 A Six years.

13 Q Are you married to Bob Schindler?

14 A Yes. I am.

15 Q How long have you been married?

16 A Thirty-seven years.

17 Q Do you have children?

18 A Yes.

19 Q what are their names and ages?

20 A Terri is 36, Bobby is 35, and Suzanne is

21 31

22 Q Do they all live here in the area?

23 A Yes.

24 Q Where did you raise your family?

25 A In a suburb of Philadelphia.

 

329

1 Q How would you describe the children

2 growing up?

3 A They were happy, healthy, normal

4 children.

5 Q What was your family life like? What

6 kind of activities did you do?

7 A We used to go on vacations together. We

8 used to go to the zoo. Used to take them on

9 trips.

10 Q Did you work outside the home?

11 A No. I did not.

12 Q Did you -- were you active in any church

13 activities?

14 A I used to help with the school that the

15 kids used to go to called Our Lady of Good

16 Counsel. I used to help up there during the week.

17 Q Are you currently employed?

18 A Yes.

19 Q Where are you employed?

20 A I manage a Hallmark store on St. Pete

21 Beach.

22 Q When the children were growing up, was

23 your husband, Bob, employed?

24 A Yes.

25 Q What did he do?

 

330

1 A He was a saleman [sic] for his brother for a

2 while. Then he owned his own business.

3 Q What kind of business was that?

a A A material handling business.

5 Q What was Terri like as a child?

6 A Terri was a little bit heavy. She was

7 happy. She loved to do things. She was a little

8 bit shy, but all in all she was a great child.

9 Q Did she have any unusual illnesses?

10 A She used to have allergies a lot growing

11 up. Little rashes.

12 Q Where did she go to high school?

13 A High school she went to Arch Bishop Boyd

14 for Girls in Warminster, Pennsylvania.

15 Q Did she go to college?

16 A Not right after she graduated. I think

17 she went to two years at Bucks County Community

18 College.

19 Q When did she meet Michael Schiavo?

20 A I guess in about 1 82.

21 Q Was she going to Bucks Community?

22 A Yes. She met him there.

23 Q Did you like Michael?

24 A Yes.

25 Q When did they get married?

 

331

1 A November 10, 1984.

2 Q What kind of wedding was it?

3 A A very 'Large wedding. Very happy.

4 Terri, that was her dream wedding. She always

5 wanted a big wedding.

6 Q Where was she married?

7 A The church was Our Lady of Counsel.

8 Then we had at reception at a restaurant in South

9 Hampton.

10 Q Did they go on a honeymoon?

11 A Yes.

12 Q Where?

13 A St. Petersburg, Florida.

14 Q Where did they stay?

15 A At our condo.

16 Q Did you live in the condo in

17 St. Petersburg?

18 A No. We didn't live there then.

19 Q What was the purpose of your owning the

20 condo?

21 A We used to use it for vacations.

22 Q Do you know how they got to Florida?

23 A They flew.

24 Q How long was their honeymoon?

25 A A week.

 

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1 Q Was Terri employed at the time?

2 A Yes.

3 Q Where?

4 A Prudential Insurance.

5 Q What did she do there?

6 A She helped to -- they took care of the

7 salesmen. Each salesman had different girls that

8 would help them. Like a secretary.

9 Q Was Michael employed at the time?

10 A Yes.

11 Q What was he doing?

12 A He worked at McDonald's.

13 Q How often did you come to your

14 condominium in St. Petersburg?

15 A On vacation. Holidays. Easter.

16 Christmas. Summers.

17 Q The year after they were married, 1985,

18 did you come to the condo in St. Petersburg during

19 that year?

20 A Did I come? No.

21 Q Did Terri or Michael come to the condo

22 in 1985?

23 A Yes.

24 Q Do you recall when?

25 A October.

 

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1 Q Did they come at any other time during

2 1985?

3 A February.

4 Q How was it that you remember those

5 dates?

6 A Well, the October date they came, my

7 mother-in-law was in the hospital in October. But

8 she just went in for, I think she had a problem

9 with electrolytes. She went in then. Terri asked

10 if it was -- I thought it was okay. I said yeah.

11 That's fine. Mom is not really, really sick. So

12 they came down by train. Terri, Michael, and

13 Michael's brother, Brian.

14 Q That was October of 1985?

15 A Yes.

16 Q Who is Catherine Schindler?

17 A Catherine Schindler was my husband's

18 mother.

19 Q Where did she live during that time?

20 A She used to live in Philadelphia in the

21 city, but in 1969 when Bob's brother's wife and

22 child got killed by a train, she moved in with my

23 brother-in-law to help take care of the two girls

24 that he still had at home, and him.

25 Q So at the time in October of '85, she

 

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1 was living close to you?

2 A Yes.

3 Q were you close with Mrs. Schindler?

4 A Yes.

5 Q Was Terri close with Mrs. Schindler?

6 A Yes.

7 Q Can you elaborate on the hospital visit

8 Mrs. Schindler had in October of 1 85?

9 A The visit, she just went in to have some

10 tests done because she was not feeling well and

11 they said her electrolytes were a little off. So

12 I think three or four days. Two or three days.

13 Somewhere.

14 Q Was it a serious condition?

15 A No.

16 Q When did Mrs. Schindler die?

17 A She died in March of '86.

18 Q The following year?

19 A Yes.

20 Q How long was she in the hospital before

21 she died for her last illness?

22 A Two weeks. About two weeks.

23 Q Do you know what was wrong with her?

24 A When she went in, she had pneumonia.

25 Then just things started happening to her. Things

 

335

1 starting to shut done.

2 Q Was she on any life support?

3 A Toward the end she was.

4 Q What type of life support?

5 A She was on a ventilator.

6 Q Were you there when she passed away?

7 A Yes.

8 Q Was Terri there when she passed away?

9 A Yes.

10 Q You mentioned Bob's brother?

11 A Yes.

12 Q what is his name?

13 A Fred.

14 Q Fred Schindler?

15 A Yes.

16 Q, Tell us about Fred Schindler.

17 A Fred had a business. In 1980, he had a

18 car accident and he was, he was in a coma for a

19 few days and he had some brain damage, a little

20 brain damage, and his right side was paralyzed.

21 And he went to a rehab center in Colorado and had

22 some rehab done. Then he came home.

23 Q Do you recall how long he was in the

24 hospital?

25 A When he had the accident?

 

336

1 Q Yes.

2 A Maybe three weeks.

3 Q Did he have any permanent damage?

4 A Yes. His right side was paralyzed, but

5 he could still walk. In the beginning, he used a

6 cane after he came back from Colorado. And for a

7 little while, he used to drag his foot a little

8 bit, but then that stopped. He drove a car. He

9 ran his own business.

10 Q So you are not aware of anybody having

11 to step in and take care of him from a physical

12 standpoint?

13 A No. He lived by himself after my

14 mother-in-law died.

15 Q When did Terri and Michael move to

16 Florida?

17 A I think it was in the spring of 1 86.

18 Q Was it after your mother-in-law died?

19 A Yes.

20 Q Where did they live?

21 A They lived in our condo in Isla.

22 Q How did that come about?

23 A Terri asked her dad if they moved down,

24 if before they got, you know, before they looked

25 for a job, if they could spend some time living in

 

337

1 the condo. And her dad said yes.

2 Q Were you making arrangements to move to

3 Florida at that time, too?

4 A Yes.

5 Q When did you move to Florida?

6 A We moved in June of 1 86.

7 Q The same year?

8 A Yes.

9 Q Did anyone move with you?

10 A My daughter, Suzanne.

11 Q And your husband?

12 A Yes.

13 Q Where did you all live?

14 A Because Michael and Terri were living in

15 the condo, we rented a townhouse in Tierra Verde.

16 Q How long did you live there?

17 A About a year.

18 Q Were you employed when you moved to

19 Florida?

20 A No. Not in the beginning.

21 Q Was your husband, Bob, employed?

22 A No.

23 Q Was Terri employed after she moved to

24 Florida?

25 A Not for a while. She finally did get a

 

338

1 job at Prudential. They like transferred her from

2 Philly to Florida.

3 Q Was your mother living with you at that

4 time?

5 A My mother was living with me after I

6 moved from the Tierra Verde house.

7 Q Where did you move after the Tierra

8 Verde house?

9 A We lived in a house on 55th Street on

10 St. Pete Beach.

11 Q What is your mother's name?

12 A Cecilia Tomarro (phonetic).

13 Q What was her condition at the time she

14 was living with you?

15 A At the time she was living with me, she

16 had had a stroke. She was in a wheelchair. She

17 had a mastectomy and she was starting with

18 Parkinson's disease.

19 Q Did she require medical assistance?

20 A I could handle her for -- I could take

21 care of her for a little while, but it got to be a

22 little hard for me to do it.

23 Q Did you have a nurse come in to assist

24 you?

25 A No.

 

339

1 Q When it became difficult for you, what

2 happened at that time with your mother?

3 A Then my brother, who does not live in

4 Florida, I consulted him and we decided we better

5 put her in a nursing home.

6 Q Where did you move her to?

7 A Majestic Towers.

8 Q When was that?

9 A I think it was '87.

10 Q Was Terri close to your mother?

11 A Yes. Very close.

12 Q Would you ever go and visit your mother

13 at Majestic Towers?

14 A Yes. I would go. Terri would go. We

15 would go together.

16 Q How often would you go?

17 A I would go everyday. Sometimes she'd

18 stop after work. Most of the time she went on

19 weekends.

20 Q Describe the residence at Majestic

21 Towers.

22 A The residence was a nursing home. They

23 had some people that could do some stuff for

24 themselves and there was people on ventilators.

25 There was people on feeding tubes. There was

 

340

1 people in wheelchairs. All kinds of people.

2 Q Did you also work at Majestic Towers?

3 A Later on, I think a year-and-a-half, two

4 years later, I helped the activities director. I

5 started working there.

6 Q Did you have any special training to

7 assist the activities director?

8 A No. I did not. She did.

9 Q The activities director?

10 A Right.

11 Q What type of training did the activities

12 director have?

13 A They have to go through two courses. I

14 think a year-and-a-half, two year course, to be an

15 activity director in a nursing home.

16 Q What kind of responsibility did you have

17 as assistant?

18 A I used to help with patients taking them

19 to activities, like cards. We played cards.

20 Bingo. We used to have parties. Birthday

21 parties. At Christmas time we had celebrations.

22 All different things.

23 Q Did Terri assist you with any of those?

24 A A lot of the times, yes. She used to

25 come with me. Help me.

 

341

1 Q When did your mother pass away?

2 A My mom passed away in '94. April of

3 '94.

4 Q So was your mother still living at

5 Majestic Towers at the time of Terri's accident?

6 A Yes.

7 Q During these early years in Florida,

8 describe your relationship with Terri.

9 A Terri and I were very close. She used

10 to call me after work. I would see her almost

11 every weekend.

12 Q How often would you talk to her on the

13 phone on a weekly basis?

14 A Every night.

15 Q How often would you see her?

16 A Most of the times on the weekends.

17 Saturdays and Sundays.

18 Q Was there any particular reason for

19 that?

20 A No. We were just close and just spent

21 time together.

22 Q What was your relationship with Michael

23 like at that time?

24 A It was fine. We had a good

25 relationship.

 

342

1 Q Would Terri often visit your house with

2 Michael?

3 A Yeah. Sometimes if Mike was not

4 working.

5 Q When did Terri and Michael move out of

6 your condominium?

7 A They moved out in, I think it was around

8 in '88, 1989. Somewhere around there.

9 Q Can you have a time frame in reference

10 to the accident?

11 A Maybe about -- moved out of my

12 condominium?

13 Q Um-hmm.

14 A Maybe about two years before her

15 accident.

16 Q Was there any particular reason why they

17 moved out of the condominium?

18 A Well, we were having some financial

19 problems and we had to move back into our condo.

20 My husband asked, said they should try to find

21 their own apartment.

22 Q What kind of financial difficulties were.

23 you having?

24 A We had just went through a bankruptcy.

25 We were having some problems, so we had to move

 

343

1 back into the condo because we could not do, pay

2 two mortgages.

3 Q Did Terri and Michael pay you rent for

4 living in the condominium?

5 A Um, in the beginning.

6 Q Who basically handled the finances in

7 your family?

8 A My husband.

9 Q Were you working in 1989?

10 A Yes. I was working at a place called

11 Gigi's. After our furniture business went under,

12 then I went and worked at a dress shop on St. Pete

13 Beach.

14 Q After Terri and Michael moved into their

15 own apartment, did that change your relationship

16 with Terri?

17 A No.

18 Q You still continued to see her the same

19 amount of time?

20 A Yes.

21 Q Did you do anything particular on the

22 weekends with Terri?

23 A Well, Saturdays we went to mass. She

24 used to go with us. After mass, we maybe went to

25 dinner. Sundays, not really. Sometimes visit

 

344

1 some people or just maybe go to a movie.

2 Q Where did you go to mass?

3 A St. John's on St. Pete Beach.

4 Q Would you take communion?

5 A Yes.

6 Q Did you participate in confession?

7 A Yes.

8 Q Did Terri ever talk with you about her

9 relationship with Michael?

10 A A little.

11 Q Do you recall any of the specific

12 conversations?

13 MR. FELOS: Your Honor, I object. from

14 Number one, as to relevance. And I'm citing 568 So.2d 16. It says

15 the Browning case at

16 because the only issue before the court is a

17 determination of the patient's wishes, challenges

18 generally will be limited to that issue. Evidence

19 on other issues, generally, would have been

20 irrelevant to the only issue to be decided, the

21 patient's wishes.

22 That is what we are here about. There

23 are certainly some issues of credibility of

24 witnesses, but I don't see how this line of

25 questioning is relevant to the case.

 

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1 THE COURT: Ms. Campbell?

2 MS. CAMPBELL: We believe it is very

3 relevant to the case. Some of the underlying

4 issues to the whole case are motivation of why

5 this is coming about and the credibility of Mr.

6 Schiavo. I think her testimony, as well as the

7 testimony from other witnesses, will corroborate

8 the fact that their relationship was not as solid

9 as one may believe.

10 Since its concerning specifically to

11 the Browning case, Mr. Felos's argument throughout

12 this whole trial I think is that there are

13 different types of hearsay problems and

14 potentially a Dead Man's Statute problem.

15 Especially in this case, and in light of the

16 Browning decision, we believe that its within the

17 purview of the Court to hear the different

18 information, since this is a matter of the judge's

19 and not a jury's decision, to determine the

20 information based on the credibility of the

21 witnesses.

22 There is a case, Old Republic Surety

23 Bank. I don't see the cite here. I have it. It

24 basically stands for the point that this different

25 kind of information can come in on hearsay,

 

346

1 specifically pertaining to the Dead Man Statute.

2 We believe some of these conversations on these

3 issues would be relevant as to the intent of Terri

4 and specifically as to her state of mind going

5 into some of this and making the decision made.

6 MR. FELOS: I agree with counsel that

7 there are hearsay implications to the questions as

8 well. But Your Honor, I still didn't see how the

9 issue of the status of the marriage eleven years

10 ago would shed light on what Theresa Schiavo's

11 intent was regarding the issue of continued

12 medical treatment or provision of artificial life

13 support.

14 THE COURT: I'm not sure it's relevant,

15 but I'm equally not sure it's not. We have

16 testimony from the petitioner as to things that

17 were said to him by her. Conceivably, this might

18 shed some light on that, so it's a close question

19 and I'm going to rule that the question is

20 permissible and the objection will be overruled.

21 Q (By Ms. Campbell) Thank you. Did she

22 have conversations with you about her relationship

23 with Michael?

24 A Yes.

25 Q Do you recall any of those

 

347

1 conversations?

2 A Yes. She was concerned that Michael had

3 problems with jobs. He had one job, then

4 another. She would get upset because he would

5 call her at work and complain about his job, if he

6 was working. She would also get upset with -- he

7 was lazy she said. She just could not get him to

8 do things. That is about it right now.

9 Q Did you and Terri ever have

10 conversations about she wanting to have children?

11 A I really didn't have any conversations

12 with her about children.

13 Q Did you know that she was going to a

14 gynecologist?

15 A I knew she was, because Terri has always

16 had problems with her period, but as far as

17 children, no. I did not know that.

18 Q Tell the Court what happened on

19 February 25, 1990.

20 A Around 5:30 in the morning, I got a

21 phone call from Michael. He had said that Terri

22 had fainted and he didn't know what he was going

23 to do. So he called, I guess he was taking her to

24 the hospital. Would we meet him at Humana

25 Northside. I said, you know, yes. That we would

 

348

1 be right there.

2 Q Did you go to Northside Hospital?

3 A Yes.

4 Q What happened?

5 A Well, when we got there, they already

6 had taken Terri back to the emergency room. So I

7 had not seen her. I didn't see her. We didn't

8 see her. I guess they worked on her for a while

9 and they just could not bring her around.

10 Q How long was she at Northside Hospital?

11 A I guess about four months.

12 Q Were you there during that time frame?

13 A Yes. My husband was there. I was

14 there. Suzanne was going to college at the time

15 in Central Florida. She quit. She came down. We

16 all were at the emergency room or the waiting room

17 as long as she was in there.

18 Q Were you working at the time?

19 A No. I was not.

20 Q Was your husband working at the time?

21 A He had just gotten a job about a week

22 before that in Tampa.

23 Q So was he able to spend as much time

24 there as you were?

25 A No. He -spent some time there, but not

 

349

1 as much as me or Suzanne.

2 Q Where did Terri go after Northside?

3 A After Northside, she went to College

4 Harbor.

5 Q Was she there for very long?

6 A No. Just for a few months. After that,

7 she went to Bayfront for some rehab.

8 Q When she was at College Harbor, would

9 you visit her there?

10 A Yes. Every day.

11 Q Was Michael visiting her there?

12 A Yes.

13 Q How would you describe your and

14 Michael's relationship during this time frame?

15 A Her and Michael's?

16 Q Your and Michaels.

17 A My and Michael's relationship was very

18 good. We did everything together. Wherever he

19 went, I went. I went everywhere with him. Did

20 everything together.

21 Q You said she went from College Harbor to

22 Bayfront Hospital?

23 A Yes.

24 Q What was she having at Bayfront?

25 A There was a doctor there, Dr. Baras,

 

350

1 that did some rehab on her to see if it would help

2 her.

3 Q Did you assist with any of that?

4 A Yes. Later on, they taught us what to

5 do.

6 Q Describe what you would do.

7 A Go in the rehab center with her. Show

8 us how to work her arms and legs. Show us how to

9 transfer her from the bed to the wheelchair.

10 Wheelchair to the bed. Different things we have

11 to know how to do.

12 Q Where did she go from Bayfront Rehab?

13 A I think we took her home.

14 Q Where were you living at the time?

15 A We were living at a house on West Vina

16 on St. Pete Beach.

17 Q Who was living in the house?

18 A I was, my husband, and Michael.

19 Q How long was she there?

20 A Maybe three months. Two months.

21 Q Who was taking care of her?

22 A Michael and I.

23 Q Did you have any outside help coming in?

24 A I'm not sure if it was there. I think

25 in the beginning we had, once or twice, a nurse.

 

351

1 For most of the time, Michael and I used to take

2 care of her.

3 Q Did she continue to stay in your house?

4 A No.

5 Q Why not?

6 A She was getting -- she had a lot of

7 problems. They would take her from the hospital

8 to the house. It was hard for Michael and I to

9 take care of her. We decided to move her back to,

10 I think it was College Harbor.

11 Q How were all her bills paid during this

12 time frame?

13 A When we moved to Vina Del Mar, there was

14 some people that we knew. We started talking.

15 Particularly this one lady was really, really good

16 to us. She started everything rolling. She got

17 these fund raisers. She went to the man that

18 owned the Hurricane Restaurant, Bruno, and got him

19 involved and his brother.

20 We had fund raisers. We had sold

21 different things on the beach. We sold pretzels.

22 We had a thing set up at one of the shopping

23 centers. Donations came in. Prudential had a big

24 thing. They had, all over the country they got

25 their offices to donate. Just a lot of people

 

352

1 pitched in.

2 We had a Valentine's dance. We had a

3 lot of people that were just really good at that

4 time that helped us.

5 Q How were people learning about Terri's

6 cause?

7 A Just by us and everything like in

8 businesses and stuff. They had it in the paper.

9 Just people that would, you know, tell different

10 people. It would just travel.

11 Q Did you ever handle any of the

12 accounting part for this money?

13 A No. I did not.

14 Q What happened to the money?

15 A Well, we gave it to Michael. He put it

16 in a trust -- I don't know if it was a trust, but

17 the bank. First Union Bank.

18 Q Did you ever see an accounting of the

19 money?

20 A No.

21 Q Do you know how much was raised?

22 A I think around 50,000.

23 Q Where did she go from College Harbor?

24 A To California.

25 Q Explain what happened in California.

 

353

1 Did you go on that trip?

2 A No. I did not go. Just Michael and

3 Terri. I think a nurse.

4 Q What was the purpose of going to

5 California?

6 A Michael learned about this doctor, a

7 Dr. Hoshibushi, that was doing some experimental

8 work in the brain and he had -- he talked to him.

9 He said yes, he would take Terri. He went out to

10 the University of California at San Francisco, I

11 think it was. That is where they did that.

12 Q How long was she in California?

13 A Well, maybe two months. Two-and-a-half.

14 Q Did you talk to Michael during that time

15 frame?

16 A Yes. I did. He used to keep us

17 informed on what was going on out there.

18 Q How often would you talk to him?

19 A Maybe every other night.

20 Q When they came back from California, was

21 there ever any follow up with those physicians?

22 A A year later.

23 Q What happened?

24 A One year later, when Terri was in

25 Mediplex in Bradenton, Dr. Hoshibushi sent

 

354

1 Dr. Yinghling to Bradenton to follow up on Terri.

2 They usually like to bring the patient back, but

3 because of Terri's condition they sent Dr.

4 Yinghling out and he did the examination there at

5 Mediplex.

6 Q Were you there with Dr. Yinghling?

7 A Yes.

8 Q Was there any improvement from the

9 electrodes?

10 A Dr. Yinghling said that he --

11 MR. FELOS: I Object. Hearsay. She is

12 testifying to what Dr. Yinghling said. He is not

13 available to cross-examine.

14 THE COURT: Sustained.

15 Q (By Ms. Campbell) What was your

16 impression of Terri's condition? Did you see any

17 improvement?

18 A I thought I did.

19 Q Could you describe what type of

20 improvement?

21 A Terri was, from what she was before she

22 went to California, she was sitting up in her

23 chair. She was, her arms were, you know, better.

24 Her hands were better. Just her overall

25 appearance from when she came back. How she was

 

355

1 acting. I just, I saw an improvement when she

2 went to California.

3 Q Were there any other improvements you

4 believed could be made?

5 A We thought maybe, you know, if she had

6 some other tests done, then we could see if there

7 was any improvement from the time she went to

8 California to now to when she came back.

9 Q Were you aware of any other facilities

10 that could have assisted Terri?

11 A Yes. There was a hospital in

12 Gainesville called Shands Hospital that she could

13 have been taken to.

14 Q Was Terri ever taken there?

15 A No. Not to my knowledge.

16 Q How long do you believe she was at

17 Mediplex?

18 A Six or eight months.

19 Q What was the purpose of the Mediplex?

20 A Well, it was a brain stem place where

21 they thought -- hospital and rehab hospital where

22 they worked with people that had brain damage.

23 Strokes. And they thought it would be good for

24 Terri to go there.

25 Q After she left Mediplex, where did she

 

356

1 go?

2 A To Sabal Palms.

3 Q How long was she in Sabal Palms?

4 A Maybe a year-and-a-half.

5 Q How was your financial situation during

6 this time frame? The initial days of Sabal Palms?

7 A My financial situation was not good.

8 Q Why?

9 A I was not working. Bob just started a

10 brand new job, and we were still trying to

11 recover.

12 Q Was Michael working then?

13 A No.

14 Q Were you all still living together?

15 A No.

16 Q Why not?

17 A Well, when we moved, we went to another

18 house in Vina Del Mar, it was on Hemosita, we

19 lived there I guess with Michael, Bob and I, for

20 maybe about I guess a year. A little over a

21 year. Then one day Michael came and said he

22 thought it was time that he moved out, and that we

23 supported him. We said okay. You know, that if

24 he wanted to move out, that was fine.

25 Q Was this an amicable separation?

 

357

1 A Yes. It was.

2 Q Why did Michael leave? Move out?

3 A He said he wanted to get on with his

4 life.

5 Q Were there any discussions then about

6 the financial circumstances then that you or

7 Michael were having?

8 A Michael would always talk to me about

9 that. You know, first of all, we were all in this

10 together. We all had financial problems.

11 Michael, Bob. We all did. It was a very

12 stressful time. It was a very financially

13 difficult time. He used to say, "Don't worry,

14 mom. If I ever get any money from the lawsuit,

i5 I'll help you and dad."

16 Q Do you know what he meant by that?

17 A Well, we -- not we. I'm sorry. Michael

18 sued doctor, two doctors for Terri, a malpractice

19 case, and Terri got an award and so did Michael.

20 Q Were you a part of the malpractice

21 lawsuit?

22 A No. I was not.

23 Q Were any promises ever made?

24 A Yes.

25 Q What is your understanding of the

 

358

1 promises?

2 A Well, Michael owes us some money from

3 the condominium. The rent. Moving expenses.

4 Different things. He always told us he would pay

5 us back. He always said that if anything ever

6 came of his award, that we could -- he would help

7 us out.

8 Q Were there ever discussions about

9 Terri's future medical slash housing arrangements?

10 A Yes. He said -- well, we thought about

11 buying a house, bringing Terri home, so Bob and I

12 could be with her. Take care of her for ever how

13 long she had to live.

14 Q So when did you and Michael, you and Bob

15 and Michael separate?

16 A I think it was around 1 93.

17 Q Was it after the malpractice trial or

18 before?

19 A No. No. It was after. Yeah, it was

20 after.

21 Q Did you attend the trial for Terri's

22 malpractice case?

23 A Yes. I did.

24 Q When was that?

25 A It was I think November of '92.

 

359

1 Q Was it before a jury?

2 A Yes.

3 Q Did the jury find in Terri's favor?

4 A Partially.

5 Q What do you mean?

6 A She was -- I'm not even sure. She was

7 30 percent or 60 percent to blame and the doctor

8 was the rest to blame.

9 Q Do you remember the award?

10 A All I remember is 1.2. That is all I

11 remember.

12 Q Do you know when this money was

13 distributed?

14 A Sometime in January of '93, I think.

15 Q Do you recall any kind of disagreement

16 with Michael over the money?

17 A It was over the money. It was also over

18 after Terri got the money, we wanted to take her

19 to the hospital and it was over his award and

20 because he would not do anything for her after she

21 got the award.

22 Q Which hospital are you referring to?

23 A Shands in Gainesville.

24 Q Was there one particular discussion or

25 continual discussions?

 

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1 A It was one particular discussion. We

2 were in Sabal Palms. We had gone up to see Terri

3 on the 14th of February. We had gone in. Michael

4 was sitting there studying. We were talking about

5 the money and about his money. That with his

6 money and the money Terri got, now we could take

7 her to Shands or get some testing done. Do all

8 this stuff. He said he was not going to do it.

9 Q Was there any reason?

10 A He didn't feel anything else could be

11 done for her. So we kept talking. He got mad.

12 He took his book and threw it against the wall.

13 He took the table. It went against the wall.

14 Then we came out. We started walking

15 out of the room and my husband and him were both

16 yelling. I just stood in the middle. I said

17 that's enough. He says, you'll never see your

18 daughter again. I said okay. I said, we're

19 getting out of here. Let's go.

20 I really didn't want anything to

21 happen. So I took my husband by the arm and I

22 pulled him out. We went out the door. We went

23 down the hallway and he says, I'm on the phone to

24 my lawyer.

25 Q Who said that?

 

361

1 A Michael.

2 Q What did you gather from that?

3 A I gathered that Terri was not going to

4 have any kind of medical attention. That we were

5 not going to get any of whatever he got for his

6 award.

7 Q Were you ever paid back any of the money

8 that was owed?

9 A No.

10 Q Did Michael then prevent you from seeing

11 Terri after that?

12 A No. We could go and see her. We could

13 go see her, but we could not find out anything

14 about her.

15 Q How was that information withheld from

16 you?

17 A There was a paper, I guess, on top of

18 the book from the nursing home. It said we were

19 not to be told anything about Terri.

20 Q This was at which nursing home?

21 A Sabal Palms.

22 Q Were you ever aware of Michael

23 attempting to withhold treatment for an infection

24 of Terri's?

25 A Yes.

 

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1 Q How do you learn about that?

2 A A nurse told me from Sabal Palms when we

3 went to visit her one day.

4 Q Was it your understanding the nurse was

5 allowed to discuss Terri's medical condition?

6 A No. But I said to her -- we were in the

7 waiting room. We had Terri out in the room. I

8 said, "She looks terrible. Her face is white."

9 She said she just came back from the hospital. I

10 said, "The hospital?" And she said yeah. She had

11 her gallbladder out.

12 I said I didn't know that. She said

13 yeah. She said also, she says to me also, she

14 almost did not get any antibiotics. I said, For

15 what?" She said she had a urinary tract infection

16 or some kind of infection. I said, "Is she

17 getting them now?" She says yes. Now she is.

18 She said the nursing home is giving them to her.

19 I said to Bob, "We have to do something."

20 Q What did you do?

21 A We went to see a lawyer.

22 Q What was the purpose of the visit?

23 A To try to get guardianship of our

24 daughter.

25 Q Did you want to become the guardian of

 

363

1 Terri?

2 A Yes.

3 Q Did you file a petition to have Michael

4 removed as guardian?

5 A Yes. I did.

6 Q What came of the petition?

7 A As far as?

8 Q As far as --

9 A As far as we are concerned, nothing.

10 The court appointed a guardian ad litem and the

11 guardian ad litem ruled in favor of Michael. I --

12 for us to pursue it, it would have been a

13 financial problem for us. So at that time, we

14 just, we just did not do anything.

15 Q Were there depositions taken?

16 A Yes.

17 Q Who was the attorney representing you at

18 the time?

19 A Jim Sheehan.

20 Q Were the depositions friendly?

21 A No.

22 Q How would you describe the deposition

23 process?

24 MR. FELOS: Your Honor, I object. What

25 is the relevance of how the witness found a

 

364

1 deposition process?

2 THE COURT: What is the relevance?

3 MS. CAMPBELL: It goes to, also in

4 anticipation of what Mr. Felos is going to, I

5 imagine, on cross-examine, some information he

6 already admitted to the petition -- or the

7 dismissal with prejudice. I'm getting as to she

8 will testify as to what led up to the dismissal

9 process.

10 THE COURT: I heard the lawyer talk

11 about that last week. What is in that dismissal

12 with prejudice that is at issue perhaps today?

13 MR. FELOS: Your Honor, if I may, the

14 basis of Mr. and Mrs. Schindler's petition to

15 remove Michael as a guardian in 1 93, and amended

16 in '94, was that he was not caring for Terri.

17 That he had a financial conflict of interest

18 because he was the heir at law. That he was

19 involved in a relationship with another woman, so

20 he was not fit to be guardian. And that he was

21 abusing Terri in some way by withholding

22 treatment.

23 It is very relevant, the type of

24 dismissal, because in essence the respondents are

25 regurgitating many of those claims in this

 

365

1 proceeding.

2 THE COURT: I have not researched the

3 dismissal with prejudice. They go to the cause of

4 action. Also, the facts that are alleged. Are

5 you suggesting a dismissal with prejudice and

6 everything alleged in the petition and complaint

7 are false?

8 MR. FELOS: No. What I'm saying is that

9 I believe a collateral estoppel applies to a party

10 when they have dismissed with prejudice issues

11 that they have litigated before that it estops

12 them from raising them in a new proceeding. That

13 is from a legal point of view.

14 As a point of view in credibility,

15 Your Honor, did the Schindler's position, is it

16 that these things are important enough to them to

17 be raised in this proceeding, or as Mr. Schindler

18 stated in his deposition, he would do anything to

19 keep his daughter alive. Then I think it is very

20 relevant to that credibility as to why they

21 dismissed with prejudice in essence these same

22 claims four years ago.

23 THE COURT: But again, I'm not sure what

24 you are attempting to accomplish with the

25 dismissal with prejudice. The issue, as I

 

366

1 understand it, is what would the ward wish to

2 happen given these circumstances, and collaterally

3 I guess since we have a lot of testimony about it,

4 there is some attack on whether or not she is

5 terminal. What does a dismissal with prejudice

6 have to do with either of those?

7 MR. FELOS: The respondents are saying

8 as to the ward's intent, you can't believe what

9 Michael is telling you because he is involved with

10 another woman. You can't believe what he is

11 telling you about Theresa's intent because he is

12 the heir at law. So their attack on his

13 credibility goes to his credibility as to the

14 statements of Theresa's intent.

15 All we are saying is that Mr. and Mrs.

16 Schindler raised those fact issues and dismissed

17 those with prejudice, which is very relevant.

18 THE COURT: It's relevant as to the

19 ruling of the guardian and not relevant as to

20 anything else, is it? The dismissal?

21 MR. FELOS: I think this collaterally

22 estops, Your Honor. You don't have to have a suit

23 brought on the same cause of action, but if the

24 issues in a prior litigation are similar to the

25 issues in a subsequent litigation, the doctrine

 

367

1 applies.

2 THE COURT: I understand as to issue.

3 think we are talking now about facts. Facts used

4 to support that claim. This claim.

5 MR. FELOS: I think they are relying on

6 the same facts.

7 THE COURT: But cannot facts be used to

8 support more than one claim? You run a red light.

9 Hit two cars. One sues you for running a red

10 light. The other sues you for running a red

11 light. One sues you for personal injury and comes

12 back in a year to fix the car. Same facts.

13 MR. FELOS: But different parties,

14 Your Honor.

15 THE COURT: Same parties. If you get

16 sued twice by the same person, I don't know what

17 the dismissal with prejudice has to do -- to me,

18 we are getting pretty collateral in lots of things

19 for how it's going to assist me in arriving at

20 this decision. But it almost seams premature that

21 you're attacking. You are anticipating. Is that

22 what you are doing?

23 MS. CAMPBELL: Yes, Your Honor. He

24 raised it in the whole issue that we had at the

25 hearing.

 

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1 THE COURT: He has not raised it in

2 trial.

3 MS. CAMPBELL: Well, on his list for

4 rebuttal witnesses is Jim Sheehan. So based on

5 the hearing we had last week, that is the only

6 reason I'm getting into this as to give their

7 reasoning as to why they had the dismissal with

8 prejudice.

9 THE COURT: Well, for what limited

10 purpose it will serve, I will let you go down that

11 road. Again, I'm not convinced that the dismissal

12 is part of why we are here. I thought why we are

13 here is to decide today how this lady felt prior

14 to February 25, 1990. What happened in the mid

15 nineties should have little or no bearing on that.

16 But you all are the lawyers and know

17 more about your case than I do because I have not

18 heard your case. I'll let you go down the road,

19 but I don't know if I agree with you.

20 MS. CAMPBELL: I am just anticipating

21 what I believe is coming next.

22 THE COURT: Okay.

23 Q (By Ms. Campbell) I was asking you,

24 Mrs. Schindler, about the depositions. You had

25 depositions in that case?

 

369

1 A Yes.

2 Q Describe the depositions.

3 A My deposition?

4 Q Just your deposition in general.

5 A It was a little hostile. It was

6 difficult. It was --

7 Q Lots of arguing?

8 A Arguing from my lawyer with Michael's

9 lawyer. Different objections. Just a lot of back

10 and forth.

11 Q A lot of time being spent on this?

12 A Yes.

13 Q Was it expensive?

14 A Very expensive. Yes.

15 Q Was there any arrangements made in the

16 dismissal with prejudice as to the financial part

17 of it?

18 A The only thing, if we wanted to go on,

19 we had to pay all the expenses for whatever they

20 wanted to do, if we wanted to go further. So it

21 was decided that we were not going to go any

22 further.

23 Q At this time frame, '93/194, were you

24 receiving information about Terri's medical

25 condition during that time?

 

370

1 A No.

2 Q When did you start receiving medical

3 information about Terri?

4 A I really have not received very much

5 medical information to this day. Maybe she's

6 okay. Maybe she is doing well. That is about it.

7 Q Did you hire an attorney to try to get

8 medical information?

9 A Yes. I did. I think it was '95/196.

10 Somewhere in '96. Yes. We hired Mr. Gross to

11 obtain medical information, and I thought we got

12 it. I thought it was settled and everything was

13 okay. I still, when I call, they are very

14 hesitant about giving me any kind of information.

15 Q Do you receive annual reports from the

16 guardianship as to her physical condition?

17 A No.

18 Q Do you receive any annual reports as to

19 the property?

20 A I received a couple. I think I had

21 three.

22 Q Do you receive reports as to Terri's

23 finances?

24 A No.

25 1 Q That is what I mean when I say property.

 

371

1 A No. I thought you meant her -- no. I

2 don't get that.

3 Q What kind of reports, what kind of

4 information is contained in the reports you get?

5 A It is just a guardian's report I

6 received. I think about three of them I have

7 gotten.

8 Q Did Terri ever discuss her thoughts

9 with you concerning any advanced directives such

10 as a living will?

11 A No.

12 Q Did Terri tell you what she would want

13 done if she were on a ventilator?

14 A No.

15 Q If she were on a feeding tube?

16 A No.

17 Q During the time Terri's grandmother,

18 Mrs. Schindler, was on a ventilator, were there

19 any discussions with you, between you and Terri,

20 as to Terri's thoughts of her being on a

21 ventilator at that time?

22 A No. But she was just very, very

23 supportive of us, her dad and us, with my

24 mother-in-law. Whatever we had to do.

25 Q During the time in early 1990, after

 

372

1 Terri's incident, did anyone ever come to you and

2 say they know Terri would not want to live like

3 that?

4 A No.

5 Q Did Michael ever tell you that?

6 A No.

7 Q Did Scott Schiavo ever tell you that?

8 A No.

9 Q Joan Schiavo?

10 A No.

11 Q During the late 1970s, when the Karen

12 Ann Quinlan case was in the news, did you and

13 Terri ever discuss that case?

14 A Yes. We did. We used to watch it on

15 television. The scenes on television.

16 Q Like what kind of proceedings?

17 A Well, all the films of her. They used

18 to have it on television. What she was going

19 through.

20 Q Do you recall what she was going

21 through?

22 A I think she was on a ventilator and they

23 were going to take her off.

24 Q Do you recall, did Terri make any

25 comments about that?

 

373

1 A She said just leave her alone. Leave

2 her. If they take her off, she might die. Just

3 leave her alone and she will die whenever.

4 Q Do you know anyone else that she ever

5 had any conversations with concerning the Karen

6 Ann Quinlan case?

7 A Yes. A girlfriend of hers from

8 Philadelphia.

9 Q Who was that?

10 A Her name is Diane Meyer.

11 Q How do you know about that conversation?

12 A Because Diane told me.

13 Q When did she tell you?

14 A About two years ago.

15 Q During the days at Majestic Towers, did

16 Terri ever make any comments to you concerning a

17 feeding tube, ventilator, or anything like that

18 pertaining to the people that she saw?

19 A No.

20 Q Was Terri comfortable at Majestic

21 Towers?

22 A Yes.

23 MR. FELOS: Your Honor, that calls for a

24 conclusion on the part of the witness.

25 THE COURT: It does. Sustained.

 

374

1 Q (By Ms. Campbell) When Terri would go

2 to Majestic Towers, was she uncomfortable there

3 do you know?

4 A No.

5 MR. FELOS: Same objection.

6 THE COURT: Just ask it a different way,

7 Ms. Campbell.

8 Q (By Ms. Campbell) Did Terri ever

9 hesitate, to your knowledge, about not wanting to

10 go with you to Majestic Towers?

11 A No.

12 Q Ever make a comment about not wanting to

13 go there?

14 A No.

15 Q Were you aware of the residents there on

16 feeding tubes or ventilators?

17 A Yes.

18 Q Did you and Terri ever discuss any of

19 those particular patients specifically?

20 A No.

21 Q Do you know of anyone else that she may

22 have had conversations with regarding her

23 intentions?

24 A No.

25 Q Do you remember Mr. Felos taking your

 

375

1 deposition August 12, 1999?

2 A Yes.

3 Q Describe your feelings on that day.

4 A Upset. Nervous. Concerned. Just

5 wanting it over.

6 Q Do you recall your thoughts ahead of

7 that deposition? Was there any message or

8 anything you were trying to tell Mr. Felos?

9 MR. FELOS: Your Honor, again, what is

10 the relevance about how the witness felt about my

11 taking her deposition?

12 THE COURT: What is the relevance?

13 MS. CAMPBELL: The relevance goes to

14 some of the answers we are about to get to that

15 she testified to. Some of the answers she has

16 given to the questions.

17 THE COURT: It's a little late to give

18 an alternate answer from August.

19 MS. CAMPBELL: I don't know that they

20 are alternate answers. I think it explains some

21 of the answers she has given.

22 THE COURT: Well, it's like testimony.

23 I'll allow. Did she read and sign?

24 MS. CAMPBELL: She's not signed it.

25 MR. FELOS: But she did read it.

 

376

1 Q (By Ms. Campbell) Mrs. Schindler, did

2 you read your deposition?

3 A Yes.

4 THE COURT: Well --

5 MS. CAMPBELL: I don't believe she's

6 changing her testimony.

7 THE COURT: Okay. If she's going to

8 change it, I guess we'll get the court reporter in

9 here.

10 MS. CAMPBELL: I say I don't believe

11 she's changing it.

12 THE COURT: All right.

13 Q (By Ms. Campbell) Do you remember Mr.

14 Felos asking you various questions about your

15 thoughts pertaining to the end of death situation?

16 A Yes.

17 Q Pertaining to gangerine [sic]? Pertaining to

18 life without limbs?

19 A Yes.

20 Q When you answered those questions, were

21 you answering them truthfully?

22 A I thought I was. I was so upset and

23 nervous. I didn't want to say in that --

24 MR. FELOS: Your Honor, if the witness

25 intends to recant her testimony, her opinions,

 

377

1 that is one thing. Counsel said the witness is

2 not altering. That is not what it sounds like to

3 me.

4 MS. CAMPBELL: She is stating her state

5 of mind at the time she was giving her testimony.

6 THE COURT: She said I thought I was

7 telling the truth then, which tells me it's not

8 the truth. I don't know anything closer to

9 recantation than saying I didn't tell you the

10 truth I swore in August. I'll tell you the truth

11 now. I will not let her go there.

12 MS. CAMPBELL: Okay.

13 THE COURT: That is unfair surprise.

14 That is certainly -- had plenty of opportunity to

15 get to that. She has had the deposition. She

16 read it. Admitted reading it. This is the second

17 day of trial. That's not appropriate.

18 MS. CAMPBELL: That is not appropriate.

19 Thank you.

20 Q (By Ms. Campbell) Mrs. Schindler, how

21 often do you see Terri now?

22 A On the weekends.

23 Q How long have you been seeing her that

24 often?

25 A Most of the time.

 

378

1 Q Describe a typical visit with Terri.

2 A Go in. We talk. We watch television.

3 Q How long are you usually there?

4 A Um, about an hour, hour-and-a-half

5 sometimes.

6 Q Does anyone go with you?

7 A My husband. My daughter.

8 Q When you say you talk, what do you mean

9 by that?

10 A I talk to her. I tell her what is going

11 on. I tell her things that have happened during

12 the week. I tell her about my granddaughter. I

13 tell her what happens at the store. I just tell

14 I her things that happen during the day. The whole

15 week of what I do. What her dad is doing.

16 Q Does she respond to you?

17 A Yes.

18 Q Does she make any verbal response to

19 you?

20 A Sometimes she laughs a lot. She will

21 I cry. She just looks at me. She's just -- I

22 believe she understands. I believe that she knows

23 that I'm there.

24 Q When you say she makes these responses,

25 how often does she_ make these kind of responses in

 

379

1 a given month out of the four visits?

2 A All four visits.

3 Q Does she turn her head and look at you

4 when you enter the room?

5 A Yes.

6 Q Do you believe that she sees you or do

7 you believe more of her hearing you?

8 MR. FELOS: Your Honor, I object to this

9 line of questioning in the form of "do you

10 believe". I think it is appropriate to ask Mrs.

11 Schindler what she observed, but to just ask her

12 what she believes, I think, is improper

13 foundation.

14 THE COURT: Questions about perception,

15 I'm not sure how that translates into these

16 answers. I think this testimony is probably

17 better what she sees. She certainly can't tell

18 what it appears. Visualizes. Leave that for

19 somebody that --

20 MS. CAMPBELL: I believe my question was

21 what does she believe her perception was?

22 THE COURT: I understand. I'm not

23 sure. As I say, we talked about perception. The

24 perception was they see things. They perceive it

25 occurring to them. I think you might be better

 

380

1 suited on this to ask her what she sees. Maybe

2 ask how she perceived all that.

3 Q (By Ms. Campbell) Please describe what

4 you observe when you enter Terri's room.

5 A When I enter her room, she is usually

6 laying there looking around. Maybe listening to

7 the radio. I will go over to her and I will say,

8 "It's mommy". I hug her and kiss her. She

9 laughs. Sometimes she cries. I comfort her. If

10 she laughs, I just let her laugh. If she cries, I

11 try to, you know, comfort her until she stops.

12 Then we talk. I really and truly believe that she

13 knows who I am.

14 Q When you enter, do you always approach

15 her on the same side of the bed?

16 A No.

17 Q is she always in her room when you go to

18 see her?

19 A No.

20 Q Where is she usually?

21 A Sometimes she's in her wheelchair out by

22 the nurse's station. Sometimes she's in her bed.

23 Q Does it depend on the time of day when

24 you go to visit?

25 A Yes.

 

381

1 Q Do you know what her schedule is as far

2 as being in the room versus by the nurse's

3 station?

4 A Yes. Usually.

5 Q What would that schedule be?

6 A She's usually in her chair till about

7 2:00. Then she goes back to bed. Sometimes they

8 get her up after 2:00, but sometimes they will

9 leave her in bed.

10 Q If you move from one side of the bed to

11 the other, or from one side of the wheelchair to

12 the other, does she follow you with her eyes or

13 does her head turn?

14 A Sometimes her eyes. Like if I go one

15 side to the other, she will follow me. Her head,

16 not all the time.

17 Q Did you bring anything with you today to

18 demonstrate a typical visit with Terri?

19 A Yes. I brought a short video.

20 Q When was this video made?

21 A Saturday.

22 Q This past Saturday?

23 A Yes.

24 Q About how long is it?

25 A Maybe four minutes. Five minutes.

 

382

1 Q Who made this video?

2 A A friend of the family.

3 Q Is he a professional person at making

4 videos?

5 A No.

6 Q Was it just a personal video camera that

7 was used?

8 A Yes.

9 Q To your knowledge, has this videotape

10 been altered in any way?

11 A No.

12 Q After the videotape was made, what

13 happened to it?

14 A I brought it home. Then we gave it to

15 you.

16 Q Have you seen this video?

17 A No. I have not seen it yet.

18 MS. CAMPBELL: Your Honor, at this time,

19 I would like to play the video for the Court.

20 MR. FELOS: Your Honor, I object on a

21 number of grounds. The first ground is surprise.

22 I was told by Ms. Campbell yesterday that she had

23 a video, but that she had one copy and did not

24 have a copy for me. I was given a copy today at

25 the end of the morning recess and watched this for

 

383

1 the first time at 11 o'clock or after 11 o'clock.

2 So number one, I have not had the

3 opportunity to show the video to our expert

4 witnesses and have our expert witnesses have the

5 benefit of their expertise in order to prepare a

6 cross-examination. That is number one.

7 Number two, this should be brought out

8 on voir dire as to the authenticity of the tape.

9 Mrs. Schindler just testified that her typical

10 visit is about 30 minutes, yet there is a three

11 minute video, which leads me to suspect that there

12 may have been other portions of the visit which

13 might not have been favorable to the respondent's

14 position that is not included.

15 Also what concerns me is there seems to

16 be a gap or break in the video from when it starts

17 to when it finishes. So there are, I think there

18 are problems with authenticity. There are

19 problems with surprise. The other thing,

20 Your Honor, is something we talked about at the

21 status hearing. How is the Court to interpret

22 what that video means?

23 The Court, not being a neurologist or

24 expert in that area, what benefit or relevance

25 would it be for the Court to try to interpret what

 

384

1 the video means, which was the same question the

2 Court raised as to the Court visiting Theresa.

3 So on all those grounds, Your Honor, we

4 object to the playing of the video and the

5 introduction.

6 THE COURT: Ms. Campbell?

7 MS. CAMPBELL: As to the surprise issue ,

8 last Wednesday we had our hearing. Wednesday,

9 right prior to 5 o'clock, I received a fax from

10 Mr. Felos concerning who his witnesses were and

11 his exhibit list confirming in his fax to me that

12 the only evidence I would be bringing was Mr.

13 Pearse's report. I got that fax early the next

14 morning, Thursday morning.

15 I sent him a reply fax Thursday morning

16 that said, I believe it said something about I

17 already told him all the witnesses, but as to the

18 evidence, I believe we may have a video and some

19 photographs. Otherwise, he was correct in just it

20 was Mr. Pearse's report.

21 I told Mr. Felos on Monday that we would

22 have a video. This was yesterday. But I did not

23 have an extra copy and I did not want to give him

24 my only copy. It is a very short video. I was

25 hoping there would be time for Mr. Felos prior.

 

385

1 He has observed it prior.

2 I am not aware of any gap in the video.

3 It is an amateur video that has been done. I

4 don't know. It is maybe that or the quality of

5 the copy. The copy was made from one VCR to

6 another. It was not, the copy was not made

7 professionally. Maybe the original would be

8 different for him, but I don't believe so.

9 As to how the Court is interpreting

10 this, Dr. Barnhart (sic) yesterday testified that

11 potentially there could be other cognizance, but

12 he was not aware of it. It is true, he has not

13 seen this video. None of the experts have. I was

14 not aware of who he was going to call to trial

15 until last Wednesday evening or last Thursday

16 morning.

17 THE COURT: Two things concern me.

18 Number one, there is nobody in this courtroom whom

19 I am aware can authenticate the video. The

20 witness has not seen it. How can she say this is

21 a true copy of what it purports to be?

22 The other thing that concerns me is that

23 over a ten-year period of time, we get three

24 minutes, and based on the testimony that I heard

25 yesterday and today that this lady can appear to

 

386

1 be responsive based upon brain stem activity, how

2 in the world am I supposed to tell in a three to

3 five minute snippet what has gone on before?

4 Is she feeling anything? Is there

5 any -- I don't know. I'm talking about feeling

6 anything from sensation wise. Stimuli given to

7 her. I just don't know. So I don't know how it

8 helps me. I guess the basic evidentiary thing is

9 that I am a little reluctant to receive

10 unauthenticated evidence. That is what you are

11 asking me to do.

12 MS. CAMPBELL: My thought was that after

13 Mrs. Schindler saw this video, she can testify as

14 to was she there. Is this what it looked like.

15 The reason for the brevity part is not

16 to demonstrate the full length of a visit. It was

17 really more of the specific reaction that Mrs.

18 Schindler has been testifying to as to the

19 laughter and crying.

20 MR. FELOS: That is the exact point,

21 Your Honor, as to this video. If Mrs. Schindler

22 said "Terri, I'm here," ten times and one time

23 Terri turned her head and they took a picture of

24 the one time Terri turns her head, that does not

25 give, is not helpful to the Court and does not

 

387

1 accurately portray or is not relevant to the issue

2 of whether Terri Schiavo is responsive in any way.

3 THE COURT: Let's get down to something

4 a little more basic. Is it not agreed that she is

5 in a persistent vegetative state?

6 MS. CAMPBELL: Mr. and Mrs. Schindler

7 agree, yes, the medical records show she's in a

8 vegetative state. They do believe that she has

9 some cognitive awareness. Dr. Barnhart (sic)

10 testified yesterday to the ribbon of brain matter

11 when he was reviewing the CAT scan.

12 Mr. and Mrs. Schindler don't know. We

13 have not had physicians come in, neurologists come

14 in of their own, to examine Theresa to determine

15 exactly what it is, if any.

16 MR. FELOS: On that point, we are years

17 into this litigation. There is a procedural rule,

18 Ms. Campbell, in this case. The respondents have

19 had two years to file a motion or request the

20 Court to appoint, to allow them to have an

21 independent examination of the ward, but they did

22 not. By definition, a persistent vegetative state

23 is absence of cognitive activity.

24 MS. CAMPBELL: I believe Dr. Barnhart

25 (sic) testified yesterday that he did not believe

 

388

1 she did, but it is potentially possible she could

2 have some. Whether it is reflex, we don't know.

3 THE COURT: That is my point. Is it

4 Barnhart or Barnhill?

5 MS. FELOS: It is Barnhill.

6 MS. CAMPBELL: I'm sorry.

7 MR. FELOS: I believe, in answer to your

8 question that there is an admission, this is the

9 deposition of Mary Schindler taken on August 12th

10 on Page 35, Line 22.

11 Question. In your opinion, is Terri in

12 a vegetative condition now?

13 Answer. Yes. That is what they call

14 it.

15 THE COURT: And I wrote down in my notes

16 from arguments it's agreed that she's in a

17 permanent vegetative state. By definition, does

18 not that exclude cognitive brain activity?

19 MR. FELOS: It does, Your Honor.

20 MS. CAMPBELL: We don't know the limit

21 of the cognizance. From all the medical

22 information that we have seen, that we have been

23 provided, it does appear she's in a vegetative

24 state. I don't know that the Schindlers are

25 contesting that,-but-they do believe that she has

 

389

1 some limited ability, especially in the

2 recognition of her mother, and in this reaction

3 she has mainly to her mother and hardly anybody

4 else.

5 I have been informed that the person

6 that created this video is here and we would be

7 able to call him in, if so permitted.

8 MR. FELOS: Your Honor, the two things

9 are mutually exclusive. I can't see how the

10 respondents can admit their daughter is in a

11 persistent vegetative state, which includes

12 unconsciousness, and then say but she has

13 consciousness.

14 THE COURT: Ms. Campbell, I'll not

15 permit this witness to -- I'm not going to permit

16 the tape to come in on this witness. You may be

17 able to take it on another witness, but I would

18 expect some realistic voir dire on the part of Mr.

19 Felos to try and get at those matters. If you're

20 talking about an hour to an hour-and-a-half

21 visit -- but this is only five minutes. In those

22 kind of issues.

23 So you would not be offering the

24 gentleman, I assume a gentleman, I think you said

25 "he", as an expert, but I would treat the

 

390

1 surroundings in a similar manner and allow Mr.

2 Felos to certainly inquire before that comes into

3 evidence.

4 MS. CAMPBELL: He was not listed on my

5 witness list. Would the Court grant me permission

6 to add him at this point for that limited

7 testimony?

8 THE COURT: Well, I think if you can get

9 by the voir dire issues of why this, why not five

10 minutes before, those kind of issues, I probably

11 will let it in. I'm not sure to what extent. I

12 have not seen it, so I have no idea what I'm going

13 to see and how it fits into the testimony I heard

14 yesterday -- the CAT scan, the matters in

15 evidence -- which basically tell me it cannot be

16 cognitive.

17 I don't know what your evidence is going

18 to show me, so I'm not ruling, but let's move on

19 with Mrs. Schindler and come back.

20 Q (By Ms. Campbell) Mrs. Schindler,

21 during your normal visit with Terri, how long did

22 you say those general visits last?

23 A About an hour.

24 Q Sometimes more? Sometimes less?

25 A Sometimes more. Sometimes less.

 

391

1 Q Please describe what -- you have

2 described how Terri responds when you first walk

3 into the room. Does that laughter continue

4 throughout your visit?

5 A She stops. Then if, then if I just talk

6 to her and if I go up to her again, she will maybe

7 start up again. Yeah. She starts up again.

8 Well talk some more. Listen to the radio. And

9 then I always, you know, hug her and kiss her

10 before I leave.

11 Q The reaction that you believe Terri

12 demonstrates, this laughter and/or crying,

13 generally how long does a specific episode of

14 laughter and/or crying last before she calms back

15 down?

16 A Well, the crying can last a little bit

17 longer. Like a couple of minutes, three minutes,

18 you know. But the laughing, it all depends. If

19 her father talks to her, sometimes he will tell

20 her something and she will laugh and stop. If I

21 go up to her and say "Terri, it's mommy," she'll

22 laugh again. Like she's listening to what I'm

23 saying. Like if you tell somebody something and

24 they laugh.

25 Q Do you recall the incident when the

 

392

1 video was made?

2 A Yes.

3 Q Do you know when the video was started

4 and when the video was stopped?

5 A Yeah. It started when we got there.

6 She was laying in bed. I went up to her. I was

7 talking to her. She started, you know, like

8 whatever she starts. Sometimes right away when I

9 talk to her. First it was a slow smile on her

10 face. All of a sudden, she started crying, maybe,

11 and she just, I think they told us that she -- I

12 don't know. Just looked like she was just trying

13 to cry. Trying to laugh. Trying to do both.

14 Q Are you referring to the specific visit

15 on Saturday?

16 A Yes. She was really loud. I just kept

17 talking to her. I guess in about four or five

18 minutes -- I kept stroking her head. Rubbing her

19 face. Telling her to calm down, and she did.

20 Q Is it your understanding then that the

21 video was stopped?

22 A Yep.

23 Q What would have happened? What did

24 happen after the video stopped?

25 A We just left. My husband and I stayed

 

393

1 for a little while. You know, just stayed with

2 Terri. Then we went home.

3 Q Why did you make this video?

4 A Because I wanted people to see, the

5 Court to see what I see. I think that she's -- I

6 think she understands. I think she knows I'm

7 there. She's just -- I just want her to live.

8 Q Have you seen Terri react similarly with

9 other visitors?

10 A Sometimes with her sister. Sometimes

11 with her dad. But her dad always teases her.

12 Sometimes with Suzanne.

13 Q Do you know of any other people from the

14 nursing home that they have come by and talked to

15 you about Terri's laughter?

16 A There was a lady that --

17 MR. FELOS: I object. This looks like

18 we're heading toward hearsay testimony.

19 THE COURT: Until it gets there, it's

20 okay. Overruled as long as she just answers the

21 question.

22 A There was a lady at the nursing home

23 that used to take care of one of the residents

24 there. She used to stop by to see Terri all the

25 time.

 

394

1 Q (By Ms. Campbell) When you were there?

2 A When I was there? When I was not there.

3 But when I would see her she would say to me --

4 MR. FELOS: Your Honor, I object.

5 THE COURT: Sustained.

6 Q (By Ms. Campbell) When you would be

7 there -- what was this lady's name?

8 A Her name was Rogene Baker.

9 Q Were there times when you would see Mrs.

10 Baker there at the same time you were there?

11 A Yes.

12 Q Would you see Terri exhibit this same

13 behavior?

14 A Yes.

15 Q Do you know whether or not Rogene Baker

16 is still coming to the nursing home?

17 A No. I don't.

18 Q Do you see her there anymore currently?

19 A I have not seen her there for a while.

20 Q This time of reaction of the laughter

21 and crying, has she reacted in this similar way

22 throughout the last ten years?

23 A No.

24 Q When did this start?

25 A About a year ago.

 

395

1 Q Do you know why?

2 A No.

3 Q Do you believe that Terri is in any

4 pain?

5 A No. Not now. I don't think she is in

6 any pain. Maybe when she gets her period, you

7 know, or I think she is in pain then. But I don't

8 think she is in pain now.

9 Q What observations do you have that would

10 lead you to believe that she is in pain?

11 A Sometimes her moaning. She gets her

12 period really, really bad and they have to give

13 her pain pills and stuff sometimes. That way she

14 is just like any other woman. She still has that

15 problem. Other than that, you know.

16 Q Do you believe that Terri is suffering?

17 A No.

18 MS. CAMPBELL: I have no further

19 questions at this point.

20 THE COURT: Thank you. It's been an

21 hour-and-a-half. My guess is that your cross will

22 take a similar length of time?

23 MR. FELOS: At least an hour,

24 Your Honor.

25 THE COURT: In an abundance of caution,

 

396

1 let's take a five minute break. Mrs. Schindler,

2 ma'am, you are still on the stand. Please talk to

3 no one, except maybe court personnel.

4 (THEREUPON, A RECESS WAS HAD FROM 2:30 - 2:40

5 PM )

6 THE BAILIFF: All rise. Circuit court

7 is back in session.

8 THE COURT: Mrs. Schindler, take your

9 seat in the witness stand.

10 MR. FELOS: Approach the bench?

11 THE COURT: Approach.

12 (THEREUPON, THE FOLLOWING PROCEEDINGSWERE

13 HAD AT THE BENCH.)

14 MR. FELOS: I have received information

15 during the break that was relayed to me that there

16 is a young lady in the courtroom who has been

17 taking notes, and then on the last recess, went

18 outside the courtroom and started telling one of

19 our witnesses, who is under the rule of witnesses,

20 what is occurring in the proceedings and what the

21 witness, the current witness, is testifying to.

22 The person who allegedly is doing this

23 was communicating this information to Robert

24 Schindler, Jr., one of respondent's witnesses. I

25 know the Court has invoked the rule and I am

 

397

1 concerned about the possibility that the rule is

2 not being followed because a spectator in the

3 courtroom is providing testimony of the witness to

4 a witness waiting to be called.

5 THE COURT: Do you know who that person

6 is, Ms. Campbell?

7 MS. CAMPBELL: I see his girlfriend

8 there in the audience. I'm not sure if she is

9 doing that or not.

10 MR. FELOS: That is who it was, it was

11 told to me, was the girlfriend of the witness

12 taking notes and telling him.

13 THE COURT: Do you want me to announce

14 that the rule applies to everybody?

15 MR. FELOS: Certainly caution any

16 spectators.

17 THE COURT: I'll do that.

18 MS. CAMPBELL: I'm sorry.

19 (THEREUPON, THE BENCH CONFERENCE ENDED.)

20 THE COURT: It has been brought to the

21 Court's attention that a spectator or spectators

22 may be taking information from the courtroom and

23 discussing testimony with potential witnesses.

24 The rule has been invoked. That applies to

25 everyone. Witnesses are not to talk to anybody

 

398

1 about their testimony or any other testimony in

2 this case.

3 So if any spectator chooses to disregard

4 the communique of the Court, that you do not

5 discuss anything out of this courtroom with a

6 witness, sanctions will be imposed. Thank you.

7 Mr. Felos, you may proceed.

8 MR. FELOS: Just one moment, Your

9 Honor.

10 THE COURT: Yes sir.

11 CROSS-EXAMINATION

12 BY MR. FELOS:

13 Q Mrs. Schindler, I wrote down in my notes

14 while you were talking, "I just want her to live."

15 Is that basically how you feel about this

16 situation? You just don't want your daughter to

17 die?

18 A Yes.

19 Q You have been in court and I have read

20 portions of your deposition. Do you recall the

21 portion when I asked you, let's assume

22 hypothetically Terri had said I don't want to be

23 kept artificially alive, and I asked you does that

24 change your position in this case. And you

25 answered no.

 

399

1 Is that why? Because you just don't

2 want your daughter to die?

3 A I don't think Terri would have said

4 that.

5 Q Excuse me?

6 A I don't think Terri would have said

7 that.

8 Q That is not my question, what you think

9 Terri would say. I asked you hypothetically Terri

10 said that. I don't want to be kept alive

11 artificially. I asked you would that change your

12 position in this case. You said no.

13 Is that why you would disregard your

14 daughter's intent because you just don't want her

15 to die?

16 A I don't want her to die.

17 Q Is it your testimony here today that the

18 responsiveness that you believe Terri has to you

19 has only been occurring for one year?

20 A As much as she's been doing, yes.

21 Q You mentioned your 1993 deposition. You

22 described a little bit about that process. Wasn't

23 it your position -- didn't you have the same

24 position in 1993?

25 A Yes.

 

400

1 Q That Terri had some sort of awareness of

2 your presence and made these responsive -- or made

3 these responsive actions?

4 A Yes.

5 Q So that just has not happened in the

6 last year, but according to your testimony in '93 ,

7 you believed it was happening back then?

8 A Yes.

9 Q You made reference to Rogene Baker, a

10 nursing home aide, who you believe saw the same

11 thing you see about Terri?

12 A Yes.

L3 Q Do you know why your attorney removed

14 Rogene Baker from her witness list?

15 A No.

16 Q Is it your testimony that your daughter

17 responds to your voice?

18 A Yes.

19 Q And I believe you were describing what

20 is on the tape?

21 A Yes.

22 Q You said that Terri was crying in the

23 tape?

24 A Yes.

25 Q Do you believe that she started crying

 

401

1 in response to your voice?

2 A Yes.

3 Q You are sure of that?

4 A Yes.

5 Q Okay. When you go to the nursing home,

6 do you bring anything with you?

7 A Not all the time.

8 Q What things might you bring with you

9 when you visit Terri at the nursing home?

10 A During the holidays, I decorate her

11 room. We bring tapes. Easter, I bring, I bring a

12 plant. I'll bring a poinsettia. Just different

13 things with me. Not all the time.

14 Q Do you bring a radio with you when you

15 go to the nursing home?

16 A Sometimes.

17 Q Is there a radio in Terri's room?

18 A There used to be.

19 Q There is not a radio now; is there?

20 A No.

21 Q I also wrote down, while in your

22 examination, you said sometimes Terri cries in

23 response to you?

24 A Yes.

25 1 Q Then again sometimes she doesn't?

 

1 A Right. Yes. 402

2 Q I also wrote down that you said "I

3 believe she understands"?

4 A Yes.

5 Q So you believe Terri has some cognizance

6 of what's going on?

7 A I believe she -- I believe she

8 understands that I'm there.

9 Q How would you know if Terri has a

10 response, whether she knows that a person is

11 there, as opposed to you or your husband or

12 someone else?

13 A I truly believe that she knows my voice.

14 Q That is what we would see on this

15 tape? Her response to your voice?

16 A Yes.

17 Q Do you believe she has any understanding

18 of her situation?

19 A I don't know that.

20 Q Would you agree that if she did it

21 would be a torment?

22 A I don't know that.

23 Q There was some testimony about

24 ventilators and feeding tubes at the nursing home

25 your mom was in?

 

403

1 A Yes.

2 Q Isn't it true that Mike Schiavo visited

3 your mom there on numerous occasions?

4 A He used to go see her.

5 Q And you know he's a licensed respiratory

6 therapist?

7 A I understand that.

8 Q Would you dispute the fact that -- what

9 is the name of that nursing home, by the way?

10 A It used to be Majestic Towers. I don't

11 know what it is now.

12 Q Would you dispute the fact that Majestic

13 Towers at the time was not licensed to care for

14 ventilated patients?

15 A Well, there was a couple there.

16 Q Now you mentioned patients with feeding

17 tubes. You never worked with patients with

18 feeding tubes; did you?

19 A I never worked with any of the

20 patients. I just did activities with them.

21 Q You did not do activities with patients

22 with feeding tubes; did you?

23 A Yes. It was called stimulation

24 activity.

25 Q Your mom -- or let me backtrack. Do

 

404

1 you think that Terri should have a Do Not

2 Resuscitate order? Do you know what a DNR order

3 is?

4 A Yes.

5 Q Do you agree or disagree? What's your

6 position? Should Terri be resuscitated if her

7 heart stops?

8 A Yes.

9 Q Now you were involved with your mom's

10 care before she passed away; were you not?

11 A Yes.

12 Q You were also involved in the decision

13 making process for your mother?

14 A Yes.

15 Q When your mom was admitted to the

16 nursing facility, she was able to walk; was she

17 not?

18 A No.

19 Q Was she mentally competent?

20 A Yes.

21 Q When your mom was admitted to the

22 nursing home, why did you agree at that time it

23 was appropriate for your mom not to have a DNR

24 order on her chart?

25 A Not to?

 

405

1 Q Yeah. Was it appropriate for your mom

2 to have a Do Not Resusciate [sic] order?

3 A I don't know that she did.

4 Q Do you recall that I took your

5 deposition back on August 12, 1999?

6 A Yes.

7 Q I'd like to read you your testimony from

8 Page 13, Line 5.

9 Question. Was there a Do Not

10 Resuscitate order entered on your mother's chart?

11 Answer. Yes.

12 Question. Were you involved in your

13 mother's care in her last years of life?

14 Answer. Involved?

15 Question. Well, did you help her make

16 decisions? Did you participate in the decision

17 making process with her?

18 Answer. Yes. I did.

19 Question. Tell me how it came about

20 that a Do Not Resuscitate wish was made.

21 Answer. When she entered the nursing

22 home, we sat down with the people there. Yeah. I

23 guess we did decide at that time not to do that,

24 you know, or not to have -- to have the Do Not

25 Resuscitate.

 

406

1 Now if you were involved in your

2 mother's care, why was it appropriate for your mom

3 to have a Do Not Resuscitate order when she was

4 mentally competent, could converse, had a much

5 higher quality of life than Theresa, but its not

6 appropriate for Theresa to have a Do Not

7 Resuscitate order?

8 A Well, maybe my mother made that decision

9 herself. My brother was also involved in my

10 mother's decision making, too.

11 Q Well, you are saying maybe it was your

12 mother's wish?

13 A Maybe. I absolutely don't remember.

14 Q Well, again in your deposition on Page

15 13, Line 20.

After you say I guess we did decide

16 at that time not to do that, you know, or not to

17 have that, to have the Do Not Resuscitate, I asked

18 you the question, what do you recall of that

19 conversation?

20 I don't remember ever talking alone with

21 my mom about that. It was the man at the nursing

22 home, my mom and I, and we just discussed it. The

23 three of us. That was it.

24 Are you saying that you did not

25 1 participate in that decision?

 

407

1 A Um, I must have, but my mother must have

2 made the final decision.

3 Q Do you think that was appropriate for

4 your mother not to have a Do Not Resuscitate

5 order?

6 A If that is what she wished.

7 Q In your testimony, prior testimony, did

8 you not say anything that you disagreed with

9 that? According to your testimony, you were

10 involved in the decision making process with your

11 mother.

12 A But my mother was -- her mind was okay.

13 She knew about that, too. Maybe she is the one

14 that did not want it, and I went along with her.

15 Q You feel strongly about this subject;

16 don't you? You believe that all medical treatment

17 should be used to keep someone alive?

18 A Yes. I do.

19 Q Including artificial life support?

20 A Yes.

21 Q You feel strongly about that?

22 A Yes.

23 Q Did you speak up and mention that to

24 your mother? Try to talk her out of it?

25 A I don't remember if I talked to my

 

408

1 mother about that or not.

2 Q But would you say it was your mother's

3 decision to make?

4 A At that time, she was mentally

5 competent. She could make that decision by

6 herself.

7 Q So your mom's intent mattered?

8 A If that is what she wanted.

9 Q So why doesn't Terri's intent matter, if

10 hypothetically, that is what Terri wants?

11 A I don't want -- I don't know that to be

12 true.

13 Q But that is not my question. I asked

14 you hypothetically, if Terri said I don't want to

15 be kept alive by artificial means, would that make

16 a difference to you. You said no.

17 My question to you is why doesn't

18 Terri's intent matter?

19 A I don't know if that is Terri's intent.

20 Q Let me ask it this way. Does what Terri

21 wants matter to you regarding a decision to remove

22 artificial life support?

23 A Um, she's not in that position to make

24 that now.

25 Q That was not my question. My question

 

409

1 is does Terri's intent matter to you? Or is it,

2 in your mind, you just want your daughter not to

3 die for whatever reason?

4 I would like my daughter to live until

5 it's -- she dies when God is ready for her.

6 You were here during Father Murphy's

7 testimony?

8 A Yes. I was.

9 Q How does anyone know when God is ready

10 for someone?

11 A They don't.

12 Q But to you, so I understand how you

13 feel, that whether or not somebody wants medical

14 treatment, they should have it?

15 A Yes.

16 Q Because God might not be ready for them?

17 A Yes.

18 Q I would like to talk to you about, I

19 think you mentioned the Karen Ann Quinlan case?

20 A Yes.

21 Q How old was Terri, do you recall, when

22 you had these conversations with her?

23 A Seventeen, eighteen, twenty. In her

24 teens.

25 Q I believe you testified that the time

 

410

1 period that these conversations were occurring was

2 when Karen Ann Quinlan's parents were attempting

3 to remove the respirator?

4 A Yes.

5 Q It was on television? It was

6 newsworthy?

7 A Yes.

8 MR. FELOS: One moment, Your Honor.

9 Your Honor, if I may, what number are we up to in

10 identification?

11 THE COURT: The next exhibit would be

12 Exhibit Number Eight.

13 Q (By Mr. Felos) Ma'am, I'd like to show

14 you Petitioner's Number Eight marked for

15 identification. These are newspaper pages from

16 the St. Petersburg Independent dated September 13,

17 1975; September 18, 1975; April 1, 1976 and May

18 24, 1976, regarding the Karen Ann Quinlan case.

19 The first one, September 13, 1975, has

20 the headline regarding the case, "Father Asks The

21 Judge To Let His Daughter Die." What was Terri's

22 birthday?

23 A 12-3-63.

24 Q December of 1963?

25 A Yes.

 

411

1 Q Well, when this headline broke, Terri

2 would have been 11 years old. And she also would

3 have been, in the next headline September 18 --

4 September 23, 1975, Your World Today, about the

5 Karen Ann Quinlan case, "To Live Or Die", Terri

6 would have been 11 at that time.

7 Then I would like to bring your

8 attention the front page of the St. Pete Times.

9 Terri would have just turned 12 years old, which

10 has on the front page, "Quinlan Has Right To Die",

11 which is when the Supreme Court of New Jersey

12 ruled in favor of the parents to remove the

13 ventilator.

14 And the last one in May of 1976, again

15 front page of the St. Pete Times, "Quinlan

16 Respirator Turned Off". Now you mentioned you

17 had these conversations with Terri in response to

18 the Karen Ann Quinlan case as the parents were

19 trying to remove the respirator, but Terri was not

20 17 or 18 years old at the time; was she?

21 A No. -

22 Q At that time, Terri was 11 years old?

23 A Yes.

24 Q Is it your testimony that you had

25 conversations with your 11-year-old daughter

 

412

1 regarding artificial, removal of artificial life

2 support?

3 A But the Karen Ann Quinlan case went on

4 for years.

5 Q Ma'am, your testimony was that you had

6 these conversations with your daughter when it was

7 front page in the newspaper when it was

8 newsworthy, and when the parents were trying to

9 remove the respirator. The respirator was removed

10 in May of 1976, when your daughter was 12.

11 My question is, are you saying that you

12 had conversations with your daughter, the

13 conversations that you alluded to with your

14 daughter, occurred when she was 11 and 12 years

15 old? You have to speak out loud so the court

16 reporter can hear you.

17 A Yes.

18 Q Well now, again, what do you say that

19 Theresa said about the Karen Ann Quinlan case to

20 you?

21 A Just leave her alone.

22 Q Now I took your deposition again last

23 August and on Page 28, Line 1, I asked you, now

24 did you discuss with Terri the issue of whether

25 the respirator should be removed? We were talking

 

413

1 about the Karen Ann Quinlan case.

2 I really don't remember. I just

3 remember talking about her. I don't remember

4 exactly what was said.

5 A Yes.

6 Q Okay. Was that testimony you gave in

7 your deposition truthful? That you don't exactly

8 remember what was said?

9 A Yes.

10 Q Now you had a conference in this case

11 with Mr. Pearse, the guardian ad litem?

12 A Yes.

13 Q Do you know who Richard Pearse is?

14 A Yes.

15 Q And you knew before the conference with

16 Mr. Pearse that he would be issuing a report and a

17 recommendation to the Court on the question of

18 whether Terri's life support should be removed.

19 You knew that; didn't you?

20 A Yes.

21 Q Is it fair to say that you would tell

22 Mr. Pearse any information that you thought would

23 be helpful to your position in the case?

24 A I told Mr. Pearse the truth.

25 Q You told him the truth?

 

414

1 A Yes.

2 Q But that was not my question. My

3 question was, is it fair to say you would tell Mr.

4 Pearse any information you had which would help

5 your position in the case?

6 A I told Mr. Pearse -- the questions he

7 asked me, I answered them.

8 Q Are you saying that -- is your testimony

9 now that you only would tell Mr. Pearse what he

10 asked you and you would not add information if it

11 was helpful to your case, if he did not ask it

12 specifically?

13 A I -- yes. Maybe, you know, answer, but

14 I told Mr. Pearse whatever he asked.

15 Q Well, in your deposition, Page 45, Line

16 21, I asked you, question, you were talking about

17 Mr. Pearse, and is it fair to say you would

18 endeavor to tell him any information you would

19 think would be helpful to your position in this

20 case?

21 You answered probably. Yeah. Yes.

22 A Yes.

23 Q So now that we have straightened that

24 out, you would have told Mr. Pearse anything that

25 would help your position in the case; is that

 

415

1 correct?

2 A Yes.

3 Q Why didn't you tell Mr. Pearse that you

4 had a conversation with your daughter about the

5 Karen Ann Quinlan case in which she said let her

6 live?

7 A I don't remember. I don't remember. It

8 never came up. He didn't ask me. I didn't think

9 about it.

10 Q I think you also stated on your direct

11 examination that you knew of a friend of Terri’s,

12 Diane Meyer, I believe you mentioned was her name?

13 A Yeah.

14 Q In which you believe that Terri had a

15 conversation with Diane also about the Karen Ann

16 Quinlan case; is that correct?

17 A Yes.

18 Q You learned of that information about

19 two years ago?

20 A Yes.

21 Q By the same token, in your conversation,

22 your meeting with Mr. Pearse, why didn't you tell

23 him about Diane Meyer?

24 A I don't know.

25 Q You talked about the dismissal of your

 

416

1 prior lawsuit. Do you understand that your

2 lawsuit was dismissed with prejudice?

3 A That is what it said. I didn't

4 understand it.

5 Q In the pleadings in this case, in Mr.

6 Schiavo's petition, there is an allegation that

7 you dismissed the lawsuit with prejudice. In your

8 answer, in your answer you deny that allegation.

9 Do you know why that allegation was denied in your

10 answer?

11 A I don't understand the question.

12 Q Okay. You are aware that Mr. Schiavo

13 filed a petition with this court -- let me get to

14 it. Petition for Authorization to Discontinue

15 Artificial Life Support.

16 A Yes.

17 Q Are you aware of that petition?

18 A Yes.

19 Q In paragraph thirteen of the petition it

20 states, the ward's parents have previously claimed

21 before this court that petitioner has a conflict

22 of interest because he has been involved in a

23 relationship with a woman other than his wife and

24 that petitioner stands to inherit the ward's

25 estate. Is that true? Is that statement true?

 

417

1 A Yes.

2 Q And it says, the ward's parents

3 subsequently dismissed their claim with prejudice.

4 Is that true?

5 A Yes. That is what is in there. I did

6 not understand it.

7 Q My question is is that true?

8 A Yes.

9 Q In the answer you filed to the petition

10 regarding paragraph thirteen that I just read your

11 answer is denied.

12 A Yes.

13 Q My question is, since the allegations

14 are true, why is it that you denied it in your

15 answer?

16 A Denied?

17 Q Yes.

18 A Denied what?

19 Q The statement in Mr. Schiavo's petition

20 you said is true. My question is why in your

21 answer did you deny the truth of the statement?

22 A I'm sorry. I really don't understand

23 what you are trying to -- I don't understand.

24 Q Okay. Let me show you the answer filed

25 1 on your behalf. You talked about -- you also --

 

418

1 and I wrote this down -- you said you dismissed

2 your claim with prejudice or you decided to

3 dismiss your claim because we had to pay the

4 expenses for what they wanted to do. Do you

5 recall saying that?

6 A Yes.

7 Q Can you explain to me what that means?

8 A For another court hearing.

9 Q So in other words, you were under the

10 belief that you had to pay some court costs?

11 A Yes.

12 Q Were you under the belief that you had

13 to pay attorney's fees?

14 A Yes.

15 Q And it was your understanding that by

16 dismissing this, you would not have to pay the

17 fees and costs?

18 A Yes.

19 Q Is the real reason you dismissed this

20 claim with prejudice was to save fees and costs?

21 A Yes.

22 Q Now your -- let me ask you this. In

23 your husband's deposition -- in your deposition

24 you state that this claim was dismissed with

25 prejudice by your attorney without your knowledge

 

419

1 and consent. Are you retracting that? Is that

2 not true?

3 A I didn't understand what it meant.

4 Q Well, that's something different. You

5 didn't understand what it meant. My question is

6 are you still claiming that your attorney

7 dismissed your suit with prejudice without your

8 consent?

9 A If he dismissed it, all I can say is I

10 did not understand what it meant.

11 Q Okay. Now we know today that the reason

12 you dismissed it is so you did not have to pay

13 fees and costs; correct?

14 A Yes.

15 Q At that time, you made the charges in

16 that suit that Mr. Schiavo was abusing Terri by

17 not treating an infection; is that correct?

18 A Yes.

19 Q Back then I would assume that your

20 daughter's life was important to you as well?

21 A Yes.

22 Q Why didn't you proceed? Why didn't you

23 proceed to remove Mr. Schiavo with your suit to

24 remove Mr. Schiavo as guardian so you would know

25 that would never happen again?

 

420

1 A Just repeat that please for me.

2 Q Why didn't you go ahead with that

3 lawsuit to have Mr. Schiavo removed so you would

4 know that not treating Terri would not happen

5 again?

6 A Because when we went to the hearing, the

7 guardian ad litem report said that everything was

8 okay, and I thought that was it.

9 Q We were talking before about your answer

10 to Mr. Schiavo's petition. Let me show you the

11 answer. Are you familiar with what I'm talking

12 about now when I say your answer to the petition?

13 A What is my answer? Which one?

14 Q My question was --

15 THE COURT: Mr. Felos uses the word

16 answer. The word "answer" means something

17 different to us than it does to a lay person.

18 Mrs. Schindler, answer means your response to your

19 son-in-law's petition. Does that help? I guess

20 not. I'm sorry.

21 Q (By Mr. Felos) Ma'am, my question was

22 in the answer filed by Ms. Campbell to Mr.

23 Schiavo's petition, you deny the truth of

24 paragraph thirteen of his petition. That is the

25 paragraph I read to you which you said was true.

 

421

1 My only question is, if what Mr. Schiavo

2 says in paragraph thirteen in his petition is

3 true, that you dismissed that case with prejudice,

4 why did you deny that?

5 A Mr. Felos, I didn't understand what

6 prejudice meant. That is all I can say.

7 Q Okay. When you found out -- you

8 testified that you found out from a nurse at Sabal

9 Palms that Terri was not being treated for an

10 infection?

11 A Yes.

12 Q And that is when she came back from the

13 hospital for having her gallbladder removed?

14 A Yes.

15 Q Do you dispute the gallbladder did not

16 occur in Sabal Palms, but it occurred at Palm

17 Gardens?

18 A No. I didn't know that. The nurse told

19 me it was her gallbladder. That's all I know.

20 Q Would you dispute Mr. Schiavo's -- would

21 you dispute a statement by Mr. Schiavo which says

22 Terri had her gallbladder removed while she was

23 residing at Palm Gardens?

24 A I don't know that.

25 Q 1 wrote down in your direct examination

 

422

1 that as a result of your conversation with this

2 nurse at Sabal Palms you believe that Terri was

3 not going to get any care. Now that opinion of

4 yours, the guardian ad litem who was appointed

5 reached a different opinion; didn't he?

6 A Yes.

7 Q In fact, you heard us read his report

8 that although Michael may be vocal at times, that

9 because of his vocal nature he got more care for

10 Terri than she otherwise would have gotten. Do

11 you remember that?

12 A I heard that.

13 Q Do you dispute that?

14 A I don't know that.

15 Q My question was do you dispute that?

16 A I don't know about that.

17 Q Well, up to the time that you and Mr.

18 Schiavo had a falling out, didn't Michael do

19 everything in his power to see that Terri's daily

20 needs were cared for?

21 A Yes.

22 Q I heard you say you were not part of the

23 malpractice case; is that correct?

24 A Yes.

25 Q You did testify as a witness though;

 

423

1 didn't you?

2 A Yes.

3 Q You also testified that Michael moved

4 out of your house because he said -- or moved out

5 of the house you and he were living in because he

6 wanted to move on with his life?

7 A Yes.

8 Q Isn't the real reason he moved out is

9 that his parents moved down to Florida, so he

10 decided to move in with his parents?

11 A Not at that time.

12 Q You dispute that he moved from the house

13 you were living in together into his parent's

14 home?

15 A Yes.

16 Q Now there were two residences in which

17 you and Mr. Schiavo, you and your husband and Mr.

18 Schiavo lived in together?

19 A Yes.

20 Q Is it correct that in the first

21 residence both -- that was a residence leased both

22 by you and Mr. Schiavo?

23 A No.

24 Q Whose house was it?

25 A It was in Michael's name, but we shared

 

424

1 everything.

2 Q So the house was Michael's, and you

3 lived in his house and shared expenses?

4 A Right. Yes.

5 Q You mentioned something about your

6 financial condition. You mentioned about your

7 financial condition at Sabal Palms. I think I

8 wrote in my notes that your personal financial

9 situation was not good?

10 A That's right.

11 Q Was that around -- were you referring to

12 the time that Mr. Schindler and Mr. Schiavo had

13 that fight or dispute at the nursing home?

14 A Yes.

15 Q That was around the time period just

16 after the trial; was it not?

17 A Yes.

18 Q In your deposition in August, I asked

19 you on Page 69, Line 2, Question. Did you have,

20 around the time period after the trial, did you

21 have a financial need?

22 Answer. No.

23 Question. For funds?

24 No.

25 1 Then I asked you on line 25. Question.

 

425

1 What would you estimate your net worth and that of

2 your husband was in February of 1993?

3 Answer. I don't remember. I really

4 don't remember.

5 Question. Did you consider yourself

6 well off at that time?

7 Answer. We were comfortable.

8 Now your statement, your testimony in

9 your deposition approximately seven months ago, or

10 less than that, five months ago or so, was that

11 you had no need for funds and your financial

12 position was comfortable.

13 You stated today in your testimony that

14 at that time your financial situation was not

15 good. Can you explain the difference in these two

16 testimonies? Your testimony here today and your

17 testimony a few months ago?

18 A We were comfortable, but still trying to

19 recover.

20 Q So your testimony is, I gather you had

21 no need for funds, but your financial situation

22 was not good; is that correct?

23 A We were comfortable --

24 Q Did you have a need for --

25 A -- but our financial situation was not

 

426

1 wonderful.

2 Q You also testified on direct

3 examination about the trust fund or account that

4 was set up for the money that was being raised for

5 Terri's care was deposited in an account at First

6 Union?

7 A Yes.

8 Q Isn't it a fact that your name was on

9 that account along with Michael's?

10 A Yes.

11 Q Did I get your testimony right on direct

12 that you didn't know that Terri wanted to get

13 pregnant and wanted to have children?

14 A I don't remember her telling me that.

15 Q Did you consider yourself having a close

16 relationship?

17 A Yes.

18 Q Now in the deposition of, I believe both

19 of your siblings, they make mention of Terri

20 telling them that?

21 A Well, maybe she told them.

22 Q But that is not something you recall

23 Terri telling you?

24 A We never discussed that that much.

25 Q How long did Michael work at Agostino's

 

427

1 restaurant?

2 A Maybe a year prior to Terri's -- a year,

3 year-and-a-half.

4 Q Year-and-a-half?

5 A Prior to Terri's problem. Prior to

6 Terri's problem.

7 Q Was Michael unemployed for long periods

8 of time?

9 A Yes.

10 Q When was that?

11 A Between jobs.

12 Q How much time would you consider long?

13 A couple weeks? A month?

14 A No. Longer than that.

15 Q Do you know how many hours Michael

16 worked at Agostino's?

17 A Um, no. Not really.

18 Q Do you know that he worked till closing

19 and closed the restaurant?

20 A Yes.

21 Q He worked on weekends?

22 A Yes.

23 Q Does that sound like being lazy to you?

24 A I'm not talking about that.

25 Q At the nursing home where you worked,

 

428

1 your work was doing activities with people?

2 A Yes.

3 Q But did you or did you not work with

4 patients who were intubated?

5 A Yes.

6 Q In your deposition on Page 10, Line 2

7 Line 7, I asked you, question, we were talking

8 about your work at the nursing home. Did you work

9 with any patients at that time who were

10 intubated?

11 Answer. No.

12 Can you please explain why six months

13 ago or five months ago under oath you said you did

14 not work with intubated patients and now today you

15 say you did?

16 A All I know is that when we used to have

17 -- I didn't work with them, per se. They used to

18 come into the rooms. They would be there for

19 activities. I never -- I used to read to them. I

20 never worked with them. They would come into the

21 room when we had activities. They would listen to

22 the music. They would be there in the room with

23 us.

24 Q But your work was reading to them? You

25 got paid for this; did you not?

 

429

1 A Yes.

2 Q Isn't it a fact that you don't, don't

3 know for a fact what qualifications, if any, a

4 person needs to be an activities director of a

5 nursing home?

6 A I don't know it, but they told me when I

7 started there in order to be a director, an

8 activities director, you had to go for schooling

9 at least two years.

10 Q So you received some hearsay information

11 from somebody. This is what somebody told you?

12 A From the director of the nursing home.

13 Q But you don't know that for a fact?

14 A No. I don't.

15 Q But certainly you did not need any

16 special training or license or education for your

17 position as an assistant activities director; did

18 you?

19 A No.

20 Q You had testimony about your husband's

21 brother. I believe you mentioned his name is Fred

22 Schindler?

23 A Yes.

24 Q He was in that accident in 1980?

25 A Yes.

 

430

1 Q He was in a coma for a while?

2 A Yes.

3 Q Right side paralysis?

4 A Yes.

5 Q He still has paralysis; doesn't he?

6 believe you said it was permanent?

7 A Yes. But it got better after he went to

8 rehab in Colorado.

9 Q He improved, but after his improvement,

10 he still is permanently impaired; wasn't he?

11 A No. He wasn't. Well, permanently

12 impaired?

13 Q Um-hmm.

14 A How do you mean?

15 Q In 1986 was your husband's brother,

16 Fred, impaired? Paralyzed partially.

17 A Yes. In '80.

18 Q I asked you in 1986?

19 A Yes.

20 Q Yes.

So at the time period Mr. Schiavo

21 says he had a conversation with Terri about her

22 uncle in '86, the uncle was paralyzed, partially

23 paralyzed?

24 A Partially.

25 Q And he lived with Mr. Schindler's mother

 

431

1 at that time; didn't he?

2 A No.

3 Q Didn't you testify on direct that he

4 lived with Mr. Schindler's mother until her death?

5 A She lived with him. It was his house.

6 Q Excuse me. They lived together?

7 A She moved in there to take care of his

8 children.

9 Q Is it your testimony that -- was it your

10 1 testimony that Terri was present for her

11 grandmother's death? Mr. Schindler's mother's

12 death?

13 A Yes.

14 Q Isn't it a fact that she was in Florida

15 with Michael --

16 A No.

17 Q -- when the grandmother died?

18 A No.

19 Q You mentioned, you were very specific

20 in your direct examination, very specific that the

21 grandmother had two hospitalizations?

22 A Yes.

23 Q One in October of 1985 and one later on.

24 I believe you said she died in March 1986?

25 A Yes.

 

431

1 at that time; didn't he?

2 A No.

3 Q Didn't you testify on direct that he

4 lived with Mr. Schindler's mother until her death?

5 A She lived with him. It was his house.

6 Q Excuse me. They lived together?

7 A She moved in there to take care of his

8 children.

9 Q Is it your testimony that -- was it your

10 testimony that Terri was present for her

11 grandmother's death? Mr. Schindler's mother's

12 death?

13 A Yes.

14 Q Isn't it a fact that she was in Florida

15 with Michael --

16 A No.

17 Q -- when the grandmother died?

18 A No.

19 Q You mentioned, you were very specific

20 in your direct examination, very specific that the

21 grandmother had two hospitalizations?

22 A Yes.

23 Q One in October of 1985 and one later on.

24 I believe you said she died in March 1986?

25 A Yes.

 

432

1 Q Are you sure of that, or perhaps there

2 I was one hospitalization, she was in the hospital

3 for awhile, and it resulted in her death?

4 A No.

5 Q Do you have a clear recollection of the

6 events regarding your mother-in-law's death?

7 A Yes.

8 Q In your deposition last August, on Page

9 47 and 48, we were talking about the illness of

10 your mother-in-law and your mother-in-law being on

11 a respirator, and also the conversation that you

12 said the family had that your husband decided to

13 put his mother on a respirator and the family

14 supported him. Do you recall that?

15 A Yes.

16 I Q The family supported him. Do you recall

17 that?

18 A Yes.

19 Q I asked you on Page 27, Line 21,

20 Question. When and where did this conversation

21 occur?

22 Answer. Probably after we came back

23 from visiting my mother-in-law.

24 Question. When you came back?

25 1 Answer. Probably when we all came back

 

433

1 from visiting my mother-in-law. This is before we

2 moved to Florida, though.

3 Question. Okay. So prior to 1986,

4 that's when Terri moved to Florida?

5 Answer. Uh-huh.

6 Question. So prior to 1986 you and

7 Terri visited your mother-in-law?

8 Answer. All of us did.

9 Question. Okay. Do you know what the

10 I a r was. Okay. Do you know what year this was?

11 Answer. No. I don't remember when she

12 was in the hospital.

13 Question. Was it before Terri married

14 and left the home?

15 Answer. Yes. It had to be. It had to

16 be.

17 Question. Okay. What life support was

18 your mother-in-law on?

19 Answer. She was on a respirator.

20 Ma'am, in your deposition five months

21 ago, you stated that your mother-in-law was on a

22 respirator; the conversation between the family

23 before her death about putting her on a respirator

Z4 all occurred before Terri married and left the

25 home. Now Terri married in November of 1984?

 

434

1 A Yes.

2 Q Can you explain why you couldn't even

3 remember the year that this occurred, but now you

4 know not only the year but the exact month this

5 conversation occurred?

6 A Well, because I got the dates mixed up.

7 She died in '86 in March. Terri was married in

8 '84. So it had to have been after Terri got

9 married.

10 Q Isn't it true that you don't remember,

11 I you don't remember exactly when Terri and Michael

12 took a trip to Florida?

13 A No.

14 Q You mentioned that back in Philadelphia

15 Mike worked at a McDonald's?

16 A Yes.

17 Q Isn't it true that he was the manager of

18 the McDonald's?

19 A Yes.

20 Q Do you recall Mike, Mr. Schiavo, ever

21 being in an automobile accident while he was

22 visiting in Florida?

23 A Yes.

24 Q Don't you recall that when he called

25 home and you were told about that, you informed

 

435

1 him that Mr. Schindler's mother died?

2 A No.

3 Q You sure that was not the time?

4 A No.

5 Q Do you think whether the patient

6 experiences pain should be a factor in whether to

7 remove life support?

8 A Everybody experiences pain at some time.

9 Q But isn't it true that it is your

10 position that the degree of pain experienced by

11 someone should not be a factor in considering

12 whether or not to remove artificial life support?

13 A Yes.

14 Q Isn't what you would like to see happen,

15 Mrs. Schindler, is to have Mr. Schiavo remarry,

16 divorce Terri, then have Terri's care left to you

17 and your husband? Isn't that what you would like

18 to see happen?

19 A Yes.

20 Q And is it fair to say that what we might

21 expect for Terri in the future regarding medical

22 treatment and medical procedures is what you have

23 stated already?

24 A I don't know that.

25 Q That every possible medical treatment

 

436

1 should be used to keep her alive? Isn't that what

2 we would expect?

3 A Yes.

4 I Q Isn't it true that we could expect that

5 for Terri because that is what you would want for

6 yourself?

7 A I want it for my daughter.

8 Q Is the reason you want it for your

9 daughter because that is what you would want for

10 yourself?

11 A Yes.

12 Q Mrs. Schindler, are you aware if you

13 prevail in this case that there is a possibility

14 you could gain a substantial amount of money?

15 A Yes.

16 Q Is that yes?

17 A Yes.

18 Q Wasn't it the issue of finances that

19 caused the rift between you and your husband and

20 Mr. Schiavo?

21 A That had nothing to do with Terri's

22 money.

23 Q Weren't you upset over the fact that

24 Mr. Schiavo would not share his award with you?

25 A His award, yes.

 

437

1 Q If the money did not matter, why were

2 you upset that he would not share his award?

3 A Because at the time of the trial,

4 Michael kept saying that he would.

5 Q You heard Mr. Schiavo's testimony that

6 the first facility that your daughter went to was

7 Northside Hospital --

8 A Yes.

9 Q -- after her incident. She was there

10 about 3-and-a-half months?

11 A Yes.

12 Q Do you dispute his testimony that he

13 stayed there day and night for sixteen days with

14 her?

15 A We all did.

16 Q You don't dispute his testimony?

17 A No.

18 Q Is it fair to say that in the first few

19 months while Terri was at Humana Northside that

20 she did not exhibit any of the responses she

21 exhibits today?

22 A Yes.

23 Q Yes. It's fair to say that?

24 A Yes. It's fair to say that.

25 Q 1 She was basically unresponsive those

 

438

1 first three months?

2 A Yes.

3 Q Isn't it true that Terri's arms and legs

4 move?

5 A Yes.

6 Q But isn't it true that you have no idea

7 whether it's a reflexive action or voluntary

8 action?

9 A I don't know.

10 Q One of the signs that you take that

11 Terris [sic] is aware of your presence is because her

12 head will follow your voice?

13 A Yes.

14 But that does not occur all the time;

15 does it?

16 A No.

17 Q Is it true you desperately want to

18 believe that your daughter is aware of your

19 presence?

20 A Yes.

21 MR. FELOS: I have no other questions,

22 Your Honor.

23 THE COURT: Redirect?

24

25

 

439

1 REDIRECT EXAMINATION

2 BY MS. CAMPBELL:

3 Q Thank you. Mrs. Schindler, do you know

4 Theresa's intent as to what she would want to do

5 regarding the feeding tube?

6 A No. No. I don't.

7 Q You have heard many times through this

8 Mr. Schiavo's stories about Terri telling him that

9 she would not want to be kept alive like this on

10 the train trip?

11 A Yes.

12 Q Do you believe that story?

13 A No.

14 Q Why don't you believe that story?

15 MR. FELOS: Your Honor, it's for the

16 Court to determine whether witnesses are believed

17 or not. Whether Mrs. Schindler believes Mr.

18 Schiavo's story is not relevant.

19 THE COURT: I don't think, phrased that

20 way, it's relevant. Why she believes. Why would

21 it be relevant?

22 MS. CAMPBELL: In the earlier part of

23 Mr. Felos's cross-examination, he was asking her

24 about Theresa's intent as expressed to Michael.

25 Mrs. Schindler testified that she did not believe

 

440

1 it. It was pressed as to why wouldn't she accept

2 Theresa's intent.

3 I think that Mrs. Schindler, there's a

4 reason why she does not believe Michael's story

5 and that is why she did not believe Theresa's

6 intent. That is why I believe it's relevant.

7 MR. FELOS: The questions on cross had

8 to do with a hypothetical question. Assume that

9 Terri said this, this was her intent. Does that

10 change her position? She said, well, I don't

11 think it does. I said assume it does. Does that

12 change your position? She said no.

13 I could ask every witness whether they

14 believe the other witness's testimony, but it's

15 not relevant or proper.

16 THE COURT: She's doing more that that.

17 She's asking the reasons why she might not believe

18 it. For whatever it's worth, I'll allow it.

19 Q (By Ms. Campbell) Mrs. Schindler, why

20 do you not believe Michael's statement?

21 A Because I don't believe Terri would ever

22 say anything like that.

23 MR. FELOS: I object. Move to strike

24 the answer. That is completely without foundation

25 as to her belief of what somebody else might say.

 

441

1 THE COURT: Well, I allowed the

2 question. I guess were stuck with the answer.

3 MS. CAMPBELL: I'll move on. Thank you.

4 Q (By Ms. Campbell) Mrs. Schindler, since

5 the time of the deposition that was taken by Mr.

6 Felos in August of 1999, have you had more time to

7 think about the time frame and sequence of events

8 pertaining specifically to the '85/'86 time frame

9 of the train trip?

10 A Yes.

11 Q Was there anything that you had at home

12 maybe that helped you to remember any of those

13 dates?

14 A Yes. We had found a calendar.

15 Q What did the calendar reveal to help you

16 refresh your memory?

17 A It had the times that my husband and the

18 times that Terri and Mike took their trips to

19 Florida.

20 Q Why was the calendar kept?

21 A My husband kept it for tax purposes for

22 our condo, and he was coming down periodically to

23 look for work, so he kept it.

24 Q And he would stay in the condo when he

25 came to St. Petersburg?

 

442

1 A Yes.

2 Q Are you aware of how many times Theresa

3 took a train trip, specifically from Pennsylvania

4 to Florida, between 1985 and 1986?

5 A Once.

6 Q You are not aware of any other times;

7 right?

8 A The train trip?

9 Q Right.

10 A No.

11 Q Why is it then in your mind that you

12 remember October for the train trip as opposed to

13 the following year when Mrs. Schindler died?

14 A Because when they came down on the train

15 it was Michael, Terri, and Brian. And my husband

16 was already down there.

17 Q Down there meaning Florida?

18 A In Florida.

19 Q That was prior to the death of

20 Mrs. Schindler?

21 A Yes.

22 Q Do you recall watching the movie about

23 Karen Ann Quinlan?

24 A The movie? No. I don't think I watched

25 it.

 

443

1 Q Just a minute ago you were talking to

2 Mr. Felos regarding the distinction between

3 Michael's award and Theresa's award. Can you

4 explain what you mean by that?

5 A Well, when they had the trial for

6 Terri's malpractice, Terri got an award from the

7 doctor. Then she got two awards. One from the

8 doctor from his insurance. Then the other doctor

9 did not settle, and the gynecologist, and they

10 sued him and she got an award from him. Then they

11 gave Michael an award for, I think it was loss of

12 consortium.

13 Q In your discussions with Michael about

14 sharing in any award, did you ever believe that

15 was sharing in any award of Terri's?

16 A No.

17 Q What did that sharing in award mean to

18 you?

19 A It meant if Michael received anything in

20 the lawsuit we would, you know, he would maybe

21 share some of that money. Terri's money was for

22 her. To take care of her.

23 Q What was -- the sharing of the money,

24 what were your plans for that money?

25 A We were going to take her to doctors.

 

444

1 We were going to do tests on her. Maybe buy a

2 house. Bring her home so she would not be in a

3 nursing home anymore. We could live there. We

4 could have nursing. Things to help her.

5 MS. CAMPBELL: Thank you. No further

6 questions.

7 THE COURT: Anything further,

8 Mr. Felos?

9 MR. FELOS: Yes, sir.

10 RECROSS-EXAMINATION

11 BY MR. FELOS:

12 Q Do you have that calendar with you?

13 A No. I don't.

14 Q Now I believe you were asked after the

15 deposition whether you had an opportunity to

16 review dates, get information, more information

17 about things; is that correct?

18 A Yes.

19 Q Well, are you saying that you received

20 no instructions from anyone before your deposition

21 to think about these things beforehand?

22 A Instructions about what, Mr. Felos?

23 Q You knew in August that your deposition

24 was being taken in this case?

25 A Yes.

 

445

1 Q You knew all about what the case was

2 about. You knew the things that, the general area

3 of subjects that you would be asked about?

4 A Yes. But I did not know what questions

5 you would ask me.

6 Q Well, not specific questions. Were you

7 told to review dates and prepare for your

8 deposition beforehand?

9 A I was told to think about dates and

10 stuff. Yes.

11 MR. FELOS: And -- that's all, Your

12 Honor.

13 THE COURT: Thank you. Ms. Campbell,

14 anything further?

15 MS. CAMPBELL: No, Your Honor.

16 THE COURT: Thank you, ma'am. You may

17 step down. Let's take five minutes and call your

18 next witness.

19 MS. CAMPBELL: That's fine.

20 (THEREUPON, A RECESS WAS HAD FROM 4:10 P.M.

21 - 4:15 P.M.)

22 THE BAILIFF: All rise. Circuit court

23 is back in session.

24 THE COURT: All right. Be seated,

25 please. Call your next witness.

 

446

1 MS. CAMPBELL: I would like to call

2 Michael Vitadamo.

3 THE BAILIFF: Please stand here, sir.

4 Face the Court. Raise your right hand to be

5 sworn.

6 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

7 THE COURT.)

8 THE BAILIFF: Have a seat in the

9 witness stand and speak in a loud and clear voice

10 for the Court.

11 DIRECT EXAMINATION

12 BY MS. CAMPBELL:

13 Q Mr. Vitadamo, state your name and spell

14 your last name for the Court.

15 A Michael Vitadamo, V-i-t-a-d-a-m-o.

16 Q What is your occupation, please?

17 A Self-employed.

18 Q What do you do?

19 A I have a janitorial service.

20 Q Where do you live?

21 A St. Petersburg.

22 Q Do you recognize this package?

23 A Yes.

24 Q What does this package look like to you?

25 A That is a VHS cassette tape package.

 

447

1 Q This box contains the video?

2 A Yes.

3 Q Last Saturday, what were you doing on

4 Saturday?

5 A I guess Bob asked me to go to Palm

6 Gardens. Met them up there. This was about 10:30

7 in the morning.

8 Q Bob who?

9 A Bob Schindler.

10 Q How do you know Mr. Schindler?

11 A Suzanne and I know each other from

12 working out at the gym.

13 Q Suzanne is Suzanne Carr, Mr. Schindler's

14 daughter?

15 A Yes. I'm sorry.

16 Q And you were requested to do what now?

17 A Bob asked me to go up and videotape some

18 of Terri's activities, because I have a video

19 camera and they did not have one. So I said sure.

20 Q Have you been to visit Terri before?

21 A I had seen her on, I think two other

22 occasions.

23 Q On that Saturday, could you please

24 describe when you went to the nursing home what

25 happened?

 

448

1 A I walked in with Suzanne Carr and I

2 loaded the camera up. I looked for a plug and I

3 could not really find anywhere to plug it in. I

4 guess I went along the right side of Terri's bed

5 and found a plug and plugged it in. I put the VHS

6 tape in there. Mary had walked in and around

7 while I was doing that. I pointed the camera at

8 her. I pressed record to make sure it was

9 working.

10 I saw that in fact it was working. I

11 shut it off. I said, "Okay. Mary, what do you

12 want me to do?" She said just go ahead and I'll

13 talk to Terri. Go ahead and record it. That is

14 what I did.

15 Q How much of a length of time before

16 your started recording?

17 A Fifteen seconds. Ten seconds.

18 Q Was there any reason as to why you did

19 the videotape for a short amount of time versus

20 the entire visit?

21 A As I said before, I am self-employed. I

22 was working. I had a very short amount of time.

23 I went in there, did what they asked me to do, and

24 I just left.

25 MS. CAMPBELL: Your Honor, I now would

 

449

1 like to enter this videotape into evidence to show

2 Mr. Vitadamo -- make sure this is the same

3 videotape he took on that day.

4 THE COURT: Do you wish to voir dire,

5 Mr. Felos?

6 MR. FELOS: Yes, Your Honor.

7 VOIR DIRE EXAMINATION

8 BY MR. FELOS:

9 Q Is it Mr. Vitadamo?

10 A Yes.

11 Q Mr. Vitadamo, I am George Felos,

12 attorney for Michael Schiavo. Do you own a

13 janitorial service?

14 A Yes.

15 Q How long have you owned that business?

16 A About sixteen years.

17 Q When you say you know Bob Schindler, are

18 you referring to Robert Sr. or Jr.?

19 A Actually, both.

20 Q How long have you known Mr. Schindler,

21 Sr.?

22 A About five years. Four-and-a-half.

23 Q And Mr. Schindler, Jr.?

24 A The same.

25 Q Who actually called you to ask if you

 

 4 50

1 had a video camera and could tape something?

2 A I think Suzanne asked me. Suzanne Carr

3 asked me for her dad.

4 Q Um-hmm.

5 A And I told her yes.

6 Q You mentioned that you met Suzanne at

7 the gym?

8 A Yes.

9 Q Are you in any -- do you see each other

10 often outside of the gym?

11 A Outside? Occasionally.

12 Q Do you date at all?

13 A We go out sometimes. Sure.

14 Q Is it a romantic relationship?

15 A No.

16 Q Why is it -- prior to this Saturday,

17 when is it that you visited Theresa Schiavo?

18 A Um, I don't -- I honestly don't recall.

19 Q Would it be days, weeks, months?

20 A God, it was probably a year or more.

21 Q Who did you go to the nursing home with?

22 A I met the Schindlers there.

23 Q So you drove by yourself?

24 A Yes.

25 Q Which of the Schindlers were there at

 

451

1 the nursing home?

2 A Bob. Mary. Suzanne Carr and her

3 daughter, Alex.

4 Q Where did you see them when you arrived

5 at the nursing home?

6 A The front of the building.

7 Q Did all five of you then enter the

8 nursing home together?

9 A No.

10 Q Did some of you go in first?

11 A Suzanne and I went in and Mrs. Schindler

12 was right behind us

13 A How about Mr. Schindler?

14 A He, I believe he waited outside with his

15 granddaughter.

16 Q When you went into the nursing home, is

17 there a reception desk, I believe, there?

18 A Yes.

19 Q Was there anyone at the desk?

20 A I honestly don't recall.

21 Q Did you inform any of the nursing home

22 administrative personnel that you were there to

23 take a videotape of one of their patients?

24 A No.

25 Q Did you ask for permission of any

 

452

1 nursing home personnel to do that?

2 A No.

3 Q Were you told or did you ask or told

4 what the purpose of this videotape was?

5 A Very vaguely. Just that they wanted to

6 capture some of Terri's activities.

7 Q Did you know the Schindlers were going

8 through a trial at this time?

9 A Suzanne talked to me a little bit about

10 it. Not in any depth.

11 Q Did you know there was a trial going on

12 at this time?

13 A Yes.

14 Q Were you told or explained that the tape

15 that you were making would be shown at trial or

16 might be shown at trial?

17 A I did not ask. They did not offer.

18 Q So you didn't know?

19 A No.

20 Q On that visit to the nursing home last

21 Saturday, when is the first time that you actually

22 saw Theresa? Where was she?

23 A I think she was in bed. In her bed.

24 Q Are you sure?

25 A Yes. She was in bed.

 

453

1 Q What was she wearing?

2 A I don't know.

3 Q When you entered the -- did you go to

4 Theresa's room along with Suzanne and Mrs.

5 Schindler? Did all three of you go together?

6 A Yes. Mrs. Schindler was right with us.

7 We kind of walked in together.

8 Q Once you entered the room, how much time

9 elapsed before you actually started videotaping?

10 A As long as it took me to plug in my

11 recorder and place the VHS cassette in. Two

12 minutes.

13 Q As you entered the room, did you hear

14 Terri moaning?

15 A No.

16 Q Did you hear Terri moaning at all?

17 A Yes.

18 Q Or making a sound at all through the

19 time you were there?

20 A Yes.

21 Q When did that start?

22 A Pretty sure after Mary had said, "Hello

23 Terri, mommy is here." Something to that effect.

24 Q Did you decide to stop taping yourself

25 or were you instructed by somebody to stop the

 

454

1 tape?

2 A Well, Bob had told me that once Terri

3 was aroused in that way that after she had

4 interaction with Mary Schindler, once she calmed

5 down, it could be hours before she had any

6 activity again. It could be 15 minutes. Could be

7 an hour. So I was, being on a time restraint, I

8 had to leave.

9 Q So is it your testimony that it was you

10 who said we need to stop the tape now?

11 A Um, no. I believe Mary told me that was

12 enough.

13 Q So Mrs. Schindler instructed you?

14 A Yes. Because I guess --

15 Q I'm not asking you to guess.

16 A Okay. I'm sorry. Once Terri calmed

17 down, Mary said that is enough.

18 Q So you stopped taping because Mrs.

19 Schindler instructed you to?

20 A Yes.

21 Q Now you mentioned that there was a small

22 gap in the tape?

23 A Yes.

24 Q As I understand it, you put the tape in

25 and you started recording to see if it was working

 

455

1 all right?

2 A Yes.

3 Q How did you determine the tape was

4 working?

5 A I turned it on. Hit record. Saw Mary

6 up in the little whatever, viewer.

7 Q Is it one of those recorders that has

8 like the liquid digital display?

9 A It is very old. I purchased it in

10 1988. It is very old.

11 Q In other words, you see a picture of

12 what you are recording?

13 A Yes.

14 Q That is how you know it is working?

15 A Yes.

16 Q Well, when you started recording and you

17 saw the picture and knew that it was recording,

18 why did you shut it off?

19 A Because I wanted -- I didn't have a

20 tripod, so I wanted to make sure I positioned

21 myself in a place where I could focus on Theresa

22 and Mrs. Schindler and I would not have to move

23 anymore. That is why I stopped.

24 Q So let me understand, did you have a

25 tripod with you?

 

456

1 A No. I did not.

2 Q So you stopped the tape to position

3 yourself?

4 A Yes. So there would not be -- once I

5 determined it was working, I put it where I was

6 supposed to be recording and left it there.

7 Q Okay. Had Mrs. Schindler asked you --

8 had Mrs. Schindler not asked you to stop

9 recording, would you have recorded more?

10 A Honestly, probably not that much longer.

11 Q What would you estimate the time was in

12 between when you stopped recording the tape,

13 positioned yourself, and started recording again?

14 A Ten or fifteen seconds.

15 Q That is the time period -- is it fair to

16 say in that 10 or 15 second interval is when Mrs.

17 Schindler walked over to Terri, sat down, and then

18 you started taping?

19 A Yes. She was literally standing two

20 feet away from the bed.

21 Q So it would have been possible at that

22 time -- was Terri facing -- was her--head turned to

23 one side or the other?

24 A I honestly don't recall.

25 Q Assuming her head was turned to one

 

457

1 side, is it possible Mrs. Schindler may have

2 walked to the side of Terri's bed where her head

3 was not turned, started talking, and then moved

4 back to the other side? Do you see what she was

5 doing?

6 A No. I honestly focused the camera where

7 it was supposed to be. I kind of positioned

8 myself near the window where there was some

9 sunlight coming in.

10 Q So you were busy doing that? Positoning [sic]

11 yourself?

12 A Yes. I'm not a professional, so it was

13 the best I could.

14 Q You don't know whether Mrs. Schindler or

15 anyone else took those 10 or 15 seconds to test

16 Terri's responses at all; do you?

17 A No.

18 MR. FELOS: No further questions,

19 Your Honor.

20 THE COURT: Thank you, Mr. Felos.

21 MR. FELOS: If there is no redirect --

22 if I may, Your Honor, just one more question?

23 THE COURT: Yes sir.

24 Q (By Mr. Felos) Where was Ms. Carr and

25 Mr. Schindler and the granddaughter at the time

 

458

1 you were taping?

2 A Suzanne, I believe, was to my right.

3 Mr. Schindler was outside with his granddaughter.

4 Q Have you seen the videotape?

5 A Um, I checked the viewer to make sure it

6 recorded, then I --

7 Q But you did not view the tape?

8 A Yes. I checked it through the viewer.

9 Yes.

10 MR. FELOS: Your Honor, I renew my

11 objections, all the previous objections I raised

12 to the tape, and in addition to that, also raise

13 the objection that we do have a period in this

14 tape that at least the maker of this tape cannot

15 account for. Cannot account to what the

16 participants were doing in this tape.

17 We don't know whether Mrs. Schindler or

18 anyone else, you know -- there is moaning on the

19 tape -- whether they pinched Terri; tried to

20 provoke a response. Asked a question on one side;

21 got a response. Did not get a response. Asked a

22 question on the other side.

23 If this were a tape, Your Honor, of the

24 entire visit, or 30 minutes or something like that

25 to give us a broad sample of the responses of

 

459

1 Theresa Schiavo that initial gap may not be

2 important, but given the brevity of this tape, it

3 may have great importance as to how the brief tape

4 would be interpreted.

5 THE COURT: Mr. Felos, you are giving me

6 an argument on my going out to the nursing home,

7 which you argued against last week, and I denied

8 without prejudice Ms. Campbell's request. I don't

9 know what this is going to show me. I don't know

10 what a snippet from this lady's day will tell me

11 but out of -- I really don't feel good about

12 seeing it. I will say that. Because of the fact

13 that I don't know what occurred prior.

14 But with all those reservations, I think

15 I would be remiss if I did not see it. There is

16 so much at stake in this case, that I'm not going

17 to hold quite as firm to the proffer of Erhardt in

18 cases that have been ruled on. So I'll see it.

19 And let me suggest this to you. We

20 probably ought to turn the television facing the

21 windows over here because there is more people on

22 this side that need to be relocated. The ones on

23 your side may or may not need to see it, because

24 it is being offered in your behalf, and I'll walk

25 around and stand by the railing. That way I think

 

460

1 is best.

2 The tape, itself, will be in evidence.

3 I assume there is audio on the tape?

4 MS. CAMBELL: Yes.

5 THE COURT: The audio on the tape, madam

6 reporter, will suffice, unless there is an

7 objection. Mr. Felos, do you wish the reporter to

8 attempt to transcribe what is on the tape?

9 MR. FELOS: No, Your Honor. I think the

10 audio is enough.

11 THE COURT: Ms. Campbell, is that

12 sufficient?

13 MS. CAMPBELL: That is sufficient.

14 MR. FELOS: Your Honor, I would like to

15 ask a couple of questions. Whether opposing

16 counsel intends to bring Mrs. Schindler back on

17 the stand to testify to the contents of the tape.

18 MS. CAMPBELL: Yes, Your Honor.

19 MR. FELOS: Because my request is to

20 renew my cross of Mrs. Schindler, now having seen

21 the tape.

22 THE COURT: Well, you've got an

23 affirmative answer, Mr. Felos. Is that the best

24 angle to prevent glare or should it be more facing

25 directly?

 

461

1 MR. FELOS: Your Honor, I would also

2 request, having viewed this tape myself, that the

3 Court view it at least, at least two or three

4 times. My experience has been, in reviewing

5 these, that the more -- the more times you view

6 it, the more you see. I request that the Court

7 view it more than once.

8 THE COURT: It's going to be in

9 evidence. I'll review it like I review any other

10 evidence I have -- review affidavits, report from

11 that national center.

12 (THEREUPON, THE VIDEOTAPE WAS PLAYED FROM

13 APPROXIMATELY 4:32 - 4:34 P.M.)

14 MS. CAMPBELL: That is the end of the

15 videotape. Do you want to see it a second time

16 now?

17 THE COURT: No, ma'am. Not this

18 afternoon.

19 MS. CAMPBELL: Thank you.

20 MR. FELOS: Your Honor, can this

21 television remain here? I would request it remain

22 through the balance of the trial, as the tape may

23 be used in the examination of witnesses,

24 certainly on rebuttal.

25 THE COURT: We certainly can retain

 

462

1 that. I don't think that is in the way.

2 MS. CAMPBELL: I believe, Your Honor,

3 that the equipment is available here in the

4 courthouse. They brought it in this morning for

5 us. I think it is a matter where it is being used

6 at the time in the courthouse.

7 THE COURT: Let's keep it here. If

8 somebody needs it, we are in somewhat control.

9 Does that make sense, Mr. Sheriff?

10 DIRECT EXAMINATION CONTINUED

11 BY MS. CAMPBELL:

12 Q Mr. Vitadamo, this is the videotape you

13 took last Saturday?

14 A Yes. It is.

15 Q After the videotape was concluded, after

16 you stopped it, did anything else occur after that

17 while you were there?

18 A I just left. I turned the video off,

19 gave the tape to Suzanne, and immediately just

20 left.

21 MS. CAMPBELL: Thank you. No further

22 questions of Mr. Vitadamo.

23 THE COURT: Any further questions,

24 Mr. Felos?

25 MR. FELOS: Yes.

 

463

1 THE COURT: Do you wish to admit the

2 tape?

3 MS. CAMPBELL: Yes.

4 THE COURT: I believe it is your first.

5 MS. CAMPBELL: Yes. Number one.

6 THE COURT: The record will note this is

7 still over Mr. Felon's objection.

8 (THEREUPON, RESPONDENT'S EXHIBIT 1 WAS

9 RECEIVED IN EVIDENCE.)

10 CROSS-EXAMINATION

11 BY MR. FELOS:

12 Q Mr. Vitadamo, I recall you testifying

13 that Terri was not moaning as you entered the

14 room, but was moaning, started moaning when her

15 mother started talking to her. Is that what you

16 testified?

17 A Yes.

18 Q Correct me from what -- if I am wrong.

19 From what I saw on this tape, when the tape

20 started, Mrs. Schindler was not next to Terri, she

21 was still entering the room where she was standing

22 up?

23 A She was standing, like I said, two feet

24 away from the bed. Three feet.

25 Q Isn't the first thing we hear on the

 

464

1 tape moaning?

2 A Yes.

3 So Theresa Schiavo did not start moaning

4 when her mother sat down and talked to her, she

5 was moaning the instant this tape started; isn't

6 that correct?

7 A To the -- viewing it this time, it

8 sounded that way. Saturday I was just

9 concentrating on the camera. I couldn't have

10 sworn to it then.

11 MR. FELOS: Thank you. No other

12 questions.

13 THE COURT: Any redirect?

14 MS. CAMPBELL: No, Your Honor.

15 THE COURT: You may stand down, sir.

16 MS. CAMPBELL: I now would like to

17 recall Mrs. Schindler to the stand.

18 THE COURT: Ma'am, you are still under

19 oath.

20 MRS. SCHINDLER: Yes, Your Honor.

21 FURTHER REDIRECT EXAMINATION

22 BY MS. CAMPBELL:

23 Q Mrs. Schindler, now that you have

24 watched this videotape, is that a depiction of

25 what occurred on Saturday?

 

465

1 A Yes.

2 Q Can you please describe what happened

3 prior to that videotape beginning?

4 A We went in. Mr. Vitadamo set up. I was

5 standing. Terri was here in bed. I was standing

6 against the -- over by the window. I waited for

7 him to start the tape. Then I walked over.

8 Q Did you call out to Terri in any manner

9 prior to the videotape beginning?

10 A No.

11 Q Did you pinch Terri in any way?

12 A No.

13 Q Do anything else to startle her or to

14 cause her to make the moaning or laughing sound?

15 A No.

16 Q Please describe your interpretation of

17 Terri's actions. Or what are your observations of

18 Terri in the beginning of this videotape?

19 A When I started talking to her, it looked

20 like she smiled. Then she started crying. Then I

21 just kept talking to her and talking to her until

22 she just calmed right down, which is not -- she's

23 done it before.

24 Q Done what before?

25 A Like she laughed or cried a lot, and I

 

466

1 tried to calm her down, and she calms down.

2 Q This smile that you believe you saw in

3 the beginning part, is that the way she would

4 generally smile with you on other visits?

5 A Yes.

6 Q Is it always a pattern of smile, then

7 crying?

8 A No.

9 Q Is there a pattern to how she reacts

10 the same each time?

11 A No.

12 MR. FELOS: Your Honor, I object to the

13 form of that question. Is there a pattern to the

14 way she reacts the same each time,

15 MS. CAMPBELL: Let me redo this.

16 Q (By Ms. Campbell) Mrs. Schindler, you

17 stated Terri reacts most of the time when you

18 visit with Terri?

19 A Yes.

20 Q Is this reaction typical of how she has

21 reacted with you in the past?

22 A No.

23 Q How is it different?

24 A Most of the time I get laughter. She

25 laughs. She smiles. Most of the time it is

 

467

1 laughing. Once in a while she will cry like this.

2 If I just talk to her and talk to her, she stops.

3 Q So you are saying if you talk to her and

4 talk to her, you are referring to when she is

5 crying?

6 A When she is crying, I can calm her down.

7 Q After the videotape stopped, then what

8 occurred in the room?

9 A Then Michael left. Suzanne and I stayed

10 there for a little while, and Bob came in to see

11 her.

12 Q Was there any other reaction, or were

13 you continuing to talk to Terri after the

14 videotape was turned off?

15 A Yes.

16 Q Did Terri have any other smiling or

17 laughing, or crying, any other type of reaction

18 after that? After this videotape was turned off?

19 A Not anything vocal, but when we were

20 leaving, she smiled.

21 MS. CAMPBELL: Okay. NQ.-further

22 questions.

23 THE COURT: Mr. Felos?

24 MR. FELOS: If I may, Your Honor.

25 THE COURT: Yes, sir.

 

468

1 FURTHER RECROSS EXAMINATION

2 BY MR. FELOS:

3 Q Mrs. Schindler, you just viewed this

4 tape?

5 A Yes.

6 Q When the tape starts, Terri is moaning?

7 A When the tape started?

8 Q Yes.

9 A I didn't hear her.

10 Q Well, well play the tape again in just

11 a moment. When we talked about this tape, when I

12 cross-examined you before, I asked you

13 specifically did Terri start moaning or crying in

14 response to your voice, and you said yes. I said,

15 I asked you, were the sounds Terri was making in

16 response to your voice. You said yes. I asked

17 you are you sure. You said yes.

18 As I see this tape, when you are -- and

19 we will see. it and maybe your recollection is

20 better than mine -- Terri is moaning when the tape

21 is on. There is a break in the tape. You are

22 seated next to her. There is no sound coming from

23 Terri. You spoke to her. Terri does not respond

24 vocally. You put your hand under her neck and

25 give her stimulation. That is when she starts to

 

469

1 moan.

2 I want you, as we replay the tape, to

3 look at that to see whether Terri responded to

4 your voice or she responded to your touch, if we

5 may play this again, Your Honor.

6 THE COURT: Let's just leave it where it

7 is.

8 (By Mr. Felos) Can you see that all

9 10 Yes.

11 (THEREUPON, THE VIDEOTAPE IS STARTED.)

12 MS. FELOS: We have to go back to the

13 beginning with the sound. That is the issue.

14 THE BAILIFF: Go back to the beginning?

15 MS. FELOS: Yes. That is the issue.

16 With the sound.

17 THE BAILIFF: Now it should be okay.

18 (THEREUPON, THE VIDEOTAPE IS RESTARTED.)

19 MR. FELOS: Let's stop it one second, if

20 we can.

21 Q (By Mr. Felos) Would you agree, Mrs.

22 Schindler, that as the tape starts, Terri is

23 moaning and you have not gone to her yet?

24 A Yes.

25 Q I want you to watch carefully when you

 

470

1 sit down and start talking to her. Is she moaning

2 now?

3 A (No response.)

4 MR. FELOS: Stop that, if we can. Turn

5 the sound down.

6 Q (By Mr. Felos) When the tape starts,

7 before you go over to Terri's bed, Terri is

8 moaning; is that correct?

9 A Yeah.

10 Q When you are by Terri's bedside, she's

11 not moaning; is she?

12 A She is making some kind of a noise.

13 Q Well, we can play it again.

14 A She is making some kind of a noise.

15 Q Ma'am, you start speaking with Terri.

16 Then you place your hand under her neck?

17 A Yes.

18 Q And when you place your hand under the

19 neck --

20 A Yes.

21 Q -- and there is bodily stimulation,

22 she -- that is when she starts moaning; isn't it?

23 A Yes.

24 Q Okay. Mrs. Schindler, although you

25 testified before we saw the tape that you were

 

471

1 sure that Terri responded with a moan, she

2 responded vocally to your voice, and I

3 specifically asked you that a couple of times and

4 you said I'm sure it is my voice that she

5 responded to. Doesn't this tape show that it was

6 your hand, putting your hand on the back of the

7 neck and stimulating the muscles, which caused

8 Terri to start moaning?

9 A No.

10 Q Shall I play the tape again?

11 A No. I am not sure if it was my hand,

12 my voice. I don't always touch Terri when I go up

13 there.

14 Q Let me ask it another way. When you are

15 by Terri's bedside, is she moaning?

16 A This one, yes.

17 Q When you went to her bedside and started

18 talking to her, was she moaning?

19 A Yes.

20 Q Ma'am, I'll play the tape for you one

21 more time.

22 A I don't need to see the tape again.

23 Q Ma'am, as I see this tape -- and we will

24 play it one more time -- because my perceptions

25 and faculties are subject to certainly not 100

 

472

1 percent reliable, then I want you to watch it very

2 carefully again.

3 A I don't need to. I know it was my hand

4 under her head.

5 Q Ma'am, you are talking to your daughter

6 by her bedside. I don't hear any sounds on this

7 tape. When you put your hand under her neck and

8 touch her neck, she starts moaning?

9 A And then my voice starts.

10 Q Your voice started. Did you start

11 talking to her at her bedside before you put your

12 hand under her neck?

13 A No.

14 Q I will play it one more time.

15 A I don't need to see the tape.

16 THE COURT: I don't want her to say she

17 was wearing a red dress. If it was on the tape

18 and in evidence -- I mean, we will play it, if you

19 want to. I don't think you are going to change

20 her answer. She does not know if it was the hand

21 or voice is the last answer I heard. I don't

22 think playing it again is going to change that.

23 Q (By Mr. Felos) Let me ask you, Mrs.

24 Schindler, if on the tape there is no moaning

25 coming from Terri as you are speaking to her and

 

473

1 the moaning starts -- let me backtrack.

2 As you view this tape, as you are

3 speaking to Terri by her bedside, is it correct

4 that she is not moaning and she does not start

5 moaning until you put your hand under her neck?

6 A And she heard my voice. Yes.

7 Q Ma'am, let me ask -- that is not

8 responsive to the question. Will you agree that

9 this tape shows that when you come to Terri's

10 bedside and you start talking to her, she did not

11 start moaning until you put your hand under her

12 neck?

13 A Yes. Then I talked to her.

14 MR. FELOS: I have no other questions.

15 Thank you.

16 THE COURT: Anything further?

17 MS. CAMPBELL: No, Your Honor.

18 THE COURT: Thank you, Mrs. Schindler.

19 You may step down.

20 MS. CAMPBELL: Seeing it is ten to 5:00,

21 I think I would like to start tomorrow morning

22 with Mr. Schindler. He is my next witness.

23 THE COURT: All right, ma'am. Not to

24 hold you to it, but for my time management

25 prospective, I believe you said you had six

 

474

1 witnesses. I don't know if you were counting the

2 video man or not. That seems to me, five

3 witnesses included Mr. Schindler Sr., Jr., and the

4 daughter. That makes three.

5 MS. CAMPBELL: I forgot about Mr.

6 Pearse. Suzanne, the daughter. Bob Jr. and

7 Jackie Rhodes. Diane Meyer and Richard Pearse.

8 Five more. Are you asking for time as far as

9 tomorrow?

10 THE COURT: No. I'm just wondering if

11 we can do all those tomorrow. I don't know if we

12 can or not. We will do the best we can.

13 MS. CAMPBELL: I believe they are all

14 relatively short, except for Mr. Pearse. I am not

15 sure of how lengthy on cross for Mr. Pearse, but

16 he is probably more lengthy than the rest. The

17 others are relatively short.

18 THE COURT: We will start again at 9:00

19 in the morning, if that works for everyone. I

20 have a rotary meeting at noon. Hopefully, we can

21 do the noon hour on time and see where we go from

22 there. Okay. The courtroom will be secured.

23 THE BAILIFF: All rise. Court is in

24 recess until 9:00 a.m. by the judicial watch.

25 (THEREUPON, COURT RECESSED AT 4:50 P.M. ON

 

475

1 1-25-00 AND RECONVENED ON 1-26-00 AT 9:00 A.M.)

2 THE BAILIFF: All rise. Circuit court

3 is back in session. Be seated, please.

4 THE COURT: Ready to proceed?

5 MS. CAMPBELL: Yes, Your Honor. I am.

6 I would like to call Bob Schindler, Jr. to the

7 stand, please.

8 THE BAILIFF: Stand right here and face

9 the judge and raise your right hand, please.

10 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

11 THE COURT.)

12 THE COURT: Thank you. Have a seat in

13 the chair.

14 DIRECT EXAMINATION

15 BY MS. CAMPBELL:

16 Q Good morning.

17 A Good morning.

18 Q Would you please state your full name?

19 A Robert Schindler, Jr.

20 Q Where do you live?

21 A 2906 Spanish Circle, Tampa, Florida.

22 Q How old are you?

23 A Thirty-five.

24 Q Is Terri Schindler your sister?

25 A Yes.

 

476

1 Q How much age difference is there between

2 the two of you?

3 A Thirteen months.

4 Q Can you please give me a brief history

5 of your educational background?

6 A I have a BS in Marketing from LaSalle

7 University in Philadelphia in '87. A BS in

8 Meteorology from Florida State in 1996.

9 Q Are you currently employed?

10 A I'm a teacher at Tampa Catholic High

11 School.

12 Q What do you teach?

13 A Math and science.

14 Q Where were you raised?

15 A Philadelphia. Just outside of.

16 Q Could you describe your family growing

17 up?

18 A Sure. It was a typical family. Very

19 close. We spent quite a lot of time together.

20 The easiest way to explain our family is very

21 typical. Very strong as far as closeness in

22 relationship to each other.

23 Q Did you attend church?

24 A Yes.

25 Q What church did you attend?

 

477

1 A Our Lady of Good Counsel.

2 Q Did you go regularly as a family?

3 A Yes.

4 Q When did you move to Florida?

5 A I moved in '87.

6 Q Where did you move?

7 A To St. Petersburg, Florida.

8 Q In between all that time, did you live

9 in Florida -- did you live anywhere else in

10 Florida?

11 A In between?

12 Q From '87 forward?

13 A Yes.

14 Q Where else?

15 A Tallahassee, Florida.

16 Q What were you doing in Tallahassee?

17 A Attending Florida State University.

18 Q How old were you when you moved to

19 Florida?

20 A In '87 I was 22.

21 Q Were Terri and Mike already in Florida

22 when you came?

23 A Yes.

24 Q Where did you live then when you first

25 came down?

 

478

1 A I lived with my parents.

2 Q In St. Petersburg?

3 A Correct.

4 Q What was your relationship with Terri

5 like then?

6 A We had started to become closer, years

7 prior to her moving to Florida, and then when I

8 moved to Florida, we continued to become stronger.

9 Q How often would you see Terri?

10 A Quite a bit. We would spend weekends

11 together regularly. Quite a bit during the week.

12 We lived, closer to the accident, we had lived in

13 the same apartment complex. In distance, we were

14 very close, too. I would spend a lot of time with

15 her.

16 Q How was your relationship with Michael?

17 A Um, can you repeat that? Like in what

18 way?

19 Q Were you and Michael close?

20 A No.

21 Q The times you would spend with Terri,

22 was Michael always there?

23 A Not always there.

24 Q Generally, the times you spent with

25 Terri, was it more with her by herself or with

 

479

1 them as a couple?

2 A Probably more by herself. There was

3 more just her and I. Michael -- Terri would work

4 during the day. Michael would work at night. So

5 I would -- I was working during the day as well.

6 So at night when Michael was working is many of

7 the times when we would spend time together.

8 Q What kind of things would you and Terri

9 do?

10 A A lot of times just go over and see how

11 the day went. Other times, social time together.

12 Go out together on the weekends. It became

13 regular once I moved to Florida.

14 Q What kind of social activities were you

15 doing?

16 A I remember going to the beach with her

17 on weekends. We'd spend time going to the clubs

18 on the weekends, as well as at night.

19 Q Did you and Terri ever discuss or

20 confide in each other about certain things?

21 A Well, sure.

22 Q Give me an example.

23 A As far as you mean?

24 Q Did Terri talk to you about wanting to

25 get pregnant?

 

480

1 A We never talked about it in depth. It

2 was mentioned. If the question is do you mean did

3 we talk about her relationships or things in

4 general?

5 Q Let me be more specific.

6 A Okay.

7 Q Did you talk to her about her

8 relationship with Michael?

9 A We didn't specifically talk about her

10 relationship with Michael or not. I don't know if

11 that was on purpose. I had an overall impression

12 of her relationship with Michael.

13 Q What was your impression based on?

14 A Her general mood while she was involved

15 with Michael in the relationship.

16 Q How would you describe her general mood?

17 MR. FELOS: Your Honor, I object on two

18 grounds. First, on the realm of speculation. He

19 said he did not talk to his sister about the

20 subject, but a general impression from her mood.

21 That would call for subjective speculation on the

22 part of the witness, number one. So I object on

23 those grounds. I also renew my objection as to

24 relevance.

25 THE COURT: Ms. Campbell?

 

481

1 MS. CAMPBELL: I think I can reword the

2 question to ask him to describe differences. As

3 far as speculation, that part, I believe it is

4 relevant as we discussed yesterday on similar type

5 argument. I think the issue is releveant [sic] as to

6 the relationship between Terri and Michael.

7 THE COURT: No question I ruled that he

8 has no earthly idea the lady was going to a

9 doctor, trying to get pregnant, heard she was

10 battling weight. So as far as a mood change, it

11 would be utter speculation as to why.

12 So while conversations about

13 relationship I will allow in, I will not let this

14 witness talk about a situation and say, gee, in my

15 opinion I think it had to do with X, Y, Z. The

16 objection is sustained.

17 Q (By Ms. Campbell) Did you and Terri

18 discuss her thoughts concerning end of life

19 issues?

20 A No.

21 Q Were you close with your grandmother

22 Schindler?

23 A Yes.

24 Q Where were you when your grandmother

25 Schindler passed away?

 

482

1 A I was in Philadelphia.

2 Q Do you recall the year?

3 A 1986.

4 Q So this was prior to you moving to

5 Florida?

6 A Correct.

7 Q Was Terri in Philadelphia at that time,

8 too?

9 A Yes. She was.

10 Q Was she living there?

11 A I believe so.

12 Q Did Terri ever make any comments to you

13 concerning Mrs. Schindler's death or condition

14 prior to death?

15 A None. None whatsoever.

16 Q Do you remember where you were February

17 25, 1990?

18 A Yes.

19 Q Where?

20 A I was in St. Petersburg in my apartment.

21 Q Do you recall what happened on that day?

22 A Sure.

23 Q Can you please tell the Court?

24 A I received a phone call. Not sure

25 quite. It was early in the morning. It was a

 

483

1 call from Michael saying Terri had passed out,

2 for me to come over. Since I live in the same

3 complex, I was there within a minute's time.

4 When I got there, Terri was laying face

5 on the ground. I thought she had just passed

6 out. I think we actually tried to shake her a

7 couple times. She was breathing heavily. At that

8 time, Michael said he called 911 and the

9 paramedics were on the way.

10 Q Did you go to the hospital with them?

11 A Yes.

12 Q Were you working at the time?

13 A Yes. I was.

14 Q Where were you working?

15 A For a snack food company.

16 Q Did you assist with Terri's care during

17 those early times?

18 A No.

19 Q Why were you not involved?

20 A Because of the closeness of my sister,

21 it was difficult for me to see her in that

22 condition.

23 Q Did you assist with fund raisers for

24 Theresa?

25 A I believe so.

 

484

1 Q Do you recall what you did specifically?

2 A Just general help with the family during

3 the events.

4 Q How often would you see Terri back then

5 in the earlier days?

6 A From her accident?

7 Q Um-hmm.

8 A It's hard to say. I was in and out with

9 the family at times. Less than what my parents

10 were seeing her, but quite a bit.

11 Q How often do you see Terri now?

12 A Probably on average two, three, four

13 times a year.

14 Q Does she ever react to you?

15 A Not every occasion I go in there. There

16 are times I'll go in there and I'll hear her

17 making noises. Her eyes are always open when I go

18 in. Sometimes she looks like she's cranky or

19 uncomfortable, but specifically when I walk into

20 the room, I don't see any kind of that type

21 reaction, no.

22 Q Do you go to the nursing home by

23 yourself?

24 A Yes.

25 1 Q Have you also been there with your

 

485

1 parents?

2 A Not in quite some time.

3 Q Do you recall ever being there with your

4 mother or father in the last year?

5 A Not within the last year. No.

6 Q Have you observed Theresa having any

7 reactions to other people?

8 A On occasion, I guess when I have gone

9 with my mom, I see more of a reaction from her.

10 Yes.

11 Q Is there any way that -- can you tell

12 whether there is any improvement in Terri from

13 earlier to the last time you saw her?

14 A It's been consistent. I don't think

15 it's gotten worse. I don't know if it's gotten

16 better, either.

17 Q Have you lost hope of Terri receiving

18 improvement?

19 A At did at one time. This has always

20 been very difficult for me. Recent happenings

21 have enabled me to have hope for her to maybe some

22 day coming out of this.

23 Q What's resently [sic] happened that restored

24 your hope?

25 A I believe on Christmas Eve, 1999, there

 

486

1 was a woman who was, by my reading, was very

2 similar to my sister, the state she's in. After

3 sixteen years, she has come out of her coma quite

4 miraculously.

5 Q What were you reading?

6 A I called the Albuquerque Journal, I

7 believe is where this happened, and spoke to the

8 reporter about this. She faxed me the articles

9 explaining about this woman. Also, the doctors

10 explanation of this as well. It is quite

11 fascinating actually.

12 Q What is it about that particular case

13 that has given you hope?

14 A You could put my sister's name on this

15 lady's name as far as her state. Everything that

16 was said about this lady being eye tracking. I

17 don't remember specifically what was said. I have

18 the article. But a very, very similar situation

19 to what my sister is in.

20 No medical explanation was given, and

21 this lady on Christmas Eve woke up. She vowed she

22 is going -- they bought her running shoes. She

23 vowed she was going to run again.

24 Q What are your personal thoughts on end

25 of life decisions?

 

487

1 A Well, as far as my sister, I don't --

2 Q Your personal thoughts.

3 A It is something that I never really

4 thought about. If it's a decision I'm going to

5 make, I'll sit down and take time in making it.

6 Q What if it happened to you? Sitting

7 down making those kind of decisions?

8 A Well, then I want to be kept alive until

9 I go naturally.

10 Q Why is that?

11 A Because I don't believe in this. I

12 don't believe in starving someone. I believe this

13 is inhumane.

14 Q Have you learned or gained experience

15 from this situation with Terri?

16 A I'd like to think so. When this whole

17 thing occurred, I guess within the first couple

18 years, I didn't understand why at first. I lost

19 my faith. I was brought up in Catholicism and a

20 strong faith in belief of God. I really

21 questioned that. In fact, it kind of pulled me

22 away from the church. I was very bitter toward

23 God.

24 Then when Michael won the malpractice

25 suit and after I saw what he did to my parents at

 

488

1 that time --

2 MR. FELOS: Your Honor, I object and

3 move to strike that. That is a subjective

4 conclusion on the part of the witness as to what

5 Michael did.

6 THE COURT: Granted. Strike the part

7 of what he did to -- what Michael did to his

8 parents.

9 Q (By Ms. Campbell) You can continue.

10 A After the malpractice suit, I became

11 very angry at Michael. I didn't understand what

12 was happening was happening. I had to deal with

13 that. Because if I did not deal with it, I don't

14 know what path it was going to take me down. So

15 that is something I needed to deal with.

16 I have. Since then, I have done a lot

17 of work on myself. In so doing, I have dealt a

18 lot with the anger that I have accumulated because

19 of what's happened in the beginning.

20 Q Does any of that have anything to do

21 with why you are working at Tampa Catholic?

22 A Sure.

23 Q How has your relationship with God

24 changed or has it changed since your employment at

25 Tampa Catholic?

 

489

1 MR. FELOS: I object as to the relevancy

2 of that question.

3 THE COURT: What is the relevancy,

4 please?

5 MS. CAMPBELL: At this time, it is

6 because I think it establishes that other things

7 happen when bad things happen to people and it's

8 not necessarily the quality of life of Terri and

9 Terri's personal standpoint, it's the cause and

10 effect of that, that it has on Terri and on other

11 people.

12 THE COURT: How does that assist me in

13 making a decision?

14 MS. CAMPBELL: I think it also goes to

15 show the type of upbringing. He is very close to

16 age in Terri. Same type of family unit. I think

17 it may give you insight as to Terri's thoughts.

18 How she would be thinking about this currently.

19 MR. FELOS: That is highly speculative,

20 Your Honor, to say this gentleman's experience in

21 teaching high school, how that has affected,

22 teaching in a Catholic high school, how that has

23 affected his relationship with God. I can't see

24 any relevance or connection as to what Theresa

25 Schiavo may be thinking.

 

490

1 THE COURT: I'm delighted he has gotten

2 closer to God, but I think it is a little far

3 afield. I will sustain the objection.

4 Q (By Ms. Campbell) Thank you. Mr.

5 Schindler, do you have anything else to tell the

6 Court to aid in Theresa's intent as to withdrawal

7 of the feeding tube?

8 A I think if Terri knew if it brought my

9 parents joy, the state she is in, I think she's

10 perfectly happy being in that state.

11 MR. FELOS: I move to strike that. That

12 is speculation as to his belief as to what Terri

13 would do if she knew a certain fact. He can

14 testify as to what she said and what she didn't

15 say. He has already testified they never had a

16 conversation about her intent. His belief as to

17 what her belief would be under certain

18 circumstances is speculation.

19 THE COURT: I think it is probative

20 speculation.

21 THE WITNESS: It's not speculation. I

22 knew my sister for 24 years. I know how she's --

23 how close she was with my parents. My parents

24 brought her up for 20 -- whatever age she was when

25 this happened. Twenty-seven at the time or

 

491

1 six when this occurred. My parents and her were

2 very, very close.

3 It is not speculative to say if Terri

4 knew that it was bringing my parents an ounce of

5 joy in her life she would want to be like this.

6 know for one thing that if she knew what was

7 happening because of this --

8 MR. FELOS: Your Honor, I object. This

9 is speculation. If she would know what is

10 happening. She does not know what is happening.

11 This Court deals in facts. We are straying far

12 from fact.

13 THE COURT: Yes. He is getting well

14 away. Well away.

15 Q (By Ms. Campbell) Growing up, did Terri

16 try to please your parents?

17 A Sure.

18 Q Would she do anything specific trying to

19 please her parents?

20 A I mean, I know for one thing which

21 always stood out in my mind is that my grandmother

22 was in a nursing home. I don't think I'm wrong.

23 She would go at least a couple times a week to see

24 my grandmother. It was not on her way, either.

25 Q Which-grandmother is this?

 

492

1 A My mother's mother.

2 Q At Majestic Towers?

3 A Yes. She came over to my parents

4 regularly. They live quite a distance apart. She

5 spent a lot of time with my parents. Spent a lot

6 of time with me. I think, just being a daughter

7 in the normal sense of what a daughter is brought

8 joy to my parents.

9 MS. CAMPBELL: No further questions at

10 this time.

11 THE COURT: Thank you. Cross-

12 examination?

13 CROSS-EXAMINATION

14 BY MS. FELOS:

15 Q Good morning.

16 A Good morning.

17 Q Mr. Schindler, you don't attend mass

18 regularly, do you?

19 A No. Well, define regularly.

20 Q Do you go every Sunday?

21 A No.

22 Q Do you receive the sacraments?

23 A Occasionally.

24 Q When is occasionally?

25 A When I go to mass.

 

493

1 Q Do you remember when your deposition was

2 taken September 27, 1999 by Mr. Felos?

3 A Yes.

4 Q Page 76 of that deposition it said, do

5 you attend mass regularly now?

6 No.

7 When was the last time you attended

8 mass?

9 The beginning of this school year.

10 Then moving on to Page 8, Number 12. So

11 you attend mass in conjunction with your duties at

12 Tampa Catholic?

13 Yes.

14 Is that a fair estimation of how much?

15 That would be occasionally.

16 Q That is the involvement you have with

17 the Catholic church?

18 A Yes. That is correct.

19 Q So you don't go to mass on your own

20 then, you just go when it is necessary for your

21 work; is that correct?

22 A No. I do go regularly with school.

23 There are some times when I will attend mass. On

24 Christmas. Easter.

25 Q I will make reference again to your

 

494

1 deposition at the same time on Page 8 where the

2 question was, and outside of the school context,

3 would you attend mass?

4 Your answer was I don't.

5 A Um-hmm.

6 Q How do you explain that? In September

7 you said you don't, and today you say you do?

8 A Right.

9 Q Which one is right?

10 A Well, Christmas and Easter to me is

11 something that we do regardless of going every

12 Sunday. I don't go outside of the church on

13 Christmas and Easter.

14 Q But you just did not mention that on the

15 deposition?

16 A No. I did not. No.

17 Q You have no direct information with

18 respect to Terri's intent regarding artificial

19 life support; do you?

20 A No. I do not.

21 Q Is it your position that your sister

22 should be kept in the state she is because it

23 provides joy to you and your mother and your

24 father and your other sister?

25 A No. It is not.

 

495

1 Q Referring to the same deposition, Page

2 23, Line 7.

3 Now as I understand it -- this is the

4 question. You are saying you believe if Theresa

5 knew that her family derived joy from her

6 continued life, she would want to be kept alive

7 through artificial feeding?

8 The answer you made was correct.

9 In response to her intent, Page 23, Line

10 2

11 If she knew it was providing an ounce of

12 joy or happiness to any family members being in

13 the state right now, she would go on and continue

14 to live and want to continue to live.

15 A I guess I'm a little confused by the

16 word intent. I believe yes. What I said in my

17 deposition is if my sister knew it was bringing my

18 parents any type of joy, she would want to be kept

19 alive. I also don't condone someone removing her

20 feeding tube, either.

21 Q Repeat the last few words. I could not

22 hear.

23 A I do believe my sister would believe if

24 she was providing any joy to my parents she would

25 want to remain alive. I guess I'm a little

 

496

1 confused by the word intent. I would, under no

2 circumstances, ever condone removal of her feeding

3 tube.

4 Q So it is your position that your sister

5 should be kept in the state that she is because it

6 provides joy to you? You find joy in seeing her?

7 A I don't find joy seeing her in the state

8 she is in. No.

9 Q Sorry. I'm looking at a note here.

10 A That's fine.

11 Q Well, I'll locate it in a moment. I'm

12 referring to the same deposition. Page 26, Line

13 21.

14 If Theresa, in addition to being tube

15 fed was on a respirator, would it still give you

16 joy to have her alive?

17 Answer. If she was on a respirator,

18 would it give me joy?

19 Question. Would her continued life give

20 you joy?

21 Page 27, Line 6. Yes. It would give

22 me joy. Okay.

23 A You are asking me if she is on a

24 respirator. She is not.

25 Q So if she were on a respirator, it would

 

497

1 give you joy, but it does not give you joy to see

2 her in the state she is in now?

3 A I believe at the time I was addressing a

4 hypothetical question; correct?

5 Q You stated it would give you joy to see

6 your sister on a respirator; is that correct?

7 A If I said it, it must be correct.

8 Q You just said it would not give you joy

9 to see your sister in the state she is in. How

10 does that make sense?

11 A I don't think that is what I said. What

12 I said is my sister, if she knew it was providing

13 my family joy to exist in the state that she's in,

14 that would make her happy. Okay? I would never

15 condone removing her feeding tube. I would never

16 condone it.

17 Q Fine. We understand that is what you

18 said.

19 A Does it bring me joy seeing her like

20 that? No. It does not. I have a hope maybe now

21 that she can come out of it because of the lady in

22 New Mexico. It does not bring me --

23 Q Let's move On. On Page 26 of your

24 deposition, Line 19, you say, I believe if we have

25 the means to try to keep someone living, then we

 

498

1 should try.

2 A Correct.

3 Q Moving on to Page 27, you say, Line 11,

4 seeing the joy, as I told you, that it brings my

5 parents. Then you go on to talk about me

6 personally, when this whole incident occurred, I

7 had a lot of anger inside over this whole

8 situation. You go on to talk about your

9 self-reflection.

10 A Um-hmm.

11 Q So Theresa's situation has been very

12 helpful to you; has it not?

13 A Sure.

14 Q That is probably what you mean when you

15 say it brings you joy?

16 A No. It's not. That is not what I mean

17 at all.

18 Q If your sister developed diabetes and

19 resulting gangerine [sic] and she needed to have a limb

20 amputated to keep her alive, would you be in favor

21 of that procedure?

22 A As a hypothetical situation. My sister

23 isn't in that situation.

24 Q Sir, I asked you a question.

25 THE COURT: Answer the question,

 

499

1 MS. FELOS: Please answer the question.

2 THE COURT: You need to answer the

3 question. If you need to explain your answer, you

4 will have a chance.

5 A If that situation --

6 Q (By Ms. Felos) If your sister developed

7 gangrene, if she had to have a limb amputated in

8 the state she is in now, would you be in favor of

9 that procedure to keep her alive?

10 A I have to answer this in a yes or no

11 answer?

12 THE COURT: Yes. Then explain your

13 answer.

14 A Yes.

15 Q (By Ms. Felos) So you are testifying

16 then it gives you joy to have her remain alive

17 even in that state?

18 A No. I'm not. Can I explain now, judge?

19 THE COURT: Yes, sir.

20 A If my sister developed gangrene or

21 whatever you said, first of all, it's an

22 insensitive question. I am surprised you are

23 asking me that again.

24 MR. FELOS: I move to strike the speech

25 of the witness.

 

500

1 THE WITNESS: It's insensitive, judge.

2 THE COURT: Mr. Schindler, that does not

3 explain your answer. You may explain your answer.

4 THE WITNESS: I'm sorry. I apologize.

5 THE COURT: That's all right.

6 A If that happened to my sister, I'd

7 address it at the time. Right now, she is

8 healthy. She has moments of laughter. She

9 cries. She can see. I have renewed hope that the

10 state she is in, she might end up like the woman

11 in New Mexico. If you believe in God and giving

12 us signs, okay, if you believe in that, then what

13 happened in New Mexico, as far as I'm concerned,

14 is a sign for all of us.

15 Q Thank you.

16 A You are welcome.

17 Q Reading from your deposition again, Page

18 28, Line 17. And you are testifying with respect

19 to the diabetes, gangrene, limb amputation.

20 Question. And you are testifying it

21 still gives you joy to have her remain alive in

22 that situation?

23 Your answer on Line 20 is absolutely.

24 Sure.

25 A Right. Absolutely. Hopefully, if she

 

501

1 was in that situation, she would pass away soon.

2 Q Thank you. You have answered the

3 question.

4 A Can I finished, judge? She keeps

5 interrupting.

6 THE COURT: Sir, I'm having a problem.

7 Let me ask a question, if I might. In response to

8 a lot of her questions, you are saying it gives me

9 no joy for her to be in that condition. Now you

10 are saying it gives you joy to have her alive.

11 I'm not sure what your answer really is.

12 THE WITNESS: Judge, they are asking me

13 hypothetical questions and it's very disturbing to

14 me. They are asking if my sister, if her limbs

15 were removed. They are asking if, to keep her

16 alive under the circumstances. I would hope if

17 she's in that state, she passes away soon. I will

18 not condone the feeding tube pulling.

19 THE COURT: I guess your hangup [sic] is you

20 are used to the word "joy" with the state of

21 mind. The word joy has appeared in the

22 deposition, but you had to back away from it in

23 your testimony. I'm not sure how those two fit

24 together. That is my point.

25 I guess I'll leave it up to questions

 

502

1 and answers to see if we can sort that out at this

2 point.

3 MS. FELOS: Your Honor, I'm having a

4 very difficult time hearing you.

5 THE COURT: The acoustics in this room

6 are not good. I said that I think I understand

7 what this witness is trying to say. That is not

8 to suggest you should curtail your questioning.

9 MS. FELOS: Thank you, judge.

10 Q (By Ms. Felos) I believe when I asked

11 you before would it bring joy to you -- or let me

12 ask you this. Does it bring joy to your parents

13 to see Terri alive now in the condition she is in?

14 A I think you would have to ask my

15 parents.

16 Q So you don't know?

17 A I know they have hope.

18 Q I was asking about joy. Joy was the

19 word you used.

20 A Sure. I believe if Terri --

21 Q No. No. The question is first --

22 A Right.

23 Q Do you know whether Terri being alive

24 today in her condition brings joy to your parents?

25 A You would have to ask my parents.

 

503

1 Q You don't know; is that correct?

2 A I would think -- this whole joy thing,

3 I don't know if my parents like seeing their

4 daughter in the state she's in. But they

5 certainly get enjoyment out of walking into the

6 room and seeing their daughter. Yes.

7 Q Let me read from your deposition again

8 with respect to this.

9 A Sure. Okay.

10 Q Page 39, Line 17. This is your answer.

11 If you saw the joy it brings to my parent's face,

12 the joy that it might bring to people working in

13 the nursing home, seeing my sister on a daily

14 basis, you just don't know, Mr. Felos.

15 This was in the deposition.

16 A Right.

17 Q And you would concur that is your

18 feelings with respect to how you feel about

19 Theresa, your sister, staying alive in the

20 condition she is in; is that correct?

21 A Correct.

22 Q Let's talk about your viewpoints

23 regarding your own end of life care. If you were

24 in a permanent vegetative condition, you have no

25 awareness and no chance of regaining awareness,

 

504

1 and you developed gangrene -- we are going to

2 extremes -- which would or could necessitate the

3 amputation of your leg in order to remain alive,

4 is that something you would want for yourself?

5 A Yes or no response, judge? Yes. Can I

6 explain?

7 THE COURT: Yes, sir.

8 A Okay.

9 MS. FELOS: Could I refer to the

10 deposition first? There's a little different

11 answer, then he can explain the difference.

12 THE COURT: He didn't answer.

13 MS. FELOS: He answered sure. Oh, yeah.

14 THE COURT: Ms. Felos, I guess yeah is

15 different than yes, if were looking in the

16 dictionary, but it's no different in this

17 courtroom. He answered yes. And he said sure.

18 Yeah. Those are three different words, but they

19 mean the same thing.

20 MS. FELOS: Yes, they do mean the same

21 thing, and there are intentions behind them with

22 respect to how it was said that maybe he would

23 want to explain. If I say sure --

24 THE COURT: I don't find that

25 deposition answer to be inconsistent with the

 

505

1 answer he gave on the witness stand. Now you can

2 explain your answer.

3 THE WITNESS: That's fine. I'll leave

4 it at that.

5 Q (By Ms. Felos) You made a statement

6 that you found it difficult to see Terri. Why was

7 that?

8 A I remember what she was like before she

9 fell into her coma.

10 Q And you never have participated in her

11 direct care; have you?

12 A No. I have not.

13 Q You mentioned something about the

14 reactions that might be had when your mother is in

15 the room. What specific observations have you

16 made? Rather than an interpretation now, I'm

17 asking if you can give me specific observations.

18 A The time where it occurred where I was

19 in there, she seemed to track my mom from one side

20 of the room. In fact, we were doing it.

21 Q Let me ask you this. When you say

22 "track", does that mean her eyes moved to follow

23 your mother?

24 A Right.

25 Q As an object?

 

506

1 A My mom would be on one side of the bed

2 and they were showing me. They thought this meant

3 something. My mom would talk to her on one side

4 of the bed. She'd come to the other bedside and

5 talk to her. Terri slowly would move her head.

6 There was times she would smile. I have seen her

7 react to pain and also seen her cry.

8 Q Would it surprised you if a neurologist

9 said they have done testing to try to get her eyes

10 to follow and they do not, under any

11 circumstances, that any action of her eyes are

12 reflexive, would that surprise you at all?

13 A No. Not at all. But I can tell you

14 what has surprised me. I'm sorry I keep

15 elaborating on this. That lady in New Mexico

16 surprised the heck out of me. Absolutely blew me

17 away.

18 Q I suppose you have seen her CAT scans

19 and EEGs?

20 A No.

21 Q And all the blood tests?

22 A The lady in New Mexico?

23 Q Yes.

24 A No.

25 Q So you have not made a clinical medical

 

507

1 explanation?

2 A From what I understand, there is no

3 medical explanation as to why this happened. None

4 whatsoever.

5 Q Would it surprise you that a neurologist

6 might testify to a person being in a coma for a

7 long period of time might be in a catatonic state?

8 A No.

9 Q That is an explanation. The point is,

10 you don't have an explanation; isn't that correct?

11 A No. I did see a show.

12 Q You don't have an explanation; is that

13 correct?

14 A No. Can I speak?

15 Q Could you answer whether you have an

16 explanation?

17 THE COURT: Wait a minute. Wait a

18 minute. You are talking at the same time. The

19 court report there is going crazy. Let him finish

20 his answer. I will not let you tell us what you

21 saw on TV. That is hearsay. But if you wouldn't

22 step on each other lines.

23 THE WITNESS: I apologize.

24 THE COURT: That's quite all right.

25 A I have learned that we are just

 

508

1 scratching the surface on coma victims. They

2 don't know more than they do. Am I saying it

3 right?

4 MR. FELOS: I object. This witness has

5 not been qualified as an expert as to what the

6 scientific knowledge is.

7 THE COURT: Mr. Felos, your partner is

8 handling this.

9 THE WITNESS: I'm sorry.

10 MS. FELOS: I'm having a hard time

11 hearing what is going on here.

12 THE COURT: We have to put up with this

13 in this courtroom.

14 MS. FELOS: Judge, the witness is not

15 qualified to go into speculation with respect to

16 the medical condition with patients somewhere in

17 the news. I would ask the Court to strike this

18 testimony and avoid further reference to it.

19 THE COURT: Well, this evidence has come

20 in both on direct and cross. It's a little late

21 to close the door. The horse is galloping through

22 the fields as we speak. In terms of clinically

23 analyzing, I do not think the witness is capable

24 of doing that with this New Mexico situation, but

25 he has been asked his feelings by you and Ms.

 

509

1 Campbell. If that is part of his feelings, he can

2 speak to that.

3 MS. FELOS: Thank you, judge. I

4 believe, sir, those have been asked and answered.

5 So I don't think I have further questions with

6 respect to that matter.

7 THE COURT: Okay.

8 Q (By Ms. Felos) Mr. Schindler, you are

9 angry at Mike Schiavo, aren't you?

10 A No. Can I restate that? I have dealt

11 with a lot of anger. I don't like what is

12 occurring here. I question his integrity.

13 MR. FELOS: Your Honor, I object and

14 move to strike.

15 THE COURT: Mr. Felos, one lawyer

16 handles the witness now. That is the way it is

17 done.

18 MS. FELOS: Your Honor, I am just asking

19 a question as to whether he is angry. I have not

20 asked him to expound, nor have I impeached his

21 testimony in any way.

22 THE COURT: I'll allow the answer to

23 stand. It is not truly responsive, but it does

24 explain. Again, I'm not sure how all this helps

25 me make my decision..__

 

510

1 MS. FELOS: Yes, judge. All right. I

2 don't have any other questions right now.

3 THE COURT: Thank you. Redirect?

4 MS. CAMPBELL: Thank you, Your Honor.

5 REDIRECT EXAMINATION

6 BY MS. CAMPBELL:

7 Q Do you have a specific recollection of

8 your deposition taken in September of 1999 by

9 Mr. Felos?

10 A Yes.

11 Q At that deposition, can you give a

12 percentage of the amount of time how much was

13 spent on hypothetical questions to you?

14 MS. FELOS: Objection, Your Honor. This

15 is totally irrelevant. I have no idea. It makes

16 no difference to anything whether or not a

17 question was hypothetical or actual.

18 THE COURT: What is the relevance of

19 that?

20 MS. CAMPBELL: Mrs. Felos has tried to

21 cross-examine and impeach Mr. Schindler on

22 portions of answers he gave during his

23 deposition. If they were portions of answers

24 rather than reading the whole deposition, I was

25 trying to cut short getting him to testify how

 

512

1 to agree with it.

2 Then continuing on Page 41. Question.

3 Let me understand this. Are you saying that if

4 you believe an answer to a question would help in

5 the removal of your sister's feeding tube you

6 would give me an untruthful answer?

7 Answer. No. That is not what I am

8 saying. Your purpose here is to have my sister's

9 feeding tube removed. I will not agree to that.

10 I don't believe in that. It's against my

11 beliefs. You get me all these hypothetical

12 questions to get me to agree. It's a hypothetical

13 question. I didn't feel I should answer it.

14 Did you make that statement on that day?

15 A Yes.

16 Q Mrs. Felos asked you whether it would

17 surprise you to hear the testimony from some of

18 the physicians regarding Theresa's CAT scans, et

19 cetera. Your answer was you said it would not

20 surprise you. Could you please explain why would

21 that not surprise you?

22 A Well, I'm not a doctor, so what they

23 would say --

24 MS. FELOS: Objection, Your Honor. He

25 just said he is not a doctor. This is a clinical

 

513

1 evaluation of what the doctors would say. That is

2 hearsay.

3 THE COURT: Ms. Felos, you asked the

4 question. You got an answer. She is following up

5 on your question and his answer. No, he is not a

6 doctor, but this is perfectly permissible

7 redirect.

8 MS. FELOS: If I might, he could then

9 express his opinion. He is trying to say what

10 doctors in some other part of the country are

11 saying.

12 THE COURT: The question you asked was

13 would it surprise you as to what the neurologist

14 said. He said no. She is saying why would it not

15 surprise you. Please proceed.

16 Q (By Ms. Campbell) Please explain why

17 that would not surprise you.

18 A The doctor is trained in that area.

19 Q Is the doctor's explanation from your

20 experience --

21 A Um -

22 Q -- from what you witnessed personally

23 with Theresa?

24 A Well, I'm not exactly sure what they are

25 saying. But I see there is life in my sister, if

 

514

1 that is what you are asking me. You can see it.

2 You know, I hate to keep referring to it, but we

3 can't ignore what happened to that lady in New

4 Mexico. What if --

5 MS. CAMPBELL: Thank you very much. No

6 further questions.

7 THE COURT: Anything further, Ms. Felos?

8 MS. FELOS: No, Your Honor.

9 THE COURT: Pardon me?

10 MS. FELOS: No, Your Honor.

11 THE COURT: You may stand down, sir.

12 MS. CAMPBELL: Is it permissible for Mr.

13 Schindler to remain in the courtroom for the rest

14 of the trial?

15 THE COURT: Does either side anticipate

16 calling Mr. Schindler in rebuttal?

17 MR. FELOS: I don't. If respondents do,

18 we would like him excluded.

19 THE COURT: If he stays in, he is

20 excluded as to sur-rebuttal. With that

21 understanding, he will no longer, he will not

22 further be called to testify, you may stay in the

23 courtroom, sir.

24 The rule is still invoked, though, that

25 you would not be permitted to talk to other

 

515

1 witnesses about their testimony or other

2 testimony. You can talk to any of the three

3 lawyers, you can talk to court personnel, but not

4 about this case.

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10

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13

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516

1 CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

  STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

  PROBATE DIV:

2 CASE NO. 90-2:

  IN RE: THE GUARDIANSHIP OF

  THERESA MARIE SCHIAVO,

5 Incapacitated.

6

7 MICHAEL SCHIAVO, AS GUARDIAN OF THE

  PERSON OF THERESA MARIE SCHIAVO,

8 Petitioner,

9 APPEAL

  vs.

10 ROBERT SCHINDLER AND MARY SCHINDLER,

11 Respondents.

12

13 BEFORE: GEORGE W. GREER

   Circuit Court Judge

14 PLACE: Clearwater Courthouse

15 Clearwater, FL 33756

16 DATE: January 26, 2000

17 TIME: 10:00 a.m.

18 REPORTED BY: Beth Ann Erickson, RPR

19 Court Reporter

   Notary Public

20

21 TRIAL

22 ROBERT A. DEMPSTER & ASSOCIATES

23 501 South Fort Harrison

   Clearwater, Florida 33756

24 (813) 464-4858

   Volume IV Pages 516 - 679

25

 

517

1  APPEARANCES:

2

   GEORGE J. FELOS, ESQUIRE

3  CONSTANCE FELOS, ESQUIRE

   640 Douglas Avenue

4  Dunedin, FL 34698

5  Attorneys for Petitioner

 

   PAMELA CAMPBELL, ESQUIRE

   The Alexander Building

7  535 Central Avenue

   Suite 403

8  St. Petersburg, FL 33701

9  Attorney for Respondents

 

10 INDEX

                                                Page

11 WITNESS

12 SUZANNE CARR

         Direct Examination by Ms. Campbell     518

13       Cross-Examination by Ms. Felos         529

14 ROBERT SCHINDLER

         Direct Examination by Ms. Campbell     549

15       Cross-Examination by Mr. Felos         599

         Redirect Examination by Ms. Campbell   661

16       Recross-Examination by Mr. Felos       665

         Further Redirect Examination           670

17       Further Recross-Examination            672

18 MARY SCHINDLER

         Further Redirect Examination           675

19       Further Recross-Examination            677

20

22

23

24

25

 

518

1 PROCEEDINGS

2 MS. FELOS: Thank you. My next witness

3 I would like to call is Suzanne Carr.

4 THE BAILIFF: Stand here. Face the

5 judge. Raise your right hand to receive the

6 oath.

7 THE BAILIFF: Be seated in the witness

8 box, please.

9 DIRECT EXAMINATION

10 BY MS. CAMPBELL:

11 Q We have established the acoustics in the

12 room are difficult, so if you can speak up,

13 please. State your name.

14 A Suzanne Carr.

15 Q Where do you live?

16 A St. Petersburg, Florida.

17 Q Are you the sister to Theresa Schiavo?

18 A Yes.

19 Q How old are you?

20 A Thirty-one.

21 Q How many years difference between you

22 and Terri?

23 A I'd say about four-and-a-half years.

24 Q Would you please review your educational

25 1 background briefly?

 

519

1 A I have a high school diploma. A four

2 year BS in business. Recently passed Series 7 for

3 stockbroker.

4 Q Where did you go to high school?

5 A Arch Bishop Wood. Warminster, PA.

6 Q Outside of Philadelphia?

7 A Yes.

8 Q What is your current employment?

9 A TD Waterhouse Investors Services.

10 Q Where were you raised?

11 A Outside of Philadelphia, Pennsylvania.

12 Q Can you describe what it was like

13 growing up in the Schindler household?

14 A Very normal. Close knit family. Happy

15 childhood. Friendly, nice neighborhood. We lived

16 in a nice house in a nice neighborhood. Catholic

17 school.

18 Q Were you close with any of your

19 grandparents?

20 A Yes.

21 Q Did your grandmother Schindler live

22 nearby?

23 A Yes.

24 Q Do you know where you were when your

25 grandmother passed away?

 

520

1 A I was actually out front of my house. I

2 remember hearing the news standing out front.

3 Q In Philadelphia?

4 A Right.

5 Q Do you recall the year?

6 A ' 86.

7 Q Was Theresa also in Philadelphia during

8 that time?

9 A She had moved to Florida in '86. I

10 believe she was still there at the time.

11 Q Is it your testimony that she moved to

12 Florida after your grandmother died?

13 A No. I think -- yes. I'm sorry.

14 Q When did you move to Florida?

15 A Summer of '86.

16 Q Had Theresa and Terri and Michael

17 already moved to Florida?

18 A Yes.

19 Q Do you know anything about a train ride

20 that Terri may have taken to Florida?

21 A Not -- not really. No. Not that I can

22 1 testify to.

23 Q Describe your relationship with Terri in

24 the late 80s prior to the accident.

25 A I spoke to her periodically. I was away

 

521

1 at school at the time. We spoke often. I came

2 home on the weekends. I was in Orlando at the

3 time.

4 Q How often would you see Terri?

5 A I would say a couple weekends a month

6 during -- while I was at school.

7 Q Would you confide in each other?

8 A Sure. We talked on the phone.

9 Q Would you consider your relationship

10 close?

11 A Sure.

12 Q Did she ever talk to you about wanting

13 to get pregnant?

14 A We talked about her wanting to have

15 children. I can vaguely recall. Yes.

16 Q Did she talk to you about going to a

17 physician regarding that?

18 A I vaguely recall her seeing a doctor

19 regarding her -- about that.

20 Q Do you know when in proximity was that

21 prior to the -- in relationship to the accident?

22 A It was in the past, I would say prior,

23 maybe a year. During the year or two prior to

24 that.

25 Q Would you spend time with Terri and

 

522

1 Mike? I'm referring to the time frame of 1989.

2 A Here and there, if I came home from

3 school or prior to leaving for school. Because I

4 was not there the whole year so --

5 Q Did you ever observe them as a couple?

6 A Sure.

7 Q Did they appear to be happy together as

8 a couple?

9 MS. FELOS: Objection. That is a

10 leading question and irrelevant here.

11 THE COURT: Overruled.

12 Q (By Ms. Campbell) Go ahead and answer.

13 A I --

14 Q Could you describe how they were as a

15 couple?

16 A Well, knowing what I know, I know that

17 Terri was not 100 percent happy. So I probably

18 would say no.

19 Q What is it that you know that you are

20 referring to?

21 A I knew that Terri was not happy in the

22 marriage. Not very happy with her marriage.

23 Q What makes you say that?

24 A Different things that I knew. Just

25 comments she would make. Some of the ways she was

 

523

1 being treated.

2 Q Could you give me a specific example?

3 A Um, I knew that there were times that,

4 you know, she could only drive her -- they had a

5 new car and he would note the miles. She could

6 only drive certain miles. He was very strict

7 where she could park it. Things like she always

8 would make comments I can only drive so many miles

9 a day. They had a new Toyota.

10 He would give her a hard time about

11 maybe spending too much money. Just off-the-cuff

12 comments she would make, if he was working. He

13 worked long hours. There were times she was real

14 glad about that, you know. I just knew she was

15 not happy.

16 Q Did you ever visit your mother (sic) at

17 Majestic Towers? Your grandmother?

18 A Yes.

19 Q Did you ever go with Terri?

20 A Yes.

21 Q When would that generally be? During

22 the week? On weekends?

23 A Both.

24 Q Did you go by yourself as well?

25 A Yes.

 

524

1 Q Could you give a general description of

2 the residence at Majestic Towers?

3 A The people themselves?

4 Q Um-hmm.

5 A There were some -- it was primarily

6 older. There was some older people in there that

7 were -- it's assisted living. Some were in bed.

8 You know, elderly in pretty poor shape.

9 Q What do you mean pretty poor shape?

10 A Bedridden. That kind of thing.

11 Q Did you used to assist your mom when she

12 was the assistant activities director?

13 A You mean work with her?

14 Q Yes.

15 A No. Not really.

16 Q Do you remember what happened on

17 February 25, 1990?

18 A I remember I got a phone call. Sure.

19 Q Tell us about what happened.

20 A I got a phone call from my mom. I was

21 in Orlando at school. Mom said Terri was in the

22 hospital. It was not until I hopped in my car --

23 it was at night; I drove home -- because she did

24 not want to alarm me because I had a 2-hour ride

25 home. When I got home, I realized Terri had

 

525

1 fallen into cardiac arrest and was really in bad

2 shape in ICU.

3 Q Were you able to spend time with Terri

4 and the family during that initial time?

5 A We were almost sleeping at the hospital

6 during those first several weeks.

7 Q Was Michael also there?

8 A Oh, yes.

9 Q Did you continue with school that

10 semester?

11 A I went back on the weekends. I mean, I

12 would go back periodically during the week. I

13 pretty much let that semester go and then I moved

14 home.

15 Q Did you assist in taking any care of

16 Terri?

17 A Um, not day-to-day care. But I was

18 there with my parents and Michael, too.

19 Q Did you assist with any fund raisers for

20 Terri?

21 A Yes.

22 Q Describe what you did.

23 A We had, through a lot my mother's

24 friends that we knew for some years, we had a

25 Valentine's Day dance. We had prepared the hall.

 

526

1 We also -- I remember the luminaries on

2 Pass-A-Grille Beach. We raised money and set

3 luminaries all along. It was real pretty. With

4 the help of -- we knew the owners of the Hurricane

5 Restaurant. All were really supportive and we

6 raised quite a bit of money.

7 Q How often do you see Terri now?

8 A I'd say three or four times a month.

9 Q Does she react to you?

10 A Slightly to me. More to my mom. There

11 is a connection with my mom that I see.

12 Q Do you go there by yourself?

13 A With my daughter. I will take my

14 daughter with me.

15 Q Do you also go with your mother?

16 A Yes.

17 Q Describe what you see when your mother

18 visits Terri.

19 A Um, if we go in and Terri is just laying

20 there awake, then we will walk in. It is sort

21 of -- my mom will say, "Hi Terri. It's mommy."

22 There is a visible, to me there is a visible

23 reaction in her face. She'll just sort of like

24 sometimes almost like light up a little bit. Just

25 a -- or a smile. On occasion, I have seen her cry

 

527

1 when she sees my mom, too. Her face. Cry.

2 Just -- my mom, one time I was there and

3 my mom walked on the other side of the bed and

4 Terri turned her head to the other side. I see a

5 definite connection.

6 Q Do you see any change in Terri from the

7 earlier days of her accident versus now?

8 A I do.

9 Q Can you describe that change?

10 A Just, it seems as though she connects

11 more often with my mother. Also, aware that my

12 mom, even that we are there. There is a definite

13 awareness. You can see it in her eyes.

14 Q Did you ever discuss any end of life

15 issues with Terri?

16 A No. Not that I can recall.

17 Q Did you ever discuss anything concerning

18 a vegetative state or feeding tubes?

19 A Not that I can recall. Before this

20 happened, she was in her early twenties. I was in

21 my teens. We never really talked about it.

22 Q Do you have knowledge about Terri's

23 intent or what she would want to do as to being

24 maintained regarding a feeding tube?

25 A You mean as far as if Terri ever

 

528

1 mentioned that to me?

2 Q Right.

3 A She never said to me that either way.

4 Q What are your personal thoughts for

5 yourself regarding end of life decisions?

6 A Well, I'd honestly have to, depending on

7 what the situation was at the time, I mean, there

8 is so many different conditions that you can be in

9 and medical technology continuing to further, I

10 don't know. I know what I don't believe in as far

11 as certain things, but I'd have to wait and see

12 with the life and death decision.

13 Q With your upbringing, do you have any

14 religious views you strongly believe in one way

15 yourself personally?

16 A Pro life. Pro life in those positions.

17 You know, I feel with, again, with medical

18 technology, I believe they are advancing so much

19 to find ways for curing. Helping people get

20 through certain illnesses. I suspect if I had a

21 chance, I would rely on that medical technology.

22 Q What do you mean when you say pro life?

23 A I'm against abortion. Pro life for life

24 itself, I support.

25 MS. CAMPBELL: I have no further

 

529

1 questions at this point.

2 THE COURT: Thank you. Cross-

3 examination?

4 CROSS-EXAMINATION

5 BY MS. FELOS:

6 Q Good morning. You mentioned you had a

7 close relationship with your sister, Terri; is

8 that correct?

9 A I believe so.

10 Q And you knew she was trying to have a

11 child, did you?

12 A I recall --

13 Q But Terri did not confide in you

14 regarding the fact that she was going to a doctor;

15 did she?

16 A I recall her mentioning -- with regard

17 to her --

18 Q Going to a doctor with respect to

19 getting pregnant?

20 A I recall her mentioning something about

21 looking into maybe a fertility problem with her

22 husband. That is what I recall. Maybe going to a

23 physician for that reason.

24 Q Okay. So she did not actually say to

25 you, confide in you about going to a doctor?

 

530

1 A I recall -- I can't think of a

2 particular conversation. Very well she could

3 have. it has been quite a while. I do recall

4 something said about that.

5 Q But it would have been in passing or

6 fairly vague; is that correct?

7 A Sure. Because it's been many years.

8 Q Is that your recollection or that she

9 only mentioned it in passing?

10 A I vaguely recall there was something

11 said about going to a physician. I'm not sure if

12 in regard to the infertility or something to that

13 effect.

14 Q That seems like a pretty important

15 thing that a young woman would talk about to a

16 close friend, wouldn't you think? Whether she was

17 going to a physician to try to get pregnant?

18 A I don't know. Depends on the friend.

19 It depends on, you know, I don't know.

20 Q Okay. You mentioned something about the

21 relationship with Michael Schiavo. That there

22 were maybe some comments made off the cuff or some

23 way she was treated, but you don't have any direct

24 information regarding a relationship with Mike

25 Schiavo that- you just mentioned that Terri had; do

 

531

1 you? You have no direct information from Terri

2 regarding any problems with her relationship with

3 Mike; do you?

4 A Well, yeah. I know she was not happy.

5 She would make comments to me a lot about being

6 unhappy. You know, off-the-cuff comments about

7 she was not very -- there was comments that were

8 not very favorable to Michael toward the later

9 years.

10 Q Did she say she was abused?

11 A Physically abused? She never told me --

12 she never told me she was physically abused.

13 There were times where he rough-housed with her.

14 There would be a bruise on her arm. I recall that

15 but --

16 Q So Terri never told you that she was

17 abused in any way; is that correct?

18 A She would never tell me that. She knows

19 I would go -- she would never say something like

20 that to me.

21 Q So Terri never told you that Michael

22 abused her; is that correct?

23 A Even if he did, she would not tell me

24 that.

25 Q Would you dispute Michael Schiavo's

 

532

1 statement that you never stayed in the hospital

2 during those early days with Terri?

3 A In the first several weeks?

4 Q Right.

5 A Would I dispute that?

6 Q Right.

7 A I can remember sleeping there.

8 Q Explain --

9 A I came home from school and did not go

10 back to college for like two weeks.

11 Q When were you married?

12 A 1991.

13 Q You were divorced?

14 A Yes.

15 Q In what time?

16 A ' 95.

17 Q When did you separate?

18 A I was divorced in '96. Separated in

19 ' 95.

20 Q Do you recall when?

21 A March.

22 Q March of?

23 A ' 95.

24 Q Were you divorced in 1995 actually?

25 MS. CAMPBELL: Objection, Your Honor. I

 

533

1 don't see the relevancy of this line of

2 questioning.

3 THE COURT: I'm not sure either. What

4 is the relevance of her marital status?

5 MS. FELOS: Judge, if you would let me

6 continue.

7 THE COURT: Where are we going with

8 this?

9 MS. FELOS: Where we are going? If I

10 can ask her a couple more questions about -- well,

11 judge, I'll mention it. Based on the deposition

12 that we have previously of this witness, there is

13 some discussion that Terri wanted to have a child

14 because she wanted to help their relationship,

15 which is the statement that the witness made. It

16 appears from the witness's background --

17 THE COURT: Does it make any difference

18 if she was divorced in '95 or '96?

19 MS. FELOS: We believe that the witness

20 was having a child in order to keep her

21 relationship together and she was projecting that

22 viewpoint on Terri, and in fact that was not the

23 case. So that is basically what I was trying to

24 elicit.

25 THE COURT: But the latest she could

 

534

1 have talked to her sister was February 24, 1990.

2 What does '95 and '96 have to do with that? Ask

3 the questions that are probative. If you need to

4 tie it up, go ahead. But there is certainly no

5 relevancy at this time as to when this lady was

6 divorced.

7 MS. FELOS: All right. Thank you,

8 Your Honor.

9 Q (By Ms. Felos) Ms. Carr, you have said

10 you communicate in some way with your sister;

11 haven't you?

12 A Um-hmm.

13 Q You have even made the statement that

14 she, Terri, squeezes your hand; isn't that

15 correct?

16 A She did on occasion. Once or twice I

17 felt something from her. Yes.

18 Q You know that Terri's hands are in a

19 rigid, contractured state; don't you?

20 A Sometimes they are not so rigid. At

21 times yes and at times no. If my mom is in there

22 talking, stroking her, she relaxes and you can

23 slip your hand in her hand.

24 Q When her hands are contractured, would

25 you agree it would be impossible to hold hands

 

535

1 with your sister?

2 A I don't think -- I can put my hand and

3 hold her hand if her hand is contracted. And I

4 do.

5 Q You want your sister to be acting

6 volitionally, on purpose, don't you? You would

7 like that to be the case; wouldn't you?

8 A I would like her to get up from the

9 bed. Sure. Sit up and talk to me, Mrs. Felos.

10 Q You really don't know whether or not she

11 does act on purpose or with volition; do you?

12 A I absolutely believe she does. I can

13 say that.

14 Q You do believe you would like her to; is

15 that correct?

16 A Well, as I said, sure. Absolutely. I'd

17 like to think she would get right up off that bed.

18 Q You would like to believe that the

19 actions that you see, the reactions or reflexes

20 you see are being done by her on purpose; wouldn't

21 you?

22 A Mrs. Felos, I know what you are getting

23 at. Just because I want to think they are on

24 purpose does not automatically -- is not like I'm

25 saying it's on purpose because I want it to be.

 

536

1 Sometimes I'm in there and, you know, if I talk to

2 her and she squeezes my hand or I feel her come

3 back to my hand, it's not because I wished it to

4 happen or I wanted it to happen. It is because

5 she did.

6 Q All right. Let me read from your

7 deposition.

8 A Okay.

9 Q The deposition was taken September 27,

10 1999. Page 11. Line 19. Do you hold hands with

11 Terri when you are there?

12 Yes. Sure.

13 Does she squeeze your hand sometimes?

14 Sometimes.

15 Have you noticed any volition or purpose

16 to that?

17 It's hard for me so say either

18 way. Right.

19 Is it fair to say you don't know?

20 It is fair to say I'd like to believe it

21 was on purpose, but I don't know. I would like to

22 believe that. I may say yes, it was on purpose,

23 as what I felt it to be.

24 Q So is that correct? Is that really your

25 statement?

 

537

1 A Sure. Again, if I put my hand in there,

2 I feel her come back with me, sure.

3 Q Thank you. Do you believe that taking

4 away artificial life support is murder?

5 A I believe starving someone to death is

6 inhumane.

7 Q So you are saying that you don't believe

8 that taking away other forms of artificial life

9 support would be murder, but taking away a feeding

10 tube would be murder? Is that your testimony?

11 A I think it depends on the situation.

12 Q Could you just answer that question?

13 A Well, I can't. I don't know. It's per

14 situation.

15 Q I'm asking you just generally your

16 preference. Do you believe that taking away

17 artificial life support is murder?

18 A Well, if I refer to my grandmother who

19 was taken away from a respirator and she died,

20 then no, not in that respect. She was -- no.

21 Q So you don't believe that taking away

22 artificial life support is murder. Thank you.

23 A I can't generalize. I can't say in

24 every single case. I have to know a little bit

25 more about what the situation is.

 

538

1 Q May I refer to your deposition again?

2 Same deposition. Page 26, Line 21. Taking life

3 support away is murder. Period.

4 A I was referring to the feeding, taking

5 my sister's feeding tube away.

6 Q Let me read the question.

7 A Okay.

8 Q Line 15. Well, so if a person would

9 die, that hypothetical person would die without

10 life support but would not die with life support,

11 who is to say what's God's will? Is it a human

12 decision that's going to be made to put life

13 support in this case? Why isn't it just as much

14 God's will that the patient die without life

15 support?

16 Your answer, first line is, taking life

17 support away is murder. Then you went on to

18 discuss human decisions, et cetera.

19 A Right.

20 Q But yet today you said, no, taking away

21 artificial life support is not murder?

22 A I did not say that. I did not say, no,

23 it is not.

24 Q Well, we'll have a transcript of what

25 you said.

 

539

1 A I believe --

2 Q Would you be against re…[missing text]

3 respirator of somebody who is br…[missing text]

4 MS. CAMPBELL: Objecti…[missing text]

5 This line of hypothetical questi…[missing text]

6 relevant to the decision the Court is to make

7 regarding the specific accident of Terri's

8 regarding this feeding tube.

9 THE COURT: I am sure her opinions from

10 lots of witnesses, what they believe regarding the

11 decision on both sides, so I'll allow some of this

12 testimony.

13 Q (By Ms. Felos) Could you answer the

14 question?

15 A Can you repeat the question?

16 Q I gather that you would be against

17 removing a respirator of someone who is brain

18 dead?

19 A I am for pro life. If there is a way

20 Q Excuse me. We were talking about a

21 respirator of someone who is brain dead. Would

22 you be --

23 THE COURT: She started to answer you,

24 counselor.

25 MS. FELOS: I thought she was answering

 

540

1 about someone different.

2 THE COURT: She used pro life in her

3 answer, which is a more global view than just

4 abortion.

5 MS. FELOS: I see.

6 A I think if the person were brain dead,

7 if there was no, if they are completely brain dead

8 and the only thing keeping them alive was just a

9 breathing machine I would -- it's hard for me to

10 say. In some respects I'm -- I don't know. I

11 think I would keep them on a breathing machine for

12 the time being. See where it goes from there.

13 Q (By Ms. Felos) So you advocate the use

14 of all medical treatment; is that correct?

15 A I do.

16 Q That is no matter what the treatment is?

17 A What are you referring to as far as what

18 the treatment is?

19 Q Any treatment that would be medically

20 available?

21 A I advocate medical treatment. Sure.

22 Q So is it fair to say if it's available,

23 you would advocate it?

24 A I agree. That is fair to say.

25 Q What if the patient does not want the

 

541

1 treatment? Do you think they should have it

2 anyway, even if they don't want it if it will keep

3 them alive-

4 A Is this -- is the patient -- I think I

5 need to know more information. Is the patient 90

6 years old? Is the patient 16? What is wrong with

7 the patient?

8 Q So then the age of the patient would be

9 relevant to your decision and the diagnosis would

10 be relevant to your decision?

11 A Well, I am all for medical treatment for

12 keeping someone alive. I think there is so many

13 other variables that do come into play, sure. I'm

14 still all for medical treatment. I'm still for

15 that. Yes.

16 Q And you also testified that you would

17 keep a brain dead person on a respirator. Would

18 the age of that person be a relevant factor if the

19 patient were 20 versus the patient were 80?

20 A Yes. There is a lot of -- for me to

21 make these decisions such as those, there is a lot

22 of relevance with regard to age and what the

23 conditions are. Sure.

24 Q Another condition would be a diagnosis?

25 A I think that would come into play

 

542

1 depending on again what the condition is.

2 Q So what if the patient, regardless of

3 the condition, didn't want the medical treatment?

4 Would you still advocate that medical treatment be

5 employed, even though the patient didn't want it?

6 If it is available, that is.

7 A Again, I am all for medical treatment.

8 I still think I need to know more information

9 about the patient themselves.

10 Q The question would be whether or not the

11 patient wanted it. The patient does not want it,

12 but it is available to keep the patient alive.

13 Let's say the patient is young. Would that help?

14 Would you want that treatment to be given to that

15 patient whether or not the patient wanted it or

16 not?

17 A Mrs. Felos, you are asking me to make a

18 decision like that. I think I maybe want to talk

19 to the physicians involved in the case. In the

20 treatment of the patient.

21 Q Let me read from the deposition again.

22 Page 27, Line 11. What if the patient doesn't- -

23 want the treatment, do you think the patient

24 should have medical treatment to keep them alive

25 even if a patient does not want it?

 

543

1 Answer. If it's available, yes.

2 And so your belief, obviously, is that

3 is something that you would advocate for yourself

4 as well?

5 Answer. Yes. Is that -- I would

6 advocate that for myself.

7 A I recall making those statements. You

8 have to think -- I recall making those. I have to

9 think a little more into it, too. I answered

10 deposition questions as Mr. Felos was coming at me

11 with all these hypotheticals. I recall making

12 these answers. Yes. Yes. Given when you leave

13 there, you have to give -- a little more thought

14 process goes into making it.

15 Q Well, thank you. And today you are

16 saying you do agree with that? You are saying if

17 a patient does not want medical treatment you

18 would advocate that; is that correct? To keep

19 them alive?

20 MS. CAMPBELL: Objection, Your Honor.

21 Asked and answered.

22 THE COURT: I think it's been answered

23 for the third time. The first time she said it

24 would depend on the variables. So you are not

25 going to get any better with that with a general

 

544

1 question, Mrs. Felos. You may want to ask a

2 specific question, but that was the answer that

3 the Court remembers her saying to your general

4 inquiry.

5 Q (By Ms. Felos) Is it fair to say that

6 you would advocate being treated against your will

7 if it would keep you alive?

8 A I think to a certain -- it's a little in

9 depth in answering that question because you know

10 at the time maybe I'll go into a little detail.

11 Maybe the doctor said I was in a grave condition

12 but we can medically treatment you with

13 experimental treatment. I say no. I don't want

14 that. And if they really believe this is

15 experimental treatment, let's do it.

16 If in that case, if I did not want it

17 because you are in a state of despair when the

18 doctors are telling you so, something is so

19 seriously wrong in a grave condition, and maybe

20 that experimental treatment might cure me, sure, I

21 would go for all medical treatment because of the

22 technology these days they are making. So who

23 knows what they are going to come up with to

24 treat?

25 Being myself, maybe if I didn't want

 

545

1 that but they felt maybe it would cure me, they

2 tried it, it did, there you go. I'm cured. And I

3 didn't want that treatment, but I go back and

4 shake that doctor's hand and and [sic] say thanks.

5 Q So you advocate treatment against your

6 7 A For myself, I probably would.

8 Q What if you were in a condition where

9 you were not cognizant, no awareness, no

10 reasonable likelihood of you ever gaining

11 awareness. Would you want your body kept alive

12 through medical treatment and artificial life

13 support?

14 A Mrs. Felos, am I 80 or 30? That is hard

15 to say. I advocate medical treatment. Yes. I

16 recall answering again in the deposition, but

17 sitting here I -- there is -- there are still more

18 variables and I need more information.

19 Q On Page 27 of the same deposition you

20 answered that question absolutely.

21 A I recall that. I do. Again, I recall

22 Mr. Felos with all the hypotheticals and I recall

23 that answer. I do.

24 Q Again, let's say you developed cancer in

25 that same condition and in order to have a chance

 

546

1 of beating the cancer you would need aggressive

2 chemotherapy. Is it your position that you want

3 your body to receive radiation and receive chemo?

4 A My answer would be the same.

5 Q Do you recall what it was or do you want

6 me to read it?

7 A I remember when Mr. Felos was coming at

8 me and I was absolutely [sic], with all the

9 hypotheticals, on a hypothetical I said

10 absolutely. And leaving there, knowing there are

11 more variables to just making an on-the-spot life

12 and death decision.

13 Q So were your answers true at the time of

14 the deposition?

15 A At the time that is what -- when he was

16 coming at me with all the hypotheticals, that is

17 what came to my mind. That, and I'll leave it at

18 that. Again, there are more variables in making

19 life and death decisions than just what you gave

20 me. I need to know. I want to talk to my

21 physicians. You just can't make a life and death

22 decision, even in a three minute answer or taking

23 three minutes to answer it.

24 Q One of the things you mentioned that

25 1 would not come into consideration is what the

 

547

1 patient wanted; isn't that right? You look at

2 age, diagnosis, talk to your doctors, and a lot of

3 other variables; true?

4 A Are you talking for myself or somebody

5 else?

6 Q For yourself.

7 A Sure. There's a whole lot of variables

8 there.

9 Q Are you angry at Mike Schiavo?

10 A Angry? No.

11 Q Are you angry at the fact your sister's

12 money is being spent for this litigation, this

13 adversarial proceeding?

14 A I think probably yeah. I mean --

15 Q So you are angry that Mike Schiavo is

16 spending your sister's money for this litigation,

17 but not angry at him? That is your testimony?

18 A I don't think anger is a good word.

19 Q What is the right word?

20 A I think taking that money away from her

21 care, as opposed to going into the--care for Terri,

22 I think it is kind of sad it's come to this.

23 MS. FELOS: I have no further questions

24 at this time.

25 THE COURT: Thank you? Redirect?

 

548

1 MS. CAMPBELL: No further questions.

2 THE COURT: Stand in recess for about

3 fifteen minutes.

4 MS. CAMPBELL: Thank you, Your Honor.

5 THE BAILIFF: All rise. Court stands in

6 recess.

7 (THEREUPON, A 15 MINUTE BREAK WAS HAD AT

8 10:40 A.M.)

9 THE BAILIFF: All rise. Circuit Court

10 is back in session.

11 MS. CAMPBELL: Thank you, Your Honor. I

12 would like to ask if Suzanne Carr -- we don't plan

13 on calling her back and we would ask that she

14 remain in the courtroom.

15 THE COURT: Do you intend to call her as

16 a rebuttal witness?

17 MR. FELOS: Your Honor, I may call her

18 as rebuttal.

19 THE COURT: Okay. Sorry about that.

20 MS. CAMPBELL: Your Honor, the next

21 witness I would like to call is Mr. Robert

22 Schindler.

23 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY

24 THE COURT.)

25 THE COURT:--- Thank you. Be seated in

 

549

1 the witness chair, please.

2 DIRECT EXAMINATION

3 BY MS. CAMPBELL :

4 Q Please state your full name.

5 A Robert Schindler.

6 Q Where do you live?

7 A Presently we live in St. Petersburg.

8 Q Are you married to Mary Schindler?

9 A That is correct.

10 Q How long have you been married?

11 A 1963.

12 Q Could you give us a brief background of

13 your educational history?

14 A Background, I went to Penn State

15 University for a semester. I went to Temple

16 University for three or four semesters. I went to

17 Eckerd College for a semester. I have had hours

18 and hours and hours of business seminars,

19 business related seminars.

20 Q Tell us what you do professionally?

21 A Now I am a systems designer presently.

22 Q What does that mean?

23 A I design systems.

24 What type?

25 A Mechanical systems. For example, I was

 

550

1 doing a great deal of refinery work involving

2 carrying different fluids in refineries. Process

3 fluids. Things like that.

4 Q You heard your wife testify yesterday

5 regarding your children and how they were raised.

6 Do you have any testimony -- without repeating

7 that same testimony, is there anything different

8 that you would like to add to that?

9 A I can embellish you on the way she

10 raised them.

11 Q How was that?

12 A Magnificent.

13 Q Please tell the Court about your

14 brother, Terri's uncle.

15 A My brother, Fred?

16 Q Yeah.

17 A My brother, Fred, was a cross between

18 Dean Martin and Tony Curtis, if you can remember

19 back to those days. He employed me as a sales

20 engineer for ten years. In that time frame, his

21 wife and daughter were killed by a train collision

22 outside of Philadelphia and he had two surviving

23 children. The eldest daughter was 17 years old

24 when this happened. It happened on May 3, 1969.

25 At that point in time, my mother was

 

551

1 living in Philadelphia. She was living in our

2 family home in Philadelphia. She closed the

3 residence and moved to my brother's home to care

4 for the two children. She was almost like a

5 housekeeper, so to speak.

6 She lived there. Prepared the food and

7 was a substitute mother for the children, and also

8 cooked and cleaned. Washed for my brother.

9 Q After the children moved out, did she

10 continue to live there?

11 A Yes.

12 Q What happened to your brother subsequent

13 to that?

14 A In 1980, my brother had an automobile

15 accident and suffered severe head injuries. He

16 hit a tree one evening late in the night. It was

17 on a rural country road. Someone had diverted his

18 course where he ran into, trying to avoid an

19 accident, ran into a tree. From that, he was

20 taken to the Avington Memorial Hospital in the

21 Intensive Care Unit.

22 At the time, the next day, I was

23 notified. Our family was vacationing at the

24 Jersey seashore. Stone Harbor. A doctor friend

25 of mine told me that he had been in the hospital

 

552

1 that evening and they admitted my brother and he

2 was in intensive care. More?

3 Q Yes, please.

4 A We returned from the vacation and went

5 to the hospital. My brother was in the intensive

6 care and he was unconscious obviously. Subsequent

7 to that episode, he was in a coma because he had

8 suffered some head injuries and was in a coma for

9 possibly -- possibly at the outside one week. He

10 came out of that coma and maybe spent another, I

11 don't remember the time frame with this one, but

12 he was in the hospital, Avington Hospital,

13 recuperating from the physical injuries other than

14 the head injuries, and from there he went to Craig

15 Institute in Colorado.

16 That came about really because of the

17 business he was in, we were in. We had associates

18 throughout the United States and everyone

19 collectively came back and indicated the best

20 possible place for rehabilitation at that time was

21 the Craig Institute in Colorado.

22 So he went to Colorado. And he was in

23 Colorado -- he came back from Colorado maybe in

24 three or four months. When he came back, he was

25 not fully recovered. He looked like he was a

 

553

1 recovering stroke victim where the one side of his

2 body was somewhat shut down. He had a problem

3 like speaking where there was slurring. He

4 recovered from that amazingly.

5 My brother, he used to go to the gym

6 every day. That was his work habit. He would

7 leave work around three o'clock and he would work

8 out. And he was in outstanding physical shape.

9 And the doctors were almost, not amazed, but they

10 attributed his successes [sic] and recovery to the

11 condition of his body.

12 Q He was working out. This was after the

13 accident?

14 A Prior to the accident, he worked out.

15 Then he came home and he went through like a rehab

16 and when he came out he was working out at home.

17 Also, he went back to the club that he belonged to

18 and was working out there to the point where it

19 restored him. He still had a problem with his

20 hand. It was not 100 percent. And his one leg,

21 he would drag it when he walked. -

22 Q Were you working with your brother after

23 this car accident?

24 A No. I was not. I had purchased his

25 business.

 

554

1 Q You continued to run the business?

2 A Yes.

3 Q How often did you see your brother?

4 A What?

5 Q After the accident. Say '83 to 1 85 time

6 frame.

7 A After the accident, I would see him on a

8 fairly regular basis. There was a period of time,

9 and I had to stop and think, between when I bought

10 the business through 1980 where we had somewhat of

11 a misunderstanding on the way I was running the

12 business. He was not pleased, frankly. As my

13 older brother, he sometimes was a father to me as

14 well. He looked at me like I was abusing what he

15 built.

16 We had quite a, for a couple of years,

17 we were kind of at each other, but when this

18 happened to him, naturally when there is a tragedy

19 in the family, it reunited everybody.

20 Q Could you describe your brother's

21 physical condition from a visual standpoint in

22 ' 84, 1 85?

23 A Visually, he would walk and walk where -- like

24 his leg would somewhat trail. There was

25 his foot was like -- stiff at the ankle. His arm was

 

555

1 not completely functional.

2 Q Did he continue to drive during that

3 time frame?

4 A My brother used to go to work everyday

5 up to the time that he retired in the early '90s.

6 My brother would drive to the Jersey seashore. He

7 owned a home in Stone Harbor. That is roughly a

8 hundred miles one way. He used to go down Friday

9 evening and by himself drive to the Jersey

10 seashore. Go bar hopping, if I can say that.

11 Because he was a very attractive man. He would

12 spend the weekend at his Jersey residence and come

13 back Monday mornings. That was routine.

14 Q Was your mother living with him during

15 that '83 to '85 time frame?

16 A My mother was there. She was at the

17 time in 1983, she's like 77 years old. She was

18 beginning to get a little slower on her feet than

19 what she was prior.

20 Q At any time, are you aware whether his

21 children had to step in to run his business?

22 A No way. Again, I worked with the man

23 all those years. There is no way. He had running

24 the business -- he had three people that he used

25 to consult with on financial aspects. One of the

 

556

1 names is a man's name everybody saw. President of

2 Shellhand Bank (phonetic) in Philadelphia. One

3 was an attorney. Another one was president of

4 another bank in Philadelphia.

5 The three of them, they were with him

6 continually through his business. He consulted.

7 He continued to operate his business the same way

8 as he did prior to the accident.

9 Q Was Terri close with your mother?

10 A She was -- Terri was. Yes.

11 Q Do you recall was Terri in Florida when

12 your mother passed away?

13 A Yes.

14 Q Let me repeat the question.

15 A Yes.

16 MR. FELOS: I believe the question was

17 clear as stated.

18 THE WITNESS: I beg pardon?

19 MR. FELOS: I object. The question is

20 asked and answered.

21 THE WITNESS: I totally misunderstood

22 what you were saying.

23 Q (By Ms. Campbell) Was Terri in Florida

24 when you passed -- when your mother passed away?

25 A No. We were all in Florida at the time.

 

557

1 Q Is there any way you can recall your

2 specific event?

3 A Oh? My mother passing away?

4 Q Um-hmm.

5 A She passed away on March the 7th. She

6 had been admitted into the hospital. I had some

7 discussion on this with my niece. My niece is

8 saying it was --

9 MR. FELOS: Object on the basis of

10 hearsay as to what the niece was saying.

11 THE COURT: Sustained.

12 THE WITNESS: Pardon me. I had my

13 memory refreshed on the time frame. Can I say

14 that?

15 Q (By Ms. Campbell) Go ahead.

16 A It was somewhere between a week, maybe

17 two weeks, she was in the hospital. She went in.

18 She had a viral pneumonia-type infection and was

19 treated for that.

20 Q This was her last illness prior to her

21 death?

22 A Yes. She was treated for that.

23 Eventually it developed into a more serious

24 thing.

25 Q Did your mother have any life support

 

558

1 prior to her death?

2 A She was on a ventilator. She was o�,

3 ventilator. At one time she was off the

4 ventilator and she died and when we all went to

5 visit her -- and I was just talking about this

6 with my wife recently. My mother was like 80

7 years old and frail and she died ultimately of

8 kidney failure.

9 All the fluids were in her body. She

10 looked magnificent. She was there. She was off

11 the./respirator. All the wrinkles were gone

12 because her flesh had filled. Her coloration was

13 not that good, but we remarked how young she

14 looked. But for a while, I thought she was on the

15 ventilator till the end, but she was off the

16 ventilator.

17 Q Were you involved in the decision making

18 for your mother regarding the ventilator?

19 A I was not -- my brother -- I was and my

20 brother.

21 Q Were you asked to make a decision

22 whether or not to have a ventilator added to your

23 mother's care?

24 A Yes. The doctor suggested we do that

25 because of the situation when she developed

 

559

1 pneumonia that she needed assistance in breathing.

2 Q Were you part of the decision making to

3 remove the ventilator?

4 A Yes.

5 Q Did you and Terri have any conversations

6 pertaining to that decision making process

7 specifically?

8 A We had conversation. She was very

9 supportive to what I was doing. What the family

10 was doing. Her contention was that she loved her

11 grandmother and she wanted her alive. If you were

12 to describe that, that was her position.

13 Q In '85, do you recall your mother going

14 in the hospital during the year prior to her

15 death?

16 A My mother went into the hospital in '85,

17 in the fall of 1985. The time frame when that

18 would be is somewhere around the end of

19 September. She had been in the hospital prior to

20 that a number of times over the past years for

21 observation. I'm saying going back three or four

22 years.

23 Q Let's --

24 A -- of the sequence to her death when she

25 was in the hospital prior to.

 

560

1 Q Are you referring to 1985?

2 A Correct.

3 Q When your mother was in the hospital, I

4 think you said the fall of '85, were you in

5 Philadelphia or the Philadelphia area at that

6 time?

7 A We lived in Philadelphia. Correct. The

8 sequence of what happened is I sold the business I

9 had and I was in the process of moving down here

10 permanently to Florida. I spent the calendar year

11 of 1985, I spent a great amount of time here in

12 Florida. And I was in Florida and my mother got

13 ill and I went home. That is why I say this thing

14 is very vivid.

15 I went home to visit and see what was

16 going on, when she was going to be admitted into

17 the hospital, and they told me it was basically an

18 electrolyte problem. That everything was out of

19 proportion in her body. That she was only in the

20 hospital then for a few days. And I turned around

21 and flew back to Florida again. To answer your

22 question, it's a long answer, but that is the

23 answer.

24 Q Do you recall whether or not Terri and

25 Michael, where they were during that time frame?

 

561

1 A What time frame?

2 Q In the fall of 1 85?

3 A In October of '85 they were in Florida.

4 Q How do you know that?

5 A They were vacationing at my condo.

6 Q Were you in Florida at the same time?

7 A Yes.

8 Q Do you recall how Terri and Mike came to

9 Florida on that trip?

10 A By train.

11 Q How do you know that?

12 A Because I was in Florida when they

13 arrived. I know they told me they would never,

14 they were not very happy with the train, number

15 one. And they took the train back after a week to

16 Philadelphia. On route back to the train, they

17 were in an automobile accident.

18 Q Was anyone else on the train trip with

19 them?

20 A Brother Brian.

21 Q Michael's brother?

22 A Michael's brother, Brian.

23 Q Is there anything specific you remember

24 pertaining to that trip in October when you were

25 in Florida?

 

562

1 A Brian.

2 Q What is it you recall about Brian?

3 A Brian, in my opinion, of the Schiavo

4 family, Brian had all the --

5 MR. FELOS: I object. His opinion of

6 the Schiavo family is irrelevant.

7 THE COURT: Sustained.

8 A Brian was a charming man. Gushed with

9 personality. Brian went with myself and we had a

10 good time because we were on vacation. We spent a

11 lot of time in the Don Cesar in the lounge area.

12 We spent a lot of time at the pool bars.

13 Q Was Mary with you on that trip?

14 A No. I was alone.

15 Q Was your mother in the hospital in that

16 October time frame? Was that considered serious?

17 A No. She was in and out. See, I went

18 home. I went back to Philadelphia. She went into

19 the hospital and was in there for very briefly.

20 Had whatever those electrolyte problems were

21 corrected, and I went back to Florida to resume my

22 job search or business search.

23 Q When did you ultimately move to Florida?

24 A In 1986. In June. End of June 1986.

25 Q Was that after your mother passed away?

 

563

1 A My mother passed away March 7, 1986.

2 Q When did Terri and Mike move to Florida?

3 A In April. Give or take a week or two.

4 Q Did you assist them financially with

5 their move?

6 A I paid their moving expenses to Florida.

7 We paid to have two cats flown to Florida. Terri

8 had two cats, Tolly and Shane, that were living

9 with Terri and Michael. They were living in our

10 home in Philadelphia. When we moved we moved

11 they moved down and preceded us by a couple months

12 and we moved all the furniture and everything down

13 the end of June.

14 Q Was there ever any agreement concerning

15 the financing of the move?

16 A For me to pay it, but I would be

17 reimbursed.

18 Q Approximately how much did you think you

19 would be reimbursed?

20 A Close to a thousand dollars. Nine

21 hundred and pennies.

22 Q Was that reimbursed for all of the

23 furniture?

24 A That was their share of the moving

25 expense. United Vans moved us. I specifically

 

564

1 had them come in and they quoted us. It's done by

2 weight when you move. We had our house of

3 things. Here is ours. Here is theirs. So the

4 prices were segregated.

5 Q Were you employed during that time

6 frame?

7 A No.

8 Q While you lived in Philadelphia, did you

9 attend church?

10 A Did I attend church? Oh, yeah. Our

11 Lady of Good Counsel.

12 Q Did you go regularly?

13 A Every Sunday.

14 Q Did Terri go with you growing up?

15 A Yes.

16 Q After you moved to Florida, did you find

17 a new church here?

18 A We went to church at St. Johns on the

19 Beach. We did not register with the church

20 because we were not sure where we were going to

21 live. That is another story again. To answer

22 your question, yes, we went to St. Johns on the

23 Beach.

24 Q Who handled the finances in your family?

25 A I did.

 

565

1 Q When you moved to Florida, where did you

2 live?

3 A We lived in a townhouse in Tierra Verde

4 that we rented.

5 Q Why were you not living in your own

6 condo?

7 A Well, this background story again. When

8 we decided to move to Florida and informed the

9 family, we informed our children that we would

10 like to go to Florida. My son was at that point a

11 junior in college. My daughter, Suzanne, was

12 going to be graduating from high school that

13 summer. We said here is our intentions. We want

14 to do that. My son said that he would join us

15 after his senior year in Florida. Suzanne said

16 she would go with us.

17 So our initial thinking was Mary and I

18 would move into our two bedroom condo in Florida.

19 When Michael was informed of what we were doing,

20 they came back and said they would also like to

21 move to Florida. Could we let them use our condo

22 until they got on their feet. We said fine, but

23 the problem there was I was paying a very high

24 mortgage on the condo and I could not afford to

25 keep that condo for any length of time and carry

 

566

1 two rental payments.

2 My original plan was to live in the

3 condo, move to a house and sell the condo. That

4 was the original plan. So at any rate, to answer

5 your question, yes.

6 Q Were they supposed to pay you rent?

7 A I told Michael just what I said now.

8 Terri, too. I said it was costing me close to

9 $800 a month to carry that condo. That with the

10 rental for our family to live in, Mary and myself,

11 Suzanne, and eventually my son, I could under no

12 circumstances afford to pay that.

13 So the deal was roughly I'll go along

14 with that for maybe a year, but you have to split

15 the cost with me. So it was costing me 800. I

16 asked them to pay me 400 a month and consider it a

17 rental fee. He agreed to that.

18 Q Did they pay rent when they first moved

19 down?

20 A The first couple of months, because we

21 were not there, were kind of -- I didn't have a

22 double expense at that point, so there was no rent

23 charge. It was a free ride. But the rent for the

24 most part would have started in July of 1 86.

25 Was that agreement ever condensed to

 

567

1 writing?

2 A Well, no. Can I add something to that?

3 Q Yes.

4 A I just, as a family person, you don't

5 ask your family for something in writing. That's

6 why it was never done in writing.

7 Q So after you moved down, was rent being

8 paid at that time?

9 A The rent was being paid for roughly the

10 first year, but sporadically.

11 Q When you moved, did you have a job here

12 already?

13 A No. I did not. I was still looking.

14 Q What did you ultimately do from an

15 employment standpoint after you moved to Florida?

16 When did you get employment?

17 A I was not employed until '88. We moved

18 down in '86. I spent two years and they were very

19 difficult years. There is a variety of things

20 that happened in that time frame with Mary's

21 mother. It was a financial drain with no income

22 coming in. Expenses were very difficult, which I

23 don't think Mary ever knew that.

24 Q What did you do then in '88?

25 A I, through an acquaintance I had up

 

568

1 north, I started a business as a furniture

2 distributor in Florida.

3 Q How did that business go?

4 A Terrible. That was in 1989, August of

5 1989. I had to file a bankruptcy for that

6 business. It was a disaster.

7 Q What were your living circumstances then

8 after that point? During the bankruptcy time

9 frame.

10 A Well, we were living. I have to back

11 you up. We were in a townhouse in Tierra Verde.

12 At that time frame, Mary's mother had a stroke.

13 Mastectomy. A variety of illnesses. Mary began

14 flying -- her mother lived in upstate New York.

15 So Mary would fly to New York, spend a couple

16 weekends her mother, and fly back to Florida and

17 spend it with Suzanne and myself. We were living

18 in Tierra Verde.

19 What we did next is we elected to bring

20 Mary's mother down from New York. We rented a

21 home on St. Pete Beach on 55th Avenue. The reason

22 we rented that is it was a ground level home and

23 the mother was in a wheelchair so we could

24 transport her through the house and whatnot. So

25 we were in St. Pete Beach at the time.

 

569

1 The business collapsed. I literally

2 pleaded with Terri and Michael to get out of my

3 condo because I could not afford any longer to pay

4 the expenses for the house. Mary's mother since

5 had been in a nursing home. Her stay with us

6 lasted maybe three or four months. I finally

7 convinced Terri and Michael to please leave our

8 condo so we have a place to live. It's as basic

9 as that.

10 Q Were they paying you rent in that time

11 frame?

12 A They were not paying us rent. The rent

13 started in July, maybe of 1 86. Continued through

14 sporadically maybe July of '87. Then it stopped.

15 So there was '87, in the summer, there was

16 nothing. So I was paying both the rental unit

17 where we were living, plus my expenses for the

18 condo.

19 If I can add something to your thing. I

20 put the condo up for sale. I listed it with

21 Brook's Realty at Isla Del Sol. They came back to

22 me and told me they have a problem showing the

23 unit. Every time the bring a prospective

24 customer --

25 MR. FELOS: I object. Hearsay.

 

570

1 THE COURT: Have your client kind of

2 answer your question.

3 THE WITNESS: I had difficulty showing

4 the unit.

5 Q (By Ms. Campbell) That's fine. So when

6 did Terri and Mike move out of the condo?

7 A When we moved back in, which would have

8 been sometime, being somewhat vague on this,

9 sometime in 19 -- what year am I? 1989. Like in

10 the summer of 1989 they moved out. They went up

11 to some place up on 4th Street. Mary, myself, and

12 Suzanne moved back to our condo.

13 Q What were you doing employment wise in

14 February 1990 the following year?

15 A That is when Terri had her seizure. I

16 was employed by a company name of Consotech

17 Engineers in Tampa. I had just begun to work

18 after the disaster I had in August of 1989. We

19 really had no income. I fortunately had to fall

20 back on some of my -- at any rate, I got the job

21 with Consotech Engineers in Tampa.

22 Q What do you remember of February 25,

23 1990?

24 A Getting a phone call from Michael

25 Schiavo explaining something was obviously wrong.

 

571

1 I can recall calling my son who lived up in that

2 same area. Saying to my son, please go over

3 there. There is something afoul. Michael was not

4 very descriptive in what was happening. He

5 seemed -- I said I would like to have you go check

6 it out. See what was going on.

7 My son called me back. He said, "Dad

8 get to the hospital because they are taking Terri

9 to the hospital in the emergency vehicle." She

10 was having a problem. I was not aware at that

11 point, nor was Mary, of the severity of the

12 problem. It was not till we got to the Northside

13 Hospital up on 54th Avenue, somewhere up there,

14 that I found out actually the seriousness of what

15 was wrong with Terri.

16 Q Were you at the hospital during that

17 initial time frame?

18 A The first -- for me, the first couple of

19 days I remember sleeping there with the family.

20 Suzanne came in from central Florida, University

21 of Central Florida were she was going to school.

22 We slept there in the ICU Unit waiting room with

23 the Schiavo family.

24 Q What was your relationship with Michael

25 like at that time? How would you describe it?

 

572

1 A I -- let me think when that was. When

2 that happened? It was congenial.

3 Q Were you involved in Terri's day-to-day

4 care initially?

5 A At where? At Humana?

6 Q Yes.

7 A Well, when we first went in, we were

8 only there for a short period of time when Dan

9 Greco approached Mary and myself and said for -

10 MR. FELOS: I object. Hearsay.

11 THE COURT: Sustained.

12 Q (By Ms. Campbell) At the time, were

13 any -- at the time of Terri's accident, were there

14 any legal proceedings that were begun?

15 A At the recommendation of Dan -- am I

16 saying the wrong thing?

17 Q You don't need to say what Dan told you.

18 A We were advised for expediency sake it

19 would be in our better interests if Mike was

20 appointed guardian, since he was the husband and

21 he would be the clearinghouse for the decisions

22 rather than go to all the people, the parents and

23 whatnot. So we acquiesced to that suggestion and

24 Michael became Terri's guardian.

25 Q In-those-initial days, did you see --

 

573

1 was Michael there assisting with Terri's care?

2 A Yes.

3 Q Did you see, did you believe anything to

4 be lacking on Terri's behalf as reason for

5 Michael --

6 A No. The scene at that point, we had

7 people converging. There were a lot of people

8 that were interested. Can I have some water?

9 Thank you very much. The people were rallying

10 around us. We were all there. Everyone was

11 shocked at what was happening. And Michael, all

12 of us, our focus was Terri.

13 It was like a family unit. When there

14 is a problem like when my brother had his problem

15 in 1980, there were people coming from -- everyone

16 joins together when your family is united like

17 that. So we had a problem with Terri and we were

18 there, the families. The Schiavo and Schindler

19 family.

20 Q Do you recall was Terri on a ventilator

21 at that time?

22 A You know, I don't know. I am trying to

23 remember. I think she was.

24 Q Do you recall anything to assist her in

25 breathing?

 

574

1 A You are asking that question and I don't

2 know if anyone has asked me that question before.

3 I can recall visiting her in the ICU. I can

4 recall when she was isolated, in the isolation

5 room, because something was going on and they were

6 concerned about some kind of disease that was

7 contaminating everyone.

8 I remember all the beepers and

9 everything else, the tubes, but I can't honestly

10 say I can visualize her on the ventilator. Maybe

11 if you ask me later.

12 Q When you say you can visualize the

13 tubes, describe the tubes.

14 A I mean, it looked like an octopus of

15 tubes coming from her body. She had all kinds of

16 monitors. I would presume they were IV units. If

17 I remember, I think she had a tube in her

18 nostrils, that was, I think now. I'm not sure.

19 It was -- its not a very pleasant experience.

20 Q At any time, did anyone ask you whether

21 any of those tubes should be provided to Terri?

22 A Did they ask if they should be provided?

23 Q Yes.

24 A I don't think that was -- never. Not to

25 my knowledge. No. Should they be provided or

 

575

1 shouldn't they?

2 Q The question is at any time did anyone

3 ask you for a decision whether they should be

4 provided?

5 A No. I was not asked.

6 Q How long do you recall Terri being in

7 the Northside facility?

8 A March. Maybe April.

9 Q Were you there on a day-to-day basis?

10 A I was working in Tampa. I would go to

11 work in the mornings, come back, stop at --

12 initially, before I went to work I'd stop at

13 Northside. Then I'd go to Tampa. Then the back

14 leg, stop at the hospital to see Terri.

15 Q Was there any time following the

16 accident that you were involved in her day-to-day

17 care that you were not working? In other words --

18 A I don't know what you mean.

19 Q Well, I'll move to the next question.

20 When did you move from the condominium you were

21 living in then?

22 A The original condo I owned, we moved

23 there the following July of 1990.

24 Q Where did you move?

25 A We moved to Vina Del Mar. We moved to a

 

576

1 house that I rented. Let me qualify what I'm

2 saying. I made arrangements through a mutual

3 friend to rent a house.

4 Q Was your name on the lease?

5 A No. My name was not on anything at that

6 time frame.

7 Q Whose name was on the lease?

8 A Michael Schiavo. I believe, Terri.

9 Q Why was your name not on the lease?

10 A Frankly?

11 Q Yes.

12 A Because I didn't want to embarrass

13 myself with my credit rating, number one. Number

14 two, if they ever looked at my credit at that

15 point, I could not have rented anything.

16 Q So who all lived in the house at that

17 time?

18 A Mary, myself, Michael.

19 Q Was the plan for Terri to live in the

20 house?

21 A Our objective was to bring Terri -- I

22 have to back up for a second. We were having

23 problems at that time with Prudential, which was

24 her Pru care. Her carrier. We were not getting

25 the support from them to pay for the medical. I

 

577

1 had a heck of a battle with Dr. Newhart, who was

2 their physician in Tampa, who ruled on all the

3 cases whether they would be permitted or not.

4 I went to see him personally to try to

5 get him to at least get some finances from

6 Prudential. They were really hard-nosed. So with

7 that problem, and with Terri literally going to be

8 forced out of the hospital, if we knew we were

9 going to be bringing her home -- we wanted to

10 bring her home. So we rented the house in Vina

11 Del Mar.

12 Q What was the relationship between you

13 and Michael then?

14 A The relationship was good. Again, our

15 focus, everything we were doing was for Terri.

16 Q What happened with the expenses on that

17 house? Who paid for the expenses?

18 A They were divided. Michael --

19 everything was split in half. Michael paid half.

20 We paid half.

21 Q Was Michael working at the time?

22 A He had been working at Agostino's at

23 that time. When we first went into the house, I'm

24 not 100 percent sure if he was working or not.

25 Something says that he may have been working like

 

578

1 part-time. Something says he was not. I can't be

2 positive.

3 Q Who was taking care of Terri's primary

4 day-to-day needs at that point?

5 A Where was Terri now? Was she at our

6 place? I don't know what you mean by that

7 question.

8 Q Were Michael and Mary taking care of

9 Terri together?

10 A Yeah. They were continually together.

11 Q Did Terri ever come live in that house?

12 A Yes.

13 Q Later on that year, did Terri go to

14 California?

15 A She went to California for the operation

16 by a doctor called Hoshibushi. An Oriental

17 doctor.

18 Q Did you go to California with her?

19 A No. I did not.

20 Q Could you describe Terri at that time

21 frame when she went to California from a physical

22 appearance? Visual?

23 A Compared to her condition today, I think

24 she's in better condition today than she was

25 then.

 

579

1 Q Did you -- how much longer did you

2 continue to live in that house with Michael?

3 A We lived at the one house from August up

4 through, I believe February. The house that we

5 went into, the original house, the man that owned

6 that came up to me and said that his brother and

7 sister-in-law needed a home, so on and so forth.

8 MR. FELOS: Objection. Hearsay.

9 Relevance.

10 THE COURT: Overruled. Truth of the

11 voracity of the statement. Ms. Campbell, please

12 ask your witness to just answer your questions.

13 He gives us all the background. We can read

14 through all the history.

15 THE WITNESS: Yes, Your Honor. Loud and

16 clear.

17 Q (By Ms. Campbell) Did you live in a

18 second house with Michael Schiavo?

19 A Yes. Hemosita.

20 Q Was your name on that lease?

21 A My name was not on that lease. No.

22 Q Whose name was on the lease at the

23 second house?

24 A Michael's name.

25 Q Did you share the expenses in that

 

580

1 house?

2 A Yes.

3 Q Did Terri ever come live in that house?

4 A Yes.

5 Q Do you remember about how long?

6 A Sporadically. I'll answer like that. I

7 remember she was coming there. We had

8 difficulty.

9 Q What were the difficulties?

10 A Well, with her, if I remember correctly,

11 she had some problems where there was concerns

12 about her care. We could not care for her.

13 Q When you say sporadically, I don't

14 understand.

15 A She'd be okay for one day and the next

16 day there's a problem.

17 Q And she'd have to go to the hospital?

18 A She was winding up in the hospital.

19 Q So ultimately then, did Terri go live

20 somewhere else?

21 A From there she went into the nursing

22 home. Yes.

23 Q Was there a time that you and Michael

24 separated? Moved apart?

25 A Well, correct. We were at that Hemosita

 

581

1 address and we moved into Isla, Mary and myself.

2 I believe that was in 1 92. That would have been

3 in May of '92.

4 Q Was it an amicable separation between

5 you?

6 A It was amicable. Other than that, I

7 don't know if I can -- at that time, it was

8 amicable.

9 Q Were you involved in fund raisers for

10 Terri's care?

11 A Yeah. I was kind of like behind the

12 scenes. See, I was involved, but there were other

13 people more prominently involved than I was.

14 Q Did you provide any business, accounting

15 assistance, for Michael in that regard with the

16 fund raisers?

17 A No. I did not.

18 Q Were you aware of how much money was

19 collected through the fund raisers?

20 A There was money coming in from a variety

21 of different sources. I had people I knew sending

22 me checks from various parts of the country.

23 MR. FELOS: I believe the question was

24 did he know how much money he raised. The answer

25 is not responsive.

 

582

1 THE WITNESS: I'm embellishing.

2 Q (By Ms. Campbell) What type of fund

3 raising was being provided?

4 A Prudential nationally had a fund raiser.

5 There was fund raisers held on St. Pete Beach.

6 There were cake sales. The media was even

7 promoting, collecting money for Terri.

8 Q Are you familiar with what happened to

9 the money?

10 A No. I'm not familiar at all.

11 Q Do you know where the money was kept?

12 Was it kept in a bank?

13 A The money was with First Union.

14 Q At the time you and Michael separated,

15 was Michael seeing other women?

16 VIA Michael was seeing a girl by the name of

17 Cindy.

18 Q How did you feel about that?

19 A At that juncture, I felt that Michael

20 was more than likely going to get ahead with his

21 life. I thought that he would ultimately be

22 seeking a new life with another woman. To resume

23 his life after what happened to him. A logical

24 thing.

25 MS. CAMPBELL: From a time sequence

 

583

1 standpoint, it's clear we are going to be going

2 longer. I would suggest a break at some point in

3 time and then resume his testimony after lunch.

4 THE COURT: Obviously, we will need to

5 do that, I have an appointment over the noon

6 hour. We can go until 5 minutes to 12:00.

7 MS. CAMPBELL: Okay. Thank you.

8 Q (By Ms. Campbell) Was there a

9 malpractice litigation instituted in that time

10 frame? We're talking May '92.

11 A Yes.

12 Q Were you a named party in the

13 malpractice suit?

14 A No.

15 Q Were you involved at all in the

16 malpractice action?

17 A Behind the scenes.

18 Q What do you mean behind the scenes?

19 A I was meeting with the attorney at the

20 time on numerous occasions. Mary met with the

21 attorney all the time. I met with him

22 periodically. Usually to discuss things where he

23 had some difficulties.

24 Q Were you there during the trial?

25 A Sporadically. I was working.

 

584

1 Q Were you there when the verdict came in?

2 A Yes.

3 Q Do you recall who else from the family

4 was there?

5 A Mary. Our family was there.

6 Q What were you doing at the time when the

7 verdict was brought in?

8 A I was me and Bill Schiavo who were

9 writing down the numbers that this Judge Federico

10 was saying. It was as confusing as anything. He

11 quoted a number and it was unusual. I thought a

12 very unusual decision. It was hard to follow.

13 Q What did you just say?

14 A It was hard to follow it mathematically.

15 Q Thank you. Did you ever have any

16 conversations with Michael as to you receiving any

17 part of money from any award?

18 A The conversations mostly were with my

19 wife where he was making and telling her that when

20 he received his personal award money that he was

21 going to share that with us. I personally had a

22 conversation with Michael Schiavo at the Isla Del

23 Sol residence. That would have been on a

24 Thanksgiving Eve that he and I were having dinner

25 at this residence:

 

585

1 We were discussing the impending award

2 money and the fact that he was going to share that

3 with us, which would have paid me back all the

4 money I fronted him over the past couple of

5 years. So I viewed that settlement at the time

6 that that was going to resolve most of Michael's

7 financials.

8 I laid out a lot of money. I thought he

9 was going to pay me back, plus I expected him to

10 share in the award. And things were difficult

11 then. As a family, we struggled. Michael was

12 struggling. It was a cheap reward for Terri's

13 condition.

14 Q What do you mean by share in the reward?

15 What were your plans for the money?

16 A He was anticipating a personal award,

17 and the therapy at that time -- they were

18 anticipating a major multimillion dollar award for

19 Terri. Michael was talking primarily about his

20 personal award that, since we were going through

21 all this stuff together, I'll share that with

22 you. Maybe not those words. but interpreting

23 that.

24 Terri's money was -- God. They did a

25 study. I'm sorry, Your Honor for embellishing.

 

586

1 Q (By Ms. Campbell) I don't think you

2 need to go into the study.

3 A Okay.

4 Q Was there ever a time that you or

5 Michael were talking about Terri's money?

6 A Terri's money, the anticipation was that

7 there was going to be a tremendous amount of

8 money. The thought was there would be a home

9 provided for Terri and Terri would have all the

10 medical facilities in that normal household and

11 Mary and I would essentially live there with Terri

12 and look after her. That was the master plan.

13 Q Was that the master plan of Terri's

14 money or part of the money Michael received?

15 A Terri's money would be utilized to buy

16 the house that would provide for her care.

17 Q Do you remember any incident

18 specifica