2
1 APPEARANCES :
2 GEORGE J. FELOS, ESQUIRE
CONSTANCE FELOS, ESQUIRE
4
5 Attorneys for Petitioner
6
PAMELA CAMPBELL, ESQUIRE
7 The
8 Suite 403
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
4
Attorneys for Petitioner
5
PAMELA CAMPBELL, ESQUIRE
6 The
7 Suite 403
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
Attorneys for Petitioner
PAMELA CAMPBELL, ESQUIRE
The
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
4
5 Attorneys for Petitioner
PAMELA CAMPBELL, ESQUIRE
The
8
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
Attorneys for Petitioner
PAMELA CAMPBELL, ESQUIRE
The
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
4 Attorneys for Petitioner
5
PAMELA CAMPBELL, ESQUIRE
6 The
7 Suite 403
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
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
10 family.
11 They moved to
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
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
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
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
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
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,
17
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
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
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
2 Q Is that a suburb?
3 A Suburb of
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
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
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
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
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
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
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
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
17
18
19 Hills. One brother li�ued in
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
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
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
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
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
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
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
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
16 first moved to
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
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
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
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
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
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,
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
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
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
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
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
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 --
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
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
8 A She went to
9 Q Where were you in
10 experimental treatment?
11 A We went to the
12 at
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
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
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
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
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
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
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
19 A Yes. I did.
20 Q Where did Terri move to?
21 A
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
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
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
7 that?
8 A Correct.
9 Q Then in '85, the spring of '85, did you
10 come back to
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
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
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
25
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
11 true that you moved to
12 A Yes. Yes. I'm sorry. I forgot about
13 that one.
14 Q You moved to
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
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
3 Q How long did you live in
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
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
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
16 A That would have to be. Yeah.
17 Q When you moved from the condo to
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
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,
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,
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
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
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
8 Q Approximately where is that located?
9 A It's, I guess close to northeast
10
11 Q Thank you. Have you lived in the
12
13 A The suburbs of
14 my life.
15 Q Mr. Schiavo, what is your educational
16 background?
17 A I graduated high school. I graduated
18 from
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
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
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
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
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.
107
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
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.
115
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
116
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-?--
118
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
120
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
135
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.
136
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
137
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.
138
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
139
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.
140
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
141
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.
142
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
143
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.
144
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?
145
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
146
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.
147
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_
148
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
149
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.
150
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?
151
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
152
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
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
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
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
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
189
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?
190
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
191
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
192
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
193
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
194
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
195
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
196
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
197
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
198
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
199
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
200
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.
201
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
202
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.
203
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
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
205
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,
206
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
208
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
209
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
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
16 Q Is that when you also received your
17
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.
281
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
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
21 and wanted to explore some of the -issues a little
22 deeper in
23 randomly in
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
2 last year. Also done similar work in North
3
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
305
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
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
16 would not want anyone to take care of him, and an
17
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
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.
310
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
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
3 might have gotten $35. If you were in
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
11 A I think one was in
12 was in
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
313
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
314
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
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.
332
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.
333
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
334
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.
345
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
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
11 Q How were all her bills paid during this
12 time frame?
13 A When we moved to
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
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
354
1 Dr. Yinghling to
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
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
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
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?
360
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.
362
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.
368
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
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?
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
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
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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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 specifically or argument or disagreement between
19 you and Michael over these money issues?
20 A It happened at the nursing home at Sabal
21 Palms. Yes.
22 Q Describe that incident.
23 A I will be embellishing again. It
24 revolves around there was promises made about
25 Terri's care.
587
1 MR. FELOS: Your Honor, I believe the
2 question was to describe the incident and the
3 question is -- the answer is unresponsive.
4 THE COURT: Sir, if you can just -- your
5 lawyer knows what she wants to get out by way of
6 evidence. So following her questions, be
7 responsive. If she need;: more information, she
8 will ask. If you need to explain your answer --
9 THE WITNESS: :t understand.
10 Q (By Ms. Campbell) Describe the incident
11 in Terri's room.
12 A Michael and I had a confrontation.
13 Q What happened in the confrontation?
14 A I asked Michael about Terri's medical
15 and neurological care and what he was going to
16 provide. Also, I asked him about the money he had
17 promised to repay us.
18 Q What was Michael's response?
19 A Michael told me that he was not repaying
20 the money. Forget the money. He said he did not
21 have any money. He said that as far as Terri was
22 concerned, it is his wife, he will make all the
23 decisions.
24 Q Was there any ;physical display of anger
25 or emotions?
588
1 A Michael had some books that he threw
2 across the room, pushed a table, and got up.
3 Started coming toward me. Mary jumped in front of
4 him and I thought we were going to get into a good
5 donnybrook.
6 Q What happened after that?
7 A Then Michael said that he was going to
8 have his, have us banned from the nursing home.
9 Mary was kind of dragging me out of the room down
10 the hallway. Michael ran down the hallway and
11 said something about an attorney or something.
12 Q Was there something as far as medical
13 care or treatment that you believe Terri should be
14 receiving that she was not?
15 A What precipitated my feelings was there
16 was a doctor that came in that followed up from
17 the operation in California. Dr. Yinghling. Dr.
18 Yinghling came to Mediplex. He examined Terri.
19 That evening Dr. Yinghling, we took him out to
20 dinner. We wined him. Dined him. Dr. Yinghling
21 was to explain he had seen --
22 MR. FELOS: Objection. It's hearsay
23 expressing the opinion of Dr. Yinghling.
24 THE COURT: Also something from outside
25 of court that he intends for us to believe. It is
589
1 hearsay. Sustained.
2 Q (By Ms. Campbell) Did you receive hope
3 from Dr. Yinghling?
4 MR. 'ELOS: Same objection.
5 THE COURT: Overruled.
6 A It was very encouraging, Terri's
7 prospects. The next thing was to have Terri taken
8 to hands Hospital in Gainesville. We were
9 ecstatic over that, Mary and I were. The
10 difficulty there is we had no money, and at the
11 time, the award had not come through yet.
12 When Or. Yinghling came in, we were
13 living in Hemasita. I confronted Michael. We
1.4 didn't have any money then, but when the money
15 came in, it was going to pay for Terri's moves to
16 go up to Shands Hospital. it was kind of all
17 agreed upon.
18 When the money came in and I confronted
19 Michael at the nursing home, I got a negative
20 answer. That. really upset me because I was very,
21 very upset at that.
22 Q Did Michael say anything to you
23 regarding your ability to see Terri?
24 A He was going to have us -- very briefly,
25 yes, he did.
590
1 Q What did he say?
2 A T1at he was going to have us banned from
3 the nursing home.
4 Q Did you continue to see Terri after
5 that?
6 A Absolutely.
7 Q Were you able to receive medical
8 information pertaining to Terri after that?
9 A No.
10 Q Were you ever denied information
11 pertaining to Terri's medical condition?
12 A Yes.
13 Q Did Terri remain in that nursing home
14 much longer?
15 A Sabal Palms? Yes.
16 Q Was there ever an incident regarding
17 Michael or that you heard Michael was not going to
is treat an infection?
19 A Yes.
20 Q Could you give me some information about
21 that?
22 A The information was that we had retained
23 Jim Sheehan as an attorney because Michael had
24 sent Mary and I a threatening letter from another
25 attorney where Michael was demanding, I think $600
591
1 he said we owed him from when we lived together.
2 I forget this person's name. Threatened to sue or
3 take legal action with Mary and myself.
4 That was like the straw that broke the
5 camel's back. I got really ticked off. I wound
6 up with Jim Sheehan. I explained the. money thing
7 with Michael. Jim Sheehan felt at the time that
8 Mike was liable for it. Then this incident came
9 up with Terri in the nursing home. We were
10 petrified when we heard Michael would not treat
11 Terri for infection and we were told she would
12 die.
13 Q Did you seek to have Michael removed as
14 guardian at that time?
15 A Absolutely.
16 Q Was that action successful?
17 A Well, no.
18 Q Why do you think it was not successful?
19 A Why was it not successful? That was the
20 report given by the guardian ad litem, a John
21 something that came back. After this whole thing
22 was investigated by people from the court who
23 apparently felt that we were well within our
24 rights to go for the guardianship, he comes back
25 with this letter saying Michael is a wonderful
592
1 story. Judge Penick closes his books and walks
2 out of the courtroom.
3 Q Was that litigation financially
4 expensive for you?
5 A We paid for it. We have been financing
6 all the litigation.
7 Q How often do you visit Terri now?
8 A I try to get there once a week.
9 Sometimes if we are sick or Mary works -- and she
10 works at, in the retail business -- sometimes she
11 works Saturdays. Sometimes she works Sundays. We
12 try to do it weekly to answer your question.
13 Sorry, judge.
14 MS. CAMPBELL: Now may be a good place
15 to stop because we go off to a new section.
16 THE COURT: You know your questions far
17 better than I.
18 MR. FELOS: Your Honor, on scheduling,
19 we do have some rebuttal witnesses to call. I
20 would just like to tell them to be here tomorrow
21 rather than this afternoon because it does not
22 look like, with Mr. Shindler's [sic] continued direct,
23 cross, and I believe there are a couple other
24 witnesses that the respondents have, I wanted to
25 inform the Court that if we did get through a
593
1 little quicker, breaking a little early.
2 THE COURT: Mr. Felos, my hope is to
3 conclude the respondents' case-in-chief today. If
4 we succeed in doing that, then tomorrow we will
5 get to your rebuttal. So we would not get to
6 those witnesses.
7 MS. CAMPBELL: I may have one minor
8 problem. One of my witnesses is snowed in in
9 Philadelphia. She was supposed to be here
10 yesterday. The airports were closed. When I
11 talked to her last evening, she thought she would
12 be in Tampa at 3:00, if there were no delays, but
13 they were expecting delays. She's a very brief
14 witness.
15 THE COURT: If we have to take her
16 tomorrow morning, we will. We have Mr. Schindler
17 and Mr. Pearse.
18 MS. CAMPBELL: And Jackie Rhodes.
19 THE COURT: So I don't anticipate those
20 witnesses and the remainder of Mr. Schindler's
21 testimony, I don't think we'll be through early
22 today. So with that caveat, you might have your
23 witnesses come at like 9:30 tomorrow morning. We
24 will not get to them before then. If this lady
25 can't come at all, we will sit around and talk and
594
1 wait. Let's break till quarter after 1:00 by my
2 watch. I now have 11:58.
3 THE BAILIFF: Court stands in recess.
4 THE COURT: Mr. Schindler, sir, you are
5 still on the witness stand through the noon hour.
6 I do not want you talking or hearing anything
7 about this case. My suggestion might be that you
8 have lunch with yourself. You guys can talk about
9 anything you want to, but please don't sit close
10 to Ms. Campbell or your wife and hear what they
11 are discussing. Technically, you are still on the
12 witness stand. Fair enough?
13 THE WITNESS: Certainly.
14 (THEREUPON, A RECESS WAS HAD FROM 11:58 -
15 1:15 AND THE FOLLOWING PROCEEDINGS WERE HAD.)
16 THE BAILIFF: All rise. Circuit court
17 is back in session.
18 THE COURT: Be seated, please. Ms.
19 Campbell, are you ready to proceed. All set?
20 MS. CAMPBELL: All set.
21 THE COURT: Mr. Schindler, you are still
22 under oath, I remind you.
23 THE WITNESS: Yes.
24 THE COURT: Please proceed.
25 Q (By Ms. Campbell) Where is Terri now?
595
1 A At Palm Gardens.
2 Q In a nursing home?
3 A Yes.
4 Q How often do you visit Terri?
5 A We try to get there weekly.
6 Q When was the last time you saw Terri?
7 A Sunday.
8 Q Do you usually go by yourself or with
9 you wife?
10 A Mary.
11 Q You go with Mary?
12 A With Mary.
13 Q You saw the video yesterday of Terri and
14 Mary. Is that -- were you there when the video
15 was made?
16 A I walked in with my granddaughter after
17 they had completed the video.
18 Q In your seeing the video yesterday, did
19 you watch that?
20 A I didn't really watch it all.
21 Q When you and Mary go to the nursing
22 home, please describe what occurs when you walk
23 into Terri's room or when you see Terri in the
24 hallway.
25 A Normally, what will happen is that Mary
596
1 will go up and usually say "Terri, its mommy."
2 And at that time, Terri -- the TV could be on in
3 the room or whatever. She will say, "It's
4 mommy." Then Terri will start to smile. She will
5 have a broad smile on her face. Then the smile
6 will turn into tears. She will start to cry.
7 Sometimes like a sob. Mary will say,
8 "Everything is going to be fine, Terri.
9 Everything is going to be fine now. Mommy is
10 here." And invariably, within a short period of
11 time, Terri relaxes again. And there are times
12 where that will happen again in the same visit and
13 there are other times where it does not happen
14 again in the same visit.
15 Q Are there any other things that you
16 observe on your visits with Terri?
17 A Well, when I talk to her -- usually it's
18 Mary first because I don't have the same impact
19 with her. I kind of tease her a little bit
20 because she was never fond of any athletic
21 events. I tease her and tell her, geez, you're
22 missing the baseball game. Something along those
23 lines.
24 And a couple of times she like reacted
25 where it was like she knew exactly what I was
597
1 saying and I felt there was some type of a
2 recognition there. She would have like a slight
3 smile or -- there was one time that was eerie as
4 anything. She followed me around that bed when I
5 went in there with Mary. She started tracking me.
6 Q What do you mean by tracking?
7 A With her eyes. From the one side. As
8 she was doing it, I was going like that
9 (indicates) snapping my fingers for Mary to
10 observe that. But it was scary. She was looking
11 at me and I walked around the bed. I was on the
12 other side. She was on the other side looking at
13 me.
14 Q Are there any other types of movement
15 that you think that you witnessed Terri do?
16 A Nothing I would put any significance to
17 other than the thing with Mary is, its so real
18 when her mother --
19 Q What do you mean by that?
20 A It's a mother consoling a child. The
21 laugh, the mother is there. And then the cry
22 probably, I assume she is expressing her
23 discomfort of being in the situation she is in.
24 That is my interpretation. You have the laugh.
25 Thank God you're here, mom. The cry. Look at
598
1 me. And then, I'm at ease. I'm relaxing. So
2 that is how I interpret that.
3 Q Has she ever made any reactions to you
4 -- do you tell her jokes?
5 A Just frowns, because they are bad
6 jokes. Nothing of any great significance.
7 Q Is there any difference in the number of
8 reactions or intensity of the reactions now versus
9 when the incident first occurred?
10 A Dramatically different.
11 Q Can you describe what is the dramatic
12 difference?
13 A You can see almost on a regular basis
14 when we will go visit her. We are expecting this
15 reaction from Terri. Initially, when we would see
16 her, there was nothing. Little to no reaction.
17 We were doing everything at that time to try to
18 provoke a reaction. We were not getting
19 anything.
20 Now, we are really not doing a heck of a
21 lot and we are getting the reaction. It's been
22 over the period of the past couple of years. The
23 consistency of it on a regular basis and
24 increasing in an upward trend.
25 Q Did Terri talk to you regarding any end
599
1 of life decisions prior to her accident?
2 A No. She did not.
3 Q You said she expressed support to you
4 regarding your mother and during the time with
5 your mother, her grandmother. Were there any
6 discussions there specifically pertaining to any
7 life support issues?
8 A After the issue was said and done, you
9 know, you think back on the situation. A couple
10 times I said to her about gram. Terri felt bad
11 for her. What she was doing. She was very
12 reenforcing [sic] for me. Daddy, you did everything you
13 should do. It's your mother. Its grandma. That
14 type of thing.
15 MS. CAMPBELL: Thank you. No more
16 questions at this point.
17 THE COURT: Thank you. Cross-
18 examination?
19 CROSS - EXAM I NAT I ON
20 BY MR. FELOS:
21 Q Mr. Schindler, you don't want your
22 daughter to die; do you?
23 A Pardon me?
24 Q You don't want your daughter to die?
25 A No.
600
1 Q You are spending this money and pursuing
2 this litigation because you don't want your
3 daughter to die?
4 A Correct.
5 Q Haven't you said before that you would
6 do whatever it takes to keep your daughter alive?
7 A When did I say that?
8 Q My question is, have you said that? You
9 would do whatever it takes to keep your daughter
10 alive?
11 A I very probably would have said that.
12 Q Would you lie to do that?
13 A Would I lie?
14 Q Um-hmm.
15 A It would depend. Possibly.
16 Q Um-hmm. Regarding the video at the
17 nursing home, did you receive information within
18 the last week or two that the nursing home would
19 not permit you to make a video of Terri?
20 A Did I? Qualify that. In what way?
21 Q Did you receive any information within
22 the past two weeks that the nursing home would not
23 allow you or someone on your behalf to take a
24 video of Terri?
25 A On Sunday when I was there with my
601
1 wife --
2 Q Um-hmm.
3 A -- I was informed that we could not take
4 videos.
5 Q And in fact, didn't you lie to the
6 nursing home personnel and say that this video was
7 being taped for memories and not for court
8 purposes?
9 A I said I'd like to take a video -- that
10 was on Sunday -- for memories of my daughter and
11 not for a court purpose.
12 Q Let's talk about your mother's passing.
13 I believe that you testified on direct examination
14 that your mother was in the hospital about two
15 weeks before she died?
16 A I very probably did. Yes.
17 Q In your deposition I took on August
18 August 12, 1999, on Page 16, Line 4, I asked you a
19 question. You mentioned your mom died in March of
20 1986 and she was in the hospital about a month
21 before she died?
22 Answer. Roughly. Yes.
23 Was your mom, is it more accurate to say
24 your mom was in the hospital for a month before
25 she died and not two weeks?
602
1 A No.
2 Q Can you explain why you answered yes to
3 this question at your deposition?
4 A Read that question again, please.
5 Q Yes. Question. You mentioned your mom
6 died in March of 1986 and she was in the hospital
7 about a month before she died?
8 Answer. Roughly. Yes.
9 A In my recollection of it as I'm sitting
10 here right now it's two to three weeks. I may
11 very well have misunderstood your question when
12 you said a month or so. I may have misunderstood
13 that to mean in February, which would have meant
14 the month of February. She died in March.
15 Q So she may have entered the hospital in
16 February then?
17 A Yes.
18 Q You also stated that your mom had a, and
19 we heard this from Mrs. Schindler, that your mom
20 had a hospitalization in October of this year?
21 A Yes.
22 Q A few months before the hospitalization
23 in which she died; is that correct?
24 A Yes.
25 Q Now back on Page 16 of your deposition,
603
1 I asked you, right after the question I asked you,
2 question. You mentioned your mom died in March of
3 1986 and she was in the hospital about a month
4 before she died?
5 Answer. Roughly. Yes.
6 Question. Other than that
7 hospitalization, had she been in the hospital
8 before for any other reason?
9 Answer. She had been in, I'd say a
10 number of times for observation, and years ago she
11 had her gallbladder removed.
12 Question. Were those other
13 hospitalizations close to March 7, 1986?
14 Answer. They were years before that.
15 Can you explain, sir, your testimony
16 today in which you say your mother was
17 hospitalized in October of 1985, when a few months
18 ago you said her hospitalization prior to the one
19 in March was years before?
20 A Very simply. After we had the
21 deposition and I went home and I got to thinking
22 about that, I remembered vividly when my mother
23 was in the hospital that my brother was admitted
24 to the hospital for emergency appendectomy.
25 I was with my mother visiting her in her
604
1 room. My niece called me on the phone and said
2 daddy is going from the house to the hospital on
3 an emergency basis and there is something wrong
4 with him. I went from my mother's room down to
5 the emergency ward. I met my brother. He was
6 admitted. He was examined. They told me, as a
7 result of the examination, that he needed an
8 emergency appendectomy.
Q So you are saying that by remembering
10 your brother's situation, it triggered your mother
11 being in the hospital?
12 A I'll continue. At the time, I remember
13 it vividly because we had to select a doctor to
14 perform the operation. The doctor I wanted to
15 have perform it was not available. I had another
16 doctor who was unknown. I questioned the staff.
17 After remembering this, I called my niece. I
18 asked her about this time her father went into the
19 hospital. She said that is when grandma was in
20 there. Don't you remember? She had a problem and
21 was in there for a couple days back in October or
22 September. I said, my gosh, I remember it.
23 Q So you were relaying the recollection of
24 your niece?
25 A Well, my mother and my brother -- my
605
1 brother was not in the hospital when my mother was
2 dying. So it was a totally separate -
3 Q So as I understand this, you are
4 testifying now that your brother and mother were
5 in the hospital at the same time?
6 A Absolutely correct.
7 Q And you saw your brother in the
8 hospital?
9 A Yes. I did.
10 Q Were they in the same hospital?
11 A Yes. They were.
12 Q You were involved in selecting a doctor
13 for your brother, as I recall?
14 A That's correct.
15 Q And that hospitalization was in October
16 of 1985? Isn't that what you testified?
17 A It was in the period of the end of
18 September, September beginning of October 1985.
19 Q Didn't you testify earlier on direct
20 examination that you were in Florida at the time
21 in October of 1985?
22 A Correct.
23 Q That you found out your mother was in
24 the hospital while you were in Florida?
25 A That is correct.
606
1 Q So --
2 A Let me rephrase that. I was in Florida,
3 and when I was in Florida, I was informed my
4 mother was going in the hospital. I flew back to
5 Philadelphia when my mother was admitted to the
6 hospital. That was sometime the end of September.
7 In that area. That time frame. And my brother
8 was brought in while she was in there for his
9 emergency operation.
10 Q You testified before that your mother's
11 ventilator was removed?
12 A At the very end it was removed.
13 Q Did your mom participate in the
14 decision? Let me ask it this way. Isn't it true
15 that you and your brother made the decision to
16 place your mother on a ventilator?
17 A Correct.
18 Q Now regarding Terri, you have testified
19 today that you made decisions, you and your
20 brother made a decision, to put your grandmother
21 (sic) on a ventilator and that Terri was
22 supportive of your decision; is that correct?
23 A Correct.
24 Q I wrote this down during your
25 examination. I believe you testified that when
607
1 you informed Terri of the decision and she was
2 supportive, she said to you that she loved her
3 grandmother and wanted her alive. Do you recall
4 testifying to that on direct examination?
5 A Not really. Maybe tomorrow I will. But
6 she loved her grandmother. I know I said that.
7 Q You don't remember what you said this
8 morning? That is your testimony.
9 A I don't remember some of it. I don't
10 remember word for word.
11 Q Let me rephrase. Do you remember
12 testifying this morning to the substance of this
13 statement that Terri told you when you informed
14 her of the decision to ventilate your grandmother
15 (sic) that she loved her grandmother and wanted
16 her alive? Do you remember testifying this
17 morning to that effect?
18 A Along those lines, yes.
19 Q All right. Along those lines. I asked
20 you about this conversation regarding this decision [sic]
21 to put your mother on the ventilator and relaying
22 it to your family and Terri giving her support.
23 Page 19, Line 18. Your deposition. This is what
24 you said.
25 I can relay to you -- I said, as best
608
1 you can, as best you can, can you relay to me that
2 conversation and the circumstances?
3 Answer. I can relay to you generally
4 they were very supportive because I was going
5 through a very difficult time with my mother and
6 they were extremely supportive. That is my
7 recollection.
8 Question. Is it accurate to say you and
9 your brother had made the decision and you
10 communicated it to your family and they were
11 supportive of you?
12 Answer. Yes.
13 Question. Do you have any current
14 recollection of what, of Theresa saying anything
15 during that conversation?
16 Answer. Not verbatim. I can recall her
17 being very comforting to me at the time because
18 she, Terri, is a very sympathetic girl. She is
19 very deep when it came to feelings. She was very
20 supportive.
21 Mr. Schindler, I asked you to tell me if
22 Terri said anything. If you could remember
23 anything specifically about what Terri said. You
24 said you could not recite it verbatim. You had a
25 general recollection. You did not mention
609
1 anything about Terri telling you she loved her
2 grandmother and wanted her alive. 10
3 My question is, why didn't you tell me
4 that when I asked you that question at your
5 deposition? Why didn't you rely Terri's
6 statement?
7 A I remembered it vividly this morning. I
8 may not have remembered it vividly in your
9 presence in the deposition.
10 Q Would you agree usually, as times goes
11 on, memories fade and most people remember more
12 vividly closer to the event than farther from the
13 event?
14 A It depends.
15 Q You would not agree with that as a
16 general rule?
17 A Not totally.
18 Q Not totally, but generally?
19 A I'm not going to say yes or no. I am
20 not going to debate it.
21 Q I'm trying to find out your opinion.
22 A In some cases, yes. In some cases, no.
23 Q Did you prepare at all for your
24 deposition?
25 A Did I repair in what fashion?
610
1 Q Well --
2 A I read through my notes. Yes. I
3 prepared.
4 Q You generally had an idea what I was
5 going to be asking you about; didn't you?
6 A Did I know what you would ask me about?
7 I assumed.
8 Q You assumed I would ask you questions
9 about Terri's views about life support. If you
10 had any conversations with her. Didn't you assume
11 I would be asking you those type of questions?
12 A No. What I did in preparing for this
13 was mostly remember the events that led up to this
14 situation. I was not really concerned about the
15 questions you were going to ask me.
16 Q So is it your testimony that in
17 preparing for your deposition, did you not assume
18 that I would ask you if you had any conversations
19 with Terri which might shed light on her intent?
20 A I said before, I assumed you would ask
21 me questions. My preparation was primarily not
22 the questions you would ask me.
23 Q What was your preparation?
24 A I just told you.
25 Q Can you tell me again?
611
1 A It was mostly about the facts of Terri.
2 Q Isn't this a fact of Terri, what she
3 might have said to you when her grandmother died?
4 A That is why I remembered.
5 Q Why didn't you remember it --
6 A Because I did not prepare in the same
7 fashion.
8 Q Do you believe that Terri's statement to
9 you about your grandmother (sic) shed any light on
10 Terri's intent regarding removal of artificial
11 life support?
12 A I believe that statement is consistent
13 with Terri, with her demeanor and the way Terri
14 that been from a young lady on.
15 Q Very supportive and comforting?
16 A Yes.
17 Q My question was, do you believe that
18 Terri's statement that you relayed, that you said
19 was told to you at the time she was informed of
20 your decision about the grandmother's ventilator,
21 do you think that statement is relevant at all to
22 what Terri's intent may be regarding her own
23 wishes?
24 A I think that would have to be
25 interpreted by other people.
612
1 Q So you have no opinion about that?
2 A It depends on the interpretation.
3 Q I'm asking your interpretation.
4 A I have no interpretation of that.
5 Q So you have no, you have no opinion.
6 Why -- did you have any idea why your attorney
7 asked you that question?
8 A My attorney asked me what question?
9 Q The question regarding what Terri told
10 you in response to your grandmother's (sic)
11 ventilator?
12 A That was a normal part of the questions
13 she was asking me today.
14 Q So you have no opinion as to whether
15 that question touches on Terri's own intent? Is
16 that your answer --
17 A No.
18 Q -- if you never had a conversation with
19 Terri regarding the question of Terri's intent or
20 what Terri's intent may be --
21 A No.
22 Q -- regarding artificial life support?
23 A No.
24 Q So obviously, you would not fit, since
25 have you answered no, you would not fit or
613
1 characterize the conversation you had with Terri
2 regarding your grandmother's (sic) ventilator as a
3 question regarding a conversation relating to
4 Terri's intent?
5 A I didn't make that statement in order to
6 put it in any classification. I made the
7 statement because that is what happened.
8 Q That was not my question, sir.
9 A I don't understand your question,
10 Mr. Felos.
11 Q That is appropriate, if you don't
12 understand.
13 A I don't know where you are heading. Let
14 me put it that way.
15 Q You don't have to know where I am
16 heading. If you don't understand, please tell me
17 and I'll rephrase it for you. You stated you
18 never had a discussion with Terri regarding the
19 issue of what Terri's intention might be regarding
20 removal of artificial life support.
21 From your answer no to that question,
22 can we assume that you do not believe the
23 conversation with Terri regarding her grandmother
24 has anything to do with what Terri's intent may
25 be?
614
1 A I want to back you up. Please read the
2 question again. The part where I said no. That
3 is related to my, to the next part of that.
4 MS. CAMPBELL: Page?
5 MR. FELOS: Forty-one.
6 Q (By Mr. Felos) On Page 41 of your
7 deposition we were talking about the question of
8 what Terri's intent might be regarding removal of
9 life support. I asked you, question, and you
10 never had a discussion with Terri regarding this
11 issue?
12 Answer. A direct conversation?
13 Question. Right.
14 Answer. Not that I recall.
15 Now can I assume from that answer in
16 your deposition and your testimony today, that
17 your conversation with Terri regarding her
18 grandmother's ventilator was not relevant to the
19 question of what Terri's intent might be regarding
20 removal of life support?
21 A I'm having a difficult time trying to
22 understand that question. I really am. I am not
23 making a connection. A correlation.
24 Q I guess what I'm getting at, sir, is in
25 your deposit-ion-I--asked you in two or three
615
1 different places tell me what Terri said. Did you
2 have any discussions with her regarding what her
3 intent might be. Tell me specifically what she
4 said regarding her grandmother. And you didn't
5 tell me this conversation that you had. You never
6 told me in your deposition the statement she loved
7 her grandmother and wanted her alive. I am trying
8 to understand why that was?
9 A I'm trying to tell you that at that
10 point in time, it did not come into my memory. It
11 came in after the deposition.
12 Q You mentioned that you attended various
13 colleges. Have you received a degree?
14 A I said I had no degree.
15 Q You mentioned that you are working as
16 a -- what is your position at this time?
17 A A systems designer.
18 Q How long have you been working as a
19 systems designer?
20 A Since 19 -- when Terri had her seizure.
21 1990.
22 Q Well, your current position that you are
23 holding now, when did you start that?
24 A Just recently.
25 Q Was there a gap? How long was it before
616
1 you had another full-time job? How long
2 previously was it?
3 A I worked at a company prior to that for
4 about a year-and-a-half.
5 Q What was the amount of time between that
6 job where you worked for another company for a
7 year-and-a-half and your current position?
8 A Maybe a month, four or five weeks.
9 Mr. Schindler, is it fair to say you
10 have no knowledge or information about what Terri
11 might want under the circumstances she finds
12 herself in?
13 A Say the question again, please.
14 MR. FELOS: Could you read the question
15 back?
16 (THEREUPON, THE LAST QUESTION WAS READ BACK
17 BY THE COURT REPORTER.)
18 Q (By Mr. Felos) That is regarding
19 removal of life support.
20 A I have no information about what she
21 would want? That is the question?
22 Q Yes. That was the question.
23 A No.
24 Q Now isn't it true, Mr. Schindler, and
25 I'm going to, this is a hypothetical question,
617
1 that even if your daughter, Terri, had expressed
2 her intent not to be kept alive artificially, that
3 would not change your position in this case-
4 A Can I give you a hypothetical answer?
5 Q You need to answer my question.
6 A Well, hypothetical, hypothetical is
7 what? A synonym for ridiculous.
8 Q Sir, you don't have the opportunity to
9 comment on my question. My question is simple.
10 If your daughter had expressed her intent not to
11 be kept alive artificially, would that change your
12 position in this case?
13 A It would depend on who she expressed her
14 intent to, as a candid answer, hypothetically.
15 Q Well, let's say hypothetically Terri
16 told her husband I don't want to be kept alive
17 artificially. If she had said that to Michael,
18 would that change your position in this case?
19 A Under these circumstances?
20 Q No. No. Under a hypothetical
21 circumstance that I'm asking you to assume for
22 this question.
23 A Put more facts into it for me.
24 THE COURT: Excuse me. Mr. Felos, the
25 hypothetical is assuming one fact. These
618
1 circumstances. It is not recreating the wheel; is
2 it?
3 MR. FELOS: No.
4 THE COURT: So when the witness asked
5 under these circumstances is that not where we
6 find ourselves in the hypothetical you present?
7 MR. FELOS: If I may rephrase my
8 hypothetical, Your Honor.
9 THE COURT: Okay.
10 Q (By Mr. Felos) Assume that Terri had
11 told Michael, said the words to Michael, I don't
12 want to be kept alive artificially. Would that
13 change your position in this case?
14 MS. CAMPBELL: Objection, Your Honor. I
15 don't believe this is a hypothetical. I'm not
16 sure what the answer would be.
17 THE COURT: Well, it's hypothetical from
18 the standpoint that the witness is asked to assume
19 it's true rather than have the witness comment on
20 the testimony. I think for that purpose it's a
21 hypothetical.
22 MS. CAMPBELL: Thank you.
23 A I think that the question you are asking
24 me is tainted.
25 Q (By Mr. Felos) Sir?
619
1 A I am answering you the best I can.
2 Q You can't comment to the nature of my
3 question. Do you understand the question?
4 A I hear what you're saying.
5 Q Do you understand the question?
6 A The question you are asking is a very
7 difficult question to answer. There is too many
8 factors influencing any kind of decision. You are
9 taking a real life situation now and making it
10 into a hypothetical.
11 Q That is the nature.
12 A That is the -
13 Q That's the nature of a hypothetical
14 question.
15 A No. It is not. A hypothetical question
16 is a "what if" question.
17 Q I believe the question --
18 "/THE COURT: What if you believe your
19 daughter told her husband she would not want to
20 live like this. Does that help you?
21 /A If I believed she said that, I would
22 give some reconsideration to what she is saying.
23 Q Sir, in your deposition on Page 67, Line
24 24, I asked you hypothetically if Terri told
25 Michael I don't want to be kept alive artificially
620
1 would that change your position in this case?
2 Your answer. No.
3 A Can I answer that?
4 Q Can you -- can you explain the
5 difference?
6 A I just explained it. Because there
7 is -- it's not a hypothetical thing when you have
8 a real life situation where Michael is saying that
9 Terri said that, and I know in my heart that Terri
10 did not say that.
11 MR. FELOS: I move to strike that. The
12 witness is giving a speech and is not responsive
13 to the question.
14 THE COURT: That is a pretty open
15 question you asked, Mr. Felos. You asked him an
16 open ended question. He is telling you, I guess
17 under no circumstances can he believe the
18 statement was made.
19 MR. FELOS: That does not explain his
20 deposition testimony.
21 THE COURT: I understand.
22 MR. FELOS: The deposition testimony- -
23 says hypothetically if Terri told Michael.
24 THE WITNESS: That's a hypothetical
25 answer to a- hypot3-etical question.
621
1 Q (By Mr. Felos) When you say a
2 hypothetical answer, is that a way of saying that
3 maybe you were not answering truthful in your
4 deposition?
5 A No. It is a maybe. Hypothetical means
6 maybe. What if. That is a "what if" answer.
7 Q Your answer was not maybe in your
8 deposition. It was no. I guess my further
9 question is, do you recall what Terri's intent is
10 regarding removal of life support?
11 A I love my daughter. I care about my
12 daughter. I know I believe in my heart what her
13 intent is. Not hypothetically.
14 Q If you were in a permanent unconscious
15 state, would you want all medical treatment to
16 keep you alive?
17 A Is that a hypothetical question?
18 Q Now obviously it is, unless you are in a
19 permanent unconscious state at the moment. So
20 sir, you know it is a hypothetical question.
21 A I don't know how to answer that right
22 now. I have to think about that.
23 Q In your deposition on Page 20, Line 24,
24 I asked you this question. So if you were in a
25 permanent unconscious state, it's your testimony
622
1 you would want all medical treatment to keep you
2 alive?
3 Answer. Yes.
4 Mr. Schindler, isn't it true that there
5 is no medical condition you can conceive of that
6 could be so bad that it would warrant a decision
7 to terminate artificial life support?
8 A Say that again, please.
9 Q Isn't it true that there is no medical
10 condition that you can conceive of that would be
11 so bad that it would warrant a decision to
12 terminate artificial life support?
13 A To make a decision like that, I have to
14 know all the facts in the situation.
15 THE COURT: No, sir. That question is
16 easy to answer.
17 THE WITNESS: Okay. No, sir.
18 THE COURT: It's easy to answer. The
19 question is is there any medical condition so bad
20 that would warrant removal of life support in your
21 judgment?
22 A ',I don't see any situation.
23 Q (By Mr. Felos) Sir, isn't that what
24 you want for Terri? To have her life, her body,
25 perpetuated by any medical treatment possible?
623
1 A I want her life perpetuated, and by any
2 medical necessity possible. I think I would have
3 to make that decision at the time as to what was
4 required to perpetuate her life.
5 Q If she needed open heart surgery to
6 survive?
7 A I will not make any -- we are in the
8 hypotheticals. If something like that came up, I
9 would take that into consideration. Consult with
10 my physician, then talk with my wife and talk with
11 the experts. Then make a decision after a period
12 of time.
13 Q So is your answer, I gather now, that
14 you can't say whether you would want Terri to have
15 open heart surgery if that was needed to
16 perpetuate her life?
17 A I didn't say that. That is a major
18 decision. I would want all the facts involved.
19 You are asking me to make an arbitrary decision.
20 I could not do that at this point.
21 Q Well, sir, I asked you that at your
22 deposition. I said, question. Page 68, Line 11.
23 If Terri required, again hypothetically, open
24 heart surgery to remain alive, would you be in
25 favor of that to have that procedure?
624
1 Answer. To keep her alive, if she
2 needed that?
3 Question. Uh-huh.
4 Answer. Hypothetically, probably.
5 A Everything you were asking at that
6 deposition was hypothetical. I was giving you
7 hypothetical answers.
8 Q Yeah. You did say hypothetically in
9 response to that. Now we discussed at your
10 deposition what would happen if Terri developed
11 gangrene and needed to have a limb amputated. I
12 wil [sic] ask you that question again and see if your
13 opinion has changed. If Terri developed gangrene
14 and a limb had to be amputated to save her life,
15 would you be in favor of that?
16 A Before I made that decision, I would
17 consult with the experts medically. Physicians
18 that I would select. Get their opinions and be
19 darn certain that I had all the facts on the table
20 before I made that decision.
21 Q In your deposition on Page 68, Line 25,
22 I asked you, my question, if she developed
23 gangrene and her leg needed to be amputated to
24 save her life, would you be in favor of that?
25 Answer. Absolutely.
625
1 Is there anything hypothetical
2 that?
3 A The questions you were asking before
4 that were all hypothetical. If you turn the page
5 back a few, every question was hypothetical. I
6 was giving you hypothetical answers.
7 Q Sir, do you deny that you answered that
8 question with the answer absolutely?
9 A I said that, but it should have had in
10 there hypothetically.
11 Q I asked you the question, if another leg
12 had to be amputated?
13 Answer. Yes.
14 Question. And an arm?
15 If necessary.
16 Sir --
17 A Hypothetically.
18 Q Sir, is it your testimony today that
19 there is any circumstance that you could really
20 conceive of where you would consent to such a
21 procedure your daughter?
22 A I'll answer your question again. Before
23 I consent to any procedure to my daughter, I would
24 get proper information from qualified medical
25 people. People I selected. I then would take
626
1 that into consideration. Consult with other
2 people. Then I would make my decision.
3 Back to your deposition. Everything in
4 that deposition you gave me was hypothetical,
5 hypothetical, hypothetical. Then you draw off a
6 hypothetical and start asking me other questions,
7 but the vein of the questions -
8 Q Are you saying that you were confused at
9 your deposition?
10 A I'm not saying --
11 Q That you didn't understand the
12 questions?
13 A I'm not saying I was confused. I am
14 saying when you read the deposition now you
15 Q My question is were you confused and you
16 said you were not. You had an opportunity to, at
17 the deposition, to say I would consult with
18 doctors and look at the evidence and make a
19 decision.
20 A George, we were dealing with
21 hypotheticals.
22 Q Sir, was that your answer?
23 A No. That was not my answer.
24 Q Thank you. Isn't it true, Mr.
25 Schindler, that you don't want Mr. Schiavo to be
627
1 your daughter's guardian and you wou [missing text]
2 have you and your wife to have that
3 responsibility?
4 A Yeah. I would like to have t [missing text]
5 responsibility of my daughter.
6 Q Isn't it a fact that you mentioned a
7 relationship that Mr. Schiavo had with a woman
8 named Cindy? Do you recall that?
9 A Cindy?
10 Q On your direct.
11 A Very well.
12 Q Wasn't that relationship years after
13 Terri's incident?
14 A In the Cindy relationship it was at the
15 Hemosita address. In 1992, I believe.
16 Q That would have been years?
17 A '91. '91. Not '92. We moved out of
18 Hermacida in '92. 1991.
19 Q Didn't you encourage -- didn't you
20 actually encourage Mr. Schiavo to have a
21 relationship with another woman?
22 A Mr. Schiavo gave my wife and myself all
23 indications at that point in time that he was
24 considering moving on with his life. That my wife
25 and I would be taking care of Terri. At that
628
1 point, it appeared to me that was, Cindy being his
2 whatever, that that was his move. Because I knew
3 he and Cindy were looking at property in St. Pete.
4 Q My question is did you encourage that?
5 A Absolutely.
6 Q I would like to read you a statement of
7 your wife and ask you if you agree or disagree
8 with this.
9 Question. Well, in your mind, does
10 there come a point in time where the experience of
11 discomfort or pain on the part of the patient
12 becomes a factor in deciding whether to remove
13 life support?
14 Answer. No.
15 Do you agree with your wife?
16 A Read the question once again, please.
17 MS. CAMPBELL: Page, please?
18 Q (By Mr. Felos) Page 39. Line 16.
19 Well, in your mind, does there come a point in
20 time where the experience of discomfort or pain on
21 the part of the patient becomes a factor in
22 deciding whether to remove life support?
23 Answer. No.
24 A I said it would depend.
25 Q Well, you would like to take, you and
629
1 your wife would like to take over Terri's [missing text]
2 be responsible for it. Would the pain, [missing text]
3 believe that Terri was experiencing pain, would
4 that be a factor you would take into consideration
5 in deciding whether or not to have her remain
6 artificially alive?
7 A It depends.
8 Q Well, what does it depend upon?
9 A Other factors. And don't ask me what
10 they are.
11 Q If you believed your daughter was in
12 agony, suffering, would you be inclined to make a
13 decision, or more inclined to make a decision to
14 remove the artificial life support?
15 A I would be looking for some kind of
16 expertise from someone.
17 Q What expertise would you be looking
18 for?
19 A I would want to know the full entire
20 situation.
21 Q Sir, is it your opinion that if Terri
22 were aware of her situation now, had cognizance of
23 t would be a torment?
24 A I'm sure Terri would be quite upset with
25 what's happened to her.
630
1 Q I believe in your deposition -- I can
2 read the line and page -- you described it as a
3 torment?
4 A Um-hmm. It's a word.
5 Q That is your word, sir.
6 A Well, okay. I used that word then.
7 Q I think most of us could understand for
8 somebody locked inside of a body with the
9 disability that she has that it would be a torment
10 to be aware of that. You said that yourself; have
11 you not?
12 A You said I said that.
13 Q Yes. Are you disputing that?
14 A I'm not disputing you. You are saying I
15 said it.
16 Q As I understand your testimony on direct
17 examination, you believe that Terri had
18 cognizance, and correct me if I'm wrong, I heard
19 you say in your direct examination that you
20 interpret Terri's responses to her mother as
21 crying because she recognized -- as laughing or
22 crying because she is aware that her mother is
23 there.
24 My question is, if you believe that
25 Terri has that cognizance, don't you also believe
631
1 that she is in torment?
2 A I believe Terri has waves of
3 cognizance. I think she has periodic cognizance.
4 I don't think Terri is cognizant 24 hours a day.
5 Q Well, in the periods of time during the
6 24 hours she is cognizant, will you agree that she
7 would be in torment being aware of her situation?
8 A I don't think that she is that cognizant
9 to be aware of it.
10 Q So the fact is, sir, you really don't
11 know what degree of cognizance your daughter has,
12 if any, do you?
13 A From a neurological standpoint, I do not
14 know. From a layman's standpoint, I see a
15 reaction.
16 Q Would you agree that certainly some of
17 Terri's movements are reflex actions?
18 A From what I hear the doctors say.
19 Q Well.
20 A It sounds very logical to me.
21 Q Um-hmm. Would you agree that the
22 movement of Terri's hands are reflex actions?
23 A Sounds logical.
24 Q And the movement of her fingers and
25 legs, feet, are reflex actions?
632
1 A Very possibly.
2 Q Well, when you say very possible, let me
3 read from your deposition. This is your
4 deposition on Page 12, Line 21.
5 Question. Was she able to move any of
6 her extremities? Hands, fingers, legs, or feet in
7 your presence?
8 Answer. Reflexes. So you agree those
9 type of movements for Terri are reflex actions?
10 A That is what I said then.
11 Q I am asking you now, do you agree that
12 those type of movements are reflex actions?
13 A Yes.
14 Q Do you believe that Terri's moaning is
15 a reflex action to a painful stimulus?
16 A I don't know how to answer that.
17 Q Do you know one way or the other?
18 A Do I know that? I don't know that.
19 Q Do you know -- have you seen Terri moan?
20 A I have heard.
21 Q You have heard Terri moan?
22 A I have heard Terri moan.
23 Q Isn't it true that you just don't know
24 why Terri moans?
25 A I'm not qualified to know that.
633
1 Q Have you ever seen Terri turn her head?
2 A Have I seen her turn her head? I'm
3 going to say I'm not sure.
4 Q Okay.
5 A Let me back that up. Yes. I have.
6 Q Do you know for a fact by what mechanism
7 Terri turns her head? What process that occurs?
8 A Well, the time that she tracked me, she
9 turned her head, and what caused her to do that, I
10 really don't have an answer for it.
11 Q So as I understand it, one time that you
12 walked into her room and you walked around her and
13 her head turned in the direction that you were
14 walking; is that correct?
15 A That's correct. Let me back up a second
16 and say this. Over the years that we have been
17 seeing Terri, there may have been times Terri
18 moved her head. I have not been looking for that.
19 I have not really went in there and said I am
20 going to go in there today and watch for Terri to
21 move her head. That is not what I looked for.
22 Q I understand that. So you mentioned
23 that you walked in. I believe you used the word
24 uncanny. You walked in once, moved across the
25 room., and Terri's head tracked you. Do you recall
634
1 that testimony?
2 A I just gave that testimony.
3 Q My question is do you recall it?
4 A Yes.
5 Q But haven't there been many occasions in
6 which you walked in her room and her head has not
7 tracked your movement?
8 A That's correct.
9 Q Have you seen any changes in Terri's
10 face movements? Movement of facial muscles?
11 Lips?
12 A In regard?
13 Q At any time?
14 A I don't know how to answer that. What
15 am I looking for? Mr. Felos, we just saw it
16 yesterday. Her face does move.
17 MR. FELOS: He said he did not see the
18 video, Your Honor. I'm asking him if he has ever
19 seen Terri's facial expression.
20 THE WITNESS: Smile?
21 THE COURT: No. Is he seeing any
22 change at all? There's not a witness in here that
23 says she is stonefaced [sic].
24 Q (By Mr. Felos) Sir?
25 A Yes, sir.
635
1 Q Do you know the mechanism by which or
2 the reasons why Terri's face changes or facial
3 muscles change?
4 A Do I know that?
5 Q Yes.
6 A No.
7 Q Now I wanted to ask you about one of
8 your witnesses. A Diane Meyer?
9 A Diane. Yes.
10 Q Do you know a Diane Meyer?
11 A Yes.
12 Q Am I correct that you had a conversation
13 with Diane Meyer about two years ago and you
14 believe from that conversation, you believe that
15 Diane Meyer may have some information relevant to
16 your daughter's intent?
17 A Yes.
18 Q Now you met with Mr. Pearse. You know
19 who Richard Pearse is? Have you ever met him?
20 A Yes.
21 Q He is the guardian ad litem previously
22 appointed by the Court?
23 A Yes.
24 Q You knew that Mr. Pearse would be giving
25 a recommendation to the Court as to whether or not
636
1 to remove Terri's feeding tube?
2 A Yes.
3 Q In your own mind, wouldn't you agree
4 that the information you received from Diane Meyer
5 was an important piece of information?
6 A Could be interpreted as that.
7 Q Wouldn't you agree that that information
8 was certainly something you would want to convey
9 to Mr. Pearse?
10 A I would -- I'm not sure as I'm sitting
11 here now. Go ahead. Yes. Yes.
12 Q You are hear to save your daughter's
13 life. You have important information.
14 A Yes. Go ahead.
15 Q You want to tell Mr. Pearse about that.
16 A Go on.
17 Q Why didn't you tell him?
18 A Why did I not tell him?
19 Q Why didn't you tell Mr. Pearse? You met
20 with Mr. Pearse. I believe in his notes he has a
21 three hour conference with you and your wife. He
22 mentioned they had a lot to tell me. Why didn't
23 you mention Diane Meyer to Mr. Pearse?
24 A I am positive when I walk out of this
25 courtroom today, I will be driving home and
637
1 remember there is a few things that I should have
2 said in the courtroom and I forgot. The same
3 thing may have happened with Mr. Pearse.
4 Q By the same token, you did not tell Mr.
5 Pearse, did you, about the conversation you had
6 with Terri regarding your mother's ventilator; did
7 you?
8 A I don't recall. The conversation I gave
9 today about Terri and the ventilator is something
10 vivid in my mind today. When did I see Mr.
11 Pearse? When was that? The date on that?
12 Q I don't know off hand, sir.
13 A I don't know.
14 Q In fact, isn't it true that when you
15 became involved in this litigation you contacted
16 friends, family, you really scoured your
17 associates, to talk to people to see if anyone had
18 any information that might be helpful to your
19 cause; isn't that correct?
20 A Yes.
21 Q You took great effort to do that?
22 A Yes.
23 Q Then at the meeting with the person, the
24 guardian ad litem who is going to make a
25 recommendation to the Court, your testimony is you
638
1 just forgot to tell him?
2 A I'm saying I'm a human being. I don't
3 have retention of everything.
4 Q Now Mr. Schindler, let's talk about the
5 prior litigation. You and your wife filed suit
6 back in '93, I believe May of '93, to remove Mr.
7 Schiavo as Theresa's guardian; is that correct?
8 A Are the dates -- was it May of '93?
9 MR. FELOS: Your Honor, may I see the
10 exhibits? May I see the exhibits, Your Honor?
11 Q (By Mr. Felos) I am referring to
12 Petitioner's Exhibit 3. Excuse me. The date is
13 July 1993.
14 A Thank you.
15 Q Petition for removal of guardian. And
16 in 1994, in March of '94, an amended petition was
17 filed. The amended petition included the
18 allegation that Mr. Schiavo --
19 A When was the date on that?
20 Q March of 1994.
21 A March?
22 Q The amended petition added the
23 allegation that Mr. Schiavo was abusing Terri
24 because he was not treating her infection.
25 A Was that in March? I'm going off
639
1 memory. The sequence does not sound that way to
2 me.
3 Q Sir, I can show you. Here's your
4 amended petition. I believe the date of your
5 petition is March 3, 1994.
6 A Can I ask you this? What did the first
7 petition say? Do you recall?
8 Q Sir, the question is was your amended
9 petition filed on March 3, 1994?
10 A It says it.
11 Q Okay. Now one of the allegations in
12 your initial petition was that Mr. Schiavo had a
13 financial conflict of interest. He had a
14 relationship with another woman and he was not
15 taking care of Terri. You added the later
16 allegation that he was not treating an infection
17 Now was there not a report by the
18 guardian ad litem which said, which interviewed
19 the nursing home personnel, and did make the
20 conclusion that Mr. Schiavo was taking care of
21 Terri's needs?
22 A Can I stop for you a minute? What is
23 confusing to me is the sequence was, as I remember
24 it, was that Terri stopped -- Michael tried to
25 prevent Term--from-taking the medicine and she had
640
1 some kind of infection and if she didn't have the
2 antibiotics she would have died. That happened in
3 August. I believe it was August.
4 My recollection is that we were in front
5 of Judge Penick sometime in February and that is
6 when the guardian ad litem report was introduced.
7 Then I can recall the attorney at that time filing
8 something prior to that. But my impression to
9 what he filed was a request for a rehearing. That
10 is -- I'm just telling you my recollection of that
11 case.
12 Q Do you agree that your allegation
13 regarding nontreatment of Terri was added after
14 your initial petition?
15 A I just told you my recollection. I
16 don't know that. I can't honestly sit here and
17 recall.
18 Q Sir, I read and you can read, too, your
19 petition for removal of guardian and appointment
20 of guardian and it says nothing about Mr. Schiavo
21 not treating an infection in the petition
22 addressing that claim. Can we assume in your
23 first petition you did not raise that issue?
24 A I assume it was omitted.
25 1 Q My question is this, sir. Why did you
641
1 dismiss the action, the first action to remove Mr.
2 Schiavo? The guardian ad litem's report had
3 nothing to do with information regarding conflict
4 of interest. Why didn't you pursue those claims
5 to remove Mr. Schiavo as guardian?
6 A I had a total misunderstanding from the
7 attorney that was, that had been representing us,
8 and then did not represent us when he brought this
9 issue. Actually, he called my wife and told my
10 wife, if I'm talking about the same thing, that
11 this case was going to be dismissed. And my wife
12 informed me and my interpretation from the
13 attorney at the time was that we lost round one
14 and we can come back and fight in round two. That
15 was my interpretation.
16 Q Is it your position -- and Mr. Sheehan
17 was that attorney?
18 A Yes.
19 Q Is it your position here today, sir,
20 that Mr. Sheehan dismissed your claim with
21 prejudice without explaining to you what that
22 meant?
23 A I have to say, in all due respect, I did
24 not understand. He did not explain it properly.
25 Let me put it that way. To me.
642
1 Q In your deposition, Page 59, Line 18,
2 Question. Mr. Sheehan dismissed your claim with
3 prejudice without explaining to you what it
4 meant?
5 Answer. Yes.
6 Do you stand by that answer?
7 A That is, to me it is one in the same.
8 Q Is it also your position, is it also
9 your position that Mr. Sheehan was not
10 representing you at the time that he dismissed
11 your claim with prejudice?
12 A That is true.
13 Q Do you understand that with prejudice
14 means that you can't file a similar suit and raise
15 similar issues?
16 A I understand it very well now.
17 Q You are saying you did not understand it
18 then?
19 A Absolutely not.
20 Q Because your attorney or the person who
21 was not representing you anymore, did not explain
22 it?
23 A It was pure ignorance on our part. We
24 had no idea.
25 Q Do you understand, Mr. Schindler, that
643
1 if Mr. Schiavo divorced Terri that you and your
2 wife would be Terri's heirs and you would inherit
3 her estate upon her death?
4 A I understand that now. Yes.
5 Q And you understood it at the time I took
6 your deposition as well?
7 A Yes.
8 Q Approximately what is your current net
9 worth at this time, Mr. Schindler?
10 A Poor.
11 Q Mr. Schindler, didn't you expect to
12 receive one-half of Mr. Schiavo's loss of
13 consortium award?
14 A Something along those lines.
15 Q Sir, in your deposition, 1993
16 deposition, Page 41, Line 14 you said, I expected
17 half the money.
18 A Then that is what I expected.
19 Q Now you claim that Mr. Schiavo owed you
20 some money, I believe, for moving expenses. Back
21 rent?
22 A Yes.
23 Q What is the amount of money do you think
24 that Mr. Schiavo owed you for the moving
25 expenses? Back rent?
644
1 A You have rental from the time he was in
2 our condominium. And he went in in ‘86 and moved
3 out -- was it 1990? Was that when he moved out?
4 No. He moved out when he moved up to 4th Street.
5 Q Would you say he owes you for moving
6 expenses and back rental more than $10,000 or less
7 than that?
8 A Probably -- probably more than that.
9 Q More than $20,000?
10 A Could be.
11 Q More than $30,000?
12 A I don't know. I would have to go into
13 the accounting of it.
14 Q I mean two years of back rent is $8000.
15 Moving expenses of $1000 is 9,000.
16 A It was money that we advanced them to
17 move out of the condo when they moved out to 4th
18 Street.
19 Q How much was that?
20 A Another 5 or 600.
21 Q Okay. That brings us up to about
22 $10,000?
23 A There was money we paid when Terri was
24 sick. We paid nursing homes at College Harbor.
25 That was a couple thousand dollars. Because
645
1 Michael did not have any money. We were paying
2 some doctor's bills. We were paying, paying. I
3 can't put a dollar figure on it.
4 Q Do you think it is fair to say it does
5 not exceed $20,000?
6 A Probably somewhere betweetn [sic] 10, 12. I
7 don't know the dollar amount.
8 Q Ten or 12,000?
9 A Or more. If I sit down and calculate
10 every penny.
11 Q You know, don't you, that Mr. Schiavo
12 netted out approximately $300,000 on this loss of
13 consortium award?
14 A Yes.
15 Q You were there for the verdict?
16 A Yes.
17 Q You know what the money was. Certainly
18 one-half of his loss of consortium, which is
19 approximately $150,000, well exceeded any money
20 that you thought was owed to you by Mr. Schiavo;
21 did it not?
22 A I don't think that was the intent. The
23 intent, it was not he was going to pay us back
24 $20,000. His statements were he would share the
25 award because-we-were all living together. We
646
1 were all in the same boat.
2 Q I understand that. I just want to
3 clarify.
4 A And he was family.
5 Q Your intent, you believe the intent was
6 not just to repay you back, but give you half the
7 award?
8 A Well, he was family.
9 Q And you were struggling financially at
10 that time?
11 A We were all struggling.
12 Q Didn't you once say regarding that money
13 back then, we have to get something, referring to
14 you and your wife?
15 A I have to get what?
16 Q That you have to get some of the money?
17 A I don't understand. What context was
18 that said?
19 Q Did you have some sort of tax problem
20 where you felt an immediate need that you have to
21 receive some of the money from Mr. Schiavo's
22 consortium award?
23 A I was not making any money to have a tax
24 problem. They should have paid me tax refunds.
25 Q In your 1 93 deposition, you were talking
647
1 about receiving money from the loss of consortium
2 award.
3 MS. CAMPBELL: Page?
4 Q (By Mr. Felos) Page 44, Line 21. I was
5 asking -- you were asked by the attorney at that
6 time about the discussions you had about sharing
7 the money.
8 Question. Was it discussed more
9 specifically in any other way?
10 Answer. Other than I mentioned to him
11 about tax problems I would have.
12 Question. What was discussed about
13 that?
14 Answer. I said to him we have, have to
15 get something because of my tax situation. Does
16 that refresh your recollection at all?
17 A Yeah. I think that is taken out of
18 context the way you said it. I had said at one
19 time that Michael was sharing this money. I said
20 if the money is shared like that, it could present
21 a tax problem for me getting money like that
22 because it would be considered on my tax return as
23 ordinary income and become completely taxable. I
24 said that to Michael. That is how that came
25 about.
648
1 Q So in other words, in addition to the
2 money that you were going to receive from the loss
3 of consortium award, you were concerned about tax
4 consequences of receiving it as well?
5 A I said his award, his award is usually
6 tax free. If you are going to turn around and are
7 going to take from your award any amount of money
8 and give it to me, the IRS will view that as a
9 gift. They'll look at that as ordinary income. I
10 may need something to cover that.
11 Q The fact is, sir, that you were in
12 financial need at that time and you expected the
13 money from Michael and you were counting on it and
14 you did not get any money; is that correct?
15 A That was my -- I was disappointed at
16 Michael's integrity.
17 Q Sir, that was not my question. Would
18 you read back the prior question, please?
19 (THEREUPON, THE COURT REPORTER READ BACK THE
20 LAST QUESTION.)
21 A I'll answer that. I was in financial
22 need at that time. I expected the money from
23 Michael and I was disappointed. I was not
24 counting on it. I was disappointed I did not get
25 the money. I was disappointed in Michael's
649
1 integrity.
2 Q Isn't it a fact that you got, I mean
3 that you got upset and you almost got into a fist
4 fight with your son-in-law at the nursing home
5 when you had this discussion, when you found out
6 you were not getting the money?
7 A It was not over the money.
8 Q Sir, before you moved to Florida in
9 1986, you were a successful businessman in
10 Philadelphia; were you not?
11 A Correct.
12 Q Were you not the president and chief
13 executive officer of a material handling equipment
14 business?
15 A Correct.
16 Q You owned half of that business?
17 A Correct.
18 Q Didn't that business have over fifty
19 employees?
20 A Correct.
21 Q As chief president and chief executive
22 officer, you had authority over those employees?
23 A Correct.
24 Q You sold your business interest sometime
25 in 1984?
650
1 A Correct.
2 Q How much did you receive?
3 A I don't recall the dollar amount.
4 Q Was it a substantial sum?
5 A Fairly large sum.
6 Q You lived in, I gather, a substantial
7 home in Philadelphia?
8 A It was a nice home.
9 Q You moved to Florida and lost all your
10 funds in a business venture that went bad?
11 A Yeah. I lost my funds in a business
12 venture that went bad. Yes.
13 Q That bankruptcy was not just business,
14 but also a personal bankruptcy for you, your wife,
15 and your son?
16 A Correct. We all went down the tube.
17 Q And you're struggling financially.
18 That must have been a hard blow to build up that
19 successful business in Philadelphia and then come
20 to Florida and lose that money; was it not?
21 A For any male, or any person I should
22 say, to be successful in business and have a
23 failed business is a horrible blow.
24 Q It's a horrible blow understandably.
25 And you believed you were going to be receiving
651
1 funds from Mr. Schiavo. You testified that you
2 were behind the scenes in the malpractice case?
3 A Correct.
4 Q Although you were not a party, you sat
5 and listened to the verdict and you are saying
6 that you were not upset over the fact that you
7 were not receiving money from Michael?
8 A I was very disappointed.
9 Q Doesn't the thought that Michael Schiavo
10 would inherit Theresa's money, if his petition is
11 granted, doesn't that burn you up?
12 A I think, under the circumstances, what
13 he is trying to do is have my daughter put to
14 death to get her money. That more than burns me
15 up. He is killing my daughter to get her money.
16 Q That is how you see it, sir?
17 A That is exactly --
18 Q The fact that --
19 A Wait a minute. I just want to stop and
20 settle down.
21 THE COURT: Do you want a recess?
22 THE WITNESS: You are touching a raw
23 nerve now.
24 THE COURT: Now, we try to run this
25 orderly. The questions get completed and the
652
1 answers do. We don't talk over each other. Take
2 a deep breath. Let's get through this. We will
3 take a break after this cross-examination. I
4 trust you are winding this down?
5 MR. FELOS: Excuse me?
6 THE COURT: I trust you are winding down
7 the cross?
8 MR. FELOS: I think we are over the
9 hump.
10 THE COURT: I hope well over. Let's see
11 if we can get to it.
12 Q (By Mr. Felos) Mr. Schindler, isn't it
13 true that you blame Mr. Schiavo for what happened
14 to Terri on February 25, 1990?
15 A Do I blame him for it?
16 Q Um-hmm.
17 A I never said I blame him, but I --
18 Q Do you?
19 A Let's clarify. What I said was that
20 when a person is married to a person, a male is
21 married to a female, he should be acutely aware of
22 what she does in her health. All my comments were
23 that I felt that he could have moderated Terri
24 better than what he did, in essence. I'm not
25 holding him responsible for it. We don't even
653
1 know what happened to her.
2 Q Well, when you say that Mr. Schiavo
3 should have monitored Terri better, what do you
4 mean?
5 A When someone is, particularly my wife is
6 having difficulties, I'll press and press and
7 press to get to the root of the problem. That is
8 what had me a little bit concerned. Because I
9 can't be specific, but out of memory, that thing
10 was apparently lasting longer than what I maybe
11 thought it should have lasted. What led up to the
12 sickness that led up to the --
13 Q You knew your daughter was seeking
14 medical treatment for her failure to menstruate;
15 don't you?
16 A I'm aware of that. But there are some
17 other things with her that had me concerned
18 physically.
19 Q What were those?
20 A Dizziness. Other things that had me
21 concerned about her that he was informed of and
22 she was. It never seemed to get corrected. The
23 whole thing culminated with Terri having a
24 seizure.
25 Q Well.
654
1 A Let me back this up. I'm not saying
2 that it was his fault that Terri’s, these ailments
3 were not corrected. I just felt that at the time
4 that some of those things could have been
5 expedited a little quicker than what they were.
6 Q We heard testimony from your wife, I
7 believe, that certainly because Mr. Schiavo was
8 working nights when all of you were living in
9 Florida that Terri was over at your house a lot,
10 you saw each other frequently. It was a very
11 close relationship. Didn't you recognize any of
12 those other problems?
13 A She was telling me -- she told me some
14 of the difficulties, which were in turn
15 communicated and apparently, you know, that whole
16 scenario. It's so unpleasant to think about,
17 prior to that. That was the worst day of my
18 life. If you had children, it would be the worst
19 day in your life.
20 Q It would. The point --
21 A I'm trying. I'm not trying to be
22 evasive. When you go back to that time frame,
23 Your Honor, it's very unpleasant and some of the
24 things are not as clear to me.
25 Q In your deposition on Page 63, that is
655
1 your '93 deposition, of Mr. Schiavo you are saying
2 how this girl could live with the man for the
3 years they lived together and all of a sudden
4 succumbs to a problem like she had and him not
5 even recognizing it through that period.
6 I asked you the question, did you
7 recognize it through that period?
8 Answer. I didn't live with her.
9 Question. She was still your daughter;
10 wasn't she?
11 Yes. But I did not live with her.
12 Question. Did you have contact with
13 her?
14 Answer. Yes. I did.
15 Question. Did you see her?
16 Yes.
17 Did you talk to her?
18 Yes.
19 Question. But you were not able to
20 recognize the problem yourself?
21 Answer. She was not in my custody.
22 Question. Were you able to recognize
23 the problem?
24 Answer. I didn't live with her. No, to
25 answer your question.
656
1 It appears from your deposition
2 testimony that you are saying that you no more
3 recognized Terri's problem than did Michael?
4 A Appears that way.
5 Q Okay. You said today that Terri did
6 tell you about her problem. That she did tell
7 you?
8 A As I said here today, I have not talked
9 about this in what; six years? That deposition
10 what '93?
11 Q Yes.
12 A That is six years ago. Over a period of
13 six years and I'm sitting here now, you are
14 bringing back, recreating for me an episode that
15 happened in my life and right now, as I'm sitting
16 here, that is what comes to my mind. Six years
17 from now something else may come to my mind.
18 Q Let's make this simple, sir. Do you
19 hold Mr. Schiavo responsible in any way for the
20 accident or incident that occurred to Terri on
21 February 25, 1990?
22 MS. CAMPBELL: Objection, Your Honor.
23 This already has been asked. He already provided
24 the answer for that.
25 THE COURT: I thought that is what we
657
1 have been talking about. You opened up with that.
2 MR. FELOS: I believe he said he did
3 not blame him.
4 THE COURT: What's the difference?
5 Blame or responsibility?
6 MR. FELOS: The witness seems to think
7 there is a difference, Your Honor.
8 THE COURT: He has answered the
9 question. Please move on. Thank you.
10 Q (By Mr. Felos) I want to talk about
11 your brother's disability. You testified about
12 that. Is it true that your brother needs a device
13 or mechanism to help him drive?
14 A He has a spinner knob.
15 Q A what?
16 A A spinner knob.
17 Q What is that, sir?
18 A It's a little knob that mounts on the
19 steering wheel. Like a fist. It sticks up. You
20 have seen it.
21 Q Isn't that device used for persons who
22 are paralyzed in one arm and need to drive a car
23 with only one arm?
24 A I have no expertise in that matter. I
25 don't know
658
1 Q Your brother is disabled to this day;
2 isn't he?
3 A To this day?
4 Q Yes.
5 A My brother is really disabled to this
6 day.
7 Q Has he passed away?
8 A He died.
9 Q I'm sorry. I didn't know that. Prior
10 to his death, did he still have a disability as
11 result of that automobile accident of his?
12 A I said previously he suffered some of
13 the effects from a stroke. He had a disability in
14 his arm and he dragged his leg.
15 Q The dragging of the leg and paralysis in
16 the arm were disabilities he carried throughout
17 his entire life till his death?
18 A His entire life? Subseqeuent [sic] to the
19 accident. Yes.
20 Q You mentioned I believe you were
21 working on the disputes with Prudential
22 Insurance. Isn't it true that dispute with
23 Prudential Insurance was handled by an attorney,
24 Roland Lamb, and not you?
25 A My interpretation was that I was working
659
1 on it. There was a lawsuit filed against
2 Prudential. I went to Prudential. I went to the
3 doctor. I forgot his title. Dr. Newhart.
4 Because he was the guy when we were trying to get
5 authorization for Terri's benefits, he was the
6 person that was not approving it.
7 We were having a very difficult time
8 with Prudential. That culminated with me going
9 over, and I went to see Dr. Newhart. I sat in his
10 office for about an hour having a discussion with
11 him.
12 Q Thank you. There was some conversation
13 about thoughts of buying a house for Terri to live
14 in to care for her. Isn't it true that it was
15 just not found to be practical to have Terri live
16 at home? That that was tried on two occasions and
17 it was overwhelming for your wife and Mr. Schiavo
18 to continue that care for Terri at home?
19 A Yes.
20 Q You mentioned regarding Terri's
21 condition that it is greatly improved. Let me
22 backtrack. It's improved or changed since the
23 initial incident; is that correct?
24 A Yes.
25 Q As I understand it, after the initial
660
I incident, Terri was on a ventilator and your wife
2 testified that she was basically unresponsive. Do
3 you agree with that?
4 A Yes.
5 Q In the first few months after the
6 incident, isn't it true that by 1993 or at least a
7 couple years later that Terri, whatever
8 improvement in Terri's condition, had already
9 occurred and that the improvements that you are
10 referring to happened in the first two or three
11 years after the incident?
12 A No. I'll dispute that. Is it true?
13 No.
14 Q Have you seen any improvement in Terri?
15 A Read that question to me before I answer
16 that.
17 Q Let me ask it another way. I think I
18 misinterpreted what you said. Do you believe
19 Terri's condition has changed since 1993, the time
20 the first lawsuit was brought?
21 A Yes.
22 Q How has it changed?
23 A Favorably.
24 Q In what way?
25 A She is more responsive.
661
1 MR. FELOS: No other c…[missing text]
2 THE COURT: Thank yo…[missing text]
3 REDIRECT EXAMINA…[missing text]
4 BY MS. CAMPBELL:
5 Q Mr. Schindler, when Mr. Felos wa[s]
6 asking you questions about the video --
7 A Yes.
8 Q -- the taking of the video, when was
9 this video taken that has been entered into
10 evidence?
11 A Saturday.
12 Q When you were told by the nursing home
13 staff regarding your ability to take a video, what
14 day was that?
15 A Sunday.
16 Q Was the same person there on Saturday
17 that told you that you could not take the video?
18 A No.
19 Q When you visit the nursing home, are you
20 free to discuss with the nursing home personnel
21 Terri's health issues?
22 A Terri's health issues have been denied
23 to us since, I will say, 19 -- when Michael got
24 the award money. That is another thing that is so
25 aggravating in this case is that for the past six
662
1 years they have withheld all medical information
2 about Terri to her mother and myself. There is a
3 directive in her medical file. "Do not tell
4 parents".
5 Q Are the nursing home staff cautious when
6 they talk to you?
7 A Extremely. They are afraid of their
8 jobs, except a few.
9 Q Regarding the time frame when the action
10 was dismissed, regarding the petition to remove
11 the guardian, to remove Michael as the guardian,
12 in that time frame, 1994 time frame, Mr. Felos
13 believes you have made a statement that says you
14 would do anything to save your daughter; is that
15 right?
16 A Did he say that?
17 Q I believe he said that --
18 A I --
19 Q I believe he said you said that.
20 A Was that a hypothetical answer?
21 Q Do you recall saying in '94 that you
22 would do anything to save your daughter?
23 A I very possibly -- sure. I would do
24 anything to save my daughter.
25 Q When you say that, is there any
663
1 condition on that?
2 A Well, I'm not going to violate the law
3 to save her. I'll do what any type of integrity
4 act that I can do to save her.
5 Q Are there any financial restrictions on
6 your ability to do anything for Terri?
7 A I don't have the finances to do what I
8 would love to do. I don't have the finances to do
9 what was originally proposed to do with Terri. I
10 would be ecstatic to be able to do that for her.
11 Q When you and Michael Schiavo were
12 discussing the sharing of the settlement money, I
13 believe you previously testified that you were
14 referring to the money that Mike was to receive as
15 as opposed to the money for Terri; is that
16 correct?
17 A Correct.
18 Q What were your plans, what were you
19 going to do with that money that you were to share
20 in that you believed you would share in from
21 Michael?
22 A What? With my personal? If he was
23 going to give it to Mary and myself?
24 Q Yes. Were there plans for that money?
25 A I don't know. I just, our focus at that
664
1 time was primarily on Terri. That whole -- what
2 we wanted was to have the ability to try and get
3 Terri to the very best neurological people. Get
4 the best for her. That was -- you ask me now.
5 That is all I can think of to answer your
6 Question. It was Terri.
7 Q Do you believe at this time that Theresa
8 has received all the medical attention you believe
9 would assist her in her condition?
10 A After the money came down on the lawsuit
11 and I saw a dramatic change in Michael's, not his
12 attention to Terri, but all these promises that he
13 made of what he was going to do for her, I was
14 hoping that when we had the ability to pay for all
15 these treatments that we could take her and have
16 something done to improve her. Rehabilitation.
17 So on and so forth. But nothing happened.
18 Q Do you believe there are treatments
19 potentially available to Theresa that have not
20 been pursued?
21 A Absolutely.
22 Q During this ten year time frame, except
23 for the last two years of this litigation, so
24 let's say eight years prior to that, did anyone
25 ever come to you, did Michael, Joan Schiavo,
665
1 Brian Schiavo, Scott Schiavo, did anybody ever
2 come and tell you that Theresa told me she would
3 not want to live like this?
4 A Never. No.
5 Q Anybody else that I have not mentioned?
6 A No one ever said that.
7 MS. CAMPBELL: Thank you. Nothing
8 further.
9 THE COURT: Anything further?
10 RECROSS-EXAMINATION
11 BY MR. FELOS:
12 Q Sir, when asked on redirect if there was
13 any limitations on your statement that whatever I
14 have to do or whatever we have to do to sustain
15 Terri's life we will do, you conditioned that by
16 saying you would do any integrity act. Is lying
17 an act of integrity?
18 A Did I say I would lie?
19 Q Yes. You did on your cross-examination.
20 A In what way?
21 THE COURT: You simply said that you
22 might.
23 THE WITNESS: Oh.
24 Q (By Mr. Felos) My question --
25 A Interpret that as you please. Yes.
666
1 Whatever you want to interpret it as.
2 Q No. I'm asking you, sir, in your mind
3 is lying an act of integrity?
4 A Not normally. No.
5 Q Regarding medical records, medical
6 information, do you know who Betty Snowden is?
7 A I have heard the name. I don't know who
8 she is.
9 Q Well, you were informed by a letter to
10 you and your wife of August 19, 1996, which is in
11 evidence from attorney Deborah Bushnell, of the
12 procedure for responding to your inquiries as to
13 Terri's medical condition. Were you not told that
14 Betty Snowden was the contact person, the day
15 shift nurse, who would answer your questions and
16 give you general information regarding Terri's
17 care?
18 A I hired an attorney.
19 Q Sir, I didn't ask you if you hired an
20 attorney. My question is, do you know there is a
21 Betty Snowden and were you informed by letter that
22 Betty Snowden, the day shift nurse, is available
23 to answer your inquiries regarding Terri's
24 condition? That was you were informed that in
25 August of 1996?
667
1 A I could very well have been.
2 Q Well, have you taken the trouble to call
3 Betty Snowden and talk to her about Terri's
4 condition?
5 A Have I?
6 Q Yes.
7 A I don't normally call. I go to the
8 facility.
9 Q When you are at the facility, have you
10 asked to speak with Betty Snowden to talk about
11 Terri's condition?
12 A I talk to the nurses on the floor. At
13 the desk. I ask them about Terri's condition.
14 They will tell me nothing.
15 Q My question is --
16 A I'm her father.
17 Q -- have you asked to speak with Betty
18 Snowden?
19 A Have I? No.
20 Q Regarding the video, what is the day
21 that it was taken again?
22 A Saturday.
23 Q You said you talked to a, some personnel
24 at the nursing home?
25 1 A The DON. The Director of Nursing on
668
1 Sunday.
2 Q You talked to Ms. Don (sic) on the 22nd?
3 A Who?
4 THE COURT: DON is a title.
5 Q (By Mr. Felos) You talked to the
6 Director of Nursing on the 22nd of January?
7 A No. That is an acronym.
8 Q Yes. I understand that now.
9 A All right. I talked to her on the way
10 out of the facility. And she stopped me and said
11 you are not permitted to take any pictures of
12 Terri unless, I believe == I will not say this --
13 may not be 100 percent accurate -- unless approved
14 by Michael Schiavo.
15 I said to her that we wanted to have a
16 video of Terri for our family because I did not
17 know what the outcome of this trial would be. I
18 wanted that for whatever reasons, but I wanted
19 that.
20 Q Okay. What medical treatment, process,
21 or thing are you aware of that can-he done to
22 improve Terri's condition?
23 A I'm not aware of any. I have no
24 expertise. All I know is that I'm the father of
25 this girl. She never got a chance. I'd like to
669
1 give her a chance. I feel Michael Schiavo never
2 gave her a chance after he got his award money.
3 That is my feeling. I feel very strong about
4 that.
5 Q But you know of no treatment that can
6 help her?
7 A I have no knowledge of any treatment
8 other than to bring up the girl what woke up after
9 sixteen years. I don't know what they did with
10 her. I'd like to talk to her doctor.
11 Q On redirect, you testified under oath
12 that you believe there are treatments to improve
13 Terri's condition?
14 A Excuse me?
15 Q But you don't know of any?
16 A I believe there is something out there
17 that can do it. I'm sure if you search for
18 something long enough, you will find it.
19 Q Has any doctor or health care provider
20 ever told you that there is a -- any doctor or
21 health care provider advised you there is a
22 treatment or procedure that can improve Terri's
23 condition now?
24 A I think a doctor that could say that to
25 me would have to see-Terri.
669
1 give her a chance. I feel Michael Schiavo never
2 gave her a chance after he got his award money.
3 That is my feeling. I feel very strong about
4 that.
5 Q But you know of no treatment that can
6 help her?
7 A I have no knowledge of any treatment
8 other than to bring up the girl what woke up after
9 sixteen years. I don't know what they did with
10 her. I'd like to talk to her doctor.
11 Q On redirect, you testified under oath
12 that you believe there are treatments to improve
13 Terri's condition?
14 A Excuse me?
15 Q But you don't know of any?
16 A I believe there is something out there
17 that can do it. I'm sure if you search for
18 something long enough, you will find it.
19 Q Has any doctor or health care provider
20 ever told you that there is a -- any doctor or
21 health care provider advised you there is a
22 treatment or procedure that can improve Terri's
23 condition now?
24 A I think a doctor that could say that to
25 me would have to see Terri.
670
1 Q Well.
2 A To do that, to answer your question,
3 no. We can't put a doctor in there to have her
4 evaluated.
5 Q So you know of no doctor that told you
6 she can be helped?
7 A No.
8 Q You know of no procedure that can help
9 her?
10 A I have no medical information to date.
11 THE COURT: Ms. Campbell?
12 MS. CAMPBELL: Briefly.
13 FURTHER REDIRECT EXAMINATION
14 BY MS. CAMPBELL:
15 Q Mr. Schindler, would you lie to save
16 your daughter's life?
17 A Would I lie to save it?
18 Q Right.
19 A I would not like to lie to save
20 it. That's a difficult question to answer.
21 Q Has any of your testimony today been
22 untruthful?
23 A No.
24 Q Were you ever told by Dr. Yinghling as
25 to a medical treatment that could assist your
671
1 daughter at Shands in Gainesville that he believed
2 may be treatment to help her?
3 A Yes.
4 MR. FELOS: That question was asked on
5 direct and it was objected to. It calls for a
6 hearsay answer. He has already answered that no
7 doctor has told him.
8 THE COURT: I think I did sustain that
9 objection. The question that you went to after
10 that, which is in the record, is were you given
11 hope as a result of the conversation. So that is
12 as far as we can go on that. Objection sustained.
13 Q (By Ms. Campbell) Mr. Felos just asked
14 you about any doctors, did you know of any
15 information currently. Did you know of any
16 information to assist Terri. Did you interpret
17 that to mean currently?
18 A I don't know. Your question again?
19 Q When you just answered Mr. Felos
20 concerning any medical information that would
21 assist Terri, when you answered him no, did you
22 mean currently, that you don't know of any current
23 specific information that would assist Terri?
24 A I'm having a hard time answering that
25 question. I don't have a phone number that I can
672
1 call today to a doctor that I know is the person
2 that is going to do something for Terri.
3 Q So you don't know of anything specific?
4 A I don't have a specific name to go to
5 other than the Shands hospital thing. But I'd
6 like to have Terri evaluated by my doctors. Not
7 hired doctors.
8 MS. CAMPBELL: Thank you. Noghing [sic]
9 further.
10 MR. FELOS: Your Honor, I have one other
11 question.
12 THE COURT: One question, Mr. Felos.
13 FURTHER RECROSS-EXAMINATION
14 BY MR. FELOS:
15 Q Sir, didn't you have an opportunity in
16 this case to get an independent medical
17 examination of Terri?
18 A Did I?
19 Q That is my question. Or did you realize
20 that you had an opportunity to request an
21 independent medical examination?
22 A Did I?
23 Q Yes.
24 A No. I didn't realize that.
25 MR. FELOS: Nothing else.
673
1 THE COURT: Ms. Campbell, anything else?
2 MS. CAMPBELL: No.
3 THE COURT : I'm confused. The video we
4 saw yesterday was taken Saturday morning?
5 THE WITNESS: Correct.
6 THE COURT: On Sunday, you had a
7 conversation with the Director of Nursing about a
8 video. Did you have a video camera with you at
9 that time?
10 THE WITNESS: On Sunday?
11 THE COURT: Yes, sir.
12 THE WITNESS: We went in Sunday. What
13 essentially happened is we were discussing the
14 video we took Saturday. We gave it to our
15 attorney. So we had no video.
16 THE COURT: I understand.
17 THE WITNESS: I said, let's go back and
18 get another video that we will have something for
19 our personal use. So we went back Sunday.
20 THE COURT: And you took a video camera
21 with you?
22 THE WITNESS: Yes.
23 THE COURT: Was this gentleman that
24 testified yesterday with you?
25 THE WITNESS: Yes.
674
1 THE COURT: So you came back to do
2 another video?
3 THE WITNESS: On Sunday. He came back
4 in again and the Director of Nursing saw it was a
5 camera and said you can't take that.
6 THE COURT: Okay. Any questions based
7 on the Court's inquiry?
8 MS. CAMPBELL: No.
9 THE COURT: Mr. Felos? Okay, sir. You
10 can stand down.
11 THE WITNESS: I'm sorry, judge, for
12 being long winded.
13 THE COURT: Is your next witness
14 Mr. Pearse?
15 MS. CAMPBELL: Well, no. I do have one
16 very quick -- I would like to recall Mary
17 Schindler.
18 THE COURT: Let's take a ten minute
19 break. We are going to go through Mr. Pearse
20 today and whatever else we can put on. Take it
21 today. We are moving like a tortoise.
22 MR. FELOS: Here is the exhibit.
23 THE BAILIFF: All rise. Court is in
24 recess for ten minutes.
25 (THEREUPON, A RECESS WAS HAD FROM 3:15 P.M -
675
1 3:25 P.M.)
2 THE BAILIFF: All rise. Circuit court
3 is now back in session.
4 THE COURT: Be seated, please. Okay.
5 Ms. Campbell?
6 MS. CAMPBELL: I would like to recall
7 Mary Schindler briefly.
8 THE BAILIFF: Remember you are still
9 under oath, ma'am.
10 THE COURT: Ma'am, you are still under
11 oath.
12 MRS. SCHINDLER: Thank you.
13 FURTHER REDIRECT EXAMINATION
14 BY MS. CAMPBELL:
15 Q Mrs. Schindler, did you just hear Mr.
16 Felos tell your husband about a letter that went
17 from Deborah Bushnell to you and Mr. Schindler
18 concerning a lady named Betty Snowden who was a
19 lady to contact at that time at the nursing home?
20 A Yes.
21 Q Are you familiar with her?
22 A Yes.
23 Q Who is Betty Snowden?
24 A She used to be the head nurse at C Wing,
25 which was Terri’s station.
676
1 Q At the current nursing home?
2 A At Palm Gardens, Largo.
3 Q Is she currently there?
4 A Not that I know of. I do know that I
5 called one time and talked to her. She did tell
6 me, you know, a few things about Terri. The next
7 time I called, they said she was transferred, so
8 that is all I know.
9 Q So do you recall the specific time, time
10 frame between the time you got the letter and the
11 time of the first call?
12 A No. Because I was calling periodically,
13 but I think it was like a week or two later. I
14 called just about every day or every other day to
15 see how she was doing. The day I asked for her
16 again, they said she was transferred.
17 Q When was that? Approximately how long?
18 A Um, I don't know. Maybe a month. I'm
19 not exactly sure.
20 MS. CAMPBELL: Okay. Thank you.
21 Nothing further.
22 THE COURT: Cross-examination?
23 MR. FELOS: Thank you, Your Honor. Just
24 one moment, please.
25
677
1 FURTHER RECROSS-EXAMINATION
2 BY MR. FELOS:
3 Q Mrs. Schindler, as I understand it, you
4 did, after you received the letter from attorney
5 Bushnell, you did speak with Betty Snowden?
6 A Yes.
7 Q At Palm Gardens?
8 A Yes.
9 Q Over how long a period of time did you
10 speak with her and receive medical information
11 about Terri?
12 A Whenever I called within that time,
13 which I'm not sure when it was, she used to tell
14 me things about Terri. Then one day I called to
15 speak to her and they told me she was transferred.
16 That is all I remember.
17 Q Well, was it a couple of years?
18 A No.
19 Q A couple years later?
20 A No.
21 Q A couple of weeks later?
22 A It could have been a month later. It
23 could have been two months later. I'm not exactly
24 sure.
25 Q Okay. So I believe the letter from
678
1 Attorney Bushnell was in September of 1996. So by
2 the end of 1996, you no longer had -- Betty
3 Snowden was no longer at Palm Gardens to your
4 understanding?
5 A To my understanding I did not know where
6 she was.
7 Q Now I believe that, and we will check my
8 recollection, that the guardian ad litem who did
9 his report and investigation, I believe in the
10 calendar year 1998, at least a year-and-a-half
11 later, reports meeting and talking with Betty
12 Snowden while she was still working at Palm
13 Gardens.
14 A I did not know she was still working
15 there.
16 Q Well, when you were told that Betty
17 Snowden was not there anymore, did you
18 specifically ask who you should speak to as the
19 contact person?
20 A Yes.
21 Q What were you told?
22 A They told my Ellen Delancey.
23 Q So did you call Ellen Delancey?
24 A Yes.
25 Q Did you get information from Ellen?
679
1 A Not as much as from Betty Snowden.
2 Q So you did continue to receive some
3 information about Terri?
4 A The only information I received about
5 Terri, after Betty Snowden left, was that Terri
6 was okay or that she was doing fine or that she
7 had no infection. That was about it.
8 Q Did you mention to Ellen that you had
9 received a letter from the guardian's attorney
10 authorizing Betty Snowden to give you information
11 regarding Terri's condition?
12 A No.
13 MR. FELOS: I have no other questions.
14 THE COURT: Redirect for this witness?
15 MS. CAMPBELL: No, Your Honor. No
16 further questions.
17 THE COURT: Thank you, ma'am. You may
18 stand down. Call your next witness.
19
20
21
22
23
24
25
680
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 26, 2000
17 TIME: 4:00 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 V pages 680 - 839
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
682
1 PROCEEDINGS
2 THE COURT: Call your next witness.
3 MS. CAMPBELL: I'd Like to call Mr.
4 Richard Pearse to the stand.
5 THE COURT: Good afternoon, Mr. Pearse.
6 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY
7 THE COURT.)
8 THE COURT: Thank you. Have a seat
9 over here in the witness stand.
10 DIRECT EXAMINATION
11 BY MS. CAMPBELL:
12 Q Good afternoon. It's a little unusual
13 in this setting. Please state your full name for
14 the record.
15 A My name is Richard Pearse, Jr.
16 Q Where do you live?
17 A I live in Palm Harbor. 1449 Whitterton
18 Way.
19 Q What is your occupation?
20 A Lawyer.
21 Q How long have you been a lawyer?
22 A I was admitted to the Florida Bar in
23 '79, so that makes it a little over twenty years.
24 Q Where do you practice?
25 A In Clearwater, Florida.
683
1 Q What is the nature of your practice?
2 A It's a civil practice which focuses
3 primarily in the areas of guardianship, probate,
4 and general litigation. Probative administration.
5 Q Have you practiced in that area the
6 entire twenty years?
7 A I would say in part or in whole, yes. I
8 have had other practice areas in the past.
9 Q Do you know Theresa Schiavo?
10 A It's hard to say that I know Theresa,
11 but I have seen Theresa. I'm acquainted with the
12 general circumstances of her present condition.
13 Q How are you acquainted with Theresa
14 Schiavo?
15 A I was appointed in June of 1998 by
16 Circuit Judge Howard Rives as Theresa Schiavo's
17 guardian ad litem.
18 Q Have you ever been appointed as guardian
19 ad litem in other cases?
20 A I have.
21 Q Approximately how many?
22 A Maybe half a dozen.
23 Q Have you ever been appointed as guardian
24 ad litem concerning the petition for removal of a
25 feeding tube?
684
1 A I believe there may have been one other
2 case where the issue was whether life support
3 should be removed or withdrawn. I don't recall
4 the exact nature of the petition, but the case in
5 which I was appointed guardian ad litem had the
6 same basic issues involved.
7 Q How was that case resolved?
8 A My recollection is that in that case the
9 petition, or by whatever mechanism that the
10 petitioner sought removal of the feeding tube, was
11 denied.
12 Q Do you recall in that case did you make
13 an opinion and recommendation for the Court?
14 A I recall being at the hearing. I don't
15 recall whether I did a written report. I don't
16 recall the specific details. I'm sorry.
17 Q What is your understanding of the roll
18 that you were to review as being guardian ad litem
19 in this case?
20 A Well, the order appointing me says I
21 shall make such inquiry as I deem necessary and
22 file a written report and recommendations to the
23 Court. At a subsequent status conference, I
24 received some additional instructions. Some
25 specific instruction from Judge Boyer, who was the
685
1 presiding judge in this case at that time.
2 Q What is your, the further instruction?
3 Did that expand or narrow the limit of your
4 investigation as initially thought?
5 A Well, since the scope of the authority
6 in terms of the investigation originally granted
7 was virtually unlimited, it narrowed it in the
8 sense that Judge Boyer provided me with direction
9 about what he would like to see in the report.
10 Q Was it your understanding or did you
11 take on this responsibility with the understanding
12 was that of primarily around the issue of the
13 removal of the feeding tube?
14 A That if that was not my understanding at
15 the very outset, it very shortly became my
16 understanding that that was the principal issue
17 presented in this case.
18 Q Please tell us how you conducted your
19 investigation.
20 A After I received the order appointing
21 me, of course I filed an oath as required by the
22 Florida Probate Rules. I proceeded to make
23 contact with the lawyers involved. I spoke with
24 staff at the nursing home where Theresa lived at
25 the time and I believe still resides. I conferred
686
1 with Mr. and Mrs. Schindler, her parents. I
2 conferred with Mr. Michael Schiavo, her husband.
3 I conferred with her brother. There may have been
4 others with whom I spoke.
5 After I interviewed Mr. and Mrs.
6 Schindler and Mr. Schiavo, it came to my attention
7 that Theresa was or had been of the Roman Catholic
8 faith and there was at least some evidence that
9 she was a practicing Catholic. So part of my
10 investigation included making contact with the St.
11 Petersburg Diocese to seek guidance about whether
12 there was -- there was any Catholic doctrine which
13 might have a bearing on the issue before the Court
14 today.
15 Q Were you able to determine whether or
16 not there was any Catholic doctrine set forth that
17 would have a bearing on this decision?
18 A Well, there is. The answer is yes.
19 There is a statement which I understood to be
20 promulgated by the, for lack of a better term, the
21 Florida Counsel of Catholic Bishops, which I think
22 have a bearing on any situation like this where
23 life prolonging procedures are in place. But in
24 effect, it did not compel a resolution, again, as
25 I understand the doctrine, one way or the other in
687
1 this case.
2 The doctrine was situational and had to
3 do with analysis of the burdens placed on the
4 individual -- of the life -- with the artificial
5 life prolonging procedures in place. After
6 talking with several representatives -- or I guess
7 I should not say several -- two representatives of
8 the Diocese, and reviewing some written materials
9 I was furnished, I concluded that there was no
10 doctrine of the church that I had been made aware
11 of which would ethically or morally preclude the
12 withdrawl [sic] of the life prolonging procedures in
13 this case.
14 Q Were there any other individuals that
15 you spoke with concerning Theresa's intent?
16 A Well, I spoke with Michael Schiavo, her
17 husband, and her parents and sister and brother, I
18 believe. It's possible I spoke with one or more
19 of her friends, whose names I was given by members
20 of the family, but I don't recall specifically
21 details of those conversations.
22 My impression at the time of my
23 undertaking of the investigation at the time I
24 filed my report, the only individual who indicated
25 that Theresa had spoken directly about this
688
1 subject was her husband, Michael.
2 Q Did you review the court file in this
3 case?
4 A I believe I did. Yes.
5 Q Did you review the medical records for
6 Theresa Schiavo at Palm Gardens of Largo?
7 A I did review the nursing home chart. It
8 contained not only a record of her stay there, but
9 also contained some historical record of treatment
10 or evaluation that had taken place prior to her
11 admission there, as well as the results of some
12 basic, I guess you call them consultations related
13 to, it appeared to relate to litigation, but I was
14 not certain about that.
15 Q Could you please describe the charts
16 that you reviewed? What I'm asking is, did you
17 specifically review the chart that would be kept
18 at the nurse's station near her room?
19 A As far as I know, there was only one
20 medical record at the nursing home. That was the
21 one that I reviewed. It contained a number of
22 different sections. It contained a face sheet
23 with personal information about her. It contained
24 information that existed at the time of her
25 admission. It contained sections for doctors'
689
1 notes. Doctors' orders. I believe it contained a
2 section for nursing notes or notes from, you know,
3 other health care disciplines.
4 I'm quite sure there were, you know,
5 charts of her vital signs. Temperature, things of
6 this nature. There were, I believe, records of
7 medications that had been administered to her,
8 although I could not tell you today what the
9 specifics of those matters were all about.
10 Q Do you recall the files you reviewed,
11 were they in paper manilla [sic] files like the one here
12 or were they blue, heavy plastic files?
13 A They were not that manilla [sic] folder there.
14 This is what I regard as a typical patient chart
15 in a nursing facility such as Palm Garden. It was
16 in a binder of sorts, bound at the top. I think
17 it was blue. It may have been another color. It
18 was structured in a similar fashion to a standard
19 3-ring binder.
20 Q Do you recall a note on the front of the
21 chart providing instructions as to who staff would
22 be able to provide information for or not, one way
23 or the other?
24 A I don't recall whether -- I don't have
25 sufficient. independent recollection of the details
690
1 of the pieces of paper that I saw and examined
2 except to describe them in fairly generic terms as
3 I have done. Although, certainly it came to my
4 attention during the course of my investigation
5 that there had been ongoing conflict between Mr.
6 Schiavo and Mr. and Mrs. Schindler about access to
7 medical information.
8 Q Did you see Theresa Schiavo?
9 A I did.
10 Q How long of a time period? On how many
11 occasions did you go to see Theresa Schiavo?
12 A I went to see Theresa on one occasion.
13 Q How long were you in her room?
14 A I believe I stayed in her room between
15 15 and 20 minutes. My recollection is I was
16 accompanied by one of the staff people who I was
17 talking to about the case and we -- part of the
18 time I was with Theresa. We stood and chatted
19 about the situation. Theresa was in bed. She was
20 dressed. I spoke to her, but could detect no
21 particular response to my voice. Her eyes were
22 open, but she did not seem to have any
23 appreciation for the fact that I was standing
24 there trying to speak to her.
25 1 0 1 would like to show you -- could you
691
1 please identify this document?
2 A This is a photocopy of the report of the
3 guardian ad litem, prepared by me, and furnished
4 to the Court at the end of December 1998.
5 MS. CAMPBELL: Your Honor, at this time
6 I would like to move the report of the guardian ad
7 litem in as Respondent's Number Two. This is the
8 same one filed with the Court.
9 THE COURT: Is this a copy?
10 MS. CAMPBELL: Yes.
11 THE COURT: Is there an objection?
12 MR. FELOS: No.
13 THE COURT: What is Respondent's number
14 1?
15 MS. CAMPBELL: The film.
16 THE COURT: Thank you. Okay.
17 (THEREUPON, RESPONDENT'S EXHIBIT NUMBER 2 WAS
18 RECEIVED IN EVIDENCE.)
19 Q (By Ms. Campbell) Mr. Pearse, when was
20 the last time you reviewed this report?
21 Q I reviewed it fairly thoroughly in
22 anticipation of a deposition taken by me, of Mr.
23 Felos, I guess a couple of weeks ago now. I
24 glanced at it earlier today.
25 Q Can you please tell us the substance of
692
1 the report?
2 A Well, the report basically lays out what
3 I did and how I conducted my investigation. A
4 legal analysis and some conclusions and
5 recommendations that I draw. In preparing the
6 report, I tried to follow the format, as I
7 testified earlier, that was a status conference
8 with Judge Boyer. He provided me with guidance
9 insofar as the areas he felt would be useful to
10 him as the presiding judge at that time. I made
11 notes of that status conference. I made an effort
12 to follow that format in preparing this report.
13 The first section deals with my
14 authority, as I described. The second section
15 deals with some information I felt pertinent about
16 Theresa, herself. Basically, in the middle
17 section, it goes through a discussion of the
18 various people that I interviewed, including the
19 parties.
20 I reviewed as part of my investigation,
21 which I did not mention before but bears
22 mentioning certainly, I reviewed the financial
23 reports in the guardianship. And there is a
24 section in the report which deals with
25 that. There is a discussion of the various actual
693
1 and/or potential conflicts of interest. There is
2 a legal analysis of what I perceived to be the
3 standard with withholding or prolonging of life
4 procedures. The final section is one which I
5 state my opinion and recommendations to the Court.
6 Q Included in your report, is there a
7 comment about every detail of your investigation?
8 A No.
9 Q For example, I notice there was nothing
10 in there regarding the Catholic beliefs. Was
11 there a specific reason you left that out?
12 A As I stated, after I talked with various
13 people that I talked to from the Diocese, and
14 reviewed the materials, I did not feel that the
15 Roman Catholic doctrine, as I understood it,
16 compelled one result or the other. It was
17 essentially neutral. Because the only reason I
18 investigated it in the first place was to the
19 extent that Theresa was a practicing Catholic, I
20 felt Catholic doctrine might somehow shed light on
21 what her belief structure might be.
22 But in the end when I determined, at
23 least in my own mind, that Catholic doctrine was
24 neutral on this subject under the circumstances as
25 as I found them, I didn't feel that it would be
694
1 pertinent to include in the report, except perhaps
2 as a matter of general interest. It wound up
3 having no bearing on the opinion that I rendered.
4 Q Were you raised Catholic?
5 A No.
6 Q Are you Catholic now?
7 A No. Not Roman Catholic. I attend the
8 Episcopal church.
9 Q Were you able to determine whether or
10 not Theresa Schiavo had a written living will?
11 A I guess the answer is that I'm not sure
12 there is absolutely any way to prove a negative.
13 Certainly it is fair to say during the course of
14 my investigation and entire proceeding known to me
15 that no living will was ever produced or referred
16 to. I have to say no. I don't believe there is
17 one.
18 Q Were you presented with any oral
19 information pertaining to what Theresa's
20 intentions would be regarding withdrawl [sic] of a
21 feeding tube?
22 A The only oral evidence presenter to me
23 was presented by her husband, Michael, who
24 indicated to me during the course of my
25 investigation that prior to the accident which led
695
1 to Theresa's current condition, the two of them
2 had had discussions wherein Theresa expressed she
3 would not want to have to be kept alive
4 artificially, to summarize. The discussions
5 included more details.
6 Mr. Schiavo provided me with more
7 information about the context of his discussions
8 with Theresa, but that was the -- that was the
9 essence of it.
10 Q Did you talk to anyone else, in addition
11 to Mr. Schiavo, regarding Theresa's intentions,
12 whoever that person may have been, as Theresa
13 expressed to them?
14 A Of course, Theresa's expressed
15 intentions were, I felt, the most critical element
16 of what I was trying to find, inasmuch as I
17 believe that the legal standard is one where the
18 role in determining whether or not these measures
19 should be withdrawn depends on what her intentions
20 would be if she were able to express them.
21 I spoke, as I said earlier, to Mr.
22 Schiavo, her husband. To her parents. To her
23 brother. I believe I spoke with her sister. As I
24 said, I may have spoken with one or two friends,
25 but I am quite positive in my recollection that
696
1 the only person I talked to who was able to say to
2 me that he or she had direct conversation with
3 Theresa about that subject was Mr. Schiavo.
4 Q If you had -- you say you may have
5 talked to one or more friends. If you talked to
6 any of the friends that had a direct bearing on
7 what Theresa's intent would be, would that have
8 been included in your report?
9 A Absolutely. Absolutely. If anyone told
10 me they had a conversation with Theresa in which
11 she had expressed any intention or idea that would
12 have a bearing on what her intentions would be, I
13 know that she is in this situation and it would
14 have been a critical piece of evidence and
15 unquestionably would be included in my report.
16 Q Did you find the explanation that
17 Mr. Schiavo gave you to be credible?
18 MR. FELOS: I object to the question. I
19 don't understand it. The explanation of what?
20 Q (By Ms. Campbell) Mr. Pearse, when you
21 talked to Mr. Schiavo concerning the information
22 that he gave you pertaining to Theresa's intent
23 regarding life support, did you find the
24 information that you just testified he gave to
25 you, did you find that information to be
697
1 believable?
2 A Well, I guess my answer is I have no
3 basis -- I have no basis to know that Theresa said
4 something different than what he says. However, I
5 was mindful, and had been throughout these
6 proceedings, that the standard of evidence which
7 applies is one where the evidence must rise to a
8 level of being clear and convincing. I was, and I
9 have been, and I remain troubled by certain
10 aspects of the chronology and timing of various
11 decisions. And I was and remain troubled by
12 financial considerations.
13 And in the end, taking all these various
14 factors into account, it was my opinion and
15 conclusion that the evidence of which I had been
16 made aware did not, in my opinion, meet the
17 required standard of evidence to say it was clear
18 and convincing that Theresa would want to have the
19 feeding tube or any artificial measures withheld
20 or withdrawn. That was the basis of my findings,
21 conclusions, and recommendations.
22 Q Could you please discuss the details of
23 the issues that troubled you?
24 A All right. First, I was troubled by the
25 time line involved. Theresa's accident. for want
698
1 of a better term, or cardia [sic] arrest occurred in
2 1990, it was my understanding, based on my
3 investigation and information I received from the
4 various parties. That for a period of some years,
5 two or three, perhaps four years after the
6 original event occurred, that Mr. Schiavo pursued
7 virtually every possibility that he became aware
8 of to seek treatment and therapy for Theresa in an
9 effort to restore her to her former
10 condition, including taking her to California, I
11 believe, and having some experimental surgery done
12 in an effort to try to stimulate her central
13 nervous system.
14 But the information that I had, caused
15 me to conclude that there came a point, sometime
16 three or four years after this occurred, that Mr.
17 Schiavo basically came to accept the fact that
18 Theresa was not going to respond to these various
19 treatments he had sought, and that the likelihood
20 is that she would remain in the condition that she
21 is now in for the rest of her life.
22 I was greatly troubled by the fact that
23 Mr. Schiavo, having knowledge as he claimed of
24 what Theresa's intentions would be, waited for,
25 well, waited until 1998 to take steps to carry out
699
1 her intentions. That fact troubled me. I was
2 especially troubled by the idea that in the
3 interim, Mr. Schiavo filed lawsuits based on what
4 had happened to Theresa which resulted in a
5 substantial settlement.
6 The idea -- that to do that I felt
7 reasonably certain that somewhere along the line
8 an argument was made based on her condition and
9 her need for future treatment and what her normal
10 life expectancy would be. I was troubled by the
11 idea, and this comment has more to do with general
12 policy and system than necessarily does with this
13 case, but I have been troubled that we have a
14 potential in this of doing things where a person
15 can on the one hand seek damages based on a normal
16 life expectancy, while having knowledge of another
17 person to want artificial life procedures withheld
18 or withdrawn, and after the financial arrangements
19 are completed in regard to the lawsuits, then take
20 the steps that will certainly inevitably lead to
21 the death of the disabled person, if you will. So
22 that part troubled me as well.
23 The other major factor was the money.
24 Some indication, although certainly not a clear or
25 uncontroverted indication, that there were
700
1 difficulties in the relationship between Michael
2 and Theresa before this happened. But I have
3 been, I have recognized from the beginning that
4 both Mr. Schiavo and the Schindlers are in either
5 actual or potential financial conflict depending
6 on the various scenarios which this case might be
7 resolved.
8 One such scenario would be that Michael
9 might seek a dissolution of their marriage, in
10 which case because I understand Theresa had no
11 will, he would loose his status as her sole heir
12 at law and her parents would become heirs at law.
13 Whereas, if she died while they were married, he
14 would be the sole heir at law and inherit whatever
15 money was in the guardianship at the time of her
16 death.
17 So neither side, as I understand how
18 this case is being presented, neither side is
19 without some actual or potential conflict. But in
20 the end, Michael, as I understand it, if he
21 remains married, remains Theresa's sole heir at
22 law. Again, I don't have knowledge that is more
23 current than December of 1998, but I believe there
24 to be presently a substantial sum of money in the
25 guardianship that would become his upon her death.
701
1 Q Were you made aware of the fact that
2 Mr. Schiavo is engaged to another woman?
3 A I was made aware that Mr. Schiavo had
4 relationships. I use the plural there only
5 because -- for no particular reason. I don't know
6 if there were one or more after Theresa's
7 accident. Some years after her accident. Whether
8 or not I knew he was engaged to be married, I
9 don't think I was made aware of that specific
10 fact, but certainly aware that he had had other
11 relationships.
12 Q Do you have any personal reasons why you
13 would -- that would -- through your decision in
14 advocating for the maintaining of the feeding
15 tube, have a hidden agenda that you did not reveal
16 to the Court prior to your appointment or upon
17 release of your report?
18 A The answer is no. I have no personal
19 stake in this case or the outcome of this case. I
20 was not acquainted with any of the parties prior
21 to this case. I believe I was acquainted with
22 both you and Mr. Felos prior to this case. I took
23 an oath to follow the law. I believe that I have
24 done that to the best of my ability. I have no
25 particular hidden agendas.
702
1 Obviously, this is a matter about which
2 any reasonable person might have strong, deeply
3 held personal beliefs, but to the extent that any
4 beliefs of mine might be at odds with the existing
5 law, I put my interpretation of what the law
6 requires ahead of those beliefs.
7 MS. CAMPBELL: Thank you. No further
8 questions at this time.
9 THE COURT: Thank you. Cross?
10 CROSS-EXAMINATION
11 BY MR. FELOS:
12 MR. FELOS: Good afternoon, Mr.
13 Pearse. Your Honor, may I have the exhibits,
14 please?
15 THE COURT: Yes, sir.
16 Q (By Mr. Felos) Mr. Pearse, I want to
17 clear up a matter that was brought up in testimony
18 right before you got on the stand. Mrs. Schindler
19 testified that she did receive a letter from
20 Attorney Bushnell in September of 1986
21 (sic) , September 1986, stating that she and her
22 husband could receive information, medical
23 information, regarding their daughter, Theresa,
24 from Palm Garden and the contact person was a
25 Betty Snowden?
703
1 MS. CAMPBELL: 1996.
2 MS. FELOS: 1996.
3 Q (By Mr. Felos) Thank you. September
4 1996. I think she also testified that Ms. Snowden
5 left the nursing home within a couple months and
6 she could no longer obtain information regarding
7 Theresa from Nurse Snowden. Am I correct that you
8 talked to some of the nurses and personnel at Palm
9 Garden?
10 MS. CAMPBELL: Before he answers, I
11 would like to interpose an objection. I believe
12 the testimony from Mrs. Schindler was that she was
13 transferred, not necessarily that she left the
14 nursing home. She was transferred.
15 MR. FELOS: I don't recall that,
16 Your Honor. I believe she said --
17 THE COURT: Called again and told she
18 was transferred.
19 MS. CAMPBELL: Thank you.
20 THE COURT: But on cross, to her
21 understanding, by the end of 1996 did not know
22 where she was. That's what my notes reflect.
23 MR. PEARSE: Before I answer the
24 question, may I have a glass of water, please?
25 Q (By Mr. Felon) Mr. Pearse, in your
704
1 petition for order authorizing payment of fees and
2 costs, you have a time record of your work on this
3 case. I believe you have an entry on June 22,
4 1998, that you visited the ward at Palm Gardens
5 and you conducted a review of the chart and you
6 conducted interviews with Gina McClusky (phonetic)
7 nursing home social worker, Sandy Gildemen,
8 (phonetic) and Betty Showden (sic), LPN. Do you
9 recall talking with Betty Showden?
10 A Well, the bill entry in the petition to
11 which you refer is a typographical error. The
12 person I talked to was Betty Snowden. The answer
13 is I recall talking to all three women on that
14 day.
15 Q On that day, June 23, 1998, did you have
16 difficulty finding Betty Snowden?
17 A My recollection was that she was not
18 working specifically on the unit where Theresa was
19 residing, but was working elsewhere in a rather
20 large nursing home complex. But I guess the
21 answer to your question would be that on that date
22 at that time and place, no. I think Betty's name
23 was suggested to me by either Gina McClusky or
24 Sandy Gildemen as a person who had additional
25 knowledge and information about Theresa, who was
705
1 working in another part of the facility.
2 I seem to recall that Betty Snowden, and
3 I'm not 100 percent certain about this, but I seem
4 to recall that one of these three had worked in
5 the previous nursing home and had come to work at
6 Palm Gardens more recently. She had been
7 acquainted, and I think it was Betty that had been
8 acquainted with Theresa's case, and her, at a
9 prior nursing facility where she worked at that
10 time, and later she went to work at Palm Garden.
11 But at the time of June 22nd, of my
12 interview, all three ladies were present in the
13 building. I was able, without prior arrangement,
14 to meet and talk with all three on that visit.
15 0 Is it fair to say that the conclusion
16 and ultimate recommendation you made in your
17 report was a close call?
18 A Yes. That is fair to say. In fact, I
19 spent some weeks considering the decision before I
20 ultimately made the report. One of the reasons
21 for the status conference was because the report
22 was not prepared and filed within the originally
23 contemplated time frame because I was having a
24 difficult time with it.
25 I n Now I'm paraphrasing from your report.
706
1 Is it fair to say -- correct me if this is
2 wrong -- that because there was no corroborative
3 evidence of the ward's intent, and the only
4 witness having evidence is the husband, who would
5 realize a substantial financial benefit from the
6 ward's death, you concluded that the evidence did
7 not meet the clear and convincing evidence
8 standard? I believe that is on the bottom of Page
9 12, top of Page 13.
10 A I think that is probably a fair
11 paraphrasing of what is in the report.
12 A Okay. So is it also fair to say, had
13 there been corroborative evidence of the ward's
14 intent, that that would have been highly pertinent
15 to your investigation?
16 A That is absolutely no question.
17 Q And your conclusions?
18 A No question that any evidence,
19 corroborative or not, would have had a great deal
20 of bearing. If there had existed credible
21 corroborative evidence, it certainly would have
22 had a bearing on both my investigation and very
23 likely on my conclusions. At the time of my
24 investigation and at the time I filed the report,
25 I was not aware of any.
707
1 Q Again, what was the date your report was
2 filed?
3 A I believe the certificate of service
4 indicates it was filed on or about the 29th day of
5 December 1998.
6 Q At this trial, there has been testimony
7 by Scott Schiavo. I believe we discussed that
8 testimony at your deposition?
9 A You made me aware, and I believe it was
10 for the first time, that two persons related to
11 Michael Schiavo had provided evidence that was
12 characterized by you as corroborative.
13 Q Right.
14 A I put my answer that way, not to take
15 issue with you, but because I have not talked with
16 them and heard what they said. I have not had an
17 opportunity to judge for myself what they had to
18 say.
19 Q I understand that. Again, paraphrasing
20 testimony, Scott Schiavo testified that at the
21 funeral luncheon after his grandmother's funeral,
22 which was attended by Mike and Terri, there was a
23 discussion of what happened to the grandmother,
24 who was put on a respirator for a short time
2S against the grandmother's wishes. At the funeral
708
1 luncheon, there was a discussion held that they
2 -- were upset about that. They would not want
3 people would not want to have that happen to them.
4 And Mr. Schiavo, Scott Schiavo,
5 testified that Theresa, who was sitting next to
6 him, agreed with that position that it was wrong
7 what happened to the grandmother and she would not
8 want to be kept alive like that or on machines.
9 Would that information have been
10 something that you would have been interested in
11 pursuing in your investigation?
12 A Unquestionably.
13 Q Assuming that that information that I
14 have relayed to you is found credible, and I know
15 this has to be hypothetical because you did not
16 hear Scott Schiavo and see him, but assuming you
17 found that information to be credible, how might
18 that have changed in any way the conclusions in
19 your report?
20 A Assuming that I found both the content
21 of the information, as well as the circumstances
22 surrounding it being imparted to me credible and
23 reliable so that I believed it to be true, I would
24 say it would have had a great deal of bearing and
25 may well have changed the outcome of my report.
709
1 Q In addition, there has been testimony by
2 a Joan Schiavo, a sister-in-law of Michael
3 Schiavo, but not the spouse of Scott Schiavo, the
4 spouse of another Schiavo brother, that she became
5 best friends with Theresa. That they, while they
6 lived in Philadelphia together, they either talked
7 on the phone or met almost on a daily basis. That
8 a girlfriend of Joan Schiavo had a baby who was
9 born with significant impairments and was being
10 kept alive artificially. That became a subject of
11 discussion between Joan and Theresa on many
12 occasions.
13 And that the family, the parents of that
14 baby, decided to remove artificial life support
15 from the baby and the baby died. That Theresa
16 Schiavo expressed on many occasions her
17 concurrence or agreement with the position of the
18 parents removing life support.
19 She also testified as to a conversation
20 she had with Theresa Schiavo, spurred by watching
21 a movie where a diver was in an accident and
22 severely injured and on various life support, and
23 both Joan and Theresa expressed their opinion that
24 they would not want to be kept alive in that
25 manner.
710
1 Is that information, had it come your
2 way during the course of your investigation, would
3 you have found that important?
4 A Well, certainly the later bit of
5 -- information that you have conveyed where it's
6 you have indicated that Theresa talked about not
7 wanting to be kept alive that way, as if in the
8 first person, I think that would be highly
9 pertinent. I think her reaction to a similar
10 situation and concurrence to withdrawal of life
11 support to a third party would have some bearing,
12 but not quite as persuasive, in my mind.
13 I think we can often think about
14 agreement or disagreement about what's happening
15 to other people without adopting those attitudes
16 when applied to ourselves. Certainly, it would be
17 pertinent if the evidence were credible. Again,
18 based on the same assumptions that I mentioned in
19 response to a previous question, it might well
20 have changed my conclusions.
21 Q Okay. Now I understand -- am I correct
22 in understanding that you received no information
23 from Mr. or Mrs. Schindler or any of their
24 representatives during your investigation as to
25 what Terri's intent may be in this situation?
711
1 A I received nothing of a direct nature.
2 By that, I mean neither her mother, nor father,
3 nor any of her other blood relatives with whom I
4 spoke was able to relate to me a conversation or a
5 communication, either verbally or in writing, from
6 her to any of them in which she directly expressed
7 what her intentions were.
8 All of them were quite ready and willing
9 to express to me what they believed her intentions
10 would be, based on various circumstances, but
11 there was, they had nothing of a direct nature.
12 That would have been just as pertinent to my
13 investigation as would have been the evidence from
14 the two individuals that you alluded to earlier.
15 Q Now both Mr. and Mrs. Schindler have
16 testified that approximately two years ago they
17 spoke with a Diane Meyer, who is allegedly a
18 friend of Theresa back when Theresa lived in
19 Philadelphia. That Diane Meyer had conversations
20 with Terri about the Karen Ann Quinlan case, which
21 were important conversations regarding the issue
22 of Terri's intent. Did Mr. and Mrs. Schindler
23 mention that to you?
24 A I'm reviewing my notes. I don't
25 recall -- I certainly don't recall any references
712
1 by anybody to the Quinlan case. The name Diane
2 rings a bit of a bell, although my notes don't
3 reflect I was given that specific name by Mr. and
4 Mrs. Schindler, or anyone else, as a friend to
5 contact.
6 Q You mentioned that in your mind the
7 question of Terri's intent was paramount in your
8 investigation?
9 A Yes.
10 Q Had Mr. and Mrs. Schindler said we have
11 a friend, Diane, who talked to Karen Ann Quinlan
12 about Terri, do you believe that is something you
13 would recall?
14 A I think you mean talked to Terri about
15 Karen Ann Quinlan.
16 Q Yes.
17 A I believe it would be something I would
18 recall. I believe I would have judged it to have
19 been pertinent. I believe, and certainly would
20 like to hope, if I had this information it would
21 have resulted in a contact by me with Diane so
22 that I would have interviewed her directly, and I
23 don't believe I did in this case.
24 Q In her cross-examination, I asked Mrs.
25 Schindler why she did not tell you about that. I
713
1 believe she answered, well, something to the
2 effect that I just answered Mr. Pearse's
3 questions, or he asked the questions and I
4 answered them.
5 Did you ever indicate to Mr. and Mrs.
6 Schindler that your conversation with them was
7 restricted specifically to your questions? Did
8 you limit it in any way, the information that they
9 might be able to give you?
10 MS. CAMPBELL: Your Honor, I object to
11 his characterization of the testimony provided by
12 Mrs. Schindler. I believe she went on to
13 elaborate after that to say, to agree she was not
14 necessarily restricted in her -- it was not a
15 question/answer format.
16 THE COURT: Well, one of them answered
17 that they were not asked. So whether they cleared
18 it up, I still, this is probative as to that
19 response. Objection is overruled.
20 A I did not expressly restrict anything.
21 I hope that I did not do anything that implied
22 that any such restrictions were intended. On the
23 contrary, I was looking for a full and free
24 exchange of information because at the time that I
25 -- I believe I have spoken with the Schindlers -
714
1 there was one lengthy interview. One lengthy
2 conference. There have have [sic] been, I think there
3 may have been maybe some very minor conversations
4 other than that.
5 But at that time of the investigation,
6 my investigation was really just beginning. It
7 was wide open. I was looking for any and all
8 information that I could find. So I did not
9 restrict it. It did not intend to, and I hope no
10 one got that idea from me.
11 Q I believe you mentioned you found
12 Theresa Schiavo to be, to lack cognizance when you
13 visited her; is that correct?
14 A That is correct.
15 Q And you mentioned you talked to the
16 nursing home personnel?
17 A Yes.
18 Q Or some nursing home personnel?
19 A Yes.
20 Q Did you come across any contrary
21 opinions as to Theresa's cognizance from the
22 nursing home personnel?
23 A No.
24 Q Did you come across any contrary
25 diagnoses or opinions from any of the physicians
715
1 or physicians' statements or notes or reports?
2 A No.
3 Q Now you testified on direct examination
4 as to two factors which I believe you said
5 troubled or concerned you about the credibility of
6 Mr. Schiavo. The first one was the chronology of
7 the case. I believe you testified that certainly
8 while Mr. Schiavo had a hope for recovery for
9 Theresa in the initial period, I believe you
10 stated it was three or four years, that it
11 certainly would not be, would not adversely affect
12 his credibility that he did not seek to remove
13 life support at that time; is that correct?
14 A I believe I said I could understand why
15 he would do something like that. I did not find
16 that to be an unreasonable response.
17 Q Okay. You did mention the lawsuits,
18 though. That they somehow troubled you. The
19 malpractice lawsuit was filed in February 1992.
20 The verdict was rendered in November 1992, which
21 the suit would have been filed almost two years
22 exactly, almost two years after Theresa's incident
23 in February 1990, and the verdict nine months
24 later. So within the later, within the span of
25 the first three years, completely within the first
716
1 three years the suit was filed. The verdict was
2 rendered.
3 If you concluded that in the first three
4 or four years that Mr. Schiavo was aggressively
5 trying to help his wife at all costs, and it's
6 certainly understandable why he would not want to
7 remove life support thinking there is a chance for
8 recovery, why would it trouble you or affect prior
9 opinion of his credibility that that lawsuit was
10 filed in February of 1992 with the verdict
11 concluded in November of 1992?
12 A Well, as I said, part of what troubles
13 me about the whole scenario was that I believe,
14 based on my knowledge of how in general personal
15 injury lawsuits are conducted, that I believed it
16 very likely it was argued that a jury would have
17 been charged with finding damages based on Theresa
18 Schiavo's normal life expectancy [sic]. Part of it was
19 a systemic difficulty.
20 I think I had more problem in terms of
21 the lawsuit situation and resolution of those with
22 the timing or the chronology which involved Mr.
23 Schiavo's decision to cease his efforts to restore
24 his wife and the coincidence of that decision with
25 the receipt of the settlement funds or of the
717
1 judgment funds.
2 Q Let's backtrack on the first issue.
3 What seems to bother you, as I understand it, is
4 making an argument in a malpractice suit for
5 damages based upon somebody's long life span, when
6 somebody might believe that artificial life
7 support will be removed and the live span in fact
8 will be a short one? Is that the gist of your
9 difficulty?
10 A I think you captured the essence of the
11 idea. Yeah.
12 Q What I don't understand is, if you
13 concluded that in the first three or four years
14 Mr. Schiavo still had hope and still thought his
15 wife was going to recover, there was a chance of
16 recovery, and within that period filed the
17 lawsuit, why -- what is the difficulty or problem
18 of claiming damages for long life span when
19 somebody still believes there is a chance of
20 recovery and the person may live a long life span?
21 A I don't think that particular isolated
22 element of it is particularly problematic. I
23 think the point you are trying to make -- and I
24 agree with you, that it is consistent. What I'm
25 troubled by is the fact that once the lawsuit is
718
1 concluded and the money is in the bank, it is at
2 that point that apparently this change of, at and
3 around that time, based on the information that I
4 have, that the change of heart occurred.
5 I was further troubled by the fact that,
6 you know, after a period of time had passed when
7 it seemed that any reasonable person could have
8 reached a point of understanding things were never
9 going to get better, it required an additional
10 period of some years before Mr. Schiavo ultimately
11 filed the petition which is at issue today.
12 Q So it was not per se the filing of the
13 lawsuit and claim for damages over a long term
14 that you don't understand or affects Mr. Schiavo's
15 credibility, but a time connection of when the
16 money is received his position changes; is that
17 correct?
18 A I'm not sure I would totally discount
19 the first. I think the later point you just made
20 was somewhat more heavily on me than the former
21 one. Although, as I said in previous testimony,
22 part of what troubles me about the whole
23 chronology is the fact that he would, by his own
24 claim, have had knowledge of these intentions
25 throughout the entire process with Theresa having
719
1 been administered this feeding tube very early in
2 the process. The feeding tube, as I understand,
3 was put in place within days after the accident
4 occurred in 1990.
5 Q Well, certainly don't you think it's
6 reasonable for a loved one or spouse to want
7 artificial life support removed in an acute [sic]
8 situation when the prognosis for the patient is
9 not actually formed, when you don't know the
10 probability of recovery?
11 A I have no quarrel with that as I stated.
12 Q If there is a reasonable chance of
13 recovery or hope, do you have, is there a problem
14 with a loved one maintaining life support while
15 that chance of recovery exists?
16 A Again, I don't have a particular quarrel
17 with that concept, although one can always argue
18 whether one's belief in that regard is reasonable
19 or not.
20 Q Right.
21 A Assuming it's reasonable, I have no
22 problem with that concept.
23 Q Now isn't it true, based upon your
24 investigation, you found -- the first evidence you
25 found of Mr. Schiavo's change of position
720
1 regarding Terri's care was not to treat an
2 infection in early 1994?
3 A When you say the first evidence I found,
4 are you talking about the earliest evidence or
5 talking about the first bit of information that
6 came to me during the course of my investigation?
7 Q The former.
8 A I think the first evidence was earlier
9 than that. Mr. Schindler related to me a
10 conversation, in fact a rather vehement argument,
11 that he had had with Michael over Michael's
12 decision to seek no further treatment with the
13 money generated by the legal action. And Mr.
14 Schindler was under the impression that the
15 purpose of the lawsuit, again as he related to me,
16 that the purpose of the lawsuit, among other
17 things, were to provide funds whereby further
18 treatment, I guess of an experimental nature,
19 further treatment for Theresa would be sought.
20 At some point, Michael communicated to
21 him that he was no longer going to be seeking such
22 treatment. I think that incident occurred before
23 the business about the infection. I'd say that
24 would be -- the conversation that Mr. Schindler
2S related would be the first evidence I had. If my
721
1 memory serves me, the infection business came
2 later.
3 Q You already noted the potential or
4 appearance of conflict for both petitioner and
5 respondent in this case. Is it fair to say you
6 took Mr. Schindler's statements with a grain of
7 salt?
8 A I think it's fair to say I judged each
9 party's demeanor and information which was
10 imparted to me, and their credibility, as I felt
11 appropriate. Certainly it's fair to say that at
12 that particular moment in time I felt that any
13 financial conflict of interest between Theresa and
14 Michael was actual because they were married to
15 each other and Michael was her heir at
16 law, whereas the Schindlers' conflict was
17 potential. Could only come about in the event of
18 a dissolution of the marriage between Michael and
19 Theresa.
20 Q Aside from what the respondents told you
21 about Mr. Schiavo's alleged change of position
22 regarding Terri's treatment, is it fair to say
23 that the first actual evidence you found of that
24 was the decision not to treat an infection in
25 early 1994?
722
1 A I think everything I talked about is
2 actual evidence. If you are talking about the
3 first evidence that came to me from, other than
4 one of the parties, that would be the case.
5 Q How does getting a verdict in 1992,
6 November of '92, and a decision not to treat an
7 infection a year and three or four months later,
8 how are those two events related?
9 A Well --
10 Q If they are at all in your mind?
11 A I believed, based on my investigation,
12 that Mr. Schiavo's decision, his initial decision
13 not to seek further treatment, and I believed that
14 based on Mr. Schindler's statements to me, that
15 that conversation probably had occurred and it
16 seemed consistent to me if Michael had made a
17 decision to no longer seek treatment for her
18 neruological [sic] condition that a decision to withhold
19 treatment for infection would be consistent with a
20 decision to let matters take their course.
21 So the context of what Mr. Schindler
22 related to me was related to the receipt of the
23 funds from the settlement. So that is the manner
24 in which, at least in my mind, they were related
25 to one another.
723
1 4 In your deposition, Mr. Pearse, on Page
2 71, Line 21, I asked you. And so my question is:
3 Number one, is that so, and if it is,
4 in your mind how does getting a verdict in 1992
5 relate to a decision not to treat an infection a
6 year and some months later?
7 Answer. Well, I'm not sure there is a
8 direct relation between those two events.
9 You did go on in your deposition to
10 expound on it in other areas. It was a very
11 lengthy answer. But I'm asking you here today,
12 are you sure there is a direct relation between
13 those two events?
14 A Well, let me say that I have not had an
15 opportunity to read my deposition, even though I
16 did not waive the right to read it. So I don't
17 know about the question and answer there. The
18 relationship that I described a moment ago is one
19 which to me is consistent. You know, whether
20 there was an actual relationship between the two
21 events in the mind of the other individuals
22 involved in all this, I don't know.
23 If you are asking me is there some
24 logical way I can relate the two in my mind, I
25 have described that. Whether they are related in
724
1 anybody else's mind, I can't comment.
2 Q Would it be fair to say in the question
3 of chronology which we have been talking about
4 that the primary parts of the chronology which
5 disturbed you was the fact that once that
6 treatment, once that decision not to treat was
7 made in November or early 1994, that Mr. Schiavo
8 waited an extended period of time before filing
9 this petition? He did not pursue that line of
10 action? Would it be fair to say that is the
11 primary problem you had about the chronology?
12 A No. It's difficult to give primacy of
13 one point or other in that regard, but it
14 certainly was and are important elements of what
15 disturbed me. Yes.
16 Q You are aware that after Mr. Schiavo
17 made the decision not to treat the infection in
18 early '94 that his, that the respondents amended
19 their petition to remove him claiming that he was
20 not treating Theresa and he was abusing her? Were
21 you aware of that?
22 A I was aware that Mr. and Mrs. Schindler
23 had filed an action to remove Mr. Schiavo as
24 guardian. That had something to do with his
25 decision to seek no further treatment for her. I
725
1 can't say that I was specifically aware of an
2 amendment. I was aware in general that the
3 removal action was taking place. I had read,
4 although I have no clear recollection today, but I
5 certainly did read portions of the record, of the
6 court record, of those actions.
7 Q The initial petition for removal was
8 filed in July of 1993, which is before the
9 decision not to seek to remove Mr. Schiavo as
10 guardian but did not mention that as grounds. At
11 some later time, the petition was amended to
12 include the ground of a bias because of
13 nontreatment.
14 Were you aware -- will you agree that
15 certainly there is a huge emotional component
16 involved in a decision to remove a life support
17 from a spouse?
18 A Certainly.
19 Q Don't you feel that it's credible that
20 husband, upon making a decision not to treat an
21 infection which would result in his wife's death
22 and being condemned and sued for it, might not be
23 able to carry out a decision to remove life
24 support?
25 A I certainly think that reaction is a
726
1 possible reaction.
2 Q The petition for remove of artificial
3 life support filed in this case, I believe was in
4 May of 1998. It would not surprise you to learn
5 that Mr. Schiavo initiated this process some
6 period of time before an actual suit was filed?
7 A I don't really have any knowledge, any
8 current knowledge of any activities on his part
9 prior to the filing of the suit. If you told me
10 that he was talking to people about it and making
11 arrangements to file, certainly in any lawsuit,
12 any legal action, there is some period of time of
13 planning and preparation before an actual suit is
14 filed. I don't have any specific knowledge of
15 that.
16 Q If that period of planning and
17 preparation in this suit was, let us say at least
18 a year or year-and-a-half, that would shorten that
19 gap of time and gap in chronology; wouldn't it?
20 A I don't know that I would agree with the
21 premise that a year or year-and-a-half preparation
22 and planning time would necessarily be a
23 reasonable amount of time for a case.
24 Q Let's assume that is correct.
25 A If you are asking me to assume, without
727
1 regard to the reasonableness of the period of
2 time, I don't have any knowledge. It is certainly
3 possible he was planning it for that time. If so,
4 then it would have a tendency to compress the
5 chronology. Yes.
6 Q Um-hmm. Regarding, I think you were
7 testifying to your position of, the position of
8 the Catholic church based upon your
9 investigation. Is the person that you talked to a
10 Father Gerard Murphy?
11 A Yes. He is the person that I had the
12 most lengthy conversation with. I believe there
13 was one other person I spoke to at the office of
14 the diocese.
15 Q Okay. Father Murphy testified at this
16 trial. He would certainly be a better person to,
17 or more qualified person to tell us the position
18 of the Catholic church than you might be?
19 A Unquestionably.
20 Q Now as I understand it, did you not
21 mention I believe, you testified on direct that
22 you found that there was nothing in the doctrine
23 of the Catholic church which would preclude
24 removal of Theresa's life support?
25 A I was interested in whether there was
728
1 any Catholic doctrine which would morally and
2 ethically compel a practicing Roman Catholic to
3 choose one resolution or outcome in this case or
4 another. As a result of my investigation, I
5 concluded that the applicable doctrine does not
6 compel an outcome in either way.
7 Q So in essence of issues of Catholicism
8 in this case, it was a neutral point you felt did
9 not need mentioning?
10 A I believe that is what I testified to
11 earlier.
12 Q Why then in your report, though, did you
13 make the statement that the ward was raised as a
14 Roman Catholic, and according to the ward's
15 parents, continued to practice her religion, if
16 you felt the issue of religion was really a
17 neutral issue?
18 A What you are reading is a section about
19 Theresa. I was trying to convey some general
20 background information to the Court so that
21 whatever judge was going to ultimately make the
22 decision in this case would have the benefit of
23 some of the things that I knew about that may not
24 otherwise have come to his attention.
25 It was not intended to convey anything
729
1 other than a basic background fact about Theresa.
2 That was a religion that I had some indication
3 that she practiced.
4 Q You recall, though, that Mr. Schiavo, in
5 his interview, mentioned to you that since at
6 least his marriage to Terri that she was not a
7 practicing Catholic, that she did not attend mass,
8 did not receive communion. Do you recall that?
9 A Yes.
10 Q Is there any reason why in your report
11 you stated what the parent's beliefs as to Terri's
12 religious practices were and not the petitioner's?
13 A No conscious reason. I suspect, if you
14 pressed me to identify a reason, it would have
15 more to do with the fact that my wife was raised
16 as a practicing Roman Catholic. In spite of the
17 fact she attended services with me at our local
18 Episcopal church, she refers to herself as a
19 Catholic and indicated to me on a number of
20 occasions she will die a Catholic.
21 It's a matter of, I think, being raised
22 in the Catholic faith which is a matter, almost a
23 matter of culture as a matter of religion.
24 Q In your report, you refer to the report
of Dr. Karp, the neurologist?
730
1 A I believe so.
2 Q You received a copy of Dr. Karp's
3 report?
4 A I don't recall if I received a full copy
5 of the report. Certainly I recall it, but did not
6 see a full copy. I certainly saw pertinent
7 excerpts.
8 Q In your report of the guardian ad litem,
9 you refer to Dr. Karp's report, which indicates
10 that the ward is in a chronic vegetative state.
11 Also Dr. Karp's opinion that her chance of any
12 improvement to a functional level is essentially
13 zero. You mention in your report it appears that
14 Dr. Karp's opinion of the ward's condition and
15 prognosis is substantially shared among those
16 physicians who have recently been involved in her
17 treatment.
18 My question is this. I want to clarify
19 this. The word substantially, as I understand it,
20 means most, but not all. Did you find any doctor
21 who had a contrary opinion to Dr. Karp's?
22 A No. There was no doctor that had a
23 contrary opinion. The word substantially in that
24 context was intended to refer not to the various
25 doctors in terms of some, but not all, but rather
731
1 to the substance and quality of the opinion.
2 All of the doctors' reports that I
3 reviewed reached substantially the same results
4 and conclusions. Although they are not
5 necessarily identical they, in terms of repeating
6 the various factors verbatim, hence the word
7 substantially.
8 Q Before you mentioned that there was a
9 period of time of reflection for you in making
10 this report in coming to your final conclusion.
11 That in fact is one reason the status conference
12 was called. During that period of time, did you
13 have a conversation with attorney, Deborah
14 Bushnell, who was the attorney for the guardian of
15 the property, Mr. Schiavo, in which you mentioned
16 that you had a problem with Mr. Schiavo's
17 credibility because of the potential inheritance?
18 Do you recall a conversation like that?
19 A I did have a conversation with Deborah
20 Bushnell. It was a telephone conversation. She
21 had --
22 Q In that conversation, do you recall
23 there being a suggestion that if Mr. Schiavo made
24 a donation to charity of the inheritance, that
25 that would alleviate that credibility problem?
732
1 A The context of that conversation was one
2 of, I guess for lack of a better way to put it,
3 was lawyer to lawyer conversation, in which a
4 number of aspects of this case were discussed.
5 And I think Ms. Bushnell's intent was, and
6 certainly my intent was, to try to help me to
7 reach some resolution of the various issues that
8 were troubling me, including the financial issue.
9 Certainly the subject of alleviation of
10 that issue was discussed. I don't recall. I may
11 have mentioned, and I would not doubt at all that
12 I did mention, that one possible way for the
13 alleviation of the financial issue would be if Mr.
14 Schiavo were willing to forego the money.
15 Q Okay.
16 A Certainly we did discuss that. That was
17 a part of the conversation.
18 Q When you say forego the money, let me
19 read to you the sentence from paragraph five of
20 Deborah Bushnell's affidavit of February 2, 1999,
21 which is in evidence, which states: Richard
22 Pearse suggested to affiant that Mr. Schiavo agree
23 to donate to charity the inheritance he would
24 receive upon the ward's death.
25 Do you, upon hearing that, do you
733
1 necessarily disagree rather than use the word
2 forego, you actually might have suggested Mr.
3 Schiavo make a donation to charity?
4 A I probably did use the word donation as
5 a means of alleviating. I don't doubt that I used
6 the word donation. I will say that what you read
7 at least implies that I was making some sort of
8 offer to broker a settlement along those specific
9 lines. I don't think that implication is
10 correct.
11 My recollection of the conversation is
12 that we were simply discussing ideas about ways in
13 which some of the conflicts which were troubling
14 me might be resolved. That is one of the things
15 we talked about.
16 Q That conversation with Deborah Bushnell
17 was on October 13th. Also in evidence as part of
18 the suggestion of bias on the part of the guardian
19 ad litem, which is in evidence, is a October 21,
20 1998 letter I sent to Attorney Campbell which
21 outlines an offer of Mr. Schiavo to donate the
22 proceeds of the -- donate any estate of Theresa he
23 would inherit to charity if Mr. and Mrs. Schindler
24 dropped their objection to his petition. Did you
25 receive a copy of that offer?
734
1 A Yes.
2 Q Did you also receive a subsequent letter
3 informing you the respondents rejected that offer?
4 A Yes.
5 Q Did you mention in your report the offer
6 made by Mr. Schiavo?
7 A No.
8 Q I wanted to ask you as well, there is a
9 section of the report, in your report the ward's
10 husband, on Page 5, and your -- relaying to you
11 information you received from Mr. Schiavo
12 regarding the conversation he had with Terri
13 concerning the grandmother and uncle during a
14 train trip to Florida?
15 A That is the bottom of Page 4?
16 Q Yes.
17 A Uh-huh.
18 Q In your report, I'm reading from the
19 fourth line down, the last paragraph, he is
20 referring -- Mr. Schiavo indicates that she
21 related her feelings to an uncle of hers who was
22 severely injured in an automobile accident and was
23 comatose for a time. Does that section of your
24 report accurately reflect what Mr. Schiavo related
25 to you?
735
1 A I'm not sure it does. I'm not sure the
2 word "to" in that sentencing should not read
3 "about". Related her feelings about an uncle of
4 hers.
5 Q Okay.
6 A We had a discussion about this at my
7 deposition. Although my notes are not real clear
8 about it, I believe that the word "about" would
9 more accurately reflect what Mr. Schiavo told me.
10 Q In your report there is some information
11 which apparently was related to you by the
12 Schindlers to the effect they did not think
13 Terri's and Mike's marriage was going well prior
14 to the accident. Is there any reason that you did
15 not mention in your report that the ward was
16 seeking to have a child with Mr. Schiavo at the
17 time of the accident?
18 A I honestly don't -- I don't recall that
19 that information was imparted to me. If it was, I
20 don't recall it today. But no, there was no
21 particular reason. Mr. Schiavo may have indicated
22 that to me, but there was no -- I honestly don't
23 remember if that information was imparted to me as
24 I sit here today. Whether I had knowledge of that
25 at the time this report was written.
736
1 Q There is a reference in your report in
2 paragraph four which states until February 1993
3 the Schindlers were -- worked cooperatively with
4 Mr. Schiavo. In fact, he lived with them in their
5 home for a number of months following the ward's
6 accident. We have heard testimony that in fact
7 there were two residences that the petitioner and
8 respondents lived in together. And the first --
9 in the first, apparently they shared expenses and
10 rented together. In the second, it was a home
11 leased by Mr. Schiavo.
12 Is there any reason -- is there any
13 reason that your report did not reflect that
14 information that in fact the Schindlers were
15 living in the petitioner's home?
16 MS. CAMPBELL: I believe factually the
17 characterization is a little mistaken in the fact
18 that I believe the testimony was there were two
19 homes and they shared the expenses in both homes.
20 MR. FELOS: Correct.
21 THE COURT: What she is pointing out is
22 that both homes were leased in Mr. Schiavo's name;
23 is that correct?
24 MS. CAMPBELL: Yes. That part was fine.
25 I believe he said they shared the expenses in the
737
1 first home, not the second.
2 THE COURT: Thank you.
3 Q (By Mr. Felos) Is there any reason why
4 your report did not state that the Schindlers
5 lived in Mr. Schiavo's home, rather than what it
6 does say that Mr. Schiavo lived with the
7 Schindlers in their home?
8 A Well, I think the important concept of
9 the entire sentence was they were cooperating up
10 to that point. I intended to illustrate the
11 degree of cooperation pointing out they were
12 living together in the same household. I was
13 under the impression at the time that I wrote the
14 report that it was Mr. Schiavo living in the
15 Schindler's home. If I made a mistake, it is just
16 that.
17 But the main reason for the sentence, it
18 was to convey the cooperation and contrast of
19 relationship between these parties before and
20 after February 1993.
21 Q The impression that you said you
22 received that the parties were living in the
23 Schindler's home, did that come from Mr. and Mrs.
24 Schindler?
25 A I honestly don't remember. I did not
738
1 regard whose home it was as the most pertinent or
2 operative fact when I wrote that particular
3 sentence. I honestly, you know, I don't remember
4 who told me what regarding that particular living
5 arrangement. I believe I had information from
6 both Mr. Schiavo and from the Schindlers.
7 I tried to take notes during all these
8 interviews, but I find it difficult -- I guess
9 it's a matter of my own limitation. I find it
10 difficult to listen closely and take notes at the
11 same time, so my notes are not as complete as I
12 hope or wished they were.
13 Q You mentioned Mr. Schiavo's romantic
14 involvement in your report. Omitted from your
15 report is the fact that the petitioner's
16 involvement was with the approval and
17 encouragement of the respondents. Is there any
18 reason why that fact was not in the report?
19 A I'm not sure -- the answer is no. There
20 is no particular reason. I'm not sure it was ever
21 characterized for me in precisely the way you have
22 just done. My recollection is that the
23 relationships to which I alluded were known by all
24 the parties. I have the impression that it was a
25 matter that the Schindlers certainly understood
739
1 under all the circumstances. But I don't know
2 that anybody ever put it to me that they
3 encouraged the relationship beyond the knowledge
4 of
5 Q Do you believe that in a spousal
6 situation where one spouse has to make a decision
7 to remove life support from the other spouse that
8 there is always, that gives rise to the appearance
9 of a conflict of interest, assuming naturally that
10 one spouse is going to be the natural beneficiary
11 of the other spouse?
12 A I think there is always the appearance
13 of that conflict. However, I think that as part
14 of your juris prudence [sic] and part of indeed our
15 culture, we take it that spouses, that husbands
16 and wives don't allow financial motivation also to
17 overshadow decisions made out of love and concern,
18 which is to say that the appearance of a conflict
19 exists and is usually overridden by the
20 relationship, but not always.
21 Q You were asked by Attorney Campbell
22 about personal belief references. I wanted to
23 discuss that with you. From after taking your
24 deposition, I would like to recount to you what I
25 believe you have expressed to be your personal
740
1 beliefs regarding withdrawal of the cessation of
2 the artificial provision of nutrition and
3 hydration.
4 THE COURT: Mr. Felos, just ask -- the
5 deposition is not relevant at that point.
6 MR. FELOS: Okay. Thank you,
7 Your Honor.
8 Q (By Mr. Felos) Can you tell us what
9 your personal beliefs are? It's been a long day.
10 Can you tell us your personal beliefs regarding
11 the withdrawal of artificial nutrition, of
12 nutrition and hydration?
13 A It is my personal viewpoint that
14 although those measures are certainly included in
15 the concept of the artificial -- artificial means
16 of prolonging life, that they -- I personally
17 believe they have a different sort of a status
18 than would say a ventilator or some other more
19 intrusive means. I think there is a much less
20 clear cut line between artificial prolongation of
21 life and the provision of comfort and care which I
22 understand to be admitted by the law where food
23 and water are concerned.
24 Q So --
25 A That is my personal belief about it.
741
1 Q So in your, according to your own
2 personal belief system, artificial provision of
3 sustenance and hydration you consider to be
4 comfort care rather than medical treatment?
5 A I'm not sure I agree that there is -
6 that it is always one or the other. I don't think
7 there is -- I don't think it's a bright line. I
8 don't think there is a bright line test, you
9 know. I think that each case must be judged on
10 its own merits and circumstances. But I
11 certainly, as I said, I'm afraid I can't put it
12 any more artfully. I judge them to be in a
13 somewhat different category than other types of
14 artificial measures.
15 Q Do you believe that nasal gastric
16 feeding is a noninvasive medical treatment?
17 A It's my understanding the definition of
18 what is invasive, that it is not invasive. It
19 does not involve having to make any incisions in
20 order to put it in place.
21 Q I would like to read to you two
22 sentences from the Browning case that I am sure
23 you are familiar with. The trial court found that
24 death would occur within 49 days after removal of
25 the nasal gastric tube, therefore, Mrs. Browning
742
1 could only have been sustained beyond that time by
2 the administration of artificial, intrusive
3 medical measures. Would you agree that the
4 Supreme Court of Florida is of the opinion that
5 nasal gastric feeding is of an intrusive medical
6 measure?
7 A I think by what you read I would say
8 that Judge Penick, who was the trial court,
9 apparently thought so. Whether they do or not, I
10 don't know. But if they do, I disagree with their
11 characterization as intrusive by my understanding
12 from a medical point of view.
13 Q It's fair to say -- is it fair to say
14 you would think artificial provision of nutrition
15 and hydration are more in terms of comfort care
16 than you would medical treatment?
17 A That is a difficult question. As I said
18 before, it's very circumstantial.
19 Q In your deposition --
20 A I guess that I would have a tendency to
21 consider food and water to be closer to the
22 comfort care measures than other modalities such
23 as ventilators. Again, whether they are in every
24 circumstance depends on the circumstances.
25 Q In your deposition on Page 59, Line 6,
743
1 you said, but I have always had a difficult time
2 with the inclusion of nutrition and hydration as
3 artificial life support. I guess just from my own
4 personal point the view, food and water, you know,
5 I think are, you know, I think basic. I guess I
6 really have considered them over the years to be
7 more in terms of comfort than treatment, if you
8 will.
9 Do you believe that death from removal
10 of -- death from cessation of the artificial
11 provision of hydration and nutrition is painful?
12 A I do.
13 Q Now you are aware of course that the
14 Florida legislature in Chapter 765 has said that
15 individuals that the artificial provision of
16 hydration and nutrition is a medical treatment
17 which individuals have the right under the
18 circumstances of the statute to have withdrawn or
19 withheld?
20 A That is unquestionably the case, I
21 believe, under the current law.
22 Q Would you say that you disagree with
23 that legislative position?
24 A That individuals have the right to
25 choose to treat that -- those provisions as
744
1 artificial means of prolonging life? No. I don't
2 disagree with that.
3 Q Would you like to see that law changed?
4 A No. I really don't think I would like
5 to see the law changed. I'm very much an advocate
6 of the right of an individual to make individual
7 choices, but I think part and parcel of that law
8 is to be certain, or at least as certain as one
9 reasonably can be under a clear and convincing
10 standard, that those are in fact the choices of
11 the individual.
12 Q In your deposition I asked you that
13 question on Page 60, Line 19. Do you feel that
14 nutrition and hydration ought to be taken out of
15 the basket of choices that a patient has in
16 refusing medical treatment.
17 Answer. I would not be uncomfortable
18 with that concept. You know, I don't think food
19 and water is like medicine.
20 THE COURT: Your question?
21 MR. FELOS: Excuse me, Your Honor?
22 THE COURT: You don't just read
23 something from a deposition when the witness says
24 here -- what is the question?
25 Q (By Mr. Felos) I take it your answer
745
1 would be you would like the opportunity to explain
2 the, your answer at deposition and your answer
3 today at trial?
4 A Well, I don't think they are
5 inconsistent.
6 Q Okay.
7 A You asked me to state a personal view
8 when we had the deposition. I said that if the
9 legislature, in its wisdom, chose to take those
10 two measures out of the basket of choices that I
11 personally would not be uncomfortable with that
12 legislative decision. You also asked me today am
13 I uncomfortable with the current law which gives
14 an individual the right to choose.
15 Now if you are putting your question in
16 the context of what I would choose, then I would
17 feel free to state and to follow my own personal
18 beliefs, but if you are asking me -- I don't think
19 the two answers are inconsistant [sic].
20 Q The question though was if the
21 legislature decided to take the food -- take out
22 of the statute the patient's ability to cease
23 artificial provision of food and water, would you
24 agree with it? That was not the question in the
25 deposition.
746
1 THE COURT: The question was did he
2 think the legislature ought to be amended. The
3 deposition said if it was removed from the
4 legislature would he be uncomfortable. He said
5 no. What is inconsistent?
6 MR. FELOS: That is not the deposition.
7 The deposition question is do you feel that
8 nutrition and hydration ought to the taken out of
9 the basket of choices that a patient has in
10 refusing medical treatment.
11 THE COURT: Wasn't his answer I would
12 not be uncomfortable with that?
13 MR. FELOS: That is right.
14 THE COURT: What is inconsistent? He
15 would not be uncomfortable if it came out.
16 MR. FELOS: I don't think the question
17 in the deposition had anything to do with the
18 legislature.
19 THE WITNESS: I'm sorry, Mr. Felos.
20 That is how I understood it.
21 Q (By Mr. Felos) Would you agree or
22 disagree that Theresa Schiavo falls under the
23 definition of a patient that I'm going to describe
24 to you. A person who is otherwise stable,
25 medically speaking. and breathing on their own and
747
1 free from other illness, who while receiving
2 artificial -- who receives food and water
3 artificially, is not in a situation of pain or
4 anxiety as a result of the administration of
5 hydration and nutrition?
6 A Based on my knowledge of Theresa, I
7 would agree.
8 Q You would agree. Is it true that you
9 have a problem with removing the artificial
10 provision of nutrition and hydration from a
11 patient such as that?
12 A I have a problem with removing nutrition
13 and hydration in the absence of clear and
14 convincing evidence that is what the patient would
15 want. To that extent I have a real serious
16 problem. That was the basis of my conclusion in
17 my report.
18 Q In your deposition on Line 1, on Page
19 61, Line 1, you were not talking about Theresa
20 Schiavo in particular, but your statement was but
21 I guess I have a problem. I guess my problem is
22 with the idea that a person who is otherwise
23 stable, medically speaking, and breathing on their
24 own and free from other illness should have food
25 and water withheld even if administered by
748
1 artificial means, if those means are creating a
2 situation of pain or anxiety in and of themselves.
3 That is my personal viewpoint on the subject
4 matter.
5 Is it fair to say that you have a
6 problem removing artificial provision of hydration
7 and nutrition from a patient such -- a patient who
8 is in such a condition?
9 A I am going to ask you if you would
10 clarify your question to this extent, and that is
11 to supply what knowledge I might have under the
12 circumstances of that person's intentions.
13 Q That I don't know.
14 A Well, then I have this answer. If I
15 felt that the person, if there was a living will
16 that directed their withdrawal, or clear and
17 convincing evidence that was that person's desire,
18 then I think that should control. But if you
19 simply ask me if there is a patient in that
20 situation, and we have no evidence one way or the
21 other of what that person's wish would be, I
22 believe to that extent, yes, my personal belief
23 would incline me to leave the tubes alone.
24 Q At any time while you were, after,
2 S appointed as guardian ad litem or beforehand at
749
1 any time, did you inform the Court or notify the
2 Court of what your personal beliefs were regarding
3 removal of artificial provision of nutrition and
4 hydration?
5 A No.
6 MS. FELOS: I have no other questions.
7 THE COURT: Thank you. Redirect?
8 REDIRECT EXAMINATION
9 BY MS. CAMPBELL:
10 Q Mr. Pearse, with that last line of
11 questioning, let me repeat one more time then were
12 you able to set aside your personal beliefs in
13 making your report for Theresa Schiavo?
14 A I don't believe that my personal beliefs
15 had any bearing on the decision that I made. My
16 decision was based on my analysis as a guardian ad
17 litem, where I have legal training of the
18 available evidence and standard to be applied. I
19 think the law is such that a person has the right
20 to direct the withholding or withdrawal of these
21 measures.
22 But I think there is a converse right of
23 a person to have these measures sustained in the
24 absence of that kind of clear and convincing
25 evidence. In the final analysis, I just, I took
750
1 what information I had and I judged the sources
2 and I found, based on my own analysis, and in that
3 I felt the evidence did not meet the required
4 standard. That is the primary basis for my
5 opinion and recommendations.
6 Q Thank you. Mr. Felos has provided you
7 with some information concerning testimony by
8 Scott Schiavo and Joan Schiavo concerning
9 Theresa's intent as to the removal -- her views of
10 life support. Additionally, through that
11 testimony, it was learned that this information
12 only has come about through the litigation and
13 conversations that they have had with Mr. Felos.
14 Would you find it equally as important
15 in weighing the credibility of their testimony
16 whether or not they ever came forward during the
17 last nine years of this to state either to Michael
18 or to the Schindlers what Theresa's views would
19 have been?
20 A Certainly the circumstances whereby that
21 sort of information was imparted would bear on the
22 credibility of the person making the statements.
23 Obviously, there are a host of factors that would
24 have to be considered. Their knowledge of the
25 proceedings and the controversy. Obviously, if
751
1 they have knowledge of it and did not come forward
2 till late in the game, that might not reflect
3 positively.
4 On the other hand, if they did not know
5 about it and came forward as soon as they found
6 out, it may be neutral or have a positive effect
7 on credibility. There is a whole host of factors
8 that go into judging the credibility or
9 believability of a witness. I am at a
10 disadvantage when it comes to the statements made
11 by these individuals because I did not talk to
12 them and I have not talked to them.
13 I don't know the circumstances of the
14 impacting of this information, other than what has
15 been presented to me by you and Mr. Felos. I'm
16 simply not in a position to judge independently
17 the credibility of those two declarants in terms
18 of the information they have given. You know, if
19 I had the opportunity at the time of my
20 investigation and if I found it credible, it might
21 have changed my opinion. If I found it not
22 credible, it might not have. Except to -- other
23 than to say that, I really can't comment further.
24 Q In reviewing the records of Terri at the
25 nursing home or in your conversations with any of
752
1 the staff, did anyone relay or did you see notes
2 written to the effect of Theresa laughing at
3 jokes?
4 A Certainly it was related to me Theresa
5 expressed emotions. Well, Theresa had the outward
6 manifestation of expression of emotions at various
7 times and under various circumstances. She
8 sometimes laughs. Sometimes cries. Sometimes
9 makes sounds. She sometimes moves. When I spoke
10 to the Schindlers about that, they were quite
11 convinced that her responsiveness was as a result
12 of their presence. Their involvement. Those
13 kind of stimuli.
14 The staff that I spoke with at the
15 nursing home and the reports that I read which
16 alluded to this situation generally maintain that
17 these responses were random. Not associated with
18 any particular stimulus. Certainly I know that
19 the Schindlers indicated to me that they felt
20 Theresa responded to them. The nursing home folks
21 said that Theresa made responses, but not in a
22 manner that they could correlate.
23 I don't recall whether anybody ever told
24 me that she laughed at a joke, the implication
25 that she heard and understood something that made
753
1 her laugh. I don't recall ever hearing that from
2 anybody.
3 Q There has been testimony in this case
4 about at different times Terri and Michael living
5 in the Schindlers' condo, living in the
6 Schindlers' home in Pennsylvania, and testimony
7 concerning Michael living with the Schindlers in a
8 residence leased under Michael's name. Were any
9 of these details provided to you by either party
10 along your investigation?
11 A I suspect that some of the details were
12 provided during the course of my investigation
13 both by the Schindlers and by Mr. Schiavo. As I
14 indicated, unfortunately, my notes are a little
15 sketchier than I would like them to be in terms of
16 trying to recall the specifics of conversations,
17 you know, after that kind of time has passed since
18 they occurred.
19 I have the impression we talked
20 historically about Theresa's upbringing,
21 relationship with Michael, her marriage. The move
22 from Pennsylvania, I believe, to Florida. The
23 relationship of Theresa and Michael to her
24 parents. All of these matters were discussed at
25 some length both by the Schindlers and Michael
754
1 Schiavo. So I'm sure that some of the details you
2 are talking about were imparted to me. I don't
3 have detailed notes about them.
4 Q Is there any particular reason you did
5 not mention the offer that was made from Michael
6 Schiavo to my clients?
7 A Well, I guess that is probably some of
8 my training as a trial lawyer showing itself. It
9 has been practically ingrained in me from law
10 school that evidence of settlement negotiations
11 are generally a subject matter not appropriate to
12 place before in the consideration of the judge or
13 the jury who is going to ultimately determine the
14 facts or outcome of a case.
15 The bottom line about the offer and the
16 rejection of the offer and that whole scenario was
17 that the same financial conflict that existed at
18 the outset of all of that still existed after the
19 offer was made and rejected, so the conflict
20 itself remained unresolved and was not addressed
21 further by either party to my knowledge.
22 MS. CAMPBELL: Thank you. No further
23 questions.
24 THE COURT: Mr. Felos, anything
25 further?
755
1 RECROSS-EXAMINATION
2 BY MR. FELOS:
3 Q Yes. Well, we all remember, or
4 hopefully remember, the Evidence Code from law
5 school days. I'm sure if we looked, we could find
6 a provision that says evidence of settlement
7 negotiations are not admissible for most purposes
8 at trial, but then again, you are not acting in
9 your report in the capacity as a jury or a judge.
10 Isn't it a fact that there are many,
11 many types of information in your report, listed
12 in your report, that would not be admissible in
13 court because they are hearsay or double hearsay?
14 Isn't that true?
15 A I would say yes. It is true. Certainly
16 there are many elements of what's in the report
17 that would not be directly admissible over
18 objection.
19 Q Yes. Wouldn't you also say that the
20 offer made by Mr. Schiavo had some relevance to
21 his credibility?
22 A Certainly it had relevance to his
23 credibility.
24 MR. FELOS: Nothing else.
25 THE COURT: Ms. Campbell?
756
1 FURTHER REDIRECT EXAMINATION
2 BY MS. CAMPBELL:
3 Q Did the Schindlers give you any reason
4 as to why the offer was made? Why they believed
5 the offer was made?
6 MR. FELOS: I object to that. We are
7 now on redirect, and what the Shindlers' [sic] beliefs
8 may --
9 THE COURT: She gets to go last. This
10 is her witness. You questioned whether or not the
11 offer had relevance to credibility, so I'm sensing
12 this question has a lot to do with your question.
13 So I'll overrule your objection.
14 MS. CAMPBELL: Thank you.
15 A The response of the Schindlers as
16 conveyed to me on the settlement offer was that
17 first of all it was rejected. Moreover, they felt
18 that Michael had reason to know that there was no
19 circumstances under which they would accept his
20 offer. So they conveyed to me I believe that they
21 regarded the offer as throw away. Not one that
22 was necessarily made in good faith or knowledge
23 that there was any chance that it would be
24 accepted.
25 Q If I may approach. I'm showing you what
757
1 is in evidence, a letter dated October 21st from
2 Mr. Felos to me. This is the letter that Mr.
3 Felos just questioned you about. Please take a
4 moment to look at those two pages. Do you see
5 contained within that letter, does it show a
6 carbon copy or [X]erox copy going to you?
7 A No. It does not indicate that a copy of
8 this was sent to me. However, there is a copy of
9 this letter in my, file, so I did see this letter
10 at some point.
11 MS. CAMPBELL: Thank you. No further
12 questions.
13 THE COURT: Thank you.
14 MR. FELOS: I do, Your Honor.
15 THE COURT: Pardon me?
16 MR. FELOS: May I ask another question?
17 THE COURT: One question, Mr. Felos.
18 FURTHER RECROSS-EXAMINATION
19 BY MR. FELOS:
20 Q However the Schindlers may have
21 characterized to their counsel who then
22 characterized to you their impression of this
23 settlement offer, while that offer was made and
24 open, wasn't there a -- wasn't there a possibility
25 that if accepted or wasn't there an open
758
1 possibility that offer may have been accepted, and
2 if accepted, my client would have not received a
3 substantial amount of money; isn't that correct?
4 A Sure. That is absolutely correct, if
5 they had accepted the offer. If the offer was
6 accepted, the case would have been settled at that
7 point. No doubt about that.
8 MR. FELOS: I have no other questions,
9 Your Honor.
10 THE COURT: Thank you.
11 MS. CAMPBELL: Nothing further.
12 THE COURT: I have a question. Mr.
13 Pearse, you spoke about things that troubled you.
14 What essentially troubled you were conflicts of
15 about, if you will, am I correct in assuming from
16 your report and testimony that the real focus of
17 inquiry is the intent of the patient. And that
18 had two days prior to your signing your report you
19 had been furnished with a copy or original of a
20 living will that you determined to be legitimate,
21 would all those troublesome things sort of have
22 vanished?
23 MR. PEARSE: Unquestionably.
24 THE COURT: Okay.
25 MR. PEARSE: If I had been furnished
759
1 with a living will or any credible writing. Even
2 that.
3 THE COURT: While I'm saying a living
4 will, you know what that document is?
5 MR. PEARSE: If Terri Schiavo had signed
6 a living will directing the withholding or
7 withdrawal of artificial life prolonging
8 procedures in the event of her being in this
9 conditioning, a terminal condition, persistent
10 vegetative state, I have would absolutely had no
11 problem at all with endorsing the removal of those
12 measures.
13 THE COURT: So the troublesome things
14 you spoke about are not a separate item of
15 consideration. They simply go to the quality of
16 the verbal testimony you had regarding her intent?
17 MR. PEARSE: The quality of the overall
18 evidence that I had regarding her intent.
19 THE COURT: Okay. Any questions based
20 upon the Court's inquiry?
21 MR. FELOS: No, Your Honor.
22 THE COURT: Thank you.
23 MR. PEARSE: May I be excused, Your
24 Honor?
25 THE COURT: Is he under subpoena?
760
1 MS. CAMPBELL: Yes.
2 THE COURT: Free from further testimony
3 as far as you are concerned?
4 MS. CAMPBELL: Yes.
5 THE COURT: Mr. Felos?
6 MR. FELOS: Yes.
7 THE COURT: Thank you. You are free.
8 Mr. Felos, I think you still have evidence. Ms.
9 Campbell, it's twenty to 6:00. Do you wish to put
10 on any additional witness this afternoon?
11 MS. CAMPBELL: There is one here. She
12 can come back tomorrow morning. I do have one
13 additional witness, hopefully, that has arrived at
14 the Tampa airport at this point in time. I
15 anticipate both witnesses to be relatively short.
16 THE COURT: So is there an objection to
17 hearing this additional witness? Does anybody
18 have commitments that would preclude them having
19 this last witness this evening?
20 THE COURT: Let's take ten minutes.
21 MR. FELOS: Excuse me. My co-counsel
22 has informed me we do have a meeting with
23 Dr. Barhnill [sic] this evening.
24 THE COURT: What time?
25 MS. CAMPBELL: To call him when we get
761
1 out of here around 6:00.
2 THE COURT: Do you have to call him at
3 6:00?
4 MS. FELOS: We are to call him and set
5 up a time which is shortly after 6:00 was the
6 idea.
7 THE COURT: Well, if that creates a
8 problem, I guess we probably should break now and
9 your witness can return tomorrow.
10 MS. CAMPBELL: Yes.
11 THE COURT: That means we have two
12 witnesses in the morning of yours, not to hold you
13 to the number. So we should be finished with your
14 testimony by 10:30, plus or minus?
15 MS. CAMPBELL: I imagine.
16 THE COURT: Then get to rebuttal, if
17 any. Then go to rebuttal and closings, if time.
18 If not, do closings on Friday. How many witnesses
19 in rebuttal do you anticipate?
20 MR. FELOS: At this time, four.
21 THE COURT: Okay. Hold you to it.
22 Questions and answers. I don't want to hear all
23 this testimony one more time. All right. Stand
24 in recess until 9:00 a.m. tomorrow morning by my
25 watch.
762
1 (THEREUPON, COURT RECESSED AT 5:45 ON 1-26-00
2 AND COMMENCED AGAIN ON 1-27-00 AT 9:00 A.M.)
3 THE BAILIFF: All rise. Circuit court
4 of Pinellas County is back in session.
5 THE COURT: Be seated, please.
6 Ms. Campbell, are you ready to proceed?
7 MS. CAMPBELL: Yes, Your Honor. I would
8 like to call Diane Meyer to the stand, please.
9 THE BAILIFF: Stand right here, please.
10 Face the judge. Raise your right hand to receive
11 the oath.
12 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY
13 THE COURT.)
14 DIRECT EXAMINATION
15 BY MS. CAMPBELL:
16 Q Good morning.
17 A Good morning.
18 Q Please state your full name.
19 A Diane Christine Meyer.
20 Q Where do you live?
21 A I live in Doylestown, Pennsylvania.
22 Q Did you just fly in?
23 A Yes. Yesterday. Late.
24 Q How do you know Terri Schiavo?
25 A Terri and I grew up together. Our
763
1 parents were friends. Terri and I became
2 friends. We spent holidays and vacations
3 together. Our whole families were friends.
4 Q What is your educational background?
5 A I have a Bachelors Degree in psychology
6 from LaSalle University. I am a practicum short
7 of a Masters Degree in counseling/psychology.
8 Q What is your occupation?
9 A I'm a child welfare social worker.
10 Q Have you ever testified in court before?
11 A Yes.
12 Q What do you do as a child welfare social
13 worker?
14 A Abuse investigations. When a report of
15 abuse comes in to Bucks County, I am one of the
16 investigators that goes out and determines whether
17 it's indicated or unfounded and provides services
18 to families in need in the County of Bucks.
19 Whatever services the family might need.
20 Q How old are you?
21 A Thirty-six.
22 Q Do you know how old Terri Schiavo is?
23 A Thirty-six.
24 Q Can you please describe, when you say
25 you grew up together, describe the activities you
764
1 did.
2 A Our families would spend holidays
3 together. I remember going up to visit the
4 Schindler's home frequently when I was young. I
5 used to joke with Mrs. Schindler. I was kind of
6 hyperactive. She used to say that when I was
7 coming, hide all the breakables.
8 We would play. My brother, Steven, and
9 Bobby are the same age. They were friends. We
10 went on family vacations every summer together.
11 The Schindlers would go to Stone Harbor and we
12 would go down and visit. We would go to Cape May
13 and they would come and visit us. We took the
14 same weeks together and ended up taking two weeks
15 of summer together.
16 Q Approximately when did this friendship
17 or closeness of the families start?
18 A All growing up we were friends. Terri
19 and I became particularly close right after we
20 graduated high school. That summer.
21 Q Where did you go to high school?
22 A Villages of Marie.
23 Q Was that a Catholic school?
24 A Private Catholic.
25 Q Do you know where Terri went to school?
765
1 A Archishop [sic] Wood.
2 Q Was that close in proximity to you?
3 A Yes.
4 Q Did you belong to the same church?
5 A No.
6 Q What is your religious preference?
7 A Roman Catholic.
8 Q Are you actively practicing?
9 A Yes.
10 Q Do you attend mass regularly?
11 A Yes.
12 Q Have you pretty much growing up your
13 whole childhood?
14 A I'm sorry?
15 Q Have you pretty much had the same
16 practices, religious-wise, growing up?
17 A Yes.
18 Did you ever work with Terri?
19 A Yes. We did. We held a couple of
20 summer jobs together. Facelifters Kitchens.
21 Telemarketing.
22 Q How often would you generally see
23 Terri, would you say, after high school?
24 A In the summers, it would be daily. We
25 saw each other every day. I know the summer after
766
1 high school graduation it was I would be at her
2 house one night and she at mine the next. We were
3 back and forth. Our parents must have split our
4 food bills because we were together so much.
5 Q How often would you speak to each other?
6 A Everyday during the summer. Then I went
7 away to college. I want to Scranton University in
8 September. She stayed home. So I would assume --
9 I came home in the beginning almost every
10 weekend -- I saw her whenever I was home. Then
11 we would talk on the phone, probably weekly, at
12 the very least while I was away. She would come
13 and visit me up in Scranton.
14 Q How would you describe Terri as a young
15 adult?
16 A Terri is one of those people that I
17 always say that you are lucky that you get to
18 know. She is just good. I used to say she was
19 the light side of life. I looked at somebody and
20 would say what an ugly dress. She looked at them
21 and would say, but it looks good on her. I never
22 ever heard her really say anything bad about
23 anyone. She was just good. Funny. Pretty.
24 Q Did you and Terri ever discuss any end
25 of life issues?
767
1 A There was an incident that happened one
2 summer where I told a poor joke about Karen Ann
3 Quinlan. I remember distinctly because Terri
4 never lost her temper with me. This time she did.
5 She told me that she did not find the joke funny.
6 She did not approve of what was going on or what
7 happened in the Karen Ann Quinlan case.
8 I remember one of the things she said is
9 how did they know she would want this. How did
10 they know she wouldn't want to go on. She was so
11 strong about it. Terri, to take that strong of a
12 stand and say something so strongly and come back
13 at me the way she did, it really embedded in my
14 memory.
15 Q Do you remember what the joke was?
16 A Yes. Do you want me to say it?
17 Q Yes.
18 A I apologize for the joke. It was, "What
19 is the state vegetable of New Jersey?"? And the
20 punch line was Karen Ann Quinlan.
21 Q Do you recall when that was?
22 A In trying to go back through my�- my memory,
23 the nearest I can track it was after we graduated
24 high school, I believe it was, because my parents
25 1 gave me a car and I remember us being in that car.
768
1 It was the summer of '82.
2 Q Do you recall when the Karen Ann Quinlan
3 case was being discussed in the news?
4 A Now I do. Now I remember it was in the
5 70s. At the time I did not remember, when we
6 originally talked. Now I know it was in the 70s
7 Q Is there anything that has triggered
8 your memory as from timing as to why this is
9 coming about later?
10 A When I was asked those questions in
11 deposition, I kept saying I wonder why, what
12 brought that joke up. What I remembered was a
13 replay of the telemovie regarding her, Karen Ann
14 Quinlan. I remember watching it in Scranton in my
15 lounge where I was living that year. So it falls
16 in in the time frame, it must have been, that that
17 telemovie resurfaced the joke.
18 Q Do you remember who was featured in the
19 telemovie movie?
20 A I think Brian Keith. She was the
21 daughter of the guy from the Untouchables. I
22 can't remember her name. I remember it was the
23 daughter of the guy from the Untouchables was in
24 it.
25 Q Was this a long period of time of a
769
1 discussion between you and Terri?
2 A It was -- probably there was not much of
3 a discussion because I did not have much to come
4 back for obviously. Obviously, I was very wrong
5 at telling that joke. In retrospect, it's not a
6 very funny joke. I don't know if it was a
7 discussion. It was more of a dialogue or
8 soliloquy on the part of Terri.
9 Q Did she hold any grudge against you?
10 A No. No. She spoke her mind. That was
11 it. I'm sure we were probably laughing shortly
12 thereafter.
13 Q When was the last time you talked to
14 Terri?
15 A I'm not sure of the year. Let me go
16 back. I think I can go back in memory. Probably
17 in '85 or '86.
18 Q Do you recall what the discussion was
19 about?
20 A Terri and I had met in the parking lot
21 of her church, Our Lady of Good Counsel, to talk
22 about difficulties we were having in our
23 friendship. The discussion was about -- she laid
24 out these things that I had apparently said or
25 done that had hurt her. And again, it was not
770
1 much of a dialogue because she laid out her
2 husband said I did this or her husband said I was
3 not a good friend for this reason.
4 I had nothing to come back from.
5 Basically, if you are going to believe what is
6 happening, there is nothing I can say.
7 Q Did you ever have any concern about
8 issues for Terri around that time frame?
9 A Yes. I did.
10 Q What were those concerns?
11 A Her eating habits or lack of eating
12 habits. I had stayed with Terri, I guess about a
13 week. A Monday through Friday kind of thing while
14 her husband had gone to training school. I think
15 it was called Ronald McDonald College. I stayed
16 with her.
17 During that period of time that week --
18 they were living in a townhouse or condo they had
19 rented. She had not eaten much at all. As a
20 matter of fact, Friday night Terri and I liked to
21 go to eat Chinese and pig out on Buddha's Delight.
22 I think it was the American Music Awards
23 were on because her mother called during it to
24 sing while Stevie Wonder was singing "I Just
25 Called to Say I love You". Her mother had done
771
1 that. That is why I remember that. I forced
2 Terri -- was prompting her to eat.
3 When her husband had returned I had,
4 within that week of returning, mentioned to him
5 that I was concerned about her eating. He had
6 said everything was okay. Then time had passed.
7 I'm not sure how much time. And I approached him
8 again, because she still was not eating, and I was
9 told she was fine and to mind my own business.
10 Q Did Terri ever have a weight problem?
11 A Yes. She did growing up. She lost a
12 lot of weight in her senior year in high school
13 through Nurti-System [sic].
14 Q Was she thin at the time you are talking
15 about?
16 A Yes.
17 Q Is there any other insight you can tell
18 the Court, insight to help the Court as to Terri's
19 wishes as to withdrawl [sic] of feeding tubes?
20 A I just go back to that conversation that
21 she, for her to express such strong feelings, it
22 just was not her. To come back at me that way as
23 strongly as she did. And I have to believe that
24 she felt very strongly about that.
25 Q Did your -- was Terri close to your
772
1 grandmother?
2 A My Grandmother Cuter? I think she was.
3 Yeah. She liked my grandmother.
4 Q Did your grandmother also live in the
5 Philadelphia area?
6 A Yes.
7 Q Did she pass away during the time of
8 your and Terri's friendship?
9 A Yes. She did.
10 Q Do you recall Terri ever making any
11 comment to you regarding the circumstances of her
12 death one way or the other?
13 A Not right now.
14 Q What do you believe, you personally
15 believe, are the Catholic beliefs in the
16 withdrawal of life support issues?
17 MR. FELOS: Your Honor, I object, number
18 one, as to relevance as to what this witness
19 believes the Catholic church's position is, and
20 the other as to the competency of the witness to
21 testify as to what the beliefs of the church are.
22 THE COURT: Well, she's a practicing
23 Catholic, so as to the second objection, I'm not
24 sure that is valid. What earthly relevance is her
25 beliefs?
773
1 MS. CAMPBELL: We've heard testimony
2 before from a priest's level as to what the
3 Catholic beliefs are. There was some discussion
4 in that as to what actual practicing Catholics
5 would believe circumstances would hold. What the
6 church's beliefs would be. I think it would be
7 relevant for this witness as to someone in the
8 same area.
9 THE COURT: Different church, different
10 priest.
11 MS. CAMPBELL: Same religious beliefs.
12 Close friends. I think what her personal beliefs
13 are and what the church's beliefs are are
14 relevant. Not from an academic level, but from
15 her personal level as a practicing Catholic.
16 MR. FELOS: Whatever this witness may
17 believe that the doctrine of the Catholic church
18 is is hers. It would be sheer speculation to
19 infer from that what somebody else may have
20 believed.
21 THE COURT: Well, you know, if you would
22 have asked her, I would have probably allowed it
23 to show possible bias. I'll allow it. We don't
24 have a jury. Please proceed.
25 Q (By Ms. Campbell) Thank you. You may
774
1 I answer the question.
2 A Actually, can you ask it again? I'm not
3 sure.
4 Q What do you believe are the Catholic
5 beliefs in the withdrawal of life support issues?
6 A My understanding of what the Catholic
7 church says is that life is to be protected as
8 long as there is life. That withdrawal of life
9 support is not along the lines of Catholic
10 doctrine.
11 Q Why did you want to come and testify in
12 this trial?
13 A Because it's right. Because it was the
14 right thing to do. And I wanted to speak to what
15 my conversation was with Terri and let the Court
16 hear it.
17 MS. CAMPBELL: Thank you. I have no
18 further questions at this point.
19 THE COURT: Cross-examination?
20 CROSS-EXAMINATION
21 BY MR. FELOS:
22 Q Is it Miss Meyer or Mrs. Meyer? Are
23 you married?
24 A Miss Meyer.
25 Q Are you married, ma'am?
775
1 A No. I am not.
2 Q Have you ever been married?
3 A No, sir.
4 Q I'm George Felos, attorney for Mr.
5 Schiavo. As I understand your testimony, the
6 thing that strikes you the most about the
7 conversation with Terri about the Karen Ann
8 Quinlan case was her stong [sic] reaction?
9 A Um-hmm. Yes, sir.
10 Q Okay. I think you said it's the first
11 time she ever got angry at you?
12 A Yes, sir.
13 Q That is really the primary thing that
14 sticks in your mind? My gosh, what a reaction
15 from Terri when I told that joke?
16 A Yes, sir.
17 Q As I understand it, Terri was a very
18 compassionate person?
19 A Yes, sir.
20 Q Very loving person?
21 A Yes, sir.
22 Q Never wanted to look down on somebody.
23 In fact, you gave an example if you said, hey,
24 it's black, she'd say it's white because she was
25 that type of person and did not want to look at
776
1 the bad side?
2 A Correct.
3 Q Would you agree that the joke you told
4 is offensive?
5 A Yes, sir.
6 Q Would you agree that even the average
7 person may find that joke offensive?
8 A Yes, sir.
9 Q Would you agree that Terri in
10 particular, being who she was, would find it
11 particularly offensive?
12 A Yes.
13 Q Now would you agree that the joke is
14 offensive whatever one's beliefs may be about
15 withdrawal of life support?
16 A Yes, sir.
17 Q So the fact that an individual, any
18 individual, and especially Terri, would have a
19 strong and hostile reaction to that joke just for
20 the fact that it's being told would not surprise
21 you; would it?
22 A No.
23 Q Now I believe that you mentioned that
24 your -- that Terri's comment was she didn't
25 approve of what the parents are doing?
777
1 A She did not approve of what happened.
2 What the parents are doing.
3 Q What the parents are doing. Would you
4 agree that in the Karen Ann Quinlan case that what
5 the parents were doing or doing was trying to
6 remove or seeking permission to remove the
7 respirator from Karen Ann Quinlan?
8 A Yes sir.
9 Q Wouldn't you agree that the statement " I
10 don't agree with what the parents are doing,"
11 would make no sense if the parents had already
12 done the act?
13 A I see what you're saying there, but what
14 I'm saying is what I believe Terri was talking
15 about is it was ongoing. That they had removed --
16 they had fought to have it removed by that point,
17 but what you know you are doing, we are doing,
18 it's semantics. It was their position I think she
19 was objecting to.
20 Q Could you repeat that answer again? I
21 didn't quite understand that.
22 A Sure. What I'm saying is what you are
23 talking about is one word. "Are" as opposed to
24 "were". I'm saying, in the course of memory, it
25 is semantics. It was the opinion. What was
778
1 important to me is what she was expressing in
2 terms to her objection to what their intent was.
3 Q Do you recall that I took your
4 deposition? I didn't, but Mrs. Felos took your
5 deposition?
6 A Yes, sir.
7 Q That was, my gosh, this month. Just a
8 couple weeks ago. January 10, 2000?
9 A Yes, sir.
10 Q You were asked, on Page 37, Line 19,
11 Question. Okay. Let me go back to that
12 one conversation then again. If you can recall.
13 Answer. Um-hmm.
14 Question. And can we assume that the
15 Karen Ann Quinlan case was fairly prominent in the
16 news at that time when you told the joke?
17 Answer. I would assume so. Otherwise
18 the joke by now is old hat. I mean, so I assume
19 it was prominent at that time.
20 Wouldn't it seem logical to you that --
21 A If you read further --
22 0 -- that the case was in the news and
23 prominent at that time?
24 A That was only a part of the deposition,
25 I believe. By the way, I did not receive a copy
779
1 to, I asked to stipulate to, and I had not
2 received a copy to sign off on. So I'm not sure I
3 can say that, you know, it's accurate.
4 But my memory of the deposition was that
5 I was asked that question on several occasions.
6 On several occasions I answered similarly to that.
7 That I could not state for sure it was in the news
8 at that time, but something had obviously prompted
9 a resurface of the joke.
10 Q Ma'am, I don't believe you said in your
11 deposition something prompted a resurface of the
12 joke, but let's go back to your deposition. I
13 asked on Page 25:
14 Question. I guess the Supreme Court,
15 the court, it was still in the court at that point
16 is your understanding?
17 Answer. I honestly don't remember at
18 that time. I assume by remembering her statement
19 it was or just had recently been.
20 After your deposition two weeks ago,
21 from that, from the time of your deposition to
22 your testimony today --
23 A Um-hmm.
24 Q -- have you spoken with anyone about
25 your testimony or about this case?
780
1 A Yes, sir.
2 Q Okay. Who have you spoken with?
3 A I have spoken with -- I'm sorry. Ms.
4 Campbell. And I have spoken with my father.
5 That's pretty much it.
6 Q Um-hmm.
7 A I told work about why I was coming, but
8 not what the content was.
9 Q Did you speak with any of the
10 Schindlers?
11 A I have spoken with the Schindlers, but
12 not directly about testimony.
13 Q Well, has someone told you, between the
14 date of the deposition and the date of your
15 testimony today, you know, gee, the Karen Ann
16 Quinlan case occurred in 1975 and 1976?
17 A No, sir. The deposition prompted me
18 because I was pressed within it and was not able
19 to answer it, prompted me to go back and look.
20 Q When did you talk to Ms. Campbell?
21 A I talked with her -- I talked with her
22 several times this week because --
23 Q Is it your testimony that Ms. Campbell
24 didn't mention to you anything about the fact that
25 we had newspaper articles about the Karen Ann
781
1 Quinlan case which showed the dates were in 1975
2 or 1976?
3 A No, sir. She did not.
4 Q And --
5 A I mentioned to Ms. Campbell that in my
6 deposition I had difficulty remembering when the
7 Karen Ann Quinlan situation was. I felt you were
8 going for that in the deposition, to be perfectly
9 honest. So I went back, and it was in going back
10 that I realized what had probably prompted it was
11 I remembered seeing the telemovie.
12 Q I'm not saying there is anything wrong
13 with Ms. Campbell telling you about this.
14 A I'm saying it did not happen.
15 Q It's a little hard for -- please. It's
16 a little hard for me to believe that as good an
17 attorney as she is she would not say to a witness
18 we have some evidence now showing when the case
19 was, does that jog your recollection. Did that
20 help you understand the dates. I mean, Ms.
21 Campbell never mentioned anything like that to
22 you?
23 A I had talked to her about it prior to
24 that.
25 Q What did you tell Ms. Campbell about it?
782
1 A I told Ms. Campbell that, as I said to
2 you in the deposition, when we were talking in the
3 deposition -- actually, I was talking to I assume
4 your wife -- that I felt that they were
5 questioning very strongly on the dates. I was
6 weak on that because I didn't know it.
7 So I went back to find out when the
8 Karen Ann Quinlan thing had happened and
9 remembered seeing -- because I could not remember
10 what prompted the joke -- and remembered seeing
11 the telemovie.
12 Q The statement of Terri was she didn't
13 approve of what Karen Ann Quinlan's parents were
14 doing? Not had done, but were doing?
15 A I remember her saying were doing or are
16 doing.
17 Q You remember her saying what the parents
18 are doing?
19 A Um-hmm.
20 Q Did she elaborate anymore about what it
21 was particularly that she had a problem with?
22 A What she had talked about was that, and
23 what I remember specifically was her talking about
24 how did they know what she feels. How did they
25 know. And saying, you know, going on and on about
783
1 what she felt, meaning Karen Ann, how her parents
2 could make that choice for her.
3 Q In your deposition on Page 23
4 A Um-hmm.
5 Q -- you made the statement -- these were
6 your words about what Terri said to you about why
7 she didn't approve of what the parents were
8 doing.
9 How do they know that she wants this?
10 She may be there and want to continue living.
11 A Um-hmm.
12 Q Well, let's take a look at it. Is that
13 your testimony now as to what Terri told you?
14 A Yes. That is what I remember.
15 Q How do her parents know that she wants
16 this, would you agree that that's a question of
17 Karen Ann Quinlan's intent?
18 A Yes, sir.
19 Q So Terri, is it fair to say Terri was
20 saying, well, maybe it's not good for the parents
21 to do this if they don't know what Terri -- if
22 they don't know what Karen Ann Quinlan wants? If
23 they don't know what her intent is?
24 A Correct. But the second statement --
25 Q Well, let me --
784
1 A Um-hmm.
2 Q So couldn't one reasonably conclude in
3 that statement that if Terri was aware or knew
4 that Karen Ann Quinlan's parents knew that this is
5 what their daughter wanted she may have had a
6 different reaction?
7 A Possibly. That's me making an
8 assumption as to what she would have done.
9 Q But you do agree that one question, that
10 area of concern that Terri had was, gee, do the
11 parents know what Karen Ann Quinlan wanted? How
12 do they know what she wants?
13 A Yes.
14 Q Okay. Because that is what you said she
15 said. How do they know what she wants.
16 A Um-hmm.
17 Q There is a second part to what you said
18 Terri told you. She may be there and want to
19 continue living.
20 A Um-hmm.
21 Q Well, the second part, she may want to
22 continue living, also goes to the question of what
23 Karen Ann Quinlan's intent was; wouldn't you
24 agree?
25 A Yes.
785
1 Q Terri seems to be sharing that if it's
2 Karen Ann Quinlan's intent to want to remain alive
3 that she thinks that Karen Ann Quinlan should
4 remain alive; is that a fair statement?
5 A Yes.
6 Q The statement that you claim Terri made
7 "she may be there" --
8 A Um-hmm.
9 Q -- what did you take that to mean?
10 Anything in particular?
11 A It meant that there may have been some
12 -- at the time I believe, and in retrospect what I
13 interpreted that to mean is Karen's apparent will
14 to live, whatever it is that makes a person a
15 person, was there.
16 Q Would you agree with me when Terri
17 allegedly said "she may be there" is that she is
18 saying, gee, if Karen Ann Quinlan has
19 consciousness, awareness, she may want to live?
20 A Yes. Well --
21 Q Can we equally assume from that that if
22 in fact Karen Ann Quinlan had no consciousness and
23 was truly unconscious that Terri may not have had
24 an objection or reaction?
25 A No. Because what I took the
786
1 consciousness to mean was not that. Not
2 consciousness in terms of that there was something
3 there. That Karen was there and that we couldn't
4 make that judgment as to whether or not --
5 Q Terri does not say that. She just
6 said --
7 A You are asking me for what I assume
8 Terri meant. That is what I assumed Terri meant.
9 Q But she said she may be there -
10 A Right. And you asked me --
11 Q -- and want to continue living?
12 A Correct.
13 Q If someone has no consciousness, can
14 they form an intent as to what they want?
15 A I don't know the answer to that. I
16 don't know that anybody truly does. Especially in
17 these states.
18 Q Explain to me, please, how if there is
19 no consciousness or awareness how someone can take
20 the volitional act of making a decision as to what
21 they want?
22 A What I'm saying and what you have been
23 asking me is to assume what Terri was intending by
24 her statement.
25 Q That is not my question. My question
787
1 was explain to me how someone without
2 consciousness can take the volitional act as to
3 making a decision as to what they want?
4 A I don't know.
5 Q Would you agree that that can't be done?
6 A I don't know. Because I don't know
7 enough about level of consciousness.
8 Q Now your parents, especially your
9 father, is a really good friend of Mr.
10 Schindler's; isn't he?
11 A Yes.
12 Q They had a close relationship while they
13 were living in Philadelphia?
14 A Yes.
15 Q You testified that the families are very
16 close together?
17 A Yes.
18 Q You're close -- in fact, your father
19 came with you on this trip; didn't he?
20 A Yes, sir.
21 Q Your friendship with Terri really jelled
22 your senior year of high school; didn't it?
23 A Toward the end. Yes.
24 Q In fact, Terri was probably your closest
25 friend?
788
1 A Yes.
2 Q And would you say she was your closest
3 friend until the breakup of the relationship in
4 1986?
5 A Yes.
6 Q That relationship was very important to
7 you?
8 A Yes.
9 Q And can I assume that it must have been
10 a really harsh or bad breakup because you did not
11 talk to her since 1986?
12 A It was not harsh. It was painful.
13 Q It was painful to you?
14 A Um-hmm.
15 Q And is it true that you blame
16 Mr. Schiavo --
17 A No. It's not true.
18 Q -- for the breakup of that relationship?
19 A No. It is not true.
20 Q You don't blame him?
21 A No. Terri was an adult. Terri made her
22 own choices.
23 Q Well, you related to us that the
24 supposed reasons that Terri was giving you for
25 breaking up the relationship were lies about you
789
1 that Michael told her?
2 A That is what Terri relayed to me. Yes.
3 Well, the things that she had said were statements
4 her husband had told her. Yes.
5 Q Did you believe Terri was telling you
6 the truth?
7 A Yes. I did.
8 Q So in essence you believed at the time
9 that Mr. Schiavo had lied to Terri about things
10 that you did?
11 A Yes.
12 Q You believed at the time that that was
13 the cause for Terri turning on you or ending the
14 relationship?
15 A I wouldn't say the cause. I would say
16 that is what prompted Terri to make her choices.
17 But Terri made her own choices. She was an adult
18 and she made her own choices.
19 Q You didn't go to the same school as
20 Terri?
21 A No, sir.
22 Q You talked about being with Terri while
23 Michael was training at McDonald's.
24 A Um-hmm.
25 Q Is it fair to say that you were
790
1 disturbed by Terri's eating habits?
2 A Yes, sir. May I have a glass of water?
3 (THEREUPON, THERE WAS A BRIEF PAUSE IN THE
4 TESTIMONY.)
5 Q (By Mr. Felos) I think we were talking
6 about Terri's eating habits.
7 A Yes.
8 Q When your friendship jelled in high
9 school, were the two of you about the same weight?
10 A No. Terri had actually probably just
11 lost a lot of the weight. I was overweight, but
12 Terri was thin.
13 Q At the time of Terri's marriage, would
14 you say she was -- what would you say Terri
15 weighed at the time of her marriage?
16 A I have no idea, but I think she might
17 have been -- I go by size. I think probably
18 around a size 10, 12.
19 Q Would you say the two of you were about
20 the same weight at the time she was married?
21 A No. No. I was much heavier.
22 Q So Terri, as time went on, continued to
23 lose more weight?
24 A Yes, sir.
25 Q She was becoming thinner. By the way,
791
1 how soon after the time you noticed that you
2 believed that Terri had some sort of eating
3 problem, how soon afterward was the breakup of the
4 relationship?
5 A To be honest with you, I'm not sure. I
6 first, like I said, the first time that it became,
7 I became aware of it is when I stayed with her for
8 that week. That was, I believe they were married
9 a short period of time at that point.
10 I'm not sure, but they were still living
11 in the condo or the townhouse. Then they had
12 moved. So there was a period of time. Because
13 they had moved to her parent's basement and were
14 living there before our relationship ended.
15 Q Are you angry at Mr. Schiavo now?
16 A As I said in my deposition, yes, for
17 what I believed he knew and took no action on.
18 Q Okay. So to this day. So you last
19 spoke with Terri in 1986?
20 A Yes.
21 Q Sometime before you spent some time and
22 you noticed that she was not eating the way you
23 thought she should?
24 A No. I noticed she was not eating --
25 Q -- and decades later you are still angry
792
1 at Mr. Schiavo?
2 A Yes. I'm also angry at myself.
3 MR. FELOS: Just one moment more,
4 Your Honor.
5 THE COURT: Yes sir.
6 Q (By Mr. Felos) Does the loss of your
7 friendship with Terri still cause you pain or
8 grief?
9 A I wouldn't say grief. The loss of
10 Terri's friendship is a sad part of my life, but I
11 have gone on and made other friends and I still
12 remember Terri very fondly.
13 MR. FELOS: I have no other questions.
14 THE COURT: Redirect?
15 REDIRECT EXAMINATION
16 BY MS. CAMPBELL:
17 Q Were you in Michael and Terri's
18 wedding?
19 A Yes.
20 Q How would you describe the closeness of
21 your relationship at the time of the wedding?
22 A Very close. We spent a lot of time
23 together. We actually, the morning of her
24 wedding, her sister, myself, and Terri all went to
25 the hairdresser together. Terri and I had the
793
1 same hairdresser the way young girls had the same
2 of everything. We spent that morning together. I
3 was very close to Terri at the time of her
4 wedding.
5 Q When you testified that this was the
6 right thing to do
7 A Yes.
8 Q -- to come here to the trial, what do
9 you mean by that?
10 A I mean that it would have been wrong
11 for --
12 MR. FELOS: I object. This is
13 redirect. I didn't ask on cross about the right
14 thing to do.
15 THE COURT: I think he is right.
16 Sustained.
17 Q (By Ms. Campbell) When you testified
18 that you were angry at Michael, is there anyone
19 else that you are angry at, besides yourself, you
20 say?
21 A Yes.
22 Q Who is that?
23 A Mr. and Mrs. Schindler.
24 Q Why is that?
25 A Because they knew that this was wrong,
794
1 what was going on with Terri, too. They knew that
2 in terms of our friendship. They knew me my whole
3 life and they knew that -- I'm sorry -- that I
4 would never hurt Terri, and they let it happen
5 too.
6 Q What do you mean when you say they let
7 it happen too? What are you referring to?
8 A I remember at the time that Terri and I
9 were having difficulty that they seemed to support
10 the breakup of the friendship. I remember in
11 particular I was at Christmas and Terri openly
12 ignored me. Did not speak to me. We always had
13 Christmas dinner together. I left the house in
14 tears and nobody said anything.
15 Q Do you think when you said that Terri
16 was making choices, do you -- explain to me what
17 the choices were you believed Terri was making.
18 A Terri made the choice to believe what
19 she was told. When I say I'm not angry at
20 Michael, I'm not. Because he really doesn't carry
21 any importance in my life. Never did and does not
22 to this day, except as the husband of Terri. The
23 Schindlers did and still do carry importance in my
24 life, and it was hurtful. As hurt as I was by
25 Terri's choice, I was that hurt by their choice.
795
1 Q So are you here today for either Michael
2 or for the Schindlers?
3 A Absolutely not.
4 MS. CAMPBELL: Thank you. I have no
5 further questions.
6 THE COURT: Mr. Felos, anything further?
7 MR. FELOS: Yes, Your Honor.
8 RECROSS-EXAMINATION
9 BY MR. FELOS:
10 Q You mentioned at the time of your (sic)
11 wedding, at the time of Terri's wedding, that she
12 was your closest friend?
13 A Yes.
14 Q Did you believe Terri regarded you as
15 her closest friend?
16 A I could not tell you. I knew we were
17 close.
18 Q Did you know Sue Cobb?
19 A Yes.
20 Q Would you agree that she was Terri's
21 best friend at the time?
22 A I know Sue -- Sue and Terri were not
23 spending a lot of time together after Terri and I
24 started spending time together. I know Sue and
25 Terri were really good friends in high school and
796
1 before. Terri and I did not get really close
2 until right after high school.
3 Q So as I understand it, you are angry at
4 the Schindlers and Michael because you believe
5 they ignored a eating disorder that Terri had?
6 A I didn't know if the Schindlers knew or
7 did not know. I never approached them. I
8 approached Michael. I can't say I thought it was
9 an eating disorder. I didn't have the ability to
10 say that.
11 Q Why are you angry at the Schindlers?
12 A I'm angry at the Schindlers regarding
13 the breakup of my friendship, not so much the
14 breakup of my friendship with the Schindlers or
15 with Terri, but for their position at the time.
16 Q Okay. You just stated that you don't
17 know whether Terri had any eating disorder. Then
18 why are you angry at Mr. Schiavo?
19 A At the time I didn't know. What I
20 believe now was an eating disorder, at the time I
21 didn't know what it was. At the time I just saw a
22 problem and tried to point it out to her husband
23 on two occasions.
24 Q What was that problem?
25 A That she was not eating. Literally was
797
1 not eating. In the week I spent with her, I saw
2 her eat one bagel until I got the Chinese food and
3 said "come on".
4 Q Are you saying that you were with Terri
5 24 hours a day for a week and saw her eat one
6 bagel during that period of time?
7 A No. She went to work.
8 Q And --
9 A And I went to school.
10 Q She could have eaten at work; couldn't
11 she?
12 A She could have.
13 Q Had lunch at work?
14 A She could have.
15 Q But she did not eat much during the
16 evening?
17 A As I said, the one bagel was broken up
18 for the week. That was, she cut it up for the
19 week and it was breakfast and it was dinner until
20 Friday. That would have been -- I think I
21 probably stayed with her Monday. I don't remember
22 exactly. I remember leaving from there to go to
23 school and her going to work.
24 Q And you told Mr. Schiavo about that?
25 A Yes, sir.
798
1 Q You believe that you saw Terri for
2 dinner cut up a bagel and eat a portion of it
3 during the week. You told Mr. Schiavo about that
4 and you are still angry at him to this day?
5 A Yes. As myself.
6 MR. FELOS: No other questions,
7 Your Honor.
8 THE COURT: Anything further?
9 MS. CAMPBELL: Nothing further.
10 THE COURT: Ma'am, let me ask you a
11 question, if I might. When you made your joke,
12 had you and Theresa Schiavo watched this movie
13 together?
14 THE WITNESS: No, sir.
15 THE COURT: So some seven years or six
16 years after the event, you were triggered because
17 she was angry because you made the joke?
18 THE WITNESS: I assume yes. I don't
19 know if she saw the show or not. The TV movie.
20 THE COURT: Thank you. Any questions
21 based upon the Court's inquiry?
22 MR. FELOS: No, Your Honor.
23 MS. CAMPBELL: No, Your Honor.
24 THE COURT: You may step down.
25 MS. CAMPBELL: Is it permissible for Ms
799
1 Meyer to remain in the courtroom?
2 THE COURT: Obviously, you don't intend
3 to call her for rebuttal, Mr. Felos?
4 MR. FELOS: I can't see why I would call
5 her as a rebuttal witness.
6 THE COURT: Ma'am, the rule is invoked.
7 I'm sure Ms. Campbell has explained that to you.
8 Even though you are no longer going to be a
9 witness, you should not discuss your testimony
10 with anyone until the testimony phase of the trial
11 is over. Thank you.
12 THE COURT: Please call your next
13 witness.
14 MS. CAMPBELL: Thank you. I would like
15 to call Jackie Rhodes.
16 THE BAILIFF: Stand here. Face the
17 judge. Raise your right hand to receive the
18 oath.
19 (THE WITNESS WAS SWORN ON OATH BY THE COURT.)
20 THE COURT: Have a seat up in the
21 chair, please.
22 DIRECT EXAMINATION
23 BY MS. CAMPBELL:
24 Q Good morning.
25 A Good morning.
800
1 Q Please state your full name.
2 A Jacquelyn Rhodes, but you may call me
3 Jackie.
4 Q Where are you from?
5 A Akron, Ohio.
6 Q Did you fly here for the trial just?
7 A No. I have friends. I was visiting
8 friends.
9 Q What is your occupation?
10 A I am a management assistant for
11 Prudential Insurance.
12 Q How long have you been with Prudential?
13 A Since April of 1985.
14 Q Was there ever a time you worked for
15 Prudential in Florida?
16 A Yes. I worked in Florida from May of
17 1988 until December of 1996.
18 Q How do you know Theresa Schiavo?
19 A Theresa and I worked together at St.
20 Pete Prudential Insurance office.
21 Q When did you meet Terri?
22 A In May of '88.
23 Q Was Terri already working there?
24 A Yes.
25 Q Describe what you did for Prudential.
801
1 A At the time I transferred to the St.
2 Petersburg, Florida office, I worked at the public
3 counter assisting the clients coming into the
4 office to make premium payments or beneficiary
5 changes. Any type of service work. And I did
6 other functions in the office.
7 Q What did Terri do for Prudential?
8 A Terri sat right beside me at that time.
9 She also waited on the clients that came into the
10 office and she had other responsibilities as well.
11 Q Did you socialize together?
12 A Yes. We did.
13 Q What kind of activities would you do
14 together?
15 A Michael worked evenings and weekends. I
16 know he worked on Saturday. We used to go
17 shopping. I used to go and pick her up, as
18 Michael monitored the amount of miles she put on
19 the car, so I usually drove. We would go
20 shopping, run errands, or go see her grandmother.
21 Q Was this the grandmother at Majestic
22 Towers?
23 A Yes. It was.
24 Q How much time did you spend together in
25 a given month on weekends?
802
1 A We probably spent a couple Saturdays
2 together a month depending what she had going on
3 in her life and what I had going on in my life.
4 Q Did you also socialize during week
5 nights?
6 A On occasion, yes, we did, but not
7 usually.
8 Q How would you describe your friendship
9 during that time frame?
10 A Theresa and I are the same age. We had
11 a lot of things in common. When I came to work
12 for Prudential, I think Michael had just left one
13 employer or was unemployed or recently gained
14 employment and they were having some financial
15 problems living on one income. And my husband,
16 shortly after, in the fall of 1988, he lost his
17 job as well. So we had different things we could
18 relate to.
19 Q Would you confide in each other about
20 these difficulties?
21 A Yes. She was upset that she could not
22 go anywhere. Mostly in the evening she stayed
23 home. That is why on Saturdays we would go
24 shopping. Not necessarily to buy anything, just
25 for both of us to get out of the house. We would
803
1 have lunch usually somewhere and visit her
2 grandmother.
3 Q Tell me about the visits to her
4 grandmother.
5 A I don't know why her grandmother was in
6 the nursing home, but she was very, you know, she
7 usually was in bed when we were there. I don't
8 recall her not being in bed. And she was fine.
9 We talked to her. Theresa would talk to her about
10 different things that was going on in her life or
11 with the family. It was just idle conversation.
12 You know, sometimes we spent an hour there.
13 Sometimes more. Sometimes less. Depending on
14 what other things we had to do during that day.
15 Q Did you see other residents at Majestic
16 Towers?
17 A Yes. Her grandmother's room was in the
18 nursing home quite a bit. I mean, you know, not
19 right at the door, so we had to pass other rooms.
20 And there were other people in her grandmother's
21 room.
22 Q Could you describe the people you would
23 pass by on the way to the grandmother's room
24 visually?
25 A Some people were in wheel chairs. Some
804
1 people in their room. There was people that would
2 moan. Some of the other people in her
3 grandmother's room did not communicate with us and
4 maybe they were sleeping. I don't know. Some
5 people were -- never saw do anything but lay
6 there. So I don't know what their situation was.
7 Q Did you see any patients on ventilators
8 or respirators?
9 MR. FELOS: Leading question, Your
10 Honor.
11 THE COURT: Overruled.
12 A I don't recall seeing people on
13 ventilators and I don't recall seeing people on
14 feeding tubes, but at that time I really didn't
15 know what a feeding tube was.
16 Q (By Ms. Campbell) Were there any
17 patients you saw with tubes in their nose?
18 A It's been so long ago, I honestly really
19 concentrated on Theresa's grandmother and not on
20 the other patients.
21 Q Were you aware of Theresa's medical
22 health in 1988, 1989 time frame?
23 A Yes. As a matter of fact, we both went
24 to the same gynecologist. Usually it seemed our
25 appointments were right near each other. So she
805
1 would share, I have a doctor's appointment, and
2 usually mine was like right around there.
3 I know she was having problems with her
4 period. She said that is -- she had never gotten
5 pregnant during her and Michael's marriage and she
6 had never been on any form of birth control. That
7 was something that she was talking to the doctor
8 about.
9 After one of the visits, I know they
10 were going to start performing tests to find out
11 if the problem lied with her or Michael. They
12 wanted to start with the tests on Michael, as I
13 guess there was only one test that he needed to
14 do, and then otherwise they would start doing
15 several tests on Theresa. As far as I know, she
16 told me that Michael did not want to do the test
17 as he had to provide a semen sample.
18 Q To your knowledge, did Terri become
19 pregnant during that time frame?
20 A No. Not to my knowledge.
21 Q Did Terri ever indicate she was trying
22 to have children?
23 A She never indicated that she wanted
24 children. She just indicated that she had never
25 gotten pregnant and they were looking into
806
1 medically why that had not happened.
2 Q Were you ever around Terri and Michael
3 together?
4 A There was a few occasions. A Saturday
5 where I would pick Theresa up and I was around
6 Theresa and Michael. There were, you know, they
7 seemed like any normal couple. I remember one
8 time. She had rather thin legs. Michael was
9 laying on the floor looking at Theresa. We were
10 both standing there getting ready to walk out the
11 door. He told her her legs were skinny.
12 Q To your knowledge, did Terri have a
13 weight problem?
14 A No. The time I knew her she was very
15 thin. She had shared with me at one time she was
16 very heavy and she had lost a lot of the weight
17 and she was very proud of her accomplishment and
18 the weight loss.
19 Q When was the last time that you spoke to
20 Terri?
21 A The last time I spoke to Terri was
22 February 24th of 1990. It had been a big joke
23 that week at work because she was going for a hair
24 appointment on Saturday and she had dyed her hair
25 blond. Her hair was normally blond, although she
807
1 naturally had very dark hair. She had to decide
2 whether or not she wanted to stay a blond or if
3 she was going to go back to her natural color.
4 So I called her Saturday afternoon and
5 asked her, well, are we a blond or brunette? She
6 said I'm still a blond. But she was very, very
7 upset when I was talking to her. It sounded like
8 she had been crying. I asked her if she was
9 okay. She said she had a fight with Michael.
10 That he was extremely upset with her because she
11 had spent, I think she told me $80, on her hair
12 that day to stay blond.
13 So I asked her if she wanted me to come
14 over. She didn't seem like her normal, jovial
15 self. She said that's okay. I'm going over to
16 Bobby's. I said are you sure. She was very
17 upset. She said I'm going to Bobby's. I already
18 talked to him and am going to go over as soon as
19 we get off the phone.
20 Q How long of a time frame were the two of
21 you in this close friendship there?
22 A I'd say I started there in May of '88.
23 It takes a little time to form a friendship. I'd
24 say for a good year we were pretty good -- very
25 close friends. We shared different things about
808
1 our lives.
2 Q When did you first hear then about
3 Terri's incident?
4 A I received a phone call on, early Sunday
5 morning, February 25th, from Murial Westrom, a
6 lady we worked with. She informed me Theresa
7 collapsed at her home and she was at the hospital
8 and she had to be taken by paramedics to the
9 hospital and that she wasn't doing very well. And
10 she told me which hospital it was. I'm sorry, but
11 I don't recall. I don't know if I went over that
12 day or the next day.
13 Q What happened when you went to the
14 hospital?
15 A There were quite a few people there.
16 Family members. Michael. Michael's family, I
17 believe were there. The Schiavos. The
18 Schindlers. People from work. Theresa was well
19 liked. There were several of us sitting there. I
20 was trying to understand what had transpired.
21 Michael had, I guess, found her on the floor in
22 the bathroom.
23 I knew that he was a restaurant manager
24 and figured he knew CPR. I asked him, I said,
25 well, do you know CPR? He said yes. I said did
809
1 you perform it on Theresa? He said no. He had
2 panicked.
3 Q How often did you visit Terri in those
4 early days?
5 A In the early days, I was there for the
6 first month or two every evening after work.
7 Q Did you continue to visit Terri
8 frequently?
9 A Yes. I did. There was a period that I,
10 you know, did not go quite as often. For the
11 first month or two, I was there every day. After
12 that, it may have been like a couple of times a
13 week.
14 Q Were you aware of any fund raising to
15 help with Terri's expenses?
16 A Yes. Things going on in the county. I
17 don't recall, but I know there were different
18 things going on, maybe like a carwash. But
19 Prudential, we were so upset by what happened, we
20 sent letters out to all the other Prudential
21 offices requesting assistance for one of our
22 fellow employees. And we got in trouble for that,
23 but we did it anyway. I don't know how much money
24 was raised. I think it went to a bank, but I
25 don't know the amount that was raised.
810
1 Q Did you attend the trial in this case?
2 The malpractice [sic] trial?
3 A Yes. I attended the malpractice trial.
4 A few other people from work also attended to tell
5 what kind of person Theresa was, and she was a
6 loss to the company, and you know, to her family
7 and friends.
8 One thing that did occur during that
9 trial, my husband was in the hospital having a
10 heart cauterization and I had to go down there as
11 soon as I left the courtroom, as soon as I
12 testified, and the malpractice attorney followed
13 me down to the pay phone and said to me, you know,
14 it wouldn't help the case at all if I told them
15 that Theresa and Michael were talking about
16 getting a divorce. I turned to him and I said if
17 I'm asked that question and that is the correct
18 answer, that is the answer I'm going to give.
19 Q Did you believe that Michael and Terri
20 were getting a divorce?
21 A There had been several times throughout
22 Theresa's and my friendship that she was extremely
23 mad at Michael. That there was a lot of mental
24 abuse.
25 MR. FELOS: Your Honor, objection. That
811
1 is a conclusion on the part of the witness.
2 THE COURT: Yeah, it is, coming up at an
3 odd time in her testimony. She is in '92 now.
4 Now all of a sudden she's getting back because of
5 a, of something a lawyer said. I'm going to
6 sustain the objection.
7 A Okay. I'm sorry. Could you repeat the
8 question?
9 Q (By Ms. Campbell) Okay. Was there,
10 when you are saying that -- tell the Court if
11 there were any specific examples of instances with
12 you and Terri concerning an issue of concern
13 between the marriage.
14 A When Theresa and I worked together, we
15 sat side by side. There were days that if Michael
16 were to call into the office, she did not want to
17 take his phone call because they were fighting
18 about a -- specifically, there was a period of
19 time where Michael was not employed and they were
20 living at the Schindlers' condo.
21 Theresa told me that if it had not been
22 for her parents and their condo, she didn't know
23 where they would live because they could not
24 afford to pay rent right now. And Michael, when
25 he was employed, and T don't recall which employer
812
1 it was, but he was very upset with the employer
2 and things that were going on there, and he
3 constantly would call her and threaten to quit his
4 job. And Theresa was begging him to just look for
5 something else and then quit when he had something
6 else. And he did not do that because he quit that
7 employer. He was no longer employed.
8 Q Do you know whether or not Terri
9 specifically was seeking to get a divorce?
10 A She had talked about it on several
11 occasions. As a matter of fact, we had talked
12 about living together, as my husband was very
13 controlling to me and he asked for, my husband
14 asked for a divorce also.
15 Q So you went through a divorce?
16 A Yes.
17 Q Was that after Terri's accident?
18 A Yes. It was.
19 Q When did you move away from Florida?
20 A December of 1996.
21 Q How frequently did you see Terri prior
22 to you leaving?
23 A I probably -- during 1996, I probably
24 only saw her a few times. It was not as
25 frequently as it had been in the beginning.
813
1 Q What were your observations of Terri
2 then?
3 A Terri always responded when I went to
4 see her. I would come in and say Terri, it's
5 Jackie. How are you? I would startle her and I
6 learned not to do that. She would just jump a
7 little bit. Then I would talk to her if I was
8 standing by her bed.
9 And in talking to her, her eyes would
10 always look at me. There would be times that she
11 seemed to be a little tense with her arms up like
12 this. And when I would talk to her and tell her
13 who I was, it seemed as though her arms would
14 relax and move down during our visit.
15 Q Did you notice any other specific
16 reactions or changes in her facial expressions?
17 A Sometimes it was she would make sounds
18 depending on maybe what I would said to her.
19 Maybe, my opinion, as if to communicate with me.
20 There were times, too, that I would try to get a
21 reaction out of her to see if I felt that she was
22 really, you know, understanding that I was there.
23 Whether she was -- well, before she
24 would joke around that when Michael was not
25 working that she was supporting him. Now that she
814
1 was in the hospital, because of her years of
2 service with the company, she would still continue
3 for a period of time to receive her paycheck.
4 Actually, Michael would have received it. I used
5 to say things to her like, Theresa, you're still
6 supporting Michael.
7 It was as if she tensed up. I would do
8 things like that to see if she was really
9 responding to something I was saying.
10 Q Did you believe she was understanding
11 what you were saying?
12 A Yes. It was my impression.
13 Q Did you think she was aware of your
14 presence?
15 A I definitely believe she was aware of my
16 presence. There were times, too, that another
17 person I worked with might go with me to the
18 nursing home. One of us would stand on one side
19 of the bed sometimes and the other stand on the
20 other. It was as if she followed us. If I was
21 talking to her on this side, she would be turning
22 this way, and the other person would talk and she
23 would, as if she turned her head the other way to
24 acknowledge both our presence.
25 Q When was the last time you saw Terri?
815
1 A I went to see her Monday night.
2 Q Did you notice any difference from
3 before in '96? I guess I should ask, have you
4 seen Terri from '96 until now?
5 A No.
6 Q Did you notice any differences from the
7 last time in '96 that you saw her versus now?
8 A She still responded to me. I did not
9 notice any change. She still looked at me. When
10 I got there, she had been, one of the people had
11 been cleaning her up they said. I had to wait a
12 few minutes to get in there. Her arms were up
13 like this. I went in.
14 I said, hey Terri, it's Jackie. I know
15 it's been a while, but I'm here to visit and see
16 how you're doing. I was rubbing her leg. Her
17 arms went down as I was rubbing her leg. Her arms
18 went down and she pulled the blankets off her. I
19 covered her up. She seemed to be more relaxed
20 when I was there.
21 Q Did you notice any change in her facial
22 expression on this visit?
23 A She still looked at me when I talked to
24 her. She did look away when I stopped talking.
25 But I didn't -- you know, that is what I noticed
816
1 before.
2 Q On this past Monday, did she make any
3 sounds to you one way or the other?
4 A Before I went into the room, while the
5 person was cleaning her up and getting her
6 dressed, she was very loud. Making a lot of
7 sound. Noises. When I went in there, there was a
8 couple of times when I would say, you know, that I
9 have talked to Robbie or mentioned somebody that
10 we worked with, that she had made sounds as if to
11 acknowledge the person that I was talking about.
12 Q Did you ever discuss any thoughts Terri
13 had on end of life issues?
14 A That never was discussed between Terri
15 and myself. I know that when we were in the
16 nursing home, there were so many people in there
17 in various stages of condition that I truly feel
18 that --
19 MR. FELOS: Your Honor, I object. She
20 said she never discussed it with Theresa and she
21 is making conclusions of what Theresa may have
22 thought because Theresa was in a nursing home.
23 That is sheer guessing and speculation.
24 THE COURT: I think that is probably
25 true.
817
1 Q (By Ms. Campbell) When you were in the
2 nursing home, did Terri make any comments to you
3 in any manner about the residents that were there?
4 A Theresa never said during our visits
5 that she would not want to live like this.
6 Q Did she ever make any comments that
7 regarding the specific conditions that you
8 witnessed together?
9 A No.
10 MS. CAMPBELL: I have no further
11 questions at this point.
12 THE COURT: Thank you. Cross-
13 examination?
14 MR. FELOS: Yes, Your Honor.
15 CROSS-EXAMINATION
16 BY MR. FELOS:
17 Q Is it Ms. Rhodes?
18 A Yes.
19 Q You have not remarried?
20 A No. Not yet.
21 Q How are you feeling right now?
22 A I'm fine.
23 Q My impression is that your voice sounds
24 a little agitated to me. Are you feeling a little
25 agitated right now?
818
1 A No.
2 Q Theresa never said when she was in the
3 nursing home that she did not want to live like
4 this; correct?
5 A Correct.
6 Q Did Theresa ever say I want to live like
7 this?
8 A No. She did not.
9 Q As I understand it, you did not come
10 down here for the trial. I think that was the
11 first thing you were asked. But you happened to
12 be here visiting friends?
13 A Yes.
14 Q Why did Pam Campbell agree to reimburse
15 you for airfare if you just happened to be down
16 here visiting friends?
17 A I have friends down here. I had
18 intentions of coming down here, and when I found
19 out this trial was going on, I was coming down
20 here. I decided to come down earlier, rather than
21 later in the year.
22 Q So you decided to have Pam Campbell pay
23 for it?
24 A Actually, I paid for it.
25 Q And you have an agreement with Ms.
819
1 Campbell that you be reimbursed; is that correct?
2 A It has been mentioned to me that I will
3 be reimbursed for it, but I have not asked for the
4 reimbursement.
5 Q I asked you in your deposition on Page
6 15, Line 2, do you have an agreement with anyone
7 to be reimbursed for your expenses?
8 Answer. Pam Campbell did state to me
9 they will reimburse me for my flight.
10 A Yes. That is correct. I did say that.
11 Q Let's get at it. You came here to
12 testify at this trial; didn't you?
13 A That was one of the reasons why I came.
14 Q Okay. It's not that you were happening
15 to visit friends and you were down here?
16 A No.
17 Q We heard a litany in your testimony
18 about Michael did this, Michael did that, and
19 Terri told me about the hair and Michael was angry
20 at this. We were both going to get a divorce and
21 talking about living together. One after another,
22 after another, after another. Do you have an axe
23 to grind against Mr. Schiavo?
24 A No. I do not. Michael was always very
25 nice to me whenever I had any --
820
1 Q You were having marital difficulties at
2 the time; were you not?
3 A I was going through counseling. Yes.
4 Q I recall in your depositon [sic], and we can
5 find it, didn't you describe your husband as
6 antisocial?
7 A Yes. He only liked to do things with
8 his friends. He didn't like to do things with my
9 friends.
10 Q Is it possible you may be projecting
11 some of your own marital difficulties at the time
12 on Terri's and Mike's marriage?
13 A No.
14 Q Do you have a current recollection of
15 these events that you testified to today?
16 A Yes. I do.
17 Q Is it a firm recollection?
18 A Yes. It is.
19 Q What I don't understand is this. I took
20 your deposition --
21 A On January 12th.
22 Q Yeah. I guess your recollection is very
23 good. A couple of weeks ago. I was very specific
24 in asking you what things you talked to Terri
25 about and what you two confided about. I'll read
821
1 from your deposition rather extensively. It's
2 important here.
3 On Page 15, Line 14, you mentioned that
4 you would each share things that were going on in
5 your life. You mentioned one of the things that
6 Terri shared was that she was bored in the evening
7 because her husband worked evenings.
8 Answer: Um-hmm.
9 Question: Any other things that you can
10 recall that Terri shared with you about her life?
11 Things that were happening in her life?
12 Answer. They were talking about having,
13 she was going to the same gynecologist that I was
14 and she did -- she had not gotten pregnant and I
15 guess they were going to try to have a child.
16 You talk on Page 16 about the
17 gynecology. The pregnancy. The children. Then I
18 go on right after that on Page 16, Line 21,
19 Question. Are there any other subjects
20 that you can recall Terri talked to you about
21 besides the one you mentioned?
22 Answer. There would be times that
23 Michael would call her at work and you know be
24 upset and want to quit his job and she would
25 become upset. So I would talk to her about that,
822
1 as my husband would do the same thing to me. So
2 we could relate.
3 MS. CAMPBELL: Objection to this line of
4 questioning. So far the testimony he is reading
5 is the same testimony she gave this morning.
6 THE COURT: With one exception. My
7 notes say Michael called constantly. What he just
8 read, the quote I wrote down is at times.
9 MR. FELOS: It's the next question, Your
10 Honor. After the one about conversations about
11 the job.
12 Q Question. Anything else you can think
13 of as far as things that Terri, things happening
14 in Terri's life that she discussed with you?
15 Answer. I really can't remember. It's
16 been so long.
17 Can you tell me why two weeks ago I
18 asked you specifically to tell me the things that
19 Terri told you about in her life and you told me
20 about Mike calling up, being upset about his job.
21 You told me about the gynecologist. You told me
22 she was upset about his working evenings, and that
23 was it. You could not recall anything else.
24 Now, two weeks later, you come in here
25 and have a 1ong time to think Michael has done
823
1 this and that. Terri told me about a divorce. We
2 were going to live together. Have an apartment.
3 How is it you recall all these things, but you did
4 not tell me that two weeks ago?
5 A When I had the deposition, if you
6 recall, I was subpoenaed to give my deposition on
7 I believe it was Friday, January 7th. I could
8 not, as I had a very important business meeting
9 that I had to attend, and for several weeks prior
10 to my deposition I was working several hours a
11 day.
12 By the time -- I work an hour away from
13 where I live. By the time I get home, it was 9
14 o'clock. Basically, I would go to bed. This
15 happened for several weeks. Probably a month. I
16 did not have time to think about anything but my
17 project I was doing at work.
18 After my deposition, I sat down to
19 myself and I thought what else do I remember about
20 my friendship and times I spent with Theresa.
21 Q Well, a marriage dissolving and Terri
22 maybe living with you is something you did not
23 recall, it was something you did not recall at
24 your deposition?
25 A No.
824
1 Q Are you saying at the time of your
2 deposition that was not in your memory?
3 A Like I said, I was very concentrated on
4 my work. I did not have an opportunity to really
5 think back and recall every instance and every
6 situation that Terri and I talked about.
7 Q Now we had some testimony about going to
8 the nursing home. I think you were asked the
9 condition of the other people in the room of
10 Terri's grandmother?
11 A Um-hmm.
12 Q What was your answer about that? You
13 described some conditions?
14 A That they were, the other people were in
15 bed. I don't recall ever talking about the other
16 people. I don't recall if anyone was on a feeding
17 tube or life support of any sort.
18 Q So you don't recall the condition of the
19 other patients in Terri's grandmother's room; is
20 that correct?
21 A There were three other people in Terri's
22 grandmother's room. I don't recall. I know some
23 people just laid there and we never saw them out
24 of bed. But I don't recall if they were on any,
25 you know, oxygen or feeding tube or anything.
825
1 Q Is it fair to say that you don't recall
2 the condition of the other patients in Terri's
3 grandmother's room?
4 A Yes.
5 Q Let's talk about Terri's condition. As
6 I understand it, you believe that -- well , repeat
7 it for me. Why do you believe that Terri has
8 cognizance, awareness?
9 A Because when I speak to her, she looks
10 at me. She seems to relax. When I am in the room
11 talking to her, she remembers me.
12 Q Hold on. What do you observe that leads
13 you to the conclusion that Terri remembers you?
14 A She relaxes. When I go -- as in Monday
15 night when I went into the room she was like this
16 (indicates). I started talking to her and her
17 arms, it was as if her body relaxed. Her face was
18 just calm. She seemed to be somewhat agitated
19 when I got into the room after the gentleman was
20 fussing, cleaning her up. Probably moving her
21 around. She seemed to be very tense.
22 Then when I went in there and started
23 talking to her, her arms fell down to lower, like
24 around her waist. She looked at me. Her mouth
25 moved. She made some noises and noises and she looked at me
826
1 when I was talking. When I stopped talking, she
2 did look away.
3 Q When you said she looked, do you mean
4 her eyes moved?
5 A Yes.
6 Q Not her head?
7 A She was laying on her side, so it was
8 not probably as easy for her to move her head.
9 Q Okay. So a change in facial expression?
10 A Right.
11 Q Sounds?
12 A Yes.
13 Q Eyes moving?
14 A Yes.
15 Q Head turning?
16 A No head turning. And change in
17 body movement.
18 Q In all your visits besides the ones you
19 describe, are there any things that Terri does
20 that leads you to believe that she is aware of
21 your presence?
22 A I believe all those things make me
23 believe she is aware of my presence.
24 Q Is there anything else you have seen on
25 other visits?
827
1 A No. Not that I can recall.
2 Q Tell me the things about the blanket
3 again. I didn't quite get that on your direct
4 examination.
5 A On Monday night when I went in to see
6 her, she had her hands up like this (indicates)
7 and her blanket, I believe a sheet and flannel
8 type sheet, were up around her neck like this.
9 When she moved her hands down like this
10 (indicates), her blanket also came down.
11 Q Okay.
12 A That was due to the movement of her
13 hands.
14 Q Before your last visit to Terri, how
15 often would you visit her when you lived in
16 Florida, of course?
17 A The Sabal Palms was fairly close to my
18 home. I would stop in there probably less than
19 once a month, but I would stop in, you know, on
20 occasion.
21 Q How about when Terri's first -- the
22 incident first happened, did you see her more
23 often?
24 A I was there for the first month or two,
25 I Was there every evening. After that, it was
828
1 probably a few times a week.
2 Q Okay. Now you can't say that for every
3 visit you believe Terri has been aware of your
4 presence; can you?
5 A There was some type of reaction. Yes.
6 Each visit that I saw her.
7 Q So in the month or two after the
8 incident, you believe Terri was aware of your
9 presence because she exhibited these reactions?
10 A Yes.
11 Q And there has been no visit where you
12 have not observed the reactions?
13 A It may not have been all of them, but
14 there were some of them. Yes.
15 Q Well, we have had testimony in this
16 trial, I have to say in some rare unanimity, we
17 have had no dispute from Mr. Schindler, from Mrs.
18 Schindler, from Mr. Schiavo, that in the first few
19 months of Terri's incident that she was
20 unresponsive. Mrs. Schindler said no response.
21 No awareness for Terri. Mr. Schindler, no
22 response. No awareness. She was on a respirator.
23 It was only afterwards that they
24 noticed, her own parents noticed a response. Some
25 response. But your testimony is that you visited
829
1 her right after the accident, daily initially, and
2 you saw responses of Terri that made you believe
3 that she was aware of your presence. Is that your
4 testimony?
5 A Yes. But in the beginning, we were not
6 all allowed in to see Terri. I may not have seen
7 her every visit that I was down there.
8 Q Okay. But the visits at the hospital
9 where you did see Terri?
10 A Um-hmm --
11 Q -- in the month or two after her
12 accident, according to your testimony, she made
13 these responses and you believe she was aware of
14 your presence?
15 A Yes.
16 Q Do you have any suggestion or
17 explanation why her own parents did not get any
18 response from Terri or see anything like that in
19 the first couple of months after the accident?
20 A I was not always in the room with, you
21 know -- sometimes I was in there by myself. I
22 don't know what other people saw.
23 Q Okay. You mentioned the comments that
24 again, Terri in the nursing home, never said I
25 don't want to live like that. Will you agree that
830
1 there is nothing about the nursing home visits to
2 Terri's grandmother which would shed light on
3 Terri's intent?
4 A Would I agree?
5 Q Yes.
6 A No. I think if she would not want to
7 live like that she would have said this, you know,
8 is a terrible life. I don't want to live like
9 this.
10 Q Do you remember your deposition again?
11 Page 31, Line 15, I asked you, so there is nothing
12 about the nursing home visits which would shed
13 light on Terri's intent?
14 Answer. No.
15 So the answer is no? There's no --
16 there is no question, so the answer is no, there
17 is nothing?
18 Answer. Right. No. There is nothing.
19 I have no other questions, Your Honor.
20 THE COURT: Redirect?
21 REDIRECT EXAMINATION
22 BY MS. CAMPBELL:
23 Q When did you first arrive here for this
24 visit to Florida?
25 A On Saturday afternoon, January 22nd.
831
1 Q What have you been doing since Saturday
2 till now?
3 A I have spent time with my friends, Scott
4 and Molly Jones, and two little girls.
5 Q So you have been vacationing?
6 A Yeah.
7 Q You are not working on any specific work
8 project?
9 A No.
10 Q Has coming back to the Tampa Bay area
11 reminded you of your days when you were here with
12 Terri?
13 A Yes.
14 Q So you have had time to think about you
15 and Terri's relationship?
16 A Since not working and not stressed from
17 work, yes.
18 Q You talked about when Terri looks at you
19 that she looks at you. Her eyes look at you. Can
20 you describe that look?
21 A She looks at me and she just, her eyes
22 stay focused on me, and in my opinion, it is that
23 she really remembers me. It seems as though
24 Monday night she tried to communicate with me.
25 Q Would you describe it as a blank stare?
832
1 A No.
2 Q Have you ever been to visit Terri,
3 either this past Monday night or in the '96/'95
4 time frame, gone with Mr. and Mrs. Schindler to
5 visit Terri?
6 A No.
7 Q Have you ever seen the reaction then
8 that Terri has with other people on a regular
9 day-to-day basis that take care of Terri, like
10 Mrs. Schindler?
11 A No.
12 MS. CAMPBELL: I have no further
13 questions.
14 THE COURT: Anything further?
15 MR. FELOS: Nothing, Your Honor.
16 THE COURT: Thank you, ma'am. You may
17 stand down.
18 MS. CAMPBELL: Is it permissible for
19 this witness to remain in the courtroom?
20 THE COURT: Any need of this witness to
21 be excluded? Ma'am, you may stay in the
22 courtroom, but the rule is invoked. You are not
23 to discuss your testimony with other witnesses
24 with regard to this case until all the testimony
25 has been concluded.
833
1 THE WITNESS: Okay.
2 THE COURT: You are free to talk to the
3 lawyers, but that is all.
4 MS. CAMPBELL: I have no further
5 witnesses. We rest at this time.
6 THE COURT : Thank you.
7 THE COURT: Mr. Felos, you still intend
8 to proceed with rebuttal?
9 MR. FELOS: Yes. Before that, I would
10 like to introduce into evidence the Quinlan
11 newspaper articles, which have been already marked
12 as Petitioner's Exhibit 8 for identification.
13 THE COURT: Is there an objection?
14 MS. CAMPBELL: No. I thought that had
15 already been done.
16 MR. FELOS: They were marked during your
17 case, but I could not introduce them during your
18 case.
19 MS. CAMPBELL: Okay.
20 (THEREUPON, PETITIONER'S EXHIBIT 8 WAS
21 RECEIVED IN EVIDENCE.)
22 THE COURT: Let's take about 10 minutes
23 and then start on Mr. Felos's [sic] cross.
24 THE BAILIFF: All rise. Circuit court
25 is in recess for ten minutes.
834
1 (THEREUPON, A 10 MINUTE RECESS WAS HAD AT
2 10:40 A.M. AND THE FOLLOWING PROCEEDINGS WERE HAD
3 AT THE BENCH.)
4 THE COURT: Let's get the ground rules
5 for rebuttal in place. It's my understanding in
6 rebuttal that you go after a specific statement.
7 Witness X said the light was green. Witness, what
8 color was the light? The light was red. We are
9 not going back into a narrative. As I understand
10 rebuttal, we don't take off and testify to a
11 series of events. Is that -- is your
12 understanding differently?
13 MR. FELOS: A little different, Your
14 Honor. The testimony that we have had in the
15 respondent's case is so broad. Especially on the
16 question of the ward's awareness. We have had how
17 many people say she is aware of my presence. We
18 have the videotape shown as evidence of her
19 awareness. The testimony with Dr. Barnhill, I
20 would say, would be a little bit more extensive.
21 THE COURT: I will not let Dr. Barnhill
22 recapitulate what he said the other day. That is
23 rebuttal; isn't it? He can testify as to what has
24 come up on respondent's case in chief. I have
25 extensive notes from him. If he gets back into
835
1 what he testified to before, I'll cut you off.
2 I am telling you this because I don't
3 want to embarrass you. That is why we are at the
4 bench and not in front of your client. Because
5 Mrs. Schindler said this is in response to my
6 voice, he can testify that is a reflex action;
7 that is not. It's in response but in a cognitive
8 response hypothetically. I don't know what you
9 intend to do.
10 If Mr. Schindler had said she tied my
11 shoes, he can say that is -- however he wants to
12 address that. She could not tie his shoes. But
13 he is not going to -- you are not going to lead
14 him through that direct again.
15 MR. FELOS: Do you -- we don't want to
16 hear that again.
17 THE COURT: We are not.
18 MR. FELOS: Certainly, I think it's
19 proper to ask the question, since this tape of the
20 ward has been introduced in evidence, for the
21 conclusion that the ward has awareness, have you
22 viewed the tape and can you please comment on this
23 tape to rebut that assumption.
24 THE COURT: That limited area is
25 probably appropriate, but I will not let him go
836
1 back and talk about what her brain cavity looks
2 like and this sort of stuff.
3 MR. FELOS: I understand that.
4 THE COURT: And sur rebuttal is the
5 same. Your witnesses commenting on what the
6 rebuttal witnesses said.
7 MS. CAMPBELL: Yes.
8 MR. FELOS: Dr. Barnhill is the only
9 witness I can think of where his testimony might
10 be long. Every other witness they said that is
11 true. This witness on respondent's case said
12 that -- is that true. Which will be very brief.
13 THE COURT: Okay. We can hopefully get
14 done at a reasonable hour today.
15 MR. FELOS: I believe the Court is on --
16 I saw a note of where Mr. Sheehan is one of the
17 rebuttal witnesses.
18 THE COURT: I don't read your mail. I
19 saw it, but I don't read your mail.
20 MR. FELOS: He stated he is in
21 Brooksville and he could be here late afternoon.
22 THE COURT: I still don't understand
23 what his dismissal with prejudice has to do with
24 what I need to decide today.
25 MR. FELOS: At a minimum, Your Honor, it
837
1 goes to rebut the testimony of Mr. Schindler.
2 THE COURT: Well, if he said he was
3 wearing a blue suit on Sunday and really was
4 wearing a green suit on Sunday that is not going
5 to affect the outcome of this case.
6 MR. FELOS: It is not just credibility,
7 Your Honor. This is at the point of additional
8 substance. I mean --
9 THE COURT: All right. If you think it
10 has some real merit, fine. I am just telling you
11 what I need to decide is the intent of this young
12 lady and has it been established by clear and
13 convincing evidence. Whether he gets 780,000 or
14 whether they get 700,000, I am not sure what that
15 has to do -- I'll focus in and I'll ask your
16 reporter to give me a transcript of the three
17 witnesses who testified to discussions with
18 her, so I have those when I am making my decision,
19 but I don't know where all this other stuff plays
20 in.
21 MR. FELOS: Your Honor, I did want to
22 make a comment. The standard as to the
23 conversations is one of reliability. The overall
24 evidence is a clear and convincing evidence
25 standard.
838
1 THE COURT: Yes, sir.
2 MR. FELOS: That the Court need only
3 find the conversations as to intent reliable.
4 That would be our legal argument.
5 THE COURT: I either believe a witness
6 or I don’t. I mean, that is the standard.
7 MR. FELOS: The other thing, Your Honor,
8 is if the Court, and we don't believe it is the
9 case obviously, but if the Court did not find
10 evidence of intent, it has been our argument in
11 the pleadings and opening statement that the Court
12 also has the authority to grant the petition, if
13 it rules it's in the best interests of the ward.
14 THE COURT: I'm going to need to see
15 some law on that, Mr. Felos.
16 MR. FELOS: We intend to present some.
17 I can have -- Mrs. Felos will be doing the
18 rebuttal testimony of Dr. Barnhill. If I can have
19 a moment to impart the Court's discussion to her,
20 I'd appreciate it.
21 THE COURT: Absolutely.
22 MS. CAMPBELL: Is it your belief you
23 will finish with rebuttal today?
24 MR. FELOS: No question about that.
25 MS. CAMPBELL: Thank you. Start on
839
1 closings tomorrow?
2 THE COURT: If that is what you prefer
3 to do, come tomorrow morning and do closings, no
4 matter what time we shut down today? I need to be
5 out at 5:00 today.
6 MS. CAMPBELL: Or as long as he is
7 finishing his rebuttal, that is my preference, to
8 come back tomorrow morning and do closings.
9 MR. FELOS: If Mr. Sheehan can't be here
10 until late afternoon, I obviously can't look to
11 have his testimony completed today.
12 THE COURT: We can do the same for you
13 as those witnesses. We can do him tomorrow, but
14 before we leave here today, we have locked in
15 place a schedule that you all can live with and we
16 will know. If it's better to come tomorrow and do
17 closings, we can do that. If you need the morning
18 to prepare, I have you guys blocked out on my
19 calendar for all week. However your schedules fit
20 into that, you work with that.
21 (THEREUPON, THE BENCH CONFERENCE ENDED AT
22 11:05 A.M.)
23
24
840
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 27, 2000
17 TIME: 11:05 a.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 VI Pages 840 - 983
25
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
842
1 PROCEEDINGS
2 THE COURT: Mr. Felos, are you prepared
3 to proceed with your first rebuttal witness?
4 MS. FELOS: Yes, Your Honor. We would
5 like to call Dr. Barnhill.
6 THE COURT: Very well. Doctor, you are
7 still under oath. Have a seat up here as you were
8 before. State your name for the record, please.
9 THE WITNESS: James H. Barnhill, MD.
10 (THEREUPON, THE WITNESS, PREVIOUSLY SWORN,
11 TESTIFIED AS FOLLOWS:)
12 REBUTTAL EXAMINATION DIRECT
13 BY MS. FELOS:
14 Q Dr. Barnhill, you previously have
15 testified. In the meanwhile, the respondents have
16 introduce a video into evidence. I will ask you
17 whether or not you have reviewed that videotape?
18 A Yes. I have.
19 Q That videotape is, by the respondent's
20 mention, evidence of the cognizance of the
21 patient, Theresa Schiavo.
22 THE COURT: How did he review the tape?
23 MS. FELOS: Your Honor, we can inquire,
24 but we gave him a copy of the videotape provided
25 us by counse1.
843
1 THE COURT: Okay.
2 MS. FELOS: Which I have in the machine
3 at this time in order to play it.
4 THE COURT: So he has looked at a copy
5 of Petitioner's Exhibit Number 1 -- excuse me --
6 Respondent's Number 1?
7 MS. FELOS: Yes, Your Honor. Ms.
8 Campbell provided us with a copy.
9 THE COURT: Is that an exact copy?
10 MS. CAMPBELL: To my knowledge. It is
11 not the original copy. It was done from one VCR
12 to another. So the accuracy of it, I can't tell
13 you that I have watched this copy to say that's
14 exactly the same, as far as clarity.
15 THE COURT: I just don't want anything
16 in the record that would be, you know, an issue.
17 That we not have as an issue.
18 MS. CAMPBELL: Perhaps if they plan to
19 play the video again, they can use the original
20 one.
21 MS. FELOS: I don't know that there is
22 any difference. We received that video from
23 counsel and used it for Dr. Barnhill. If there is
24 any difference, counsel would be here to see it.
25 I can't imagine there will be.
844
1 THE COURT: So you intend to play the
2 copy as opposed to the --
3 MS. FELOS: I had intended that,
4 Your Honor. Yes. We would want to admit that
5 into evidence as well.
6 THE COURT: I don't want to watch two.
7 If the doctor is going to testify, he probably
8 needs, if there is a question about the genuiness
9 of the copy, then we need to use the original.
10 MS. CAMPBELL: There may be. I believe
11 that would simplify that and remedy the issue.
12 MS. FELOS: Do we want him to review the
13 the original then before the testimony, inasmuch
14 as he has reviewed this video that is right here?
15 Because that is what was provided to us.
16 THE COURT: Well, I don't know. Are you
17 intending do play the video as part of rebuttal?
18 MS. FELOS: Yes.
19 THE COURT: Then I suggest you play the
20 original.
21 MS. FELOS: All right. Yes, Your
22 Honor.
23 THE COURT: Or what is in evidence. I
24 don't know which is the chicken and which is the
25 egg.
845
1 MS. FELOS: It's the same chicken.
2 THE COURT: One came first. I don't
3 know which came first. So conceivably, the copy
4 could be the first. Okay. So what have we placed
5 into the machine?
6 MS. FELOS: Into the machine is the
7 Respondent's Number 1 which is admitted into
8 evidence.
9 THE COURT: Very well.
10 Q (By Ms. Felos) Dr. Barnhill, you did
11 review a video; is that correct?
12 A Yes.
13 Q That video was a copy of what is in this
14 machine at this time. I will make that statement.
15 A Okay.
16 Q Dr. Barnhill would not know that. In
17 reviewing that video, does it in any way change
18 your opinion, testimony, or testimony or diagnosis
19 with respect to Theresa Schiavo?
20 A No.
21 Q Please tell us why not.
22 A Well, the video that I reviewed,
23 assuming it's the same as the one that we see in a
24 minute --
25 THE COURT: Before he does that, why
846
1 don't we look and see the video. Then he can -- I
2 don't know. I don't want a bunch of assumptions.
3 Just play the video for the doctor.
4 Ms. Campbell, if you want to watch, you
5 are welcome to. Mr. Schiavo is welcome to. Your
6 clients are welcome to.
7 (THEREUPON, THE VIDEOTAPE WAS PLAYED.)
8 Q (By Ms. Felos) Dr. Barnhill, in
9 reviewing that video, is that the same video that
10 you reviewed previously?
11 A Yes.
12 Q Thank you. All right. Let's go back to
13 the question. Does the review of this video
14 change your opinion, your testimony, or your
15 diagnosis of Theresa Schiavo?
16 A It does not.
17 Q Would you please tell us why?
18 A Basically, the video shows her behaving
19 in ways that I observed her to behave when I was
20 there. I reached my conclusion based on my
21 examination of that type of behavior. This is
22 consistent with the vocalizations that are seen in
23 people with persistent vegetative states. I see
24 nothing on that tape that indicates an awareness
25 there for consciousness.
847
1 Q Can you explain to us then when we see a
2 number of behaviors on that tape, can you explain
3 to us how these behaviors would occur? Which I
4 believe you referred to previously in your
5 testimony as reflex or flexor spasms and other
6 terms like that. You will please, if you have to,
7 you know, use them again.
8 How is that, the flexor and other types
9 of reflex behavior, different from awareness and
10 consciousness where we see similar behavior such
11 as moaning, or laughing, or crying? It's kind of
12 a convoluted question, but I think you know what I
13 mean.
14 A I think that the construction of this is
15 to someone looking at that, what it appears or
16 what happens is the patient appears to be
17 expressing emotion. The patient is crying. There
18 is the beginning, there's a little something that
19 sounds like a laugh. It sounds like an emotional,
20 and in fact it is what we consider to be an
21 emotional behavior. There is behavior. The
22 behavior is moaning or laughing. That is
23 behavior.
24 I think that by everyone's personal
25 experience, when we see or exhibit or perform
848
1 those behaviors, we have a feeling associated with
2 it. That is normal human sociology.
3 Q So does Terri Schiavo have a feeling
4 associated with those behaviors?
5 A In my opinion, she does not because in
6 my opinion she lacks the ability, due to her brain
7 damage, to integrate stimulus data in such a way
8 that she has consciousness. Now this concept that
9 if there is a behavior, there may be a feeling, is
10 maybe difficult to swallow. It is not something
11 that most people have had any experience with.
12 But as a neurologist, and in the
13 literature of neurology, there are many cases of
14 people, people who have a disconnection between
15 emotion that is feeling and emotional behavior.
16 This is called pseudobulbar affect. Pathological
17 laughter. Pathological crying.
18 It is well known. The anatomy of this
19 is demonstrated. It's pretty well known that if
20 you have damage to tracks that suppress from the
21 cortex that suppresses lower centers, you can have
22 a patient for example that will cry-,, laugh, or_
23 both. They are conscious because they have not
24 had severe generalized brain damage. They have
25 discreet lesions that have disinhibited natural
849
1 responses, such that a patient might laugh or
2 cry. It's reported in literature.
3 I have personally seen it. If you ask
4 them what do you feel, they will say I don't feel
5 anything. Or do you feel sad, when they are
6 crying. No. I don't feel sad. Do you feel happy
7 when they laugh. No.
8 Q So this is how science has done
9 experiments to determine whether or not the
10 emotions and feelings are connected and you found
11 that in these patients that lack certain cortical
12 function --
13 MS. CAMPBELL: I believe she's leading
14 the witness.
15 MS. FELOS: I'm trying to get clear
16 what he is saying.
17 THE COURT: Then ask it. You are
18 leading and setting it up. If you don't
19 understand what he said, ask him to rephrase it or
20 something.
21 Q (By Ms. Felos) In the pseudobulbar
22 testing, please clarify the point regarding the
23 integration of the circuits between feeling and
24 emotion.
25 A My point in discussing the pseudobulbar
850
1 state is to demonstrate it's well known. You can
2 in fact disassociate emotional behavior from
3 feeling. That is in people who are conscious and
4 can tell you what they are feeling.
5 Q Thank you.
A What we have in this patient's case is
7 severe brain damage. Among other things, it has
8 released or disinhibited these reflexes. It's
9 disinhibited other reflexes. I talked before
10 about a suck reflex. Root reflex. These are
11 reflexes that are not normally present in adults,
12 because the cortex, the higher brain, suppresses
13 them. They are present in babies and go away when
14 the brain develops. They come back after brain
15 damage.
16 Q Did you view that on the tape?
17 A I did not see -- there was sort of a
18 little bit of orientation, I think, to the
19 mother's hand that could be. It's not a classic
20 root reflex. A root reflex is more or less when
21 you stroke, there is a visible turning.
22 Q That is called a root reflex?
23 A Rooting for the nipple, which babies
24 will do. That reflex being present in an adult is
25 just a manisfestation [sic] of the fact that there is
851
1 loss of inhibitory cortical input. It's
2 absolutely what you would expect, given her
3 overall appearance. Given the history of severe
4 anoxic injury.
5 Q You say anoxic injury meaning lack of
6 oxygen to her brain?
7 A And given the appearance of her CAT
8 scan, which shows severe damage.
9 Q Now do most people with, well, what's
10 called cognitive death or persistent vegetative
11 state show these reflex actions that you are
12 referring to?
13 A Most do. There is a spectrum, but
14 certainly well reported in the medical literature,
15 that persistent vegetative state patients will
16 moan, smile, cry, laugh, orient to stimuli. None
17 of these bahaviors [sic] imply awareness. They all can
18 occur, we believe, on a reflex basis.
19 Q And the reflex basis occurs presently
20 where in the brain?
21 A Somewhere below that part of the brain
22 which is involved in generation of consciousness.
23 The anatomy is a little -- it basically is the
24 upper brain stem. If you have an intact upper
25 brain stem and everything below that and nothing
852
1 in fact above that, you will have these behaviors.
2 Q Does Theresa have the lower and upper
3 brain stem intact?
4 A Yes.
5 Q Does she have the cortical hemispheres
6 in tact?
7 A No.
8 Q I would like to go into, looking at the
9 tape again, you have been describing each of the
10 behaviors you see and give us your understanding
11 and your explanation of what those behaviors are
12 from a medical standpoint, if you are willing to
13 do that.
14 THE COURT: I think he has done that.
15 MS. FELOS: I would like him to look at
16 each behavior. We are talking about allegedly
17 smiling, crying, moaning. A number of things. I
18 believe that the tape will clearly show, on
19 explanation, why that is. How that is occurring.
20 Then I would like to also, after that, ask him
21 whether or not there is any responsiveness or
22 consciousness to those, which of course he has
23 already mentioned.
24 THE COURT: So why ask him again?
25 MS. FELOS: So he can see the tape as it
853
1 goes through the process.
2 THE COURT: He has seen the tape. He
3 says that does not change his diagnosis, opinion,
4 or anything else. Then he went through about
5 fifteen minutes of why he feels that way. So how
6 is seeing the tape again going to -- he has
7 already offered sur rebuttal testimony to the
8 tape. So what do we hope to accomplish by looking
9 at it again? I don't know if we even have a stop
10 action on the thing?
11 MR. FELOS: I believe there is a pause.
12 MS. FELOS: At the beginning of the tape
13 when Mrs. Schindler is not even near the patient
14 there is moaning on the tape.
15 THE COURT: He already talked about
16 that.
17 MS. FELOS: I had not recognized that he
18 talked about --
19 THE COURT: He mentioned it. Looked
20 like a bit of a smile and then there was a moan.
21 MS. FELOS: I'm not talking about that.
22 Maybe that is what -- in other words, also maybe
23 the question for example I would ask him is at the
24 beginning of the tape is this patient moaning
25 spontaneously or is there some stimulus that
854
1 appears to be causing the moan?
2 THE COURT: What difference does it
3 make?
4 MS. FELOS: Because respondents are
5 claiming that the moaning is caused by the voice
6 of the respondent. One of the respondents.
7 THE COURT: He has seen the tape. Why
8 can't you just ask him the question?
9 MS. FELOS: It's a little easier to look
10 at it and respond, than it is to remember the tape
11 completely. I'll do that, if you prefer.
12 THE COURT: We are getting back into
13 this generalized discussion of his testimony and
14 we are not going to go there. If you think you
15 can make it that precise, go ahead. I don't want
16 to inhibit your ability to present your case, but
17 you are trying to convince the trier of fact, I
18 assume, and I don't know what else he can say to
19 rebut it except to say it again. But if you think
20 you can make that happen --
21 MS. FELOS: I can do it generally,
22 judge .
23 THE COURT: Okay.
24 Q (By Ms. Felos) Dr. Barnhill, referring
25 to a little bit about the tape, because we Just
855
1 have looked at it again, at the beginning of the
2 tape, Mrs. Schindler is standing away from the
3 bedside. The patient is in the bed. Do you hear
4 moaning at that time?
5 A Yes.
6 Q How would you explain that with respect
7 to medical and scientific evidence?
8 A The patient moans. She moaned when I
9 was there. I read notes on the chart that she
10 moans. She moans. Why does she moan? Could be a
11 lot of different things in terms of possible
12 reflex behaviors. Moaning, if it's an indication
13 or reflex in response to a noxious stimulus, she
14 might have gas.
15 Q So there could be internal noxious
16 stimulus things like constipation, gas?
17 A Could be a variety of different things
18 such as that. It would be that you would never be
19 able to determine that, but clearly it's
20 spontaneous. At least as presented on that tape,
21 it is just an occurrence going on at that time.
22 Not an apparent response to external stimulus.
23 Q Thank you. Then the moaning seems to
24 stop on the tape. Would you agree with that?
25 A Yes.
856
1 Q Then the voice of the respondent starts.
2 Would you agree with that?
3 A Yes.
4 Q At that point then, Mrs. Schindler puts
5 her hand under the head of Terri Schindler. Do
6 you recall what happens then? If you need --
7 A No. I think the moaning stops because
8 the tape stops. Then the mother goes over there.
9 Starts to talk to the patient. Lifts her head up
10 and the moaning starts again. The moaning starts
11 again. Yes. That appears to be the case.
12 What does that mean? Well, it can mean
13 a lot of different things. But one thing that
14 happened when I examined this patient -- and I
15 tried to move her head, which is very stiff, and
16 held it up to the right -- is that she
17 moaned. That is presumably anoxic, or what you
18 would consider if you were conscious, a painful
19 stimulus.
20 To take a muscle that is frozen or
21 contractured in a position such as that and to
22 bend it is going to be -- generate a pain type
23 behavior. It would not surprise me that it did
24 that. I think that is probably what happened
25 there.
857
1 Q So what you said, only if she were
2 conscious, would it be pain? So if the patient is
3 not conscious, then it would be what?
4 A I call it a noxious stimulus. One that
5 the nervous system, on auto pilot, will recognize
6 as disagreeable and generate a reflex. A good
7 example is if you step on a nail. If you are
8 walking along and step on a nail, you will
9 immediately remove your foot from the nail without
10 thinking about it. It is a reflex. A split
11 second later, you will have awareness because you
12 are conscious of pain. But the stimulus will
13 still be noxious, and you don't have any control.
14 You don't have to think about moving your foot to
15 do that.
16 Q So that would be the reflex action.
17 That is what you are seeing on the lifting of the
18 head and therefore the moaning sound?
19 A I think that is a likely cause. I think
20 she could have spontaneously started moaning as
21 well. What I don't think there is--is sufficient
22 indication from that tape, especially in light of
23 my having examined the patient and generated the
24 same responses, that it implies awareness of
25 anything to generate that response.
858
1 Q Thank you. What about what appears to
2 be a smile or movement of the mouth? How did you
3 perceive that?
4 A First of all, the camera angle was some
5 such a way that the patient appears to have almost
6 a smile throughout . I think there is a
7 perceptible change in the facial expression. I
8 know her facial reflex, facial muscle activity, is
9 intact. It looks more like a grimace than a
10 smile. There is some kind of facial movement.
11 What does that mean? Same thing. If we
12 go back to what I talked about in terms of
13 pathological crying states, there is crying
14 behavior. A change in the facial expression that
15 looks sad in people who don't have any feeling in
16 being sad, its not necessary to have awareness to
17 exhibit this behavior. Another way to put it is
18 exhibiting this behavior does not imply there is
19 awareness.
20 Q Are there any research papers or other
21 reports that you have referred to that have
22 augmented your opinion on this matter?
23 MS. CAMPBELL: Your honor, I object. I
24 believe this is going beyond the redirect.
25 THE COURT: Going beyond the cross.
859
1 Yes.
2 THE COURT: We talked about that.
3 Q (By Ms. Felos) Now did we talk about
4 laughing? You did not mention what appeared to be
5 a laugh. How would you relate to that?
6 MS. CAMPBELL: Your Honor, I don't
7 believe there is any testimony on this videotape
8 that there was laughing.
9 MS. FELOS: Okay.
10 THE COURT: I heard smiling. Crying.
11 Was there any testimony about laughing?
12 MS. FELOS: I thought I heard laughing.
13 I could be mistaken.
14 THE COURT: You heard laughing in
15 testimony, but with respect to the video --
16 MS. FELOS: Again, if the testimony did
17 say laughing, then we can refer to it.
18 THE COURT: Are we concluded with the
19 video?
20 MS. FELOS: No, Your Honor.
21 THE COURT: Okay.
22 Q (By Ms. Felos) Are there any other what
23 you would call emotional behaviors that you see in
24 this tape that you recall?
25 A Not really. I think the majority of
860
1 what that tape shows is moaning. Some, perhaps,
2 change in facial expression. Grimacing, which is
3 something that if you look at it, you think there
4 must be emotion there, given this is the behavior
5 scene. I don't see anything else on that tape.
6 Q All right. Okay. How long do you
7 believe this tape was? About three minutes?
8 A Three or four minutes.
9 Q How long did you spend with Theresa
10 Schiavo when you examined her?
11 THE COURT: There is nothing that that
12 question rebuts in direct testimony to
13 respondent's case-in-chief. Please use rebuttal
14 to rebut testimony, not to bolster his prior
15 testimony.
16 MS. FELOS: Thank you, judge.
17 THE COURT: Thank you.
18 Q (By Ms. Felos) There has been some
19 testimony, not the tape now, but there has been
20 some testimony regarding someone who woke up after
21 many years in a coma in New Mexico. Are you
22 familiar with that kind of situation?
23 A I read the newspaper that this had been
24 mentioned in this case. I have.
25 Q How might you explain that, if you can,
861
1 with respect to this matter?
2 A If I can take a minute and say it seems
3 to me that the issue is that allegedly a patient
4 in a prolonged vegetative state or persistent
5 vegetative state regained consciousness after a
6 long period of time. Sixteen years.
7 If that happened, I would have to,
8 without knowing any other information about it, I
9 would have to believe that patient had a different
10 type of condition. Did not have the same sort of
11 brain injury. Was not a victim of hypoxic brain
12 injury and did not have the type of severe brain
13 damage evident on the CAT scan.
14 There are cases where people have had
15 some sort of return to consciousness. As far as I
16 can tell in reviewing the literature up to, this
17 is reported in the medical literature, up to like
18 two years, those patients did not have severe
19 brain injuries on their CAT scans. They had other
20 types of injuries. So I would have to conclude,
21 if that happened, it was a different type of
22 injury or its a miracle.
23 MS. FELOS: All right. Thank you. No
24 further questions of this witness.
25 THE COURT: Thank you. Cross?
862
1 REBUTTAL EXAMINATION CROSS
2 BY MS. CAMPBELL:
3 Q Isn't it true then that your theory on
4 the lady in New Mexico is pure speculation?
5 A I don't have any other data to go on, so
6 that is speculation.
7 Q You have not reviewed any of the medical
8 information on the patient in New Mexico?
9 A Correct.
10 Q Isn't it true that your testimony here
11 is based on your experience and scholarly academic
12 scientific medical data? Right?
13 A Yes.
14 Q You don't know for sure exactly whether
15 there is any emotion that comes out of Theresa;
16 is that true?
17 A For sure with absolute certainly, I
18 can't say.
19 Q You did testify there were ribbons of
20 brain matter in her; correct?
21 A Yes.
22 MS. CAMPBELL: Thank you. No further
23 questions.
24 THE COURT: Redirect?
25 MS. FELOS: A few questions.
863
1 REBUTTAL EXAMINATION REDIRECT
2 BY MS. FELOS:
3 Q Dr. Barnhill, your opinion is based on
4 your clinical examination of this patient; isn't
5 it?
6 A Yes.
7 Q Is there any reasonable medical
8 probabilty [sic] that Theresa Schiavo could wake up
9 without -- could wake up and become conscious?
10 MS. CAMPBELL: Objection, Your Honor. I
11 don't believe this goes to rebuttal.
12 THE COURT: It goes to the absolute
13 certainty. He can comment on that. Objection is
14 overruled.
15 Q (By Ms. Felos) Please answer the
16 question. Is there any reasonable medical
17 probability or any probability that this patient,
18 Theresa Schiavo, could wake up and become
19 conscious and aware of her surroundings or
20 herself?
21 A No.
22 Q These ribbons of neuro tissue that have
23 been mentioned, are they connected to anything?
24 THE COURT: They were not mentioned.
25 MS. FELOS: I believe they were
864
1 mentioned on redirect.
2 THE COURT: Did you?
3 MS. CAMPBELL: Yes. I did.
4 THE COURT: I'm sorry.
5 MS. CAMPBELL: I didn't use the word
6 neuro.
7 Q (By Ms. Felos) Ribbons in the brain
8 then. Ribbons of activity you mentioned I think
9 previously. Could those ribbons or whatever they
10 are in the brain create -- be the cause of Theresa
11 Schiavo having some awareness or consciousness?
12 A I don't believe so. I want to clarify
13 when you use the term ribbon, I'm not sure I said
14 that. The implication is that there are areas
15 where there is residual tissue within her skull.
16 I believe based on the entire appearance,
17 history, appearance of the CAT scan, were you to
18 look at that under a microscope, basically it
19 would consist of large areas of scar tissue with
20 occasional nerve cells embedded. In those kinds
21 of, that kind of situation is what somebody in a
22 persistent vegetative state has.
23 Q And those nerve cells, are they
24 connected to anything? Integrated in the skull
25 that ultimately could then become conscious?
865
1 A I don't think so. No.
2 MS. FELOS: Thank you.
3 THE COURT: Anything further of this
4 witness?
5 MS. CAMPBELL: No, Your Honor.
6 THE COURT: Thank you, doctor. You may
7 stand down.
8 THE COURT: Call your next witness.
9 MR. FELOS: Ellen Delancey.
10 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY
11 THE COURT.)
12 REBUTTAL EXAMINATION DIRECT
13 BY MR. FELOS:
14 Q Good morning. State your full name,
15 please.
16 A Ellen Delancey.
17 Q Where do you live?
18 A Pinellas Park.
19 Q How are you employed, Ms. Delancey?
20 A Pardon me?
21 Q How are you employed?
22 A I'm a nurse at Palm Garden of Largo.
23 Q Can you tell us your educational
24 background?
25 A High school. Nursing school.
866
1 Q Are you a licensed nurse?
2 A Yes, sir.
3 Q How long have you worked at Palm Garden?
4 A Six-and-a-half years.
5 Q Do you know Theresa Schiavo?
6 A Yes. I do.
7 Q When did you have, first have occasion
8 to meet Theresa Schiavo?
9 A When she was first admitted there, I was
10 working the floor on C Wing.
11 Q What does that mean, working the floor?
12 A Nurse on the floor.
13 Q What do your duties consist of?
14 THE COURT: Excuse me. This is like
15 direct testimony. She is here to rebut something
16 that the respondents offered into evidence.
17 MR. FELOS: That is correct. I will ask
18 her those questions. The Court needs to know who
19 she is. A little bit about her qualifications in
20 order to evaluate her testimony.
21 THE COURT: As to the qualifications,
22 fine. I think you have established those. I
23 don't want a history of what she has done. She is
24 a nurse. She has been at Palm Garden
25 six-and-a-half years years [sic]. She has a nursing
867
1 degree.
2 Q (By Mr. Felos) Ms. Delancey, there has
3 been numerous, much testimony on the part of Mr.
4 and Mrs. Schindler, their children, friends of
5 Theresa Schiavo, that she is aware of their
6 presence. That she responds to jokes, laughs at
7 jokes. Knows that they are there. In other
8 words, has cognitive -- has cognition. When you
9 were a nurse on the floor, how often would you see
10 Theresa Schiavo?
11 A Daily.
12 Q Over what period of time were you a
13 nurse on the floor, on Theresa's floor?
14 A Approximately four years.
15 Q When did you stop being a nurse on the
16 floor?
17 A Approximately a year-and-a-half ago.
18 Q Since you stopped being a nurse on the
19 floor in the past year-and-a-half, how often do
20 you see Theresa?
21 A It depends on whether or not I have to
22 go down to C Wing to do something for other
23 residents or do paperwork on Theresa.
24 Q On the average, how often?
25 A I'm down there at least once a week.
868
1 Q In the six years that you have been at
2 Palm Garden as a floor nurse, and for your four
3 years with Theresa seeing her almost daily, now
4 once a week average, have you ever noticed any
5 cognitive behavior on the part of Theresa Schiavo?
6 A No.
7 Q Do you believe that Theresa Schiavo is
8 cognitive?
9 A No.
10 MR. FELOS: I have no other questions,
11 Your Honor.
12 THE COURT: Thank you.
13 MR. FELOS: I do have one other
14 question. Excuse me.
15 Q There has also been testimony that
16 Theresa Schiavo's condition has improved in the
17 past. In the recent past. In the past year or
18 so. Have you noticed, that is her mental
19 condition, have you noticed any improvements in
20 Theresa Schiavo's mental condition?
21 A No.
22 Q Ever?
23 A No.
24 MR. FELOS: Thank you.
25
869
1 REBUTTAL EXAMINATION CROSS
2 BY MS. CAMPBELL:
3 Q Hi, Ms. Delancey. I am Pam Campbell. I
4 represent Mr. and Mrs. Schindler.
5 A Hi.
6 Q Can you define what you mean when you
7 say cognitive behavior?
8 A She cannot respond to a simple command.
9 Q Have you ever heard her laugh?
10 A No. As far as, well, I don't know what
11 you mean by laugh. Have I heard her make noises?
12 Yes. Is it a laugh? That I don't know.
13 Q Have you seen her smile?
14 A No.
15 Q Have you seen her look at you?
16 A Yes.
17 Q Have you seen her turn her head?
18 A No.
19 Q Have you ever been in the room or been
20 present with Terri, either in the hall or in her
21 room, when Mr. and Mrs. Schindler have been there?
22 A Yes. I have seen them there.
23 Q Have you been standing there with Terri
24 when they are there?
25 A No. I don’t stay there during their
870
1 meetings when they visit her.
2 Q So you never really witnessed whether
3 Terri reacts to them differently than she would
4 react to you?
5 A No.
6 Q Is there a no to on file front of the
7 chart regarding whether you are allowed to talk to
8 Mr. and Mrs. Schindler?
9 MR. FELOS: Objection. That has nothing
10 to do with rebuttal.
11 MS. CAMPBELL: No further questions.
12 THE COURT: Any redirect?
13 REBUTTAL EXAMINATION REDIRECT
14 BY MR. FELOS:
15 Q Ms. Delancey, does Terri fix her gaze on
16 something or do her eyes move?
17 A As far as, you know, movement to follow
18 you?
19 Q Not to follow. Do her eyes move
20 randomly?
21 A I guess. I mean, they blink. I don't
22 quite understand the question.
23 Q Does Terri follow you with her eyes?
24 A No.
25 But you Have been 1n the room when Mr.
871
1 and Mrs. Schindler have been there?
2 A I have seen them there.
3 Q Have you seen them enter the room?
4 A Yes.
5 Q As they enter the room, have you ever
6 seen any cognitive response of Theresa?
7 A No.
8 Q Now obviously you are a nurse and have a
9 clinical background. Do you care about your
10 patients?
11 A Yes.
12 MS. CAMPBELL: I believe at this point
13 he is bolstering the testimony.
14 THE COURT: I think so. Sustained.
15 MR. FELOS: Nothing further.
16 THE COURT: Thank you. Anything
17 further?
18 MS. CAMPBELL: No.
19 THE COURT: You may stand down, ma'am.
20 Thank you.
21 THE COURT: Do you have a witness of a
22 similar length?
23 MR. FELOS: Brian Schiavo.
24 MS. CAMPBELL: I object to Mr. Brian
25 Schiavo. He has been sitting in the room during
872
1 the trial this week, it's my information. He is
2 not listed on any witness list.
3 THE COURT: Don't have to be for
4 rebuttal.
5 MS. CAMPBELL: It's not permissible to
6 be sitting in the trial
7 MR. FELOS: He is not in the courtroom.
8 As Your Honor -- as soon as the matter by which we
9 learned that he might have rebuttal testimony came
10 up, I instructed him out of the courtroom and he
11 has been out since that time.
12 THE COURT: Ms. Campbell?
13 MS. CAMPBELL: I'm not sure exactly when
14 he has been coming in and out of the courtroom.
15 It has been reported to me, because I do not know
16 Brian Schiavo, that he has been here throughout
17 the entire trial, in and out. I don't know what
18 testimony he has heard and what testimony he has
19 not heard.
20 MR. FELOS: Your Honor, I could not know
21 until I heard the respondent's case the matter by
22 -- I could not have known until that time that
23 Brian Schiavo would become, would have testimony
24 in the case at that exact moment. He was
25 instructed to leave the courtroom. He has not
873
1 been in the courtroom since then, to my
2 knowledge. Opposing counsel can question him.
3 THE COURT: He was here and heard the
4 testimony that he intends to rebut?
5 MR. FELOS: That I don't know.
6 THE COURT: Well now, you said when you
7 heard it, you instructed him to leave the
8 courtroom. So my guess is from that statement
9 that he was in the courtroom to hear what you
10 heard.
11 MR. FELOS: I believe my recollection
12 has been refreshed. Mr. Brian Schiavo was here
13 the first day on the petitioner's case, but was
14 not here --
15 MS. FELOS: He was not here, Your Honor,
16 the day that that evidence came out.
17 MR. FELOS: When that evidence came out,
18 Your Honor, we said we will need you as a witness,
19 and of course you can't attend the proceedings,
20 which he had not. Your Honor, you have given the
21 respondent's great latitude of introducing
22 evidence, introducing the video that was given to
23 us really the night before. The Court has given
24 great latitude in allowing hearsay testimony. The
25 independent beliefs of what witnesses believe.
874
1 I ask the Court to also. I don't
2 believe -- it is a matter of latitude to allow us
3 to call the witness.
4 THE COURT: Well, the concern is this
5 witness was not under the rule of sequestration,
6 which meant he could talk freely with his brother
7 or anyone else. Whether here or not, there was no
8 prohibition about it. Usually a rebuttal witness
9 is like this lady that just testified. You hear
10 something and send a subpoena to come for
11 rebuttal. No involvement. The whole purpose of a
12 trial is to have it done fairly.
13 Yes, I have allowed some things to come
14 in. Perhaps some judges, other judges, might be a
15 little more stringent, but I'm very concerned when
16 a potential witness -- and no, they don't have to
17 be listed. That is the law. But when he has an
18 opportunity to be schooled by persons other than
19 yourself --
20 MR. FELOS: I would say if that were the
21 case, that could be brought out on cross-
22 examination and would go to the weight of his
23 testimony.
24 THE COURT: No, sir. It excludes the
25 testimony. See, that is the problem. Mr. Fe1os,
875
1 if you put a witness on here that violated the
2 rule, that witness's testimony is gone. What you
3 are suggesting is that I reduce what I think of
4 the witness. They don't have the same effect.
5 MR. FELOS: Your Honor, his testimony
6 does go to an important point in the matter.
7 THE COURT: What evidence submitted by
8 respondents do you intend to rebut?
9 MR. FELOS: Your Honor, the respondent
10 testified and made a point of it in their case
11 that Theresa Schiavo was in Philadelphia when her
12 grandmother died. That was a very important point
13 they were making because Mr. Schiavo has testified
14 that Theresa's statement about her intent came
15 about on a train trip that they took to Florida
16 and on that train trip when they got to Florida,
17 during that trip, Terri's grandmother died.
18 And they have introduced that evidence
19 that, no, Terri was not in Florida, to attack the
20 credibility of Mr. Schiavo's testimony as to
21 Terri's intent. And this witness will
22 specifically rebut. This is Brian Schiavo, who
23 took the trip with Mike and Terri, who will
24 specifically testify that, yes, Terri was in
25 Florida with Michael and Brian when Terri's
876
1 grandmother died.
2 THE COURT: How does he know when her
3 grandmother died?
4 MR. FELOS: He will testify he was in
5 the Schindler condo with Mike and Terri. That
6 Michael called the Schindlers. He was on the
7 telephone. That when he got off, when Michael got
8 off the phone, he walked into the room and told
9 Terri and Brian that Terri's grandmother died.
10 THE COURT: That is hearsay.
11 MS. CAMPBELL: Even so, Mr. Felos has
12 known this is a critical part of the trial from
13 all the depositions. If this was such a good,
14 credible witness, I imagine he would have listed
15 him on the witness list in the first place.
16 MR. FELOS: I don't see anything in the
17 deposition testimony of either Mr. and Mrs.
18 Schindler that Terri was in Philadelphia at the
19 time her grandmother died. I can see the closing
20 argument. Well, how can we believe Mr. Schiavo's
21 rendition of Terri's intent on the train when he
22 says this happened on a trip when Terri's
23 grandmother died when Terri was in Philadelphia?
24 It is an important point that goes to
25 Terri's intent and credibility on his statement.
877
1 They brought it out many times in their case. I
2 believe it is important to rebut that.
3 THE COURT: Nowhere in the deposition of
4 anybody does it come out that this statement was
5 made and who was present?
6 MR. FELOS: I don't recall a statement
7 in the deposition by Mr. and Mrs. Schindler,
8 either one of them, that Terri was in Philadelphia
9 at the time of the grandmother's death. And
10 Your Honor, even if they had, even if they had
11 said that in the deposition, the fact is I did not
12 discover or find out about that witness until
13 later.
14 I mean, Your Honor, I made the same
15 argument about the videotape. That respondents
16 had two years in this case to ask the Court for
17 permission to do a videotape. I get sprung with a
18 copy of a videotape the day before trial. So the
19 fact that this -- that the case has been litigated
20 and depositions were taken is, you know, not the
21 point.
22 The point is I have found out about this
23 evidence. I found out about this evidence during
24 trial.
25 THE COURT: Now my dotes do not reflect
878
1 where she made the statement.
2 MR. FELOS: Excuse me, Your Honor?
3 THE COURT: My notes do not reflect
4 where Terri Schiavo made these statements that he
5 attributes to her.
6 MR. FELOS: Your Honor, I believe the
7 testimony --
8 THE COURT: I don't care what the
9 testimony was. I'm telling you the notes this
10 case is going to be decided upon do not reflect.
11 I saw watching TV. Saw people on life support.
12 She told him she did not want to live like that.
13 That is a paragraph after he talked about her
14 grandmother.
15 MR. FELOS: Mr. Schiavo -- it may not be
16 in your notes, Your Honor. You are going to have
17 the testimony transcribed as to conversation.
18 THE COURT: Not of Mr. Schiavo.
19 MR. FELOS: Mr. Schiavo also testified
20 that he had a conversation with Terri on the train
21 to Florida in which Terri said, concerning her
22 uncle, I'm concerned about my uncle because who is
23 going to take care of him when grandma dies.
24 THE COURT: Okay.
25 MR. FELOS: The uncle was disabled and
879
1 she told Michael if I have to be cared for by
2 others, please don't let me live like that. I
3 believe that is what Mr. Schiavo testified to.
4 THE COURT: Does it matter where that
5 statement was made? Does it matter that the
6 grandmother was in the hospital for electrolytes
7 or whether grandmother was in the hospital for
8 pneumonia?
9 MR. FELOS: If the Court is saying, yes,
10 I believe the statement was made, I found that
11 credible, it makes no difference, but the
12 argument --
13 THE COURT: Mr. Felos, I'm not saying
14 anything other than the fact that where she was
15 when she made the statement or when she made the
16 statement does not appear to be as important as
17 you think it is. Now back to the original thing.
18 Is all he is going to testify to is that grandma
19 died in March and Michael and Terri were in St.
20 Petersburg at that time?
21 MR. FELOS: With them. That is correct,
22 Your Honor.
23 THE COURT: This case turns on that;
24 right?
25 MR. FELOS: Your Honor, I'm not the
880
1 trier of fact. I don't know in the Court's mind
2 what this case will turn on. I do expect to hear
3 in closing arguments, don't believe Michael about
4 the conversation on the train. He said this
5 happened when Terri's grandmother died and it did
6 not. If respondents wish to waive that position
7 or argument --
8 THE COURT: The issue is not what they
9 do. The issue is do you have a right to put a
10 witness on the stand that has been in the
11 courtroom during part of the trial. Do you have a
12 right to do that. That is the issue.
13 Secondarily, how are you going to pass a hearsay
14 objection?
15 MR. FELOS: Well, number one, I don't
16 know if a hearsay objection will be raised.
17 THE COURT: I think it probably will
18 be. Wouldn't you raise it, Mr. Felos, if you were
19 in Ms. Campbell's position?
20 MR. FELOS: I would say, number one, it
21 falls under the, under a spontaneous statement or
22 also an excited utterance. Also, I'm not offering
23 the statement for the truth, but I --
24 THE COURT: Oh yes you are. For crying
25 out loud. The truth is grandma died that day when
881
1 they were in Florida. What else would you
2 possibly be offering that for? This testimony you
3 are intending to offer, I think, is just full of
4 problems. I think it's been a clean trial thus
5 far, and I don't want to mess it up at this
6 juncture. Brian Schiavo will not be permitted to
7 testify.
8 MR. FELOS: I would like, for the
9 record, to make a proffer of his testimony.
10 THE COURT: If you want to proffer when
11 I leave for lunch, you can do that.
12 MR. FELOS: I think its sufficient for
13 me, Your Honor, just to make a formal proffer for
14 the record as to my --
15 THE COURT: Mr. Felos, I'm not sure I
16 need to hear anymore about what he might say. I
17 think I'm a little more sophisticated than a
18 jury. You try cases with me. I don't want to
19 look at documents until I'm ready. I'll leave the
20 courtroom. You may make your proffer, then break
21 for lunch, and come back at quarter after 1:00.
22 How is that?
23 MR. FELOS: All right.
24 THE BAILIFF: All rise. Court stands in
25 recess.
882
1 (THEREUPON, THE JUDGE LEFT THE COURTROOM AND
2 THE COURT REPORTER SWORE THE WITNESS ON OATH.)
3 PROFFER TESTIMONY DIRECT
4 BY MR. FELOS:
5 Q State your name, please.
6 A Brian Schiavo.
7 Q Where do you live?
8 A I'm sorry. I live in Sarasota.
9 Q Are you related to the petitioner in
10 this case, Michael Schiavo?
11 A Yes. He is my brother.
12 Q Did you have an occasion to take a train
13 trip with Michael Schiavo and Theresa Schiavo to
14 Florida?
15 A Yes. I did.
16 Q Do you recall when that was?
17 A It was approximately March of 1986.
18 Q And at that time, was there anything
19 particular about that time that you remembered
20 about the trip in terms of some sort of accident
21 or calamity?
22 A Yes. Unfortunately, on our way back
23 after our vacation, after on our way back to the
24 train station, we had a rental car. I
25 unfortunately totaled the rental car. So that
883
1 kind of delayed our trip home.
2 Q Where did you stay after the rental car
3 was totaled? Where did you stay that evening?
4 A We went back. The tow truck driver was
5 kind enough to give us a ride back to Mr. and Mrs.
6 Schindler's condo, at Isla Del Sol is where we
7 spent the week, and we spent the night there.
8 Q Okay. Do you recall any telephone
9 conversations made by either Mr. Schiavo or
10 Theresa Schiavo that evening?
11 A Yeah. When we got back, obviously we
12 were all shaken up. Concerned about how we were
13 going to get home. That kind of thing. But I
14 remember we called the Schindlers to let them know
15 we were going to be late. We had the accident.
16 We talked for a bit. At that time, we found out
17 that Terri's grandmother had passed away.
18 Q How did you find out?
19 A I think it was Michael who was on the
20 phone. Michael told Terri after he got off the
21 phone. He was talking to the Schindlers.
22 Q When did you all -- did you return to
23 the Philadelphia area after that?
24 A Yeah. The next morning. If I recall
25 correctly, I think it was Mr. Schindler's friend
884
1 that we called -- it was either a friend or cousin
2 of the Schindlers -- to give us a ride to the
3 train station over in Tampa. We did not have any
4 transportation. That is how we got that together.
5 Q Do you recall a funeral for Theresa's
6 grandmother?
7 A I don't recall the funeral. No.
8 Q Had you ever taken a trip with Michael
9 and Theresa to Florida before that occasion?
10 A Yes. It was about, I guess, about five
11 to seven months prior to that. We had such a good
12 time on that trip, we decided to make a second
13 trip.
14 Q The first trip, was that train or plane?
15 A Plane.
16 Q Do you know whether or not Mr. Schindler
17 was in Florida during the occasion of your first
18 trip?
19 A The first trip he was. Yes.
20 Q How do you know that?
21 A He picked us up from the airport. We
22 had a good time. A lot of fun. He also took us
23 back after.
24 MR. FELOS: I have no other questions.
25 Did you want to ask any?
885
1 MS. CAMPBEL: No. No questions.
2 (THEREUPON, COURT WAS IN RECESS FROM 12:10 -
3 1:15 P.M.)
4 THE BAILIFF: All rise. Circuit court
5 is back in session.
6 THE COURT: Be seated, please. Okay.
7 Mr. Felos?
8 MR. FELOS: We call Joan Schiavo.
9 THE COURT: There is very little in this
10 proceeding, other than quite serious things, but
11 in June of '84, the newspaper things, Robert Shonz
12 was selling Hertz for $3.88.
13 Brian Schiavo, he made the request, and
14 I would not talk to him outside, but if either of
15 you have a problem with him being in the
16 courtroom?
17 MS. CAMPBELL: I don't have a problem
18 with it.
19 THE COURT: Mr. Felos?
20 MR. FELOS: No objection.
21 THE COURT: Okay. Mr. Sheriff, advise
22 him. Brian Schiavo can be back in the courtroom,
23 since there is no objection.
24 (THEREUPON THE WITNESS, PREVIOUSLY SWORN,
25 TESTIFIED AS FOLLOWS:)
886
1 REBUTTAL EXAMINATION DIRECT
2 BY MR. FELOS:
3 Q State your name, please.
4 A Joan Schiavo.
5 THE COURT: Note you are still under
6 oath.
7 Q (By Mr. Felos) There has been testimony
8 raised in the respondent's case about the status
9 of Terri and Michael's marriage before the
10 incident in February 1990.
11 A Um-hmm.
12 Q As I recall, even after Terri moved to
13 Florida, you two remained close friends?
14 A Yes. We did.
15 Q How often did you speak on the phone
16 together?
17 A When she moved to Florida, I would say
18 out of seven days, maybe five.
19 Q In that relationship, after she moved to
20 Florida, you still confided in each other?
21 A Yes. We did.
22 Q Did Terri ever mention anything to you
23 about wanting to divorce Michael?
24 A Not at all. Never mentioned it one
25 time.
887
1 Q Describe to us, please, from your
2 talking with Terri during that time period, how
3 the relationship with Michael was.
4 A She didn't see Michael a lot because he
5 worked a lot. His hours were crazy at the time.
6 She missed him, but she kept herself busy. And
7 she wanted to be around him. She loved him.
8 Q Did she ever say I don't love Michael
9 any more?
10 A No.
11 Q I want a divorce?
12 A No.
13 Q He is too controlling?
14 A Not at all.
15 Q He yelled at me because I got my hair
16 colored?
17 A Not at all.
18 MR. FELOS: No other questions.
19 THE COURT: Thank you. Cross-
20 examination?
21 MS. CAMPBELL: No, Your Honor.
22 THE COURT: Okay, ma'am. You may step
23 down.
24 THE WITNESS: Okay. Thank you.
25 MR. FELOS: May the witness stay in the
888
1 courtroom?
2 THE COURT: Is there a problem with
3 that?
4 MS. CAMPBELL: No, Your Honor.
5 THE COURT: Thank you. Ma'am, the rule
6 is still invoked. Don't talk to anybody other
7 than the lawyers about your testimony, or the
8 case, until all the testimony is concluded.
9 - THE WITNESS: Thank you.
10 MR. FELOS: Diane Gomes.
11 THE BAILIFF: Stand right here. Face
12 the judge. Raise your right hand to receive the
13 oath.
14 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY
15 THE COURT.)
16 THE COURT: Thank you, ma'am. Have a
17 seat in the witness chair, if you would, please.
18 REBUTTAL EXAMINATION DIRECT
19 BY MR. FELOS:
20 Q State your full name, please.
21 A Diane Gomes.
22 Q Where do you live?
23 A Largo, Florida.
24 Q Ms. Gomes, do you know a Theresa
25 Schiavo?
889
1 A Yes. I do.
2 Q Tell me when you first met Theresa.
3 A It was back in 1984.
4 Q Um-hmm.
5 A At Sabal Palms Nursing Home.
6 Q Would that have been 1994--
7 A 94. ' I'm sorry.
8 Q In what capacity did you meet or see
9 Theresa Schiavo?
10 A I was a care giver for her.
11 Q Who were you hired by?
12 A Her husband.
13 Q Could you briefly describe how often you
14 saw Theresa and the nature of your duties?
15 A I saw her probably five or six times a
16 week. It was up to eight hours a day.
17 Q Um-hmm.
18 A I would go in and care for her. Do her
19 private needs. Everything. Try, you know, to get
20 her up. Then we walked around the nursing home.
21 Stuff like that.
22 Q And you stopped that in 1996?
23 A Yes, sir.
24 Q Have you seen Theresa since then?
25 A Yes. I have, sir.
890
1 Q Why is that?
2 A She just became a friend to me.
3 Q How often have you seen her since 1996?
4 A Oh, a bunch of times. Like every three
5 or four months I go in there.
6 Q Is it fair to say you are fond of
7 Theresa?
8 A Yes, sir.
9 Q In all the times that you have been with
10 Theresa, working with Theresa, seeing her five or
11 six times a week, visiting her afterwards, have
12 you ever noticed any cognition or awareness on the
13 part of Theresa?
14 A No, sir.
15 Q Did you work -- was one of the days you
16 worked Sundays?
17 A Sometimes. Yes, sir.
18 Q How often -- did you ever see Mr. and
19 Mrs. Schindler visit Theresa?
20 A Not very often.
21 Q Could you explain what that means in
22 terms of time? Once a week? Month? Once a year?
23 A Maybe once a month.
24 Q How often would Michael see Theresa?
25 1 A Michael was there almost every day
891
1 unless he had to go to class.
2 Q How much time would he spend there when
3 he came?
4 A Lots of time.
5 Q More than an hour?
6 A Oh, yeah.
7 MS. CAMPBELL: I object to this line of
8 questioning. I don't believe it's in the nature
9 of rebuttal. I don't know if there has been
10 testimony or controversy that we have presented
11 Michael as not spending time there.
12 MR. FELOS: There is evidence in the
13 guardian ad litem's report. He makes reference.
14 I believe he also made, not in his testimony, but
15 makes reference in his report to the effect that
16 Mr. Schiavo's interest in Theresa waned after the
17 malpractice award or after he realized that there
18 was no hope of recovery. It would go to rebut
19 that.
20 THE COURT: He said his interest waned
21 in pursuing medical extraordinary care. I don't
22 think he mentioned, and I have not read his
23 report, Mr. Felos, but I don't think he mentioned
24 anything about he quit going or slacked off seeing
25 her. Do you want to take a minute and look at his
892
1 report so you can point that out to me?
2 MR. FELOS: Yes. Let me take a look at
3 his report.
4 THE COURT: I think we are on Page 5.
5 Nothing there about his being there or not being
6 there. It talks in terms of treatment. Did you
7 have something else?
8 MR. FELOS: He does -- no. I don't see
9 a specific reference. You are right, Your Honor.
10 I don't see a specific reference on that.
11 THE COURT: Therefore, objection will be
12 sustained.
13 Q (By Mr. Felos) Ms. Gomes, did you ever
14 see Theresa moan?
15 A Yes, sir.
16 Q Um-hmm. Did you ever see Theresa make
17 other sounds?
18 A Not really. Couple of groans or
19 something during her female time.
20 Q Have you noticed any improvement in
21 Theresa's mental condition over the period you
22 were with her?
23 A No, sir.
24 Q In the time you visited with her
25 afterwards?
893
1 A No, sir.
2 MR. FELOS: I have no other questions.
3 REBUTTAL EXAMINATION CROSS
4 BY MS. CAMPBELL:
5 Q Good afternoon. My name is Pam
6 Campbell, attorney for Mrs. and Mrs. Schindler.
7 Ms. Gomes, have you seen Theresa in the last year?
8 A Yes.
9 Q Have you been there in the last year
10 when Mr. and Mrs. Schindler were present?
11 A No. I just dropped in to visit her.
12 MS. CAMPBELL: Okay. No further
13 questions.
14 THE COURT: Thank you. Any redirect?
15 Thank you, Ms. Gomes. You may step down.
16 MR. FELOS: Call Mr. Schiavo.
17 THE BAILIFF: You are still under oath.
18 (THEREUPON, THE WITNESS, PREVIOUSLY SWORN,
19 TESTIFIED AS FOLLOWS:)
20 REBUTTAL EXAMINATION DIRECT
21 BY MR. FELOS:
22 Q Mr. Schiavo, you heard the respondent's
23 evidence regarding what they believe to be
24 Theresa's awareness. You have seen the
25 videotape. Does that in any way alter or change
894
1 your testimony regarding Theresa's mental status?
2 A No. It does not.
3 Q Have you witnessed Theresa moan or have
4 the similar type of physical responses she did in
5 this videotape?
6 A Many times. Yes.
7 Q Can you tell the Court, for instance,
8 what was occurring on those times?
9 A Terri moans a lot when she is in a
10 laying position and you sit her up to place her in
11 a chair. She will moan. Terri will moan when you
12 turn her over. Terri will moan when you pull her
13 arms straight out.
14 Q There was some testimony about
15 discussions or plans, if the malpractice case was
16 successful, to have Terri brought home to live in
17 a home setting. After the malpractice award, was
18 Terri ever brought into a home setting?
19 A She was brought home with me. Yes.
20 Q How long did that last?
21 A First time approximately four months.
22 Q After the malpractice suit?
23 A Oh, after the malpractice suit?
24 Q Yes.
25 A Um, brought her home -- I'm trying to
895
1 remember every place she's been. She went to
2 College Harbor. Bayfront. Approximately about
3 four months after the malpractice suit.
4 Q As guardian of her person, why haven't
5 you decided to bring Terri to be cared for in your
6 home or a home setting?
7 A Terri is very difficult to take care
8 of. She needs a lot of care. A lot of attention.
9 Q Um-hmm.
10 A It's very difficult to do in a home
11 setting.
12 Q Diane Meyer testified that she believed
13 Terri was not eating her food and she said she
14 told you about that. Did Diane ever tell you
15 anything about an eating problem with Terri?
16 A Absolutely not.
17 Q Did you do anything whatsoever to poison
18 the relationship, friendship, between Terri and
19 Diane Meyer?
20 A Absolutely not.
21 Q We have heard testimony from many
22 witnesses -- or from Jackie Rhodes. Did you ever
23 monitor your wife's mileage on her car?
24 A Of course not. Why would I want to
25 monitor her mileage? She was free to go as she
896
1 pleased.
2 Q Did you yell at your wife because she
3 had her hair colored?
4 A Of course not.
5 Q Did you ever -- how would you describe
6 the status of your marriage before the incident?
7 A Terri and I had a very loving marriage.
8 We had our problems, just like every other
9 marriage does. Terri never ever mentioned to me
10 about divorce.
11 Q Did she ever say I don't love you
12 anymore, Mike?
13 A Not at all. The night before it
14 happened, she told me she loved me.
15 Q Where was Terri when she had gallbladder
16 surgery? The surgery to have her gallbladder
17 removed? What facility was she in?
18 A Palm Garden, Largo.
19 Q Not Sabal Palms, as testified to by
20 Mrs. Schindler?
21 A No.
22 Q Where was Terri when her paternal
23 grandmother died?
24 A Terri was here with me in Florida.
25 Q How do you remember that? How do you
897
1 know that?
2 A Because we took the train down here,
3 and when we got down here, before leaving, we got
4 into a car accident.
5 Q Um-hmm.
6 A And when we got back, the driver of the
7 tow truck took us, graciously, back to the
8 condominium.
9 Q Um-hmm.
10 A I called and talked to Mrs. Schindler
11 personally. Told her we were going to be late.
12 We were in the car accident. She gave us the
13 number -- I don't know if it was a cousin or
14 friend -- who came and picked us up the next day
15 and took us to the train. But during that
16 conversation, Mrs. Schindler told me that Terri's
17 grandmother passed away.
18 I specifically remember asking Mrs.
19 Schindler why didn't you call us during the week.
20 She said what are you going to do. There is
21 nothing you could have done here. I hung up the
22 phone with Mrs. Schindler. I went into the living
23 room and told Terri her grandmother had died.
24 Q You were on that Florida trip also with
25 your brother, Brian?
898
1 A Yes.
2 Q That is the trip you went to Florida on
3 the train?
4 A Yes.
5 Q Had you and Terri and Brian taken any
6 other trips to Florida together?
7 A I believe it was October of 1 85.
8 Q Do you know where Mr. Schindler was?
9 A Mr. Schindler was here on vacation.
10 Q I believe Mrs. Schindler testified that
11 she got hope from a Dr. Yinghling, who had come
12 from California, about a year after the implants.
13 Were you here with Dr. Yinghling?
14 A Yes. I was.
15 Q Was there anything hopeful that occurred
16 as a result of Dr. Yinghling's visit?
17 A No. There was not.
18 Q To your knowledge, is there any
19 treatment at Shands Hospital that can help Terri?
20 A No. There is not.
21 Q Are you aware of any treatment anywhere
22 that can help Terri?
23 A There is no treatment anywhere that can
24 help Terri. No.
25 Q If there were, what would you do?
899
1 A I would be there in a heartbeat.
2 Q Are you indebted to Mr. Schindler?
3 A No. I'm not.
4 Q Does he owe you any money?
5 A Yes. He does.
6 Q For what?
7 A He bought my vehicle from me and he also
8 used my credit card.
9 Q Did he, was there any agreement for him
10 to pay you for this vehicle?
11 A Yes. A verbal agreement.
12 Q How much?
13 A $2000.
14 Q Did you transfer title to Mr. Schindler?
15 A Yes. I did.
16 Q Did he pay you any money?
17 A One dollar.
18 Q When you say he used your credit card,
19 that was a credit card for what store?
20 A Montgomery Wards.
21 Q Do you know what Mr. Schindler used the
22 credit card for?
23 MS. CAMPBELL: Objection, Your Honor.
24 believe there was testimony on cross with Mr.
25 Schiavo on Monday regarding, since we don't have
900
1 the transcript it's hard for me to say, but that
2 he didn't recall any charges on anything, charge
3 card, any money that Mr. Schindler owed him.
4 MR. FELOS: I don't recall that, but you
5 can certainly cross-examine about that.
6 MS. CAMPBELL: I think the testimony now
7 is different from what it was on Monday.
8 THE COURT: I don't recall that either.
9 MS. CAMPBELL: I believe it was toward
10 the end of my cross-examination there was a
11 discussion regarding -- would you like me to --
12 THE COURT: I recall the lawyer sending
13 the Schindlers a demand letter in '93, plus or
14 minus, but I'm not sure why.
15 MS. CAMPBELL: I believe the follow up
16 question was was it for any credit card charges.
17 I thought his testimony was he didn't know or no.
18 THE COURT: That would have to do with
19 the demand note. It may or may not have had to do
20 with -- if you have a copy of the letter.
21 Q (By Mr. Felos) Mr. Schiavo, do you
22 know what Mr. Schindler used your Ward's credit
23 card for?
24 A A lounge chair. I believe a tubie.
25 Q Was there any agreement as to repayment
901
1 of those funds?
2 A Yes.
3 Q What was that?
4 A That he would pay it back.
5 Q Did he?
6 A No. He did not.
7 Q Robert Schindler, Jr. was asked what he
8 believed Terri would want in these circumstances
9 if she were aware of what was occurring. I will
10 ask you the same question. What do you believe
11 your wife would want, if she knew what was
12 happening to her now?
13 MS. CAMPBELL: I object. I don't
14 believe that is proper for rebuttal. I believe
15 Mr. Schiavo already testified to that on direct.
16 MR. FELOS: I never asked him that
17 question, Your Honor.
18 THE COURT: It does not matter. His
19 opinion does not rebut someone else's opinion. So
20 we are in rebuttal. You are asking him to rebut
21 Robert Schindler Jr.'s with his own opinion. That
22 is not rebuttable. He has not challenged his
23 opinion, his belief. His belief is not based on
24 facts that he can rebut, so I'm going to sustain
25 the objection.
902
1 MR. FELOS: I have no other questions.
2 THE COURT: Thank you. Cross?
3 MS. CAMPBELL: No questions, Your Honor.
4 THE COURT: Thank you. You may step
5 down.
6 THE COURT: Further witnesses?
7 MR. FELOS: We only have Mr. Sheehan.
8 We have discussed this before. I have spoken with
9 him. He advised me that he would be available to
10 testify at 9:00 a.m. tomorrow morning.
11 THE COURT: So if we have -- do you have
12 any sur rebuttal?
13 MS. CAMPBELL: No, Your Honor.
14 THE COURT: So I guess what we do now,
15 unless you want to do closings before you get done
16 with your witnesses, I guess we will stand in
17 recess until 9:00 a.m.
18 MS. CAMPBELL: Would it be the Court's
19 plan to go directly into closings at the
20 conclusion?
21 THE COURT: I offered you attorneys an
22 either/or. I'll still stand behind that. If you
23 want to start at 9:00 and go directly to closings,
24 that is fine. If you want to start at 1:30 and go
25 directly to closings, that is likewise fine. I am
903
1 at your disposal.
2 MR. FELOS: I would prefer to go into
3 closing arguments directly after Mr. Sheehan's
4 brief testimony.
5 THE COURT: That is what I intend, but
6 if both, you all wanted to spend the morning
7 preparing closings, I can live with that.
8 MS. CAMPBELL: That is perfectly fine
9 with me to just go into closings after
10 Mr. Sheehan.
11 THE COURT: That is fine. We will be in
12 recess until 9:00 a.m. tomorrow morning by the
13 courtroom watch.
14 THE BAILIFF: All rise. Court stands in
15 recess.
16 (THEREUPON, COURT RECESSED AT 2:00 P.M. AND
17 RECONVENED AT 9:00 A.M. ON 1-28-00.)
18 THE BAILIFF: All rise. Circuit Court is
19 back in session. Be seated, please.
20 THE COURT: Mr. Felos, ready to proceed?
21 MR. FELOS: Yes, Your Honor.
22 THE COURT: Ms. Campbell, are the
23 respondents ready?
24 MS. CAMPBELL: Yes, Your Honor.
25 THE COURT: Call Mr. Sheehan, I guess.
904
1 MS. CAMPBELL: I, at this time, I would
2 also like to renew my objections to Mr. Sheehan on
3 the grounds of relevancy and attorney/client
4 privilege as we discussed previously.
5 THE COURT: Let's get that out on the
6 table and see what it looks like. Let's take the
7 relevancy first, since I've wrestled with that
8 since last week. What, other than impeachment,
9 what does his testimony have to do with what I
10 need to decide in this case?
11 MR. FELOS: Your Honor, I think the
12 motivations of the parties are very relevant to
13 reaching the truth of this matter. We have heard
14 from the respondents what their motivation in the
15 case is.
16 Mr. Schindler has stated he would do
17 anything to keep his daughter alive, yet he
18 dismissed with prejudice a suit in which he
19 alleged my client was found to give medical
20 treatment. The same matter which he is opposed to
21 in this action, he dismissed with prejudice. His
22 explanation for that is I didn't know. I think
23 it's relevant to show his answer was untruthful.
24 THE COURT: Mr. Felos, even if to
25 convict of perjury would be material, I then get
905
1 back to the relevance. What issue in this case
2 does the quality of the dismissal of that earlier
3 action touch upon?
4 MR. FELOS: Mr. Schindler also
5 testified as to a conversation he had with his
6 daughter surrounding the placement of a respirator
7 on his mother, which I assume was offered to show
8 some intent about his daughter. That his daughter
9 agreed with the decision concerning artificial
10 life support regarding his mother. Placement of
11 the respirator.
12 That specific testimony, I gather, was
13 offered on the part of the respondents to show
14 something about Theresa Schiavo's intent. Whether
15 this man is truthful, whether the rendition of his
16 testimony is truthful, is very relevant to the
17 Court to be able to test the validity of that
18 particular relevant statement and to the extent we
19 can show on rebuttal that his testimony was for
20 the truth, this is relevant.
21 THE COURT: Ms. Campbell?
22 MS. CAMPBELL: I have no response.
23 THE COURT: So if you ask a witness was
24 the sun shining the day before the accident and
25 they said no, you would want to bring in a
906
1 meteorologist to show it was cloudy that day, even
2 though it had nothing to do with the accident?
3 MR. FELOS: Your Honor, this is not a
4 question about the sun shining. I may not want
5 for call a meteorologist and say the sun was
6 shining.
7 THE COURT: It is the same thing. I
8 think you have to concede, because you have not
9 met it, swear that the quality of the dismissal in
10 1994, I think, has nothing to do with anything I
11 need to decide in this trial. It is totally
12 collateral. It is totally peripheral, hanging out
13 there.
14 MR. FELOS: By the same token, Your
15 Honor, what did the status of Mr. and Mrs.
16 Schiavo's marriage have to do with the specific
17 matter of intent? I objected at the time and that
18 whole area that the respondents were allowed to
19 bring in was allowed. We would have had a trial,
20 I suppose, in a half a day, just having three
21 witnesses, and the only questions would have been
22 what did Theresa Schiavo say.
23 But that was not how this trial was
24 conducted and there were many, many collateral
25 matters. And I think the Court, for good reason
907
1 on many occasions, said, yes, there are additional
2 matters which may bear on this case and the
3 credibility of witnesses and what happened here.
4 Such as the status of the marriage, which was
5 brought in.
6 Certainly the prior litigation was well
7 discussed and was well -- was a major matter
8 before the Court. And to have this man say he
9 wants to safe his daughter's life, yet he
10 dismisses a legal action which he supposedly could
11 do that --
12 THE COURT: Whether it was dismissed
13 with prejudice or without prejudice, it was
14 dismissed. You have the same argument either way,
15 don't you?
16 MR. FELOS: No. This is the
17 distinction.
18 THE COURT: I know what the legal
19 distinction is, Mr. Felos. My guess is the
20 statute might have run. It is six years old now,
21 those allegations. Be that as it may, the
22 argument is that he dismissed it and I don't know
23 what prejudice has to do with anything.
24 Are you suggesting that he can never
25 bring up a removal action against Mr. Schiavo
908
1 based on neglect?
2 MR. FELOS: Not on the same grounds.
3 THE COURT: Note solely on the same
4 grounds.
5 MR. FELOS: That is the distinction.
6 THE COURT: But he is not attempting to
7 do that.
8 MR. FELOS: Your Honor, I have no wish
9 to argue with the Court.
10 THE COURT: Well, attorney/client
11 privilege might solve that problem. I know he
12 testified what his attorney did or did not say. I
13 think clearly an attorney can testify as to
14 whether or not he was his attorney; could he not?
15 MS. CAMPBELL: Yes, Your Honor.
16 THE COURT: That is one area that may
17 not be barred under any extent.
18 MR. FELOS: He has also specifically,
19 has testified as to discussions with Mr. Sheehan
20 and we have the relevant portions of his -- the
21 relevant portions of his deposition in which he
22 said, he was asked, "Mr. Sheehan dismissed your
23 claim with prejudice without explaining to you
24 what that meant?" Answer. "Yes. I had a brief
25 discussion with him, but it was never explained to
909
1 us the ramifications of dismissing this charge
2 with prejudice."
3 THE COURT: I'm not sure what the
4 ramifications are. The text book definition of
5 what prejudice is.
6 MR. FELOS: I cited that to point out
7 not only did Mr. Schindler say he didn't know what
8 dismissal with prejudice was, that was based upon
9 a conversation where he said I had a discussion
10 with Mr. Sheehan on the question of waiver. When
11 you testify as to your discussion with your
12 attorney, the law on a subject, that acts as a
13 waiver.
14 THE COURT: He certainly did testify.
i5 MS. CAMPBELL: Your Honor, candidly, I
16 believe this part of the argument is not as strong
17 as the other part. I believe there has been
18 potentially some waiver.
19 THE COURT: I guess I'll hear from Mr.
20 Sheehan. Again, I still don't think that this has
21 any great impact on what I need to consider, but
22 I'll allow it. But be very precise with your
23 questions.
24 MR. FELOS: I will, Your Honor.
25 1 THE COURT: Thank you.
910
1 THE BAILIFF: Stand
2 right here. Face
2 the judge. Receive the oath.
3 (THEREUPON, THE WITNESS WAS SWORN ON OATH BY
4 THE COURT.)
5 THE BAILIFF: Step up to the witness
6 box and be seated.
7 REBUTTAL EXAMINATION DIRECT
8 BY MR. FELOS:
9 Q State your full name, please.
10 A James Sheehan.
11 Q How are you employed, sir?
12 A I'm an attorney.
13 Q Were you an attorney in 1993?
14 A Yes.
15 Q Did you have an occasion to represent a
16 Mr. and Mrs. Robert Schindler?
17 A Yes. I did.
18 Q Was that in an action regarding a
19 petition they filed to remove Mr. Schiavo as
20 guardian of Theresa Schiavo?
21 A That is correct.
22 Q Sir, that petition you filed on behalf
23 of Mr. and Mrs. Schindler was dismissed with
24 prejudice; is that correct?
25 A Yes.
911
1 Q I believe there is a notice of
2 dismissal?
3 A Let me clarify. There was a voluntary
4 dismissal with prejudice.
5 Q Am I correct that there was a notice of
6 voluntary dismissal with prejudice signed by you
7 filed with the Court?
8 A Yes.
9 Q Mr. Schindler has claimed at the time
10 that occurred, and I'll read you his words, "he
11 had at that time removed himself as our attorney
12 and was not our attorney." Is that true? Did you
13 file that dismissal, notice of voluntary dismissal
14 with prejudice, when you were no longer the
15 Schindler's attorney?
16 A No. Just to clarify my answer, no. No,
17 that is not true. I was still attorney of record.
18 Q Had they discharged you when you filed
19 that document?
20 A If I -- I don't know if that really can
21 be answered in a yes or no answer. I'd like to
22 explain a little of the circumstances, if I could,
23 Your Honor.
24 THE COURT: Yes, sir.
25 A About a year prior to my filing that
912
1 notice, I had spoken with my clients. Once again,
2 judge, this is an area of privilege that I don't
3 know if the Court has ruled on or not.
4 THE COURT: It has been waived. Pretty
5 much conceded that.
6 A I had had a conversation with my clients
7 and I had expressed an interest to withdraw, and
8 they had asked me not to withdraw until they had
9 time to obtain another attorney. So I said fine.
10 For a year I did not do anything on the file, and
11 nothing was done on the file, and the only reason
12 that the voluntary dismissal was filed is because
13 after the end of a year we were coming up on
14 dismissal for lack of any activity in the record.
15 That is when I contacted my clients and
16 that decision was made, but I think it would be
17 reasonable for a non-lawyer to assume that I was
18 no longer representing them because we had had
19 that discussion, and a year had passed and I had
20 not done anything in the case.
21 Q (By Mr. Felos) Was the dismissal with
22 prejudice that you filed done with the consent of
23 your clients?
24 A Yes.
25 Q With their knowledge?
913
1 A Yes.
2 Q Mr. Schindler stated, he was asked a
3 question, "Mr. Sheehan dismissed your claim with
4 prejudice without explaining to you what that
5 meant?" Answer. Yes. Did you dismiss the
6 Schindler's claim with prejudice without
7 explaining to them what prejudice meant?
8 A I don't know if I talked to Bob
9 directly. I know I spoke with Mary. I know that
10 I wrote them a letter explaining what it meant.
11 Q Did you do that before the dismissal was
12 filed?
13 A Yes.
14 MR. FELOS: I have no other questions.
15 THE COURT: Cross?
16 REBUTTAL EXAMINATION CROSS
17 BY MS. CAMPBELL:
18 Q Good morning. In that issue that you
19 were assisting them with as far as the petition to
20 remove Mr. Schiavo as the guardian, was the
21 removal of a feeding tube ever an issue in that
22 action?
23 MR. FELOS: I believe that is way beyond
24 the scope of this examination. This was merely
25 rebuttal on one issue. She's raising new issues.
914
1 THE COURT: Overruled.
2 A No.
3 Q (By Ms. Campbell) Did you ever tell Mr.
4 and Mrs. Schindler they would never be able to
5 have Mr. Schiavo removed as guardian in the
6 future?
7 A No. I'll tell you exactly what I told
8 them. My statement to them was if you file a
9 voluntary dismissal -- and once again this was not
10 a statement to Bob Schiavo; I discussed it with
11 Mary and I did write them a letter -- but in my
12 letter I explained to them a dismissal with
13 prejudice meant you could not litigate any of the
14 issues in the specific factual issues that were
15 litigated in this case.
16 If something arose in the future, some
17 new facts that caused you to file another
18 petition based on new grounds, that that would not
19 be covered by the dismissal.
20 Q As part of that dismissal, was there an
21 agreement as to the payment of the opposing side's
22 fees and costs?
23 A The reason, and this is just from my
24 memory, the reason we entered into the dismissal
25 basically was so that both sides would handle
915
1 their own fees and costs. That was kind of the
2 reason that we decided to do that. Because if the
3 case were dismissed as it stood, my clients might
4 be responsible for fees and costs, and I wanted to
5 make sure that did not happen.
6 Q Was Mr. Schiavo -- or Mr. Nilsson, the
7 attorney representing him at the time, was there a
8 discussion as to the Schindler's request to pay
9 for their fees and costs? The Schindlers to pay
10 for Mr. Schiavo's fees and costs?
11 A I don't know that the issue was about
12 fees at that point in time, but normally costs are
13 awarded to the prevailing party. Since the
14 petition was filed by the Schindlers, if the case
15 was ultimately dismissed for whatever reason,
16 Michael Schiavo would have automatically been
17 entitled to costs. That was something that was a
18 given.
19 I don't have a present recollection of
20 doing it, but I'm sure I talked to Mr. Nilsson and
21 that's the deal we worked out. There would not be
22 any claims for fees and costs, and then we just
23 dismissed.
24 MS. CAMPBELL: Thank you. I have no
25 further questions.
916
1 THE COURT: Redirect?
2 REBUTTAL EXAMINATION REDIRECT
3 BY MR. FELOS:
4 Q is it fair to say, Mr. Sheehan,
5 regarding the issue of fees and costs, that it was
6 much more your client's concern about having costs
7 assessed against them than Mr. Schiavo?
8 A I would say that would be a fair
9 statement.
10 MR. FELOS: No other questions.
11 MS. CAMPBELL: No further questions.
12 THE COURT: Are you under subpoena?
13 THE WITNESS: Yes, Your Honor.
14 THE COURT: You are excused from your
15 subpoena.
16 THE COURT: Anything further?
17 MR. FELOS: The only other matter I
18 wanted to bring up to the Court, before closing
19 arguments, was the request the respondents made at
20 the status conference for the Court to view the
21 ward.
22 THE COURT: They have not made a request
23 as yet. They have not renewed that request as
24 yet.
25 MR. FELOS: If I can speak to one matter
917
1 on that, Your Honor.
2 THE COURT: It's not before the Court,
3 Mr. Felos.
4 MR. FELOS: At this time, Your Honor,
5 the petitioner makes an oral motion to the same
6 effect. That if the Court found it needed and
7 advisable to visit the ward and see the ward, that
8 the petitioner has no objection to that
9 whatsoever, and actually encourages the Court to
10 do that, for an extended period of time.
11 And speaking on that further,
12 Your Honor, it was the petitioner's concern that
13 the only actual opportunity for the Court to view
14 Theresa Schiavo was a very brief three minute
15 video, and petitioner feels that for the Court to
16 have a real opportunity to assess the condition of
17 the ward firsthand, that three minutes really is
18 not fair and not adequate.
19 And so the petitioner orally requests
20 the Court, that if the Court feels that it is
21 advisable in any way or helpful to the Court in
22 any way to see Theresa Schiavo, that is certainly
23 with the encouragement of petitioner.
24 THE COURT: Thank you. Do you now rest
25 your rebuttal?
918
1 MR. FELOS: Yes.
2 THE COURT: Is there any sur-rebuttal?
3 MS. CAMPBELL: No, Your Honor.
4 THE COURT: Ready to go into closings or
5 do you need a few minutes?
6 MR. FELOS: Ready, Your Honor.
7 THE COURT: From a time prospective,
8 not that I will cut you off, but how much time,
9 Mr. Felos, do you feel you will need? Just in
10 round numbers.
11 MR. FELOS: I would say an hour.
12 THE COURT: Does that include your
13 rebuttal?
14 MR. FELOS: It may not. I request an
15 hour and 15 minutes.
16 THE COURT: Do you want me to let you
17 know when an hour is past?
18 MR. FELOS: Yes.
19 THE COURT: Is an hour and 15 minutes
20 sufficient?
21 MS. CAMPBELL: Yes, sir.
22 THE COURT: Tell me if it is not.
23 MS. CAMPBELL: That's sufficient.
24 THE COURT: Okay. We may break after
25 Mr. Felos, so we can regroup. Mr. Felos.
919
1 MR. FELOS: Obviously, Your Honor, this
2 has been a difficult case. I think it's
3 important at the outside to open the door to
4 common sense because in any determination by the
5 Court, the Court hears the evidence, the Court
6 reviews the evidence, but in our proceedings
7 common sense is not abandoned. It's welcomed.
8 The trier of fact is reminded of that.
9 What's the common sense in this case?
10 The common sense is if that video of Theresa
11 Schiavo, which is respondent's evidence of the
12 best that they allege she can be, was viewed by
13 500 people, how many people would say, sure, keep
14 me alive? I'd like to remain in that condition
15 for the next ten years, twenty years, thirty years
16 on artificial life support.
17 Out of 500 people we know, we all know,
18 maybe one would say that, maybe another would say
19 that, but the overwhelming majority of people
20 would say of course not. That's not living. What
21 is it that is left of life to be lying incontinent
22 and paralyzed, contractured, having your body
23 invaded by tubes? Having a toe amputated,
24 gallbladder removed, hospitalization for this and
25 that. How many people would say, sure, let's
920
1 continue the invasion of personal dignity to be
2 kept alive in that condition?
3 We know that that is common sense.
4 That is no surprise, and it's actually in
5 evidence. In Beverly Tylor's report, we had focus
6 groups with hundreds of people, 386 people.
7 Continued research is that the overwhelming
8 sentiment, desire, of a person is that, sure,
9 medical technology is great if there is a
10 possibility that we can recover. Yeah, I want to
11 try it for a while. But if there is no hope of
12 recovery, who in their right mind would want to
13 have their existence perpetuated in that manner?
14 That's common sense. We all know that.
15 We all want to die with dignity.
16 Naturally. The testimony of Father Murphy where
17 he said see how the old priests and nuns are cared
18 for. They don't have feeding tubes. They don't
19 have surgeries. They don't have their body parts
20 amputated. They are treated with love.
21 Compassion. Ice chips are put in their mouth.
22 They are given comfort care. They die naturally.
23 The same for the people he worked with in the AIDS
24 hospice. That's how we feel about end of life.
25 That is what, as Beverly Tylor said, death with
921
1 some dignity means.
2 So the question that keeps going through
3 my mind is why are we here ten years after we lost
4 Theresa Schiavo? Why are we here ten years later
5 arguing about whether her feeding tube should be
6 removed? Why has her body been perpetuated for
7 ten years? Under common sense, it doesn't make.
8 It doesn't make common sense.
9 What is obvious in this case is that
10 there are many emotional components on both
11 sides. They are complex, and being in the nature
12 of emotion, they are also nonlinear. Two plus two
13 equals four rationally, but in the emotional realm
14 where rational thoughts are not predominant, two
15 plus two does not equal four many times. So there
16 is an important question, Your Honor, and that is
17 what is happening here? What is the truth here?
18 And this is not just an academic
19 question I'm raising. It's essential for justice
20 to be done. The Court is not empowered to be a
21 philosopher, a theologian, and make moral
22 pronouncements. The Court is here to make a
23 decision and render justice on this petition, but
24 the foundation of your decision, the foundation of
25 justice being done, is a recognition of the
922
1 truth.
2 First from Mr. and Mrs. Schindler. Why
3 do they want to perpetuate their daughter in this
4 condition by artificial 'Life support? Its a
5 legitimate, important question for the Court to
6 consider and it's a difficult question to answer.
7 One reason it's difficult is that it's hard to
8 figure out in this trial what the Schindlers
9 really mean.
10 In their examination and cross-
11 examination I must have read half their
12 depositions to the Court. Their stories shifted,
13 changed, moved. They were modified so many times
14 that we spent half this trial saying, "Didn't you
15 say this? Didn't you say that?" It was different
16 now and it was different before. It is difficult
17 to pin them down and difficult to answer that
18 question.
19 One answer is that we have had a lot of
20 testimony about their beliefs presented to this
21 Court as pro life. What we have heard the last
22 week, Your Honor, is not pro life. - It is
23 something highly disturbing and extreme. I might
24 even use the word bizarre. To hear testimony that
25 my daughter's intent doesn't matter. Even if she
923
1 didn't want this, it does not matter. She's going
2 to be treated.
3 To hear testimony that a patient should
4 be treated against their will and the daughter, me
5 too, I would want to be treated against my will.
6 All possible medical care for a permanently
7 unconscious patient. The amputations. It's
8 shocking, and I would suggest to the Court, that
9 that testimony is so extreme, and again not by my
10 opinion.
11 Beverly Tylor, who has interviewed
12 hundreds and hundreds; Father Murphy, who has
13 counseled families in this situation, hundreds of
14 families; both said they had never heard anything
15 this extreme. Not only that, but all four of the
16 Schindlers tracked the same line. It's hard to
17 believe, Your Honor, that this testimony as to the
18 belief system is that is what they believe they
19 would want for themselves and let's do it for
20 Theresa, too, it's hard to believe that that
21 testimony is not contrived.
22 Another thing about the beliefs. It is
23 very disturbing to have respondents take out the
24 trumpet and banner of religion. You know, the
2r justification is the Catholic church. It's God's
924
1 will. Father Murphy was morified [sic], mortified on
2 the stand to have to be here to say this has
3 nothing to do with the Catholic church. These
4 beliefs have nothing to do with church
5 teachings. So is it based upon the Schindlers'
6 beliefs, their own personal beliefs that they want
7 to keep Theresa alive? I mean, no one knows for
8 sure, but I would say the evidence is unlikely or
9 the likelihood is slim.
10 What other reasons are there that the
11 Schindlers may want to keep their daughter alive
12 in this condition? I think Father Murphy was kind
13 and compassionate toward the respondents. When I
14 asked him can you attribute -- what might you
15 attribute these beliefs to, and this behavior, he
16 said an abnormal grief process. And he told the
17 story about his mom and how he wore his mother's
18 ring that she wore in the casket for about a
19 year-and-a-half, and one day he took it off and
20 put it away and his grief had completed.
21 We have all had situations when we have
22 had to grieve. And my own situation, Your Honor.
23 I have had a parent die. For three years I could
24 not look at his picture because it disturbed me
25 too much, and after three years I looked at it one
925
1 day and it did not disturb me anymore. It was
2 okay. The pain and grief were gone and there was
3 love there.
4 That is what Father Murphy described in
5 his testimony. A normal grieving process. And
6 charitably to the Schindlers he said that this is
7 what may be going on here. Maybe they just can't
8 let go of their daughter.
9 The time in this trial, out of all the
10 time we have seen Mrs. Schindler testify, the one
11 time that I can say that what was happening with
12 her was real and truthful is when I asked her
13 about this video. On cross-examination,
14 Your Honor, before we ran the video I asked her,
15 "When you came to your daughter's bedside and
16 started talking to her, is that when she started
17 moaning or responding with sound?" And she said
18 yes. I said, "Are you sure it was your voice?"
19 She said I'm sure.
20 We saw the video and that's not how that
21 occurred. Mrs. Schindler talked to her daughter.
22 Then, when she lifted her head -- and her daughter
23 made no sound or reaction -- but when she lifted
24 her head she started making the sounds. When I
25 showed her the video, she said it was not. Her
926
1 voice was it. She got extremely angry. She
2 became animated. That was real.
3 What was it about that? It must have
4 been very difficult for Mrs. Schindler to have
5 pointed out to her that, no, these are not
6 voluntary reactions. These are not cognitive
7 reactions. You are not seeing what you think you
8 are seeing. And anyone can have compassion. I
9 have compassion for Mrs. Schindler. It's a hard
10 thing to have an attorney in a trial and somebody
11 push in your face and say, no, this is not
12 happening. Your daughter is not responding to
13 you. Your daughter is not getting better. Those
14 are hard words. So, yes, there may be an abnormal
15 grief process going on here with Mr. and Mrs.
16 Schindler.
17 Mr. Schindler's testimony when I was
18 asking him about, "Do you know of any medical
19 treatment?" "No." But he said, "If you look hard
20 enough for anything, you will eventually find
21 it." The unfortunate reality and truth here is
22 that no matter how hard we look for something to
23 help Theresa Schiavo, we are not going to find it.
24 We have the opinion of how many
25 doctors? Dr. Barnhill. Dr. Gambone. Dr. Karp,
927
1 whose report Mr. Pearse alluded to. Dr. DeSousa.
2 She's in a permanent, vegetative condition. No
3 cognition. Ellen Delancey, who was the nurse on
4 her floor, saw her five days a week for four
5 years. Sees her once a week the last
6 near-and-a-half.
7 Now Diane Gomes, the aid, it was brief
8 but important testimony, Your Honor. Diane Gomes
9 cared for her daily. That was her full-time job,
10 caring for Theresa, for the two-year period from
11 ' 94 to '96. She said, "Theresa is my friend."
12 She loves her. She goes and visits her. She goes
13 and visits her after she stopped working. Why?
14 Because of that emotional attachment that she has
15 to Theresa.
16 Does Theresa have any awareness? No.
17 No matter how much the Schindlers want to believe
18 it, it is just not so. And of course, the
19 respondents had the opportunity in this litigation
20 to have an independent medical examination. Of
21 course, the Court would have authorized them to
22 have their own doctors. What can we assume from
23 that? They know, they know that any physician,
24 any reputable physician they find to examine
25 Theresa, would say the same thing. So is that the
928
1 reason, is that the reason that Mr. and Mrs.
2 Schindler want to keep their daughter in this
3 condition is because they can't let go? That is
4 maybe possible. That may be a component, Your
5 Honor.
6 Then there's another excellent possible
7 explanation, which is the financial component,
8 which is ugly in this case as it's been thrown
9 back and forth during the trial. It is
10 sickening. For anyone, for anyone to have the
11 financial motivation in whether this -- in whether
12 Theresa Schiavo remains alive or not is
13 sickening. It's distasteful. Is it a part of
14 this case? Unfortunately, yes, it is.
15 What is the financial, possible
16 financial motive of Mr. and Mrs. Schindler? Well,
17 my client has admitted he has never tried to hide
18 that he has been engaged for four years. I might
19 say that I would like to meet that woman. She
20 must be a very exceptional woman to be engaged to
21 a man who has this situation in his life. Does
22 Mr. Schiavo want to have children? Want to have a
23 family? Of course he does. Anyone in his
24 situation would.
25 And Mr. and Mrs. Schindler know that if
929
1 this petition is denied, probably, I mean we don't
2 know for a certainty, but probably sometime in the
3 future Mr. Schiavo would go on with his life and
4 they would become the heirs at law, which they
5 have admitted, and they have then the potential to
6 gain a significant amount of money. Well -- and
7 they would become responsible for Theresa's care.
8 We have heard testimony that there is
9 approximately $700,000 in this guardianship
10 account. I think it started at $760,000. I think
11 we can assume that it is substantial. Most of
12 Theresa's medical bills are paid for from the
13 interest or income which is preserving the capital
14 there.
15 Now we have also heard testimony from
16 Mr. Schindler that basically he is broke. It's
17 difficult, it's difficult in approaching the
18 retirement years, especially after being
19 financially well off, as Mr. Schindler was, to
20 have to face them without resources. Is there a
21 financial motive there? I suppose there is an
22 appearance. Is that the reason they want to keep
23 Theresa alive? I don't know. I don't know.
24 I will say this, though. That should
25 the petition be denied and Mr. and Mrs. Schindler
930
1 become the guardian of Theresa, what is to prevent
2 them from removing her feeding tube in the
3 future? Who is there to object? Who has
4 standing? Mr. Schiavo would not have standing
5 anymore. Would they even -- they would not even
6 have to come to court to remove Theresa's feeding
7 tube.
8 Then there is another possible
9 explanation. That is the animus in this case,
10 which-is even more distasteful than greed. It is
11 not hard to see that Mr. Schindler has intense
12 dislike of Mr. Schiavo. Is it possible or
13 probable that Mr. Schindler would pursue the
14 defense of this action out of spite to Mr. Schiavo
15 because it burns him up, the thought that Mr.
16 Schiavo would inherit Theresa's estate if the
17 petition is granted? Perhaps.
18 Mr. Schindler's testimony was telling on
19 this point. He retired from Philadelphia with a
20 substantial amount of money. He lost it in a
21 business venture, and by his own words, that was a
22 tough, tough blow. I mean, not only financially,
23 but to his pride. Then what things did he have to
24 do? He could not even put his name on a lease.
25 He had to have his young son-in-law sign a lease
931
1 because he had declared bankruptcy. He had to use
2 his son-in-law's credit card to buy furniture. It
3 was a very tough blow in his life.
4 Then the horrible, horrible blow of what
5 happened to his daughter. I mean, this man has
6 suffered, Mr. Schindler, some very tough blows and
7 here he believes he is going to obtain $150,000 or
8 he says he is going to obtain $150,000 from Mr.
9 Schiavo and he's told, no, you are not getting any
10 money and this relationship falls apart. From
11 what we have seen in this trial, is there enough
12 animus on the part of Mr. Schindler to pursue or
13 to fight this petition because of that? Perhaps.
14 How about Mr. Schiavo? He says that I
15 want to remove the feeding tube to carry out my
16 wife's wishes. As the guardian ad litem said on
17 the stand, "Well, gee. Why did you wait eight
18 years to file a petition?" I think it's very
19 important for this Court to look at the
20 progression. Not just strictly from a mental
21 point of view, but also from an emotional point of
22 view.
23 Is it hard to understand why Mr.
24 Schiavo, in the initial few years of his wife's
25 condition, would not want to proceed to remove her
932
1 life support? Especially when seeking
2 experimental treatment, when hiring people to
3 stimulate her? I don't think it's illogical and I
4 don't think Mr. Pearse did either. He said,
5 "Really, I don't have a problem with that."
6 What was the problem? Was there any
7 problem filing a malpractice action two years
8 after the incident, while experimental treatment
9 is being sought while there is still hopes of
10 recovery? I don't believe so. I mean, if the
11 Schindlers have not let go, if there is abnormal
12 grief and they have not let go after ten years, is
13 it fair to say to my client, no, you should have
14 known in a year? Why didn't you do this a year or
15 two years later? That is not fair. That is not
16 reasonable.
17 What's the first evidence we have? A
18 decision in late '93, early '94, to remove life
19 support. Not to treat an infection. What is the
20 undisputed testimony in that regard? That Mr.
21 Schiavo met with Terri's doctors and they brought
22 up the subject to him saying, "Gee, you know,
23 Mike, it's been four years now." Obviously, I'm
24 paraphrasing, but the gist of that from the
25 medical profession is isn't it time to maybe let
933
1 go? Start looking at realty? Start hearing what
2 we have been telling you for a long time now that
3 Theresa is not getting better?
4 And he said okay. I won't treat that
5 infection. And what happens to him? The nursing
6 home says "can't do it". You can't do that. His
7 in-laws say you're are abusing her. We heard the
8 same thing back then. You're killing my daughter.
9 How can you not treat her? Well, here is a young
10 man who has suffered a tremendous distress and
11 trauma, who is under psychiatric, or the care of a
12 psychologist, barraged with that type of
13 resistance and emotion and so he backs off and
14 says okay. I'm not going to do that. Let me step
15 back a couple of steps.
16 That is not unreasonable under the
17 circumstances. And when I said that emotions are
18 not linear, it was Diane Gomes who testified --
19 who is the one who took Terri to museums, beauty
20 makeovers at Michael's request; worked from '94 to
21 '96 -- and you might ask the question, "Gee, if he
22 does not want to treat Terri's infection because
23 he thinks he has no hope, why is he trying to
24 stimulate her by hiring somebody to do that?"
25 Because emotionally we are this way and
934
1 that way. We are up and down. We believe we feel
2 something. We believe something else. I'm sure
3 at that time there was still a part of Mr. Schiavo
4 that said maybe there is a miracle. Maybe she
5 will come out of it. I want my wife back. I
6 don't want to lose her. Then, by his testimony,
7 sometime a year or so later, the end of 1995,
8 1996, he starts to come to the decision, well, I
9 have to carry out Terri's intent. He consults his
10 lawyer, guardianship lawyer, about it. The case
11 is eventually referred to me.
12 The case is filed in May of 1988 (sic)
13 and it took a while, and the case took a while for
14 preparation. But there is one part of his
15 testimony that I hope you remember, Your Honor.
16 It is when he discussed the death of his mother
17 who died in July of 1997. Mr. Schiavo said his
18 mother gave him a gift. His mother, who had a
19 feeding tube, chose to have it removed and said
20 it's okay to die. This is okay. And that is when
21 my client became emotionally capable to do this.
22 Not before.
23 Are we going to fault him to say why
24 didn't you do it earlier? This is probably the
25 toughest decision he has ever had to make and will
935
1 make in his entire life. It is something that the
2 Schindlers emotionally have not come to yet. Here
3 he did, and it happened for him on the death of
4 his mother in July of 1997 and here we are.
5 I will say for Mr. Schiavo that he has
6 been a credible witness. I didn't hear his
7 testimony impeached once. I didn't see Ms.
8 Campbell here with his deposition saying "Didn't
9 you say something else, Mr. Schiavo?" Not once.
10 Not once in this trial.
11 Well, they can say he is in it for the
12 money, but this young man was with his wife
13 everyday, for what? For the first three or four
14 years after her incident. My God, that is
15 incredible. Who could? It's astounding. What
16 dedication to his wife. Every day. Sixteen days
17 sleeping in the Intensive Care Unit. Every day in
18 the hospital. Every day driving to Bradenton
19 MedPlex. Every day in California. Every day at
20 College Harbor Nursing Home. Going in the
21 morning. Coming back in the evening. Every day
22 for the first few years. Then when he started
23 school, he would go three or four times a week and
24 spend eight or ten hours a day.
25 He took care of her at home. What does
936
1 that mean? What a euphemism, "take care". What
2 it means is that he changed her diapers. He
3 cleaned the feces from her body. He suctioned the
4 mucus out of her throat and out of her mouth. He
5 intubated her. He dressed her.
6 Now, even now, ten years after the fact,
7 he sees her twice a week. He buys her clothes.
8 He insists that Theresa, for her, since she's
9 still here, for her personal dignity, she's not
10 going to wear a smock or robe in the nursing
11 home. She's going to have the clothes that she
12 wore before. And he buys those clothes and he
13 dresses her. And he combs her hair. He brushes
14 her hair. For ten years.
15 Can anyone say how much money is there
16 in the world that you can pay anyone to do that
17 for ten years? There is not. There is not enough
18 money, and Mr. Schiavo didn't file this petition
19 because he wants to inherit his wife's money.
20 The legal standards in this case,
21 Your Honor, as I mentioned to the Court before
22 under the Browning standard, the prime concern of
23 the Court is the intent of the patient. I'll cite
24 a number of cases to the Court, and I have copies
25 of the cases for the Court and for opposing
937
1 counsel.
2 The pertinent portion of Browning -- and
3 let me just backtrack a little bit. Under the
4 Browning standard, by the way, the right of an
5 individual to refuse or forego medical treatment
6 concerns every type of medical treatment.
7 Browning does away with the distinction
8 extraordinary, ordinary. Invasive. Non-
9 invasive. All types of medical treatment.
10 And in the words of the court,
11 regardless of his or her medical condition, under
12 Browning the prognosis of the patient and the type
13 of treatment are irrelevant. The basic theory of
14 the case is that we have a right of privacy. A
15 constitutional right. That right of privacy means
16 we control our own bodies and if we don't want
17 medical treatment, no matter what it is and what
18 our condition is, we have a right to refuse it.
19 Under Browning, one need not be
20 terminally ill to refuse medical treatment. One
21 need not have -- one need not be in an
22 irreversible condition to refuse medical
23 treatment. Quoting from Browning, "The
24 constitutional right to choose or refuse medical
25 treatment extends to all relevant decisions
938
1 concerning one's health." The court also does
2 away with the distinction between provision of
3 artificial hydration -- artificial provision of
4 sustenance and hydration -- saying there is no
5 legal distinction between that and any other type
6 of medical treatment. It is medical treatment
that can be refused.
8 The Browning case also has a specific
9 manner or procedure in which to enforce a decision
10 to refuse medical treatment. I want to point out
11 to the Court that that is different from Chapter
12 765, which is the statutory framework. For
13 instance, under Chapter 765, one must be in a
14 terminal condition or in a vegetative state in
15 order for have life support removed.
16 So although the definitions of terminal
17 condition are very broad under the statute, there
18 may be some medical conditions which a patient may
19 not have access to 765 because they may not be
20 terminal and 765 may not permit a withdrawl [sic] of
21 life support or medical decision to be made which
22 are permitted under the Browning constitutional
23 right. I just wanted to point that out to the
24 Court under the Browning standard.
25 Under the constitutional framework. a
939
1 surrogate must take great care in exercising the
2 patient's right of privacy and must be able to
3 support that decision with clear and convincing
4 evidence. The entire -- the decision to withdraw,
5 taken in its entirety, must be supported by clear
6 and convincing evidence. The court lists three
7 specific things that the surrogate must, the proxy
8 must satisfy.
9 In other words, the court says for there
10 to be clear and convincing evidence you need to do
11 one, two, and three, and this is set forth on 568
12 So.2d Page 15, Your Honor, of Browning. The first
13 thing the surrogate has to do is be satisfied, if
14 there were a living will, the surrogate has to be
15 satisfied there was no undue influence. That the
16 living will was not revoked. That it was entered
17 knowingly and willingly. That does not apply in
18 this case because there is no written directive.
19 The second part of the series of things
20 the surrogate must do is if the evidence of intent
21 is oral, the surrogate must be satisfied that the
22 evidence of the patient's oral declarations is
23 reliable. So the question for the Court to answer
24 here is is the evidence of Theresa's intent
25 reliable? Are those declarations reliable.
940
1 The second factor is that the surrogate
2 must be assured that the patient does not have a
3 reasonable probability of recovering competency so
4 that the patient can make the decision themselves.
5 Your Honor, the evidence is crystal clear and
6 undisputed that she has no competency to make
7 decisions and she's not going to recover
8 competency to make decisions.
9 The third factor is if there were any
10 limitations expressed by the patient, orally or in
11 writing, that those should be satisfied. For
12 instance, a patient may say I only want to refuse
13 life support if my death is imminent. If that
14 were the case, that would be something the
15 surrogate has to be assured, that death is
16 imminent. Or somebody may say I want to remove --
17 I don't want life support if there is no chance of
18 recovery. So that would be something, a
19 limitation expressed by the patient that the
20 surrogate would have to be assured of.
21 Now lets look at the statements that
22 Theresa made. Were there any limitations on them
23 that apply in this case? Are they reliable?
24 First, the testimony of petitioner. Her
25 grandmother is dying in Philadelphia. They take a
941
1 train trip with the brother, Brian, to Florida.
2 The son of the grandmother, the uncle, we know had
3 been in an accident. According to Mr. Schiavo, he
4 had speech problems, paralysis. He was impaired.
5 According to the Schindlers, he did recover, but
6 he had paralysis on one side. There was some
7 testimony, I think Mr. Schindler said the hand.
8 Mrs. Schindler said the arm. Mr. Schindler said
9 he dragged his leg behind him. They also said
10 that he was a very good looking, robust man
11 beforehand.
12 And one of the things that Theresa said,
13 as relayed by Mr. Schiavo, is "What a shame my
14 uncle was brought down to that." So she said,
15 "What about my uncle when grandma dies?" It
16 triggered something. She said, "Look, if I have
17 to be cared for by others, don't let me live like
18 that." Is that a condition that has been
19 testified to? The evidence is there. All the
20 evidence shows, obviously, that Theresa Schiavo
21 has to be cared for by others.
22 Then you have the television programs a
23 couple of times where Terri Schiavo said in some
24 extreme condition I don't want to be kept alive
25 artificially. Were there any limitations in that
942
1 expression that apply to this case? No. She's
2 being kept alive artificially.
3 Scott Schiavo, in response to the
4 grandmother dying, the Schiavo grandmother
5 dying -- and Mike and Terri attending the
6 funeral -- who was put on a respirator against her
7 will, it was a very spontaneous conversation.
8 "Look what they did to grandma? It's a shame. It
9 should not have happened." And Terri says,
10 sitting next to Scott, "That's not for me. I
11 don't want that. No machines for me. I would not
12 want that to happen to me."
13 What did she mean, "I would not want
14 that to happen to me."? I wouldn't want to be
15 treated against my will? Possibly. Probably.
16 And I don't want to be kept alive on machines.
17 Then her statements to Joan about the friend's
18 baby who was on life support. Life support was
19 taken away and Terri said on numerous occasions
20 that she agreed with that decision.
21 I can see that there are probably two
22 theories in looking at Terri's statements. One of
23 the statements that she made about herself when
24 she says, "I would not want this for me," I think
25 obviously would have much more weight to the Court
943
1 than a statement that says -- concerning somebody
2 else's, you know, I agree for that child that life
3 support should be removed. I agree with the
4 decision of the parents.
5 I think the statements are important,
6 but as to the weight the Court should give,
7 obviously the ones that apply personally to Terri
8 are more important. Then in response to the movie
9 about somebody diving and being injured she says,
10 "I would never want to be kept alive like that."
11 I think my recollection is she also used the word
12 machine -- she didn't want to be hooked up to
13 machines -- to Joan.
14 And both Joan and Scott testified that
15 they, the first time that they relayed this
16 information was to me last September when I called
17 them. When you are asking -- I suppose if you are
18 not asked, does somebody think of calling up
19 somebody and saying, yeah, I had a conversation
20 ten years ago? Do they know what status of
21 litigation this was in? Who knows? I think they
22 did what was natural when somebody called them up
23 and asked them and they said, yeah, I have
24 information. Here is the information.
25 Now about the reliability, because the
944
1 Court is going to have to make a determination
2 were these expressions of Theresa's intent
3 reliable, Your Honor, I strongly urge the Court to
4 carefully examine and go through the testimony of
5 Beverly Tylor of Georgia Health Decisions who
6 wrote that report because that evidence goes to
7 the crux, I think, of the reliability of the
8 expression for many reasons.
9 The first reason is the part of the
10 report that she read, those who have had
11 conversations with a loved one appeared to have
12 not really had a conversation at all, but rather
13 to have made spontaneous observations about
14 something they do not want to happen to them.
15 They told of vague references of being hooked up
16 to machines or seeing a television program and
17 having said don't let that happen to me.
18 This is how people express their wishes
19 about this subject. Only 14 percent of the adults
20 in this country have living wills, according to
21 Beverly Tylor, and the percentage of someone at
22 the age of Terri, 25 years old, what did she say?
23 Two or three percent. Minimal. We just wouldn't
24 expect a 25 year old to have a recollection -- I
25 mean, a 25 year old to have a living will.
945
1 We really might not even think a 25 year
2 old would make such expressions. Some do. I
3 guess more and more people do. So this is exactly
4 what Theresa said, and how her expressions came
5 about are exactly the way we would expect them to
6 be made, which means they are highly reliable.
7 And let's also talk about what Terri
8 meant, and there again, Beverly Tylor's report and
9 testimony is very important. People don't know,
10 the average person, average 25 year old, does not
11 know what a feeding tube is. They don't know
12 whether it is a machine -- they don't know how
13 it's hooked up. They don't know how people are
14 intubated for respiration.
15 Machine, being hooked up to a machine,
16 is a metaphor. A catch phrase. It is something
17 people say to express a wish. The question is
18 what does it mean? What wish, intent, does it
19 express? Beverly Tylor told us what that metaphor
20 expresses is we want to die with dignity. We want
21 a quality of life. If there is no--hope of
22 recovery, we don't want medical technology to keep
23 us alive ad infinitum.
24 What's important to us is to have
25 control over our lives. Control over our
946
1 destiny. That the thought of people being subject
2 to the intensive personal care that Terri's body
3 requires now is repugnant to them. That is what
4 that research showed. That is what hooked up to a
5 machine means. People don't want to be kept
6 artificially alive. Maybe for a short time,
7 period of time, if they can recover, but if they
8 can't, they don't want this. That is what her
9 evidence showed.
10 So her testimony is extremely important
11 for this Court to look at as to whether Theresa's
12 statements are reliable. To say the implication
13 of saying it as to content or not, they are too
14 vague, Terri didn't say I don't want a gastric
15 tube, or Terri didn't say if I'm in a vegetative
16 condition I want this, or if I'm marginally
17 conscious, I want that. Your Honor, that is not
18 how people talk. That is not how the real world
19 works.
20 To have a legal standard which says that
21 people must express intent with that type of
22 precision orally would basically cut off the right
23 to refuse medical treatment as it's necessary
24 because that is not how people talk and express
25 themselves, and the law does not require that.
947
1 Let's also look at the evidence of
2 intent provided by the respondents. The first is
3 the statement by Mrs. Schindler in response to the
4 Karen Ann Quinlan case. She said that I talked to
5 my daughter about the Karen Ann Quinlan case and
6 she told me "Let her live. " In her deposition she
7 said I can't remember. I can't remember
8 specifically what anyone said.
9 We talked about the case. "Mrs.
10 Schindler, how old was Terri when you had those
11 conversations?" Eighteen. Nineteen. Well, when
12 she is showed the articles from 1975, "How old was
13 Terri?" She was eleven. All of a sudden she says
14 Terri was eleven. It's totally incredible.
15 Diane Meyer. One remarkable thing about
16 her testimony is that fourteen years after her
17 breakup of the relationship with Terri, she still
18 harbors anger at Mr. Schiavo. That is quite a
19 motivation. By her own -- in looking at her
20 testimony, Your Honor, something just does not add
21 up and does not make sense. That is, why would
22 Terri say she doesn't agree -- in response to the
23 joke; I don't agree with what the parents are
24 doing -- if the case has been concluded for years
25 and what was done was done, why wouldn't she say I
948
1 didn't agree-with what the parents did?
2 But Diane Meyer did not say that, and in
3 her deposition she assumed. I asked her in her
4 deposition "Wouldn't you assume from the nature of
5 the answer that this occurred while the case was
6 going on?” She said yeah. I have to assume that.
7 "Wouldn't you assume this occurred while the case
8 was in the news?" Yeah. I have to assume that by
9 the nature of the answer. Well, we know it could
10 not have happened when the case was occurring,
11 which certainly shed a lot of question on her
12 testimony.
13 She also admitted that Terri's upset,
14 that this whole incident of the joke sticks out in
15 her mind, the thing that sticks out the most is
16 Terri being upset. And Diane Meyer agreed on the
17 stand that any reasonable person might be upset by
18 the joke, no matter what their beliefs were about
19 removal of life support. And certainly Terri,
20 given what Diane told us about Terri's
21 personality, it's easy to understand if this joke
22 was even said if this incident occurred, why Terri
23 would act angrily toward it.
24 Now taking for a second as true what
25 Diane Meyer relays -- Your honor, my watch is
949
1 slow. I thought I had ten minutes. Even taking
2 what she says to be true, Terri said "I don't
3 agree with what the parents are doing. I don't
4 agree with what the parents are doing. How do
5 they know what Karen Ann Quinlan wants?"
6 Well, one may reasonably infer from that
7 that Terri Schiavo, she said her concern was that
8 removing life support without knowing someone's
9 intent bothered her. Maybe it was not the removal
10 of life support, but the fact she believed the
11 parents did not know what the intent of Karen Ann
12 Quinlan was.
13 And the second point was, she said, "How
14 do we know that Karen Ann Quinlan is not there?"
15 Maybe Terri was saying, look, if there is a
16 question as to whether if Karen Ann Quinlan is
17 conscious and has awareness, maybe her life
18 support should not be removed. There are
19 alternative explanations to those statements, even
20 if we accept what Diane Meyer says. What we do
21 know is Diane Meyer's predominant impression was
22 was that Terri Schiavo was offended at a bad
23 joke.
24 The guardian ad litem's report,
25 Your Honor. Of course, Mr. Pearse does not inject
950
1 overt bias into this. Of course, Mr. Pearse
2 didn't say I have an agenda, so I'm going to alter
3 a report. No one is saying that. What we are
4 suggesting is that Mr. Pearse's, the guardian ad
5 litem's personal beliefs as to withdrawal of life
6 support may have created -- it is a bias. That
7 his personal preference may have been consciously
8 infiltrated into his decision.
9 That, Your Honor, is not just a personal
10 belief that perhaps he's against removal of
11 artificial provision of nutrition and sustenance
12 and his belief as well -- and I know he qualified
13 on the stand and explained his deposition
14 testimony that what he said in his deposition was
15 if people were taken, if people were taken away
16 the right that they now have to be able to refuse
17 artificial provision of sustenance how would that
18 be with you -- he said I'm not uncomfortable with
19 that.
20 It is one thing to say this is what I
21 believe. It is another thing to say I don't think
22 other people should have the choice as well. To
23 be asked should other people have the right to do
24 this or should their right be taken away, and he
25 said I am not uncomfortable with it, is a very
951
1 strong personal preference, and I respect his
2 preference, but frankly, Your Honor, if a judge
3 called me and said would you like to be a guardian
4 ad litem in this case, it's about removal of
5 artificial provision of nutrition and sustenance,
6 I at least would say to the judge that I have a
7 personal feeling about that. I know it's legal,
8 but I don't think it should be and I'm against
9 it.
10 Now Your Honor, if a judge heard that,
11 my guess would be, at least to avoid the
12 appearance of a bias and to make sure that the
13 investigation and report were fair, the judge
14 would say "Thank you, Mr. Felos. I respect your
15 opinion, but in this case I think it might be
16 better to have somebody else." And Mr. Pearse was
17 asked did you do that. Did you ever inform the
18 Court of that? No. Did you list it in your
19 report? No.
20 Another thing I asked Mr. Pearse was did
21 you include -- did you include something -- you
22 know, you said this about Mr. -- what Mr. and Mrs.
23 Schindler told you. But why didn't you put in
24 what Mr. Schiavo told you? Why didn't you put in
25 what Father Murphy told you? And his answer was,
952
1 on two occasions, no conscious reason. Of course
2 he had. There is no conscious reason. He didn't
3 decide I'm not going to put it in because I have
4 an agenda.
5 What I'm saying is, in looking at Mr.
6 Pearse's report -- and please. I'm sure the Court
7 will read the suggestion of bias in detail which
8 shows that there were numerous parts of his report
9 that contained omissions, which I believe is
10 evidence of the possibility that his personal
11 feelings were injected into this, not knowingly,
12 but the major one of which is about Mr. Schiavo.
13 If he donates the money to charity, that
14 would take care of the credibility problem. There
15 was Deborah Bushnell's affidavit about that and
16 it's not even mentioned in the report. But if
17 there is one thing to remember from Mr. Pearse's
18 testimony it is, "Had I known what I know now
19 about what Joan Schiavo said and what Scott
20 Schiavo said, my conclusion may have been
21 different."
22 That, even under all the circumstances,
23 it was a close call. He said it was a close
24 call. And he didn't say he did not believe Mr.
25 Schiavo. What he said was, well, I just, for me,
953
1 didn't reach the clear and convincing standard.
2 Now Your Honor, I also wanted to mention
3 to you, and I guess I have to do this very
4 briefly, and I ask for the Court's indulgence
5 because it is very important, we have alleged in
6 our pleadings and in opening argument and we have
7 informed the Court later that we believe that
8 there is a body of law which supports the
9 proposition that even if there is not reliable
10 evidence of Theresa's intent, that the Court has
11 the authority to grant the petition under the best
12 interest tests. I will give you, after my
13 arguments, I have copies of the cases.
14 The first case is the Guardianship of 1984
15 Barry, which is a Second District case from
16 which involved an infant on life support and in a
17 vegetative condition. Judge Sheb (phonetic) on
18 the Second District was talking about how you make
19 a decision -- talking about substituted judgment.
20 Under this doctrine, the court
21 substituted its judgment for what, if you find the
22 patient is competent, would have done. The
23 doctrine has been helpful in the case of adults,
24 but it is difficult to apply to children or young
25 adults.
954
1 The widely quoted case of Quinlan, a
2 21-one year old comatose woman being kept alive by
3 life support systems, there the court held that
4 evidence of Karen's previous conversations with
5 friends on questions concerning prolongation of
6 life by artificial means, the court however found
7 such views inconclusive and concluded the only
8 practical way of permitting Karen to exercise her
9 right of privacy was to permit her family to
10 exercise its best judgment as to what she would
11 want under the circumstances.
12 As the trial court noted in the present
13 case, it's proper for the Court to exercise its
14 substituted judgment even absent evidence of
15 intention of the incompetent person. And what
16 Barry is saying is, look, for minors, for young
17 adults, if we are always held to the intent
18 standard, the right of privacy can't be
19 effectuated because in that group of people we
20 would not expect them to express intent.
21 In the John W. Kennedy Hospital v.
22 Bludworth case, which is the Florida Supreme
23 Court, this was decided after Barry, this again
24 involved a vegetative patient. And although there
25 was a living will in this case, the court says the
955
1 focal point of such decisions should be whether
2 there is a reasonable, medical expectation of the
3 patient's return to a cognitive life as
4 distinguished from the forced continuance of a
5 vegetative existence.
6 The court says if you have evidence,
7 good, but there is certainly no preclusion of
8 exercising substituted judgment without evidence
9 of intent.
10 Then there is the Corbett case from
11 1986, Your Honor. A Second District case in which
12 the patient is in a vegetative condition and kept
13 alive by a feeding tube. Apparently, there is no
14 evidence of intent and the court grants the
15 petition for removal of the feeding tube. The
16 court says whether therefore it may be determined
17 by the reason of the advanced scientific and
18 medical technologies of this day that life has
19 through causes beyond our control reached the
20 unconscious and vegetative state where all that
21 remains is the forced function of the body's vital
22 functions, including the artificial sustenance of
23 the body itself, then we recognize the right to
24 allow the natural consequence of the removal of
25 those artificial life sustaining measures.
956
1 Your Honor, there is no doubt that
2 Browning talks about intent. But the focus of
3 Browning was the legal standard for a non-
4 vegetative patient. I'm also going to give the
5 Court the cases from other jurisdictions. Supreme
6 Court of Arizona, the Rasmussen case, and the
7 Supreme Court of Washington, the Grant case, in
8 which the court talks about the necessity of
9 adopting a best interest standard when there is no
10 evidence of intent.
11 What I am suggesting to the Court is
12 that when you have a patient in a vegetative
13 condition and unconscience [sic] position, there is
14 almost a societal consciousness. That is how I
15 started off this argument. A common sense notion
16 that says we can almost presume for that patient
17 that they would not want to be kept alive that way
18 because we all know we would not want to be kept
19 alive in an unconscious manner.
20 And the Florida legislature has recently
21 amended the living will law to incorporate that
22 concept. They added 765.404, which is a specific
23 section on patients in persistent vegetative
24 states. That in that case it says when you have a
25 patient and you have no evidence of intent and
957
1 there are also no family members available, then
2 life support -- then life support can be removed,
3 even without absence of intent, and they go
4 through the procedure you have to follow.
5 I think it's a legislative consensus,
6 Your Honor, that if you have an 18 year old
7 driving his car down the street and he hits a tree
8 and ends up in a vegetative condition and no one
9 knows what the heck he would have wanted, which is
10 natural, that the law does not require him to be
11 perpetuated artificially for the next sixty
12 years. That is what the best interest test does
13 and allows the Court to do.
14 So what we would ask the Court, what we
15 would ask the Court is, and we don't believe the
16 Court is going to obviously reach that place
17 because we believe there's reliable evidence of
18 Theresa's intent, but what we are saying is if the
19 Court does not reach this conclusion, that in
20 order to effectuate Theresa's constitutional
21 rights of privacy the only way to do that is adopt
22 the best interest test.
23 So, Your Honor, thank you. I will turn
24 the podium over to my colleague.
25 THE COURT: Not just yet. Let's take a
958
1 little break. I will get your cases at the end of
2 your rebuttal. Let's stand in recess for ten
3 minutes and then get going.
4 (THEREUPON, A RECESS WAS HAD FROM 10:40 -
5 10:50 A.M.)
6 THE BAILIFF: All rise. Court stands in
7 recess.
8 THE COURT: Ms. Campbell, are you ready
9 for closing argument?
10 MS. CAMPBELL: Yes, Your Honor. First
11 of all, Your Honor, I would like to thank you for
12 your attention during this trial. It's been
13 difficult, filled with emotions from both sides of
14 the parties, and a difficult issue to decide.
15 Regardless of the decision you render in this
16 case, we do believe it's been a fair trial and we
17 appreciate the kindness you have shown during this
18 trial.
19 During this week, you have heard from
20 the four people that know Theresa Schiavo better
21 than anybody else. You heard from her family,
22 from her parents, who have known her for 36
23 years. All her life. From her brother. From her
24 sister. These people have known her longer than
25 anyone. Have known more about her than anybody
959
1 else.
2 While, no, you did not hear specific,
3 direct testimony about her wishes in this given
4 situation, they know Terri instinctively. You
5 heard from all the witnesses that have known Terri
6 before this accident. What a loving, outgoing,
7 friendly, personal, generous person that she is.
8 As Diane Meyer put it, she's a real good
9 soul. She took the time to talk to friends and
10 family, daily, just to check in to see how things
11 were going. A beautiful, upbeat person who never
12 said anything bad about anyone. Someone generous
13 with their time, to visit regularly family in a
14 nursing home.
15 Because individual's attitudes on death
16 are built on great part upon their behavior about
17 what makes life meaningful, it's hard to imagine
18 the question upon death that there are diverse,
19 that there are more diverse individual's attitudes
20 than this.
21 We heard from Beverly Tylor about a
22 study another organization conducted using 385
23 participants in focus groups around the country.
24 While her testimony was interesting, especially
25 concerning how many people do not express their
960
1 wishes on end of life decisions, in Beverly's
2 percentage 13 to 15 percent of people have living
3 wills and most people trust their family members
4 to do the right thing.
5 Unfortunately, she never had an
6 opportunity to meet Terri. To meet Mr. and Mrs.
7 Schindler, or her sister and brother, or know the
8 close-knit family that she was raised in. So she
9 really could not give us much insight as to
10 specifically what Terri would want under these
11 circumstances.
12 It's difficult to prove a negative.
13 Because she did not sign a living will or tell
14 those closest to her about her specific intent
15 under these circumstances pertaining to the
16 withdrawal of a feeding tube that she, given the
17 choice, would want the feeding tube maintained,
18 you have to look at the heart of Terri. The
19 giving person that always looked out for the other
20 person.
21 Of course, no one would choose to live
22 like she does now if the choice were a healthy,
23 vibrant body like she used to have or the one she
24 currently occupies, but the choice we are asking
25 her to make is her current body or death,
961
1 The Schindlers have testified that they
2 believe firmly that she would choose her current
3 medically stable life over death. That she
4 believed in the preservation of life and that was
5 the way she was raised. Now the Schindlers were
6 given some visually graphic, horrible, disgusting
7 conditions as extreme hypotheticals and asked if
8 they would allow their daughter, Terri, to be in
9 those circumstances beyond their imagination over
10 death. However, Terri does not have cancer. She
11 does not have gangrene. She does not have
12 amputated limbs. She is not facing open heart
13 surgery.
14 Mr. Schindler testified that he would
15 need to gather all the medical information needed
16 to make such decisions. That those decisions
17 would have to be based on the variables given at
18 the time. Dr. Gambone testified that Terri is
19 medically stable. She has a regular menstrual
20 period. She could get pregnant.
21 Over the last ten years, she has had
22 hospitalizations. Most of them were in the
23 primary time frame of right after this incident,
24 as well as she had one female related
25 hospitalization. Whose to know if Terri would not
962
1 have had those kind of complications anyway?
2 Jackie Rhodes testified, as well as her
3 sister, Sue, and her mother that she regularly had
4 female problems prior to this incident. The
5 myriad of problems is not pertinent to this
6 Court's decision, though.
7 We believe the case that provides the
8 most guidance to this Court is the Guardianship of
9 Estel Browning, 567 So.2d 4, decided in 1990.
10 The Supreme Court states on Page 13, we emphasize
11 and caution that when the patient has left
12 instructions regarding life sustaining treatment,
13 the surrogate must make the medical choice that
14 the patient, if competent, would have made and not
15 the one that the surrogate might make for himself
16 or herself and that the surrogate might think is
17 in the patient's best interests. It continues to
18 say, it is important for the surrogate decision
19 maker to fully appreciate that he or she makes the
20 decision which the patient would personally
21 choose.
22 in this state, we have adopted a consent
23 of substituted judgment. One does not exercise
24 another's right of self-determination or forestall
25 that person's right of privacy by making a
963
1 decision which the state or family or public
2 opinion would prefer. On Page 15 it goes on to
3 state that a surrogate must take great care in
4 exercising the patient's right of privacy and you
5 must be able to support the decision with clear
6 and convincing evidence. On Page 16, the
7 surrogate would bear the burden of proof if a
8 decision based on purely oral evidence is
9 challenged, which is what we have in this case.
10 In the case of Slumwitz v. Walker
11 (phonetic) found at 429 So.2d, which is a Fourth
12 District Court of Appeals case in '83, this
13 provides us with a definition of clear, and
14 convincing evidence. On Page 18 it states that a
15 workable definition of clear and convincing
16 evidence must contain both qualitative and
17 quantatative [sic] standards. We therefore hold that
18 clear and convincing evidence requires that the
19 evidence must be found to be credible. The facts
20 to which the witnesses testify must be distinctly
21 remembered, the testimony must be precise and
22 explicit, and the witnesses must be lacking in
23 confusion as to facts and issue. Evidence must be
24 of such weight that it produces in the mind of the
25 tryer [sic] of fact a firm belief or conviction without
964
1 hesitancy as to the truth of the allegations
2 sought to be established.
3 We do not believe that the testimony
4 provided as to Terri's wishes to not be allowed to
5 live like that are credible and do not meet the
6 standard that the Browning court has set forth.
7 Joan Schiavo said that they were best friends.
8 They saw each other five days a week. Spoke to
9 each other on the phone five to six times a week.
10 But then after the incident, she never
11 even came to see Terri. She relied on getting
12 reports from other people. She relied on the
13 reports about Terri's condition from her very
14 close brother-in-law, Michael. But they were so
15 close that never during that time frame did she
16 ever tell Michael or did she ever tell anyone
17 trying to take care of Terri that Terri would not
18 want to live like that. She referred to these
19 different statements years ago. She never came
20 forward to say that. In fact, she only came
21 forward to tell the attorney involved in the
22 litigation after the trial was scheduled.
23 Scott Schiavo testified about his
24 grandmother, who after executing a living will
25 was still placed on life support. How after the
965
1 funeral, Terri was part of a discussion at a
2 luncheon held at the country club where the table
3 mates were expressing similar views that they
4 would not want to live like that, and Terri
5 agreed.
6 He has seen Terri in her current
7 condition when he came to visit six years ago.
8 Still, after seeing Terri, he never told Michael
9 or anyone else related to her care that she would
10 not want to live like that. She told me so. Once
11 again, he only recently came forward to tell the
12 attorney.
13 Michael Schiavo testified that his
14 discussions with Terri concerning her wishes to
15 not live like that was an incident involving
16 comments made while watching a television
17 documentary, as well as on a train trip to
18 Florida. Well, Mr. Schiavo combines the facts
19 surrounding the train tip he vividly remembers to
20 the death of Terri's grandmother, Mrs. Schindler.
21 However, other testimony revealed that Terri's
22 grandmother died five months after that train trip
23 and that Terri was in Philadelphia when her
24 grandmother died that she was very close to.
25 Additional concerns as to Michael
966
1 Schiavo's credibility as expressed by Richard
2 Pearse, who was our court appointed guardian ad
3 litem in this case, are an element of existing
4 conflict of interest of Terri's estate that he
5 stands to inherit if successful in his plan for
6 discontinuing Terri's feeding tube. While Mr.
7 Pearse knew of Michael's involvement with another
8 woman, Michael also added information to this
9 Court that he is currently engaged. Has been
10 engaged to someone else for four years.
11 While Michael also expresses his love
12 for Terri, his wife, it's difficult to imagine
13 how he can have her best interests, his own best
14 interests, and his fiancee's best interests all at
15 the same time without a conflict of interest.
16 The Court has heard testimony from many
17 witnesses concerning the state of Terri and
18 Michael's marriage prior to the February 1990
19 incident. While it may not be totally relevant to
20 the decision of Terri's intent as to the
21 withdrawal of a feeding tube, it adds to the
22 weight of, the weight certainly as to Michael's
23 possible motivations or explanations for planning
24 his wife's impending death. All the various
25 issues pertaining to the disputes between Mr. and
967
1 Mrs. Schindler and Michael Schiavo since this
2 horrible incident happened to both their families
3 only serve to add to the explanation as to why we
4 are here today.
5 Mr. Schiavo and Mr. and Mrs. Schindler
6 clearly have such a wide wedge of hard and painful
7 feelings between them. There are differences in
8 their memories as to the moneys that have been
9 borrowed and owed between them, but the major
10 differences are in the priorities as to what is in
11 the best interests for Terri.
12 Since '93, Michael Schiavo has deprived
13 the very essence of motherhood to Mary Schindler,
14 which is the ability to take care of your own
15 child. However, that bond between mother and
16 daughter, especially that bond which is between
17 Mary and Terri has never been impeded.
18 Mr. Felos has agruged [sic] that this case
19 could also be ruled with the best interest test
20 as to what is in the best interest of Terri, and I
21 imagine he means as decided by the current
22 guardian. Well, but that is not the law. There
23 is some language contained within the John W.
24 Kennedy Memorial Hospital v. Bludworth case, 452
25 So.2d 921, which was decided in 1984, pertaining
968
1 to substituted judgment wherein close family
2 members or legal guardians substitute their
3 judgment for what they believe the terminally ill
4 incompetent patient would want, if competent.
5 However, the opinion still stresses the exclusion
6 of a living will as persuasive evidence of what
7 that incompetent person's intent would be.
8 I especially appreicated [sic] the Fourth
9 District Court's opinion in the same case that
10 stated one need not go so far back in history as
11 Cain and Able to recognize the interest of various
12 families members are not always synonymous or
13 harmonious as argument for judicial assistance in
14 making decisions which is the purpose of why we
15 are here today.
16 There is In Re: Barry, 445 So.2d 365,
17 which is a Second Distric [sic] Court of Appeal case in
18 '84. This case permitted the parents and
19 guardians of a terminally ill 10-month-old baby
20 who had been on life support system all its life
21 to go ahead and discontinue the life support
22 system. Here this baby was reported to be in a
23 permanent vegetative state, lacking cognitive
24 brain function. Completely unaware of his
25 surroundings with no hope of development, of any
969
1 awareness. That the condition was permanent and
2 irreversible.
3 Well, other than the age, that medical
4 diagnosis sounds very similar to the testimony of
5 Doctors Barnhill and Gambone. However, in the
6 Barry case, it was the parents that were making
7 the decision. Everyone in that case agreed,
8 except the State, that that was what was in the
9 best interests of the child. But we don't have
10 that case here.
11 Here there are three affidavits from
12 doctors, in addition to the additional testimony
13 by two of those doctors that have based their
14 opinions on the rigid, scientific, cold data
15 determining Terri's fate. There was no testimony
16 from any of them that they ever joked with Terri,
17 heard her laughing, or they ever witnessed the
18 loving expression as exchanged between Terri and
19 her mother.
20 No one here contests the fact she is
21 clearly incapacitated. She's not able to make her
22 own needs known. But there is something in
23 between brain death and the legal test for
24 cognitive function and persistent vegetative
970
1 that allow some people to see signs of life and a
2 real person inside the body of Terri Schiavo. At
3 least it appears she still maintains that
4 protective element that we all have that only
5 let's certain people share our inner space. It
6 appears she only reveals the laughter, tears, and
7 other scenes of life to certain special
8 individuals, like her mother.
9 Even Dr. Barnhill stated that he could
10 not know for absolute certainty as to that kind of
11 connection. Mr. Felos also refers to the Corbett
12 case. This case involved a 75-year-old patient
13 which died before the decision was even rendered.
14 We believe the testimony in this case does not
15 meet the clear and convincing standard as required
16 for oral evidence of intent as required in
17 Browning.
18 We also believe that Mr. Felos is
19 attempting to move the line when he suggests that
20 the Court should decide in the best interest test
21 if it did not find for clear and convincing.
22 Clear and convincing evidence, as required in
23 Browning, is simply another manisfestation [sic] of the
24 presumption of life that should be maintained.
25 Additionally, the Schindlers firmly
971
1 believe, as others that have testified in this
2 trial, that Terri does have some level of
3 awareness and recognition of those she loves,
4 despite the testimony to the contrary. They do
5 believe there is life within Terri. Even though
6 the Schindlers could not afford to bring a
7 professionally done day-in-the-life video, that
8 would be if we were able to succeed in that, and I
9 am sure there would have been court intervention
10 because we would not have had the permission of
11 the guardian, what they were able to bring was a
12 small sample to show the Court to personalize
13 Terri to this case. To show you there is
14 something in that body.
15 Even though Father Murphy did not meet
16 Terri or her family, he did agree that the high
17 road or the ideal of the Catholic faith would be
18 as expressed in the National Conference of
19 Catholic Bishops which states in its directive
20 number 56, there should be a presumption in favor
21 of providing nutrition and hydration to all
22 patients, including patients who require medically
23 assisted nutrition and hydration, as long as this
24 is sufficient benefit to outweigh the burdens
25 involved to the patient.
972
1 It is imperative to remember that in
2 Terri's situation there is no financial burden
3 placed on Mr. Schiavo or on Mr. and Mrs.
4 Schindler. She is fully self-sufficient from the
5 fund that she received in her guardianship which
6 were there to provide for her care for her life
7 from the malpractice award.
8 With all the advancements of medical
9 science and the new studies on the brain, in
10 addition to the information which continues to
11 bring hope to families like the Schindlers, such
12 as the patient out in New Mexico, who after 16
13 years awoke from her coma, it's our hope that you
14 will come to the same conclusion as Richard Pearse
15 and deny Michael Schiavo's petition for authority
16 to discontinue artificial life sport.
17 We hope in this denial that you will
18 also recognize there is some life, and there has
19 been no credible testimony that meets the clear
20 and convincing standards required in the Browning
21 case. Thank you, Your Honor.
22 THE COURT: Thank you. Mr. Felos, very
23 brief rebuttal. You took about -- a quarter of
24 your time you have already taken.
25 MR. FELOS: As she said so eloquently,
973
1 we have the burden of proof.
2 THE COURT: You are the one who set the
3 hour and 15 minutes.
4 MR. FELOS: There is no doubt that
5 Theresa Schiavo exhibits life and has life. There
6 is no doubt she has responses. A plant is alive.
7 A plant has photosynthesis reflexes. If you shine
8 a light, it moves. Shut off the light, it moves
9 the other way. There is no dispute that Theresa
10 Schiavo has life, but that is not the issue in
11 this case and that's a life -- and no one is here
12 to say that if Theresa Schiavo could be maintained
13 alive in any condition whatsoever without
14 administration of artificial life support that
15 that life should end. Absolutely end.
16 If it required taking a spoon to Theresa
17 Schiavo's mouth and having someone feed her three
18 times a day, if she can naturally intake food,
19 there is -- we would not be here talking. The
20 issue is not preserving life, but it's whether to
21 remove the artificial medical treatment which
22 sustains her existence. There is a difference
23 between life and consciousness.
24 Under Browning, under the question of
25 patient intent, upon a finding of this court that
974
1 there is clear and convincing evidence or reliable
2 evidence of the patient's intent, the level of
3 consciousness is irrelevant. As in Browning,
4 under the Browning standard, you don't have to be
5 in a permanent vegetative state to have artificial
6 life support removed. You don't have to have any
7 particular degree of consciousness.
8 If I were a patient or if you had a
9 patient who lost the ability to swallow and was
10 competent, they could refuse artificial provision
11 of sustenance because it's medical treatment.
12 So upon a finding by this Court that there's
13 reliable evidence of Terri's intent that she did
14 not want to be kept alive artificially, she did
15 not want to be kept alive if she were dependent on
16 the care of others, she would not want to be
17 hooked up to a machine, which is another way of
18 saying being kept alive artificially, whether she
19 had a minimal degree of consciousness is
20 irrelevant and has no bearing whatsoever in this
21 case.
22 Now under the best interest test, which
23 I would submit would apply to a vegetative
24 condition, then that issue may have some bearing,
25 but on the first, on the question of intent, it
975
1 doesn't. We heard about "she". She, Terri, has
2 her menstrual period. She, Terri, does this or
3 does that. Who is that she? If the doctors
4 diagnoses are correct, which I believe they are,
5 there is no "she" that knows she's having a
6 menstrual period. That there is no "she" that
7 knows what is happening.
8 There was cited to Your Honor the
9 Slumwitz case in which counsel gave you various
10 definitions of the standard in that case.
11 Slumwitz was a case about what standard of proof
12 do you need to rebut the presumptive validity. I
13 submit to you that the standard that this Court
14 should follow is the standard as to these oral
15 statements as said on Page 15 of the Browning case
16 which merely states the evidence of the oral
17 declarations be reliable.
18 The Court asked during the course of the
19 trial what difference does it make where Terri was
20 when the grandmother died. Well, you just heard
21 that on the argument of Ms. Campbell. She is
22 trying to attack the credibility of Terri's
23 statement to Mike during the train trip on the
24 basis he must have it wrong because the
25 grandmother died five months after that train
976
1 trip. You heard Mr. Schiavo's testimony as to
2 calling Mr. and Mrs. Schindler after they, after
3 Mr. Schiavo was in a car accident on the way to
4 the train station and was told Terri's grandmother
5 died and informed Terri of that.
6 Also remember, Your Honor, Mr.
7 Schindler's deposition. He is the one that said
8 on the stand that I know Terri was in Philadelphia
9 and I know because my mother was hospitalized in
10 October, five months before her death, and they
11 took the trip in October. But in reading his
12 deposition, he stated his mother was hospitalized
13 in March when she died and she had not been
14 hospitalized for years before that.
15 There is a statement about motherhood.
16 I don't quote the Bible very well, Your Honor, but
17 I believe [sic] there's something to the effect that
18 when persons marry they leave the home and the
19 spouses cleave unto themselves and create a new
20 home. Theresa Schiavo is not a baby, as heard on
21 the tape. She's a married woman who we heard made
22 her own choices, and the person in our society
23 that we look to to make decisions for spouses is
24 the other spouse.
25 You know, I have also heard in
977
1 argument, well, let's not rely just on the
2 scientific evidence. Well, the doctors, they
3 merely rely on science. Well, I may believe
4 Your Honor that souls converse, that even if
5 Theresa Schiavo, even if unconscious people may
6 feel another, souls may exchange information, but
7 unfortunately that is not a basis in which this
8 Court dealing in facts can make a decision on what
9 the subjective impressions of someone may be.
10 About the ribbons of brain matter, Dr.
11 Barnhill testified that autopsies of patients like
12 Theresa show that is scar tissue, and even if it
13 were functional tissue, he testified the nature of
14 consciousness, not brain, is the ability of
15 different areas of the brain to interact and
16 connect with each other. Even if there were an
17 isolated pocket of brain material, it would not
18 imply or bring consciousness because there is no
19 connectiveness to anything else in Theresa's
20 brain, which is filled with fluid.
21 On Theresa's intent and the statements,
22 another thing this Court may very well want to
23 remember is the order in which they were given.
24 And we assume that a person's most recent
25 declaration is the one to which we might give most
978
1 weight. And what was the first? The first was
2 the alleged statement given in response to the
3 joke of Diane Meyer right after high school. That
4 was the first. And even assuming that statement
5 were true, Your Honor, we all know that people
6 grow. People mature. Beliefs change. So I think
7 that is a factor the Court might want to take into
8 consideration.
9 In closing, I wanted -- and the Court
10 nods with approval -- I wanted to read one passage
11 from the case In Re: Matter of Conroy, 468
12 Atlantic 2d on Page 1249. The presence of
13 progressive, irreversible, extensive, and extreme
14 physical deterioration such as ulcers, lesions,
15 gangrene, infection, incontinence and the like,
16 which frequently afflict the bedridden, terminally
17 ill should be considered in the formulation of an
18 appropriate standard.
19 The court was talking about what tests
20 should be used in removal of life support.
21 Medical and nursing treatment of individuals in
22 extremes and suffering from these conditions
23 entails the constant and extensive handling and
24 manipulation of the body. At some point, such a
25 course of treatment upon the insensate patient is
979
1 bound to touch the sensibility of even the most
2 detached observer. Eventually, pervasive bodily
3 intrusions, even for the best motives, will arise
4 feelings akin to humiliation and mortification for
5 the helpless patient. When cherished values of
6 human dignity and personal privacy, which belong
7 to every person living or dying, are sufficiently
8 transgressed by what is being done to the
9 individual, we should be ready to say enough.
10 Father Murphy, one reason he testified
11 is he called it the dark cloud of the medical
12 treatment system. He described the dual edge
13 sword of medical technology. The boon and benefit
14 it brings, but also the ability to keep us alive
15 way beyond our time. And what he most feared, and
16 he expressed this, is that situations where
17 patients are kept alive way past the natural death
18 process, especially where patients are kept alive
19 contrary to their intent, gives rise to the belief
20 in people that they have to take their own lives
21 to avoid medical treatment to avoid being kept
22 alive.
23 It was the spector [sic] of physician assisted
24 suicide which concerns Father Murphy in this case
25 and in similar cases. That people see this and
980
1 say, "Oh my God, look what happened when somebody
2 gets caught up in the medical/legal system. They
3 are kept alive like that indefinitely in that
4 condition. Rather than have that happen to me, I
5 am going to take a pill and end my life
6 prematurely while I have the ability because once
7 I loose control, look can what happen to me."
8 And that's what happened. That is what
9 is happening here. Enough. Her intent should be
10 carried out and that intent was not to be kept
11 alive artificially in this condition. Thank you.
12 THE COURT: Did -- I might have your
13 cases that you all quoted.
14 MS. CAMPBELL: Do you want the same
15 copies of the same ones?
16 THE COURT: No. Did you mention -- one
17 you did not mention. Slumwitz.
18 MR. FELOS: I have a copy.
19 (THEREUPON, A BENCH CONFERENCE WAS HAD
20 OUTSIDE THE HEARING OF THE COURT REPORTER.)
21 THE COURT: As has been stated by both
22 attorneys, this has been an extremely difficult
23 case. Obviously, not one I can rule upon at this
24 time. I have a lot of information to go over. I
25 used up one legal pad taking notes and I'm about
981
1 halfway through this one. There is a lot of
2 evidence that has been submitted, together with
3 some good case law that both lawyers have worked
4 on and given to me for my consideration.
5 I do want, at this time, to comment that
6 quite obviously whatever I rule will be contrary
7 to the wishes of Mr. Schiavo or Mr. and Mrs.
8 Schindler. This is not a case that has any
9 prospect of being divided somewhere in between
10 those two positions, quite obviously.
11 I do want to tell the three of you that
12 whatever decision the Court reaches, it certainly
13 will have been with the assistance of extremely
14 able trial counsel. I know all three of them. I
15 have known them for a long time. They have done
16 an outstanding job in this case in presenting all
17 the facts that could possibly be presented to the
18 Court. So whatever outcome is made, it's my
19 decision and I have certainly been assisted by the
20 effort of your attorneys.
21 As I told the attorneys-at the bench, I
22 intend to reach a decision in this case in two
23 weeks. This is not a decision that I can make
24 quickly, but it's not a decision that gets any
25 better the longer T consider it. We need to make
982
1 a decision so we know what we need to do with
2 regard to Theresa. So please do not bug, for lack
3 of a better word, bug your attorneys before then.
4 I'll keep them advised of my progress.
5 I do not intend to call another hearing
6 to read my decision. I don't think that would be
7 in your best interests, any one of the three of
8 you. I intend to fax my written opinion to the
9 attorneys, as simultaneously as I can, and keep
10 them as advised as I can of when that will occur.
11 Again, I want to compliment you on
12 keeping your emotions as under check as you
13 could. This has been an extremely difficult
14 case. Probably the most difficult case I have
15 presided over in my term on the bench. Again, I
16 thank you for your patience. I want to thank
17 counsel. I want to thank the media, who have been
18 as unobtrusive as you can possibly be in this
19 case. With that final thought, we will stand
20 adjourned.
21 THE BAILIFF: All rise. Court is
22 adjourned.
23 (THEREUPON, THE TRIAL ENDED ON 1-28-00 AT
24 11:30 A.M.)
25
983
1 CERTIFICATE OF REPORTER
2
3 STATE OF FLORIDA
COUNTY OF PINELLAS
4
5 I, BETH ANN ERICKSON, Deputy Official Court
Reporter in and for the Sixth Judicial Circuit,
6 State of Florida;
7 DO HEREBY CERTIFY that the foregoing
proceedings were had at the time and place set
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authorized to and did stenographically report
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pages is a true and correct transcription of my
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11 IN WITNESS WHEREOF I have hereunto affixed
my official signature this 17th day of April,
12 2000 at Clearwater, Pinellas County, Florida.
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15
BETH ANN ERICKSON, RPR
16 Court Reporter
Notary Public, State of Florida
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20 Sworn to and subscribed before the
undersigned officer this 17th day
21 of April, 2000
22
23
Notary Public
24 State of
25
Roger A. Ross
MY COMMISSION # CC646157 EXPIRES
May 12, 2001
BONDED THRU TROY FAN INSURANCE, INC,