Sharon Smith
11 SHARON OSSMEN SMITH,
12 CALLED BY THE PLAINTIFF, HAVING BEEN FIRST DULY
13 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
14 MS. BARLOW: MR. WILSON IS ON HIS WAY, BUT
15 PERHAPS --
16 THE COURT: HE'S RIGHT THERE.
17 MS. BARLOW: -- WE CAN GET HER STARTED WITH STATING
18 HER NAME FOR THE RECORD.
19 THE WITNESS: OKAY. I'M SHARON OSSMEN SMITH.
20 DIRECT EXAMINATION
21 BY MR. WILSON:
22 Q. EXCUSE ME, SHARON.
23 SHARON, ARE YOU RELATED TO LYDIA SMITH?
24 A. YES, I AM. I'M HER DAUGHTER-IN-LAW.
25 Q. I DON'T KNOW, DID COUNSEL ASK YOU WHERE YOU RESIDED?
629
1 A. NO. I RESIDE --
2 Q. WHAT CITY DO YOU RESIDE IN?
3 A. CENTERVILLE.
4 Q. OKAY. I SHOW YOU WHAT'S BEEN MARKED AS STATE'S EXHIBIT
5 9 AND ASK YOU TO TAKE A LOOK AT THAT EXHIBIT IF YOU WOULD,
6 PLEASE. COULD YOU TELL US, SHARON, WHO THAT PHOTOGRAPH OF
7 IS OF?
8 A. THIS IS MY MOTHER-IN-LAW, LYDIA SMITH.
9 Q. DO YOU KNOW APPROXIMATELY HOW LONG AGO THAT PHOTOGRAPH
10 WAS TAKEN?
11 A. IT WAS PROBABLY ABOUT 10 OR 12 YEARS AGO.
12 Q. SO THIS WOULD HAVE BEEN SOME SIX OR SEVEN YEARS BEFORE
13 SHE PASSED AWAY?
14 A. RIGHT.
15 Q. OKAY. IS THAT PHOTOGRAPH REPRESENTATIVE OF HOW SHE
16 APPEARED?
17 A. YES.
18 Q. BUT I ASSUME IT'S NOT TOTALLY REPRESENTATIVE OF HOW SHE
19 APPEARED JUST BEFORE HER DEATH?
20 A. THAT IS TRUE. BUT SHE ALWAYS TRIED TO MAKE HERSELF LOOK
21 VERY NICE.
22 Q. OKAY. NOW YOU ARE MARRIED TO WHO?
23 A. KENT SMITH, HER SON.
24 Q. SO HOW LONG HAVE YOU BEEN MARRIED TO KENT?
25 A. THIRTY-FIVE YEARS.
630
1 Q. SO I GUESS WITH A LITTLE MATH, THAT WOULD MEAN THAT
2 YOU'VE KNOWN YOUR MOTHER-IN-LAW FOR SOME 30 YEARS?
3 A. RIGHT.
4 Q. PRIOR TO HER DEATH?
5 A. YES.
6 Q. DID YOU VISIT WITH HER OFTEN?
7 A. YES.
8 Q. OKAY. DID THERE COME A TIME BACK IN 1995 WHEN YOUR
9 MOTHER-IN-LAW WAS PLACED IN NURSING CARE OR A CARE CENTER?
10 A. WE PLACED HER -- SHE HAD SURGERY IN JUNE AND WE PLACED
11 HER IN THE TRANSITIONAL CARE AND FROM THERE WE MOVED HER
12 DOWN INTO THE NURSING HOME AT SOUTH DAVIS COMMUNITY.
13 Q. OKAY. PREVIOUS TO THAT TIME WHERE DID SHE RESIDE?
14 A. SHE RESIDED MOST OF THE TIME IN HER HOME, PLUS ALSO IN
15 OUR HOME AT CERTAIN TIMES.
16 Q. OKAY. AND WHERE WAS HER HOME LOCATED?
17 A. HER HOME WAS LOCATED AT PHEASANT BROOK IN CENTERVILLE.
18 Q. SO DID SHE MOVE -- DID SHE GO TO THE HOSPITAL FROM YOUR
19 HOME OR HER HOME?
20 A. FROM HER HOME.
21 Q. FROM HER HOME. SO SHE SPENT SOME TIME IN BOTH HOMES?
22 A. RIGHT, UH-HUH.
23 Q. I ASSUME THAT HER HUSBAND HAD PASSED AWAY?
24 A. YES, HE HAD.
25 Q. AND SO SHE WAS -- SHE WAS A WIDOW AT THAT TIME?
631
1 A. YES.
2 Q. WHAT PRECIPITATED THE EVENTS THAT REQUIRED HER TO BE
3 HOSPITALIZED IN JUNE OF 1995, DO YOU REMEMBER?
4 A. SHE HAD GALLBLADDER SURGERY AND SHE HAD BEEN COMPLAINING
5 OF PAIN IN THE AREA WHERE THE GALLBLADDER WAS AND SO THEY
6 REMOVED HER GALLBLADDER.
7 Q. AND THAT WAS DONE IN JUNE OF 1995?
8 A. RIGHT.
9 Q. AND THEN SHE WAS MOVED YOU INDICATE -- WAS THAT SURGERY
10 PERFORMED AT WHAT HOSPITAL?
11 A. SURGERY WAS PERFORMED AT LAKEVIEW HOSPITAL AND FROM
12 THERE WE MOVED HER TO THE SECOND FLOOR OF THE SOUTH DAVIS
13 COMMUNITY HOSPITAL FOR AFTERCARE AND THEN WE MOVED HER DOWN
14 ONTO FIRST FLOOR, WHICH IS THE NURSING HOME.
15 Q. CAN YOU DESCRIBE PRIOR -- BEFORE THE HOSPITALIZATION FOR
16 THE GALLBLADDER SURGERY, CAN YOU DESCRIBE YOUR
17 MOTHER-IN-LAW'S GENERAL HEALTH AT THAT TIME?
18 A. EMOTIONALLY AND MENTALLY SHE WAS STRUGGLING. SHE HAD A
19 HARD TIME REMEMBERING CERTAIN THINGS. SHE DID NOT LIKE TO
20 BE ALONE. SHE WANTED PEOPLE AROUND HER ALL THE TIME. SHE
21 WAS MOSTLY NOT DOING AS WELL.
22 Q. OKAY. PHYSICALLY?
23 A. PHYSICALLY SHE PROBABLY WAS MOVING SLOWER BUT SHE STILL
24 WAS VERY STRONG. SHE WAS VERY DETERMINED IN LIFE THAT SHE
25 COULD GET UP AND MOVE AROUND AND...
632
1 Q. DESCRIBE HER PHYSICAL -- HER HEIGHT. HOW TALL WAS SHE?
2 A. SHE IS ABOUT MY HEIGHT, ABOUT 5'2, 5'1 AND A HALF.
3 Q. AND DO YOU KNOW WHAT SHE WEIGHED AT THAT TIME?
4 A. I AM NOT SURE ABOUT THAT.
5 Q. OKAY.
6 A. I DON'T KNOW.
7 Q. DID SHE -- DID SHE APPEAR TO BE GENERALLY HEALTHY AT
8 THAT TIME AS FAR AS PHYSICAL HEALTH?
9 A. AS FAR AS PHYSICAL HEALTH, YES, BECAUSE SHE -- TO HER
10 SHE NEEDED TO EAT AND EATING WAS ONE OF THE THINGS THAT
11 WOULD MAKE HER STAY HEALTHY.
12 Q. DID SHE HAVE COMPLAINTS ABOUT PAIN?
13 A. THE ONLY PAIN THAT SHE -- THE ONLY PAIN THAT SHE
14 COMPLAINED ABOUT WAS IN THE ABDOMINAL AREA WHERE THE
15 GALLBLADDER WAS BASICALLY TO US AT THAT TIME. OTHERWISE,
16 NO.
17 Q. WHY WAS IT YOU TRANSFERRED HER DOWN TO SOUTH DAVIS CARE
18 CENTER AFTER THE HOSPITALIZATION, DO YOU KNOW WHAT PURPOSE
19 WAS FOR THAT?
20 A. BECAUSE AT THAT TIME WE COULD NOT MEET HER NEEDS AND HER
21 DEMANDS EMOTIONALLY SO WE NEEDED SOME HELP AT THAT TIME IN
22 TAKING CARE OF HER.
23 Q. SO YOU WERE HAVING TROUBLE CARING FOR HER, I GUESS,
24 WOULD BE A CORRECT WORD?
25 A. RIGHT.
633
1 Q. AND AFTER TRANSFERRING HER DOWN THERE, DID YOU CONTINUE
2 TO VISIT WITH HER ON A REGULAR BASIS?
3 A. YES.
4 Q. OKAY. CAN YOU DESCRIBE FOR US HOW SHE WOULD -- WHAT
5 TYPE OF ACTIVITIES SHE WOULD PARTICIPATE IN DURING THAT TIME
6 FRAME?
7 A. SHE -- SHE WOULD GO -- SHE WOULD GO AND EAT LUNCH WITH
8 THE LADIES AT THE LUNCH TABLE IN THE LUNCH ROOM. SHE -- SHE
9 ATTENDED SOME CHURCH MEETINGS, CHURCH THINGS, SHE WOULD
10 ATTEND CHURCH MEETINGS. SHE WOULD PLAY THE PIANO FOR CHURCH
11 IN THEIR SERVICES HELD AT THE SOUTH DAVIS.
12 Q. DID SHE PARTICIPATE IN PLAYING ANY MUSICAL INSTRUMENTS,
13 ANYTHING OF THAT NATURE?
14 A. SHE PLAYED THE PIANO AND THE ORGAN.
15 Q. NOW, DID YOU -- WAS THERE AN EVENT THAT OCCURRED IN
16 NOVEMBER OF '95 THAT REQUIRED HOSPITALIZATION?
17 A. SHE WAS MOVED TO THE SECOND FLOOR AGAIN IN NOVEMBER.
18 SHE HAD WHAT THEY SAID WAS A STROKE WHICH AFFECTED HER
19 SPEECH, DID NOT AFFECT HER WALKING. SHE COULD STILL GET UP
20 AND WALK BUT THAT'S WHY SHE WAS MOVED TO THE SECOND FLOOR.
21 Q. DO YOU KNOW -- DO YOU KNOW HOW LONG OR I SHOULD SAY DO
22 YOU KNOW APPROXIMATELY WHEN THIS STROKE OCCURRED IN
23 NOVEMBER?
24 A. I KNOW IT WAS JUST RIGHT BEFORE THANKSGIVING, I'M NOT
25 SURE OF THE DAY BUT IT WAS JUST A FEW DAYS BEFORE
634
1 THANKSGIVING.
2 Q. WAS SHE HOSPITALIZED?
3 A. SHE WAS NOT TAKEN UP TO LAKEVIEW SHE WAS TAKEN TO THIS
4 SECOND FLOOR.
5 Q. TO YOUR RECOLLECTION, SHE WAS TAKEN TO THE SECOND FLOOR?
6 A. YES, UH-HUH.
7 Q. AND THEN YOU RECALL VISITING WITH HER AFTER THE STROKE?
8 A. YES.
9 Q. AND AS I UNDERSTAND YOUR TESTIMONY, THE ONLY THING YOU
10 NOTICED WAS THAT SHE DID HAVE A SPEECH IMPAIRMENT AT THAT
11 TIME?
12 A. HER SPEECH IMPAIRMENT WAS THE BIGGEST THING THAT WAS
13 AFFECTED.
14 Q. DID HER DEMEANOR CHANGE AT ALL AT THAT JUNCTURE?
15 A. SHE BECAME MORE AGITATIVE, SHE WAS COMBATIVE. THOSE ARE
16 THE MAIN THINGS THAT I NOTICED. SHE HAD A VERY STRONG
17 DESIRE TO BECOME BETTER. SHE WAS DOING EVERYTHING IN HER
18 POWER TO MAKE HERSELF SO THAT WE COULD UNDERSTAND HER
19 SPEAKING AND SORT OF --
20 Q. WHAT ABOUT PLAYING THE PIANO?
21 A. SHE COULD STILL PLAY THE PIANO. AFTER SHE WAS MOVED
22 BACK DOWN TO THE FIRST FLOOR, SHE WOULD GO IN AND PLAY THE
23 PIANO.
24 Q. AFTER THE STROKE, DID SHE EXHIBIT OR DID SHE COMPLAIN OF
25 ANY PAIN?
635
1 A. NO, SHE NEVER DID.
2 Q. THERE CAME A TIME, SHARON, WHEN SHE WAS TRANSFERRED TO
3 THE GEROPSYCH UNIT AT THE DAVIS HOSPITAL; IS THAT CORRECT?
4 A. YES.
5 Q. DO YOU REMEMBER WHEN THAT OCCURRED?
6 A. IT WAS RIGHT BEFORE CHRISTMAS. IT WAS THE 19TH OR 20TH,
7 SOMEWHERE AROUND THERE.
8 Q. AND DID YOU -- WERE YOU PRESENT AT THE TIME THAT SHE WAS
9 TRANSFERRED TO THE GEROPSYCH UNIT?
10 A. I DID NOT GO UP WITH THEM THE DAY THEY TOOK HER.
11 Q. DO YOU KNOW WHO TOOK HER UP?
12 A. YES, MY SISTER-IN-LAW, HER DAUGHTER AND MY TWO SONS.
13 Q. SO YOU WEREN'T PRESENT DURING THAT TIME FRAME?
14 A. NO, I WASN'T.
15 Q. DID YOU SEE HER ON THE DATE SHE WAS TRANSFERRED TO THE
16 GEROPSYCH UNIT?
17 A. I DID NOT SEE HER THAT DAY.
18 Q. AFTER BEING ADMITTED TO THE GEROPSYCH CENTER AT DAVIS
19 HOSPITAL, DID YOU HAVE OCCASION TO VISIT WITH HER?
20 A. YES.
21 Q. NOW, IF SHE WAS HOSPITALIZED THERE ON ABOUT THE 20TH OF
22 DECEMBER, DO YOU RECALL WHEN SHE DIED?
23 A. SHE DIED ON JANUARY 8TH.
24 Q. AND DURING THAT TIME FRAME, DID YOU HAVE OCCASION TO
25 VISIT HER ON OCCASION?
636
1 A. YES, I WAS UP THERE QUITE A FEW TIMES.
2 Q. BY QUITE A FEW TIMES, HOW MANY TIMES WOULD YOU SAY?
3 A. PROBABLY THAT FIRST WEEK HE WAS UP THERE TWICE, TWO OR
4 THREE TIMES -- I DON'T -- I WOULD SAY PROBABLY SEVEN OR
5 EIGHT TIMES I WAS UP THERE.
6 Q. THE FIRST TIME YOU VISITED HER, CAN YOU DESCRIBE HER
7 PHYSICAL HEALTH?
8 A. SHE WAS UP MOVING AROUND, SHE WAS VERY AGITATED, SHE
9 WANTED TO -- US TO TAKE HER OUT. SHE WOULDN'T CALM DOWN,
10 SHE JUST WANTED US TO TAKE HER OUT.
11 Q. DID YOU VISIT HER WITH ANYBODY ELSE ON THAT OCCASION, DO
12 YOU REMEMBER OR WAS THIS ALONE?
13 A. NO, THIS -- MY HUSBAND WAS THERE, TOO.
14 Q. OKAY. AND YOU CONTINUED TO VISIT HER AS YOU INDICATE?
15 A. YES, UH-HUH.
16 Q. CAN YOU DESCRIBE FOR US, DID YOU SEE ANY CHANGE IN HER
17 PHYSICAL CONDITION OR HER DEMEANOR FROM THE TIME PERIOD YOU
18 FIRST VISITED HER UP UNTIL THE TIME OF HER DEATH?
19 A. THERE WAS A GREAT CHANGE ON -- THERE WAS A BIG CHANGE ON
20 THE SATURDAY BEFORE SHE DIED. UP UNTIL THEN SHE WAS
21 WALKING, SHE WAS PROBABLY MOVING SLOWER BUT SHE WAS UP. SHE
22 WAS IN THE DINING ROOM OR THE MAIN CENTER.
23 Q. SO THE SATURDAY BEFORE SHE DIED IS WHEN YOU NOTICED THE
24 MOST SIGNIFICANT CHANGE?
25 A. YES.
637
1 Q. WHAT WAS IT YOU NOTICED ON THE SATURDAY BEFORE SHE DIED?
2 A. WE WENT UP TO VISIT HER IN THE HOSPITAL AND WE WALKED
3 INTO THE DINING AREA OR THE CENTRAL AREA WHERE THEY KEPT THE
4 PATIENTS, SHE WAS IN HER CHAIR, SHE WAS TIED IN HER CHAIR,
5 THERE WAS NO MOVEMENT. HER EYES WERE GLAZED OVER, SHE HAD
6 FOOD IN HER MOUTH LIKE SHE HAD JUST -- SHE HAD FOOD IN HER
7 MOUTH, SHE WAS SLUMPED OVER AND WE COULD NOT ROUSE HER.
8 Q. DID YOU NOTIFY ANYBODY ON THE STAFF AT THAT TIME?
9 A. WE -- WE TRIED TO TALK TO HER FOR A FEW MINUTES AND WE
10 WERE TRYING TO FIND OUT IF SHE WAS ASLEEP AND THEN WE WENT
11 IN AND ASKED THE STAFF IF THEY WOULD COME IN AND SEE WHAT
12 HAD HAPPENED TO HER, IF THEY WOULD TAKE CARE OF HER.
13 Q. DID YOU PERSONALLY MAKE ANY INQUIRY OF ANYBODY ON THE
14 STAFF AS TO WHAT WAS HAPPENING TO HER?
15 A. I DID NOT.
16 Q. OKAY.
17 A. WE JUST KNEW THAT SOMETHING HAD HAPPENED. WE DID NOT
18 KNOW WHAT IT WAS.
19 Q. NOW, IF THIS HAPPENED ON THE SATURDAY BEFORE SHE DIED,
20 DO YOU KNOW WHAT DAY OF THE WEEK IT WAS SHE DIED?
21 A. SHE DIED ON MONDAY.
22 Q. SO IT WOULD BE APPROXIMATELY TWO DAYS BEFORE THAT?
23 A. RIGHT.
24 Q. DID YOU SEE HER THE FOLLOWING DAY ON SUNDAY?
25 A. I DID.
638
1 Q. CAN YOU DESCRIBE HER CONDITION, HER PHYSICAL CONDITION
2 ON THAT DAY?
3 A. IT WAS THE SAME AS WHEN WE LEFT HER THAT NIGHT. SHE WAS
4 NOT MAKING ANY MOVEMENT. THE ONLY MOVEMENT SHE DID WAS LIFT
5 HER HAND TWICE AND THAT'S THE ONLY MOVEMENT SHE EVER MADE
6 WHILE WE WERE THERE. SHE DID NOT TALK, SHE DID NOT OPEN HER
7 EYES.
8 Q. HAD HER SPEECH IMPROVED FROM THE TIME OF THIS STROKE UP
9 UNTIL THE TIME SHE WAS ADMITTED TO THE GEROPSYCH UNIT?
10 A. IT HAD NOT IMPROVED 100 PERCENT BUT WE COULD UNDERSTAND
11 WHAT SHE WANTED. SHE COULD MAKE HER NEEDS KNOWN TO US.
12 Q. OKAY. BUT ON THESE TWO OCCASIONS BOTH SATURDAY AND
13 SUNDAY, DID SHE RESPOND TO YOU AT ALL?
14 A. THERE WAS NO RESPONSE AT ALL.
15 Q. ON THE SUNDAY OCCASION, WHERE WAS SHE AT, IN HER ROOM?
16 A. SHE WAS IN HER ROOM.
17 Q. WAS SHE LAYING DOWN?
18 A. SHE WAS LAYING DOWN.
19 Q. ON ANY OF THESE OCCASIONS THAT YOU VISITED, DID YOU EVER
20 MEET OR SPEAK WITH DR. WEITZEL?
21 A. THE ONLY TIME I MET WITH DR. WEITZEL WAS ON SUNDAY
22 EVENING WHEN HE WANTED THE FAMILY TO COME IN. THAT'S THE
23 ONLY TIME I EVER SAW HIM.
24 Q. WAS THAT THE SUNDAY BEFORE SHE DIED?
25 A. RIGHT, YES.
639
1 Q. WHAT TIME DID YOU GO UP THERE ON THAT SUNDAY?
2 A. IT WAS SOMEWHERE AFTER 8 O'CLOCK, PROBABLY AROUND 8:30,
3 9, SOMEWHERE IN THAT TIME PERIOD.
4 Q. IS THAT WHEN YOU DESCRIBED WHAT YOU OBSERVED ABOUT HER
5 LAYING ON THE BED AND NOT RESPONDING TO YOU OR HAD YOU
6 VISITED HER EARLIER ON THAT SUNDAY?
7 A. YOU KNOW, I CANNOT RECALL. I KNOW WE WERE GOING TO GO
8 UP THAT DAY, BUT I CANNOT RECALL EXACTLY. I JUST REMEMBER
9 THE FAMILY MEETING FOR SURE THAT NIGHT.
10 Q. OKAY. BUT YOU DO RECALL MEETING WITH DR. WEITZEL IN THE
11 EVENING HOURS OF SUNDAY?
12 A. YES. I CALLED THE HOSPITAL THAT MORNING TO CHECK ON HER
13 CONDITION SUNDAY MORNING AND SAID WE'D BE RIGHT UP AND
14 SHE -- THE NURSE SAID TO ME DR. WEITZEL WANTS TO MEET WITH
15 THE FAMILY THAT EVENING.
16 Q. DO YOU KNOW WHETHER THERE WERE ANY OTHER PATIENTS IN THE
17 ROOM AT THAT TIME?
18 A. NO, SHE WAS THE ONLY PATIENT IN THE ROOM.
19 Q. SO WHEN YOU HAD THIS MEETING WITH DR. WEITZEL, DID YOU
20 PARTICIPATE IN THAT CONVERSATION OR COULD YOU HEAR THE
21 CONVERSATION THAT WAS GOING ON?
22 A. YES, I COULD HEAR THE CONVERSATION.
23 Q. AND DO YOU RECALL WHAT WAS SAID, IF ANYTHING, BY DR.
24 WEITZEL AT THAT TIME?
25 MR. STIRBA: YOUR HONOR, COULD WE HAVE A LITTLE
640
1 MORE FOUNDATION AS TO WHO EXACTLY WAS PRESENT AND WHERE THE
2 CONVERSATION TOOK PLACE?
3 THE COURT: YES. GO AHEAD.
4 MR. WILSON: BE HAPPY TO.
5 Q. (BY MR. WILSON) WHERE DID THIS CONVERSATION TAKE
6 PLACE?
7 A. IN HER ROOM, IN HER HOSPITAL ROOM.
8 Q. OKAY. AND WHO WAS PRESENT DURING THAT CONVERSATION, TO
9 YOUR RECOLLECTION?
10 A. MY HUSBAND WAS THERE, MY SISTER-IN-LAW, BONNIE, WAS
11 THERE, MY BROTHER-IN-LAW, HAROLD, WAS THERE WHO IS NOW
12 DECEASED, HIM AND HIS WIFE WAS THERE.
13 Q. SO THERE WOULD BE A TOTAL OF WHAT, FIVE, SIX, PEOPLE?
14 A. YES, FIVE PEOPLE.
15 Q. AND WAS THE DOCTOR GENERALLY DIRECTING HIS STATEMENTS TO
16 EVERYBODY IN THE ROOM OR WAS HE TALKING WITH ANYONE IN
17 PARTICULAR?
18 A. NO, HE WAS TALKING TO THE FAMILY.
19 Q. DO YOU REMEMBER WHAT HE TOLD THE FAMILY AT THAT TIME?
20 A. HE TOLD THE FAMILY THAT SHE WAS DYING.
21 Q. THAT SHE WAS DYING?
22 A. YES.
23 Q. ANYTHING ELSE THAT YOU REMEMBER AT THAT TIME?
24 A. AT THAT TIME, HE ALSO ASKED US -- OR TOLD US THAT HE
25 WOULD MAKE HER COMFORTABLE, KEEP HER COMFORTABLE. SAID --
641
1 Q. DID HE TELL YOU HOW HE WOULD KEEP HER COMFORTABLE?
2 A. I DON'T RECOLLECT ON THAT HOW HE WOULD KEEP HER
3 COMFORTABLE.
4 Q. BUT THAT HE WOULD KEEP HER COMFORTABLE?
5 A. RIGHT.
6 Q. WAS THERE ANY INDICATION BY HIM AS TO WHAT WAS CAUSING
7 HER DEATH?
8 A. NOT THAT I RECOLLECT ON THAT.
9 Q. OKAY.
10 A. HE ASKED US IF WE WANTED -- SEE, HE ALSO MADE A COUPLE
11 OF OTHER STATEMENTS AS TO --
12 Q. HE MADE A FEW OTHER STATEMENTS?
13 A. YES, UH-HUH.
14 Q. AND DO YOU RECALL THE CONTEXT OF THOSE STATEMENTS?
15 A. WE WERE TALKING ABOUT WHETHER WE WANTED ANY LIFESAVING
16 THINGS TAKEN PLACE ON HER, RESUSCITATION OR WHATEVER AND
17 ALSO HE MADE THE COMMENT THAT SHE WAS A VERY UNHAPPY OLD
18 LADY AND THAT SHE SHOULDN'T LIVE OR DIDN'T DESERVE TO LIVE.
19 Q. I SEE. NOW, WHEN HE MADE THAT STATEMENT, CAN YOU TELL
20 US, DID HE MAKE THAT TO THE GROUP AS A WHOLE ABOUT THE VERY
21 UNHAPPY LADY?
22 A. HE JUST -- HE JUST SAID IT. HE JUST SAID IT. HE DIDN'T
23 SAY IT REAL LOUD, BUT IF YOU WERE LISTENING, YOU COULD HEAR
24 WHAT HE SAID.
25 Q. THE OTHER COMMENT THAT YOU TALKED ABOUT, THAT SHE DIDN'T
642
1 DESERVE TO LIVE OR WHAT WAS --
2 A. SHOULDN'T BE ALLOWED TO LIVE BECAUSE SHE WAS UNHAPPY,
3 CRABBY OLD LADY.
4 Q. YOU DISTINCTLY RECALL THAT STATEMENT BEING LAID?
5 A. I DO.
6 Q. HOW DID YOU FEEL ABOUT THAT STATEMENT?
7 MR. STIRBA: OBJECTION, RELEVANCE.
8 THE COURT: SUSTAINED.
9 Q. (BY MR. WILSON) DID YOU RESPOND AT ALL TO THE
10 STATEMENT THAT HE MADE AT THAT TIME, YOU YOURSELF?
11 A. I DID NOT RESPOND.
12 Q. OKAY. WHAT WAS YOUR IMPRESSIONS OF THE DOCTOR'S
13 DEMEANOR OR ATTITUDE AT THAT POINT?
14 MR. STIRBA: I'M GOING ON OBJECT, YOUR HONOR,
15 RELEVANT. AND I DON'T THINK IT'S THE KIND OF LAY OPINION
16 THAT IS HELPFUL TO THE JURY IN THESE CIRCUMSTANCES.
17 MR. WILSON: YOUR HONOR, I WOULD ARGUE --
18 THE COURT: HOLD ON JUST A MINUTE. WE'RE NOT GOING
19 TO ARGUE IN FRONT OF THE JURY. MAYBE WHAT WE COULD DO,
20 LADIES AND GENTLEMEN, I JUST RECEIVED A PHONE CALL THAT I
21 HAVE TO ANSWER, IT'S KIND OF AN EMERGENCY. AND SO WHAT I
22 WOULD LIKE TO DO IS WE'RE GOING TO HAVE TO DISCUSS THIS
23 MATTER BETWEEN THE ATTORNEYS SO IF YOU WOULD JUST GO WITH
24 THE BAILIFF FOR JUST A FEW MINUTES. DURING THAT TIME DO NOT
25 CONVERSE AMONG YOURSELVES OR CONVERSE WITH ANYONE ELSE ABOUT
643
1 THE SUBJECT OF THIS TRIAL AND REMEMBER DO NOT FORM ANY
2 OPINION OR EXPRESS AN OPINION UNTIL THE CASE IS FINALLY
3 SUBMITTED.
4 (WHEREUPON THE JURY EXITED THE COURTROOM.)
5 (A BRIEF RECESS WAS HAD.)
6 THE CLERK: YOU MAY BE SEATED.
7 THE COURT: OKAY. PLEASE BE SEATED. I HAD AN
8 EMERGENCY, I HAD TO BE CALLED OUT AND THEN WE HAD A QUESTION
9 THAT WAS OBJECTED TO REGARDING THE DEMEANOR WHEN THIS
10 CONVERSATION TOOK PLACE. OKAY. WHAT'S YOUR RESPONSE, MR.
11 WILSON?
12 MR. WILSON: WELL, MY RESPONSE IS I THINK THE
13 WITNESS IS PERFECTLY QUALIFIED TO, THROUGH HER OWN
14 EXPERIENCE, TO FORM IMPRESSIONS AS TO WHAT SHE FEELS A
15 PERSON'S DEMEANOR OR ATTITUDE IS, YOUR HONOR, FROM THAT
16 STANDPOINT. I DON'T KNOW IF THE COURT WANTS ME TO EXPLORE
17 WITH HER -- I THINK THAT'S JUST SOMETHING THAT'S COMMON
18 KNOWLEDGE. AND OBVIOUSLY DEFENSE COUNSEL HAS THE RIGHT TO
19 CROSS-EXAMINE HER AS TO WHY SHE FORMED THAT IMPRESSION.
20 THE COURT: OKAY. WHAT DOES DEMEANOR -- THE
21 DEMEANOR GO TO? I MEAN, WHAT --
22 MR. WILSON: WELL, I THINK IT GOES TOWARDS SHOWING
23 HERE HE IS MEETING WITH THE FAMILY, HE MAKES A STATEMENT
24 THAT SHE'S TESTIFIED TO AS ABOUT THIS WOMAN IS AN UNHAPPY
25 OLD LADY OR CRABBY OLD LADY AND DOESN'T DESERVE TO LIVE.
644
1 AND I THINK HIS ATTITUDE GOES TOWARDS HIS INDIFFERENCE
2 TOWARDS THIS PARTICULAR PATIENT AND IS DEMONSTRATIVE OF HIS
3 DEPRAVED INDIFFERENCE, YOUR HONOR.
4 THE COURT: OKAY. MR. STIRBA, WHAT'S BASIS OF YOUR
5 OBJECTION?
6 MR. STIRBA: WELL, LAY OPINION, WHICH THIS IS, IS
7 ONLY ADMISSIBLE IF IT OTHERWISE IS HELPFUL TO THE JURY AND
8 IT HAS TO HAVE SOME ELEMENT OF FOUNDATIONAL CREDIBILITY.
9 SHE'S TESTIFIED THAT SHE DOESN'T -- THIS IS APPARENTLY THE
10 FIRST TIME SHE'S EVER MET DR. WEITZEL AND SHE DOESN'T REALLY
11 HAVE ANY EXPERIENCE WITH HIM. AND JUST FOR HER TO
12 CHARACTERIZE SOMETHING UNDER THESE CIRCUMSTANCES IT SEEMS TO
13 ME IS, A, SELF-SERVING. B, IS LAY OPINION FOR WHICH I DON'T
14 THINK SHE HAS FOUNDATIONAL EXPERIENCE. YOU KNOW, IT'S NOT
15 LIKE ESTIMATING A SPEED OF A CAR WHERE YOU CAN SAY, YEAH,
16 I'VE DRIVEN A CAR FOR 50 YEARS, I KNOW BASICALLY HOW FAST
17 CARS GO.
18 THIS IS THE FIRST TIME SHE'S EVER MET THIS GENTLEMAN
19 AND SHE'S GOING TO COME INTO THIS COURTROOM AND GIVE HER LAY
20 OPINION ON HIS DEMEANOR, NOT EVEN HAVING EVER MET HIM BEFORE
21 OR KNOW ANYTHING ABOUT HIM? I'D SUGGEST THAT THAT'S OPENING
22 A DOOR TO AN OPINION WHICH CLEARLY IS NOT HELPFUL TO THE
23 JURY AND IS IRRELEVANT AND I THINK IS NOT FACTUAL, QUITE
24 FRANKLY.
25 THE COURT: WELL, RULE 701 OF THE UTAH RULES OF
645
1 EVIDENCE IS OPINION TESTIMONY BY LAY WITNESSES IT STATES,
2 "IF THE WITNESS IS NOT TESTIFYING AS AN EXPERT, THE
3 WITNESS'S TESTIMONY IN THE FORM OF OPINIONS OR INFERENCES IS
4 LIMITED TO THOSE OPINIONS OR INFERENCES WHICH ARE, A,
5 RATIONALLY BASED ON THE PERCEPTION OF THE WITNESS. AND, B,
6 HELPFUL TO A CLEAR UNDERSTANDING OF A WITNESS'S TESTIMONY,
7 OR THE DETERMINATION OF A FACT IN ISSUE." AND SO WHAT DO
8 YOU SAY, MR. WILSON, TO THE ISSUE OF NOT HAVING ANY
9 BACKGROUND IF THIS IS THE FIRST TIME THAT YOU MET A WITNESS
10 COMMENTING ON DEMEANOR?
11 MR. WILSON: OF COURSE, FIRST OF ALL, I WOULD
12 DISAGREE THAT YOU HAVE TO HAVE ANY BACKGROUND SO TO SPEAK.
13 I THINK THERE'S A COMMON BACKGROUND THAT WE ALL DEVELOP OVER
14 THE COURSE OF OUR LIVES IN TERMS OF MEETING PEOPLE. BUT I
15 THINK THE MORE IMPORTANT THING IS THE CONTEXT OF THIS
16 PARTICULAR CONVERSATION AS IT BEARS ON WHAT HE HAD SAID AND
17 HER IMPRESSIONS BASED UPON THAT AS TO HIS ATTITUDE AND HIS
18 DEMEANOR TOWARDS THIS PARTICULAR PATIENT AND THE EVENTS THAT
19 WERE GOING ON AT THAT TIME.
20 THE COURT: WELL, WHY DON'T YOU JUST GO AHEAD AND
21 ASK THE QUESTIONS RIGHT NOW AND LET'S HEAR WHAT THE ANSWERS
22 ARE.
23 MR. WILSON: OKAY. I THINK THE QUESTION WAS, IS
24 WHAT WAS THE DOCTOR'S ATTITUDE OR --
25 THE COURT: I THINK YOU SAID DEMEANOR.
646
1 MR. WILSON: OKAY. WHAT WAS YOUR IMPRESSION OF THE
2 DOCTOR'S ATTITUDE AT THAT TIME?
3 THE WITNESS: THE FEELING THAT CAME ACROSS TO ME
4 WAS THAT HE DID NOT LIKE LYDIA SMITH AT THAT TIME, THAT SHE
5 WAS HARD TO WORK WITH.
6 MR. WILSON: I WOULD SUBMIT IT, YOUR HONOR. THAT'S
7 THE ONLY QUESTION I WAS GOING TO ASK HER.
8 MR. STIRBA: AND SEE THE POINT IS, YOU HAVE A FACT,
9 A STATEMENT, YOU CAN ARGUE FROM THAT. THAT'S WHAT YOU DO,
10 YOU TAKE FACTS AND THEN YOU ARGUE WHAT LOGICAL INFERENCES
11 THERE ARE. BUT HOW COULD SHE POSSIBLY DIVINE FROM JUST
12 SUPPOSEDLY DEMEANOR IMPRESSIONS THAT THE DOCTOR DIDN'T LIKE
13 HER MOTHER-IN-LAW? I WOULD SUBMIT IT'S NOT RATIONALLY
14 RELATED TO A LEGITIMATE PERCEPTION. ONCE AGAIN, IT'S NOT
15 LIKE THE SPEED OF AN AUTOMOBILE, AND QUITE FRANKLY, WITH THE
16 STATEMENT, YOUR HONOR, THAT'S WHAT LAWYERS DO, THEY ARGUE
17 FROM THAT.
18 THE COURT: WELL, THE ANSWER TO THE QUESTION WAS --
19 FIRST OF ALL, YOU ASKED THE QUESTION ABOUT DEMEANOR AND THEN
20 YOU SAID WHAT'S THE ATTITUDE AND THE WITNESS'S ANSWER WAS
21 THAT THE DOCTOR DIDN'T LIKE LYDIA. WELL, THAT IS PUTTING
22 HER MIND IN THE PLACE OF THE DOCTOR.
23 MR. WILSON: WELL, I THINK -- I THINK THAT IS
24 HER -- HER ANSWER IS BASED UPON THE PRIOR STATEMENT THAT WAS
25 MADE BY THE DOCTOR.
647
1 THE COURT: WELL, THE PRIOR STATEMENT SAYS WHAT IT
2 SAYS AND THAT IS THE BEST EVIDENCE OF ATTITUDE OR ANYTHING
3 ELSE IT SOUNDS LIKE TO ME. HER IMPRESSION OF WHAT HE FELT
4 OR MEANT WHEN HE SAID THE STATEMENT, I THINK IS BASICALLY
5 GOING TO PUT -- YOU KNOW, IT'S BASICALLY SUPPOSITION, AND SO
6 THE OBJECTION IS GOING TO BE SUSTAINED. SO LET'S GET THE
7 JURY BACK IN.
8 (WHEREUPON THE JURY ENTERED THE COURTROOM.)
9 THE COURT: OKAY. PLEASE BE SEATED. MR. WILSON,
10 YOU MAY CONTINUE.
11 MR. WILSON: THANK YOU, YOUR HONOR.
12 Q. (BY MR. WILSON) SHARON, I JUST WANT TO TAKE A STEP
13 BACK. AT THE TIME THAT YOU ENTERED THE ROOM OF YOUR
14 MOTHER-IN-LAW ON THAT SUNDAY AFTERNOON, DO YOU RECALL
15 WHETHER OR NOT THERE WAS ANYBODY PRESENT IN THE ROOM AT THAT
16 TIME?
17 A. THERE WAS NOBODY PRESENT.
18 Q. OKAY. SO HOW LONG WERE YOU THERE FOR TO YOUR
19 RECOLLECTION BEFORE THE DOCTOR CAME IN THE ROOM?
20 A. I DON'T REALLY RECALL. IT WASN'T A LONG TIME, BUT I
21 DON'T REALLY RECALL.
22 Q. AND HOW LONG WAS HE IN THE ROOM FOR AS FAR AS THE
23 CONVERSATION THAT TOOK PLACE BETWEEN THE DOCTOR AND THE
24 FAMILY MEMBERS?
25 A. NOT A LONG TIME BUT I COULDN'T TELL YOU THE NUMBER OF
648
1 MINUTES EXACT.
2 Q. WOULD IT BE MORE THAN TEN?
3 A. PROBABLY A LITTLE BIT MORE.
4 Q. DID THE DOCTOR DO ANYTHING IN CONNECTION WITH RENDERING
5 ANY KIND OF CARE OR TREATMENT TO LYDIA DURING THAT TIME
6 PERIOD?
7 A. NO, HE DIDN'T.
8 Q. DID ANYBODY ELSE COME INTO THE ROOM OTHER THAN THE
9 FAMILY MEMBERS AND THE DOCTORS YOU TESTIFIED TO AT THAT
10 TIME?
11 A. HE WAS THE ONLY ONE I REMEMBER BEING THERE EXCEPT FOR
12 THE FAMILY.
13 Q. NOW, DID YOU COME BACK -- OR DID YOU LEAVE THE HOSPITAL
14 THAT NIGHT?
15 A. WE DID LEAVE THE HOSPITAL THAT NIGHT.
16 Q. DID YOU HAVE OCCASION TO RETURN TO THE HOSPITAL?
17 A. I DID. MY DAUGHTER AND I RETURNED THE NEXT MORNING
18 EARLY.
19 Q. APPROXIMATELY WHAT TIME?
20 A. PROBABLY BEFORE 8 O'CLOCK. I KNOW WE WERE GOING ABOUT
21 THE SAME TIME MY HUSBAND WAS GOING TO WORK SO...
22 Q. AND HOW LONG DID YOU REMAIN WITH LYDIA AT THAT TIME?
23 A. I WAS THERE UNTIL 12.
24 Q. AND DURING THAT TIME FRAME THAT YOU WERE THERE, DID YOU
25 OBSERVE ANYBODY ADMINISTER ANY SHOTS OR INJECTIONS TO LYDIA?
649
1 A. YES, A NURSE CAME IN AND GAVE HER A SHOT WHILE I WAS
2 THERE.
3 Q. CAN YOU DESCRIBE FOR US WHAT HER CONDITION WAS AT THE
4 TIME THAT YOU ARRIVED AT THE HOSPITAL THAT MORNING, PHYSICAL
5 CONDITION?
6 A. IT WAS THE SAME AS IT WAS THE NIGHT BEFORE. SHE WAS NOT
7 MOVING, SHE WAS JUST LAYING THERE, SHE WAS BREATHING HEAVY,
8 SHE WAS --
9 Q. BY BREATHING HEAVY, CAN YOU TELL US WHAT YOU MEAN BY
10 THAT?
11 A. LIKE HER BREATHING WAS LABORED.
12 Q. OKAY. AND YOU OBSERVED A NURSE COME IN AND GIVE AN
13 INJECTION?
14 A. YES.
15 Q. DO YOU RECALL APPROXIMATELY WHAT TIME THAT WAS?
16 A. IT WAS THE FIRST PART OF THE MORNING. IT WAS PROBABLY I
17 WOULD SAY BETWEEN 8:30 AND 9, SOMEWHERE RIGHT AROUND IN
18 THERE.
19 Q. DID YOU INQUIRE AS TO WHAT THE INJECTION WAS?
20 A. THE NURSE JUST SAID THAT SHE WAS MAKING HER COMFORTABLE
21 AND THAT -- THAT SHE WAS DYING AND THAT WE SHOULD BE TALKING
22 TO HER BECAUSE SHE COULD HEAR WHAT WE WERE SAYING.
23 Q. MAKING HER COMFORTABLE AND YOU SHOULD BE TALKING TO HER?
24 A. RIGHT.
25 Q. DID YOU PROCEED TO DO THAT?
650
1 A. WE DID.
2 Q. DID SOMEBODY ELSE COME AT NOON?
3 A. YES, MY SISTER-IN-LAW CAME ABOUT NOON.
4 Q. DID YOU LEAVE AT THAT TIME?
5 A. I DID.
6 Q. AND WHO IS YOUR SISTER-IN-LAW?
7 A. BONNA DEL SMITH.
8 Q. THAT MORNING, DID YOU HAVE ANY FURTHER CONTACT WITH DR.
9 WEITZEL?
10 A. NO, I DIDN'T.
11 Q. DID YOU EVER SEE HIM COME INTO THE ROOM?
12 A. I DIDN'T THAT MORNING, NO.
13 MR. WILSON: OKAY. THANK YOU.
14 THE COURT: MR. STIRBA?
15 MR. STIRBA: THANK YOU, YOUR HONOR.
16 CROSS-EXAMINATION
17 BY MR. STIRBA:
18 Q. MS. SMITH, WHEN YOU CAME INTO THE ROOM ON THE 7TH --
19 A. SUNDAY NIGHT.
20 Q. -- WHICH WOULD HAVE BEEN SUNDAY, BEFORE YOU TALKED WITH
21 DR. WEITZEL, DID YOU HAVE OCCASION TO OBSERVE OBVIOUSLY YOUR
22 MOM IN THE BED?
23 A. YES, I DID.
24 Q. AND DID YOU NOTICE ANYTHING AT THAT TIME ABOUT -- THAT
25 YOU WOULD CONSIDER IRREGULAR CONCERNING HER BREATHING?
651
1 A. NOT AT THAT MOMENT, NO. SHE WAS JUST SLEEPING.
2 Q. JUST SLEEPING. AND WERE HER EYES CLOSED?
3 A. YES, THEY WERE.
4 Q. DID YOU NOTICE WHETHER OR NOT SHE HAD ANY DISCOLORATION
5 IN HER HANDS OR AROUND THE EXTREMITIES OF HER BODY?
6 A. NO, I DIDN'T.
7 Q. SO OTHER THAN THE FACT THAT SHE WAS JUST SLEEPING, WAS
8 THERE ANYTHING ELSE ABOUT HER CONDITION THAT YOU WOULD
9 CONSIDER UNUSUAL OR ABNORMAL?
10 A. SHE WAS NOT -- SHE WOULD NOT RESPOND TO ANYTHING. SHE
11 WOULD NOT RESPOND. WE WOULD TALK TO HER, WE WOULD TOUCH
12 HER, SHE DID NOT RESPOND.
13 Q. SO SHE WAS -- SHE WAS SLEEPING AND NONRESPONSIVE; IS
14 THAT RIGHT?
15 A. THAT'S RIGHT.
16 Q. IS THERE ANYTHING ELSE YOU REMEMBER ABOUT HER PHYSICAL
17 CHARACTER AT THAT TIME OTHER THAN WHAT YOU'VE JUST TOLD US?
18 A. AT THAT NIGHT, NO.
19 Q. NOW, JUST SO I HAVE THIS CLEAR IN MY MIND, IF I
20 UNDERSTAND IT, SHE'S ADMITTED ON THE 20TH OF DECEMBER; IS
21 THAT RIGHT?
22 A. YES.
23 Q. AND YOU HAVE OCCASION TO SEE HER ABOUT FIVE OR SIX OR
24 SEVEN TIMES BETWEEN THE 20TH AND THE TIME THAT SHE PASSED
25 AWAY; IS THAT CORRECT?
652
1 A. YES.
2 Q. AND YOUR TESTIMONY ON DIRECT WAS THAT INSOFAR AS HER
3 BEHAVIOR IS CONCERNED, EVERYTHING SEEMED CONSISTENT UNTIL
4 THE DAY BEFORE SHE DIED OR THE TWO DAYS BEFORE SHE DIED; IS
5 THAT RIGHT?
6 A. SATURDAY NIGHT, YES.
7 Q. THAT WOULD BE THE 6TH OF JANUARY OF 1995, TRUE?
8 A. TRUE.
9 Q. AND THE BEHAVIOR THAT YOU SAW UP UNTIL THE 6TH WAS, AS
10 YOU DESCRIBED IT, SHE WAS AGITATED?
11 A. SHE WAS AGITATED, SHE WAS COMBATIVE.
12 Q. COMBATIVE.
13 A. SHE WANTED TO BE RELEASED, SHE WANTED TO GO HOME.
14 Q. IN OTHER WORDS, THE KINDS OF BEHAVIOR THAT YOU HAD SEEN
15 PREVIOUSLY POST THE STROKE; IS THAT RIGHT?
16 A. THAT'S RIGHT, THAT'S RIGHT.
17 Q. AND THEN THERE WAS A SERIOUS AND SIGNIFICANT CHANGE IN
18 HER BEHAVIOR ON THE 6TH; IS THAT RIGHT?
19 A. THAT'S RIGHT.
20 Q. AND IT'S TRUE, IS IT NOT, THAT THEN YOU'RE SAYING THAT
21 YOU WERE TOLD BY SOMEBODY FROM THE HOSPITAL THAT IS A NURSE,
22 THAT DR. WEITZEL WANTED TO SEE YOU SUNDAY EVENING THE 7TH TO
23 TALK TO THE FAMILY; IS THAT RIGHT?
24 A. THAT'S RIGHT.
25 Q. AND IF I UNDERSTAND IT, YOUR TESTIMONY IS THAT HE WANTED
653
1 TO SEE THE FAMILY; IS THAT TRUE?
2 A. THAT'S TRUE.
3 Q. AND SO THE WHOLE FAMILY COMES DOWN TO THE HOSPITAL THE
4 EVENING OF THE 7TH TO SEE DR. WEITZEL, CORRECT?
5 A. CORRECT.
6 Q. AND THE FIRST THING DR. WEITZEL TELLS YOU IS THAT YOUR
7 MOTHER-IN-LAW IS DYING; IS THAT CORRECT?
8 A. THAT IS CORRECT.
9 Q. AND HE TOLD YOU AFTER HE SAID THAT THAT HE COULD KEEP
10 HER COMFORTABLE; IS THAT TRUE?
11 A. HE WOULD MAKE HER COMFORTABLE, YES.
12 Q. AND IF I RECALL, YOU HAD NOT JUST YOURSELF PRESENT BUT
13 YOU HAD ABOUT FIVE OR SIX OTHER FAMILY MEMBERS PRESENT; IS
14 THAT TRUE?
15 A. THERE WERE FOUR OTHER FAMILY MEMBERS THERE.
16 Q. FOUR OTHER FAMILY MEMBERS. AND THEN YOU'VE TESTIFIED
17 THAT YOU WERE THERE, ON DIRECT, YOU HAD A CONVERSATION IT
18 WAS MORE THAN TEN MINUTES, TRUE?
19 A. I SAID THAT HE WAS PROBABLY THERE MORE THAN TEN MINUTES.
20 Q. AND I ASSUME YOU CONVERSED THE WHOLE TIME?
21 A. I DIDN'T CONVERSE THE WHOLE TIME, NO.
22 Q. NO, I UNDERSTAND. THE GROUP, THE FAMILY AND DR.
23 WEITZEL?
24 A. THERE WAS CONVERSATION GOING ON AMONG THE FAMILY MEMBERS
25 PLUS ALSO THERE WAS SOME QUESTIONS ASKED.
654
1 Q. IN OTHER WORDS, DR. WEITZEL WAS PART OF THE
2 CONVERSATION, WASN'T HE?
3 A. YES.
4 Q. HE WASN'T JUST STANDING ASIDE WHILE YOU GUYS WERE
5 TALKING OVER HERE, WAS HE?
6 A. HE WAS NOT RIGHT AMONGST US, NO. HE WAS UP THERE BY
7 HIMSELF. WE WERE TOGETHER AT ONE END.
8 Q. OKAY. BUT IT'S VERY IMPORTANT TO KNOW. YOU ARE SAYING
9 THAT YOU WERE THERE, AT LEAST THE DOCTOR WAS THERE AT LEAST
10 TEN MINUTES, YOU'VE TESTIFIED TO THAT, TRUE?
11 A. TRUE.
12 Q. AND I THINK THIS JURY IS ENTITLED TO KNOW, DID YOU
13 BASICALLY CONVERSE, THAT IS THE GROUP, THE FAMILY GROUP WITH
14 DR. WEITZEL FOR AT LEAST THE TEN MINUTES THAT HE WAS THERE?
15 A. PROBABLY SO.
16 Q. AND YOU STATED WHAT YOU UNDERSTOOD HE SAID ABOUT YOUR
17 MOTHER-IN-LAW BEING A CRABBY OLD LADY, DID I GET THAT RIGHT?
18 A. YOU GOT THAT RIGHT.
19 Q. AND YOU WANT THIS JURY TO BELIEVE THAT HE CALLED THE
20 FAMILY IN, FIVE FAMILY MEMBERS THERE, TALK TO YOU ABOUT THE
21 FACT THAT YOUR MOTHER-IN-LAW WAS DYING, AND HE WAS GOING TO
22 KEEP HIM (SIC) COMFORTABLE AND HE MADE THAT COMMENT TO YOU
23 IN THAT CONVERSATION?
24 A. YES. I WILL STATE THAT AGAIN, YES, HE DID.
25 MR. STIRBA: THAT'S ALL I HAVE, YOUR HONOR.
655
1 THE COURT: ANY REDIRECT?
2 MR. WILSON: JUST ONE QUESTION.
3 REDIRECT EXAMINATION
4 BY MR. WILSON:
5 Q. DID YOU HAVE OCCASION AFTER LEAVING THE HOSPITAL TO TALK
6 ABOUT WHAT YOU HAD HEARD FROM DR. WEITZEL WITH ANYONE?
7 A. YES, I DID.
8 Q. AND WHO WAS THAT?
9 A. I TALKED TO MY HUSBAND ABOUT IT.
10 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT,
11 IT'S --
12 Q. (BY MR. WILSON) WHERE DID THAT CONVERSATION --
13 MR. STIRBA: I'M GOING TO OBJECT. IT'S HEARSAY,
14 YOUR HONOR.
15 MR. WILSON: I'M NOT GOING TO ASK HER WHAT SHE SAID
16 TO HER HUSBAND. I'M JUST ASKING IF SHE HAD AN OPPORTUNITY
17 TO SPEAK WITH HER HUSBAND ABOUT IT.
18 MR. STIRBA: IT'S HEARSAY.
19 MR. WILSON: HOW IS THAT HEARSAY?
20 THE COURT: OKAY. HOW IS THIS -- OKAY. ARE WE
21 GOING BEYOND THE SCOPE OF CROSS-EXAMINATION?
22 MR. WILSON: WELL, I GUESS I CAN RECALL HER ON
23 DIRECT, YOUR HONOR. I JUST WANTED TO ASK HER THAT ONE LAST
24 QUESTION, IF SHE HAD AN OPPORTUNITY TO SPEAK WITH HER
25 HUSBAND.
656
1 THE COURT: OKAY. SHE'S ANSWERED YES.
2 MR. WILSON: OKAY.
3 THE COURT: OKAY. YOU -- MAY THIS WITNESS BE
4 EXCUSED?
5 MR. WILSON: SHE MAY, YOUR HONOR. WE'D ASK THAT
6 SHE BE EXCUSED.
7 THE COURT: OKAY.