Following is the actual trial testimony from the patient, Kelli Flood. Names changed on most of the participants. First is the ‘direct’ by the plaintiff attorney, then the ‘cross’ by the defense attorney, then the ‘redirects’ by the plaintiff attorney:
TUESDAY, JANUARY 21, 2003
THE COURT: Welcome back. Today is the 21st day of January, 2003. The parties are all present and represented.
Ladies and gentlemen of the jury, again, welcome back from the long weekend. I hope you had a nice restful weekend. We’ll get started here
in a minute. I did want to explain one thing to you. As you might have already observed as you came in, the neurologist is no longer in this case. You are not to speculate as to his absence or infer anything from the fact that he is no longer in this case. The defendants, remain, and you are to continue to consider this case as it relates to them only.
So, with that, we’ll get started. We’re still in the Plaintiffs’ presentation of their case. Plaintiff attorney, your next witness?
PLAINTIFF ATTORNEY: Thank you, your Honor. We would call Kelli Flood to the stand.
BAILIFF: I can move the table there and then put that microphone on there.
THE COURT: Why don’t we do that? Maybe that’s a little better and then she won’t have to stretch.
WHEREUPON, called to appear as a witness in this proceeding was Kelli Flood who, having been duly sworn by the bailiff herein, testified as follows:
THE COURT: Plaintiff attorney?
BY PLAINTIFF ATTORNEY:
Q Kelli, I’d like to ask you some questions so the jury gets to know you a little bit better. Would you state your name?
A My name is Kelli J. Flood.
Q And where do you live?
I live in Small Town, Ohio. My address is 4567 East West Street.
Q Okay. You’re married to Shane Flood?
A Yes, I am.
Q And you have three children?
A Yes, I do.
Q How old are they?
A 15, 8, and 3 1/2
Q And how old are you, Kelli?
A I’m thirty-six.
Q How did you get to know Shane, your husband?
A Well, I worked with him. We were really good friends. Then I quit my job and he called me up one day and asked me out on a date.
Q Have all three of your children always been in your custody?
Q And have there been times when you have been a single parent with the older two children?
A I’m not sure about what you’re asking.
Q Okay. Well, are there times that you raised them as a single mother?
Q You gave birth to Jacob on July 30th, 1999?
Q Would you tell us what job you were doing at the time?
A I was an account representative for Stem Outdoor Advertising.
Q Okay. If we would watch you doing your job, what would we see you doing?
A I would be selling billboards.
Q Okay. How long had you been working for Stem approximately?
A Approximately a little over two years.
Q And were you working before that?
A Yes, I was.I was selling insurance.
Q Okay. We have submitted your tax returns and wage information to a Doctor Ralston, an economist, to review; is that correct?
Q Including fringe benefits that you received from work?
Q I’d like to summarize and see if these figures are approximately correct from what were submitted. In 1999, from July (sic) 1 until 7-12-99 when you took off for pregnancy, your wages in ’99 for a little over a half year were twenty-four thousand nine hundred and thirty-three dollars and sixty-nine cents?
A That sounds right.
Q In 1998 your wages were forty-five thousand three hundred and sixty dollars?
A That sounds right.
Q In 1997 your wages were thirty-four thousand eight hundred and
Q In 1996 your wages – excuse me – in 1996 your wages were fifty-four thousand one ninety-nine fifty-six?
Q And in 1995 your wages were thirty-one thousand two hundred and twenty-eight dollars and sixty-seven cents?
Q Okay. You also had some other fringe benefits which Doctor Ralston will evaluate, to the best of your knowledge?
Q Okay. Are both of your parents still living?
A Yes, they are.
Q And how close do they live to you?
A They live approximately sixteen miles away from me.
Q Is it sixty, or sixteen?
Q Kelli, I’d like to ask you some questions about how you’re doing and how you’re family is involved in your life now; okay?
Q Would you generally describe your family and how it’s functioning, in broad terms?
A I feel that we’re very close. Do you mean my parents and I?
Q No. I mean, — well, your parents and you are close. Well, what about you, and Shane, and the kids?
A We’re a close family.
Q Okay. Could you describe that a little bit?
A I’m not understanding what you’re asking.
Q Let me see if I can break it down a little bit. As to Jacob, would you describe Jacob for us?
A He’s a wonderful little boy. He’s three and a half. He is extremely active. He’s just — I can’t say enough about him. I’m a very proud mother.
Q Okay. He was born entirely healthy?
A Oh, yes.
Q Okay. And he has no health problems?
Q What are some of the things that you like to do with Jacob?
A I like to play Leap Frog with him. If you have children you’ll understand. It’s a computer game. It has a required chip that is in it and, well, it doesn’t matter, but I like to play Leap Frog with him. I like to help him count and teach him his alphabet. I like to play This Little Piggy with him. He climbs up and sits on my lap. I let him brush my hair. That’s the kind of stuff that we do.
Q Are there times that you just like to watch him?
A Yes, there are.
Q What are some of the things that Jacob likes to do with you?
A He likes to read to me. He can’t read, but he likes to tell me stories that he makes up. He pretends. He likes to help me with anything that I ask him to do. If I ask him to get mommy a drink of water, ‘would you, Jacob’, he’ll run and get it. If I need a Kleenex, he runs and gets it.
Q Does Jacob love you?
A Yes, he does.
Q How do you know that?
A Because he tells me so. He throws his arms around my neck and says, “Mommy, I love you.”
Q Do you love him?
Q And how do you show him that?
A I hug him and I give him kisses, like any other parent.
Q Do you think you’ve been helpful in the raising of Jacob?
A I’d like to believe so. I think I have been.
Q There’s no doubt in your mind that he knows his mom loves him?
A Oh, yes, there’s none.
Q Tell us a little about your daughter.
A She’s eight. She’s very jabbery. She likes to talk all the time. In fact, I can’t get a word in edgewise. She’s a very petite little girl. She’s a joy. She’s
a pure joy.
Q Okay. What are some of the things that you like to do with each other?
A I help her with her homework. She reads to me. Her homework sometimes has to be checked by Shane because I can’t see it very well. I’m talking about her math stuff, her math homework. He does do that. But, you asked me what I like to do with her. I like to play games with her. She climbs up on my lap. I sit in the recliner and we play Pretty Princess. We play cards and that kind of stuff.
Q Okay. Do you two talk about things? You’re making me cough, too. Excuse me.
A That’s all right.
Q Do you talk about things?
A Oh, yes.
Q What are some of the things that you talk about?
A Everything. We talk about everything. We talk about how she’s doing in school and what her friends are like. You can’t believe — we just go from one end of the spectrum to the other.
Q Is it fun?
A Yes, it is. She’s a joy.
Q How is she doing?
A I think she’s doing okay so far.
Q Does she seem happy?
A Yes, she is. She’s a happy little girl.
Q Does she seem well-adjusted?
A Yes, she is.
Q Is she doing well in school?
A Yes. She has straight A’s and B’s.
Q Is there anything that you do to show her that you’re proud when she gets good grades, or anything like that?
A I tell her. I hug her and kiss her. For every A that she gets she gets a dollar. I don’t want to say that we reward her with money, but she has to know the value of money and I think that I’m helping to teach her.
Q Okay. Do you think you’re a help to her then?
A Yes, I do.
Q Okay. And is she a help to you?
A Yes, she is.
Q How is she a help to you?
A I have a thing that my pills are set out in, like for the whole week. She gets me those. I get them out and take them. She helps me when my feet kick out. I have a lot of spasms and they’re always kicking out. So, she helps me put them back. She also runs and gets me whatever I need. But, more than just that, her and I talk to one another, just like any other mother and daughter.
Q Does she love you?
A Yes, she does.
Q And you love her?
A Yes, I do.
Q Tell me about your oldest daughter.
A She’s fifteen. She’s angry at me part of the time. She says that she blames me in one breath because she remembers the way I was before and she doesn’t understand. She gets frustrated very easily with me. But, in the next breath, she says, “I’m sorry and I love you, mom.” So, I mean, she’s fifteen. She’s a teenager.
Q What are some of the things that she likes to do?
A She likes to listen to her C.D. player. Music is a real big thing with her. She wants to get her permit to drive.
Q How would you describe your relationship with her?
A I love her dearly and I believe that she loves me. I feel that we’re close.
Q When she has these times where she seems to, I guess, talk back as to your situation how do you react to that?
A Well, we fight. I do the best that I can as far as discipline goes but, let’s face it, I can’t enforce much. However, I do talk to her and I make her talk to me. Even when she’s angry with me — it’s all out of love.
Q Why do you make her talk to you?
A Because I think that she is so frustrated that she needs someone to just talk to and to let it out.
Q All right. Tell us some of the good times that you have with her, the happy times when things are going good and it’s a nice, smooth time. Does she help around the house?
A Yes, she does.
Q What are some of the things she does?
A Well, she made dinner for all of us the other day. We had spaghetti and garlic sticks, or, breadsticks. It was really very good.
Q Okay. Is there other things she would do that a fifteen year old girl would do?
A Well, I make her clean her room. It’s a constant battle.
Q Okay. Do you know she loves you?
A Yes, I know she loves me.
Q And how do you know that?
A Even when we’re fighting — I just know. She tells me that she does. I just know in my heart that my daughter loves me.
Q And you love her?
Q Okay. Apart from you and your relationship with your kids, I’d like to ask you a couple of questions about the kids themselves. Do the kids play with each other?
Q What are some of the things that they play with each other all by themselves?
A Well, they play and then they bicker and fight like normal kids do.
Q Okay. Continue. What about some other things, some outside things?
A Well, they haven’t been outside recently. We would go to the pool. Even I would go, even in my wheelchair, and Shane would put me in the pool. We would all be there together.
Q You said the kids fight?
A Yes, just like normal kids.
Q Okay. What are some of the things they fight about?
A Well, Jacob takes something that doesn’t belong to him and he’s screaming ‘mine, mine, mine’, and the other kids tell Jake that it’s not his. So, the fight’s on.
Q Do they also, at times, help each other and share like normal brothers and sisters?
A Oh, yes. They tell each other that they love one another all the time.
Q You’ve had some devastating injuries occur to you.
Q The pain doctor described your pain as being present twenty-four hours a day, seven days a week. Is that correct?
Q But, you have a family and the family is functionally in love with each other, even with a teenage girl, it sounds like.
Q Shane has two children?
Q Okay. Could you explain when they come over and what role they have in the family?
A They come every other weekend.
Q Okay. A . They’re my son and daughter, too. I don’t think of them any other way. Shane and I decided when we got married that his kids were mine, and my kids were his. That’s the way it was going to be. That’s the way that we conduct ourselves.
Q Okay. So, they get in and they like each other and fight with each other?
A Oh, yes.
Q All those things?
Q Are there some things that despite what’s happened to you you’ve come to appreciate that people may not realize?
A I appreciate God just letting me be alive. I appreciate my mother and father.
Q What have they done for you?
A Everything. I appreciate Shane because he does absolutely everything for me. I wouldn’t be here without him. He never left me the whole time I was in the hospital. He’s my best friend. I love him very much.
Q Tell us about your left arm. Are you appreciative of being able to use that?
Q Some people who are quadriplegic can’t use their arm. You’re aware of that?
Q What advantages do you have of being able to use your arm? Would you tell us some of the things you can do with it?
A I can at least feed myself. I can brush my own teeth. I can brush my hair. I try to brush my daughter, Sarah’s, hair. It’s easier since she got it cut. It was really long before, until she got it cut, and so it’s real easy now to brush. I appreciate everything that people do for me. All the prayers. They don’t have to say prayers for me, but they do.
Q Okay. Is there anything about the children that comes to mind?
A Well, I appreciate all three of them for being my kids.
Q You talked a little bit about your mother and father, who have helped you. You’re a mom. I guess is your mom still your mom?
A Yes, she is.
Q Okay. Would you tell us a little bit about what she has done?
A Well, she makes sure that the laundry is done. She comes every Tuesday and stays with me and we visit. She is — well, Shane’s my best friend, but mom’s my next second. I mean, you can’t separate that. It’s very hard to do. She’s also my best friend because she’s a comfort to me because she understands. I’ve been through so much and she’s been right there with me.
Q I’d like to ask you some questions about Shane and you; okay?
Q You’ve described him some. Do you think you’ve described him well enough so people know him?
A They can’t know how wonderful he really is.
Q Why don’t you explain that a little bit further then?
A He is a wonderful father to all of our children. He is a good provider. He works nights and so if he looks tired you’ll have to understand. Well, maybe you don’t. He’s still working currently. I mean, he’s sitting over there, but he worked last night. He gives me a bath. He just is my whole world. I don’t know what I would do without him.
Q What do you do for Shane?
A Well, I hope that I’m his best friend. I give him love. I support him no matter what. I try to be affectionate with him. I try to — well, I kiss and hug him. We make decisions together, whether it be about the kids or financial decisions. We share that. We share everything.
Q Okay. You were married to him on October 28th, 1998?
Q Did you extend to each other the traditional vows of having to hold from this day forward, for better or for worse, and in sickness and in health?
Q The traditional one?
Q It’s probably the most common. Has he lived up to that?
A He’s exceeded it.
Q You mentioned some things he’s done for you. Would you just briefly describe, sort of in categories, other things that he’s done for you or the children?
A Well, he’s driven me to all of my medical doctors’ appointments. He makes sure that the kids are extremely active in sports. He is a sports nut. Anyhow, all the kids play softball. He coaches the kids team.
Q Who does the feeding?
A Excuse me?
Q Who feeds the children?
A Shane does. Shane cooks their meals, whether it be breakfast, lunch, or supper. He cooks and fixes all the food in the house. I sit out in the kitchen and talk with him. I try to teach him how to cook new stuff, you know, out of my recipe books. I explain and he does it great.
Q Who does like the feeding, clothing, and bathing of Jacob? Well, he’s three and a half now and so I assume he can do some of that. Does he do those kinds of things?
A Yes, Shane does. Shane, in fact, bathes — well, I’m not talking about the girls
Q Has he helped you with exercises, physical therapy, and occupational type things at home?
Q Does he do the bulk of the housework, except for when your mom is involved?
A Yes. When mom comes on Tuesdays she does as much of it as she can. But, she also has a job. Shane vacuums. He dusts. It’s not like I would do, but he does very well.
Q Okay. I’m not going to go into all the things that he did for you, and has done for you.
Q Does he love you?
A Yes, I believe he does.
Q And how has he shown that?
A He hugs and kisses me. He gives me support. He holds me when I need a hug or to be held.
Q Sometimes you need that. Okay. Do you show him — well, I think we’ve covered that. You’re both husband and wife, but you’ve remained good friends and companions as well?
Q You two have been attempting to raise a family?
A We’ve done the best we can.
Q In summary, how would you describe your family just generally through this phase in the last year or so on how they’ve gotten along?
A Struggling. However, we’ve done the best we can under the circumstances.
Q Okay. What are some of the things you think about?
A What do you mean?
Q What do you think about? Do you have thoughts about your family, or about your situation, or your injuries?
A Well, I hope and pray that I’m getting better – that I’m going to get better. You never give up hope.
Q Do you ever have concerns as to whether you’re letting your family down, or not?
A Yes, all the time. I feel like I’m failing them.
Q But, they’ve been there for you. When you feel that way they try to help you get out of that way?
Q What do you look forward to?
A I look forward to watching my family grow and age. I look forward to ten years down the road, like any other person.
A I look forward to grandchildren. I don’t know what else to say.
Q Okay. You’ve seen a lot of doctors over the last three and a half years or so; is that correct?
Q Has there been a doctor that you have seen that was requested by the defense in this lawsuit for you to be examined?
A Yes. I went to Cleveland at the request of —
Q The defense?
A Yes. It was to see their specialist.
Q And did he have your medical records?
Q And did he do an exam on you?
A Oh, yes, a very thorough exam.
Q How long did the exam take?
A Over two hours.
Q Kelli, I’d like to turn to the time after Jacob was born and you were headed to the ER on August 8th.
Q Do you know which one August 8th is?
A Is it the first one?
Q Yes, it’s the first one. It was the first visit there. Would you tell us why you went there?
A I had the worst headache of my life. That was it.
Q What did it feel like?
A It’s undescribable (sic) how it felt. I thought my head was going to come off, or split in two. It just was the worst.
Q Was there anything else in your life to compare to that headache?
A No; nothing.
Q Did you have some earlier headaches in the week after you were discharged from the hospital?
A Yes, but that, by far, was the worst. That’s why I went to the emergency room. That’s why I asked Shane to take me to the emergency room.
Q Okay. Did you see a doctor there?
Q And did he look at you and have you perform a CAT scan?
A Yes, I believe so.
Q Okay. What did he indicate to you?
A That I had sinusitis.
Q Was that after you came back from the CAT scan?
A Yes. After he got done with his examination, well, that’s when he was talking to me and that’s what the paper said.
Q Did he then give you some medicine?
A Yes. He gave me a shot. I think it was Demerol and Phenergen.
Q Okay. Did that help?
A Yes, but it didn’t take my headache away, but it did help a lot.
Q What did the doctor tell you about what to do? Did he send you home then?
A Yes. He discharged me.
Q With a prescription?
Q What did he indicate, if anything?
A If it wasn’t better, to come back. I think he said in like three days if it wasn’t better I should return. I’m not sure whether it was two or three days. But, that’s what it was.
Q Okay. What happened on the next day, the following day?
A Shane and I did some errands. We had Jacob with us. Then we came back. My headache started to get worse. I fixed dinner. I fixed my family dinner, but I didn’t eat anything because I just couldn’t. Then I tried to lay down to help my head. Then I said, “Shane, would you please run me a bath?” He did.
Q Then what happened?
A I went into the bedroom, because that’s where Jake was, and I couldn’t see him. I yelled for Shane and I said, “Shane, I can’t see the baby.” He came. I said, “For that matter, I can’t see you.” I rubbed my fingers together clear up by my face and I couldn’t see them. So, I sat down on the steps of the bathroom and I just don’t remember anything else. That’s as far as I go.
Q Did you ever get into the water, or near the water?
A No. I didn’t even undress.
Q When is the next time that you can remember something?
A I have little bits of times. I don’t want to say, because I can’t be sure, but I think that it was at [the next] Hospital. But, it’s too cloudy to say. I mean, it just —
Q Okay. Do you remember seeing your parents there?
Q Do you remember seeing your kids there?
Q Do you remember being concerned about driving a car?
Q If he did see you, you just don’t recall?
A No. I have no memory of it at all.
PLAINTIFF ATTORNEY: May I have a moment with counsel, your Honor?
THE COURT: Sure.
(WHEREUPON, Court went off the record briefly.)
Q Okay. Kelli, that’s all the questions I have. They may be asking you some questions; okay?
THE COURT: Mr. Huffman?
MR. HUFFMAN: Thanks, Judge.
BY MR. HUFFMAN:
Q Just a couple of questions, Mrs. Flood. Any time you feel like you want to take a break, well, if you would say so we can certainly do that. Mrs. Flood, from the time Jacob was born until you went to the emergency room the first time you had had some episodes of some headaches during that time? Is that what I understand from your testimony?
A Yes. But, they weren’t as severe.
A I was at home. My mom was still there. But, they were nothing like what sent me to the E.R.
Q There’s been some evidence, and I’m not sure whether you were here, that on one occasion between the time of the birth of Jacob and the time you went to the emergency room the first time that you may have called the OB’s office. Do you recall that at all? It was about a prescription for, well,
I’m not sure what.
A Yes. I didn’t talk to the doctor. I talked to his nurse. She gave me a prescription. I believe it was for Amoxicillin.
Q Okay. Did you take the prescription?
A I don’t remember, honestly.
Q Okay. What were the symptoms that you had which caused you to call Doctor OB?
A Just plain old congestion.
Q Sort of like we all get in the wintertime – that kind of thing?
A Just congestion. A cough.
Q Nasal congestion and cough?
A Just a cough.
Q Okay. I assume you remember when your deposition was taken in this case? Do you?
Q You talked at that time about being able to do some work on the computer. Are you still able to do that?
Q I’m not computer literate myself, but are you getting better at it?
A I’d like to think so.
Q Were you computer literate before these events?
A Yes. Yes, I was.
Q Okay. And you have a computer at home; do you?
A Yes. But, it’s got a special keyboard. It’s one that is adaptable to me. I can’t get under the computer desk and so it’s very inconvenient. It causes me a lot of discomfort when I use the keyboard.
Q You’re able to watch television; are you?
Q In the medical records I believe a nurse’s note, which may have been referred to here before, there is an indication that Doctor OB, and this would be right before you were transferred down to Columbus, had a discussion with you and Shane regarding whether or not he anticipated that you would make a full recovery or would have any brain damage. Do you recall that conversation at all?
Q Okay. You do some therapy at home; do you not?
Q I wonder if you would just describe the therapy that you do at home. What do you do?
A Well, I lift weights with my left arm. With Shane’s help I do, or, I stand and do scrunches – when you bend your knees and squat down and then push myself back up.
Q Okay. I’m not much of a weightlifter myself, but do you do that with a bar across your shoulders?
A No. It’s just with hand weights.
Q Okay. So, you’re able to do how many reps.?
A Oh, I do fifty a couple of times.
A Yes, with my left arm.
Q Okay. I didn’t think you were doing fifty reps. on the squats. About how many of those can you do?
A Not as many. I can do five.
Q Okay. I wasn’t quite sure whether you remembered a conversation in the hospital with regard to whether or not you would be able to drive again.
A I don’t have any memory of that.
Q Okay. As I understood your testimony at your deposition and here again today, after this event at home when you couldn’t see the baby, well, the next recollection you have is being in the hospital at St. Rita’s here in Lima?
Q Okay. And you have no recollection of Shane’s parents, or, your family members coming into the hospital?
Q Okay. Or the other doctors?
Q Mr. Flood is working? He’s employed now; is he?
Q Do you folks have any other income?
Q What other income do you have?
PLAINTIFF ATTORNEY: Objection.
THE COURT: There’s an objection. What’s the basis?
PLAINTIFF ATTORNEY: It’s collateral source information, your Honor.
THE COURT: Why don’t counsel approach because I didn’t hear your objection that well.
(WHEREUPON, Court and counsel had a brief discussion at the Bench, on the record, as follows.)
PLAINTIFF ATTORNEY: It’s collateral source information. He’s trying to get it in through other sources. They’re not to consider it.
MR. HUFFMAN: It may be social security income or some other income of that kind.
THE COURT: Okay. I’m going to overrule the objection and allow you to go there. But, don’t go into it deeply. If we have to, I can instruct the jury.
PLAINTIFF ATTORNEY: May I have a continuing objection?
THE COURT: Okay.
(WHEREUPON, Court continued on the record, as follows.)
Q What other income do you folks have, Mrs. Flood?
A I get S.S.D.I.
Q How much is that?
Q The best you can do.
A I think just a hair under two thousand a month.
Q Okay. I think that’s all. Thank you very much.
THE COURT: Any redirect?
PLAINTIFF ATTORNEY: Yes, your Honor.
BY PLAINTIFF ATTORNEY:
Q Kelli, all through this pregnancy you did not have severe headaches?
Q Do you recall even having headaches?
Q Okay. I’d like you to assume that Doctor OB has testified and put in a two page chart as to chest congestion and sore throat types of things. If the record would show that on June 8th of ’99, about two months before this, that you felt miserable and were coughing, would that be consistent with your memory?
A Yes, it would.
Q In April of ’99 you were given Amoxicillin for a sore throat and a possible sinus infection?
A I remember having a sore throat.
Q Okay. In February of ’99, severe sore throat – Amoxicillin.
A Sounds right.
Q If the doctor’s records on 8-5-99 indicate, and it doesn’t say who the doctor is, ‘that the patient called complaining of cough and chest congestion and was given Amoxicillin, five hundred milligrams, – well, is that consistent with your memory?
A Yes, it is.
Q You have had off and on congestion, sort of like you do today?
Q Okay. You do not have a headache today?
Q Your head does not feel like it’s going to explode?
A It doesn’t hurt at all.
Q That’s something that only happened in early August of ’99 for the first time when you had a headache of that type and to that degree?
A When I went to the E.R.
Q I don’t believe I have anything further.
THE COURT: Any recross?
MR. HUFFMAN: No, sir. Thank you.
THE COURT: Okay. Thank you, Mrs. Flood. Your next witness will be?
MR. MERTZ: Doctor Ralston, your Honor.
THE COURT: He’ll probably be a little longer; you think? Let’s take a short break. It’s an early break, but it’s in anticipation that his testimony might take us to lunch. Who knows? We’ll take a break, ladies and gentlemen of the jury. Remember the admonitions that I repeated several times last week. Don’t discuss the case among yourselves or with anyone else. Don’t reach any conclusions or do any deliberating until you’ve heard all of the evidence and gotten the instructions of law. So, we’ll stand in recess for about ten minutes and then we’ll resume.
(WHEREUPON, Court was in recess)