Filing # 112585934 E-Filed 08/28/2020 06:42:37 PM
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
RON DESANTIS, in his official capacity as Governor of the State of Florida, RICHARD CORCORAN, in his official DCA Case No. 1D20-2470 capacity as Florida Commissioner of L.T. Case No.: 2020-CA-001450 Education, FLORIDA DEPARTMENT OF EDUCATION, and FLORIDA BOARD OF EDUCATION,
Appellants/Defendants, vs.
FLORIDA EDUCATION ASSOCIATION, STEPHANIE BETH MILLER, LADARA ROYAL, MINDY FESTGE, VICTORIA DUBLINO-HENJES, ANDRES HENJES, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., AND NAACP FLORIDA STATE CONFERENCE,
Appellees/Plaintiffs. /
SUPPLEMENTAL1 APPENDIX TO RESPONSE IN OPPOSITION TO EMERGENCY MOTION TO REINSTATE AUTOMATIC STAY
KATHERINE E. GIDDINGS, BCS GERALD B. COPE, JR. (251364) (949396) [email protected] [email protected] [email protected]
RECEIVED, 08/28/2020 06:44:40 PM, Clerk, First District Court of Appeal KRISTEN M. FIORE, BCS (25766) Akerman LLP [email protected] Three Brickell City Centre [email protected] 98 Southeast Seventh St., Suite 1600 [email protected] Miami, FL 33131-1714 Akerman LLP Telephone: (305) 374-5600
1 The appendix is supplemented to include the August 19 and 20, 2020 hearing transcripts volumes 1 - 6.
0001 201 E. Park Ave., Suite 300 Facsimile: (305) 374-5095 Tallahassee, Florida 32301 Telephone: (850) 224-9634 RYAN D. O’CONNOR (106132) Facsimile: (850) 222-0103 [email protected] [email protected] Akerman LLP 420 S. Orange Avenue, Suite 1200 Orlando, FL 32801 Telephone: (407) 419-8418 Facsimile: (407) 813-6610
Attorneys for Appellees/Plaintiffs
0002 INDEX TO SUPPLEMENTAL APPENDIX TO RESPONSE OPPOSITION TO EMERGENCY MOTION TO REINSTATE AUTOMATIC STAY
Page(s)
Coversheet ...... 1 - 2
Index ...... 3
Certificate of Service ...... 4 - 5
August 19, 2020 Hearing Transcript Volume 1 ...... 6 - 253
August 19, 2020 Hearing Transcript Volume 2 ...... 254 - 387
August 19, 2020 Hearing Transcript Volume 3 ...... 389 - 545
August 20, 2020 Hearing Transcript Volume 4 ...... 546 - 786
August 20, 2020 Hearing Transcript Volume 5 ...... 787 - 998
August 20, 2020 Hearing Transcript Volume 6 ...... 999 - 1073
0003 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 28th day of August 2020 a true and correct copy of the foregoing document was furnished by E-Mail to all parties below and a copy of the thumb-nail drive was delivered to the Court and opposing counsel.
David M. Wells, Esq. Kendall B. Coffey, Esq. Nathan W. Hill, Esq. Josefina M. Aguila, Esq. Kenneth B. Bell, Esq. Scott A. Hiaasen, Esq. Lauren v. Purdy, Esq. Coffey Burlington, P.L. Gunster, Yoakley & Stewart, P.A. 2601 S. Bayshore Drive Ph 1 200 So. Orange Ave., Suite 1400 Miami, FL 333133-5460 Orlando, FL 32801 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Trial Counsel for Appellees [email protected] Counsel for Petitioners Lucia Piva, Esq. Mark Richard, Esq. Joseph W. Jacquot, Esq. Kathleen M. Phillips, Esq. General Counsel Phillips, Richard & Rind, P.A. Raymond F. Treadwell, Esq. 9360 SW 72nd Street, Suite 283 Deputy General Counsel Miami, FL 33173 Joshua E. Pratt, Esq. [email protected] Assistant General Counsel [email protected] Executive Office of [email protected] Governor Ron DeSantis Trial Counsel for Appellees Office of General Counsel The Capitol, PL-5 Kimberly C. Menchion, Esq.
0004 400 S. Monroe Street Florida Education Association Tallahassee, FL 32399 213 S. Adams Street [email protected] Tallahassee, FL 32302 [email protected] [email protected] [email protected] Trial Counsel for Appellees [email protected] Counsel for Governor Ron DeSantis Ronald G. Meyer, Esq. Meyer, Brooks, Blohm and Hearn, P.A. P.O. Box 1547 Tallahassee, FL 32302 [email protected] Trial Counsel for Appellees
/s/ Katherine E. Giddings KATHERINE E. GIDDINGS, BCS
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0006[SISISI.] IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT · · · · · IN AND FOR LEON COUNTY, FLORIDA
______
· · · · · · · CASE NO.:· 2020 CA 1450
FLORIDA EDUCATION ASSOCIATION; STEFANIE BETH MILLER, LADARA ROYAL; MINDY FESTGE; VICTORIA DUBLINO-HENJES; and ANDRES HENJES,
· · · · · · · ·Plaintiffs, vs.
RON DESANTIS, in his official capacity as Governor of the State of Florida; RICHARD CORCORAN, in his official capacity as Florida Commissioner of Education; FLORIDA DEPARTMENT OF EDUCATION; and FLORIDA BOARD of EDUCATION,
· · · · · · · ·Defendants. ______/
· · · · · (Consolidated with:)
0007 Page 2 · · · · · · · ·CASE NO.:· 2020 CA 1467
MONIQUE BELLEFLEUR, individually and on behalf of D.B. Jr., M.B., and D.B. and KATHRYN HAMMOND, ASHLEY MONROE, and JAMES LIS, · · · · · · · ·Plaintiffs, vs. RON DESANTIS, Governor of Florida, in his official capacity as Chief Executive Officer of the State of Florida, ANDY TUCK, in his official capacity as the chair of the State Board of Education, STATE BOARD of EDUCATION, RICHARD CORCORAN, in his official capacity as Commissioner of the Florida Department of Education, FLORIDA DEPARTMENT OF EDUCATION, JACOB OLIVA, in his official capacity as Chancellor, Division of Public Schools, TERESA JACOBS, in her official capacity as the chair of the SCHOOL BOARD OF ORANGE COUNTY, BARBARA JENKINS, in her official capacity as the Superintendent of Orange County Public Schools, and ORANGE COUNTY PUBLIC SCHOOLS, · · · · · · · Defendants.
______/
· TRANSCRIPT OF WEB CONFERENCE HEARING PROCEEDINGS · · PLAINTIFFS' EXPEDITED MOTION FOR TEMPORARY · · · · · · · · · · ·INJUNCTION
· · · · · · · VOLUME 1 (Pages 1 - 192)
· ·DATE TAKEN:· Wednesday, August 19th, 2020 · ·TIME:· · · · 8:42 a.m. to 12:20 p.m. · ·PLACE:· · · ·Leon County Courthouse · · · · · · · · 301 South Monroe Street · · · · · · · · Tallahassee, Florida 32301 · ·BEFORE:· · · Charles Dodson, Circuit Judge · · · · · · · · · · ·(via Zoom)
· · ·This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were stenographically reported via Zoom by:
· · · · · ·MaryKay Horvath, RPR, CRR, FPR · · · · · · Certified Realtime Reporter
Job No.: 151241
0008 Page 3 ·1· ·APPEARANCES: (all appearing via videoconference)
·2· ·On behalf of Plaintiffs Florida Education · · ·Association, Stefanie Beth Miller, Ladara Royal, ·3· ·Mindy Festge, Victoria Dublino-Henjes, and Andres · · ·Henjes: ·4 · · · · · MEYER, BROOKS, BLOHM & HEARN, P.A. ·5· · · · 131 North Gadsden Street · · · · · Post Office Box 1547 ·6· · · · Tallahassee, Florida 32301 · · · · · (850)878-5212 ·7· · · · BY:· RONALD G. MEYER, ESQ. · · · · · [email protected] ·8
·9· · · · COFFEY BURLINGTON, P.L. · · · · · 2601 South Bayshore Drive 10· · · · Penthouse · · · · · Miami, Florida 33133 11· · · · (305)858-2900 · · · · · BY:· KENDALL B. COFFEY, ESQ. 12· · · · [email protected] · · · · · · · ·JOSEFINA M. AGUILA, ESQ. 13· · · · [email protected] · · · · · · · ·SCOTT A. HIAASEN, ESQ. 14· · · · [email protected]
15· · · · PHILLIPS & RICHARD, P.A. · · · · · 9360 Southwest 72nd Street 16· · · · Suite 283 · · · · · Miami, Florida 33173 17· · · · (305)412-8322 · · · · · BY:· MARK H. RICHARD, ESQ. 18· · · · [email protected]
19· · · · FLORIDA EDUCATION ASSOCIATION · · · · · 213 South Adams Street 20· · · · Tallahassee, Florida 32301 · · · · · (850)201-3382 21· · · · BY:· KIMBERLY C. MENCHION, ESQ. · · · · · [email protected] 22
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0009 Page 4 ·1· ·APPEARANCES (Continued):
·2· ·On behalf of Defendants:
·3· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 225 Water Street ·4· · · · Suite 1750 · · · · · Jacksonville, Florida 32202 ·5· · · · (904)354-1980 · · · · · BY:· DAVID M. WELLS, ESQ. ·6· · · · [email protected]
·7· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 200 South Orange Avenue ·8· · · · Suite 1400 · · · · · Florida Orlando, Florida 32801 ·9· · · · (407)648-5077 · · · · · BY:· NATHAN W. HILL, ESQ. 10· · · · [email protected]
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12· ·ALSO PRESENT:· Aly Logan · · · · · · · · · · Kelly Vance 13
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0010 Page 5 ·1· · · · · · · · · · · · I N D E X
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·3· ·Proceedings· · · · · · · · · · · · · · · · ·Page
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·5· · · · · · · ·VOLUME 1 (Pages 1 - 192)
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·7· ·Opening Statement· ·Mr. Coffey· · · · · · · · ·9
·8· ·Opening Statement· ·Mr. Stuart· · · · · · · · 18
·9· ·Opening Statement· ·Mr. Wells· · · · · · · · ·22
10· ·TAMARA SHAMBURGER
11· ·Direct· · · · · · · By Mr. Hiaasen· · · · · · 35 · · ·Cross· · · · · · · ·By Mr. Wells· · · · · · · 72 12· ·Redirect· · · · · · By Mr. Hiaasen· · · · · · 90
13· ·JAMES LIS
14· ·Direct· · · · · · · By Mr. Stuart· · · · · · ·97 · · ·Cross· · · · · · · ·By Mr. Hill· · · · · · · 114 15· ·Redirect· · · · · · By Mr. Stuart· · · · · · 119
16· ·FEDRICK INGRAM
17· ·Direct· · · · · · · By Mr. Richard· · · · · ·121 · · ·Cross· · · · · · · ·By Mr. Wells· · · · · · ·152 18· ·Redirect· · · · · · By Mr. Richard· · · · · ·167
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0011 Page 6 ·1· · · · · · · · · · INDEX (Continued)
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·3· · · ·PLAINTIFF EXHIBITS MARKED FOR IDENTIFICATION
·4· · · · · · · · · · · · · · · · · · · · · · · ·Page · · ·Plaintiff Exhibit 15· · · · · · · · · · · · · 57 ·5· ·Plaintiff Exhibit 5· · · · · · · · · · · · · ·39 · · ·Plaintiff Exhibit 52· · · · · · · · · · · · · 66 ·6
·7· · · · DEFENSE EXHIBITS MARKED FOR IDENTIFICATION
·8· · · · · · · · · · · · · · · · · · · · · · · ·Page · · ·Defense Exhibit 10· · · · · · · · · · · · · · 72 ·9· ·Defense Exhibit 2· · · · · · · · · · · · · · ·78 · · ·Defense Exhibit 20· · · · · · · · · · · · · ·162 10· ·Defense Exhibit 21· · · · · · · · · · · · · · 87
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0012 Page 7 ·1· ·The following proceedings via Zoom began at 8:42 ·2· ·a.m.: ·3· · · · · · ·THE COURT:· Good morning.· We're here on ·4· · · · the consolidated cases of Florida Education ·5· · · · Association, et al, vs. Ron DeSantis as ·6· · · · Governor of the State of Florida, and Richard ·7· · · · Corcoran as Florida Commissioner of Education, ·8· · · · as consolidated with Monique Bellfleur versus ·9· · · · the same two defendants. 10· · · · · · ·And we're here today to start on the 11· · · · Plaintiffs' Expedited Motion for Temporary 12· · · · Injunction. 13· · · · · · ·Plaintiffs ready to proceed? 14· · · · · · ·MR. MEYER:· Yes, Your Honor, we are. 15· · · · · · ·Let me also say I guess it's obvious by 16· · · · the fact that we're all assembled here today, 17· · · · that although yesterday day was spent 18· · · · mediating, we were fortunate to obtain the 19· · · · services of former federal judge Tom Scott who 20· · · · conducted a mediation among the parties, and 21· · · · while I think we pursued mediation in good 22· · · · faith, unfortunately, it was unsuccessful at 23· · · · this point in reaching any kind of resolution, 24· · · · so we're moving forward. 25· · · · · · ·The other -- the other factor that I
0013 Page 8 ·1· ·wanted to bring to the attention of the Court ·2· ·is we have amended the complaint through ·3· ·interlineation to add the national and the ·4· ·state NAACP as parties plaintiffs.· It won't ·5· ·affect the handling of the case as it's ·6· ·presently scheduled, but I wanted to bring that ·7· ·to the Court's attention as well. ·8· · · · And then finally, sometime during the day, ·9· ·we would ask the Court to rule on a motion 10· ·that's been filed by a group of organizations 11· ·that are seeking to leave to present the Court 12· ·with an amicus brief, and there's an associated 13· ·pro hac vice motion that's requested for the 14· ·attorney who prepared the brief. 15· · · · And, you know, we would ask that the 16· ·Court, at some point, grant those motions as 17· ·well. 18· · · · What the parties have determined to do, 19· ·Your Honor, this morning, Mr. Wells and -- and 20· ·our side thought it would be helpful to present 21· ·brief opening statements to you to frame 22· ·today's proceedings.· And in that regard, we've 23· ·agreed that 15 minutes per side will be 24· ·allocated, just to provide you with a brief 25· ·overview, and then we'll get right into the
0014 Page 9 ·1· ·testimony, if that's acceptable to the Court. ·2· · · · And the way we've divided the time is my ·3· ·colleague, Kendall Coffey, will be taking ten ·4· ·of the 15 minutes, and then Jacob Stuart, on ·5· ·behalf of the Orlando plaintiffs, will be using ·6· ·the remaining five minutes.· And then Mr. Wells ·7· ·will either take the time or divide it as he ·8· ·sees fit. ·9· · · · But if that's acceptable, Your Honor, 10· ·we'll proceed that way. 11· · · · THE COURT:· That sounds good.· Okay. 12· · · · Mr. Coffey, you may proceed. 13· · · · · · · ·OPENING STATEMENT 14· · · · MR. COFFEY:· Thank you very much, Your 15· ·Honor.· And thank you for the urgency with 16· ·which you and your staff have treated this 17· ·vitally important case. 18· · · · We all know the terrifying nature of the 19· ·pandemic.· And while the numbers can only tell 20· ·part of the story, they are indeed incredibly 21· ·important in understanding where we are today. 22· · · · In March, about 40 or so cases reported in 23· ·Florida.· That prompted a succession of orders, 24· ·including an order from the education 25· ·commissioner, which transitioned schools to
0015 Page 10 ·1· ·online or distance learning.· And at the same ·2· ·time, that order relieved and waived the ·3· ·financial burdens to the schools that might ·4· ·have otherwise been devastating in the context ·5· ·of whether or not particular students were ·6· ·sitting physically in classes. ·7· · · · From that standpoint, things got ·8· ·terrifyingly worse in the state of Florida.· In ·9· ·July, at or around the time this order was 10· ·entered, there were 215,000 cases in the state 11· ·of Florida.· Today, there are over 600,000. 12· · · · And we know that there tragically have 13· ·been close to 10,000 deaths in Florida, and 14· ·whatever were the original thoughts or question 15· ·marks about whether children could be infected 16· ·with this pandemic, we all know that the grim 17· ·reality is that they can be, and in the state 18· ·of Florida, there have been at least 45,000 19· ·confirmed cases with children. 20· · · · Against the backdrop of ever-worsening 21· ·illness and ever-increasing rates of infection, 22· ·what the school commissioner has done is rather 23· ·than extend greater accommodations and greater 24· ·measures to protect safety, he's gone 180 25· ·degrees.
0016 Page 11 ·1· · · · Safety has become minimized in this most ·2· ·recent order, in a push that is inexplicably ·3· ·trying to put as many people on a railroad ·4· ·train to drive them into the public schools, ·5· ·irrespective of the fact that the one ·6· ·consistently applied metric for safety, that is ·7· ·to say 5 percent or less positivity rate for a ·8· ·two-weeks proceeding period, that has not been ·9· ·reached in Florida, and that isn't even 10· ·obliquely referenced in this commissioner's 11· ·order. 12· · · · And so we come here challenging the order 13· ·on at least two fundamental state 14· ·constitutional grounds, Your Honor.· One of 15· ·them is that this order, in this regime that's 16· ·imposed by the state commissioner of education, 17· ·violates the paramount duty of Florida to 18· ·provide a safe and secure education. 19· · · · Related to that is the utter irrationality 20· ·of the order that doesn't provide standards, 21· ·that doesn't take into account relevant 22· ·information, that doesn't follow many of the 23· ·necessary guidances and procedures so that we 24· ·would have an order with clarity, with 25· ·consistency, and with constitutional
0017 Page 12 ·1· ·rationality. ·2· · · · We have none of those things.· And the ·3· ·evidence over the next two days will ·4· ·demonstrate it.· That's what this case is ·5· ·about, in simple terms.· It's a challenge on an ·6· ·order that we believe should be set aside in ·7· ·full or in part. ·8· · · · It's also important to talk about what ·9· ·this case is not about.· This case is not about 10· ·teachers or educators who don't want to go to 11· ·work.· Who don't want to be with students. 12· · · · Teachers love going to class and teaching, 13· ·but of course they don't want to do it when it 14· ·jeopardizes their safety, the safety of elderly 15· ·parents and family that lives with them, when 16· ·it jeopardizes students' safeties.· When 17· ·students come back home to parents and 18· ·grandparents and relatives exposed to COVID, we 19· ·have a nightmare that is extending further 20· ·throughout the communities. 21· · · · They want to return, but they want to 22· ·return safely.· And that is a fundamental 23· ·guarantee that the Florida Constitution 24· ·provides to all people in the school community. 25· · · · This case is also not about, Your Honor,
0018 Page 13 ·1· ·asking you to take over and supervise 67 school ·2· ·districts.· Nothing could be farther from the ·3· ·truth.· We have 67 school boards that are ready ·4· ·to do their job.· They're the ones that have ·5· ·local accountability.· They know the ·6· ·communities.· The spread and the dynamics of ·7· ·the virus vary, of course, from county to ·8· ·county, even city to city, to neighborhood to ·9· ·neighborhood. 10· · · · It would be constitutionally unfathomable 11· ·to have their safety determination set aside so 12· ·that someone in Tallahassee operating without a 13· ·structure of criteria is going to overrule the 14· ·safety considerations at the local level. 15· · · · We think that's wrong in terms of the 16· ·human risk, and we think that's also 17· ·fundamentally wrong with respect to 18· ·constitutional and legal principles.· We're not 19· ·asking you to take over this, Judge.· Let the 20· ·school boards do their job, and let them do 21· ·their jobs without fear of an extraordinary 22· ·regime of financial bullying that's been 23· ·launched by the State of Florida. 24· · · · We know that the State of Florida has in 25· ·their hands already allocated funds to be
0019 Page 14 ·1· ·disbursed to the school boards.· We also know ·2· ·that despite the State of Florida's insistence, ·3· ·that they're really working with school boards ·4· ·and that they're going to consider the local ·5· ·needs, they are overriding and trampling school ·6· ·boards wherever it's necessary from their ·7· ·standpoint to get more numbers of students into ·8· ·more classrooms. ·9· · · · And we will present this morning a 10· ·stunning illustration of this reality in Tampa 11· ·where the school board did everything right in 12· ·gaining medical advice and studying a problem, 13· ·and coming up with a limited program that would 14· ·delay school starts by a small number of weeks, 15· ·and yet, the State came in and said, "We'll 16· ·have none of that," and effectively threatened 17· ·to take $200 million of funding from the Tampa 18· ·school districts unless they did it the way 19· ·that the State insisted. 20· · · · And, Your Honor, it's financial bullying 21· ·at its worst, but it is also unconstitutionally 22· ·penalizing safety.· There's a principle called 23· ·unconstitutional conditions, and it prohibits a 24· ·government body that already has funds 25· ·allocated -- and that's a critical distinction
0020 Page 15 ·1· ·here.· We're not saying, Judge, that the ·2· ·legislature has to go out and allocate the ·3· ·money.· The money's already here. ·4· · · · What's being done with it is it's being ·5· ·used like a bludgeon to tell school districts, ·6· ·"You've got to push those kids into the school, ·7· ·ready or not, who cares what the positivity is, ·8· ·really, and if not, we're going to yank your ·9· ·funding."· It is an unconstitutional dilemma 10· ·that has been imposed on school districts.· It 11· ·is a cruel choice that is not legally imposed 12· ·on school districts. 13· · · · Your Honor, they have a feature in the 14· ·orders that they suggest, I guess, means they 15· ·really care about health after all because the 16· ·orders refer to subject to health care or local 17· ·health care directives.· But I think it's 18· ·important that all of us pay attention to what 19· ·that really means in this case.· Because what 20· ·the State Department of Health is doing is 21· ·getting information, but what they are not 22· ·doing is what was expected by the school 23· ·districts under this order. 24· · · · They're not giving direction.· School 25· ·districts desperate to do the right thing,
0021 Page 16 ·1· ·concerned about students and parents and ·2· ·teachers, and making some of the most difficult ·3· ·decisions of their personal and professional ·4· ·lives about whether to reopen schools turn to ·5· ·the health district professionals and say, "Is ·6· ·it safe to open schools?"· No more important ·7· ·question could be asked this year in the state ·8· ·of Florida. ·9· · · · And what the health officials are doing is 10· ·in all but one or two cases around the state, 11· ·refusing to answer the question.· At a time of 12· ·greatest need, they are missing in action.· And 13· ·that's critical, Your Honor, to understanding 14· ·the framework and the reality of this order 15· ·that's been imposed by the State on the school 16· ·districts. 17· · · · Don't worry, folks, the local health 18· ·district will tell you what to do.· Meanwhile, 19· ·the local health districts have basically 20· ·abandoned their posts in the line of duty, left 21· ·it to the school districts to study with this, 22· ·and leaving the school districts subjected to 23· ·the giant sword of financial catastrophe if 24· ·they don't do what the State of Florida 25· ·insists.
0022 Page 17 ·1· · · · Your Honor, we're not here to tell you ·2· ·what has to be the precise metric for safety. ·3· ·It should be apparent to all of us that by any ·4· ·of the existing standards, Florida is not safe ·5· ·today.· The most widely adopted metric, ·6· ·including the one that was presented to the ·7· ·governor of Florida by the Florida Chapter of ·8· ·the American Pediatric Association is the one ·9· ·that the World Health Organization adopted. 10· ·And we'll be talking about this with health 11· ·care experts. 12· · · · 5 percent or less positivity for two 13· ·weeks.· We're not there yet.· And what that 14· ·means is students are not safe.· Safe doesn't 15· ·mean that you go into an infected environment 16· ·until we count 20, 30 infections and then we 17· ·close the schools down.· Safe means you're 18· ·supposed to be free from risk. 19· · · · Our students are not free from risk. 20· ·They're jeopardized every day they walk into 21· ·that school, and, of course, the individuals 22· ·that we represent, including teachers and 23· ·educators, are in as much health jeopardy as 24· ·anyone from this process. 25· · · · So we come to you with constitutional
0023 Page 18 ·1· ·principles under the state of Florida, ·2· ·principles that respect the paramount duty of ·3· ·education, the duty to have a rational basis, ·4· ·and also, Your Honor, the duty of the State to ·5· ·use the least restrictive means to advance a ·6· ·State goal.· In this case, that is being ·7· ·ignored. ·8· · · · We'll talk about that more in the ·9· ·evidence.· I've used up as much time as I 10· ·should, and I want to thank my colleague in 11· ·Orlando for letting me intrude on some of his 12· ·time. 13· · · · THE COURT:· Mr. Stuart. 14· · · · · · · ·OPENING STATEMENT 15· · · · MR. STUART:· Thank you, Your Honor. 16· · · · It's important to remember that our case 17· ·stemming from Orlando was the first case filed 18· ·in the state, and it was filed as a grassroots 19· ·movement on behalf of one parent, 20· ·Ms. Bellefleur, and originally one teacher, 21· ·Ms. Kathryn Hammond. 22· · · · Since that time, as you've noted, Your 23· ·Honor, and you've put us into the case, we've 24· ·now been paired up with the Union.· And while 25· ·we're in alignment with many ideals, we
0024 Page 19 ·1· ·represent solely our four clients; ·2· ·Ms. Bellfleur, Ms. Hammond, Mr. Lis, and ·3· ·Ms. Monroe.· Three teachers and one parent, all ·4· ·from different parts of central Florida, but ·5· ·all sharing the same concern, much of which ·6· ·Mr. Coffey talked about openly. ·7· · · · But from our point of view, this case ·8· ·comes down to a very simplistic idea.· As ·9· ·mentioned, Florida's constitution guarantees 10· ·students, in Article IX Section 1(a), the right 11· ·to be safe and secure.· The same for teachers. 12· ·And this isn't about conservative or liberal, 13· ·or political, or what's going on in Tallahassee 14· ·or Washington, DC, this is what's going on in 15· ·each of our 67 counties. 16· · · · And unfortunately, the defendants in this 17· ·case, specifically Governor DeSantis and 18· ·Commissioner Corcoran, and the other 19· ·defendants, they have failed in their duty. 20· ·Their confusion and their ability to create 21· ·this -- and this false narrative about having 22· ·this absence of clarity has led to a pandemic 23· ·that is much worse than it should have been. 24· · · · Now, clearly, the defendants aren't the -- 25· ·at fault for causing a pandemic.· No one is
0025 Page 20 ·1· ·arguing that.· But elected officials, ·2· ·especially in the highest executive office in ·3· ·one of the greatest states in the Union have a ·4· ·duty to do better.· And not just do better, but ·5· ·to comply with the Constitution. ·6· · · · And our evidence that we're going to put ·7· ·on today will show that.· We're going to have ·8· ·Your Honor, for testimony, and backing up what ·9· ·has already been provided to you, a series of 10· ·witnesses, including an elected official from 11· ·Hillsborough County to testify about the 12· ·issues. 13· · · · We're going to have someone from -- the 14· ·president of the teachers union to talk to you 15· ·about on a massive macro scale what's going on. 16· ·We're going to have two teachers talk to you, 17· ·at least, from different areas of central 18· ·Florida, one who is being forced to make the 19· ·decision of risking his life or having to 20· ·retire. 21· · · · We're also going to have another teacher 22· ·talk to Your Honor to really put this as not 23· ·some hypothetical or some issue from a law 24· ·school or case law from a distant fact pattern, 25· ·but we're going to have a quadriplegic testify,
0026 Page 21 ·1· ·Mr. Escobar, and he's going to have to talk to ·2· ·you about risking his life or doing what he -- ·3· ·what he's chosen to do, is be a math teacher. ·4· · · · And then we're also going to have ·5· ·testifying at least two separate doctors, one a ·6· ·pediatrician here locally, Dr. Annette Nielsen, ·7· ·who will testify about real issues with people ·8· ·in the school board, and within -- and students ·9· ·and teachers here in Orange County, along with 10· ·Dr. Thomas Burke, a professor from 11· ·Harvard University, and also an attending 12· ·physician, whose credentials on the COVID-19 13· ·pandemic speak for themselves when he 14· ·testifies. 15· · · · And all will be in alignment in the sense 16· ·that, right now, for us to open up, there has 17· ·to be a plan, and there's not one that makes 18· ·sense.· And if there is a plan, the 19· ·circumstances, as Mr. Coffey talked about, need 20· ·to be particularly green-light circumstances. 21· ·And once we have those circumstances that are 22· ·perfect for us to open, or as reasonably safe 23· ·as possible, there must be proper mitigation. 24· · · · And the evidence that we will put on today 25· ·will show to you that the governor's office and
0027 Page 22 ·1· ·the defendants in this case are failing their ·2· ·constitutional duty. ·3· · · · And I think it's important, in ending, and ·4· ·understanding my time restraints, Your Honor, ·5· ·that no one on our side or any party wants ·6· ·school to close forever.· We want schools to ·7· ·open, just, the right way, ensuring we protect ·8· ·teachers, students, administrators, staff, and ·9· ·all the citizens of Florida, Your Honor. 10· · · · And again, I want to echo thanking you for 11· ·getting this so quickly on your calendar to 12· ·hear this important issue. 13· · · · THE COURT:· Does the defense wish to make 14· ·an opening statement at this time?· Mr. Wells, 15· ·I think you're muted there.· Yes, sir.· There 16· ·you go. 17· · · · MR. WELLS:· Are we good now? 18· · · · THE COURT:· Yes, sir. 19· · · · · · · ·OPENING STATEMENT 20· · · · MR. WELLS:· Thank you. 21· · · · Thank you, Your Honor.· Yes, David Wells 22· ·of Gunster Yoakley together with Nate Hill, 23· ·we'll be providing the defense position today. 24· ·Thank you for the time to get together and 25· ·doing it so quickly.
0028 Page 23 ·1· · · · I think when we talked last I talked about ·2· ·the fact that, you know, coronavirus has ·3· ·presented the greatest challenge to our ·4· ·legislative and executive branches.· We've ·5· ·been -- they've been put in the position of ·6· ·having to make difficult and heart-breaking ·7· ·decisions against the background of changing ·8· ·facts, changing data, and competing opinions ·9· ·from a number of stakeholders. 10· · · · No one wants to do the right thing, 11· ·everyone thinks they've got the right idea, and 12· ·emotions are very high.· We certainly heard 13· ·that just moments ago in the passion being 14· ·brought on behalf of the teachers union and the 15· ·teachers here, that these are all firmly held 16· ·beliefs.· Beliefs that we all have to accept 17· ·and we all have to look at. 18· · · · Coronavirus has affected every single one 19· ·of us in this state.· It's brought a high cost 20· ·in terms of health.· It's brought a high cost 21· ·in terms of what it's done to the economy.· And 22· ·Florida education has not escaped.· It's been a 23· ·victim as well. 24· · · · The CDC has made it clear in their most 25· ·recent guidance that aside from a child's home,
0029 Page 24 ·1· ·no other setting has more influence on a ·2· ·child's health and well-being than their ·3· ·school.· The American Academy of Pediatrics ·4· ·strongly advocates that all policy ·5· ·considerations for the coming school year ·6· ·should start with a goal of having students ·7· ·physically present in school. ·8· · · · They go on to say that, "Lengthy time away ·9· ·from school and associated interruption of 10· ·supported services will result in social 11· ·isolation, making it difficult for schools to 12· ·identify and address important learning 13· ·deficits."· It talked about the danger of 14· ·physical and sexual abuse, depression, as a 15· ·result of now 179 days of being away from 16· ·school. 17· · · · And we know that these problems are felt 18· ·most by those who can least afford it; minority 19· ·students, students with disabilities, they 20· ·suffer most when schools are closed. 21· · · · These are the -- the issues that are in 22· ·front of our executives, in front of our policy 23· ·makers and decision makers.· "Continued 24· ·closures," the report goes on to say, "will 25· ·likely lead to an increase in the rate of high
0030 Page 25 ·1· ·school dropouts, and for those who stay could ·2· ·lead to reductions of lifetime earnings of ·3· ·1.6 percent, 3.3, and 3 percent across the ·4· ·board," depending upon your -- the category ·5· ·you're in. ·6· · · · Much has been learned since March.· There ·7· ·is no doubt that these same executives, these ·8· ·same leaders, the governor of the state of ·9· ·Florida, the commissioner of education, acted 10· ·quickly in March and made decisions to close 11· ·down the schools.· We knew far less about 12· ·coronavirus then than we do now. 13· · · · We knew far less about its impact on 14· ·children than we do now.· We knew far less 15· ·about the ability of children to spread it 16· ·adults -- to adults than we know now.· We knew 17· ·far less about what would be the appropriate 18· ·protocols and procedures to put in place so 19· ·that schools could be safely reopened. 20· · · · The Center for Disease Control has 21· ·provided us with guidelines.· The American 22· ·Pediatric Associations also provided guidelines 23· ·for mitigating.· There's a Harvard study that 24· ·walks through how can we best, safely open 25· ·schools.· And they all recognize that there is
0031 Page 26 ·1· ·no zero-risk situation, that any opening of the ·2· ·schools will bring about some type of risk. ·3· ·The greater risk is the closing of the schools. ·4· · · · The plaintiffs talked about the ·5· ·constitutional obligations that are here. ·6· ·These are obligations that fall upon the ·7· ·governor.· They fall upon the commissioner of ·8· ·education.· And Article IX Section 1(a) makes ·9· ·it very clear that there is a paramount duty of 10· ·the State to make adequate provision for 11· ·education. 12· · · · But that adequate provision includes being 13· ·efficient, safe, secure, and high quality to 14· ·ensure that students have a high-quality 15· ·education.· That imposes an obligation in these 16· ·emergency times that we have here now for the 17· ·executives and the policy makers to be able to 18· ·make these risk-based assessments to try to get 19· ·our schools back open.· And Emergency Order 06 20· ·does just that. 21· · · · Now, we heard much about how Emergency 22· ·Order 06 doesn't contain within it a series of 23· ·guidelines, what you do to open up the schools 24· ·or how to do that. 25· · · · (An interruption took place.)
0032 Page 27 ·1· · · · MR. WELLS:· Sorry, my telephone is picking ·2· ·up my voice. ·3· · · · E-06 does not contain that, but it's not ·4· ·written against a blank backdrop. ·5· · · · In May of this year, the governor and the ·6· ·commissioner of education came out with a ·7· ·143-page presentation that walked through how ·8· ·one could go about safely and successfully ·9· ·opening schools.· We'll look at that.· It 10· ·provides significant guidance in the body of 11· ·the document itself as to how to go about this 12· ·difficult process. 13· · · · It provides links to the CDC, to the APA, 14· ·and others to provide guidance to the schools 15· ·to do this.· The schools have had that since 16· ·May.· We have put into the record and we'll 17· ·walk through these plans from these schools 18· ·that go through, and with great care, on how 19· ·we're going to go about making sure that the 20· ·schools are safe to come in. 21· · · · No one is railroading students and 22· ·throwing them on a train to schools that have 23· ·not been asked to do what is necessary to 24· ·prepare.· What Emergency Order 06 does most 25· ·critically is two things:· One, it does provide
0033 Page 28 ·1· ·an option for parents to get their kids back to ·2· ·school.· An option for parents to make the ·3· ·choice. ·4· · · · The fight here is caused by the fact that ·5· ·1,600,000 parents that have made the choice ·6· ·that they'd like their children to get back to ·7· ·school ranges from, depending on the school ·8· ·district, as low as 30 percent of the parents ·9· ·to as high as 80 percent of the parents, making 10· ·these decisions to come back to school. 11· · · · Counting on their school boards to have 12· ·followed the guidance and advice made available 13· ·to them, for providing for sanitation, 14· ·providing for face masks, providing for the 15· ·other items that are necessary to do that. 16· · · · And the other thing that Emergency Order 17· ·06 does, and is also talked about in the May 18· ·presentation is, funding's made available two 19· ·ways to help make this happen.· One, Emergency 20· ·Order 06, it waives the funding statutes. 21· ·There's no question, as Mr. Coffey said, that 22· ·there is a budget out there, and there's 23· ·appropriation. 24· · · · But there's also no question that these 25· ·statutes specify exactly how these dollars are
0034 Page 29 ·1· ·to be paid, and without an executive order ·2· ·waiving those statutes, then the payment for ·3· ·people to be in school would be such that if a ·4· ·large number of our parents chose not to have ·5· ·their children in school, there would be ·6· ·financial penalties in the sense that you're ·7· ·paid less. ·8· · · · It's not a penalty in that someone is ·9· ·assessing you a penalty.· It's simply a 10· ·straightforward application.· Superintendents 11· ·were concerned if we give the choice to these 12· ·parents and the parents choose to have a lot of 13· ·the students not in school, it would have an 14· ·impact.· So Emergency Order 06 provides those 15· ·funds. 16· · · · In addition, the state of Florida 17· ·received, through the CARES Act, roughly 18· ·$700 million that were allocated to the schools 19· ·here.· For example, Miami-Dade, $119 million. 20· ·Hillsborough County $54 million of CARES money 21· ·to be available, totally separate and apart 22· ·from any school budget, to be able to take the 23· ·steps necessary to make it safer to be on 24· ·buses, safer to be on schools.· To have the 25· ·protective equipment available.· And this is on
0035 Page 30 ·1· ·top of protective equipment already provided ·2· ·for by the State. ·3· · · · And Emergency Order 06 does two other ·4· ·things.· No. 1, as we've talked about on ·5· ·Friday, it absolutely says that any school ·6· ·district can choose not to go through Emergency ·7· ·Order 06, and they could do a plan like ·8· ·Charlotte did. ·9· · · · In addition, it does provide that, subject 10· ·to local guidance, health guidance, that on a 11· ·school-by-school basis, the districts can make 12· ·a decision not to open.· And as we've seen 13· ·already in south Florida -- Dade, Broward, and 14· ·Palm Beach County -- they are not opening. I 15· ·believe Dade County is not even considering 16· ·opening face-to-face until October the 4th. 17· ·Monroe County has made changes with respect to 18· ·that. 19· · · · And, yes, as we've heard and will hear 20· ·this morning, Hillsborough made a change, and 21· ·the commissioner of education went back to them 22· ·and asked could you please look and help us 23· ·understand, on a school-by-school basis, what 24· ·you're going to do?· Don't paint with a broad 25· ·brush and deny the 102,000 people in
0036 Page 31 ·1· ·Hillsborough -- students, rather, in ·2· ·Hillsborough County who want to come back to ·3· ·school the ability to do that, without, at ·4· ·least, taking a look school by school and ·5· ·determining is there a way to make this work. ·6· ·To use that type of discipline. ·7· · · · The commissioner of educations absolutely ·8· ·used its ability to supervise to direct that, ·9· ·to ask those careful considerations to be made, 10· ·and not simply react to the pressures of one 11· ·particular group. 12· · · · At the end of the day, there's no student 13· ·who's being forced back to school.· These 14· ·students are going back because they want to 15· ·and because their parents want to.· There's no 16· ·teacher that's being forced to go back to 17· ·school. 18· · · · The districts all have discretion to work 19· ·with teachers and try to accommodate ones who 20· ·do not believe they can be there, whether it be 21· ·through virtual teaching or the like.· There 22· ·are likely going to be teachers, because of the 23· ·circumstances, who will find it unsafe to come 24· ·in and cannot make accommodations through the 25· ·local school board, and they'll have to make
0037 Page 32 ·1· ·the same tough choice that the men and women in ·2· ·Florida that worked in Walmarts or Publix have ·3· ·had to make, that if it's not safe for them to ·4· ·go, they may not be able to do so. ·5· · · · The union has negotiated contracts for ·6· ·each of the teachers, and the union has already ·7· ·taken action, at least in Orange County, to ·8· ·argue that they're entitled to relief under ·9· ·that.· The teachers have a way to resolve and 10· ·address their issues.· There are hard choices 11· ·that are here, and there's righteous concerns, 12· ·but we've got to be able to move forward and 13· ·try to open the schools. 14· · · · Let me conclude by saying that, you know, 15· ·the plaintiffs are not going to be able to do 16· ·what they need to here to obtain this type of 17· ·extraordinary injunctive relief, which, however 18· ·way they put it, requires the Court to step in 19· ·and try to make a determination as to what is 20· ·the best policy with respect to coronavirus. 21· ·When should we return, how should we return, 22· ·and make those decisions. 23· · · · They're not going to be able to show a 24· ·likelihood of success on the merits.· They're 25· ·not going to be able to show irreparable harm
0038 Page 33 ·1· ·because, in fact, no student's being required ·2· ·to go back, it's a matter of choice, and nor is ·3· ·any teacher.· The only teachers that will do ·4· ·that is if they decide to make the choice with ·5· ·the greater consequences rather than the choice ·6· ·with the lesser consequences. ·7· · · · The rule is flexible.· It's a ·8· ·comprehensive approach taken by the Department ·9· ·of Education.· It's in response to 10· ·unprecedented crisis.· It's an emergency rule 11· ·that is entitled to deference, and is a 12· ·reasonable exercise of executive discretion. 13· · · · No matter which way this turns out, 14· ·someone is going to be upset.· Someone is going 15· ·to be -- feel like they're hurt.· That is what 16· ·happens in any type of policy decision.· That's 17· ·what happened here.· The balance has been 18· ·drawn. 19· · · · The interests of the teachers and students 20· ·will be protected by the way of the order will 21· ·be applied and the rights of parents to get 22· ·their students back in school.· The critical 23· ·reopening of schools will be allowed as well. 24· · · · Thank you. 25· · · · THE COURT:· Plaintiff ready to proceed
0039 Page 34 ·1· ·with your testimony? ·2· · · · MR. MEYER:· Yes, Your Honor. ·3· · · · Our first witness, I believe, is in a ·4· ·holding room on the Zoom platform, is Tamara ·5· ·Shamburger.· She's a Hillsborough County School ·6· ·Board member.· And Scott Hiaasen on our team ·7· ·will be presenting her testimony, Your Honor. ·8· · · · THE COURT:· Doesn't appear to be anyone in ·9· ·the waiting room. 10· · · · MR. HIAASEN:· Your Honor, I just sent a 11· ·text to Ms. Shamburger to instruct her to Zoom 12· ·in.· So hopefully she'll be there momentarily. 13· ·I'd like to ask:· Is the audio sufficient from 14· ·our side? 15· · · · THE COURT:· Sounds good to me.· Yes, sir. 16· · · · MR. STUART:· There's a lot of feedback on 17· ·my end but we'll adjust. 18· · · · THE COURT:· Right. 19· · · · Ms. Shamburger is in the waiting room now, 20· ·so we're going to go ahead and let her in now. 21· · · · MR. MEYER:· Thank you, Your Honor. 22· · · · MR. HIAASEN:· Thank you, Your Honor. 23· · · · THE COURT:· Ms. Shamburger, go ahead and 24· ·take your phone off mute there.· Take your 25· ·computer off mute.
0040 Page 35 ·1· · · · · · ·Raise your right hand, please. ·2· ·Thereupon: ·3· · · · · · · · · · TAMARA SHAMBURGER ·4· ·having been sworn by the Court testified as follows: ·5· · · · · · ·THE WITNESS:· I do. ·6· · · · · · · · · · DIRECT EXAMINATION ·7· · ·BY MR. HIAASEN ·8· · · · Q.· ·Ms. Shamburger, hi, I'm Scott Hiaasen. ·9· ·I'm an attorney for the plaintiffs in this matter. 10· ·And I'd just ask you to state your name again and 11· ·tell the Court your position with 12· ·Hillsborough County, if you could. 13· · · · A.· ·Good morning.· My name is 14· ·Tamara Shamburger.· I'm a Hillsborough County School 15· ·Board member for District 5. 16· · · · Q.· ·And how long have you served on the school 17· ·board in Hillsborough County? 18· · · · A.· ·I was honored to be elected to this 19· ·position in 2016, and I look forward to being 20· ·reelected in November of this year. 21· · · · Q.· ·And so you were a member of the school 22· ·board in the spring of this year when the 23· ·coronavirus pandemic began to spread around Florida; 24· ·is that right? 25· · · · A.· ·That is correct.
0041 Page 36 ·1· · · · Q.· ·And can you describe for the Court what ·2· ·the direction is of how the Hillsborough County ·3· ·school district responded in the spring -- or in ·4· ·March of 2020 when the coronavirus began to spread ·5· ·throughout the community? ·6· · · · A.· ·Yeah, so we responded just like all other ·7· ·districts in Florida did.· You know, when we -- the ·8· ·COVID pandemic broke out, we received guidance from ·9· ·the State and the governor that we needed to shut 10· ·down schools. 11· · · · · · ·And we did exactly that.· We closed our 12· ·schools, and we immediately went into an emergency 13· ·virtual situation so we could immediately continue 14· ·education for our students. 15· · · · Q.· ·And if I understand your testimony, that 16· ·was done in response to an order from the State of 17· ·Florida to use online instruction and close the 18· ·physical schools; is that correct? 19· · · · A.· ·Yeah, that is correct.· We did close our 20· ·schools in mid March, based on a directive from the 21· ·State. 22· · · · Q.· ·And do you recall how many cases of 23· ·coronavirus, to the best of your recollection or 24· ·estimate, were -- had been reported in the state of 25· ·Florida at the time that schools were closed in
0042 Page 37 ·1· ·Hillsborough County? ·2· · · · A.· ·Yeah, I don't recall exactly the exact ·3· ·number of corona cases at the time, but I do recall ·4· ·it being just a very, very small number.· I recall ·5· ·us just being very proactive and me being happy with ·6· ·that decision so that we could prevent the spread. ·7· ·But I recall it being just a small amount of cases. ·8· · · · Q.· ·And do you recall -- what is your ·9· ·understanding of why -- why the state of Florida 10· ·ordered physical schools to be closed down at that 11· ·time? 12· · · · A.· ·Well, for the exact reason I just stated. 13· ·My understanding, that directive came so that we 14· ·could be proactive and prevent a continual spread of 15· ·the coronavirus to our communities.· So a very 16· ·protective and proactive measure. 17· · · · Q.· ·Now, can you tell the Court how long 18· ·schools in Hillsborough County were providing 19· ·instruction online in the -- in the spring 2020 20· ·semester? 21· · · · A.· ·So at the State's request, we did close 22· ·down our schools and went online about mid March, 23· ·and we continued through the end of the school year. 24· ·Which, the last day of school was May 29th. 25· · · · Q.· ·And during that time period between March
0043 Page 38 ·1· ·and May 29, was there any communication that you ·2· ·were made aware of from the State of Florida where ·3· ·there was a danger or a threat that the funding to ·4· ·Hillsborough County would be reduced if the school ·5· ·district were to go to online instruction? ·6· · · · A.· ·No, not at all.· Not that -- not that I'm ·7· ·aware of. ·8· · · · · · ·You know, we'd never had any conversation ·9· ·about funding or reduce of funding or any impact of 10· ·funding, until recently.· So the entire time when we 11· ·were dealing with this emergency and being forced 12· ·to, you know, send our kids and our staff home, 13· ·there was never any question about a reduce -- or a 14· ·reduction in funding at all. 15· · · · Q.· ·Okay.· I'd like to skip ahead to July of 16· ·this year.· And I'm going to show you -- put a 17· ·document up on the screen, if you can see it on your 18· ·screen -- 19· · · · · · ·MR. HIAASEN:· Do we need -- 20· · · · · · ·Your Honor, at this time we'd like to 21· · · · display an exhibit for the witness.· I think to 22· · · · do that, we need you to be able to share the 23· · · · screen with my office so we can put this up on 24· · · · display. 25· · · · · · ·THE COURT:· All right.· Hang on just one
0044 Page 39 ·1· · · · second, please. ·2· · · · · · ·I think it's ready to go. ·3· · · · · · ·MR. HIAASEN:· Thank you, Your Honor.· Give ·4· · · · me just briefly -- my apologies.· I want to ·5· · · · make sure I get the correct exhibit.· It is ·6· · · · Exhibit 5. ·7· · · · · · ·(Thereupon, marked for identification is ·8· · · · Plaintiff Exhibit 5.) ·9· · ·BY MR. HIAASEN 10· · · · Q.· ·Ms. Shamburger, can you see this document 11· ·on your screen? 12· · · · A.· ·I can. 13· · · · Q.· ·Have you seen this document before? 14· · · · A.· ·Yes, I have. 15· · · · Q.· ·Can you tell the Court what this document 16· ·is, as far as you know? 17· · · · A.· ·Yeah, so my understanding, this is the 18· ·executive order that was issued by 19· ·Commissioner Corcoran regarding the reopening of our 20· ·schools. 21· · · · Q.· ·And what I'd like to -- 22· · · · · · ·MR. HIAASEN:· Can we scroll down to 23· · · · section -- the bottom of page 2? 24· · ·BY MR. HIAASEN 25· · · · Q.· ·So, Ms. Shamburger, I'd like to show you,
0045 Page 40 ·1· ·if you can look at -- is this legible enough where ·2· ·you can read it, ma'am? ·3· · · · A.· ·Yes, I can see it. ·4· · · · Q.· ·Okay.· I'd like to direct your attention ·5· ·to under Section 1 (a); do you see that? ·6· · · · A.· ·I do. ·7· · · · Q.· ·And could you read the first sentence of ·8· ·the -- of Section 1(a) for the Court, please. ·9· · · · A.· ·Yes. 10· · · · · · ·"All schools open.· Upon reopening in 11· ·August, all school boards and charter school 12· ·governing boards must open brick-and-mortar schools 13· ·at least five days per week for all students subject 14· ·to advice and orders of the Florida Department 15· ·of Health, local departments of health, Executive 16· ·Order 20-149, and subsequent executive orders." 17· · · · Q.· ·And what was your understanding as -- let 18· ·me strike that and back up a bit. 19· · · · · · ·Do you recall the Hillsborough County 20· ·School Board being made aware of this order in July 21· ·of 2020? 22· · · · A.· ·Yeah, and so I just want to be very clear 23· ·that I'm here testifying today just based on my own 24· ·individual recollection.· I'm not here to testify on 25· ·behalf of the entire school board.
0046 Page 41 ·1· · · · · · ·But as I recall, as an individual board ·2· ·member, we -- we did receive this document.· And my ·3· ·understanding is that we were required to open ·4· ·brick-and-mortar five days per week, as I just read. ·5· · · · Q.· ·And I'd like to -- I'd like to call your ·6· ·attention to the next sentence, that is the bottom ·7· ·of this page, and flips up to the -- to the top of ·8· ·page 3.· And we'll try and scroll for you. ·9· · · · · · ·But can you read the second sentence of 10· ·Section 1(a)? 11· · · · A.· ·Sure. 12· · · · · · ·It says, "Absent these directives, the 13· ·day-to-day decision to open or close the school must 14· ·always rest locally with the board or executive most 15· ·closely associated with the school; the 16· ·superintendent or school board in the case of a 17· ·district-run school; the charter governing board in 18· ·the case of a public charter school; or the private 19· ·school principal, director, or governing board in 20· ·the case of a nonpublic school." 21· · · · Q.· ·Thank you. 22· · · · · · ·And what was your understanding of what 23· ·this sentence of the emergency order meant? 24· · · · A.· ·So my understanding of that is that the 25· ·decision to open or close or do whatever we needed
0047 Page 42 ·1· ·to do in the best interest or the greater good of ·2· ·our community rest -- rested solely with myself and ·3· ·my fellow board members who were elected to ·4· ·represent the community. ·5· · · · Q.· ·And did the school board in ·6· ·Hillsborough County consult with the superintendent ·7· ·and its staff and counsel about the meaning of this ·8· ·order? ·9· · · · A.· ·Absolutely. 10· · · · Q.· ·And is what you described today, as far as 11· ·your understanding of the order, consistent with 12· ·what the administration told you their understanding 13· ·of this order was? 14· · · · A.· ·Yeah, you know, absolutely.· You know, 15· ·prior to receiving this order, our superintendent 16· ·had already begun crafting a reopening plan. 17· · · · · · ·Now, once we received this order, we then, 18· ·of course, you know, reconvened, and we talked about 19· ·what was needed.· And it's my understanding, as was 20· ·told to me, is that the plans had to change based on 21· ·this executive order, but brick-and-mortar needed to 22· ·be included in the reopening plan. 23· · · · Q.· ·And was it your understanding, based on 24· ·your reading of the emergency order, that the 25· ·directive to open school buildings five days a week
0048 Page 43 ·1· ·was optional? ·2· · · · A.· ·No.· That was not my understanding.· The ·3· ·executive order says that schools needed to be ·4· ·reopened brick-and-mortar five days a week. ·5· · · · Q.· ·Now, as a result of this emergency order, ·6· ·what did you and the school board do? ·7· · · · A.· ·Well, we had to go back to the drawing ·8· ·board. ·9· · · · · · ·As I mentioned, prior to this executive 10· ·order, already preparing for the reopening of our 11· ·schools, our superintendent had done a very good job 12· ·in crafting a reopening plan, a very comprehensive 13· ·plan, that gave our families quite a few choices. 14· · · · · · ·Upon receipt of this executive order, some 15· ·of those plans were taken off of the table, and so 16· ·on July the 23rd, we had a school board meeting 17· ·where an amended or an alternate plan based on the 18· ·executive order was presented. 19· · · · · · ·Ultimately, there was a majority vote to 20· ·accept the amended plan, with the caveat, though, 21· ·that we, within our rights, would revisit that plan 22· ·after seeking and consulting medical experts 23· ·regarding the reopening of schools. 24· · · · Q.· ·And can you summarize for the Court what 25· ·that plan was, to the best of your recollection, the
0049 Page 44 ·1· ·July 23rd plan approved by the school board? ·2· · · · A.· ·Yeah. ·3· · · · · · ·So there was three options for our ·4· ·families to choose.· The first option was, of ·5· ·course, brick-and-mortar, which was in compliance ·6· ·with the executive order.· The second option was ·7· ·eLearning, which was our online virtual system.· And ·8· ·then also Hillsborough Virtual, which is full ·9· ·virtual.· eLearning, let me just clarify, is kind 10· ·of school-at-home, is what I like to call it. 11· · · · · · ·So on July 23rd, that was the plan, with 12· ·the contingency that we would revisit that -- those 13· ·options upon receipt of medical advice.· That's how 14· ·that vote went forward on July 23rd. 15· · · · Q.· ·And do you recall what the -- the start 16· ·date for school was in that -- in that original 17· ·plan? 18· · · · A.· ·Yes.· You know, the original start date of 19· ·school was August the 10th.· In that same July 23rd 20· ·board meeting, we voted to push back that start date 21· ·to August the 24th. 22· · · · Q.· ·And I think I believe you testified that 23· ·at that meeting, there was a -- part of the plan was 24· ·that there was going to be a new meeting of the 25· ·board on August 6th to -- you mentioned to discuss
0050 Page 45 ·1· ·this with medical experts; is that what you ·2· ·testified to? ·3· · · · A.· ·Yeah.· So that is my understanding. ·4· · · · · · ·On July 23rd we did vote with that plan, ·5· ·as previously described, with the understanding that ·6· ·on August the 6th, we would reconvene at a ·7· ·special-called school board meeting so that we could ·8· ·discuss our plan and the safety of the plan with ·9· ·medical experts who are better equipped to lead us 10· ·in that decision. 11· · · · Q.· ·And can you just describe for the Court 12· ·how the board came to select the medical experts 13· ·that were relied upon? 14· · · · A.· ·The board did not select those medical 15· ·experts. 16· · · · · · ·Those experts -- well, part of the experts 17· ·were folks that our superintendent was already 18· ·consulting with regarding the reopening plan.· But 19· ·ultimately, that panel was selected by the 20· ·superintendent and/or his staff, but it was not -- 21· ·as I understand, but it was not a decision of the 22· ·school board. 23· · · · Q.· ·And how many doctors were on this panel? 24· ·If you recall. 25· · · · A.· ·I recall there being seven.
0051 Page 46 ·1· · · · Q.· ·And was the health director of ·2· ·Hillsborough County from the Department of Health ·3· ·among the doctors on that panel? ·4· · · · A.· ·Yes, Dr. Holt was on the panel. ·5· · · · Q.· ·I'm sorry, what was his name? ·6· · · · A.· ·Dr. Holt, H-O-L-T. ·7· · · · Q.· ·Is it Douglas Holt, is that -- ·8· · · · A.· ·Oh, Douglas Holt.· My apologies. ·9· · · · Q.· ·Okay.· And so did the school board have a 10· ·meeting on August 6th with the medical panel? 11· · · · A.· ·We did -- we did convene a special-called 12· ·board meeting to meet with the seven medical experts 13· ·solely to get their opinion and input on our 14· ·reopening plan, and the safety of opening our school 15· ·buildings. 16· · · · Q.· ·Before I get to the August 6th board 17· ·meeting, I wanted to ask you if -- you said the 18· ·original plan that was approved on July 23rd, which 19· ·was in response to the emergency order, had some 20· ·different options for parents.· Some could have 21· ·in-person instruction, some could have online 22· ·instruction. 23· · · · · · ·Do you recall how many -- or what 24· ·percentage of students in Hillsborough County had 25· ·elected to appear in a brick-and-mortar schools at
0052 Page 47 ·1· ·that time? ·2· · · · A.· ·Yeah. ·3· · · · · · ·As I recall, we did do a declaration of ·4· ·intent where our families were asked to declare what ·5· ·their intentions were on the return to school.· And ·6· ·as it pertains to school choice -- which I don't ·7· ·believe this is a school choice issue -- but as it ·8· ·pertains to school choice, about 42 percent of our ·9· ·families had decided that they would return their 10· ·students to school. 11· · · · · · ·But as it pertains to a safety issue, 12· ·which I believe is the issue, this is not an issue 13· ·of choice but rather safety, that means 58 percent 14· ·of our families did not feel safe in returning our 15· ·students to brick-and-mortar. 16· · · · Q.· ·And if you know, 42 percent or 58 percent, 17· ·right, whichever, you know -- well, how many 18· ·students does that translate to, if you know, in 19· ·Hillsborough County? 20· · · · A.· ·That's roughly -- with about 210,000 21· ·students or so, that's roughly, you know, 22· ·eighty-five to ninety thousand students. 23· · · · Q.· ·And can you tell the Court how many public 24· ·schools there are in Hillsborough County? 25· · · · A.· ·We have approximately 240 schools.
0053 Page 48 ·1· · · · Q.· ·Okay.· And I'd like to skip ahead to the ·2· ·August 6th meeting we were -- you referenced before. ·3· · · · · · ·Can you tell the Court what your -- your ·4· ·recollection of the presentations from the medical ·5· ·panel at that meeting. ·6· · · · A.· ·You know, it was a very interesting ·7· ·meeting.· It was full of a lot of scientific and ·8· ·medical data.· They did very good presentations ·9· ·talking about community spread and positivity rates, 10· ·and things that -- certainly that are above the 11· ·heads of -- myself.· I'll just speak for myself. 12· · · · · · ·And so ultimately, they talked about, you 13· ·know, what would be deemed a safe and appropriate 14· ·number or positivity rate to reopen our school 15· ·buildings.· And ultimately, as you've just 16· ·mentioned, you know, most of those doctors came back 17· ·and said, no, that our schools absolutely should not 18· ·be opened. 19· · · · · · ·I tell you, I am the board member who 20· ·directly asked the panel very straightforward and 21· ·very matter-of-factly:· Should our buildings be 22· ·open?· Let me just go back and say that I did 23· ·preface that question with an understanding that 24· ·this was not a conversation about education.· The 25· ·panel was summoned to speak with us about the
0054 Page 49 ·1· ·safety -- ·2· · · · · · ·MR. WELLS:· Your Honor -- ·3· · · · A.· ·-- of bringing people back into our school ·4· ·buildings. ·5· · · · · · ·MR. WELLS:· Your Honor -- ·6· · · · · · ·MR. HIAASEN:· The -- ·7· · · · · · ·THE WITNESS:· And once I asked that ·8· · · · question -- ·9· · · · · · ·MR. HIAASEN:· Ms. Shamburger, my 10· · · · apologies.· I think there might have been an 11· · · · objection from Counsel, but I didn't hear it. 12· · · · I'm sorry. 13· · · · · · ·MR. WELLS:· My objection was the question 14· · · · did not call for this level of hearsay and 15· · · · reflecting of what other people supposedly said 16· · · · at this meeting, so I'd just object on the 17· · · · basis of hearsay. 18· · · · · · ·MR. HIAASEN:· Your Honor, this testimony's 19· · · · not being offered for the truth of the matter. 20· · · · This testimony's going to be offered for the 21· · · · effect on the listener, specifically the 22· · · · witness, as a board member in 23· · · · Hillsborough County, because -- because the 24· · · · presentation to the school board is -- was 25· · · · germane to the decision on whether or not -- on
0055 Page 50 ·1· · · · the amended plan that we're about to discuss. ·2· · · · · · ·THE COURT:· I'll allow the testimony. ·3· · · · · · ·MR. HIAASEN:· Thank you, Your Honor. ·4· · ·BY MR. HIAASEN ·5· · · · Q.· ·Ms. Shamburger, I'm sorry, we had an ·6· ·interruption in your testimony. ·7· · · · · · ·But the question that was -- that you were ·8· ·responding to, and I'd like to get back to is, is ·9· ·what your understanding was of the -- of the medical 10· ·presentation, and from the panel that spoke before 11· ·the school board meeting on August 6th. 12· · · · · · ·And to be more specific, you had 13· ·referenced previously that there was a discussion 14· ·of -- I think you referenced a positivity rate, and 15· ·I wanted to ask if you can recall what the testimony 16· ·to the school board was about the appropriate 17· ·positivity rate and how that was relevant to the 18· ·decision of reopening schools in 19· ·Hillsborough County. 20· · · · A.· ·My recollection -- and certainly I'm not a 21· ·medical expert -- my recollection of that 22· ·conversation from the medical experts is that to 23· ·safely reopen our school buildings, or any of our 24· ·buildings, that the positivity rate needed to be 25· ·south of 5 percent.
0056 Page 51 ·1· · · · · · ·Based on that information, and based on ·2· ·what the positivity rate was at the time, I did ask ·3· ·the experts myself if our school buildings should be ·4· ·reopened based on that August 24th reopening date. ·5· ·Six of the seven said no. ·6· · · · · · ·Well, one -- well, I'll say five said no; ·7· ·one said no as of today, possibly on the 24th if the ·8· ·numbers continue to decrease, as he suspected they ·9· ·would.· And then there was one abstention. 10· · · · Q.· ·And you said there was an abstention.· Can 11· ·you -- which of the members of the medical panel 12· ·abstained from answering the question you asked? 13· · · · A.· ·Well, disappointingly, it was Dr. Holt, 14· ·who is the director of the Hillsborough Department 15· ·of Health, whom I really was relying on to give us 16· ·that opinion and advice. 17· · · · Q.· ·So just so I understand, so you -- did you 18· ·directly ask Dr. Holt for a recommendation or advice 19· ·as to whether it was safe to reopen schools in 20· ·Hillsborough County? 21· · · · A.· ·Correct.· I asked all seven experts: 22· ·Should our school buildings be reopened, was my 23· ·exact question.· Dr. Holt refused to answer. 24· · · · Q.· ·He refused to answer. 25· · · · · · ·And what was -- were you surprised that he
0057 Page 52 ·1· ·didn't answer? ·2· · · · A.· ·Absolutely a surprise. ·3· · · · · · ·This wasn't somebody that just happened to ·4· ·be in our auditorium.· The experts were asked to be ·5· ·there specifically to give us opinion on the ·6· ·reopening of our school buildings.· And to not get a ·7· ·response was -- was a bit shocking, especially from ·8· ·the director of our Department of Health whom we ·9· ·work with and whom we must rely on, and whom I must 10· ·rely on, in making the best decision for my 11· ·community that I represent. 12· · · · Q.· ·So as -- after listening to the medical 13· ·testimony at the August 6th meeting, can you 14· ·describe for the Court, you know, what the school 15· ·board did next that night? 16· · · · A.· ·Sure. 17· · · · · · ·Well, based on the overwhelming response 18· ·from our medical experts, specifically to my 19· ·question if school buildings should be reopened, and 20· ·the response being, "no," our school board, we did 21· ·take a vote that afternoon, and there was a majority 22· ·vote that prevailed that we would delay the 23· ·reopening plan for four weeks, based on that sound 24· ·and scientific medical advice that was based on us 25· ·allowing that positivity rate to go down before
0058 Page 53 ·1· ·putting our students, our staff, and our families ·2· ·into an unsafe situation. ·3· · · · Q.· ·At the board meeting, did you make a ·4· ·proposal for a different plan? ·5· · · · A.· ·Initially, I did make a motion at that ·6· ·board meeting to delay the reopening of our school ·7· ·buildings for nine weeks, one that was based on -- ·8· ·again, the medical experts saying that school ·9· ·buildings should not be open, but also, a direct 10· ·representative as the most marginalized and 11· ·disenfranchised communities here in 12· ·Hillsborough County. 13· · · · · · ·Minimizing disruption is certainly always 14· ·the best option.· And as you know, a semester is 15· ·nine weeks.· I was concerned that reopening our 16· ·school buildings in even four weeks would create a 17· ·little bit of a disruption moving our students from 18· ·home back into our school buildings in the middle of 19· ·a semester. 20· · · · · · ·So initially, I did propose nine weeks as 21· ·our initial plan to delay school reopening, but 22· ·ultimately, I did agree with the four weeks based on 23· ·the medical testimony and advice that was given to 24· ·us that afternoon. 25· · · · Q.· ·Did you -- when you voted to delay
0059 Page 54 ·1· ·physical instruction for four weeks, did you have a ·2· ·concern yourself for the effect that might have on ·3· ·students with special needs and students that might ·4· ·have disadvantages in connectivity and things like ·5· ·that?· Was that part of your consideration? ·6· · · · A.· ·I'm always concerned about that.· That's a ·7· ·concern every day in education.· I'm concerned about ·8· ·those same issues when our students are in our ·9· ·brick-and-mortar, absent of a pandemic.· Equity and 10· ·access to resources are always a concern.· It's the 11· ·reason I decided to run for this position. 12· · · · · · ·But knowing, though, what's more important 13· ·than that is the safety of our students.· Listen, 14· ·having lack of access to the Internet pales in 15· ·comparison to a loss of life, and so I know that 16· ·being out of the classroom may be a struggle for 17· ·some, but I have faith and confidence in the amazing 18· ·teachers we have here in Hillsborough County to get 19· ·those students back where they need to be. 20· · · · · · ·But what they can't restore is a loss of 21· ·life.· And so the lack of a laptop or the lack of 22· ·access to the Internet certainly pales in comparison 23· ·to a loss of life.· My vote and my position on this 24· ·issue is purely about safety. 25· · · · Q.· ·When the school board voted to amend its
0060 Page 55 ·1· ·reopening plan on August 6th, was it your ·2· ·understanding -- I know you can't speak for the ·3· ·board -- was it your understanding that you were -- ·4· ·you had the right or the power to amend that plan ·5· ·under the emergency order entered by ·6· ·Commissioner Corcoran on July 6th? ·7· · · · A.· ·That's exactly my understanding of the ·8· ·situation that we were dealing with.· On July 23rd, ·9· ·that was my understanding.· And then we moved 10· ·forward on August the 6th with that understanding, 11· ·which is why the board and myself -- and I'll just 12· ·speak about my vote, which is why I voted, to amend 13· ·that plan that had been submitted to the State. 14· · · · · · ·Because I believe, as a constitutional 15· ·officer of the state, as a duly elected school board 16· ·member for Hillsborough County, that absolutely was 17· ·within my authority as indicated in the executive 18· ·order that I received. 19· · · · Q.· ·And were you or the board advised by the 20· ·school district's counsel that the amendments you 21· ·voted on on August 6th was within the power of the 22· ·board under the emergency order? 23· · · · · · ·MR. WELLS:· Objection to hearsay again, 24· · · · Your Honor. 25· · · · · · ·THE COURT:· I'll allow the testimony.
0061 Page 56 ·1· · · · · · ·MR. HIAASEN:· Thank you, Your Honor. ·2· · · · A.· ·Yes, that is my understanding. ·3· · · · · · ·We -- I -- we did speak with counsel about ·4· ·the executive order. ·5· · · · · · ·We moved completely through in good faith ·6· ·with being in compliance with the executive order. ·7· ·There was never any issues with us believing whether ·8· ·this executive order was lawful or not or ·9· ·unconstitutional or not, we simply wanted to comply 10· ·while being -- while making the best decisions -- I 11· ·did -- on making the best decisions for our -- the 12· ·health and the safety of our students, our teachers, 13· ·our staff, and certainly our community. 14· · ·BY MR. HIAASEN 15· · · · Q.· ·Ms. Shamburger, can you tell the Court, 16· ·you know, what happened after the board voted on 17· ·the -- to amend the plan on August 6th? 18· · · · A.· ·On August 6th, you know, I left that 19· ·meeting very happy. 20· · · · · · ·I thought we had reached a reasonable 21· ·compromise based on sound and scientific medical 22· ·advice, and we immediately began implementing that 23· ·plan.· Or the superintendent did, I guess I should 24· ·say. 25· · · · · · ·But it was shortly thereafter that I
0062 Page 57 ·1· ·really received a surprise when I was told that the ·2· ·State had rejected that plan, a plan that was based ·3· ·on medical advice, within that weekend that we would ·4· ·have to revisit what we needed to do to keep our ·5· ·students safe. ·6· · · · · · ·MR. HIAASEN:· Can you flip -- I'm going to ·7· · · · put up another exhibit for you to -- for your ·8· · · · review. ·9· · · · · · ·Exhibit 15. 10· · · · · · ·(Thereupon, marked for identification is 11· · · · Plaintiff Exhibit 15.) 12· · ·BY MR. HIAASEN 13· · · · Q.· ·Ms. Shamburger, I'm going to ask you 14· ·again:· Can you see this exhibit on your screen? 15· · · · A.· ·I can. 16· · · · Q.· ·Okay.· Can you review the document and 17· ·tell me if you recognize it. 18· · · · A.· ·I do recognize this document. 19· · · · Q.· ·Can you tell the Court what it is? 20· · · · A.· ·This is a letter that we received from 21· ·Commissioner Corcoran and the Department 22· ·of Education expressing concerns and ultimately 23· ·rejecting our plan that we as a board had voted on, 24· ·on August the 6th. 25· · · · Q.· ·And if I can call your attention to the
0063 Page 58 ·1· ·first sentence of the second paragraph, kind of in ·2· ·the middle of the page. ·3· · · · · · ·Do you see that? ·4· · · · A.· ·I'm sorry, can you repeat?· The second ·5· ·paragraph? ·6· · · · Q.· ·Yeah, it starts with the words "this ·7· ·blanket."· Do you see that? ·8· · · · A.· ·I do. ·9· · · · Q.· ·Can you just read that aloud for the 10· ·Court? 11· · · · A.· ·Sure. 12· · · · · · ·"This blanket, districtwide decision 13· ·directly contradicts the district's reopening plan, 14· ·which was approved because it was consistent with 15· ·the purpose and framework of Emergency Order 16· ·2020-EO-06." 17· · · · Q.· ·Now, did you believe that your amended 18· ·plan on -- that was passed on August 6th by the 19· ·board was in direct contradiction of the emergency 20· ·order or your -- or the district's previous plan? 21· · · · A.· ·Absolutely.· I did not believe that, and 22· ·my vote was based on the belief that we absolutely 23· ·would be in compliance, and I had no reason to 24· ·believe that the State would reject it. 25· · · · Q.· ·Okay.
0064 Page 59 ·1· · · · · · ·MR. HIAASEN:· I'd like to -- if we can go ·2· · · · to page 2, I think. ·3· · · · · · ·So if you see on page 2, there's a list ·4· · · · of -- on this -- sorry, Your Honor, I just want ·5· · · · to make sure I find the right language I wanted ·6· · · · to call the witness's attention to. ·7· · · · · · ·Actually, the bottom of the page 2 under ·8· · · · the paragraph 6. ·9· · ·BY MR. HIAASEN 10· · · · Q.· ·Do you see the paragraph begins, "To be 11· ·consistent with this framework"?· Do you see that? 12· · · · A.· ·I do. 13· · · · Q.· ·Can you read that first sentence to -- 14· ·aloud to the Court, please? 15· · · · A.· ·"To be consistent with the framework of 16· ·the emergency order, district school boards and 17· ·superintendents must roll up their sleeves and go 18· ·school by school, grade by grade, and classroom by 19· ·classroom to thoughtfully determine how parents that 20· ·desire in-person instruction for their children can 21· ·be accommodated." 22· · · · Q.· ·At the meeting on August 6th, did anyone 23· ·on the medical panel recommend that the school 24· ·district close schools on a classroom-by-classroom 25· ·basis, or did they recommend that nothing should
0065 Page 60 ·1· ·be -- no schools should be opened at all? ·2· · · · A.· ·My -- my recollection of that August 6th ·3· ·meeting was that the medical experts, based on the ·4· ·question that I asked them, that no school buildings ·5· ·should be open based on the current data or the ·6· ·metrics. ·7· · · · Q.· ·Do you believe it's even possible to ·8· ·create a plan on a school-by-school basis or a ·9· ·classroom-by-classroom basis based on the data 10· ·available to the school district about the 11· ·coronavirus? 12· · · · A.· ·No, I personally think that's an 13· ·impossibility.· And that's for a myriad of reasons, 14· ·but the most important is that, you know, 15· ·unfortunately, corona cases don't follow district 16· ·boundaries. 17· · · · · · ·We have -- like most districts in 18· ·Hillsborough County, we have -- most of our schools 19· ·are magnet schools where our students are bussed 20· ·from communities around the county, and that's -- 21· ·that happens in every school.· And so to be able to 22· ·determine a school-by-school or class-by-class, 23· ·where our schools are represented by the entire 24· ·county, I feel like, is an impossibility. 25· · · · Q.· ·Now, in this letter, was there any
0066 Page 61 ·1· ·language referring to funding for the schools if the ·2· ·August 6th plan were implemented by ·3· ·Hillsborough County? ·4· · · · A.· ·I'm sorry, can you repeat the question? ·5· · · · Q.· ·Were you advised of any -- is there ·6· ·anything in the letter referencing funding or a ·7· ·potential loss of funding if the August 6th plan ·8· ·were implemented by Hillsborough County? ·9· · · · A.· ·You know, my understanding, after we 10· ·received this letter -- and I apologize, I can't 11· ·recall if it's specifically stated in this letter -- 12· ·but the main concern was that we would lose funding 13· ·if we had decided to move forward with the plan that 14· ·had been -- that I had cast my vote for on August 15· ·the 6th.· Which was a surprise and very concerning. 16· · · · · · ·Again, as I previously testified, a 17· ·funding -- funding had never been an issue when it 18· ·came to this pandemic, or how we were educating our 19· ·students.· And I was especially surprised that the 20· ·board, myself, had only voted for a four-week 21· ·respite to allow the numbers to go down. 22· · · · · · ·I mean, if you think about that, that's 23· ·really only 20 school days.· A mere 20 days to 24· ·ensure safety of our teachers and our students, and 25· ·our family members and our -- in our community.
0067 Page 62 ·1· · · · · · ·And then when I learned that potentially ·2· ·we would lose $23 million or more in funding, I was ·3· ·completely shocked and surprised.· I mean, that's a ·4· ·hit of almost a million dollars per day when you ·5· ·look at a mere 20 days that we were asking to delay ·6· ·the plan. ·7· · · · Q.· ·You mentioned a loss of $23 million.· Was ·8· ·that -- how -- was that information conveyed to you ·9· ·by the administration of Hillsborough County school 10· ·district? 11· · · · A.· ·Yeah.· So once this letter was received 12· ·from Commissioner Corcoran, I did speak with our 13· ·superintendent, Mr. Addison Davis, about, well, what 14· ·were the plans, how would we navigate this, to keep 15· ·ourselves in compliance, but first and foremost, 16· ·keeping our students and our staff safe. 17· · · · · · ·And then it was brought to the attention 18· ·that had we decided to keep this four-week plan, 19· ·that we would, in fact, be penalized.· $23 million. 20· ·Children were going to be penalized $23 million in 21· ·an already woefully unfunded system. 22· · · · · · ·Hillsborough County school system, just 23· ·like all districts, are woefully underfunded.· And 24· ·it was certainly something we could not take a hit 25· ·on.· So that is a conversation that I had with the
0068 Page 63 ·1· ·superintendent. ·2· · · · Q.· ·Now, can -- do you recall what the school ·3· ·administration, school district administration, did ·4· ·in response to receiving this letter from ·5· ·Mr. Corcoran? ·6· · · · A.· ·Well, we immediately went back to the ·7· ·drawing board. ·8· · · · · · ·You know, I really felt like -- I felt ·9· ·like, as a board member, I was stuck between a rock 10· ·and a hard place being -- being forced to choose 11· ·between the life of a student and funding from the 12· ·State.· I mean, this has become a new -- the new 13· ·pro-choice versus pro-life debate, and it really put 14· ·us in a hard situation. 15· · · · · · ·And so immediately after receiving this, I 16· ·did speak with the superintendent who, my 17· ·understanding, immediately, in good faith, and as he 18· ·should have, contacted the Department of Education 19· ·to try to come up with a reasonable compromise that 20· ·would, one, keep us financially funded, and, two, 21· ·that would also keep our staff and our students and 22· ·our family safe without having to return them all to 23· ·the classroom as -- as mandated. 24· · · · Q.· ·So your understanding is that the 25· ·administration, through the superintendent,
0069 Page 64 ·1· ·Mr. Davis, tried to negotiate with Mr. Corcoran ·2· ·about the amended plan? ·3· · · · A.· ·Yeah, he did.· That is my understanding of ·4· ·my conversation with the superintendent. ·5· · · · · · ·He did reach out to -- and I'm not exactly ·6· ·sure if it was Mr. Corcoran directly or the ·7· ·chancellors, or someone with the Department of ·8· ·Education, but he did, as I understand, immediately ·9· ·try to reach a reasonable compromise that was still 10· ·ultimately rejected, despite our best faith efforts 11· ·to get something that would be suitable for the 12· ·community that we serve. 13· · · · · · ·And that's an issue that I have.· You 14· ·know, I was elected to represent this community. I 15· ·know this community very well.· I've lived in this 16· ·community my entire life, and to have Tallahassee 17· ·really strangle my authority and my rights as an 18· ·elected board member was extremely concerning. 19· · · · · · ·And so today, we find a community that 20· ·remains in limbo in hardship and in stress, and -- 21· ·of being forced to be put back into unsafe 22· ·situations.· I'm receiving thousands of emails from 23· ·concerned teachers and families because of where we 24· ·are today. 25· · · · Q.· ·Can you tell the Court what the current
0070 Page 65 ·1· ·plan for Hillsborough is -- for ·2· ·Hillsborough County's school reopening is under the ·3· ·current arrangement with the State and ·4· ·Commissioner Corcoran? ·5· · · · A.· ·Well, the last vote that I made as an ·6· ·elected Hillsborough County School Board member was ·7· ·to delay the opening on -- until the first four ·8· ·weeks of school.· So we would not reopen our school ·9· ·buildings until September the 21st. 10· · · · · · ·However, it appears that there has been a 11· ·decision made to go against medical advice and 12· ·reopen our school buildings on August the 31st to be 13· ·in compliance with the executive order, which again 14· ·mandates that school buildings be open 15· ·brick-and-mortar in August. 16· · · · · · ·So right now, against medical advice, we 17· ·are going to be putting our students and teachers in 18· ·harm's way. 19· · · · Q.· ·You said it's August 31st? 20· · · · A.· ·Yes, August 31st. 21· · · · · · ·On August the 24th, we will do what's 22· ·called a smart start.· There will be some online 23· ·transitioning back, getting our students ready for 24· ·education. 25· · · · · · ·On August the 31st, whether it's safe or
0071 Page 66 ·1· ·not, our doors are going to be reopening. ·2· · · · · · ·MR. HIAASEN:· I'd like to show you another ·3· · · · document.· This is Exhibit 52. ·4· · · · · · ·(Thereupon, marked for identification is ·5· · · · Plaintiff Exhibit 52.) ·6· · ·BY MR. HIAASEN ·7· · · · Q.· ·I want to see if you -- could you review ·8· ·this document and see if you recognize it?· It's an ·9· ·email from the -- with -- from Addison Davis.· It 10· ·says, "To all HCPS staff." 11· · · · · · ·Do you see that? 12· · · · A.· ·I see that. 13· · · · Q.· ·Have you seen this email before? 14· · · · A.· ·Yes. 15· · · · Q.· ·Is this the email through which the school 16· ·board and school administration was informed of the 17· ·new start date agreed to between Hillsborough County 18· ·and the Department of Education? 19· · · · A.· ·Well, I can only testify that I did 20· ·receive this email as well, and so I assumed that 21· ·based on -- to whom this email is addressed to, that 22· ·this is how the superintendent decided to notify his 23· ·staff. 24· · · · · · ·MR. HIAASEN:· And you might have to go 25· · · · back to page 1 for me, I'm sorry.· There's just
0072 Page 67 ·1· · · · some language I wanted to point out to you, ·2· · · · Ms. Shamburger.· Maybe it is on page 2.· My ·3· · · · apologies. ·4· · ·BY MR. HIAASEN ·5· · · · Q.· ·I'd like you, if you can, read the middle ·6· ·paragraph, Ms. Shamburger. ·7· · · · A.· ·Sure. ·8· · · · · · ·It says, "I submitted two different ·9· ·phased-in models that would have delayed our 10· ·brick-and-mortar opening while ensuring our most 11· ·vulnerable student populations were served in a 12· ·face-to-face capacity.· Unfortunately, FLDOE 13· ·rejected both plans and were only amenable to a 14· ·full-scale reopening of schools per the emergency 15· ·order." 16· · · · Q.· ·I'd like to call your attention to what's 17· ·labeled "Proposal 1 denied." 18· · · · · · ·Do you see that? 19· · · · A.· ·I do see it. 20· · · · Q.· ·Is it your understanding that this is one 21· ·of the proposals that Mr. -- the superintendent made 22· ·to the State of Florida that was rejected?· Is 23· ·that -- 24· · · · A.· ·Based on receipt of this particular email, 25· ·that is my understanding.
0073 Page 68 ·1· · · · Q.· ·And does this plan describe a -- just, if ·2· ·you can look at phase 1 and phase 2 under Proposal ·3· ·No. 1, if you can just read those for the Court, if ·4· ·you could. ·5· · · · A.· ·I'm sorry, which part do you want me to ·6· ·read? ·7· · · · Q.· ·Under the first yellow line, phase 1 and ·8· ·phase 2 of the Proposal No. 1. ·9· · · · A.· ·Okay.· All right.· So it says, "Phase 1, 10· ·implementation date August 24th, all students will 11· ·begin eLearning.· Phase 2 implementation date 12· ·August 31st.· Continue phase 1, as well as open 13· ·targeted schools for the following student 14· ·populations for whom the parents would like 15· ·face-to-face instruction: 16· · · · · · ·"Specialized learning centers, homeless 17· ·students, and migrant students." 18· · · · Q.· ·If you could read the next phase 3 and -- 19· ·for the Court. 20· · · · A.· ·"Phase 3, implementation date 21· ·September 7th.· Continue with phase 2, as well as 22· ·open targeted schools for the following student 23· ·populations, and for whom the parents would like 24· ·face-to-face instruction: 25· · · · · · ·"Transformation network schools, FDLOE
0074 Page 69 ·1· ·lowest 300 elementary schools.· Phase 4, ·2· ·implementation September 14th, with an asterisk. ·3· ·Continue phase 2 and 3, as well as open all schools ·4· ·for students for whom the parents would like ·5· ·face-to-face instruction." ·6· · · · Q.· ·So just to be clear, this proposal, as far ·7· ·as you know, was -- has not been adopted by ·8· ·Hillsborough County, and this is not the plan that's ·9· ·going to be going forward in Hillsborough County; is 10· ·that correct? 11· · · · A.· ·That is my understanding. 12· · · · Q.· ·If we could also look at phase -- at 13· ·No. 2.· Oh, I see, the page flips there. 14· · · · · · ·Can you read for the Court phase 1, phase 15· ·2, and phase 3 of the second option? 16· · · · A.· ·Sure. 17· · · · · · ·"Phase 1, implementation August 24th, all 18· ·students will begin eLearning.· Phase 2, beginning 19· ·August 31st, continue phase 1, as well as open all 20· ·schools for the following student populations and 21· ·for whom the parents would like face-to-face 22· ·instruction: 23· · · · · · ·"FLDOE lowest 300 elementary school, 24· ·homeless students, migrant students, specialized 25· ·learning centers, and the transformation network.
0075 Page 70 ·1· · · · · · ·"Phase 3, September 7th implementation. ·2· ·Open -- open all schools for all student populations ·3· ·whom the parents would like face-to-face ·4· ·instruction." ·5· · · · Q.· ·And again, is it your understanding that ·6· ·this proposal here is not the proposal that is being ·7· ·adopted by Hillsborough County in opening schools ·8· ·this month? ·9· · · · A.· ·That is my personal understanding. 10· · · · Q.· ·And if you know, I don't know if you -- if 11· ·you do, can you describe for the Court what -- 12· ·there's a reference to FLDOE lowest 300 elementary 13· ·schools; do you see that? 14· · · · A.· ·I do. 15· · · · Q.· ·If you know, can you tell the Court what 16· ·that means? 17· · · · A.· ·My understanding, that's the Florida 18· ·Department of Education's list of the lowest 300 19· ·elementary schools.· Unfortunately, we do have 20· ·schools here in Hillsborough County, specifically 21· ·schools in my district, that are on that list of 22· ·lowest 300s. 23· · · · · · ·These are our highest need schools, and so 24· ·that's my understanding of what that refers to. 25· · · · Q.· ·Understood.· Thank you.
0076 Page 71 ·1· · · · · · ·Now, do you know if the Hills -- if the ·2· ·superintendent had any medical advice that he was ·3· ·relying on, if you know, you know, in reaching an ·4· ·agreement to open schools on August 31st? ·5· · · · A.· ·You know, not that I'm aware of. I ·6· ·certainly cannot speak -- and I'm not here today to ·7· ·speak on behalf of what the superintendent's ·8· ·understanding is. ·9· · · · · · ·However, based on our conversations with 10· ·the medical experts, and my conversations with the 11· ·superintendent about our reopening plan after 12· ·receiving the letter from the State, is that it was 13· ·not based on any new medical advice. 14· · · · · · ·Nothing had changed from that August 6th 15· ·board meeting in terms of the medical opinions. 16· · · · · · ·MR. HIAASEN:· Thank you, Ms. Shamburger. 17· · · · I have no further questions, Your Honor. 18· · · · · · ·THE COURT:· And before we move on there, 19· · · · Mr. Hiaasen, do you wish to offer Plaintiffs' 20· · · · Exhibits 5, 15, and 52 into evidence? 21· · · · · · ·MR. HIAASEN:· I would, Your Honor. 22· · · · · · ·THE COURT:· Any objection? 23· · · · · · ·MR. WELLS:· No, Your Honor. 24· · · · · · ·THE COURT:· Okay.· Plaintiffs' 5, 15, and 25· · · · 52 are admitted.
0077 Page 72 ·1· · · · · · ·(Thereupon, received in evidence as ·2· · · · Plaintiff Exhibits 5, 15, and 52.) ·3· · · · · · ·THE COURT:· Okay.· Cross? ·4· · · · · · ·MR. WELLS:· Yes, Your Honor.· Thank you. ·5· · · · · · · · · · CROSS EXAMINATION ·6· · ·BY MR. WELLS ·7· · · · Q.· ·Ms. Shamburger, I'm David Wells, ·8· ·representing the State defendants in this case. ·9· ·Thank you for taking the time here today. 10· · · · · · ·MR. WELLS:· Can we pull up the emergency 11· · · · order, Nate, please? 12· · · · · · ·Bear with us.· It's going to take up a 13· · · · couple of minutes to pull up some of these 14· · · · documents and go back to them.· There we go. 15· · · · · · ·(Thereupon, marked for identification is 16· · · · Defense Exhibit 10.) 17· · ·BY MR. WELLS 18· · · · Q.· ·Okay.· Ms. Shamburger, this is the 19· ·emergency order that you looked at a little while 20· ·ago, Exhibit No. 10.· And I believe you told us you 21· ·read it when it came out? 22· · · · A.· ·Yes, sir. 23· · · · Q.· ·Okay.· And in the whereas clauses, the 24· ·second one says, "Whereas, education is critical to 25· ·the success of the State to an individual, and the
0078 Page 73 ·1· ·extended school closures can impede educational ·2· ·access of students, impact families' well-being, and ·3· ·limit many parents and guardians from returning to ·4· ·work." ·5· · · · · · ·You don't disagree with that statement, do ·6· ·you? ·7· · · · A.· ·No, absolutely I do not.· Education is ·8· ·critical, especially to this -- the constituents ·9· ·that I represent.· So I don't disagree with that 10· ·statement. 11· · · · Q.· ·And you would agree also that in the next 12· ·paragraph, "Schools are not just the site of 13· ·academic learning, they provide many services to 14· ·students that are critical to the well-being of 15· ·students and families, such as nutrition, 16· ·socialization, counseling, and extracurricular 17· ·activities." 18· · · · · · ·And that's definitely a concern for your 19· ·constituents in Hillsborough County, isn't it? 20· · · · A.· ·Yeah, I do agree with that as well, that 21· ·those things are critical, but I think it's also 22· ·important to qualify that those things can happen 23· ·and are critical when the environment is safe. 24· · · · · · ·And unfortunately, we can't provide our 25· ·students right now with that particular environment
0079 Page 74 ·1· ·because it's simply not safe for them. ·2· · · · Q.· ·Understood. ·3· · · · · · ·You don't disagree that those are policies ·4· ·that should be pursued to try to make the schools ·5· ·open, you disagree with the timing based on your ·6· ·understanding of what these doctors told you? ·7· · · · A.· ·I do agree with that statement. ·8· ·Absolutely. ·9· · · · Q.· ·Okay.· And so if you were the one to make 10· ·this policy decision based on the data, you would 11· ·say, I believe you testified, open at the end of the 12· ·first nine weeks? 13· · · · A.· ·I'm sorry, repeat your question. 14· · · · Q.· ·If you were the one who got to decide when 15· ·Hillsborough County went back to school, I believe 16· ·you told us that it would be at the end of the first 17· ·nine weeks, because that's a logical breaking point. 18· · · · A.· ·Well, that was my recommendation. 19· · · · · · ·If that decision was solely based upon me, 20· ·it would be whatever timeline is deemed safe for our 21· ·students to return, whether it's four weeks, nine 22· ·weeks, or 90 months.· I think it has to be based on 23· ·sound and scientific medical advice. 24· · · · Q.· ·Understand. 25· · · · · · ·Just getting back to what your proposal
0080 Page 75 ·1· ·was, what you thought was the right thing after your ·2· ·meeting, based on the information you had, you said ·3· ·do it at the end of the nine weeks; am I right? ·4· · · · A.· ·You are correct.· Based on the information ·5· ·I had at the time.· My recommendation, also to ·6· ·minimize disruption of our most vulnerable students, ·7· ·was a recommendation for at least nine weeks. ·8· · · · Q.· ·Understood. ·9· · · · · · ·And, now, the -- prior to this emergency 10· ·order coming -- let me just back up, strike this. 11· · · · · · ·Your superintendent began planning for 12· ·what to do in the 2020-2021 school year actually 13· ·even before school was done from the prior semester, 14· ·didn't he? 15· · · · A.· ·I -- I don't recall the exact timeline of 16· ·when he began his work regarding a reopening plan, 17· ·but I believe, my understanding, our superintendent 18· ·was very proactive in crafting a really good 19· ·reopening plan for our students. 20· · · · Q.· ·Okay.· Sorry, I'm bouncing around here a 21· ·little bit. 22· · · · · · ·Okay.· And the superintendent has a staff, 23· ·and he works with that staff to try to put these 24· ·plans together? 25· · · · A.· ·That is my understanding.
0081 Page 76 ·1· · · · Q.· ·And ultimately, when those plans are put ·2· ·together, it's brought before the school board for a ·3· ·discussion and a vote? ·4· · · · A.· ·That is correct. ·5· · · · Q.· ·And there's seven members on your school ·6· ·board, or there were during this period of time? ·7· · · · A.· ·That is correct. ·8· · · · Q.· ·And the votes for the plans were never ·9· ·unanimous, were they, at least this year? 10· · · · A.· ·That is correct. 11· · · · Q.· ·Am I correct that the first one was 12· ·five-to-two, and then there was a vote on whether to 13· ·go ahead and open up the schools; what was the vote 14· ·there? 15· · · · A.· ·So let me just make sure I'm understanding 16· ·and answering correctly. 17· · · · · · ·The first vote to reopen, including 18· ·brick-and-mortar, was five-to-two.· I was one of the 19· ·dissenting votes because I didn't believe it was 20· ·safe to include brick-and-mortar in any reopening 21· ·plans. 22· · · · · · ·Ultimately, on August the 6th, our second 23· ·vote, I did -- I was on the prevailing side of that 24· ·vote, which was also, I believe, five-to-two, which 25· ·included a four-week delay in implementing the prior
0082 Page 77 ·1· ·plan. ·2· · · · Q.· ·Has there been any vote since then? ·3· · · · A.· ·There has not. ·4· · · · Q.· ·Okay.· Thank you. ·5· · · · · · ·So they're all five-to-two; the only ·6· ·difference is whether you were on the five side or ·7· ·the two side? ·8· · · · A.· ·That is correct.· The votes did flip a ·9· ·little bit. 10· · · · Q.· ·Thank you. 11· · · · · · ·Now, in your job as a school board member 12· ·and being prepared to assess the plan that your 13· ·superintendent was providing, did you review the 14· ·PowerPoint that had been provided by the Department 15· ·of Education on reopening and the CARES Act? 16· · · · A.· ·I believe I do recall seeing a webinar. 17· ·I'm not exactly sure if that is the specific one 18· ·that you're referring to, but I do recall reviewing 19· ·a PowerPoint through the Florida School Boards 20· ·Association. 21· · · · Q.· ·Okay.· And do you recall that the 22· ·PowerPoint provided guidance on what the schools 23· ·should be thinking about, or the school boards 24· ·should be thinking about, in terms of safety 25· ·measures?
0083 Page 78 ·1· · · · A.· ·I recall the PowerPoint and the executive ·2· ·order all really focusing on school choice, not so ·3· ·much safety, and mandating that our schools just be ·4· ·reopened five days a week.· Which has been the crux ·5· ·of what we've been trying to accomplish. ·6· · · · · · ·So I disagree in that -- my recollection ·7· ·of the PowerPoint from the Department of Education ·8· ·focusing on safety. ·9· · · · Q.· ·Well, let me bring up -- be fair to you. 10· ·Let me bring up the PowerPoint. 11· · · · · · ·MR. WELLS:· What exhibit is that, sir? 12· · · · Exhibit No. 2.· Defense Exhibit No. 2. 13· · · · · · ·(Thereupon, marked for identification is 14· · · · Defense Exhibit 2.) 15· · ·BY MR. WELLS 16· · · · Q.· ·Okay.· So we brought up Exhibit No. 2, 17· ·Ms. Shamburger, which is called the Reopening 18· ·Florida's Schools and the CARES Act. 19· · · · · · ·Does this look familiar to you? 20· · · · A.· ·No, this one does not.· I remember a 21· ·different PowerPoint. 22· · · · Q.· ·Okay.· Well -- 23· · · · · · ·MR. WELLS:· Mr. Hill, can you turn to the 24· · · · pages on safety, please? 25· · · · · · ·Let me bring up a few pages, just to ask
0084 Page 79 ·1· · · · you if you had the opportunity to see these ·2· · · · before. ·3· · ·BY MR. WELLS ·4· · · · Q.· ·This is part 2 of the PowerPoint.· It ·5· ·begins on page 35 and goes on for many, many pages. ·6· ·It's called Guidance for Reopening Healthy Learning ·7· ·Environments. ·8· · · · · · ·Do you recall having seen this or looked ·9· ·at this in terms of evaluating your school's plans 10· ·for reopening? 11· · · · A.· ·Once again, unfortunately, I don't recall 12· ·seeing this particular PowerPoint.· I did review 13· ·another one, but this particular page, I don't 14· ·recall. 15· · · · Q.· ·Okay.· So best of your recollection, you 16· ·didn't see the materials that had been provided by 17· ·the Florida Department of Education to guide schools 18· ·on reopening in a healthy learning environment? 19· · · · A.· ·Well, it -- those documents were not 20· ·provided to me directly.· They may have been 21· ·provided to the superintendent, whom we rely on to 22· ·follow these guidelines and present the accurate 23· ·information to the board. 24· · · · · · ·Outside of what the superintendent may 25· ·have provided me personally, certainly, there's been
0085 Page 80 ·1· ·information through, like, the Florida School Boards ·2· ·Association, to which I'm a member, has provided ·3· ·some information as well. ·4· · · · · · ·But this particular PowerPoint was not ·5· ·sent to me personally. ·6· · · · Q.· ·Fair enough. ·7· · · · · · ·It's fair to say that as a school board ·8· ·member, you rely upon the superintendent to be ·9· ·informed, to use all of the guidance and information 10· ·available to come up with the best plan possible? 11· · · · A.· ·Absolutely I would.· I would agree that 12· ·that's our expectation, or at least my expectation, 13· ·as a -- as a school board member. 14· · · · Q.· ·All right.· And under the plan that was 15· ·put together by your superintendent for your review, 16· ·there were options provided to parents for 17· ·different, what you call it, learning environments? 18· · · · A.· ·Correct. 19· · · · Q.· ·Okay.· One of the options is to have your 20· ·child in school the way most of us grew up, being 21· ·there face-to-face; am I right? 22· · · · A.· ·That was one of the options provided to 23· ·our families, was the brick-and-mortar option, just 24· ·being back in traditional -- in a traditional 25· ·classroom.
0086 Page 81 ·1· · · · Q.· ·And another option was that you -- the ·2· ·student would not be in the classroom, but he ·3· ·would -- or she -- would actually be getting ·4· ·education from his teacher over the computer? ·5· · · · A.· ·That is correct.· That is what we call ·6· ·eLearning. ·7· · · · Q.· ·eLearning. ·8· · · · · · ·And then does Hillsborough have, like some ·9· ·of the other counties, an actual virtual school? 10· · · · A.· ·We do have Hillsborough Virtual School. 11· · · · Q.· ·So that would be a third option that 12· ·parents can choose from to attend school through the 13· ·fully virtual school? 14· · · · A.· ·Yeah, that is correct.· Those are the 15· ·choices for parents.· Teachers, however, lacked some 16· ·of those choices. 17· · · · Q.· ·Understood. 18· · · · · · ·We're focusing now on the options that 19· ·were provided to the parents, and you'd agree it was 20· ·to have your child there face-to-face, to have your 21· ·child in the classroom but from home over the 22· ·computer, and to have your child in the virtual 23· ·school; those were the choices? 24· · · · A.· ·Yes, sir.· I agree. 25· · · · Q.· ·And that information was sent out to the
0087 Page 82 ·1· ·parents to inquire what choice they wanted to make? ·2· · · · A.· ·Yeah, that is correct.· Our superintendent ·3· ·did send out what is called a declaration of intent, ·4· ·where we asked our families to declare what their ·5· ·intentions were upon reopening of our school ·6· ·buildings. ·7· · · · · · ·As previously testified, we know that more ·8· ·than half decided not to return their children to ·9· ·the classroom, but about 42 percent had made that 10· ·request. 11· · · · · · ·Now, let me be very clear that that 12· ·declaration of intent was sent prior to our meeting 13· ·with the medical experts.· I have personally asked 14· ·our superintendent to reopen that declaration of 15· ·intent so that our families can make a more informed 16· ·decision based on the newly available information. 17· · · · · · ·To date, that has not been done.· So the 18· ·information -- the 42 percent that have decided, I 19· ·personally have heard from families who have 20· ·requested to change their intent, and so that may -- 21· ·so the information right now, I would just say, is 22· ·potentially inaccurate. 23· · · · Q.· ·Your recollection is 42 percent chose, and 24· ·there may be some who, as time has passed by, 25· ·decided not to go with the in-person option?
0088 Page 83 ·1· · · · A.· ·Well, that is correct.· Again, the ·2· ·declaration of intent was done before our meeting ·3· ·with the medical experts. ·4· · · · Q.· ·I -- ·5· · · · A.· ·Families, to date, have not been given an ·6· ·option to reassess. ·7· · · · Q.· ·I understand. ·8· · · · · · ·You told me, though, that some have ·9· ·indicated they do not wish to be in person, correct? 10· · · · A.· ·I have heard personally from a good number 11· ·of my constituents who have indicated that they 12· ·desire to change their choice from brick-and-mortar 13· ·to eLearning.· And inevitably, there may be 14· ·parents who'd like to do the opposite, they just 15· ·have not been given the option at this point. 16· · · · Q.· ·And that is going to be their option; 17· ·they -- parents are going to decide whether their 18· ·children are there or they're in the computer class? 19· · · · A.· ·Well, if this is an issue about parent 20· ·choice, I agree.· The problem is, this is not -- 21· · · · Q.· ·Ma'am, if you could just answer my 22· ·question.· We've heard that already. 23· · · · · · ·My question is:· The parents have the 24· ·choice; am I right? 25· · · · A.· ·The parents do have a choice at this
0089 Page 84 ·1· ·point, yes. ·2· · · · Q.· ·Okay.· Thank you. ·3· · · · · · ·Now, you testified about a decision after ·4· ·listening to a group of doctors and others to put ·5· ·off the actual in-face education for a number of ·6· ·weeks, correct? ·7· · · · A.· ·That's correct. ·8· · · · Q.· ·And then after that, you were shown a ·9· ·letter that was written by Richard Corcoran, or at 10· ·least signed by Richard Corcoran, to Addison Davis, 11· ·the superintendent.· And that's who the 12· ·superintendent is? 13· · · · A.· ·Our superintendent is Mr. Addison Davis. 14· · · · Q.· ·And Melissa Snively is the chair? 15· · · · A.· ·She is our chairperson, yes. 16· · · · Q.· ·Okay. 17· · · · · · ·MR. WELLS:· Can we bring up Exhibit 10? 18· · ·BY MR. WELLS 19· · · · Q.· ·This is a letter, ma'am, I believe you 20· ·testified you've seen before you came here? 21· · · · A.· ·That is correct. 22· · · · Q.· ·Okay. 23· · · · · · ·MR. WELLS:· And if we can turn to the 24· · · · second page, Mr. Hill, please. 25
0090 Page 85 ·1· · ·BY MR. WELLS ·2· · · · Q.· ·Now, if you can look with me at this -- ·3· ·the first full paragraph, what Mr. Corcoran says is, ·4· ·"Districtwide delays, the entire district being put ·5· ·off, if they're not in phase 1, is inconsistent with ·6· ·the emergency order," and he goes on to say, "It's ·7· ·subject to day-to-day decisions to open or close a ·8· ·school, but that's a school and not the entire ·9· ·district." 10· · · · · · ·You saw that, right? 11· · · · A.· ·Yes. 12· · · · Q.· ·And then he goes on to say if you're going 13· ·to have a districtwide delay, if you think, as a 14· ·school board, that there should be a districtwide 15· ·delay, he's asking for information behind that. 16· ·What you've done to make that determination. 17· · · · · · ·Do you see that in the numbered paragraphs 18· ·1 through 6? 19· · · · A.· ·I do see that. 20· · · · Q.· ·Okay.· For example, you're asked what the 21· ·student capacities are at a school, the number of 22· ·students requested in-person instruction, and 23· ·additional information that would, you know, help 24· ·those involved to understand whether it truly makes 25· ·sense to close down the entire district as opposed
0091 Page 86 ·1· ·to something else, and you saw that? ·2· · · · A.· ·I see that in this letter, yes. ·3· · · · Q.· ·And do you know whether your ·4· ·superintendent was charged to go back and pull ·5· ·together this information and provide it back to the ·6· ·Department of Education to say, "Look, here -- ·7· ·here's what we've looked at, here's what we've tried ·8· ·to do, and it just doesn't work"? ·9· · · · A.· ·Well, once again, I can't testify what the 10· ·superintendent's understanding is of this letter or 11· ·what he was tasked to do by the Department 12· ·of Education. 13· · · · · · ·In terms of this letter, I can say, 14· ·though, that my vote on August the 6th was based on 15· ·the information previously provided.· This 16· ·information you just discussed was not a part of 17· ·what I voted on or considered when making my vote, 18· ·because it had never been presented prior to that 19· ·time. 20· · · · Q.· ·Okay.· And so this was given back to the 21· ·superintendent to follow up on, and I believe you 22· ·testified that he did have discussions with someone 23· ·at the Department of Education to try to answer 24· ·these questions and move forward; is that correct? 25· · · · A.· ·So my understanding is that the
0092 Page 87 ·1· ·superintendent, after receiving this letter, did ·2· ·attempt to reach a compromise with the State. ·3· · · · Q.· ·Okay.· And you were shown an email that ·4· ·dealt with a portion of that. ·5· · · · · · ·MR. WELLS:· I'd like to bring up ·6· · · · Defendant's Exhibit 21, Mr. Hill, which is the ·7· · · · same email chain but including the response ·8· · · · from the senior chancellor for the Florida ·9· · · · Department of Education. 10· · · · · · ·(Thereupon, marked for identification is 11· · · · Defense Exhibit 21.) 12· · ·BY MR. WELLS 13· · · · Q.· ·So if you can -- you can see that it's the 14· ·same email chain, ma'am, but in the middle there's 15· ·actually the response here from -- 16· · · · · · ·MR. WELLS:· And why don't you scroll down, 17· · · · Mr. Hill, so she can see that.· Keep going. 18· · ·BY MR. WELLS 19· · · · Q.· ·Eric Hall, Doctor of Education, Senior 20· ·Chancellor of Florida Department of Education. 21· · · · · · ·Have you seen this before, this portion -- 22· · · · A.· ·I do recall -- I -- I apologize. 23· · · · Q.· ·Okay. 24· · · · A.· ·I do recall seeing this email. 25· · · · Q.· ·And you -- Mr. Hiaasen was asking you
0093 Page 88 ·1· ·about the proposals and what was accepted and what ·2· ·was rejected. ·3· · · · · · ·Do you agree with me that the third ·4· ·sentence -- last sentence of paragraph 2 says, "If ·5· ·you wish to proceed with either of the proposals," ·6· ·the ones that you went to in terms of the DOE ·7· ·schools and the like, "a school-by-school analysis ·8· ·is required with an amended plan as outlined in the ·9· ·August 7th letter from the commissioner"? 10· · · · · · ·Do you see that? 11· · · · A.· ·I do see that there. 12· · · · Q.· ·Do you know whether the superintendent has 13· ·ever done that, ever reengaged with the Department 14· ·to provide that information and seek the 15· ·modification of the plan to make the changes that 16· ·you were proposing? 17· · · · A.· ·So once again, I cannot testify to what 18· ·the superintendent's understanding or what his 19· ·actions were in regards to this letter. 20· · · · · · ·However, again, the superintendent did 21· ·attempt to reach a compromise with the State.· This 22· ·was new information presented to us after we had 23· ·submitted an amended plan.· So there was a wrench 24· ·thrown in the plan.· We were forced to now, on the 25· ·drop of a dime, pivot and try to come up with
0094 Page 89 ·1· ·something new that we were never told we had to do ·2· ·prior to this letter. ·3· · · · Q.· ·Thank you. ·4· · · · · · ·So to answer my question, you don't know ·5· ·what the superintendent has done in response to ·6· ·Mr. Hall's request? ·7· · · · A.· ·I know the superintendent did, again, ·8· ·attempt to compromise with the State.· One, keeping ·9· ·the safety of our teachers and our students and our 10· ·community safe first, and also complying with the 11· ·will and the desire and the vote of his school 12· ·board. 13· · · · Q.· ·Okay.· I'll try one more time on my 14· ·question. 15· · · · · · ·Do you know after he received from 16· ·Mr. Hall -- you've testified about the negotiations. 17· ·We've looked at it in the earlier email. 18· · · · · · ·I'm asking you:· Do you know what 19· ·happened, if anything, after Mr. Hall requested the 20· ·additional information? 21· · · · A.· ·Well, my response is the same. 22· · · · · · ·It's my understanding the superintendent 23· ·did reach out to the Department of Education -- to 24· ·whom he spoke with, he would need to testify to 25· ·that -- and he did attempt to reach a compromise
0095 Page 90 ·1· ·after receiving this letter. ·2· · · · Q.· ·Okay.· And do you know what his -- strike ·3· ·that. ·4· · · · A.· ·I'm sorry, I didn't hear the question. ·5· · · · Q.· ·I said "strike that."· I changed my mind ·6· ·on the question.· Thank you. ·7· · · · · · ·MR. WELLS:· Give me just a minute here. ·8· · · · · · ·I don't have any further questions, Your ·9· · · · Honor. 10· · · · · · ·THE COURT:· Any redirect? 11· · · · · · ·MR. HIAASEN:· Yes, Your Honor.· I'll try 12· · · · and keep it brief. 13· · · · · · ·We can go back to Exhibit 15. 14· · · · · · · · · ·REDIRECT EXAMINATION 15· · ·BY MR. HIAASEN 16· · · · Q.· ·Ms. Shamburger, Mr. Wells had just asked 17· ·you about -- this is a copy of the August 7th letter 18· ·from Mr. Corcoran to the Hillsborough County school 19· ·district.· Why don't you just go up a little bit. 20· · · · · · ·At the top of the page, I believe 21· ·Mr. Wells asked you about the -- the first full 22· ·paragraph, the first sentence in the first full 23· ·paragraph, it says "Districtwide delays." 24· · · · · · ·Do you see that? 25· · · · A.· ·Yes, uh-huh.
0096 Page 91 ·1· · · · Q.· ·Referencing phase 1, saying it's ·2· ·inconsistent with the emergency order. ·3· · · · · · ·Do you see that? ·4· · · · A.· ·I do see that, yes. ·5· · · · Q.· ·Do you recall any reference to a phase 1 ·6· ·in the emergency order from Mr. Corcoran on ·7· ·July 6th? ·8· · · · A.· ·No, not at all. ·9· · · · Q.· ·Mr. Wells also asked you about a 10· ·PowerPoint presentation from the Department of 11· ·Education.· I believe the way it was described was 12· ·that it provided some safety guidance to public 13· ·school districts for how to reopen -- or safety 14· ·guidance for schools. 15· · · · · · ·Do you recall that? 16· · · · A.· ·Yes. 17· · · · Q.· ·Did any medical expert ever advise you at 18· ·the -- and the Hillsborough County School Board that 19· ·there's any guidance from the State that would make 20· ·it safe to reopen schools, irrespective of the 21· ·community spread at the time? 22· · · · A.· ·Repeat your question. 23· · · · Q.· ·And, my apologies. 24· · · · · · ·When you had the medical experts 25· ·testifying before -- for -- before the school board
0097 Page 92 ·1· ·on August 6th, did anybody testify that if certain ·2· ·guidelines from the State were followed as to ·3· ·maintaining safety within a classroom or a school ·4· ·building, that following those guidelines by ·5· ·themselves, would it be sufficiently safe to reopen ·6· ·schools, irrespective of the positivity rate or the ·7· ·community spread of the virus at the time the ·8· ·schools were opened? ·9· · · · · · ·MR. WELLS:· Object to the leading, Your 10· · · · Honor. 11· · · · · · ·THE COURT:· I'll allow the question. 12· · · · A.· ·My -- my understanding of the testimony 13· ·from the medical experts, that it was simply unsafe 14· ·to open our school buildings or our buildings for 15· ·anyone at that time based on the current metrics. 16· ·We were highly encouraged to rely on the metrics, to 17· ·rely on medical advice, when reopening our schools. 18· · · · · · ·Based on that information, the vote took 19· ·place, which is why we requested a delay of a mere 20· ·20 school days before opening our school buildings. 21· · ·BY MR. HIAASEN 22· · · · Q.· ·Thank you. 23· · · · · · ·I'd just like -- I'd like to call your 24· ·attention back to the August 7th letter.· My 25· ·apologies.· There's one additional issue I want to
0098 Page 93 ·1· ·discuss with you from this letter. ·2· · · · · · ·MR. HIAASEN:· If you can go to the end of ·3· · · · the exhibit to page 3. ·4· · ·BY MR. HIAASEN ·5· · · · Q.· ·So I'd like you to -- if you can read for ·6· ·the Court this paragraph here on the top of page 3 ·7· ·of the August letter to Mr. Corcoran. ·8· · · · A.· ·Sure. ·9· · · · · · ·"Your district has three options going 10· ·forward.· First, you can follow your approved plan. 11· ·Second, you can submit an amended plan, consistent 12· ·with the guidance in this letter, by August 14th, 13· ·2020.· Third, you can withdraw your plan and proceed 14· ·under the existing statutory framework." 15· · · · Q.· ·Was it -- thank you for doing that. 16· · · · · · ·Was it your understanding, based on -- do 17· ·you recall reading this language when you -- when 18· ·the school district originally received this letter 19· ·on August 7th? 20· · · · A.· ·I'm sorry, you said do I recall reading 21· ·this -- can you repeat the question? 22· · · · Q.· ·Yes. 23· · · · · · ·Do you recall seeing this portion of the 24· ·letter when it was received by the school district 25· ·on August 7th, I believe?
0099 Page 94 ·1· · · · A.· ·Yes, I do recall reading this portion of ·2· ·the letter.· The entire letter was received by the ·3· ·school district. ·4· · · · Q.· ·And from this language, what was your ·5· ·understanding of what Mr. Corcoran wanted from the ·6· ·school district in this letter? ·7· · · · A.· ·Well, quite simply, my interpretation was, ·8· ·it was going to be his way or no way, and that he ·9· ·was rejecting our plan, despite our reasonings and 10· ·authority to make the plan that had been 11· ·resubmitted, and that we were now given a whole new 12· ·entirely set of circumstances or things that we 13· ·needed to do in order to be in compliance. 14· · · · · · ·This was now a whole new set of things 15· ·that we needed to comply with. 16· · · · · · ·MR. HIAASEN:· Thank you, Ms. Shamburger. 17· · · · · · ·I have no further questions, Your Honor. 18· · · · · · ·THE COURT:· Okay.· May Ms. Shamburger be 19· · · · excused? 20· · · · · · ·MR. WELLS:· As far as we're concerned, 21· · · · Your Honor, yes. 22· · · · · · ·MR. MEYER:· Yes, Your Honor. 23· · · · · · ·THE COURT:· Okay.· Ms. Shamburger, you may 24· · · · leave the meeting. 25· · · · · · ·Plaintiffs, call your next witness.
0100 Page 95 ·1· · · · MR. MEYER:· Your Honor, our next witness ·2· ·is in the waiting room.· It's James Lis, L-I-S. ·3· ·And Jacob Stuart will conduct the direct ·4· ·examination of Mr. Lis. ·5· · · · THE COURT:· Okay.· We'll let Mr. Lis into ·6· ·the meeting at this time. ·7· · · · Mr. Lis, you can go ahead and take your ·8· ·microphone off mute. ·9· · · · And do we have a video of Mr. Lis? 10· · · · MR. STUART:· We should, Your Honor.· We 11· ·tested it with him earlier today, so it should 12· ·be ready to go. 13· · · · THE COURT:· Mr. Lis, if you could enact 14· ·your video, please. 15· · · · THE WITNESS:· I'm trying to. 16· · · · MR. MEYER:· Would be down on the bottom 17· ·next to the mute button. 18· · · · THE WITNESS:· I did click it, but it says 19· ·"cannot start video."· And it's failing to 20· ·start the video. 21· · · · MR. STUART:· Mr. Lis, would you try 22· ·signing out and try signing back in, please. 23· · · · THE WITNESS:· Will do. 24· · · · MR. STUART:· All right.· And, Your Honor, 25· ·if you just would allow him back in the room
0101 Page 96 ·1· ·when he gets back in the lobby. ·2· · · · THE COURT:· Sure. ·3· · · · MR. STUART:· My colleague Mr. Wieland is ·4· ·stepping off the call to make sure Mr. Lis can ·5· ·get on, Your Honor.· So I'm sorry for the ·6· ·delay.· We had it set up. ·7· · · · THE COURT:· Let's just take a five-minute ·8· ·break while we work on getting Mr. Lis back. ·9· ·We've been going for almost two hours, so court 10· ·will be in recess for five minutes. 11· · · · MR. MEYER:· Thank you, Your Honor. 12· · · · (Recess from 10:27 a.m. to 10:36 a.m.) 13· · · · THE COURT:· Okay.· Everybody ready to 14· ·start back? 15· · · · MR. STUART:· Plaintiffs are, Your Honor. 16· · · · THE COURT:· Okay.· We can go ahead and 17· ·admit Mr. Lis now. 18· · · · MR. WELLS:· Yes, Your Honor. 19· · · · THE COURT:· See if that works. 20· · · · MR. STUART:· There he is. 21· · · · THE COURT:· Okay.· Looks like he's still 22· ·connecting to audio, it says. 23· · · · All right.· Mr. Lis, can you hear me okay? 24· ·All right.· Go ahead and unmute yourself there. 25· · · · THE WITNESS:· Okay.· Can you hear me now?
0102 Page 97 ·1· · · · · · ·THE COURT:· Yes, sir.· If you'd raise your ·2· · · · right hand, please. ·3· ·Thereupon: ·4· · · · · · · · · · · · JAMES LIS ·5· ·having been sworn by the Court testified as follows: ·6· · · · · · ·THE WITNESS:· I do. ·7· · · · · · ·THE COURT:· Thank you, sir.· You can put ·8· · · · your hand down. ·9· · · · · · ·THE WITNESS:· Your Honor, I'm using my 10· · · · wife's computer, thus, my name underneath is 11· · · · her name and not mine. 12· · · · · · ·THE COURT:· Got it.· Yes, sir. 13· · · · · · ·THE WITNESS:· Okay. 14· · · · · · ·MR. STUART:· May I proceed, Your Honor? 15· · · · · · ·THE COURT:· Yes, sir.· You may proceed. 16· · · · · · · · · · DIRECT EXAMINATION 17· · ·BY MR. STUART 18· · · · Q.· ·Mr. Lis, would you mind -- we have a court 19· ·reporter, a stenographer.· Would you mind giving 20· ·your full first and last name, and spell it, please. 21· · · · A.· ·First name is James, J-A-M-E-S.· Last name 22· ·is Lis, spelled L-I-S. 23· · · · Q.· ·And, Mr. Lis, how old are you? 24· · · · A.· ·Fifty-one years old. 25· · · · Q.· ·And what is your education?· Do you have a
0103 Page 98 ·1· ·bachelor's of arts or science? ·2· · · · A.· ·I have a bachelor's degree, a Bachelor of ·3· ·Arts degree, that I earned in a small liberal arts ·4· ·school in Ohio.· And then I attended ·5· ·Concordia University to earn my two-year master's ·6· ·degree in curriculum and instruction.· That's in ·7· ·Chicago. ·8· · · · Q.· ·And do you currently hold a teaching ·9· ·certificate that makes you able to teach in the 10· ·state of Florida? 11· · · · A.· ·I do. 12· · · · Q.· ·And going to why we're here today, are you 13· ·currently a teacher in Florida? 14· · · · A.· ·I am currently a high school teacher here 15· ·in Florida, in central Florida. 16· · · · Q.· ·And what school do you teach at? 17· · · · A.· ·I'm at Dr. Phillips High School. 18· · · · Q.· ·And what grade do you teach? 19· · · · A.· ·It's a mixture of 9th and 10th graders. I 20· ·teach biology. 21· · · · Q.· ·Okay.· And I know this, but the judge 22· ·doesn't because he's not around this area, I mean, 23· ·how big is Dr. Phillips?· Is it a big high school, 24· ·small? 25· · · · A.· ·It's -- it's a big high school.· I think
0104 Page 99 ·1· ·our enrollment is usually around 3,500, 3,800, ·2· ·somewhere in there. ·3· · · · Q.· ·And what about teachers and staff, do you ·4· ·know how many teachers or staff work there? ·5· · · · A.· ·Well over 200.· Two -- with staff and ·6· ·everyone, maybe, like, 250. ·7· · · · Q.· ·And since you're high school students, ·8· ·unlike in elementary school, do you rotate students ·9· ·on a class-by-class basis? 10· · · · A.· ·Yes, the school -- the children go to 11· ·seven periods in the day, but I -- I have a prep 12· ·period once a day, so I see six sections of 13· ·students. 14· · · · Q.· ·So we're clear, that means that throughout 15· ·the seven-period day, you have six different groups 16· ·of children each day? 17· · · · A.· ·Yes, usually about 25 students in each 18· ·class.· During regular times. 19· · · · Q.· ·Okay.· And what type of classroom -- when 20· ·you're back in school, what type of classroom do you 21· ·usually teach in? 22· · · · A.· ·So I -- I don't think our school is 23· ·unusual for -- for large high schools, probably, 24· ·throughout Florida, but we have two campuses.· The 25· ·main campus is a traditional high school building,
0105 Page 100 ·1· ·and then we have a 9th grade which also houses a lot ·2· ·of 10th graders, where it's strictly just portables. ·3· · · · · · ·I would guess there's probably 70 ·4· ·portables that make up the campus that I am on, ·5· ·which we call North Campus. ·6· · · · Q.· ·And you teach in one of those 70 ·7· ·portables? ·8· · · · A.· ·I teach in one of the portables.· And -- ·9· ·and the portables have been there for a long time. 10· · · · Q.· ·Okay.· And how long have you been a 11· ·teacher for, Mr. Lis? 12· · · · A.· ·This would be my 21st year. 13· · · · Q.· ·And going to a little personal now, I 14· ·don't mean to pry, but it's important, you -- you 15· ·live with your wife; is that fair to say? 16· · · · A.· ·I do. 17· · · · Q.· ·And do you also have a mother or 18· ·mother-in-law that lives with you? 19· · · · A.· ·Yes, I live with my mother-in-law. 20· · · · · · ·We -- we planned this arrangement years 21· ·ago, when I -- I first moved here from Chicago in 22· ·2005, we had young children at the time.· My 23· ·mother-in-law helped us out then.· We lived very 24· ·close to her.· But recently, as she's aged, she's 25· ·now 81 years old, she moved in two years ago to live
0106 Page 101 ·1· ·with us permanently. ·2· · · · Q.· ·And not to pry, but it's important for ·3· ·testimony today why you're here, does your ·4· ·mother-in-law -- does she have any medical ·5· ·conditions that would make her susceptible to ·6· ·COVID-19? ·7· · · · A.· ·Well, as I -- I look at the CDC ·8· ·guidelines, just her age alone, the fact that she is ·9· ·81 puts her in the high-risk category, according to 10· ·CDC guidelines.· She's -- she's a fairly healthy 11· ·woman, though. 12· · · · · · ·But her age, I'm very concerned about her. 13· ·She's -- she's a, you know, fairly healthy woman, 14· ·but -- 15· · · · Q.· ·Right. 16· · · · A.· ·-- just her age alone concerns me. 17· · · · Q.· ·And what about you, Mr. Lis, and your 18· ·wife?· I mean, do you have any conditions that make 19· ·you concerned about if you were to get infected with 20· ·COVID-19? 21· · · · A.· ·We're both -- we're both over 50, and so 22· ·from everything I've seen, you know, there are 23· ·definite risk factors.· I have high blood sugar -- 24· ·not quite diabetes yet, but, you know, a -- that's a 25· ·concern to me.· But just being the age I am, and
0107 Page 102 ·1· ·knowing how indiscriminate the -- the virus is, I do ·2· ·have concerns for my own health. ·3· · · · · · ·But my primary concern is bringing the ·4· ·virus home and infecting my mother-in-law. ·5· · · · Q.· ·And going back now to where you teach at ·6· ·Dr. Phillips, when is school scheduled now to open ·7· ·for Dr. Phillips? ·8· · · · A.· ·Well, I've been in classes for the last ·9· ·week, we started last Monday, and that has been 10· ·virtual.· But the students that chose the 11· ·face-to-face option here in Orange County are coming 12· ·back this Friday, so the 21st. 13· · · · Q.· ·And in preparation, meaning, have you been 14· ·told that you need to go back and report to school 15· ·to teach in person on Friday? 16· · · · A.· ·I have been told that, yes. 17· · · · Q.· ·And who told you that? 18· · · · A.· ·My principal said that I needed to show up 19· ·on the 21st to teach with -- with students in my 20· ·room. 21· · · · Q.· ·And have you voiced your concern to the 22· ·principal about your mother-in-law and yourself? 23· · · · A.· ·I have, and it's been a back-and-forth 24· ·discussion for several weeks now.· And she actually 25· ·has been really trying to accommodate me.
0108 Page 103 ·1· · · · · · ·At one point last week, she thought she ·2· ·would be able to accommodate my ADA request, which I ·3· ·made formally to -- to Orange County Public Schools, ·4· ·but in -- in the same day, she -- she thought in the ·5· ·morning that she could accommodate me, she told me ·6· ·that through an email. ·7· · · · · · ·I mentioned to her through an email saying ·8· ·that I still had face-to-face kids on my rosters and ·9· ·I was concerned about that, so she looked into it, 10· ·or we exchanged emails. 11· · · · · · ·She came back to me later that day saying 12· ·that due to the numbers of -- the number of students 13· ·that need to take biology, and I -- I seem to recall 14· ·she said 300 students that are coming back 15· ·face-to-face and they need to take biology, that 16· ·teaching online only would not be an option for me, 17· ·and I needed to return on the 21st. 18· · · · Q.· ·In your current roster, if you were to 19· ·return on the 21st -- and we'll get to that later -- 20· ·but under the current idea of you returning on the 21· ·21st, how many students would you be teaching in 22· ·person, do you know? 23· · · · A.· ·It's a fluid situation. 24· · · · · · ·It was -- I believe that I had some things 25· ·done with my schedules initially when we were going
0109 Page 104 ·1· ·through the initial discussions that some kids ·2· ·dropped off of my list, but we have about -- what ·3· ·I've been told is about one-third of the students ·4· ·are returning to the school, and so I don't know -- ·5· · · · · · ·(An interruption took place.) ·6· · · · · · ·THE WITNESS:· Sorry about that. ·7· · ·BY MR. STUART ·8· · · · Q.· ·It's all right. ·9· · · · A.· ·Yeah, I -- it's not a lot of students. 10· ·Probably, you know, less than ten for most of my 11· ·classes.· But then, I'm in a very small room with, I 12· ·would say, poor ventilation. 13· · · · · · ·I have three air-conditioning units that 14· ·are very old, and they just make it through the day. 15· · · · Q.· ·All right. 16· · · · A.· ·And -- 17· · · · Q.· ·Well, let's -- let's talk about that, 18· ·where you are. 19· · · · · · ·So from what you're saying, though, if you 20· ·have ten students a class, you're teaching six 21· ·classes, you're roughly going to see about 60 22· ·students a day now? 23· · · · A.· ·I -- some classes are less than ten for 24· ·sure. 25· · · · Q.· ·Okay.· So going back --
0110 Page 105 ·1· · · · A.· ·I will be -- I will be seeing, you know, ·2· ·students in person in my room for sure. ·3· · · · Q.· ·Okay.· And so going back, you teach in a ·4· ·portable, and in anticipation of you going back to ·5· ·teaching in person, have you been provided with any ·6· ·PPE, meaning any face masks or hand sanitizer or ·7· ·anything like that? ·8· · · · A.· ·Yeah, there was a day during preplanning ·9· ·where we -- we went through a line and picked up 10· ·some materials. 11· · · · · · ·I was given a gallon of hand sanitizer. I 12· ·was given some -- one container of -- of wipes to 13· ·wipe down the tables.· I was given a face shield, 14· ·and I -- they -- at the time I went through the 15· ·line, they ran out of face masks, but I am told if I 16· ·were to return that Friday morning, I would have 17· ·five disposable face masks for me to pick up in the 18· ·morning. 19· · · · Q.· ·And as you've mentioned before, your 20· ·classroom for biology, with the lab tables that I'm 21· ·conjuring in my mind from high school, are they, 22· ·like, the high-top ones that are, like, two per -- 23· ·two students per table? 24· · · · A.· ·Most of the science rooms are in a table 25· ·arrangement, and it is usually two students per
0111 Page 106 ·1· ·table during regular times. ·2· · · · · · ·Now, I have spaced those tables out, ·3· ·and -- and I would plan on just -- hopefully just ·4· ·putting one student at each table, but I am very ·5· ·limited in space in a portable. ·6· · · · Q.· ·That's where I wanted to get at. ·7· · · · · · ·The -- you know, you mentioned before, in ·8· ·preparation for you, if you had to go back to ·9· ·school, that you are familiar with the CDC 10· ·guidelines; is that correct? 11· · · · A.· ·I'm -- I'm somewhat familiar with them 12· ·because of my situation, obviously, and I'm also a 13· ·parent -- 14· · · · Q.· ·Right. 15· · · · A.· ·-- of two high school students, so, yes, 16· ·I'm -- I'm making myself familiar with them. 17· · · · Q.· ·And so how far -- is it possible, in the 18· ·current configuration you have in a trailer at 19· ·Dr. Phillips, for you and your students to be 20· ·properly social distancing while in class? 21· · · · A.· ·It depends on how -- how the numbers come 22· ·out. 23· · · · · · ·And one thing with high schools, 24· ·especially at the beginning of the year, kids come 25· ·and go, their schedules change, they shift around.
0112 Page 107 ·1· ·You know, I -- I don't know what my colleagues' ·2· ·situations are.· I've heard the superintendent say ·3· ·that, you know, there could be classrooms which -- ·4· ·with as many as 15 students in them. ·5· · · · · · ·So I -- I don't know exactly if I'm able ·6· ·to do that or not. ·7· · · · Q.· ·And in between your six classes, are the ·8· ·classrooms cleaned by professionals? ·9· · · · A.· ·I think it's only because I've watched the 10· ·school board meetings, and the superintendent has 11· ·played a big role in those meetings -- did you lose 12· ·the audio? 13· · · · Q.· ·No, we still have it. 14· · · · A.· ·Okay.· All right.· So I -- I've heard 15· ·that -- can you repeat the question?· I was thrown 16· ·off. 17· · · · Q.· ·I'm asking:· Do you have personal 18· ·knowledge, has someone told you from the school or 19· ·someone from authority from the county school board, 20· ·Orange County, where you work, about if the classes, 21· ·in between your six classes, will be cleaned? 22· · · · A.· ·Yeah. 23· · · · · · ·So, yeah, my understanding is that we have 24· ·the option to clean between classes, but we would 25· ·not be required to clean between classes.· And
0113 Page 108 ·1· ·there -- there wouldn't -- it would be to our ·2· ·discretion.· We -- there's no one coming in to clean ·3· ·them, but -- ·4· · · · Q.· ·Let's -- ·5· · · · A.· ·-- I would say if I were -- I would say if ·6· ·I were to clean between classes, I'd need a case of ·7· ·wipes -- ·8· · · · Q.· ·Right. ·9· · · · A.· ·-- per week, I think. 10· · · · Q.· ·And the hand sanitizer you were given, the 11· ·gallon, is that for you, or is that for you to give 12· ·each child as they come into the class? 13· · · · A.· ·Yeah, it's -- it's -- well, probably for 14· ·both, but -- 15· · · · Q.· ·With that I want to ask you: 16· · · · · · ·Have you been given any direction in 17· ·anticipation of the school opening from the Florida 18· ·Department of Health in terms of -- outside of your 19· ·own independent knowledge, have you been given any 20· ·direction from the County and Florida Department 21· ·of Health about what to do for proper guidelines in 22· ·the pandemic? 23· · · · A.· ·No, I -- I haven't heard anything. 24· · · · Q.· ·Have you heard -- have you received any 25· ·form of social distancing training from the
0114 Page 109 ·1· ·Department of Health or the school board? ·2· · · · A.· ·I have not. ·3· · · · Q.· ·Have you been -- and I want to ask this ·4· ·because it's important -- have you been paying ·5· ·attention to your emails?· I know you have, Mr. Lis, ·6· ·but I have to ask that for the record. ·7· · · · A.· ·Yes. ·8· · · · Q.· ·Have you been in communication with your ·9· ·school and getting daily or sometimes two or three 10· ·times a day emails regarding school opening? 11· · · · A.· ·I'm -- I'm on email every day, and I have 12· ·proactively reached out for information, and have 13· ·heard back sometimes. 14· · · · Q.· ·All right.· So do you believe you would be 15· ·safe if you were to have to go back and teach on 16· ·Friday in person? 17· · · · A.· ·I do not feel safe personally. 18· · · · · · ·I don't feel that my students are in a 19· ·safe environment, for many reasons.· I can think of 20· ·the cafeteria being as -- being a very dangerous 21· ·situation.· The bathrooms, at least in my part of 22· ·the campus, are -- are deteriorated from -- from 23· ·past use.· You know, limited sinks are working, no 24· ·paper towels in the boys bathroom. 25· · · · · · ·These are things that don't give me a lot
0115 Page 110 ·1· ·of confidence.· The mask policy is there.· They are ·2· ·requiring masks, but I -- I was on campus with no ·3· ·students, and was picking up -- picking up books for ·4· ·my daughter, who attends the school, and I had to ·5· ·walk across the campus with my mask on, and I was ·6· ·thinking to myself, "This is -- this is a little ·7· ·taxing." ·8· · · · · · ·It's hot out, and I just was thinking, I ·9· ·cannot imagine students going back and forth from 10· ·one campus to the other wearing masks and abiding by 11· ·the mask mandate. 12· · · · Q.· ·Right.· And I -- 13· · · · A.· ·And as far as enforcing it, I -- I just 14· ·don't know how it's going to be enforced. 15· · · · Q.· ·And let me ask you specifically about 16· ·you -- I mean, and I want to go back.· One other 17· ·question, actually, I want go to you, is that you 18· ·mentioned before you got no guidance on social 19· ·distancing or pandemic guidelines. 20· · · · · · ·Have you gotten any guidance on what you 21· ·would do if a student failed to comply with wearing 22· ·a mask, or if a student tested positive for 23· ·COVID-19? 24· · · · A.· ·So regarding the mask, I believe we're 25· ·going with the fact that it's a breach of the Code
0116 Page 111 ·1· ·of Conduct. ·2· · · · · · ·So I would go through the steps of -- of ·3· ·telling the dean that a child wasn't wearing a mask, ·4· ·but then that student has gone on to the next class ·5· ·and it's -- it's -- I think of -- when I think of ·6· ·the mask mandate, I think of the phone mandate. ·7· · · · · · ·The phone mandate is that the kids should ·8· ·keep their phone in their book bag at all times and ·9· ·not access them during class. 10· · · · · · ·We have a terrible time, a terrible time, 11· ·trying to enforce that rule. 12· · · · Q.· ·Right. 13· · · · A.· ·And that experience just makes me think 14· ·how difficult it would be for the mask rule. 15· · · · Q.· ·And in regard to -- before we get you to 16· ·in conclusion, that -- what is the policy right now 17· ·and direction you've been given if one of your 18· ·students is exhibiting signs or symptoms of 19· ·COVID-19?· What are you supposed to do? 20· · · · A.· ·I don't know. 21· · · · Q.· ·And again, I want to reiterate, you've 22· ·been in constant contact with the school, you've 23· ·been seeking help or guidance, and you haven't 24· ·received any? 25· · · · A.· ·No, I mean, I don't want to seem stupid
0117 Page 112 ·1· ·about the whole thing.· I mean, if -- if a student ·2· ·exhibits some -- some -- some symptoms, I'm going to ·3· ·call someone.· But as far as, you know -- and I ·4· ·think -- I think we're just being relied on to -- to ·5· ·do it our own -- do it on our own, in our own ·6· ·classrooms. ·7· · · · Q.· ·And, Mr. Lis -- ·8· · · · A.· ·I have not received guidance. ·9· · · · Q.· ·I'm not calling you stupid.· I didn't mean 10· ·to come across that way. 11· · · · A.· ·No, no. 12· · · · Q.· ·I just meant anybody from your school or 13· ·your superiors. 14· · · · A.· ·I have not.· I have not. 15· · · · Q.· ·All right.· And so, finally, I want to ask 16· ·you about this, Mr. Lis.· This is important.· You 17· ·said you've been a teacher for 21 years and you have 18· ·dedicated yourself to this profession. 19· · · · · · ·You currently, as we've said, are 20· ·scheduled to go back to in-person learning if this 21· ·lawsuit -- or let me put it this way: 22· · · · · · ·If there is no change in the governing 23· ·practices, and Orange County opens brick-and-mortar 24· ·on Friday, will you go back? 25· · · · A.· ·So if -- if there's no change, tomorrow,
0118 Page 113 ·1· ·I'm going to have to explain, class by class, to my ·2· ·students that I can't return.· And -- ·3· · · · Q.· ·It's okay. ·4· · · · A.· ·And, no, I'm going to -- I'm not going to ·5· ·choose -- I mean, I have -- I have chosen my kids, ·6· ·my students, over so many difficult things, but I ·7· ·can't put my family at risk.· I can't put my ·8· ·mother-in-law in risk -- at risk. ·9· · · · · · ·And it's a serious risk.· And for some 10· ·reason, some people don't think it's a serious risk, 11· ·but I do not feel that I would be in a safe 12· ·environment, for my mother-in-law's sake.· For my 13· ·sake, too, but more so for her.· And I would resign. 14· · · · · · ·MR. STUART:· No further questions, Your 15· · · · Honor. 16· · · · · · ·THE COURT:· Cross? 17· · · · · · ·MR. HILL:· Thank you, Your Honor. 18· · · · · · ·THE WITNESS:· I wish I had that special 19· · · · effect when I was teaching. 20· · · · · · ·MR. WELLS:· We're making a course 21· · · · adjustment, Your Honor.· Mr. Hill's going to 22· · · · come use my computer because we can't seem to 23· · · · make mine stop the feedback. 24· · · · · · ·THE COURT:· Okay. 25· · · · · · ·MR. HILL:· Good afternoon, sir.
0119 Page 114 ·1· · · · · · ·THE WITNESS:· Hello. ·2· · · · · · · · · · CROSS EXAMINATION ·3· · ·BY MR. HILL ·4· · · · Q.· ·My name is Nathan Hill.· I'm one of the ·5· ·attorneys for the defendants in this case. ·6· · · · · · ·First of all, I want to thank you for your ·7· ·time this morning.· I only have a few questions for ·8· ·you. ·9· · · · A.· ·Okay. 10· · · · Q.· ·First of all, do you know approximately 11· ·how many students attend Dr. Phillips High School? 12· · · · A.· ·Thirty-five to thirty-eight hundred. I 13· ·don't know an exact number. 14· · · · Q.· ·And I believe you also said that the 15· ·number of students that chose to come back was about 16· ·one-third, like, 30 percent; is that right? 17· · · · A.· ·Yes. 18· · · · · · ·I was very excited, because it was 19· ·30 percent of students coming back, and 30 percent 20· ·of teachers coming back.· And I thought I had a 21· ·really good chance, because the numbers matched up, 22· ·of teaching online.· But it's this high school 23· ·schedule that is very difficult for the 24· ·administration to accommodate. 25· · · · · · ·I am not alone.· I think you'll hear from
0120 Page 115 ·1· ·others, but there are many, many teachers in my ·2· ·situation, especially at the high school level. ·3· · · · Q.· ·Right. ·4· · · · · · ·So you told your administrators that you ·5· ·didn't want to come back in person because of your ·6· ·issues, and they told you you had to come back in ·7· ·person, correct? ·8· · · · A.· ·That's correct. ·9· · · · Q.· ·And that's because students chose to come 10· ·back in person, and there have to be teachers there 11· ·to teach them; is that correct? 12· · · · A.· ·That's true. 13· · · · Q.· ·You talked a bit about having not been 14· ·provided any guidance -- 15· · · · A.· ·Yes. 16· · · · Q.· ·-- for social distancing. 17· · · · · · ·Have you looked at the Orange County 18· ·school board website? 19· · · · A.· ·I have, and I have reviewed the -- the 20· ·manual that they have put out. 21· · · · Q.· ·Okay. 22· · · · A.· ·Yeah, there is information about how 23· ·social distancing is six feet.· My county has chosen 24· ·to define that a little bit more loosely. 25· · · · · · ·I understand social distancing, but there
0121 Page 116 ·1· ·are all sorts of issues with dismissal, with ·2· ·students waiting to get into the classroom, where it ·3· ·could be a very serious problem. ·4· · · · · · ·Especially, like, entering and exiting the ·5· ·classrooms.· We have two portable doorways that are, ·6· ·you know, very close to each other, and last year, I ·7· ·mean, I know the numbers are going to be lower, but ·8· ·there are just piles of kids waiting to get into ·9· ·classrooms very often. 10· · · · Q.· ·Okay.· I understand that. 11· · · · · · ·So you haven't seen specific guidance as 12· ·to a portable of your size with the number of 13· ·students that you may be having, but you have seen 14· ·generalized guidance about how to social distance, 15· ·what types of things you should do to sanitize, 16· ·things like that, that are available on the website? 17· · · · A.· ·They are available on the website, and 18· ·because I have proactively been interested in this, 19· ·I have, but there are thousands of teachers out 20· ·there that haven't been mandated to have any kind of 21· ·training. 22· · · · Q.· ·I understand. 23· · · · · · ·Did they direct you to the Florida 24· ·Department of Education's website and the resources 25· ·there for sanitation and social distancing?
0122 Page 117 ·1· · · · A.· ·I haven't been directed to -- to look at ·2· ·that material, no. ·3· · · · Q.· ·So to shift gears a little bit, how long ·4· ·have you been a teacher?· I -- you may have said but ·5· ·I forgot. ·6· · · · A.· ·This is going to be my 21st year. ·7· · · · Q.· ·Wow. ·8· · · · · · ·Now, do you -- when you first became a ·9· ·teacher, did you sign a contract with the district? 10· · · · A.· ·Yes, every year, I -- there's a contract. 11· · · · Q.· ·Right. 12· · · · · · ·And is it a -- it's a contract that's 13· ·collectively bargained by the unions, correct? 14· · · · A.· ·Yes. 15· · · · Q.· ·Are you a member of a teachers union? 16· · · · A.· ·I am. 17· · · · Q.· ·Which one? 18· · · · A.· ·The Orange County teachers union. 19· · · · Q.· ·Okay.· So you -- 20· · · · A.· ·I did -- 21· · · · Q.· ·Are you a member of the Orange County 22· ·Classroom Teachers Association? 23· · · · A.· ·Yes. 24· · · · Q.· ·Are those two different unions? 25· · · · A.· ·I don't believe so.· I -- the union
0123 Page 118 ·1· ·affiliation is -- is a puzzle to me sometimes. ·2· · · · Q.· ·I -- ·3· · · · A.· ·Everyone seems to be affiliated. ·4· · · · Q.· ·I completely understand that. ·5· · · · · · ·Okay.· So you have a contract with the ·6· ·school.· It includes collective bargaining ·7· ·provisions, and it includes a grievance procedure, ·8· ·too, right? ·9· · · · A.· ·I'm sure it does. 10· · · · Q.· ·And in fact, the Orange County Classroom 11· ·Teachers Association filed a grievance in Orange 12· ·County pursuant to those contracts, correct? 13· · · · A.· ·I know that there is a lawsuit out there. 14· ·I don't know the particulars of it. 15· · · · Q.· ·Okay.· Have you filed any grievance 16· ·pursuant to your contract against the school board 17· ·or the school district? 18· · · · A.· ·So I did send in an email, and the -- 19· ·I've -- I did read their -- the material.· There was 20· ·a link for teachers in my situation.· I did fill out 21· ·that form, and it was part of that form that they 22· ·said they would potentially file a grievance. 23· · · · · · ·I don't know what the status of that is 24· ·right now. 25· · · · Q.· ·Okay.· Was that the union, or is that the
0124 Page 119 ·1· ·school board that sent you that information? ·2· · · · A.· ·That was the union. ·3· · · · · · ·MR. HILL:· May I have one moment, Your ·4· · · · Honor? ·5· · · · · · ·THE COURT:· Sure. ·6· · · · · · ·MR. HILL:· I have no further questions, ·7· · · · Your Honor.· Thank you. ·8· · · · · · ·THE COURT:· Any redirect? ·9· · · · · · ·MR. STUART:· Just briefly, Your Honor, if 10· · · · I may proceed. 11· · · · · · ·THE COURT:· Yes, sir.· Sure. 12· · · · · · · · · ·REDIRECT EXAMINATION 13· · ·BY MR. STUART 14· · · · Q.· ·Just real quick. 15· · · · · · ·You know, opposing counsel brought up this 16· ·idea of a grievance.· Presuming you don't hear back 17· ·before Friday, is there time for the grievance to 18· ·work itself out? 19· · · · A.· ·I don't know the grievance process. 20· · · · · · ·Knowing how bureaucracies work, I do not 21· ·think there will be time for -- for anything to 22· ·happen regarding that, but I do not understand the 23· ·process.· I am guessing tomorrow is going to be my 24· ·last day of school. 25· · · · Q.· ·Okay.
0125 Page 120 ·1· · · · · · ·MR. STUART:· I have no further questions, ·2· · · · Your Honor. ·3· · · · · · ·THE COURT:· May Mr. Lis be excused? ·4· · · · · · ·MR. STUART:· Plaintiffs' behalf, yes, sir. ·5· · · · · · ·MR. MEYER:· He may, Your Honor. ·6· · · · · · ·MR. HILL:· Sorry, Ron. ·7· · · · · · ·THE COURT:· Mr. Lis, you may leave the ·8· · · · meeting. ·9· · · · · · ·THE WITNESS:· Thank you so much. 10· · · · · · ·MR. STUART:· Thank you, Mr. Lis. 11· · · · · · ·THE COURT:· Call your next witness. 12· · · · · · ·MR. MEYER:· Your Honor, the next witness 13· · · · we'll call is Fedrick Ingram, who is admitted 14· · · · to the Zoom already.· And Mr. Richard will be 15· · · · providing the direct examination. 16· · · · · · ·MR. RICHARD:· Good morning, Your Honor. 17· · · · Good morning, Mr. Ingram. 18· · · · · · ·THE COURT:· Hang on just one second. I 19· · · · see Mr. Ingram now.· Yeah. 20· · · · · · ·Mr. Ingram, if you'd raise your right 21· · · · hand, please. 22· ·Thereupon: 23· · · · · · · · · · · FEDRICK INGRAM 24· ·having been sworn by the Court testified as follows: 25· · · · · · ·THE WITNESS:· I do.
0126 Page 121 ·1· · · · · · ·THE COURT:· Thank you, sir.· You can put ·2· · · · your hand down. ·3· · · · · · · · · · DIRECT EXAMINATION ·4· · ·BY MR. RICHARD ·5· · · · Q.· ·Would you please state and spell your name ·6· ·for the record. ·7· · · · A.· ·Sure.· My name is Fedrick Ingram, ·8· ·F-E-D-R-I-C-K, last name Ingram, I-N-G-R-A-M. ·9· · · · Q.· ·And, Mr. Ingram, where do you reside? 10· · · · A.· ·I live in Tallahassee, Florida. 11· · · · Q.· ·And could you please tell the Court what 12· ·your title is, what you do for work at this time? 13· · · · A.· ·Yes.· I'm the president of the Florida 14· ·Education Association. 15· · · · Q.· ·What is the Florida Education Association? 16· · · · A.· ·The Florida Education Association is a 17· ·statewide teachers union.· We represent 150,000 18· ·members who work in our public schools across the 19· ·state, from Escambia to the Keys.· And we also 20· ·represent a contingent of college and university 21· ·professors.· We also represent a large contingent of 22· ·retirees and students. 23· · · · Q.· ·So let's explain to the Court for a moment 24· ·how unions are set up on the local level, and how 25· ·they belong to a state organization and a national
0127 Page 122 ·1· ·organization.· Clear that up. ·2· · · · A.· ·Sure. ·3· · · · · · ·We have affiliate organizations in just ·4· ·about every county in Florida.· To be exact, 64 ·5· ·counties in Florida are represented by the Florida ·6· ·Education Association through their local unions. ·7· · · · · · ·Their local unions are affiliated with the ·8· ·statewide teachers union, which, we are the umbrella ·9· ·for those local unions, and then we are associated 10· ·in what we call a merged state.· We are represented 11· ·nationally by the National Education Association and 12· ·the American Federation of Teachers. 13· · · · · · ·Both are headquartered in Washington, DC. 14· · · · Q.· ·Now, among your 150,000 members here in 15· ·the state of Florida, tell the Court what kinds of 16· ·job titles they hold in our various schools in the 17· ·64 counties. 18· · · · A.· ·Sure. 19· · · · · · ·We represent the educational village from 20· ·secretaries, bus drivers, cafeteria workers, zone 21· ·mechanics, custodians.· We represent, of course, 22· ·pre-K through 12 teachers, and all variations of 23· ·those teachers, counselors, coaches, band directors. 24· ·We also, again, represent college and university 25· ·professors.
0128 Page 123 ·1· · · · · · ·Just the entire diaspora of -- of public ·2· ·education employees throughout and across the state. ·3· · · · Q.· ·What title, again, do you hold with the ·4· ·FEA? ·5· · · · A.· ·I'm the president of the Florida Education ·6· ·Association. ·7· · · · Q.· ·Have you had any other honors where you've ·8· ·been allowed to represent, if you will, union, the ·9· ·members and teachers, throughout your career? 10· · · · A.· ·I have. 11· · · · · · ·For the past 18 months, I -- I'm sorry, 12· ·for the past 20 months, I have been the president of 13· ·the Florida Education Association.· Prior to that 14· ·for three years, I was the vice president of the 15· ·Florida Education Association. 16· · · · · · ·And then prior to that, I was in 17· ·Miami-Dade County where I did most of my teaching, 18· ·but I was also -- I also had the position of 19· ·president of the United Teachers of Dade, which is 20· ·the local union in Miami-Dade County. 21· · · · · · ·And then prior to that, I was the 22· ·secretary/treasurer of United Teachers of Dade. 23· · · · Q.· ·And how many educators and staff does the 24· ·United Teachers of Dade, as a local union of FEA, 25· ·represent?
0129 Page 124 ·1· · · · A.· ·So United Teachers of Dade is the fourth ·2· ·largest local union in the southeast.· We represent ·3· ·just about 30,000 employees.· It's the ·4· ·fourth-largest school district in the nation. ·5· · · · Q.· ·Mr. Ingram, what's your first profession? ·6· · · · A.· ·I'm a high school band director.· I'm a ·7· ·certified music teacher.· I taught band and music ·8· ·for ten years down in Miami. ·9· · · · Q.· ·And could you tell the judge what schools 10· ·you taught in, and what courses you taught? 11· · · · A.· ·Sure. 12· · · · · · ·I -- I started my teaching career in 1996 13· ·at Lake Stevens Middle School as a music teacher and 14· ·band director.· Quickly learned that I was not cut 15· ·out to be a middle school teacher, and ran quickly 16· ·to high school.· And I taught eight years as a high 17· ·school band director.· Did everything from marching 18· ·band, to concert band, jazz band in Title 1 schools. 19· · · · · · ·They were Booker T. Washington Senior High 20· ·School, which is in the inner city of Miami, a very 21· ·impoverished neighborhood, a very challenged 22· ·situation.· And then I went on to teach at Miami 23· ·Carol City Senior High School.· Again, another 24· ·Title 1 school, but a much larger school in a bigger 25· ·community.
0130 Page 125 ·1· · · · Q.· ·What do we mean by "Title 1 school" in ·2· ·general? ·3· · · · A.· ·So -- so Title 1 really is -- is a ·4· ·government title for schools, and it designates the ·5· ·amounts of students that you have on free and ·6· ·reduced lunch.· It really kind of differentiates the ·7· ·socioeconomics of students and what they can receive ·8· ·from our public schools. ·9· · · · Q.· ·You've done a lot in your career.· Where 10· ·were you educated growing up? 11· · · · A.· ·I was educated -- I was educated in 12· ·Miami-Dade County, in the inner city of Miami as 13· ·well.· I went to Miami Jackson Senior High School, 14· ·1991, proud General, from -- from Miami-Dade County. 15· · · · Q.· ·And are those public schools? 16· · · · A.· ·All public schools.· Yes, sir.· I went to 17· ·public schools from pre-K through 12th grade. 18· · · · Q.· ·And have you had any children enrolled in 19· ·our public schools here in the great state of 20· ·Florida? 21· · · · A.· ·Absolutely. 22· · · · · · ·My -- my son, who is actually on the 23· ·autistic spectrum, was -- started his education down 24· ·in Miami-Dade, and then he finished high school when 25· ·we moved up to Tallahassee about five years ago.· He
0131 Page 126 ·1· ·went through the ESE program in our public schools, ·2· ·and with all the supports, he continues at ·3· ·Tallahassee Community College, and his ESE track ·4· ·continues with him. ·5· · · · · · ·My daughter was educated in Broward County ·6· ·schools, and she finished her education just two ·7· ·years ago here in Leon County as well at Lincoln ·8· ·High School, and she is off at Howard University. ·9· · · · · · ·And then my daughter is a current student 10· ·in -- going into the 9th grade here in Leon County, 11· ·and she is going to Leon High School. 12· · · · Q.· ·Which is a public school? 13· · · · A.· ·Absolutely.· Yes, sir. 14· · · · Q.· ·And on your career, Mr. Ingram, have you 15· ·earned any recognition as an educator throughout 16· ·your decades of teaching? 17· · · · A.· ·Yes, actually, I have.· I was the 2006 18· ·Miami-Dade County Teacher of the Year, which is the 19· ·highest honor for any in-classroom teaching position 20· ·there. 21· · · · · · ·I went on to be a state finalist for the 22· ·Florida Teacher of the Year, which is one of five 23· ·finalists in the state for that particular honor. 24· ·The highest honors that I have earned have always 25· ·been because of my students, where we earned
0132 Page 127 ·1· ·superior ratings in our performances and our travels ·2· ·and our experiences, and -- and getting those kids ·3· ·going on to the next level. ·4· · · · Q.· ·What does it mean to be a lifelong ·5· ·teacher? ·6· · · · A.· ·It means everything.· This is what I've ·7· ·always wanted to do. ·8· · · · · · ·I've always wanted to teach music.· I went ·9· ·to school -- I went to a small liberal arts school 10· ·here in Florida, Bethune-Cookman University, over in 11· ·Daytona Beach where I got my undergrad.· And just 12· ·because of that, Mary McLeod Bethune is one of the 13· ·greatest educators that I've ever known, and her 14· ·legacy speaks of education. 15· · · · · · ·And so just to be a part of that legacy 16· ·means more to me than most people know, because it 17· ·is because of public schools and because of 18· ·education I'm actually here today. 19· · · · Q.· ·Mr. Ingram, let's turn to this litigation. 20· · · · · · ·Why would the Florida Education 21· ·Association, a group of teachers and support staff, 22· ·sue?· Why did you sue the governor and the 23· ·commissioner of education in this case? 24· · · · A.· ·So on July 6th, an emergency order was 25· ·issued by the commissioner of education.· It -- and
0133 Page 128 ·1· ·the -- the governor, frankly. ·2· · · · · · ·It mandated a brick-and-mortar five days a ·3· ·week in every school district in the state of ·4· ·Florida.· And we brought the lawsuit, I believe, on ·5· ·July 20th, because we're facing a pandemic that none ·6· ·of us have faced.· We're facing a virus that spreads ·7· ·human to human.· It has -- that is highly ·8· ·contagious, nothing like we've ever seen before. ·9· · · · · · ·And, frankly, education, staff, 10· ·professionals, and teachers alike across the state 11· ·are panicked, are afraid.· They want to work, and we 12· ·needed to stop what we thought was a -- was a 13· ·reckless intention to hurriedly open schools and 14· ·in-person teaching. 15· · · · Q.· ·Do your teachers, cafeteria workers, bus 16· ·drivers, secretaries, do they want schools to open 17· ·brick-and-mortar as soon as safe? 18· · · · A.· ·Of course they do.· Of course they do. I 19· ·don't know any first grade teacher, or counselor, or 20· ·band director, or football coach who doesn't want to 21· ·go to school. 22· · · · · · ·You know, at this time of year, teachers 23· ·get giddy.· They have a zeal to go back into the 24· ·classroom.· They start to theme out their classrooms 25· ·and -- and create all these new and fresh ideas.
0134 Page 129 ·1· ·Every single year that I've been in education it ·2· ·happens at this same time of year every year. ·3· · · · · · ·But I've never seen anything quite like ·4· ·this year where we are faced with life-or-death ·5· ·situations.· We're faced with, you know, something ·6· ·that we really don't have under control here in the ·7· ·state of Florida.· And my colleagues around the ·8· ·state are -- are frantic, panicked, and -- and just ·9· ·have a high degree of angst as it relates to going 10· ·back to school this year. 11· · · · · · ·But -- but to answer your question, of 12· ·course they want to go back to school.· They want to 13· ·do it and they want to do it safely.· They don't 14· ·want to put their lives on the line or their kids' 15· ·lives on the line. 16· · · · Q.· ·Mr. Ingram, I want to get a few things 17· ·cleared up for the Court here. 18· · · · · · ·We keep using the words "brick-and-mortar" 19· ·and "on site."· What does that mean in education 20· ·language? 21· · · · A.· ·Sure. 22· · · · · · ·So -- so brick-and-mortar is in-person 23· ·teaching.· It's -- it's the physical nature of a 24· ·teacher or instructor going into a school site, a 25· ·schoolhouse, and students doing the same, where you
0135 Page 130 ·1· ·have that physical interaction between a teacher and ·2· ·a student. ·3· · · · · · ·And so in-person teaching, ·4· ·brick-and-mortar teaching, is that face-to-face, you ·5· ·know, everything from conversation to curriculum, to ·6· ·how we dispense educational information to a child. ·7· ·And that's very different from distance learning or ·8· ·virtual school. ·9· · · · Q.· ·And talk a little bit about, then, when we 10· ·say virtual or online, or distance, what does that 11· ·mean in terms of delivering curriculum in pedagogy? 12· · · · A.· ·Sure. 13· · · · · · ·So I bifurcate distance learning from 14· ·virtual school, because distance learning is what we 15· ·did in March.· It's where we actually took our -- 16· ·our curriculum that we were doing in person and 17· ·trying to do as best we can this distance kind of 18· ·learning.· Through -- through computers, through 19· ·eLearning, through different modes of electronics, 20· ·and we did the very best we can. 21· · · · · · ·Virtual school, in a sense, is a situation 22· ·where a teacher is trained to do virtual school. 23· ·They have a virtual school curriculum.· The child 24· ·knows that they're going to a curriculum that is 25· ·going to be all electronic and all on some mode of
0136 Page 131 ·1· ·application as it relates to computers.· And that ·2· ·delivery of education is expected to be given to a ·3· ·child virtually. ·4· · · · · · ·So we have in-person.· We have distance ·5· ·learning, which one of my colleagues coined as ·6· ·"pandemic pedagogy" in this situation that we're in. ·7· ·And then we also have virtual school. ·8· · · · Q.· ·Mr. Ingram, let me ask you this: ·9· · · · · · ·In March, what happened as the pandemic 10· ·was first discovered to be a new -- causing a new 11· ·disease that had never been seen on this earth? 12· ·What happened in our school systems in March? 13· · · · A.· ·So in March, we -- we thought we saw a 14· ·high level of courage and -- and decision-making. 15· ·We closed our schools via a governor's 16· ·recommended -- recommended order to superintendents. 17· ·Schools went into closure -- I believe the date was 18· ·March 13th, or somewhere thereof.· And we quickly 19· ·transformed, you know -- and -- and let me say this. 20· · · · · · ·Teachers never took a day off.· Teachers 21· ·went right into:· How do we continue this education? 22· ·How do we deliver this body of knowledge that our 23· ·kids are expected to have? 24· · · · · · ·And so we went right over to distance 25· ·learning in as best we could, knowing that we have
0137 Page 132 ·1· ·some inequities, some digital divides, some people ·2· ·wouldn't have what they needed.· And, frankly, our ·3· ·teachers were -- were hoisted upon this big ·4· ·responsibility to deliver this educational model in ·5· ·which some of our teachers had never delivered this ·6· ·model of teaching before. ·7· · · · · · ·And so that's what happened on March 13th, ·8· ·and there and to all the way through the end of ·9· ·school year, our teachers just transformed 10· ·themselves, reconfigured, reengineered everything 11· ·they knew about education and the delivery models of 12· ·what they were doing, into an educational system 13· ·that fit in the framework that we, frankly, had to 14· ·do. 15· · · · · · ·What I will also say is our schools really 16· ·never closed because what we learned is that -- and 17· ·we already knew this as educators -- that our -- our 18· ·schools are much more than -- than just educational 19· ·buildings. 20· · · · · · ·We fed kids.· The nutrition of our kids 21· ·never stopped.· Our educational support 22· ·professionals, those cafeteria workers and bus 23· ·drivers and paraprofessionals did everything from 24· ·Meals On Wheels, to setting up nutrition stations 25· ·around the state and delivering those essential
0138 Page 133 ·1· ·kinds of things that our kids needed in particular ·2· ·communities. ·3· · · · · · ·And so we became the hubs of different ·4· ·communities, and -- and it really helped people to ·5· ·not only thrive but survive that first two or three ·6· ·months of this virus. ·7· · · · Q.· ·So, like -- this is my third trial since ·8· ·March during the pandemic, they've all been by Zoom, ·9· ·the Courts have not -- they have never stopped 10· ·dispensing justice. 11· · · · · · ·Did our public schools close completely in 12· ·March, or was just the brick-and-mortar closed? 13· · · · A.· ·Yeah, I -- I think the -- the 14· ·brick-and-mortar, we stopped students from coming on 15· ·campus, and so it was thought by all the health 16· ·professionals and all the administrators that we 17· ·could control this virus, or we could, you know, 18· ·keep people safe, to the best extent that we could, 19· ·if we, you know, sheltered in place and we kept 20· ·people home. 21· · · · · · ·But did learning stop?· No.· Did teaching 22· ·stop?· Absolutely not.· Did schools close in a 23· ·figurative sense?· Yes.· But literally, our teachers 24· ·have been nonstop.· They -- they have been grading 25· ·papers.· They have been giving homework.· They have
0139 Page 134 ·1· ·been receiving work from kids.· They gave grades at ·2· ·the end of the school year.· And so we did the very ·3· ·best we could. ·4· · · · Q.· ·Did we call parents?· Did we call students ·5· ·on cell phones?· Did we have individual computer ·6· ·conferences, sub Zoom rooms?· Tell the judge what ·7· ·we've been doing, like the courts, to keep the ·8· ·schools open, but just not physically, during this ·9· ·pandemic. 10· · · · A.· ·So we created, through -- through 11· ·collaboration with school boards and 12· ·superintendents, we went on these different 13· ·platforms that I learned many things about. 14· · · · · · ·You know, Google Meets, or classroom 15· ·Hangouts.· Zooms.· All of these things we -- we 16· ·delivered this instruction, again, in the best way 17· ·that we knew how.· But our teachers, again, went 18· ·over and beyond. 19· · · · · · ·They -- like they always do.· They 20· ·continue to do the very best that they can, given 21· ·the circumstances. 22· · · · Q.· ·And did any of our school cafeteria 23· ·workers continue to make food and to provide 24· ·nutrition to some of our kids around the state? 25· · · · A.· ·Again, in almost every case, our --
0140 Page 135 ·1· ·education and support professionals is what we call ·2· ·them, but these are cafeteria workers and bus ·3· ·drivers.· They always went to work.· They went to ·4· ·work because they knew that kids needed to be fed. ·5· · · · · · ·They knew that there were vulnerable ·6· ·families.· They knew that people were losing their ·7· ·jobs.· And, frankly, you know, students would have ·8· ·gone hungry if it were not for the hard-working ·9· ·educational village and community of our public 10· ·school workers.· And so we did that to the extent 11· ·that we could. 12· · · · · · ·We took care of our most vulnerable kids 13· ·to the extent that we could.· We called our parents, 14· ·made sure that we could do the very best we could, 15· ·either telephonically or virtually, and -- and we 16· ·kept logs.· We turned those logs in to our 17· ·administrators, and we kept this educational village 18· ·alive, you know, to the extent we could, the -- 19· ·until the end of the school year. 20· · · · Q.· ·So did the FEA and all your 150,000 21· ·members in general, were you in support of the State 22· ·decision in March to keep the schools open but not 23· ·to have face-to-face learning?· Did you agree with 24· ·that decision? 25· · · · A.· ·Absolutely.· Absolutely.· We thought it
0141 Page 136 ·1· ·was guided by science.· We thought it was guided by ·2· ·the Health Care Administration. ·3· · · · · · ·We were just learning about this virus. ·4· ·We thought it was a show of leadership that we ·5· ·closed our schools, and that we would do the very ·6· ·best we could to get through this time period, keep ·7· ·this virus at bay, you know, keep whatever we knew ·8· ·at the time down in our communities. ·9· · · · · · ·And we thought it was the right thing to 10· ·do, absolutely. 11· · · · Q.· ·And do you remember just generally how 12· ·many cases of COVID-19, the disease caused by the 13· ·coronavirus, were reported in Florida when the State 14· ·made the decision to close the brick-and-mortar part 15· ·of schools? 16· · · · A.· ·I'm almost certain there were less than 50 17· ·at -- on March 13th.· I believe the short answer is 18· ·42, but I know that there were less than 50 cases 19· ·that were reported on March 13th. 20· · · · Q.· ·And I know this is self-evident, but I 21· ·want to ask it for the record: 22· · · · · · ·Is the coronavirus, to your knowledge, the 23· ·same virus that existed in March as it exists today 24· ·at this court hearing? 25· · · · A.· ·I'm not a doctor, I'm not a public health
0142 Page 137 ·1· ·care official, but I know what I see, and I read a ·2· ·lot, and it's the same virus that we've had over the ·3· ·last five and a half months, yes, sir. ·4· · · · Q.· ·Now, going back to March, whether a ·5· ·student was taking Algebra II at his mom's kitchen ·6· ·table, or a student was going to be in class taking ·7· ·it physically, Algebra II, did the State threaten to ·8· ·reduce any funding for those children who were ·9· ·learning remotely as opposed to children who were 10· ·learning in a seat in a classroom? 11· · · · · · ·Was there any threat to funding in March? 12· · · · A.· ·No.· No.· In fact, it was the exact 13· ·opposite.· In fact, they guaranteed funding through 14· ·the end of the school year. 15· · · · · · ·And so we were very ecstatic about that, 16· ·because we knew that, you know, we would be able to, 17· ·you know, keep the lights on, so to speak.· Keep 18· ·delivery.· Keep instruction moving.· Keep programs 19· ·running.· Keep people employed. 20· · · · · · ·So there was -- there was a deliverable 21· ·from the State that we thought, again, that was very 22· ·proactive and involved in trying to keep this virus 23· ·at bay and keep educational acumen flowing. 24· · · · Q.· ·So, Mr. Ingram -- 25· · · · · · ·MR. RICHARD:· May I proceed, Judge?
0143 Page 138 ·1· · · · · · ·THE COURT:· Sure, yes, sir. ·2· · · · · · ·MR. RICHARD:· Thank you, sir. ·3· · ·BY MR. RICHARD ·4· · · · Q.· ·So, Mr. Ingram, the educational world ·5· ·changed on July 6th when the executive order was ·6· ·signed.· And prior to that date, had the schools ·7· ·ever been ordered to absolutely have ·8· ·brick-and-mortar five days a week before the ·9· ·Executive Order 06 was signed on July 6th? 10· · · · A.· ·No, no.· They were not ordered to have the 11· ·brick-and-mortar option. 12· · · · · · ·In fact, again, I'm going to go back to 13· ·March 13th.· We -- we stopped the brick-and-mortar. 14· ·It -- we brought it to a halt throughout the state, 15· ·and we went to online distance learning, virtual 16· ·education, as a state, as a collective body of 17· ·public schools. 18· · · · Q.· ·What did this executive order do different 19· ·that we have never seen during this pandemic for our 20· ·educational world? 21· · · · A.· ·So -- so I believe this executive order 22· ·commands school boards to open their schools five 23· ·days a week, and in the middle of a pandemic.· We 24· ·believe that that is not what we should be doing. 25· ·We do not have control of this virus.
0144 Page 139 ·1· · · · · · ·We're going to put people's lives at risk. ·2· ·We are going to potentially have community spread ·3· ·and superspreader events. ·4· · · · · · ·And again, there has been just this -- ·5· ·this entire angst -- it -- what we believe, it has ·6· ·thrown our public schools in chaos because you have ·7· ·thousands of people who are actually watching you ·8· ·right now, who are -- who are utter -- listening to ·9· ·the -- every word that everybody says here about 10· ·their careers. 11· · · · · · ·People are being forced or choked or 12· ·choosing to retire.· People are -- are choosing to 13· ·not go back to their schools.· People are choosing 14· ·to go to another career.· People are choosing to 15· ·take leaves, and in numbers that are increasing 16· ·every day. 17· · · · Q.· ·And in this executive order, if the school 18· ·board doesn't open up five days a week 19· ·brick-and-mortar, and Richard Corcoran doesn't agree 20· ·with their plan, what happens to their funding for 21· ·those students who stay -- who parents choose to 22· ·have them stay at home? 23· · · · · · ·MR. WELLS:· Your Honor, can I object to 24· · · · this line of questioning? 25· · · · · · ·The order says whatever it says.· And
0145 Page 140 ·1· · · · Mr. Fedrick Ingram's analysis and understanding ·2· · · · doesn't aid much of anything.· And we've been ·3· · · · down this path. ·4· · · · · · ·THE COURT:· I'll allow the testimony. ·5· · · · A.· ·So we believe that the executive order is ·6· ·punitive.· We believe that it has punitive measures ·7· ·in terms of funding. ·8· · · · · · ·I will hold up Hillsborough as an example ·9· ·of -- of what has -- has happened or potentially 10· ·could have happened.· They submitted a plan that 11· ·they thought was being guided by health and safety 12· ·and science, and that plan was rejected.· And then 13· ·they had to -- to submit another plan because they 14· ·were in fear of the pulling away of funds. 15· · · · · · ·And so, you know, when -- when you put 16· ·budget and finance over health and safety, we don't 17· ·believe that that is putting the -- the first 18· ·priority, which should be kids' safety, kids' 19· ·academics, followed closely behind those adults who 20· ·take care of those kids every day. 21· · ·BY MR. RICHARD 22· · · · Q.· ·Mr. Ingram, who do you think -- what 23· ·governing body in a community should be deciding 24· ·when a school should be opened brick-and-mortar? 25· · · · A.· ·Should all be local control.· Should all
0146 Page 141 ·1· ·be superintendents, school boards.· Should be the ·2· ·local unions.· Should be stakeholders who are in and ·3· ·about that particular community. ·4· · · · · · ·Florida is a very diverse state, and we ·5· ·should all be given the right in our community to do ·6· ·what's right by our public schools. ·7· · · · Q.· ·And what government entity should have the ·8· ·final say on the safe reopening brick-and-mortar of ·9· ·a school? 10· · · · A.· ·Again, I believe it's the school board, 11· ·and I think the school board is -- is that final 12· ·arbiter of -- of what happens to a particular school 13· ·system.· They are elected by the people in that 14· ·particular community, and they will know best. 15· · · · Q.· ·Now, there are departments of health that 16· ·answer to the governor and to the executive branch 17· ·that are referenced in the executive order. 18· · · · · · ·Are you familiar with different 19· ·departments of health around the state that are part 20· ·of the state of Florida? 21· · · · A.· ·Loosely, yes. 22· · · · Q.· ·Okay.· And in the order, it talks about 23· ·that the local school boards could, quote, "rely on 24· ·these local Health Departments." 25· · · · · · ·Are you aware of health departments
0147 Page 142 ·1· ·indicating that they will not give that actual ·2· ·directive to open or not open schools? ·3· · · · A.· ·Yeah, again, you -- you've heard of the ·4· ·Hillsborough County situation where you have, you ·5· ·know, the director who refused to actually give a -- ·6· ·a final arbitration or decision as to reopen ·7· ·schools. ·8· · · · · · ·We've heard -- we've read, of course, in ·9· ·the "Palm Beach Post" where there have been health 10· ·officials that have said, "Hey, listen, I cannot 11· ·answer that."· Or, "We're not here to talk about 12· ·opening schools, we're here to talk about health and 13· ·safety." 14· · · · · · ·Which, the two are conjoined, and so we've 15· ·seen and heard reports all over this state that -- 16· ·that people are either being silenced or the 17· ·information is not being as transparent as it 18· ·should. 19· · · · Q.· ·So in March, when schools were closed 20· ·brick-and-mortar but remained open, and then in 21· ·July, being ordered to open five days a week, what 22· ·have the numbers looked like in terms of positivity 23· ·ratings and infections, and children with 24· ·infections, that FEA has studied? 25· · · · A.· ·Sure.
0148 Page 143 ·1· · · · · · ·So when we filed this lawsuit, on the day ·2· ·that we filed this lawsuit, there were 213,000 cases ·3· ·in the state of Florida.· That was July 23rd, if I'm ·4· ·not making a mistake there.· There were 213,000 ·5· ·cases.· Kids under the age of 18, at that date, was ·6· ·37,740. ·7· · · · · · ·Let me take you back to March where we ·8· ·were under 50.· Under 50 statewide.· Again, we -- ·9· ·and then on the date that we filed, there was also a 10· ·15 percent positivity rate around the state.· And 11· ·many of our counties are -- are still bellowing 12· ·above the double-digit positivity rate. 13· · · · Q.· ·And the World Health Organization, the 14· ·CDC, Dr. Birx, Dr. Fauci, pediatric associations 15· ·have come up with a 5 percent threshold of 16· ·positivity, meaning those who test positive. 17· · · · · · ·Do you know of any school county in the 18· ·state of Florida that has a positivity rating at 19· ·5 percent or lower? 20· · · · · · ·MR. WELLS:· Objection, Your Honor.· Now 21· · · · Mr. Richard's testifying instead of just asking 22· · · · a question. 23· · · · · · ·MR. RICHARD:· Withdraw the question.· It's 24· · · · fair, Mr. Wells. 25
0149 Page 144 ·1· · ·BY MR. RICHARD ·2· · · · Q.· ·Do you know of any district's positivity ·3· ·rating below 5 percent? ·4· · · · A.· ·I do not at this date, no. ·5· · · · Q.· ·So how would you describe the number of ·6· ·children with positive tests in July when we're ·7· ·being ordered to open brick-and-mortar versus March ·8· ·when we were told, without financial penalty, not to ·9· ·open? 10· · · · A.· ·It's gotten exponentially worse.· We -- we 11· ·have cases that are being diagnosed every day here 12· ·in the state of Florida. 13· · · · · · ·Again, this has increased over time.· We 14· ·have seen in the last two weeks where we've had a 15· ·slight decrease.· But again, Florida was widely 16· ·known as the epicenter of the coronavirus, and so it 17· ·-- you know, as it relates to where it was in March 18· ·as opposed to -- to right now, it seems to be out of 19· ·control. 20· · · · Q.· ·What are some of the services you provide 21· ·to an elementary teacher, a teacher of special ed, 22· ·algebra teacher, in terms of advice and counsel with 23· ·regards to their careers, their health and safety, 24· ·during this pandemic? 25· · · · · · ·What does FEA do for its 150,000 members?
0150 Page 145 ·1· · · · A.· ·We talk and counsel our members on ·2· ·everything from retirement advice, to transferring ·3· ·of schools, or transferring counties.· We talk to ·4· ·them about certifications, professional development, ·5· ·their working conditions, obviously.· You know, ·6· ·teacher pay and educational support professional pay ·7· ·as it relates to negotiations. ·8· · · · · · ·But we dive deep in education policy.· We ·9· ·do research.· We talk about infrastructure needs in 10· ·schools.· We counsel in crisis, because there are 11· ·many crises that happen.· So there's everything from 12· ·EAP employee assistance, to where we talk to them 13· ·about legal services and how to help themselves. 14· · · · · · ·So through this crisis, we have certainly 15· ·talked to our members and tried to counsel them on, 16· ·you know, what they need to do and -- and where they 17· ·can go to get information. 18· · · · Q.· ·So in the middle of the night, teachers 19· ·are talking, all these things are happening; what 20· ·kind of questions are they asking?· What kind of 21· ·decisions are they asking you to help guide them 22· ·through in this unprecedented pandemic? 23· · · · A.· ·The biggest question that I get asked is: 24· ·Is it safe?· And:· Can you guarantee my safety?· Am 25· ·I going to be alive after the first nine weeks?
0151 Page 146 ·1· ·Are -- is the State going to put in place things ·2· ·that are going to keep us safe?· Are we being guided ·3· ·by science?· Are the public health officials being ·4· ·heard?· And:· Is this reopening attached to some ·5· ·plan, some statewide plan, some guidance?· Am I ·6· ·going to hurt my students if I go back in?· Or:· Are ·7· ·my students going to hurt me? ·8· · · · · · ·Those are just a few of the questions.· We ·9· ·get hundreds of emails from members across the state 10· ·about this crisis and pandemic every week. 11· · · · Q.· ·And what kinds of decisions have teachers 12· ·made with regards to their retirement and the 13· ·retirement benefits under the Florida Retirement 14· ·System in light of this pandemic? 15· · · · A.· ·We have many teachers that are retiring 16· ·early.· Some have not reached retirement age, but 17· ·some may be just looking at their particular age or 18· ·their particular situation health-wise and making a 19· ·decision that they want to keep themselves as -- as 20· ·healthy as they possibly can. 21· · · · · · ·You -- you have some of our teachers that 22· ·are pregnant.· We get several emails from people who 23· ·say that, you know, "I'm pregnant, so that puts me 24· ·at a -- a disadvantage as it relates to the virus." 25· ·We have some of our teachers or educational support
0152 Page 147 ·1· ·professionals who is -- as healthy as can be, but ·2· ·they may live with their elderly parent, and so ·3· ·they're asking those questions about what happens if ·4· ·I'm asymptomatic and something happens to my parent? ·5· · · · · · ·Or they may have a sick child at home. ·6· ·Those are the -- the panorama of questions that we ·7· ·get each and every day from -- from members from ·8· ·Escambia County to the Keys. ·9· · · · Q.· ·And have teachers decided prematurely to 10· ·take lower retirement, leave their avocation and 11· ·their vocation, after this July 6th order came out? 12· · · · · · ·MR. WELLS:· Objection, Your Honor, to the 13· · · · leading and continuing of this. 14· · · · · · ·THE COURT:· All right.· Don't lead. 15· · · · · · ·MR. RICHARD:· Okay. 16· · ·BY MR. RICHARD 17· · · · Q.· ·What have teachers done in making 18· ·decisions since this July 6th order that's in 19· ·contest here?· What have they done, Fed?· What have 20· ·you seen? 21· · · · A.· ·So teachers are retiring.· We have a 22· ·teacher shortage here in the state of Florida.· We 23· ·already know that. 24· · · · · · ·We started last year with over 3,000 25· ·classrooms that did not have a certified teacher.
0153 Page 148 ·1· ·We don't expect that to get any better this year ·2· ·because we have seen a -- an uptick in -- in teacher ·3· ·retirements, in leave of absences from across the ·4· ·state. ·5· · · · · · ·And people just waiting 'til the very last ·6· ·minute, and that's not fair to students because ·7· ·what's happening is, schools are expected to start ·8· ·tomorrow, Monday, next Tuesday, the week following ·9· ·that, and people are really trying to figure out if 10· ·this is going to be safe.· Is -- is this going to 11· ·keep me healthy? 12· · · · · · ·And so they're making life decisions every 13· ·day on their profession that they've chosen, for 14· ·many years in some cases. 15· · · · Q.· ·And is there any concern at all regarding 16· ·the funding cuts that will come to a school system 17· ·if it doesn't go brick-and-mortar five days a week 18· ·among your teachers? 19· · · · A.· ·I think everybody's concerned with 20· ·funding. 21· · · · · · ·You know, teachers obviously want as -- as 22· ·much resources they can -- can get.· But as we all 23· ·know, teachers, my colleagues, they spend their own 24· ·monies in these classrooms, in these schools, in 25· ·these communities, every year.· They do that because
0154 Page 149 ·1· ·they're underfunded. ·2· · · · · · ·And why there would be a threat to ·3· ·undercut or undercurb funding to a particular ·4· ·district because we're in a -- a 100-year pandemic, ·5· ·I have -- I have no idea why that would even be an ·6· ·assertion. ·7· · · · · · ·But that -- you know, that withstanding, ·8· ·everybody's concerned about the money.· Because what ·9· ·we do know in this pandemic is that moving forward, 10· ·it's going to cost us more money to educate kids 11· ·than it has in the past.· Everything from 12· ·infrastructure needs, to social distancing. 13· · · · · · ·Social distancing requires that you have 14· ·smaller classes.· That may mean that you may need 15· ·to -- to hire more teachers.· Infrastructure needs, 16· ·like hand-washing stations.· Many of our school 17· ·buildings are older and dilapidated.· They don't 18· ·have proper HVAC systems in some cases. 19· · · · · · ·They have to deal with filtration 20· ·services.· If you're going to load kids on a bus 21· ·from the back of the bus as opposed to the front, 22· ·you have to do certain technicalities that are going 23· ·to reengineer that bus so that it can be safe. 24· · · · · · ·So all of these things have to be 25· ·contemplated, and there is going to be a need for a
0155 Page 150 ·1· ·massive infusion of monies in order to operate our ·2· ·public schools, and adhere to the safety guidelines ·3· ·of the CDC, World Health Organization, and anyone ·4· ·else. ·5· · · · Q.· ·When did the first school districts in the ·6· ·state open brick-and-mortar under the mandate of the ·7· ·executive order?· When did they first open ·8· ·brick-and-mortar? ·9· · · · A.· ·I believe it has been a week already, 10· ·and -- and I believe that the first week that they 11· ·opened were -- there were 11 school districts that 12· ·opened brick-and-mortar.· And -- and most of them 13· ·were our smaller school districts. 14· · · · Q.· ·Can you share with the Court what happened 15· ·last week as the first school districts went back 16· ·under the order brick-and-mortar? 17· · · · A.· ·Yeah. 18· · · · · · ·So we -- we are starting to get cases that 19· ·are diagnosed.· We're starting to get classrooms 20· ·closed.· We're starting to get, you know, people 21· ·having to go and get tested and isolated. 22· ·Specifically, Martin County is a prime example where 23· ·you have classrooms that -- that have had a positive 24· ·case, and you've had to quarantine children and 25· ·students.· You've had to quarantine teachers.
0156 Page 151 ·1· · · · · · ·And Bradford County is another example ·2· ·where we have had cases that have been diagnosed ·3· ·there where people are in isolation and quarantine, ·4· ·and we've had to deal with particular students in ·5· ·classes. ·6· · · · · · ·And -- and, you know, listen, as we go ·7· ·back and the numbers are this high, we've seen ·8· ·what's happening across the country.· There are -- ·9· ·there are going to be events. 10· · · · · · ·And this is going to be a situation to 11· ·where, you know, it -- all you have to do is look at 12· ·the evidence, the body of evidence, in the -- and 13· ·the science and the health professionals are -- are 14· ·dictating what we will see here in Florida. 15· · · · Q.· ·Were students, to your knowledge, in 16· ·Martin County last week sent home to be quarantined 17· ·because they tested positive or showed symptoms of 18· ·COVID? 19· · · · A.· ·Yes, that's what's been reported.· Yes. 20· · · · Q.· ·And were there teachers in Martin last 21· ·week identified to have come in contact with those 22· ·students who tested positive or showed symptoms of 23· ·COVID? 24· · · · A.· ·There -- I'm sorry, can you repeat your 25· ·question?
0157 Page 152 ·1· · · · Q.· ·Were there teachers who were notified that ·2· ·they have come in contact with students in Martin ·3· ·who tested positive or exhibited symptoms of COVID ·4· ·last week? ·5· · · · A.· ·Yes.· And -- and what we know of those ·6· ·teachers that have been exposed, they are deemed ·7· ·essential employees, and they have had to report to ·8· ·work. ·9· · · · · · ·So -- so they have been exposed and they 10· ·have -- they are still reporting to work as we know 11· ·of today. 12· · · · Q.· ·So the teachers were ordered to report to 13· ·work even though they had been exposed to students 14· ·who were quarantined? 15· · · · A.· ·Yes, sir.· Because they have been deemed 16· ·essential employees, and so they are -- they are at 17· ·work. 18· · · · · · ·MR. RICHARD:· I have no further questions. 19· · · · I pass the witness. 20· · · · · · ·THE COURT:· Cross? 21· · · · · · ·MR. WELLS:· Thank you, Your Honor. 22· · · · · · · · · · CROSS EXAMINATION 23· · ·BY MR. WELLS 24· · · · Q.· ·Mr. Ingram, David Wells.· Glad to meet 25· ·you.· We're both products of the Dade County public
0158 Page 153 ·1· ·school system. ·2· · · · A.· ·All right. ·3· · · · Q.· ·Congratulations on your Teacher of the ·4· ·Year award.· Fair to say you believe you made a ·5· ·significant difference and make a significant ·6· ·difference in the lives of your students? ·7· · · · A.· ·Absolutely. ·8· · · · Q.· ·Fair to say that your being with them in ·9· ·school, being able to work with them, see them, hear 10· ·what's going on in their lives, you have been able 11· ·to make a difference? 12· · · · A.· ·Yes, sir. 13· · · · Q.· ·And you believe that the teachers in your 14· ·union do the same thing? 15· · · · A.· ·Yes, sir. 16· · · · Q.· ·You believe that by being there and being 17· ·with their students, they enrich their lives and 18· ·make them better? 19· · · · A.· ·Yes. 20· · · · Q.· ·Okay.· Now, you've talked about in March, 21· ·when the Department of Education recommended that 22· ·the school districts closed and they closed that the 23· ·teachers were asked to make a very quick course 24· ·change, weren't they? 25· · · · A.· ·Yes, they were.
0159 Page 154 ·1· · · · Q.· ·Your teachers who had been, some of them ·2· ·for decades, teaching in a classroom, with the ·3· ·ability to see their students and work with their ·4· ·students, were suddenly required to teach them ·5· ·virtually? ·6· · · · A.· ·Yes. ·7· · · · Q.· ·They had to make adjustments to be able to ·8· ·do that, from whatever it was, May 13th to -- excuse ·9· ·me, March 13th to whenever in May they graduated, 10· ·depending on the school, they had to do those types 11· ·of things? 12· · · · A.· ·Yes. 13· · · · Q.· ·And you talked about some of the extra 14· ·efforts they did to make it work.· But you would 15· ·agree that that virtual education is not a 16· ·substitute for what you and your teachers and the 17· ·teachers union can do in that classroom? 18· · · · A.· ·Oh, absolutely.· I agree. 19· · · · Q.· ·Okay.· And you understand -- you may not 20· ·agree with the decision, ultimately, but you 21· ·certainly understand the desire to get students back 22· ·in school? 23· · · · A.· ·Again, as I expressed, everybody has the 24· ·desire to be in schools.· My colleagues lead the way 25· ·in that.· But -- but there is a "but" there.
0160 Page 155 ·1· · · · Q.· ·I understand the "but."· We'll talk about ·2· ·the "but." ·3· · · · · · ·They want to get back in school.· They ·4· ·think that's where they do their best job; am I ·5· ·right? ·6· · · · A.· ·Yes. ·7· · · · Q.· ·I'm sorry, we kind of -- ·8· · · · A.· ·Yeah. ·9· · · · Q.· ·That's where your teachers think they do 10· ·their best job, in the classroom with their 11· ·students? 12· · · · A.· ·Absolutely. 13· · · · Q.· ·Okay.· And you talked about during the 14· ·period of time from March 13th to late May when this 15· ·teaching was going on that there were still schools 16· ·being -- meals served by your cafeteria workers, 17· ·correct? 18· · · · A.· ·Yes. 19· · · · Q.· ·And your teachers were still teaching and 20· ·doing the best they could to reach out and deal with 21· ·the students, correct? 22· · · · A.· ·Yes. 23· · · · Q.· ·And you look at your teachers as basically 24· ·essential workers when it comes to the students? 25· · · · A.· ·I look at our -- our teachers as -- as
0161 Page 156 ·1· ·people who help our communities every day. ·2· · · · Q.· ·Okay.· Well, you certainly think they're ·3· ·essential to the lives of those students, don't you? ·4· · · · A.· ·Yes, sir.· But I believe "essential ·5· ·workers" is a -- is a -- is an official term, and so ·6· ·I wanted to know what context you're using that ·7· ·essential employee. ·8· · · · Q.· ·Fair enough. ·9· · · · · · ·Well, you talked a little bit about the 10· ·concerns that teachers have, and everybody certainly 11· ·shares those concerns and doesn't ignore them. 12· · · · · · ·Have you, in your role as the president of 13· ·this very large association of teachers union, spoke 14· ·with union leaders dealing with grocery store 15· ·workers and the like who have been going to work? 16· · · · A.· ·No, sir. 17· · · · Q.· ·Okay.· But you realize they've been doing 18· ·that, they've been having to make tough decisions 19· ·about whether or not to continue to work, or to 20· ·retire; you understand that, don't you? 21· · · · A.· ·Oh, I do understand that. 22· · · · Q.· ·Okay.· Now -- 23· · · · A.· ·I'm sorry, sir, but are you asserting that 24· ·grocery store workers do -- do the exact same thing 25· ·that we're trying to allow our teachers, to go back
0162 Page 157 ·1· ·into schools seven days a week -- five days a week? ·2· · · · Q.· ·No, sir.· As a former teacher and somebody ·3· ·who's also worked in those roles, I wouldn't confuse ·4· ·them in the least. ·5· · · · · · ·I'm saying you understand the types of ·6· ·decisions that they have to make, and whether ·7· ·they're working in a grocery store or whether ·8· ·they're working in a school, those are tough ·9· ·decisions, whether to go to work or have to retire? 10· · · · A.· ·Yes. 11· · · · Q.· ·Okay.· Now, I think you told us earlier 12· ·when you were answering one of Mr. Richard's 13· ·questions that you're not a doctor? 14· · · · A.· ·That is correct. 15· · · · Q.· ·Not a health care worker? 16· · · · A.· ·Correct. 17· · · · Q.· ·And you're not a psychologist; you're a 18· ·very successful teacher who has moved on to become a 19· ·union leader? 20· · · · A.· ·That's correct. 21· · · · Q.· ·And as a union leader, the roles that 22· ·you've had, several of them were elected; am I 23· ·right? 24· · · · A.· ·Yes. 25· · · · Q.· ·Okay.· In fact, having become the
0163 Page 158 ·1· ·president of the Florida Education Association, ·2· ·that's pretty much the top job for teacher unions in ·3· ·the state of Florida, isn't it? ·4· · · · A.· ·Some would consider it that, yes.· Some ·5· ·would consider it the lowest. ·6· · · · Q.· ·Okay.· Any event, you're elected by union ·7· ·workers to do that? ·8· · · · A.· ·Yes. ·9· · · · Q.· ·The union members of the teachers union? 10· · · · A.· ·That is correct. 11· · · · Q.· ·Okay.· And you are to represent them 12· ·zealously as best you can as the president of that 13· ·teachers union? 14· · · · A.· ·Yes. 15· · · · Q.· ·Okay.· You're not elected by the parents 16· ·of the students that go to those schools? 17· · · · A.· ·I'm elected by our members. 18· · · · Q.· ·Now, one of the things that the teachers 19· ·union does, and correct me if I'm wrong, I think 20· ·it's every year, is, there's a new collective 21· ·bargaining agreement? 22· · · · A.· ·That depends on where you are, and -- and 23· ·where a particular local is in their negotiation. 24· ·So it -- it's not year to year.· Sometimes it's 25· ·every two years, sometimes it's every three.
0164 Page 159 ·1· · · · Q.· ·All right.· Fair enough. ·2· · · · · · ·But at any given time, there's a ·3· ·collective bargaining union agreement for the ·4· ·teachers throughout the state of Florida? ·5· · · · A.· ·That's correct. ·6· · · · Q.· ·And those collective bargaining agreements ·7· ·provides them with various rights, don't they? ·8· · · · A.· ·That's correct. ·9· · · · Q.· ·And if you're a dues-paying member of 10· ·the -- whatever the local teachers union it is, you 11· ·can look to the union to provide you with additional 12· ·guidance and even representations if you have issues 13· ·at your school? 14· · · · A.· ·That is correct. 15· · · · Q.· ·And in fact, as we sit here, you know, on 16· ·this court hearing, there's a case preceding it in 17· ·Orange County being brought by the Orange County 18· ·Classroom Teachers Association; is that correct? 19· · · · A.· ·I -- I don't know the named plaintiffs 20· ·of -- of that, but I do know, loosely, yes, there is 21· ·a court hearing. 22· · · · Q.· ·Do you know that one of your -- do you 23· ·call them sister, brother unions, member unions, 24· ·what do you call the individual unions that make up 25· ·the Florida Education Association?
0165 Page 160 ·1· · · · A.· ·Local affiliates. ·2· · · · Q.· ·Okay.· So you know you got a local ·3· ·affiliate in Orlando that has brought a grievance on ·4· ·behalf of the teachers in Orlando who feel that it's ·5· ·unsafe to go back to school? ·6· · · · A.· ·Yes.· I don't know the particulars, but, ·7· ·yes. ·8· · · · Q.· ·And that's one of the things that you can ·9· ·do under your collective bargaining agreement, is to 10· ·do that, and then there's an arbitration and then 11· ·there are awards made pursuant to that? 12· · · · A.· ·I don't believe that you have to have a 13· ·collective bargaining agreement to do that, but to 14· ·answer your question, yes. 15· · · · Q.· ·Okay.· And the arbitrator can award 16· ·damages, it can actually award that things have to 17· ·happen in the school, can't they? 18· · · · A.· ·The arbitrator can -- can make a judgment, 19· ·yes. 20· · · · Q.· ·Right. 21· · · · · · ·And, for example, I'm sure you know from 22· ·your experience as a union leader that if a teacher 23· ·feels like they've been wrongly discharged, they can 24· ·deal with that in a grievance and an arbitration, 25· ·and get their job back if the arbitrator decides
0166 Page 161 ·1· ·that that's the right thing to do? ·2· · · · A.· ·Among other things, yes. ·3· · · · Q.· ·Okay.· And the other things they can do is ·4· ·they can award money damages that has to be paid? ·5· · · · A.· ·Among other things, yes. ·6· · · · Q.· ·Okay.· Now, you talked a bunch about what ·7· ·was going on around the state. ·8· · · · · · ·Have you reviewed the different reopening ·9· ·plans that have been put together by the 67 10· ·different school districts? 11· · · · A.· ·Many of them, yes, sir. 12· · · · Q.· ·Okay.· And you understand that -- well, 13· ·for example, you came out of Miami-Dade as an actual 14· ·teacher; am I right? 15· · · · A.· ·That's correct. 16· · · · Q.· ·Okay.· And you understand that Miami-Dade 17· ·put together a reopening plan to deal with the 18· ·issues around the coronavirus? 19· · · · A.· ·I do, yes. 20· · · · · · ·MR. WELLS:· Okay.· Can we bring up -- 21· · · · excuse me, Your Honor.· I'm just trying to get 22· · · · an exhibit number here. 23· · · · · · ·It's Exhibit No. 20.· And we're going to 24· · · · go to a specific page there, but let's pull 25· · · · that up.
0167 Page 162 ·1· · · · · · ·(Thereupon, marked for identification is ·2· · · · Defense Exhibit 20.) ·3· · · · · · ·MR. RICHARD:· This is Defendant's 20, ·4· · · · Mr. Wells? ·5· · · · · · ·MR. WELLS:· Yes, Your Honor -- I mean yes, ·6· · · · sir. ·7· · · · · · ·MR. RICHARD:· Thank you, sir. ·8· · ·BY MR. WELLS ·9· · · · Q.· ·All right.· So what I've put up in front 10· ·of you, Mr. Ingram, is the Reopen Smart Return Safe 11· ·plan from the Miami-Dade County public schools. 12· · · · · · ·Are you familiar with the plan? 13· · · · A.· ·Not in detail.· I -- I have had a cursory 14· ·look. 15· · · · Q.· ·All right.· Fair enough.· And we're not 16· ·going to get into that kind of detail. 17· · · · · · ·MR. WELLS:· But can you go to the 18· · · · August 2020 letter, please. 19· · ·BY MR. WELLS 20· · · · Q.· ·I want to bring up -- it's right at the 21· ·very beginning of the plan.· It's an August 2020 22· ·letter to the Miami-Dade County public school family 23· ·from Alberto Carvalho.· Probably doing not much 24· ·justice to his name. 25· · · · · · ·Have you seen this letter before?
0168 Page 163 ·1· · · · A.· ·I have not. ·2· · · · Q.· ·Okay.· Well, let me -- are you aware ·3· ·that -- I'll read a part of it to you and ask if you ·4· ·understand if that's what's happening. ·5· · · · · · ·The superintendent, in the second ·6· ·paragraph, says, "Unfortunately, public health ·7· ·conditions that currently exist in Miami-Dade County ·8· ·are not conducive to a safe return to face-to-face ·9· ·schooling at this time.· Therefore, the school start 10· ·date for students has been delayed until August 31, 11· ·2020, when all classes will begin in a remote 12· ·environment. 13· · · · · · ·"As conditions improve, it is possible 14· ·that on Monday, October 5, Miami-Dade County public 15· ·students whose families choose to may return to 16· ·their assigned schoolhouse while those who have 17· ·chosen to learn from a distance will experience no 18· ·charge (sic)." 19· · · · · · ·Did you know that that was going on in 20· ·Miami with the Miami-Dade public schools? 21· · · · A.· ·Yes, I've seen bullet points of -- or 22· ·their plan. 23· · · · Q.· ·Okay.· And what they've done is from 24· ·August 31st to at least -- I don't know if 25· ·October 4th is a weekend or a weekday, but at least
0169 Page 164 ·1· ·until that early October date, everybody will be ·2· ·remote, whether through the virtual school or the ·3· ·remote teaching you were talking about, right? ·4· · · · A.· ·Yes. ·5· · · · Q.· ·And they're just going to continue to ·6· ·monitoring what's going on down there to make a ·7· ·decision. ·8· · · · · · ·And are you aware of whether this plan has ·9· ·actually been approved by the Department 10· ·of Education? 11· · · · A.· ·I believe it has. 12· · · · Q.· ·Okay.· And you talked about the dollars 13· ·that are necessary to go forward, and I think 14· ·everybody will agree that more money for public 15· ·schools would be better. 16· · · · · · ·But in terms of the coronavirus, are you 17· ·aware of what additional dollars have been made to 18· ·the school districts to help them to deal with 19· ·sanitation and the other issues that they're trying 20· ·to do to make it safer? 21· · · · A.· ·If you're referring to the -- the 22· ·congressional monies that have come through the 23· ·CARES Act, I am familiar.· Not -- not with 24· ·definitive amounts that I'm prepared to testify to, 25· ·but there has been some monies from the federal
0170 Page 165 ·1· ·government. ·2· · · · Q.· ·Were you aware that the amount that ·3· ·Florida allocated to the school districts is roughly ·4· ·$700 million? ·5· · · · A.· ·Yes. ·6· · · · Q.· ·Okay.· And in Dade County itself, as one ·7· ·of the larger counties, received $119 million to ·8· ·help it in terms of being able to do what it needs ·9· ·to do to make schools safe when it ultimately opens? 10· · · · A.· ·Yes, that -- that's the money from the 11· ·CARES Act. 12· · · · Q.· ·Okay.· And your disagreement, as I 13· ·understand it, with the executive order and where we 14· ·are, is, you do not believe that the science 15· ·supports the concept that we can go back to school 16· ·safely, even if it's only, you know, 30 or 17· ·40 percent of the students? 18· · · · A.· ·I don't do -- I'm sorry, can you repeat 19· ·your question? 20· · · · Q.· ·Yes, sir. 21· · · · · · ·Just -- the disagreement here, you don't 22· ·disagree that the right thing to do is to get back 23· ·to school; your disagreement is with the timing? 24· · · · A.· ·My disagreement is with the control of the 25· ·virus.· The virus, right now, is at a double-digit
0171 Page 166 ·1· ·positivity rate.· We have not seen a ·2· ·less-than-a-14-day decline in the state of Florida. ·3· ·We've been the epicenter of the coronavirus. ·4· · · · · · ·I think the virus drives where we are, not ·5· ·the budget. ·6· · · · Q.· ·Wasn't asking you about the budget driving ·7· ·that.· I'm asking you: ·8· · · · · · ·Your disagreement is over the policy ·9· ·decision that's been made that parents can have a 10· ·choice and can go back to school safely using 11· ·mitigating factors; you don't believe that's right 12· ·for right now? 13· · · · A.· ·I do not believe that our schools are safe 14· ·to go back to school right now. 15· · · · Q.· ·And you believe that that should be 16· ·something that science drives.· You don't want 17· ·politics, whether it's union politics or government 18· ·politics, you want the science to drive those 19· ·choices? 20· · · · A.· ·That's correct. 21· · · · Q.· ·Okay.· And you're aware that there's a 22· ·debate amongst those folks who spend their lives 23· ·dwelling in coronavirus and the science around it as 24· ·to exactly what the right things are to do? 25· · · · A.· ·Absolutely.· I'm -- I'm aware of the
0172 Page 167 ·1· ·debate, and I'm aware that there has to be a ·2· ·decision on that debate as well. ·3· · · · · · ·MR. WELLS:· Okay.· Thank you.· I have no ·4· · · · further questions. ·5· · · · · · ·THE COURT:· Redirect? ·6· · · · · · ·MR. RICHARD:· Just two quick questions. ·7· · · · · · · · · ·REDIRECT EXAMINATION ·8· · ·BY MR. RICHARD ·9· · · · Q.· ·And who should be making the decision on 10· ·that debate?· What government entity should, at the 11· ·end of the day, make that decision?· The State, or 12· ·who should make it, Fed? 13· · · · A.· ·It's always at the local level.· It is 14· ·always those folks who are on the ground in the 15· ·community. 16· · · · · · ·You know, I think the school board, the 17· ·superintendent, and the local unions together make 18· ·that decision because they know kids best.· But they 19· ·cannot make that decision based on, you know, the 20· ·threat of losing funding, or the threat of losing 21· ·programs.· Or some -- some arbitrary kind of -- kind 22· ·of issue hanging over their heads.· Because that 23· ·will inevitably influence that decision. 24· · · · Q.· ·And turning to the Dade County situation, 25· ·as -- do you know if Superintendent Carvalho, in
0173 Page 168 ·1· ·extending the start date in person to October, did ·2· ·he in any way, shape, or form have Dade County ·3· ·schools threatened with a different formula and a ·4· ·lesser funding for the kids studying virtually? ·5· · · · A.· ·That has not been reported.· I do not ·6· ·believe that that has happened.· And the only threat ·7· ·of report that I have read and heard and can verify ·8· ·is Hillsborough County. ·9· · · · Q.· ·And do you know why Hillsborough County 10· ·wouldn't be allowed to do what Dade did without the 11· ·threat of loss of money? 12· · · · · · ·MR. WELLS:· Now we've got him speculating 13· · · · on what Hillsborough did or didn't do, Your 14· · · · Honor. 15· · · · · · ·MR. RICHARD:· Just withdraw the question. 16· · · · · · ·No further questions. 17· · · · · · ·MR. WELLS:· Thank you. 18· · · · · · ·THE COURT:· Okay.· Are you ready for your 19· · · · next witness, or you want to take a short lunch 20· · · · break? 21· · · · · · ·MR. MEYER:· Your Honor, we have a 22· · · · demonstrative piece of evidence in the nature 23· · · · of a video that -- that this would be a good 24· · · · time to introduce to the Court. 25· · · · · · ·It shouldn't take more than 15 or 20
0174 Page 169 ·1· ·minutes, and then if we could take the lunch ·2· ·break then.· We anticipate coming back from ·3· ·lunch, that we will have three or possibly four ·4· ·live witnesses, and then that will basically ·5· ·conclude our presentation of evidence. ·6· · · · So if -- if it's acceptable to the Court, ·7· ·I'd ask Mr. Wieland to go ahead and introduce ·8· ·the demonstrative evidence. ·9· · · · THE COURT:· What's the exhibit number? 10· · · · MR. WELLS:· Your Honor, if we might 11· ·understand what the demonstrative evidence is, 12· ·and we're talking about a video and whether or 13· ·not it's admissible or not admissible, it's a 14· ·little hard to know when we're not even sure 15· ·which one it is. 16· · · · MR. WIELAND:· Sure, I'd be happy to 17· ·introduce it, Judge, if you'd allow. 18· · · · THE COURT:· What is that exhibit number? 19· · · · MR. WIELAND:· Sure, Judge.· That would be 20· ·Exhibit No. 45, a composite of video clips.· It 21· ·says of DeSantis, but it's of DeSantis, as well 22· ·as Commissioner Corcoran.· And there's one clip 23· ·of Dr. Pino, who is the local health official 24· ·here in Orange County. 25· · · · THE COURT:· Have you seen that video,
0175 Page 170 ·1· ·Mr. Wells? ·2· · · · MR. WELLS:· Well, what they did was they ·3· ·sent us a whole series of videos that take up, ·4· ·you know, hours of time.· And so we're not ·5· ·certain exactly what they're using, No. 1. ·6· · · · And, No. 2, don't think it's appropriate ·7· ·to put in snippets of videos absent testimony ·8· ·in a hearing like this. ·9· · · · MR. WIELAND:· Your Honor, if I -- 10· · · · THE COURT:· Let's go ahead and watch the 11· ·video, and then if there's still an objection 12· ·after the video, let me know the objection, and 13· ·I can rule at that time. 14· · · · MR. WELLS:· Thank you, Your Honor. 15· · · · MR. WIELAND:· Thank you, Your Honor. 16· · · · (The video clip was played.) 17· · · · MR. WELLS:· I don't know if anybody else 18· ·has a problem, but it's nothing coming through 19· ·on sound here. 20· · · · THE COURT:· Right.· I'm not getting any 21· ·audio on that. 22· · · · (The video clip Exhibit 45 was played and 23· ·transcribed as follows:) 24· · · · GOVERNOR DeSANTIS:· I don't think 25· ·nationwide there's been a single fatality under
0176 Page 171 ·1· ·25.· For whatever reason, it just doesn't seem ·2· ·to threaten, you know, kids. ·3· · · · And we lose, in Florida, between five and ·4· ·ten kids a year for the flu.· This one, for ·5· ·whatever reason, more dangerous if you're 65 ·6· ·and plus than the flu.· No doubt about that. ·7· ·If you're younger it just hasn't had an impact. ·8· ·So that should factor into how we're viewing ·9· ·this. 10· · · · Today, I'm also announcing that our K 11· ·through 12 schools will continue with distance 12· ·learning for the duration of the school year. 13· ·We spoke with a lot of folks throughout the 14· ·state.· There was, you know, some differing 15· ·opinions.· Some parents were not interested in 16· ·their kids going back.· Some others, it's been 17· ·tough around the house, they would have liked 18· ·to have seen them go back. 19· · · · But I think as we looked at the clock, and 20· ·we looked to see how -- what it would look 21· ·like, we've got pretty good momentum for 22· ·distance learning.· It's not -- it's obviously 23· ·not the ideal situation, but given where we are 24· ·in the school year, we felt that that was the 25· ·best decision to go forward.
0177 Page 172 ·1· · · · Safety precautions have been made for ·2· ·those who have worked throughout the pandemic, ·3· ·from everyone from working in health care to ·4· ·working in grocery stores, and I'm confident ·5· ·the same can be done for our educators. ·6· · · · Now, for those teachers who may be higher ·7· ·risk, or even those who just don't feel ·8· ·comfortable with in-person instruction, they ·9· ·should be given the option of working remotely. 10· ·Why force someone to be in the classroom if 11· ·they're uncomfortable doing so?· Let's just 12· ·find a way to make do. 13· · · · And if a school district needs to delay 14· ·the school year for a few weeks so that 15· ·everything will be in good shape, have at it. 16· ·The important thing is that our parents have a 17· ·meaningful choice when it comes to in-person 18· ·education. 19· · · · You can bet your bottom dollar that 20· ·keeping schools closed will exacerbate existing 21· ·achievement gaps between demographic groups, 22· ·lead to more kids dropping out of school, 23· ·disproportionally impact the least economically 24· ·affluent Floridians, foster more social 25· ·isolation, depression and anxiety, harm
0178 Page 173 ·1· ·students with special needs, and deprive ·2· ·students of the ability to engage in sports and ·3· ·extracurricular activities.· While the risk ·4· ·from -- to students from in-person learning are ·5· ·low, the cost of keeping schools closed are ·6· ·enormous. ·7· · · · To provide innovative instruction ·8· ·arrangements so that students learning remotely ·9· ·have the best possible opportunity to succeed. 10· ·I also think every accommodation should be made 11· ·for any employee; certainly, the State's 12· ·guidelines on employment are at large, not just 13· ·including education, is that anybody who's in a 14· ·vulnerable category, whether it be through age 15· ·or health condition, to the coronavirus has to 16· ·have special accommodations made. 17· · · · And that may mean some teachers may need 18· ·to teach remotely, and I think that we should 19· ·give wide latitude on that.· And if there are 20· ·teachers that just aren't comfortable doing it, 21· ·let's just make do with what we have and get 22· ·the folks back in the classroom who are 23· ·comfortable being there. 24· · · · But again, I don't think it should be 25· ·anything where you're, like, ordering
0179 Page 174 ·1· ·everything to do X, Y, and Z.· You know, let's ·2· ·just work through this as best that we can. ·3· ·But I also understand that this is something ·4· ·that in a big, diverse state, the way this is ·5· ·implemented is going to vary across the ·6· ·different regions of the state, and so school ·7· ·districts really are in charge of some of these ·8· ·key issues. ·9· · · · For example, I said last week, look, if 10· ·you need to delay the year, delay the year by a 11· ·couple weeks.· I mean, I'm not telling you when 12· ·you have to start the year.· Make sure you have 13· ·your ducks in a row.· Much rather have a 14· ·successful school year if it's a couple weeks 15· ·late than kind of going into it and not be 16· ·ready to handle the situations that may 17· ·develop. 18· · · · So we really, really, you know, support 19· ·that -- school districts making those decisions 20· ·based on the best interests of the students, 21· ·and -- 22· · · · COMMISSIONER CORCORAN:· Well, what the 23· ·emergency order did was protect them from that. 24· · · · So right now under current law, it's about 25· ·your students in seats for 180 days and 900
0180 Page 175 ·1· ·hours.· What we did is give complete ·2· ·flexibility at the request of the districts so ·3· ·they'd have these flexibilities to give parents ·4· ·and to give -- have the districts themselves ·5· ·have the certainty of the funding. ·6· · · · So now that funding is guaranteed, and now ·7· ·they can open up their schools and offer ·8· ·parents the variety of choices. ·9· · · · Thank you, Governor.· First, obviously, 10· ·I'm very impressed with the school and what you 11· ·guys are doing.· Very excited about how you've 12· ·given that choice.· The whole point, I think, 13· ·that the governor laid down from the get-go was 14· ·trying to give as much parental choice and as 15· ·much flexibility to the districts to provide 16· ·the needs for all students, and in all forms of 17· ·how they come. 18· · · · Recognizing that not all parents are 19· ·equal, not all children are equal.· They all 20· ·have different -- come from different learning 21· ·modules. 22· · · · GOVERNOR DeSANTIS:· Most, I think, the 23· ·school districts, you know, have said that we 24· ·need to give parents the choices and we need to 25· ·do everything we can to do it.· But I'll let
0181 Page 176 ·1· ·Richard speak -- ·2· · · · COMMISSIONER CORCORAN:· Everything that ·3· ·we've put out has been very, very clear, even ·4· ·in the emergency order, it's been very, very ·5· ·clear, if you read it, that we recognize that ·6· ·the local school districts are in charge, and ·7· ·what we did was work with them -- we worked ·8· ·with the superintendents, we've worked with our ·9· ·chief financial officers, and they came to us 10· ·in the summer and said, "We're in a real 11· ·predicament." 12· · · · And so we came up with an emergency order 13· ·in conjunction and in collaboration with them 14· ·that gave them complete flexibility so that 15· ·they would have certainty in how the funding 16· ·worked.· They would have certainty on what 17· ·options would be able to be given to children. 18· · · · They had flexibility for charters 19· ·and private schools. 20· · · · And so we have given them that 21· ·flexibility, and they can absolutely make 22· ·whatever decision they want.· That's -- they 23· ·have the opportunity. 24· · · · But the opportunity to open or close is 25· ·100 percent.· We've given that flexibility to
0182 Page 177 ·1· ·the locals, and that was what the emergency ·2· ·order did, at their request.· At their asking ·3· ·us to say, hey, what do we do if we need to ·4· ·come up with an innovative model?· How does ·5· ·that funding work? ·6· · · · And so we did an emergency order to give ·7· ·them that complete flexibility. ·8· · · · UNIDENTIFIED FEMALE SPEAKER:· So they can ·9· ·open?· They -- 10· · · · COMMISSIONER CORCORAN:· Absolutely. 11· · · · UNIDENTIFIED FEMALE SPEAKER:· (Indiscernib 12· ·le) to open for four weeks (indiscernible). 13· · · · COMMISSIONER CORCORAN:· They have -- it's 14· ·their -- it's at their discretion. 15· · · · UNIDENTIFIED FEMALE SPEAKER:· What are the 16· ·possible repercussions here if they choose to 17· ·keep going with this four weeks of online 18· ·learning? 19· · · · COMMISSIONER CORCORAN:· That's why we came 20· ·up with the emergency orders, because if you go 21· ·to a -- strictly a virtual model under the 22· ·existing law without the emergency order, then 23· ·the funding is less.· And so we did the 24· ·emergency order so that those locals would not 25· ·have to worry about getting funded less.· It
0183 Page 178 ·1· ·was to give them the true flexibility to be ·2· ·able to serve every single person here in this ·3· ·room. ·4· · · · Some want to go back to in-person school. ·5· ·Some teachers want -- most students want to ·6· ·come back.· Most students want to come back. ·7· ·All of that flexibility, fine, give them all ·8· ·that flexibility, and we will fully fund you, ·9· ·and won't even count the October count to give 10· ·you that much flexibility.· It was a hundred 11· ·percent to give choice and flexibility to the 12· ·districts. 13· · · · Probably -- already, we have 13 districts 14· ·that opened up this week.· Of those 13 15· ·districts -- this is the amazing thing -- to 16· ·your point, we are being sued by the union 17· ·bosses, and they are disgraceful, absolutely 18· ·disgraceful. 19· · · · You know, so we have multiple suits going, 20· ·but the reality is, of the districts that 21· ·opened up this week, six of them have almost a 22· ·hundred percent teacher participation.· You 23· ·know what teachers want?· Teachers want to be 24· ·back in the classroom with their kids.· Even if 25· ·they have an underlying condition.· They want
0184 Page 179 ·1· ·to be back, and that's what we're seeing in ·2· ·Florida. ·3· · · · And when we get to August 31st, all the ·4· ·districts open up, we're going to have probably ·5· ·70 to 80 percent of students in face-to-face ·6· ·options, and we'll have more than that ·7· ·percentage in teachers in the classroom with ·8· ·their students.· And there's just no substitute ·9· ·for it. 10· · · · You know, you hear it.· We have the 11· ·largest virtual school in the country.· It is a 12· ·second-tier education.· The best education is 13· ·when you got a great teacher, a great mentor, 14· ·someone who's got great wisdom, all the peer -- 15· ·the children peers together giving them great 16· ·education. 17· · · · GOVERNOR DeSANTIS:· Just as the Seals 18· ·surmounted obstacles to bring Osama bin Laden 19· ·to justice, so too will the Martin County 20· ·school system find a way to provide parents 21· ·with a meaningful choice of in-person 22· ·instruction or continued distance learning. 23· ·All in, all the time. 24· · · · MS. DENTEL:· Thank you for your 25· ·presentation.· I appreciate all the time you've
0185 Page 180 ·1· ·been spending and sharing with the residents of ·2· ·Orange County keeping us up to date. ·3· · · · I know that you -- you were working with ·4· ·our school district.· You gave the opinion that ·5· ·it was not safe to have graduations.· So do you ·6· ·say it's safe to reopen our schools? ·7· · · · DR. PINO:· Could you define "safe"? ·8· · · · MS. DENT:· Can you define it? ·9· · · · DR. PINO:· Well, "safe" can mean different 10· ·things for different people.· Safe for -- in 11· ·the case that you are talking about is zero 12· ·transmission, no.· You will see transmission. 13· · · · It would be exceptionally miracles if we 14· ·have no transmission anywhere.· Again, this is 15· ·a pandemic environment.· It is -- it's a 16· ·completely mindset.· It's just -- this is not 17· ·hypertension.· This is not HIV.· This is not 18· ·syphilis.· This is not any other infectious 19· ·disease.· This is a pandemic, and that means 20· ·you are going to have high levels of 21· ·transmission, and in many cases, high level of 22· ·mortality. 23· · · · And everything that you have to do in a 24· ·pandemic, how do I mitigate, how do I mitigate, 25· ·what is going to happen?· How can I keep it
0186 Page 181 ·1· ·safer? ·2· · · · (Video clip concluded.) ·3· · · · MR. WIELAND:· Your Honor, just so the ·4· ·record's clear, obviously you'll have a much ·5· ·better copy of that.· I think playing through ·6· ·the Internet, it's a little bit hard to hear, ·7· ·but you'll have a copy of that that obviously ·8· ·doesn't have a delay on any of those people ·9· ·that were speaking, and I think the volume 10· ·issues will be fixed, if you review it on your 11· ·own. 12· · · · THE COURT:· Well, I can certainly tell you 13· ·that I could understand what Governor DeSantis 14· ·was saying, but I really couldn't understand 15· ·any of -- just a little bit of what 16· ·Commissioner Corcoran was saying, or the 17· ·doctor. 18· · · · My audio was real bad.· I don't know if 19· ·your audio was better -- 20· · · · MR. WIELAND:· And, Your Honor, we'll 21· ·provide -- 22· · · · THE COURT:· -- the other two. 23· · · · MR. WIELAND:· I apologize for 24· ·interrupting. 25· · · · We'll provide you with a link that will
0187 Page 182 ·1· ·obviously hopefully fix those issues.· I think ·2· ·since it's streaming through Zoom, it's having ·3· ·some issues. ·4· · · · THE COURT:· Well, are you in a position, ·5· ·Mr. Wells, to say whether you have objections ·6· ·to Plaintiffs' 45? ·7· · · · MR. WELLS:· I think I'd like to be able to ·8· ·hear -- parts of it I have no idea what they ·9· ·were saying.· My overall objection, the whole 10· ·concept of taking snippets out of months of 11· ·video and putting them together is not -- I've 12· ·never heard or seen anything like that in the 13· ·courtroom in 40 years. 14· · · · So I don't believe it's reliable.· I don't 15· ·believe it's appropriate to cut and paste. 16· ·There's no opportunity to deal with it in real 17· ·time.· We're just sitting there and taking 18· ·something from one time to another time to 19· ·another time to make a particular point that 20· ·you want to make without any of the surrounding 21· ·circumstances or discussion that would put it 22· ·in perspective. 23· · · · And I don't think that that's an 24· ·appropriate type of evidence for any hearing, 25· ·much less an emergency hearing like this.
0188 Page 183 ·1· · · · MR. WIELAND:· If I may be heard, Your ·2· ·Honor. ·3· · · · THE COURT:· What says counsel for the ·4· ·plaintiffs? ·5· · · · MR. WIELAND:· Sure. ·6· · · · Your Honor, as much as Mr. Wells may not ·7· ·want the statements from Mr. DeSantis and ·8· ·Mr. Corcoran entered into evidence, I think ·9· ·these were admissions by a party opponent. 10· ·They were provided to defense counsel ahead of 11· ·time.· They are snippets, we will admit, from 12· ·press conferences, but they are exactly what 13· ·the governor and the Department of Education 14· ·head said.· And as admissions by a party 15· ·opponent, I believe that they should be 16· ·admitted into evidence. 17· · · · Obviously, if we had days of trial, we 18· ·could play entire press conferences.· But we 19· ·don't that have, Your Honor.· We're under a 20· ·two-day gun here where we've got to get things 21· ·taken care of.· So we obviously had to make a 22· ·tough choice and pull -- we would have loved to 23· ·have had more time and opportunity to pull even 24· ·more press conferences and more statements from 25· ·the defendants, but we don't have that.
0189 Page 184 ·1· · · · So we pulled together what we could so as ·2· ·to, you know, provide type of understanding for ·3· ·the Court about the statements that have been ·4· ·made by the public officials. ·5· · · · THE COURT:· What about the doctor's ·6· ·testimony?· The doctor's presentation? ·7· · · · MR. WIELAND:· Sure. ·8· · · · Your Honor, that was offered at an open ·9· ·meeting by the school board here in Orange 10· ·County.· I believe that it purports to say what 11· ·it is.· I understand there may be a hearsay 12· ·objection from Mr. Wells, but as a public 13· ·official making a public statement to another 14· ·public board, I believe that should be 15· ·admissible. 16· · · · Not to mention the fact that the 17· ·Department of Health, who Dr. Pino works for, 18· ·obviously he's under the auspices of the 19· ·governor's office, and therefore, I believe 20· ·that would overcome any hearsay objection 21· ·again, as an admission by a party opponent. 22· · · · MR. COFFEY:· Your Honor, Kendall Coffey, 23· ·if I may be heard on this. 24· · · · THE COURT:· Yes, sir. 25· · · · MR. COFFEY:· Okay.· Thank you, Judge.
0190 Page 185 ·1· · · · Because for the FEA plaintiffs, we have ·2· ·a -- our own video submission, which includes ·3· ·five excerpts from five different counties ·4· ·where the critical issue of whether health ·5· ·directors are in fact willing to give an ·6· ·opinion or a recommendation.· Because that's ·7· ·what the order pins its safety valve on in ·8· ·terms of constitutionality. ·9· · · · And we have collected five such excerpts, 10· ·and of course they're not the entire meeting. 11· ·There's no reasonable way that we would suggest 12· ·the Court listen to hours and hours. 13· · · · And I don't agree with Mr. Wells. 14· ·Certainly, it is not uncommon at all for 15· ·parties, in presenting information, to pull out 16· ·the parts that they think are most relevant 17· ·rather than make somebody listen to many 18· ·paragraphs or many pages of volumes. 19· · · · The cases I would cite in terms of the 20· ·admissibility of -- and now I'm referring to 21· ·the health care directors, because I think the 22· ·admissibility of parties opponent is very, very 23· ·clear under our law. 24· · · · We actually looked into the issue closely, 25· ·and have determined, and I can furnish the
0191 Page 186 ·1· ·cases to Your Honor over lunch, or to ·2· ·Mr. Wells, a lot has been coming together ·3· ·quickly in terms of our research.· And what ·4· ·they say is that video recordings of public ·5· ·meetings that are, in a sense, made available ·6· ·to the local government's website are ·7· ·admissible as exceptions to the hearsay as ·8· ·matters of public records. ·9· · · · And these are three cases, all of which 10· ·deal with video portions of public meetings. 11· ·They are federal cases, but they apply the 12· ·exact same rule that exists in the federal -- 13· ·in the Florida Evidence Code with respect to 14· ·public records. 15· · · · And I can cite them, but they include a 16· ·Southern District of Texas case, federal case, 17· ·Middle District of Pennsylvania case, federal 18· ·case.· Middle District of Carolina.· And what 19· ·they say, and I'll just -- with apologies for 20· ·reading -- highlight a portion of the language. 21· · · · There's nothing before the Court to 22· ·indicate that this video is -- and then they go 23· ·on to say -- is inauthentic.· Mr. Wells was 24· ·given our video clips.· We identified the 25· ·portion we would be relying on.
0192 Page 187 ·1· · · · He has available the entire transcripts, ·2· ·and we could actually do a demonstration in ·3· ·this courtroom to show our sources, but they ·4· ·all came either directly off of local ·5· ·government websites, or in several instances, ·6· ·we would go to the local government website ·7· ·which then referred you to the YouTube ·8· ·recording. ·9· · · · So these are, in effect, indisputably 10· ·authentic, and they are highly relevant, 11· ·because the State wants to say that the 12· ·conditions can be, in effect, determined by 13· ·local health directives.· And local health 14· ·directors.· And that, Your Honor, we would 15· ·suggest, is absolutely nonexistent.· And it's a 16· ·fatal flaw in this emergency order. 17· · · · So this testimony which is included in 18· ·what my colleague Mr. Stuart presented with 19· ·Dr. Pino was found in other health directors' 20· ·undeniable video recording, you can hear their 21· ·voice, it's in public records, and it's 22· ·admissible under the Florida Rules of Evidence. 23· · · · And if I can say this, Your Honor, it's 24· ·not that long.· You can listen to it at your 25· ·convenience over lunch or now, and then rule.
0193 Page 188 ·1· ·But I think you would find it very relevant. ·2· · · · MR. WELLS:· If I may -- ·3· · · · THE COURT:· Mr. Wells? ·4· · · · MR. WELLS:· If I may respond, Your Honor. ·5· · · · It's a fascinating argument that because ·6· ·if I had a letter in evidence that had been ·7· ·provided to the other side, I could highlight ·8· ·one sentence that it's okay to go ahead and ·9· ·pull a snippet from a tape where, let's say 10· ·this case was filed July 20th, we've had less 11· ·than a day to deal with all of their evidence, 12· ·much less all of these video snippets, and go 13· ·in and try to deal with it. 14· · · · If it were a deposition where you take it 15· ·with all the procedural protections that this 16· ·court could provide, and people there on both 17· ·sides, and they were wanting to put in video 18· ·snippets, you would have advanced notice the 19· ·opportunity to go in and say -- put in 20· ·additional portions of that and deal with that. 21· · · · We're sitting here in a critical 22· ·injunction hearing.· They've had plenty of time 23· ·if they thought this was that critical and 24· ·important to either get declarations, to have 25· ·it transcribed, to give it to us in advance and
0194 Page 189 ·1· ·let us deal with it. ·2· · · · Now what we're seeing is playing up these ·3· ·snippets where it's simply not fair or ·4· ·appropriate under the circumstances.· Thank ·5· ·you. ·6· · · · THE COURT:· Well, let me look at that -- I ·7· ·want to look at the video over the lunch break ·8· ·and see if I can understand better the audio, ·9· ·and then I'll give you my ruling after the 10· ·lunch break. 11· · · · MR. WIELAND:· Pardon me, Judge.· We've 12· ·asked our team to send it to your judicial 13· ·assistant, if she can access the video directly 14· ·or download it, that should hopefully help. 15· · · · THE COURT:· I think I've already got it. 16· · · · MR. WIELAND:· Okay. 17· · · · THE COURT:· I've downloaded all your 18· ·exhibits this morning, with assistance, I will 19· ·note.· But let me look at that over the lunch 20· ·break. 21· · · · So let's take a lunch break now. 22· · · · MR. COFFEY:· Your Honor, ours are 23· ·Exhibits 37 through 44.· Collectively, it's 24· ·about how long?· About five to ten minutes, 25· ·Judge.· But it comes in the form of Exhibits 37
0195 Page 190 ·1· ·through 44.· And hopefully the audio quality is ·2· ·manageable. ·3· · · · THE COURT:· So it's 37 to 44; is that ·4· ·duplicative of 45?· I thought we were just ·5· ·looking at 45. ·6· · · · MR. COFFEY:· No, Your Honor.· It's not ·7· ·duplicative. ·8· · · · These are -- these are health directors. ·9· ·The only one that may overlap is Orange County. 10· ·But these are the health directors speaking 11· ·with Hillsborough, Volusia, Brevard, Orange, 12· ·and Polk. 13· · · · THE COURT:· And how long are those? 14· · · · MR. COFFEY:· Collectively, Judge, about 15· ·ten minutes.· Maybe -- 16· · · · THE COURT:· Yeah, let me look at 37 17· ·through 45 over the lunch break, or try to, 18· ·anyway.· And I'm going to give you a lunch 19· ·break that's longer than what most teachers and 20· ·students get. 21· · · · We'll give you a 30-minute lunch break, so 22· ·we'll reconvene at 12:50. 23· · · · MR. WELLS:· Your Honor, can I just ask who 24· ·the next witnesses are going to be?· We've had 25· ·a general idea, but just, who's going to be
0196 Page 191 ·1· ·coming out of the box? ·2· · · · MR. MEYER:· This is Ron.· Coming out of ·3· ·the box, Dave, will be the chief of staff for ·4· ·the surgeon general, Courtney Coppola. ·5· · · · MR. WELLS:· Okay. ·6· · · · MR. MEYER:· Followed by Dr. Annette ·7· ·Nielsen, Dr. Thomas Burke, and Andre Escobar. ·8· · · · MR. WELLS:· Thank you very much, Ron. I ·9· ·appreciate that. 10· · · · THE COURT:· All right.· Court's in recess 11· ·'til 12:50. 12· · · · MR. MEYER:· Thank you, Your Honor. 13· · · · (Lunch recess held at 12:20 p.m. and 14· ·proceedings continued in Volume 2.) 15 16 17 18 19 20 21 22 23 24 25
0197 Judge Charles Dodson August 19, 2020
Page 192192 ·1 · · · · · · · · · · COURT CERTIFICATE
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·4· ·STATE OF FLORIDA
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·77· · · · · · ·I,I, MARYKAYMARYKAY HORVATH,HORVATH, RPR CRR, FPR, certify
·8 · · · · that I was authorized to and did
·9 · · · · stenographicallystenographically reportreport the foregoing
1010 · · · · proceedings, and that thethe transcripttranscript isis aa truetrue
1111 · · · · and complete record ofof mymy stenographicstenographic notes.notes.
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1313 · · · · · · ·Dated this 26th day ofof AugustAugust 2020.2020.
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vs.
Ron DeSantis
Hearing Before:
Judge Charles Dodson
August 19, 2020
Vol 2
PHIPPS REPORTING
Rating the Bar!
0254 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT · · · · · IN AND FOR LEON COUNTY, FLORIDA
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· · · · · · · CASE NO.:· 2020 CA 1450
FLORIDA EDUCATION ASSOCIATION; STEFANIE BETH MILLER, LADARA ROYAL; MINDY FESTGE; VICTORIA DUBLINO-HENJES; and ANDRES HENJES,
· · · · · · · ·Plaintiffs,
vs.
RON DESANTIS, in his official capacity as Governor of the State of Florida; RICHARD CORCORAN, in his official capacity as Florida Commissioner of Education; FLORIDA DEPARTMENT OF EDUCATION; and FLORIDA BOARD of EDUCATION,
· · · · · · · ·Defendants. ______/
· · · · · (Consolidated with:)
0255 Page 194 · · · · · · · ·CASE NO.:· 2020 CA 1467
MONIQUE BELLEFLEUR, individually and on behalf of D.B. Jr., M.B., and D.B. and KATHRYN HAMMOND, ASHLEY MONROE, and JAMES LIS, · · · · · · · ·Plaintiffs, vs. RON DESANTIS, Governor of Florida, in his official capacity as Chief Executive Officer of the State of Florida, ANDY TUCK, in his official capacity as the chair of the State Board of Education, STATE BOARD of EDUCATION, RICHARD CORCORAN, in his official capacity as Commissioner of the Florida Department of Education, FLORIDA DEPARTMENT OF EDUCATION, JACOB OLIVA, in his official capacity as Chancellor, Division of Public Schools, TERESA JACOBS, in her official capacity as the chair of the SCHOOL BOARD OF ORANGE COUNTY, BARBARA JENKINS, in her official capacity as the Superintendent of Orange County Public Schools, and ORANGE COUNTY PUBLIC SCHOOLS, · · · · · · · Defendants.
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· TRANSCRIPT OF WEB CONFERENCE HEARING PROCEEDINGS · · PLAINTIFFS' EXPEDITED MOTION FOR TEMPORARY · · · · · · · · · · ·INJUNCTION
· · · · · · ·VOLUME 2 (Pages 193 - 292)
· ·DATE TAKEN:· Wednesday, August 19th, 2020 · ·TIME:· · · · 12:54 p.m. to 2:31 p.m. · ·PLACE:· · · ·Leon County Courthouse · · · · · · · · 301 South Monroe Street · · · · · · · · Tallahassee, Florida 32301 · ·BEFORE:· · · Charles Dodson, Circuit Judge · · · · · · · · · · ·(via Zoom)
· · ·This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were stenographically reported via Zoom by:
· · · · · ·MaryKay Horvath, RPR, CRR, FPR · · · · · · Certified Realtime Reporter
Job No.: 151241
0256 Page 195 ·1· ·APPEARANCES: (all appearing via videoconference)
·2· ·On behalf of Plaintiffs Florida Education · · ·Association, Stefanie Beth Miller, Ladara Royal, ·3· ·Mindy Festge, Victoria Dublino-Henjes, and Andres · · ·Henjes: ·4 · · · · · MEYER, BROOKS, BLOHM & HEARN, P.A. ·5· · · · 131 North Gadsden Street · · · · · Post Office Box 1547 ·6· · · · Tallahassee, Florida 32301 · · · · · (850)878-5212 ·7· · · · BY:· RONALD G. MEYER, ESQ. · · · · · [email protected] ·8
·9· · · · COFFEY BURLINGTON, P.L. · · · · · 2601 South Bayshore Drive 10· · · · Penthouse · · · · · Miami, Florida 33133 11· · · · (305)858-2900 · · · · · BY:· KENDALL B. COFFEY, ESQ. 12· · · · [email protected] · · · · · · · ·JOSEFINA M. AGUILA, ESQ. 13· · · · [email protected] · · · · · · · ·SCOTT A. HIAASEN, ESQ. 14· · · · [email protected]
15· · · · PHILLIPS & RICHARD, P.A. · · · · · 9360 Southwest 72nd Street 16· · · · Suite 283 · · · · · Miami, Florida 33173 17· · · · (305)412-8322 · · · · · BY:· MARK H. RICHARD, ESQ. 18· · · · [email protected]
19· · · · FLORIDA EDUCATION ASSOCIATION · · · · · 213 South Adams Street 20· · · · Tallahassee, Florida 32301 · · · · · (850)201-3382 21· · · · BY:· KIMBERLY C. MENCHION, ESQ. · · · · · [email protected] 22
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·2· ·On behalf of Defendants:
·3· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 225 Water Street ·4· · · · Suite 1750 · · · · · Jacksonville, Florida 32202 ·5· · · · (904)354-1980 · · · · · BY:· DAVID M. WELLS, ESQ. ·6· · · · [email protected]
·7· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 200 South Orange Avenue ·8· · · · Suite 1400 · · · · · Florida Orlando, Florida 32801 ·9· · · · (407)648-5077 · · · · · BY:· NATHAN W. HILL, ESQ. 10· · · · [email protected]
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12· ·ALSO PRESENT:· Aly Logan · · · · · · · · · · Kelly Vance 13· · · · · · · · · Christine Lamia, Esq.
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0258 Page 197 ·1· · · · · · · · · · · · I N D E X
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·7· ·COURTNEY COPPOLA· · · · · · · · · · · · · · ·202
·8· ·Direct· · · · · · · By Mr. Coffey· · · · · · 202 · · ·Cross· · · · · · · ·By Mr. Hill· · · · · · · 213 ·9· ·Redirect· · · · · · By Mr. Coffey· · · · · · 215 · · ·Recross· · · · · · ·By Mr. Hill· · · · · · · 216 10
11· ·ANNETTE NIELSEN, M.D., F.A.A.P.· · · · · · · 234
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0259 Page 198 ·1· · · · · · · · · · INDEX (Continued)
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·3· · · ·PLAINTIFF EXHIBITS MARKED FOR IDENTIFICATION
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·8· · · · · · · · · · · · · · · · · · · · · · · ·Page · · ·Plaintiff Exhibit 8· · · · · · · · · · · · · 291 ·9· ·Plaintiff Exhibit 13· · · · · · · · · · · · ·291 · · ·Plaintiff Exhibit 27· · · · · · · · · · · · ·291 10· ·Plaintiff Exhibit 36· · · · · · · · · · · · ·291 · · ·Plaintiff Exhibit 37· · · · · · · · · · · · ·202 11· ·Plaintiff Exhibit 38· · · · · · · · · · · · ·202 · · ·Plaintiff Exhibit 39· · · · · · · · · · · · ·202 12· ·Plaintiff Exhibit 40· · · · · · · · · · · · ·202 · · ·Plaintiff Exhibit 41· · · · · · · · · · · · ·202 13· ·Plaintiff Exhibit 42· · · · · · · · · · · · ·202 · · ·Plaintiff Exhibit 43· · · · · · · · · · · · ·202 14· ·Plaintiff Exhibit 44· · · · · · · · · · · · ·202 · · ·Plaintiff Exhibit 45· · · · · · · · · · · · ·199 15· ·Plaintiff Exhibit 49· · · · · · · · · · · · ·291 · · ·Plaintiff Exhibit 50· · · · · · · · · · · · ·291 16· ·Plaintiff Exhibit 51· · · · · · · · · · · · ·291 · · ·Plaintiff Exhibit 53· · · · · · · · · · · · ·291 17· ·Plaintiff Exhibit 54· · · · · · · · · · · · ·291 · · ·Plaintiff Exhibit 59· · · · · · · · · · · · ·291 18
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0260 Page 199 ·1· ·The following proceedings via Zoom continued at ·2· ·12:54 p.m.: ·3· · · · · · ·THE COURT:· Everybody ready to start back ·4· · · · now? ·5· · · · · · ·MR. MEYER:· Yes, sir. ·6· · · · · · ·THE COURT:· I did review Plaintiffs' 45, ·7· · · · and I am going to admit that for the reasons ·8· · · · argued by the plaintiffs on that. ·9· · · · · · ·(Thereupon, received in evidence as 10· · · · Plaintiff Exhibit 45.) 11· · · · · · ·THE COURT:· All right.· How do you all 12· · · · want to proceed now?· Ready to call your next 13· · · · witness? 14· · · · · · ·MR. MEYER:· Your Honor, we are ready to 15· · · · call our next witness.· And it will be 16· · · · Courtney Coppola with the Department of Health. 17· · · · I saw her a moment ago but I don't see her now. 18· · · · Here she comes. 19· · · · · · ·And Mr. Coffey will be conducting the 20· · · · direct examination. 21· · · · · · ·MS. LAMIA:· And, Your Honor -- hi, Your 22· · · · Honor.· Chris Lamia is appearing on behalf of 23· · · · the Department of Health, and I just wanted to 24· · · · make a couple preliminary comments before the 25· · · · testimony started regarding the subpoena.
0261 Page 200 ·1· · · · THE COURT:· Sure.· Yes, ma'am. ·2· · · · MS. LAMIA:· Thank you. ·3· · · · Your Honor, we received the subpoena ·4· ·yesterday afternoon at 4:05.· The documents ·5· ·requested in the subpoena are quite broad, ·6· ·vague.· We've done the best that we can to put ·7· ·together some information that was requested, ·8· ·but certainly, because we are a large agency, ·9· ·we have multiple county health departments, 10· ·there's going to be potentially public 11· ·record-type documents that we have not had time 12· ·to get together for purposes of this hearing. 13· · · · So to that extent, we object to the 14· ·subpoena that we have not had sufficient time 15· ·to -- to comply with the broad scope of it.· It 16· ·is -- would be extremely burdensome for us to 17· ·try to get even close to providing the types of 18· ·documents if we had to guess at what types of 19· ·documents are being requested from the subpoena 20· ·to provide them for today's hearing. 21· · · · Having said that, we are -- we did produce 22· ·some records this morning, early this morning, 23· ·around 8:00, to plaintiffs' counsel.· And we 24· ·have the chief of staff for the Department of 25· ·Health, Courtney Coppola, to testify.
0262 Page 201 ·1· · · · · · ·MR. MEYER:· And, Your Honor, Ms. Lamia is ·2· · · · absolutely correct. ·3· · · · · · ·It was a late service of the subpoena, but ·4· · · · we're not challenging the responsiveness to the ·5· · · · subpoena or the documents that have been ·6· · · · produced.· And we appreciate both the witness ·7· · · · and the attorney for making the effort that ·8· · · · they made to produce the documents that we ·9· · · · have. 10· · · · · · ·THE COURT:· Okay.· Ms. Coppola, if you'd 11· · · · raise your right hand, please. 12· ·Thereupon: 13· · · · · · · · · · ·COURTNEY COPPOLA 14· ·having been sworn by the Court testified as follows: 15· · · · · · ·THE WITNESS:· I do. 16· · · · · · ·THE COURT:· You can put your hand down. 17· · · · · · ·MR. COFFEY:· Your Honor, Kendall Coffey 18· · · · for the plaintiff.· I'll be inquiring. 19· · · · · · ·May I ask the Court, because it somewhat 20· · · · bears on this witness's testimony, that with 21· · · · respect to Exhibits 37 and 44, was there also a 22· · · · ruling on the admissibility?· Those included, I 23· · · · believe, excerpts of -- of public meetings 24· · · · where the comments were made or not made by 25· · · · public health officials.
0263 Page 202 ·1· · · · · · ·THE COURT:· Any objection to those, ·2· · · · Mr. Wells? ·3· · · · · · ·MR. WELLS:· Sorry, Mr. Hill is actually ·4· · · · handling this one.· But just the same ·5· · · · objections we had before, which, I think ·6· · · · they're the same videos he's talking about. ·7· · · · · · ·Am I correct, Kendall? ·8· · · · · · ·MR. COFFEY:· Well, they went in together. ·9· · · · Forty-five was, I think, to be clear, included 10· · · · the governor, the education commissioner, and 11· · · · one of the health officials. 12· · · · · · ·There's -- 13· · · · · · ·MR. WELLS:· I cut you off there, sorry, 14· · · · Kendall.· But it's the same argument we made, 15· · · · Your Honor.· I think Your Honor has already 16· · · · ruled on that point. 17· · · · · · ·THE COURT:· I'm going to admit 37 through 18· · · · 44. 19· · · · · · ·(Thereupon, received in evidence as 20· · · · Plaintiffs' Exhibits 37 through 44.) 21· · · · · · ·MR. COFFEY:· Thank you, Your Honor. 22· · · · · · · · · · DIRECT EXAMINATION 23· · ·BY MR. COFFEY 24· · · · Q.· ·And thank you, Ms. Coppola.· I'm Kendall 25· ·Coffey, and I certainly appreciate that this was
0264 Page 203 ·1· ·very last minute, and I want to thank you and your ·2· ·attorney for being here on short notice. ·3· · · · · · ·And what I'll do is keep you here as ·4· ·briefly as I can. ·5· · · · · · ·MR. COFFEY:· If I can direct your ·6· · · · attention to what I think we would designate ·7· · · · and may propose to admit is Exhibit 62, which ·8· · · · is a compilation of documents referred to ESF8 ·9· · · · conference call notes. 10· · · · · · ·(Thereupon, marked for identification is 11· · · · Plaintiffs' Exhibit 62.) 12· · ·BY MR. COFFEY 13· · · · Q.· ·Am I correct, Ms. Coppola, that we did 14· ·receive this in response to the subpoena? 15· · · · A.· ·(Indiscernible). 16· · · · Q.· ·I just -- I'm sorry, I did not hear that. 17· ·We have some imperfect audio moments, so I apologize 18· ·if I become less clear.· I did not hear your answer. 19· · · · A.· ·Yes, that's correct. 20· · · · Q.· ·Okay.· Thank you.· Thank you very, very 21· ·much, Ms. Coppola. 22· · · · · · ·And could you just tell us what your 23· ·current job title and job description is. 24· · · · A.· ·I'm the chief of staff of the Florida 25· ·Department of Health.
0265 Page 204 ·1· · · · Q.· ·And if I may refer you to the documents ·2· ·that were produced, ESF8 conference call notes, do ·3· ·you have that document in front of you, Ms. Coppola? ·4· · · · A.· ·Yes. ·5· · · · Q.· ·And can you describe for the Court what ·6· ·exactly we are looking at when we look at ESF8 ·7· ·conference call notes?· And the first of them in ·8· ·this composite is dated July 6th, 2020. ·9· · · · A.· ·These are notes taken during calls 10· ·throughout the day, specifically starting with our 11· ·emergency management call, our county Health 12· ·Department call, taking notes of -- of those 13· ·conference calls. 14· · · · Q.· ·Okay.· And I'd like to direct your 15· ·attention -- I'm going to go by date, if that's 16· ·okay.· They're not separately paginated, but I think 17· ·if we go by dates we'll be able to move through this 18· ·pretty quickly. 19· · · · · · ·The first date I'd like you to look at is 20· ·July 13th, 2020.· And I'd ask you to go down about 21· ·two-thirds of the way on the document.· And you'll 22· ·see there, if I can read this to you, "Reminder in 23· ·Response to Schools Reopening in DOE 2020 EO-06." 24· · · · · · ·Do you see that entry?· It refers to the 25· ·Emergency Order 06.
0266 Page 205 ·1· · · · · · ·MS. LAMIA:· And you can read it up on the ·2· · · · screen too. ·3· · · · A.· ·Yes, I'm with you. ·4· · ·BY MR. COFFEY ·5· · · · Q.· ·Okay.· Okay.· Thank you. ·6· · · · · · ·And I want to call your attention to the ·7· ·language, "Our job is to provide the most current ·8· ·and appropriate information so that schools can make ·9· ·the most informed decision.· We will send out a 10· ·statement that can be used as a response." 11· · · · · · ·Is that language you have seen before or 12· ·are familiar with? 13· · · · A.· ·Yes, sir. 14· · · · Q.· ·Okay.· And is it fair to say that your 15· ·understanding of this was that the DOH's role was to 16· ·send information so that the schools and school 17· ·districts could make the best decision; is that 18· ·consistent with your understanding of the document? 19· · · · A.· ·Well, this document is capturing notes 20· ·from what was discussed on the call. 21· · · · · · ·It is referring to the Department of 22· ·Health's role in collecting information related to 23· ·communicable diseases or other diseases, and how we 24· ·collect that data and provide it to our local 25· ·communities, information about any infectious
0267 Page 206 ·1· ·disease, and best practices related to mitigating or ·2· ·preventing the spread of communicable diseases. ·3· · · · Q.· ·Okay.· And this indicates that your role ·4· ·with respect to school reopening emergency order was ·5· ·to provide the most current and appropriate ·6· ·information; is that correct? ·7· · · · A.· ·That -- yes.· It is correct.· To provide ·8· ·the most current and appropriate information.· Yes. ·9· · · · Q.· ·And if we could move to July 15th, 2020. 10· · · · · · ·And I'd like you to go down to the call 11· ·notes.· It's about, again, two-thirds of the way 12· ·down.· You'll see "SSG" up -- "SSG update," and 13· ·you'll see a reference to school opening decisions. 14· · · · · · ·Do you see that? 15· · · · A.· ·Yes, I see the SSG updates. 16· · · · Q.· ·Okay.· And what it says is, "School 17· ·opening decisions are up to the local school board. 18· ·Our role is to give updates about COVID in the 19· ·community, statistics, guidelines, et cetera." 20· · · · · · ·Do you see that? 21· · · · A.· ·Yes, sir. 22· · · · Q.· ·Is that a correct statement, as far as you 23· ·know, of the role of the Department of Health? 24· · · · A.· ·Yes, sir. 25· · · · Q.· ·Is there any reference in this entry as to
0268 Page 207 ·1· ·July 15th, 2020, to the Department of Health giving, ·2· ·for example, directives or orders to the school ·3· ·boards? ·4· · · · A.· ·I'm sorry, I don't understand that ·5· ·question. ·6· · · · Q.· ·Did -- were you aware of -- well, if the ·7· ·question was unclear, I'll maybe make it more clear ·8· ·with some other questions. ·9· · · · · · ·Let's move, if we can, to July 20th, 2020, 10· ·toward the top of the document.· And there's a 11· ·reference a couple lines down with the issuing 12· ·guidance regarding when to close schools versus 13· ·classrooms. 14· · · · · · ·Do you see that? 15· · · · · · ·MR. HILL:· Your Honor, I'm just going to 16· · · · object to some of this testimony. 17· · · · · · ·There hasn't been any foundation that she 18· · · · was on any of these calls.· We've just received 19· · · · these documents, just like the plaintiffs have, 20· · · · and it's unclear what the foundation of her 21· · · · knowledge would be. 22· · · · · · ·MR. COFFEY:· I've been asking for her 23· · · · understanding, and so far she's been able to 24· · · · express an understanding, Judge.· She's the 25· · · · chief of staff or the head of DOH.· And if
0269 Page 208 ·1· · · · she's unaware of what this information or these ·2· · · · entries might mean, I'm sure she'll tell me so. ·3· · · · She's represented by counsel. ·4· · · · · · ·THE COURT:· I'll allow the testimony. ·5· · ·BY MR. COFFEY ·6· · · · Q.· ·Ms. Coppola, do you see the entry about ·7· ·guidance when -- to open -- or close schools versus ·8· ·classrooms, do you see that? ·9· · · · A.· ·I -- I do.· On my copy here. 10· · · · Q.· ·Okay.· And when was that guidance issued? 11· · · · A.· ·This is -- these are conference call notes 12· ·from July 20th. 13· · · · Q.· ·Right. 14· · · · · · ·When was the guidance issued that is 15· ·referred to in that entry on July 20th? 16· · · · A.· ·In this entry, it says we will be issuing 17· ·guidance.· I don't know if that is something that is 18· ·still in progress or has been issued.· It is under 19· ·the epi updates section, so I think the next -- the 20· ·next page down. 21· · · · Q.· ·Okay.· Do you have knowledge of whether 22· ·guidance, as referred to in this entry, has ever 23· ·been issued? 24· · · · A.· ·I know that it is common for our 25· ·epidemiologists to issue guidance based on best
0270 Page 209 ·1· ·practices, sometimes from the CDC, to all of the ·2· ·epidemiologists in the county health departments, ·3· ·because we are an accredited and fully integrated ·4· ·public -- public health department, the county ·5· ·health department's and central office here, we ·6· ·frequently will issue best practices, in this case ·7· ·about epidemiology, and guidance on how and if you ·8· ·need to isolate students, classrooms, during the ·9· ·course of an epidemiological investigation. 10· · · · · · ·So our epis will frequently, and it is 11· ·common for them, to issue best practices to the epis 12· ·in the county health departments on best practices 13· ·on epi investigations, which include identifying 14· ·positives and close contacts, and when to isolate or 15· ·quarantine individuals depending on their either 16· ·being positive or being exposed. 17· · · · Q.· ·Okay.· Now, let's go to July 27th, and we 18· ·can get some clarity on that. 19· · · · · · ·And go down again under call notes to 20· ·where it refers to question.· And let me read it and 21· ·we'll go in a couple parts.· "In light of the PH 22· ·Advisory 50 to ten, what message can we provide to 23· ·schools?· Classrooms are oftentimes greater than ten 24· ·people." 25· · · · · · ·Would you -- first of all, do you agree
0271 Page 210 ·1· ·with those statements, that classrooms are ·2· ·oftentimes greater than ten people? ·3· · · · A.· ·I'm not sure what the average classroom ·4· ·size is. ·5· · · · Q.· ·Okay.· But this was a statement that was ·6· ·entered in records of the Department of Health in ·7· ·light of PH Advisory 50 to ten, right? ·8· · · · A.· ·So this was a question asked during a call ·9· ·with our public information officers, and it -- 10· ·the -- that is the question. 11· · · · Q.· ·Okay.· And then it goes on to say, "The 12· ·CDC guidance for schools reopening.· And DOH is not 13· ·determining whether schools reopen." 14· · · · · · ·Do you see that? 15· · · · A.· ·Yes, sir. 16· · · · Q.· ·Okay.· So if a school board wanted to ask, 17· ·you know, the very tough question:· Should we reopen 18· ·or shouldn't we reopen, based on this statement, DOH 19· ·is not going to make that determination, correct? 20· · · · A.· ·Correct.· The Department of Health does 21· ·not have the authority to close a school district. 22· · · · Q.· ·Okay.· And just to go on to this, "We can 23· ·ensure the school district has the right info, but 24· ·the decisions are ultimately up to them." 25· · · · · · ·Do you see that?
0272 Page 211 ·1· · · · A.· ·Yes. ·2· · · · Q.· ·And that's correct, isn't it?· You need to ·3· ·get information, but you're not going to say whether ·4· ·or not a school district should open or reopen, ·5· ·correct? ·6· · · · A.· ·Correct. ·7· · · · Q.· ·I'm sorry? ·8· · · · A.· ·Correct. ·9· · · · Q.· ·Okay.· So let's go to Wednesday, 10· ·July 29th, and toward the top entry, it says, 11· ·"Positivity rate is 11.7 percent.· We're seeing 12· ·signs of stabilization."· This is on July 29th. 13· · · · · · ·Do you see that? 14· · · · A.· ·Yes. 15· · · · Q.· ·And is it consistent with your 16· ·recollection to note that throughout this period, 17· ·positivity rates in Florida were hovering around 18· ·10 percent, maybe a little more, maybe a little bit 19· ·less, but it was more or less 10 or 11 percent; is 20· ·that correct? 21· · · · A.· ·I -- I don't have the daily COVID report 22· ·for July 29th in front of me. 23· · · · Q.· ·Okay. 24· · · · A.· ·And I'm not clear, but it appear -- these 25· ·were notes from the call.· It appears that was the
0273 Page 212 ·1· ·statewide positivity from that daily report.· But ·2· ·the daily report isn't here. ·3· · · · Q.· ·Understood.· And there's other references ·4· ·to positivity, so I won't make you go through them. ·5· · · · · · ·But I do want you to go down toward the ·6· ·bottom.· And it's most of the way down, two lines ·7· ·above the county emergency management call.· And do ·8· ·you see a question that says, "What is the rate of ·9· ·COVID-19 cases in children?" 10· · · · · · ·Do you see that? 11· · · · A.· ·Yes. 12· · · · Q.· ·And can you read for the Court what the 13· ·answer is? 14· · · · A.· ·The answer here in this document is, 15· ·"There is currently a 14.1 percent positivity rate 16· ·for children." 17· · · · Q.· ·Okay. 18· · · · · · ·MR. COFFEY:· Your Honor, I have no further 19· · · · questions.· I want to repeat my appreciation to 20· · · · Ms. Coppola and her counsel for being here on 21· · · · short notice. 22· · · · · · ·THE COURT:· Cross? 23· · · · · · ·MR. HILL:· Thank you, Your Honor. 24 25
0274 Page 213 ·1· · · · · · · · · · CROSS EXAMINATION ·2· · ·BY MR. HILL ·3· · · · Q.· ·Good afternoon, Ms. Coppola. ·4· · · · A.· ·Good afternoon. ·5· · · · Q.· ·So I'd like to just start by clearing up ·6· ·what is and what is not the Department of Health's ·7· ·role. ·8· · · · · · ·So can you just tell me a little bit or ·9· ·tell the Court a little bit about what is the role 10· ·of the Department of Health in Florida? 11· · · · A.· ·The Florida Department of Health, 12· ·specifically in regard to communicable or other 13· ·diseases, collects data and information, and 14· ·provides that information to stakeholders in local 15· ·communities in regard to that current infectious 16· ·disease or other disease.· In this case it was -- 17· ·it -- COVID-19. 18· · · · · · ·We provide best practices on how to 19· ·mitigate risk.· So best practices on how to prevent 20· ·the spread of a disease, mitigate transmission. 21· · · · Q.· ·And who do you provide that information 22· ·and advice to? 23· · · · A.· ·We provide that information to all of our 24· ·stakeholders statewide, and of course on a local 25· ·level.· We provide it to the entire community and
0275 Page 214 ·1· ·the state. ·2· · · · Q.· ·Is it normally the Department of Health's ·3· ·role to decide whether or not a school, or -- ·4· ·whether or not a school should open? ·5· · · · A.· ·No, that is not within the Department of ·6· ·Health's authority. ·7· · · · Q.· ·So when you look at these statements that ·8· ·Mr. Coffey went through with you about telling the ·9· ·DOH not to tell a school whether to open or close, 10· ·is that consistent with the DOH's role in any 11· ·respect? 12· · · · A.· ·No. 13· · · · Q.· ·If a local school called you up -- or 14· ·called up the Department of Health and gave you 15· ·specific information about the size of a classroom, 16· ·the amount of students in there, would you be able 17· ·to provide advice on how best to mitigate the spread 18· ·of illness in that classroom? 19· · · · A.· ·The Florida Department of Health 20· ·specifically said their local county health 21· ·departments would work with any school district on 22· ·what the best practices are to mitigate the risk of 23· ·spread and how -- best practices how to prevent 24· ·that, to include social distancing. 25· · · · · · ·MR. HILL:· May I have a moment, Your
0276 Page 215 ·1· · · · Honor? ·2· · · · · · ·THE COURT:· Sure. ·3· · · · · · ·MR. HILL:· I have no further questions, ·4· · · · Your Honor.· Thank you. ·5· · · · · · ·THE COURT:· Any redirect? ·6· · · · · · ·MR. COFFEY:· Yeah, just to be clear. ·7· · · · · · · · · ·REDIRECT EXAMINATION ·8· · ·BY MR. COFFEY ·9· · · · Q.· ·So to be clear, you don't provide 10· ·directives in the sense of some instruction about 11· ·whether to open or reopen; that's not part of your 12· ·agency's responsibility, correct? 13· · · · A.· ·That is correct.· The Florida Department 14· ·of Health doesn't have the authority to close or 15· ·open school districts. 16· · · · Q.· ·Okay.· And you wouldn't provide a, quote, 17· ·"order" from the Florida Department of Health about 18· ·whether or not a school should reopen; is that 19· ·correct? 20· · · · A.· ·I don't quite understand your question. 21· · · · Q.· ·Well, do you have a sense of what the word 22· ·"order" means in -- generally speaking in a legal 23· ·context, order? 24· · · · A.· ·Yes, sir. 25· · · · Q.· ·Okay.· And the Florida Department
0277 Page 216 ·1· ·of Health does not provide orders to school ·2· ·districts about whether or not to open or reopen a ·3· ·school; is that correct? ·4· · · · A.· ·We have not.· I wouldn't -- I'm not a ·5· ·lawyer so I wouldn't say it's outside of our ·6· ·authority that we -- but we have not issued any, no, ·7· ·sir. ·8· · · · Q.· ·And if we went through the various ·9· ·meetings up 'til today, there have been no orders 10· ·and no instructions directed to school districts as 11· ·to whether to open or reopen from the Department of 12· ·Health; is that correct? 13· · · · A.· ·There have been no orders directing 14· ·schools to reopen, no, sir. 15· · · · Q.· ·Okay. 16· · · · · · ·MR. COFFEY:· I've got nothing further, 17· · · · Your Honor. 18· · · · · · ·THE COURT:· May Ms. Coppola be excused? 19· · · · · · ·MR. HILL:· May I just have a brief 20· · · · recross, Your Honor, on one issue? 21· · · · · · ·THE COURT:· Sure.· Yes, sir. 22· · · · · · ·MR. HILL:· Thank you, Your Honor. 23· · · · · · · · · ·RECROSS EXAMINATION 24· · ·BY MR. HILL 25· · · · Q.· ·Ms. Coppola, does the Department -- does
0278 Page 217 ·1· ·the Department of Health have authority to issue a ·2· ·quarantine order? ·3· · · · A.· ·Yes, sir. ·4· · · · Q.· ·Do you know what statute that's provided ·5· ·under? ·6· · · · A.· ·381, I believe.· But I don't know off the ·7· ·top of my head. ·8· · · · Q.· ·381.00315? ·9· · · · A.· ·That sounds right. 10· · · · Q.· ·And specifically, does the Department -- 11· ·what authority does the Department have under that 12· ·statute? 13· · · · A.· ·I don't have a copy of the entire statute 14· ·in front of me, but generally, the Department of 15· ·Health has the authority to quarantine individuals 16· ·to prevent the spread of an infectious disease. 17· · · · Q.· ·And can you also -- 18· · · · A.· ·And -- 19· · · · Q.· ·Sorry, excuse me. 20· · · · A.· ·Well, and can issue a quarantine order to 21· ·do that. 22· · · · Q.· ·And can you also quarantine locations like 23· ·buildings if you need to? 24· · · · A.· ·That's correct. 25· · · · Q.· ·And do you still retain, or the Department
0279 Page 218 ·1· ·of Health, still retains that authority? ·2· · · · A.· ·Yes, sir. ·3· · · · · · ·MR. HILL:· Nothing further, Your Honor, ·4· · · · thank you. ·5· · · · · · ·THE COURT:· Okay.· Ms. Coppola, you are ·6· · · · free to leave the meeting. ·7· · · · · · ·THE WITNESS:· Thank you. ·8· · · · · · ·THE COURT:· Yes, sir-- yes, ma'am. ·9· · · · · · ·Call your next witness. 10· · · · · · ·MR. MEYER:· Your Honor, at this time, what 11· · · · we would like to do is publish Exhibits 37 12· · · · through 44 for the record, if that's 13· · · · permissible. 14· · · · · · ·THE COURT:· Yes. 15· · · · · · ·I see you've got Ms. Nielsen in the 16· · · · waiting room.· Do you want to wait 'til you 17· · · · finish her to do that, or go ahead and publish 18· · · · those now? 19· · · · · · ·MR. MEYER:· These are relatively short, 20· · · · Your Honor.· Let's go ahead and publish them 21· · · · now, if we could. 22· · · · · · ·THE COURT:· All right.· Yes, sir. 23· · · · · · ·(The video clip Exhibit 39 was played and 24· · · · transcribed as follows:) 25· · · · · · ·MS. SHAMBURGER:· Thank you for being here
0280 Page 219 ·1· ·to help us guide and be more effective in our ·2· ·advocacy.· Understanding that today's ·3· ·discussion is about safety of people in ·4· ·buildings and not about education, I have a ·5· ·question for each of you. ·6· · · · In my research about school reopenings and ·7· ·how you define an acceptable level of safety, ·8· ·someone shared with me a study in a medical ·9· ·journal, and perhaps you're familiar with this, 10· ·that in July it showed an association between 11· ·school closures and decreasing COVID incidences 12· ·and mortality, yet fatalities continue to 13· ·increase here in Florida. 14· · · · I guess we can only then assume if that is 15· ·true, once our schools reopen, things are going 16· ·to get really bad.· So my question for each of 17· ·you, please, beginning with Dr. Thompson and 18· ·ending with Dr. Green, if we just go down the 19· ·panel: 20· · · · Yes or no, should our schools be reopened? 21· · · · UNIDENTIFIED SPEAKER:· Not at the current 22· ·community spread. 23· · · · UNIDENTIFIED FEMALE SPEAKER:· I think we 24· ·have to base it on the metrics that we 25· ·discussed.
0281 Page 220 ·1· · · · MS. SHAMBURGER:· Is that a "yes" or "no"? ·2· · · · UNIDENTIFIED FEMALE SPEAKER:· That's -- we ·3· ·need to hold off. ·4· · · · UNIDENTIFIED MALE SPEAKER:· Yeah, exactly. ·5· ·The metrics that I presented and SEFA ·6· ·emphasized. ·7· · · · MS. SHAMBURGER:· That is a "no." ·8· · · · Okay.· Dr. Holt? ·9· · · · DR. HOLT:· I represent the health 10· ·department here.· I am providing technical 11· ·assistance and advice, and I do not have a 12· ·position. 13· · · · UNIDENTIFIED FEMALE SPEAKER: 14· ·(Indiscernible). 15· · · · Thank you.· At this current rate, no. 16· ·That's why we have the metrics. 17· · · · MS. SHAMBURGER:· Dr. Lintz (ph). 18· · · · DR. LINTZ:· I would say today no. 19· ·ELearning with eLearning centers.· Watch the 20· ·metric.· If it goes down, be innovative. 21· · · · MS. SHAMBURGER:· Dr. Green, please. 22· · · · DR. GREEN:· I would say if it's today, no, 23· ·but on August 22nd that you mentioned, I would 24· ·say yes.· Because I expect the rates will 25· ·continue to go down.
0282 Page 221 ·1· · · · MS. SHAMBURGER:· Thank you so much for ·2· ·those responses.· And so based on -- ·3· · · · (Video clip concluded.) ·4· · · · (The video clip Exhibit 44 was played and ·5· ·transcribed as follows:) ·6· · · · UNIDENTIFIED MALE SPEAKER:· Unlike Ms. ·7· ·Cuthbert, I'm not going to go down the road of ·8· ·hope, and I'm going to speak about the ·9· ·responsibility that the governor has put on the 10· ·Department of Health. 11· · · · Now, for the record, I did submit these 12· ·questions to our wonderful health department, 13· ·so this is not a got-you moment.· It's a true 14· ·question. 15· · · · So upon considering, so I'm looking at the 16· ·actual emergency order, it reads, "Upon 17· ·reopening in August, all school boards and 18· ·charter schools' governing boards must open 19· ·brick-and-mortar schools at least five days a 20· ·week for all students, subject to the advice 21· ·and orders of the Florida Department 22· ·of Education, local departments of health, 23· ·Executive Order 20-149, and subsequent 24· ·executive orders." 25· · · · And so my question to you, Ms. Boswell,
0283 Page 222 ·1· ·is, as the director of the Florida Department ·2· ·of Health, because you have been called upon by ·3· ·the governor to advise the school district, do ·4· ·you feel that based on current data, ·5· ·understanding that we are talking about today, ·6· ·do you feel that the current COVID rates for ·7· ·our county are conducive to the safe reopening ·8· ·of Volusia County schools at this time? ·9· · · · MS. BOSWELL:· The Department of Health -- 10· ·and, you know, all of the health officers 11· ·around the state has asked the Department of 12· ·Health for guidance with this question, because 13· ·we're all being asked this question by school 14· ·boards, and we were -- we've been advised that 15· ·our role here is to just advise as to what -- 16· ·how -- what can we do to make the environment 17· ·in schools as safe as possible with COVID-19. 18· · · · It is not to make a decision on whether or 19· ·not to open up the school. 20· · · · UNIDENTIFIED MALE SPEAKER:· Okay.· Thank 21· ·you for that. 22· · · · My next question is, as the director of 23· ·the Florida Department of Health, will you 24· ·provide this board a date-stamped letter 25· ·indicating that based on a time certain date,
0284 Page 223 ·1· ·you feel that schools are safe to open?· Again, ·2· ·the order reads, "Subject to the advice and ·3· ·orders of the Florida Department of Health." ·4· · · · So are you able to provide that to our ·5· ·board for guidance? ·6· · · · MS. BOSWELL:· The county health ·7· ·departments are not providing those letters. ·8· · · · UNIDENTIFIED MALE SPEAKER:· Thank you. ·9· · · · And my last question is:· Will you provide 10· ·the board a letter within seven business days 11· ·of the start of school indicating that your 12· ·department still continues to feel that the 13· ·return of students and teachers to our 14· ·brick-and-mortar school buildings continues to 15· ·be safe? 16· · · · MS. BOSWELL:· It would only be advisement 17· ·on how to make the environment safe. 18· · · · UNIDENTIFIED MALE SPEAKER:· Okay.· And so 19· ·now I'll turn to my colleagues and say that one 20· ·of the things that we'll have to consider is 21· ·that the Department of Health is not telling us 22· ·that it is safe for students and teachers to 23· ·come back to school, so upon that, I think it's 24· ·going to really be on us to make that decision, 25· ·because they are not -- you know, and again, no
0285 Page 224 ·1· ·fault of yours, Ms. Boswell. ·2· · · · I have dealt with your department in a ·3· ·professional manner, both career-wise and ·4· ·today, and all the work you've done for our ·5· ·school district, and it's unfortunate that the ·6· ·governor has put your office in a very ·7· ·uncomfortable position, because, once again, ·8· ·the order says, "Subject to the advice and ·9· ·orders of the Florida Department of Health." 10· · · · And again, I understand that you have been 11· ·given this directive; however, I -- in not 12· ·having the advice of the Florida Department 13· ·of Health, you know, I personally don't believe 14· ·that schools are safe to open.· And so I am 15· ·turning to the folks that are being told that 16· ·we are supposed to be working with and we are 17· ·not getting that advice. 18· · · · So I have deep concern, and I truly 19· ·believe that this burden is going to be on us. 20· ·And that was all my questions.· And again, for 21· ·the record, these questions I did submit before 22· ·time.· They were not got-you questions, and I 23· ·appreciate you.· You have no idea. 24· · · · Like I said, I've dealt with the Florida 25· ·Department of Health professionally, both in my
0286 Page 225 ·1· ·occupation, as well as your participation, and ·2· ·I greatly appreciate you being willing to come ·3· ·and help us and -- and do the same thing we're ·4· ·doing, face the public, face the community, and ·5· ·say -- being willing to come and help us and do ·6· ·the same thing we're doing, face the public, ·7· ·face the community, and say, hey, you know, we ·8· ·really are doing the best we can.· But I think ·9· ·we're all being put in a really, really weird 10· ·scenario.· So thank you -- 11· · · · (Video clip concluded.) 12· · · · (The video clip Exhibit 38 was played and 13· ·transcribed as follows:) 14· · · · MR. SUSIN:· And then, can you -- so part 15· ·of what I've been trying to get at is, like, 16· ·can you give me what your recommendations would 17· ·be for our schools, if you could say, this is 18· ·what we would like you to do as a school 19· ·district from the DOH, what would that look 20· ·like from you? 21· · · · MS. STAHL:· Well, what I can say is the 22· ·plan that was developed by the district is a 23· ·very solid plan. 24· · · · We have had Patty and Maureen, that were 25· ·sitting on the plan, and then Barry and I
0287 Page 226 ·1· ·reviewed the final plan.· I think your plan -- ·2· ·the district's plan is very solid.· I think ·3· ·everything -- everything is covered. ·4· · · · As I say that, I don't think anyone can ·5· ·expect schools to open and not have any cases. ·6· ·I think we are -- no matter what we do, we're ·7· ·going to have cases.· And it's not because of ·8· ·anything that's being done in the schools. ·9· ·It's what's gone on in the community. 10· · · · So the children are social distancing -- 11· ·very sad.· Everyone is social distancing here 12· ·at school, they're wearing masks here, but what 13· ·happens when they leave?· So it -- I don't know 14· ·if there's a whole lot that can be done to 15· ·prevent that, outside of the whole community 16· ·education, but your plan is very solid. 17· · · · I can't -- you know, we can't give a 18· ·recommendation.· We can explain data to you. 19· ·But what I can say, and I don't know whose 20· ·email it was, if it was Tina's or Misty's that 21· ·I sent, is, I feel very comfortable with the 22· ·school district's plan on opening that 23· ·everything is being done that -- that can be 24· ·done. 25· · · · (Video clip concluded.)
0288 Page 227 ·1· · · · (The video clip Exhibit 37 was played and ·2· ·transcribed as follows:) ·3· · · · MS. STAHL:· Wanted to reiterate is our ·4· ·relationship with central office is to let ·5· ·everyone know that we are not really a local ·6· ·health department. ·7· · · · The state of Florida does not have local ·8· ·health departments.· The state of Florida has a ·9· ·state health department, which we are a piece 10· ·of them.· So primarily how the breakdown is, is 11· ·the State is the one that does all these 12· ·reports and all these statistics.· The State 13· ·has the biostatisticians.· They do all that 14· ·work.· We do the ground work.· We do all the 15· ·ground work.· The policies, we -- we take from 16· ·our experts in Tallahassee. 17· · · · So what we do in the world of COVID here, 18· ·or in the world of all epidemiology 19· ·investigations is, we do the case 20· ·investigations, we do the interviews, we do the 21· ·contact tracing.· We look at the local data 22· ·that's been put out by the State to see what's 23· ·actually going on, and Barry probably knows 24· ·what's probably going on before the report even 25· ·comes out.
0289 Page 228 ·1· · · · So the first thing is -- ·2· · · · (Video clip concluded.) ·3· · · · (The video clip Exhibit 40 was played and ·4· ·transcribed as follows:) ·5 ·6· · · · UNIDENTIFIED FEMALE SPEAKER:· Yes, the ·7· ·Orange County school board has -- or, yes the ·8· ·Orange County school board has criticized -- ·9· ·the health department for not taking a more 10· ·active role and advising them how do you 11· ·respond to this criticism, and -- for both you 12· ·and Mayor Dimings -- do you think the county is 13· ·ready to send children back to school? 14· · · · DR. PINO:· So the criticism -- I think it 15· ·comes from lack of understanding of what the 16· ·role of the health department is. 17· · · · We do not open or close the school 18· ·systems.· That's the decision of the board that 19· ·is an elected body that have to have the best 20· ·interests of the community at heart.· The same 21· ·that we do.· And they do. 22· · · · Our role in this process has been to 23· ·advise them on best practices as developed by 24· ·the CDC and others that could openly safe the 25· ·schools.· That was the charge.· For -- asked
0290 Page 229 ·1· ·from our offices. ·2· · · · And also to provide the school board with ·3· ·a clear indication of what the data is showing, ·4· ·what are the trends, full transparency so that ·5· ·they can make an informed decision into -- to ·6· ·opening or closing the schools. ·7· · · · I have no issue making a determination if ·8· ·I have the authority to do so.· What I'm trying ·9· ·to avoid by not making any comments is that any 10· ·decision that we make should withstand, and not 11· ·to be reversed by someone else that may have 12· ·more authority than us.· Because then the 13· ·health department would lose any credibility 14· ·with our community if we make such a decision 15· ·and someone else can change it. 16· · · · And to do that, I have requested for 17· ·further clarification from the State in what 18· ·our role can be, and what the interpretation of 19· ·the emergency order by the Department of 20· ·Education may contain for us.· So legally, 21· ·there are some challenges there that they are 22· ·analyzing. 23· · · · If there are directives to be changed, my 24· ·position would change. 25· · · · (Video clip concluded.)
0291 Page 230 ·1· · · · (The video clip Exhibit 41 was played and ·2· ·transcribed as follows:) ·3· · · · UNIDENTIFIED FEMALE SPEAKER?· And I guess, ·4· ·Mayor Dimings, this was for you. ·5· · · · Do you think the county is ready to send ·6· ·its children back to school? ·7· · · · MAYOR DIMINGS:· Let me preface it first by ·8· ·saying this:· The governor made a directive ·9· ·through the commissioner of education that 10· ·essentially took away the ability of local 11· ·governments, local counties, to make the 12· ·determination about whether the schools would 13· ·reopen. 14· · · · The directive says the schools shall open 15· ·in August.· So it's not a decision point that I 16· ·have at this point.· I will say I've had 17· ·multiple conversations with the superintendent 18· ·and others within the school district. 19· · · · I've had conversations with Dr. Pino, and 20· ·the district has been entrusted with the 21· ·responsibility to make some decisions within 22· ·the constraints of what the executive order 23· ·says.· Are schools safe to reopen?· The short 24· ·answer is I don't know. 25· · · · (Video clip concluded.)
0292 Page 231 ·1· · · · (The video clip Exhibit 42 was played and ·2· ·transcribed as follows:) ·3· · · · UNIDENTIFIED FEMALE SPEAKER:· WKMG News 6. ·4· ·I have one question for Dr. Pino. ·5· · · · And, Dr. Pino, I know you touched on this. ·6· ·I was listening to your answer, but I wanted a ·7· ·clarification.· Corcoran's emergency order says ·8· ·that school openings must be consistent with ·9· ·safety precautions as defined by the Florida 10· ·Department of Health. 11· · · · So who has the authority, then, to open or 12· ·close -- keep schools closed? 13· · · · DR. PINO:· So the interesting thing about 14· ·the order is that we are not -- I work for the 15· ·Florida Department of Health, but I'm not the 16· ·Florida Department of Health. 17· · · · The Florida Department of Health is in 18· ·Tallahassee, and is head by the state surgeon 19· ·general.· So that's a little -- there are 20· ·little things in the order that common people 21· ·on the street would not know.· Like hospital -- 22· ·Florida Public Health System different than 23· ·most of the state is a centralized system. 24· · · · So all the county health departments 25· ·around the state, the 67, are just an extension
0293 Page 232 ·1· ·of the State health department.· They are not ·2· ·independent departments.· So I am the employee ·3· ·of the State health department who is assigned ·4· ·in Orange County to work for Orange County, and ·5· ·the Orange County government in facilitating ·6· ·those processes.· But reality, the State ·7· ·department, and the head of the State health ·8· ·department, is the state surgeon general, not ·9· ·me. 10· · · · (Video clip concluded.) 11· · · · (The video clip Exhibit 43 was played and 12· ·transcribed as follows:) 13· · · · UNIDENTIFIED MALE SPEAKER:· I want to hear 14· ·each one of you say, "I would send 50,000 kids 15· ·and 6,000 adults back into crowds on 16· ·August 24th all at once, and that that's going 17· ·to be helpful to reducing the community spread 18· ·in our -- our county." 19· · · · I would like each one of you to say that 20· ·you agree with that statement, or that you 21· ·disagree with it. 22· · · · DR. JACKSON:· I will speak up and say that 23· ·that's not my role to tell you that, but the 24· ·decision about opening (indiscernible) with the 25· ·school district.
0294 Page 233 ·1· · · · · · ·You know, we provide the data to you.· You ·2· · · · have obviously done a lot of research.· In ·3· · · · looking around, there are different communities ·4· · · · that are doing it differently.· But ultimately, ·5· · · · the decision is yours. ·6· · · · · · ·UNIDENTIFIED MALE SPEAKER:· Actually, it's ·7· · · · the State's. ·8· · · · · · ·(Video clip concluded.) ·9· · · · · · ·MR. MEYER:· Thank you, Your Honor. 10· · · · · · ·We're now ready to proceed with 11· · · · Dr. Annette Nielsen, who I believe is in a 12· · · · holding room, and she'll -- she'll be 13· · · · questioned by Billy Wieland.· There she is. 14· · · · · · ·THE COURT:· Dr. Nielsen, if you'd just 15· · · · take yourself off mute there.· There you go. 16· · · · · · ·THE WITNESS:· Does that work? 17· · · · · · ·THE COURT:· Yes, ma'am.· If you'd raise 18· · · · your right hand, please. 19· ·Thereupon: 20· · · · · · ·ANNETTE NIELSEN, M.D., F.A.A.P. 21· ·having been sworn by the Court testified as follows: 22· · · · · · ·THE WITNESS:· Yes, sir, Your Honor. 23· · · · · · ·THE COURT:· Okay.· You can put your hand 24· · · · down. 25· · · · · · ·MR. WIELAND:· Your Honor, may I proceed?
0295 Page 234 ·1· · · · · · ·THE COURT:· Yes. ·2· · · · · · · · · · DIRECT EXAMINATION ·3· · ·BY MR. WIELAND ·4· · · · Q.· ·Dr. Nielsen, how are you today? ·5· · · · A.· ·I'm good, thanks. ·6· · · · Q.· ·I'm Billy Weiland.· I'm going to be asking ·7· ·you a few questions on behalf of our clients, as ·8· ·well as on behalf of the Florida Education ·9· ·Association. 10· · · · · · ·Can you state your full name for the 11· ·record, please, and spell your first and last name? 12· · · · A.· ·Annette Nicole Nielsen, A-N-N-E-T-T-E.· My 13· ·last name is Nielsen, N, as in Nancy, I-E-L-S-E-N. 14· · · · Q.· ·And what is your professional address, 15· ·Dr. Nielsen? 16· · · · A.· ·10743 Narcoossee Road, Suite A, as in 17· ·apple, 13, Orlando, Florida 32832. 18· · · · Q.· ·Perfect. 19· · · · · · ·Dr. Nielsen, we're working on a little bit 20· ·of a truncated timeline, but I would like, because I 21· ·think it's important, to go through your 22· ·credentials. 23· · · · · · ·If you wouldn't mind by starting where you 24· ·went to undergraduate studies and then all the way 25· ·up through if you did a fellowship.
0296 Page 235 ·1· · · · A.· ·I was born and raised in Birmingham, ·2· ·Alabama.· I stayed in Birmingham, and went to ·3· ·undergrad at the University of Alabama at ·4· ·Birmingham, which is similar to UCF.· And in fact, ·5· ·it's what UCF medical school was modeled after. ·6· · · · · · ·After I graduated with a BS in biology ·7· ·with a minor in chemistry and math, I didn't know ·8· ·what I wanted to be when I grew up so I taught ·9· ·anatomy at a private Christian school.· But I 10· ·learned there were a lot of restrictions with that 11· ·so I quit and spent some time figuring out what I 12· ·wanted to be. 13· · · · · · ·Then I went to medical school at the 14· ·University of Alabama School of Medicine.· Upon 15· ·graduation, I knew I wanted to work with kids 16· ·because they're amazing, and they're the future, 17· ·they're our lifeblood. 18· · · · · · ·So I came on down to Arnold Palmer 19· ·children's hospital and I did a pediatric residency 20· ·for three years there.· After residency, I really 21· ·loved cancer.· It was just cool.· So I went up to 22· ·Vanderbilt in Nashville, Tennessee and did a 23· ·clinical year of a hematology/oncology pediatric 24· ·fellowship. 25· · · · · · ·Unfortunately, along with
0297 Page 236 ·1· ·hematology/oncology fellowship, you end up having to ·2· ·grieve a lot.· And so you have to say "I'm sorry" ·3· ·more than you say "congratulations."· That really ·4· ·wasn't what I wanted to do the rest of my life, so I ·5· ·left. ·6· · · · · · ·And I was offered a job here at the ·7· ·Winter Garden children's health center out on the ·8· ·west side of Orange County, and I worked with ·9· ·migrant farm children and indigent care medicine for 10· ·three years. 11· · · · · · ·After that, I decided, you know what, 12· ·let's try something new.· Let's try and go see what 13· ·I can do on my own.· So I opened my own practice out 14· ·here in Lake Nona.· I was the first pediatric office 15· ·out here.· That was in 2008. 16· · · · · · ·I opened the doors with a receptionist and 17· ·a medical assistant and no patients.· I figured, 18· ·hey, you know what, if somebody came, we could stay 19· ·in business.· If not, the five-year plan was to 20· ·declare bankruptcy and go find a real job. 21· · · · · · ·So it's 2020.· I have 6,000 patients. 22· ·That's pretty cool.· So if you -- you know, 23· ·sometimes when you don't really think you're going 24· ·to succeed, you do.· So that was pretty cool. 25· · · · Q.· ·Perfect.
0298 Page 237 ·1· · · · · · ·Doctor, how many staff members and doctors ·2· ·do you have on your team there? ·3· · · · A.· ·There's a total of 15 of us.· One person ·4· ·actually works remotely from Michigan.· I have five ·5· ·MDs and two nurse practitioners, one who has a ·6· ·doctorate of nurse practitioning. ·7· · · · Q.· ·Perfect. ·8· · · · · · ·And I think it goes without saying but I ·9· ·don't think you covered it, you're licensed to 10· ·practice medicine in the state of Florida, I assume? 11· · · · A.· ·In the state of Florida, as well as in 12· ·Alabama. 13· · · · Q.· ·And as a part of your practice coming up, 14· ·before you started doing the -- running your own 15· ·practice at Treehouse Pediatrics, did you have the 16· ·occasion to see people with various viruses and 17· ·diseases and things like that? 18· · · · A.· ·Most definitely.· Constantly. 19· · · · Q.· ·And those were in, what, both adults and 20· ·children, or mainly just children? 21· · · · A.· ·At -- in medical school, we were amazingly 22· ·exposed to just about everything.· I delivered over 23· ·150 babies at the University of Alabama School of 24· ·Medicine. 25· · · · · · ·We did internal medicine rotations,
0299 Page 238 ·1· ·geriatric divisions.· While I was at Winter Garden ·2· ·children's health center, I worked with an amazing ·3· ·man, Dr. Orizondo, and helped with some of his adult ·4· ·patients as well. ·5· · · · Q.· ·Perfect. ·6· · · · · · ·Dr. Nielsen, I should have covered this at ·7· ·the beginning.· You're in your office; that's why ·8· ·you're wearing a mask, I assume? ·9· · · · A.· ·It is.· Unfortunately, my staff has had an 10· ·exposure.· Not recently.· Or we had an outbreak, 11· ·quite frankly. 12· · · · Q.· ·Okay. 13· · · · A.· ·Twelve people were exposed. 14· · · · · · ·They did become sick and infected, and so 15· ·since we know we don't have the appropriate 16· ·air-condition vents here in a commercial plaza, 17· ·we've chosen to all continue to wear our masks while 18· ·we're in the building.· We only take them off when 19· ·we're outside. 20· · · · Q.· ·Perfect. 21· · · · · · ·I think that jumps into another area I 22· ·wanted to cover with you, Dr. Nielsen. 23· · · · · · ·What precautions is your office taking due 24· ·to COVID-19? 25· · · · A.· ·That's a great question.
0300 Page 239 ·1· · · · · · ·So when we get up in the morning, when you ·2· ·get ready to get in your car, you have two pairs of ·3· ·shoes that you know you're going to wear that day. ·4· ·You have one pair of shoes that you wear in your ·5· ·car.· You wear that 'til you get to the office. ·6· · · · · · ·You take them off, and then you put on the ·7· ·pair of shoes that you're going to wear at work. ·8· ·Because we know that this virus can live on ·9· ·surfaces, and kids are germy little boogery people, 10· ·God love them, and things get everywhere. 11· · · · · · ·So if you're going to go back home, you 12· ·don't want to wear those same shoes back into your 13· ·house.· Also, like this, I'm wearing this surgical 14· ·mask, but when we see our sick patients, we're 15· ·actually seeing them outside in the back alley of 16· ·this commercial plaza, underneath a ten-by-ten tent. 17· ·Out there, it's about 100 degrees today on the 18· ·blacktop, if not a little hotter. 19· · · · · · ·So earlier today, I had on an N95 mask, my 20· ·face shield, a gown, gloves, different shoes for out 21· ·there, as well, and it gets really hot.· But it's 22· ·how you know you're safe.· And then when you come 23· ·back inside from there, you take all that off, and 24· ·then you have to hand sanitize head-to-toe any 25· ·exposed body part.
0301 Page 240 ·1· · · · Q.· ·You mentioned that you had an outbreak in ·2· ·your office. ·3· · · · A.· ·Uh-huh. ·4· · · · Q.· ·Did you have these same precautions going ·5· ·on, or similar precautions going on, at the time you ·6· ·had the outbreak? ·7· · · · A.· ·The only thing that we didn't have in ·8· ·place was that my staff would sit in a 14-by-14 ·9· ·lunch room around two eight-foot long tables. 10· ·Basically the kind you get at Walmart that are just 11· ·cheap desktop tables.· And they would sit there, and 12· ·they would eat. 13· · · · · · ·Other than that, these exact same 14· ·precautions were kept in place.· The exposure 15· ·happened because we had an irritable parent who was 16· ·out back with their sick child who refused to wear a 17· ·mask.· They coughed, they sneezed. 18· · · · · · ·We got a phone call from the father a 19· ·couple days later saying that the mom had gotten her 20· ·test, the result, that was positive.· However, she 21· ·had been tested before she came to our office that 22· ·day with her child.· She lied and she said she had 23· ·not been, but she was.· And that is actually where 24· ·the exposure happened. 25· · · · Q.· ·As a result of some of your staff members
0302 Page 241 ·1· ·getting COVID-19, what were some of their symptoms? ·2· · · · A.· ·They've had everything from runny nose, ·3· ·cough, loss of smell, loss of taste.· Two of them ·4· ·sill have that going on.· And that was on July the ·5· ·22nd that that actually happened. ·6· · · · · · ·One person has a cardiac arrhythmia. ·7· ·Their heart rate is now consistently down in the ·8· ·30s.· It should be in the 60s to the 80s.· Another ·9· ·person has chronic hip and joint and achy pains, 10· ·fatigued.· Her mobility and motility around the 11· ·office is greatly reduced and decreased. 12· · · · · · ·Another person still is having diarrhea 13· ·and horrible stomach pains, and again, that was July 14· ·the 22nd. 15· · · · Q.· ·So -- 16· · · · A.· ·Some people still get headaches, blurry 17· ·vision, dizziness. 18· · · · Q.· ·So about a month later, we are still 19· ·seeing effects from the virus? 20· · · · A.· ·Yes. 21· · · · Q.· ·Have you treated patients with COVID-19 as 22· ·well? 23· · · · A.· ·Yes, I have.· Actually, just this morning. 24· · · · · · ·I had an 11-year-old come in.· He was 25· ·complaining of ear pain.· But as a routine now, we
0303 Page 242 ·1· ·also check your oxygen levels.· His oxygen level was ·2· ·93 percent.· We asked him how he felt.· He said he ·3· ·kind of weird.· Sunday night, he kind of had black ·4· ·dizzy spots in his eyes, and he was scared to tell ·5· ·his mom, because his mom works at the airport. ·6· · · · · · ·If his mom can't go to work, he didn't ·7· ·know how things were going to go down, because he ·8· ·didn't know if his dad could stay home from work. ·9· ·Well, at 93 percent, he's not moving enough air to 10· ·keep himself saturated and healthy.· I have a higher 11· ·oxygen concentration with my mask on all day than 12· ·that.· Mine stays at 99, and I have severe asthma. 13· · · · · · ·So with that little guy, we went ahead and 14· ·sent -- we went ahead and tested him for COVID here 15· ·and we went ahead and sent him for a chest x-ray. 16· ·He is positive, and we thankfully, we tested his 17· ·oxygen level, and so now we'll deal with that and 18· ·keep him healthy. 19· · · · · · ·We've also had a 15-year-old girl who came 20· ·in with worst headache of her life.· We sent her to 21· ·a local emergency room.· That local emergency room 22· ·discounted that and said that she was simply overly 23· ·medicated on benadryl and other medicine used for 24· ·migraine headaches.· She went back home later that 25· ·night, she was unable to speak and swallow.· She
0304 Page 243 ·1· ·stood up, walked blindly to mother's bedside. ·2· · · · · · ·Her mother screamed, called 9-1-1, took ·3· ·her back to the original ER.· Unfortunately, there, ·4· ·she was ultimately admitted and diagnosed with a ·5· ·complete left-sided brain stroke.· So she stroked ·6· ·out the left side of her brain completely.· That ·7· ·left her nonverbal, not able to eat, not able to ·8· ·talk, not able to walk.· That's pretty bad when ·9· ·you're a 15-year-old straight A student with no 10· ·preexisting conditions.· That's unacceptable. 11· · · · · · ·So she had a full hematology/oncology 12· ·workup that was done in the hospital and completed 13· ·here at the office.· She has no hematological risk 14· ·factors for coagulation; however, her COVID was 15· ·positive.· So we've had numerous ones. 16· · · · · · ·We've had a nine-month-old baby who came 17· ·in because the mom had just been admitted to the ER 18· ·and was being admitted to the ICU at a local 19· ·hospital.· That nine-month-old baby had a runny 20· ·nose, and Dad was just worried, since Mom was going 21· ·in the house -- to the hospital, in other words. 22· · · · · · ·So Dad came in, we took him back.· We 23· ·ended up swabbing Dad, the nine-month-old, the 24· ·17-year-old, and the nine-year-old that were all in 25· ·the car.· Dad, the baby, and the 17-year-old were
0305 Page 244 ·1· ·also positive.· The nine-year-old was not positive ·2· ·at that point, but four days later was positive as ·3· ·well.· So household spread is happening as well. ·4· · · · · · ·I also have a patient who the girlfriend ·5· ·was a dance member of a local high school dance ·6· ·team.· At that point, the girl did not know she had ·7· ·been exposed.· So she was hanging out with her ·8· ·boyfriend, who was 16.· And, you know, when you're ·9· ·16, you make out.· So, needless to say, the 10· ·boyfriend got sick.· One Sunday, they went to the 11· ·grandparents' house.· The grandmother is 86 years 12· ·old.· She has COPD, emphysema.· She's on oxygen, 13· ·severe lung restrictions. 14· · · · · · ·And so the boy, the boyfriend, said, "Oh, 15· ·my gosh, I'm sick," the next day.· "I have a fever, 16· ·I'm coughing, I can't breathe."· They come in, we 17· ·check the boyfriend, we check the girlfriend.· We 18· ·check the mom and the grandparents. 19· · · · · · ·The boyfriend and the girlfriend both have 20· ·it; although, the girlfriend remained asymptomatic. 21· ·The boyfriend had a severe case.· The grandmother 22· ·ended up getting ill, as did the boyfriend's mother. 23· · · · · · ·So we've had several cases. 24· · · · Q.· ·Okay.· Let me go back -- 25· · · · A.· ·And they were limited in-offices testing,
0306 Page 245 ·1· ·which is sad. ·2· · · · Q.· ·Perfect. ·3· · · · · · ·Let me go back just for a second, ·4· ·Dr. Nielsen, and cover a couple things you went ·5· ·over.· I appreciate you going through some of those ·6· ·patients. ·7· · · · · · ·The patient that you mentioned that tested ·8· ·positive for COVID-19 and ended up with a left-sided ·9· ·brain stroke. 10· · · · A.· ·Uh-huh. 11· · · · Q.· ·I assume you've reviewed her chart. 12· · · · A.· ·Completely. 13· · · · Q.· ·And was there any other cause that you can 14· ·determine other than COVID-19? 15· · · · A.· ·There is none. 16· · · · · · ·We did a full hematological evaluation, 17· ·because if you're going to have a clot, if you're 18· ·going to stroke, it's presumed that you're going to 19· ·have thick blood or you're going to have a platelet 20· ·issue, or clotting issue, or a blood vessel with a 21· ·kink in it.· Kind of like a hose when you put your 22· ·finger over the end of a hose and you make it spew 23· ·everywhere. 24· · · · · · ·Well, this kid had none of that.· She had 25· ·normal blood vessels.· She had normal clotting
0307 Page 246 ·1· ·factors.· She had no issues with her clotting issues ·2· ·at all.· The only thing that she had was COVID.· No ·3· ·other infection.· And she was tested for everything. ·4· · · · Q.· ·Let me go back to another one of the ·5· ·patients you mentioned, it was a family. ·6· · · · A.· ·Uh-huh. ·7· · · · Q.· ·The question I have for you is, based on ·8· ·your experience that you've had with these patients, ·9· ·are you seeing this spread from child to adult and 10· ·adult to child? 11· · · · A.· ·Yes.· Yes, indeed we are. 12· · · · Q.· ·Okay.· So, I mean, as a part of your 13· ·testimony, Doctor, and let's jump back just for a 14· ·second, I assume you've reviewed some materials. 15· · · · A.· ·Yes. 16· · · · Q.· ·Not only for your testimony but just for 17· ·your practice? 18· · · · A.· ·Uh-huh. 19· · · · Q.· ·And would those include CDC guidelines, 20· ·updates from the American Academy of Pediatrics and 21· ·things like that? 22· · · · A.· ·Yes. 23· · · · Q.· ·Okay.· I believe there is even a white 24· ·paper put out by the American Academy of Pediatrics? 25· · · · A.· ·Yes, the Florida Association of the
0308 Page 247 ·1· ·American Academy of Pediatrics work together with ·2· ·the AAP to put out a complete white paper which are ·3· ·their recommendations and feelings of what should be ·4· ·happening with COVID and schools as we move forward. ·5· · · · · · ·Because they didn't feel like they were ·6· ·getting -- the pediatricians and the health care ·7· ·individuals themselves were getting any good ·8· ·direction from anywhere else, so they felt it was ·9· ·time to go forward and put forth some good 10· ·recommendations. 11· · · · Q.· ·And, Dr. Nielsen, we've heard sometimes in 12· ·the media that children are less susceptible to 13· ·getting the virus.· Based on your experience, and -- 14· ·and your research, is that something that you've 15· ·noticed as well, or is that essentially been 16· ·debunked? 17· · · · A.· ·I think that's been debunked. 18· · · · · · ·So if you think about what happened on 19· ·March the 13th, I remember going up my stairs at my 20· ·house, looking at my son who was sleeping in a tent 21· ·and mad at me because he couldn't go to spring break 22· ·camp.· I remember telling him, "I am so sorry, Bud, 23· ·but I guess today's the day the world has changed a 24· ·little bit." 25· · · · · · ·Because it had changed.· Suddenly, we were
0309 Page 248 ·1· ·keeping our kids home.· They weren't going on their ·2· ·spring break trip.· They weren't going to camp. ·3· ·They weren't going to go to Grandma's to spend the ·4· ·night.· They weren't going to go on a cruise. I ·5· ·remember breaking that news to a dear friend of ·6· ·mine.· "No, you're not going to take your kids on a ·7· ·cruise because I don't know if you're coming back." ·8· ·And I wasn't ready to lose her as a friend.· I'm ·9· ·still not. 10· · · · · · ·So I think you have to think about it.· If 11· ·you keep everybody home, and we as parents, we're 12· ·great, we're going to protect our kids because it's 13· ·what we do.· They're our future.· They're our life. 14· ·That's who we live for.· The day you're handed a 15· ·baby, your heart lives outside of your body for the 16· ·rest of your life. 17· · · · · · ·So we protected our kids and we kept them 18· ·closed in.· If a child has no risk factor and is not 19· ·exposed to anything, they're not going to get sick. 20· ·But what did we do this summer?· We sent them to the 21· ·St. Cloud community camp.· We sent them to the pool. 22· ·We sent them to soccer camp.· And what happened to 23· ·that St. Cloud community day camp?· It closed down 24· ·after everybody got infected. 25· · · · · · ·That was actually part of what originally
0310 Page 249 ·1· ·was thought of as a slow progression of how you ·2· ·could open things back up.· Well, it got disproven ·3· ·right there.· We tested over 30 kids that week and ·4· ·they were all positive.· And they all got it from ·5· ·the same summer camp from the same little counselor ·6· ·person.· God love them. ·7· · · · · · ·So I think if you keep kids away from ·8· ·infection, yes, they're going to be healthy.· But if ·9· ·you allow them to get together and play, in an area 10· ·that's closer than six feet, without a mask on, 11· ·they're going to spread it.· And I think that's what 12· ·we're seeing now.· That's what we're seeing, you 13· ·know, even at UNC that just got shut down this week. 14· ·You know, colleges are having that problem.· Schools 15· ·in Georgia are having that problem. 16· · · · · · ·You put kids together, they get sick.· You 17· ·keep them apart, they don't. 18· · · · Q.· ·Dr. Nielsen, I want to hit on a couple 19· ·topics you just went over. 20· · · · · · ·And, No. 1, I want to talk about you've 21· ·seen this spread amongst people, amongst children, 22· ·amongst adults.· Do you have to -- some basic 23· ·questions that I think people want to know:· Do you 24· ·have to have a fever to spread COVID-19? 25· · · · A.· ·Not at all.· The girlfriend of the
0311 Page 250 ·1· ·boyfriend who got it, she didn't have any symptoms ·2· ·at all. ·3· · · · Q.· ·Can you define what "asymptomatic" means? ·4· · · · A.· ·It means you have the virus in you, but ·5· ·you may simply not have any symptoms yet. ·6· · · · · · ·So even, like, when you get strep throat, ·7· ·before you get strep throat, before you have that ·8· ·104 fever and that horrible sore throat, it's in ·9· ·you.· You only have a fever if enough white blood 10· ·cells, your soldiers in your blood, have decided 11· ·it's time to rev up and fight.· That's what makes a 12· ·fever. 13· · · · · · ·So if your white blood cells are going, 14· ·eh, we're not going to do anything just yet, you're 15· ·not going to have a fever.· But you'll still have 16· ·strep throat and you're still contagious.· The same 17· ·is true with this.· If your white blood cells are 18· ·not revved up enough, then you're not going to have 19· ·a fever but you're still contagious. 20· · · · Q.· ·Perfect. 21· · · · A.· ·The flu works the same way. 22· · · · Q.· ·I understand, Doctor. 23· · · · · · ·Let's go back some of those patients, then 24· ·I want to go into different topics.· The patients 25· ·that you've seen with COVID-19, have you seen some
0312 Page 251 ·1· ·as early as, let's say, March or April, and do those ·2· ·patients still have any lasting effects from this ·3· ·virus? ·4· · · · A.· ·I think our first one was the second week ·5· ·of March.· It was right around the 10th.· It was ·6· ·right before spring break. ·7· · · · · · ·We knew about COVID, because I'm kind of a ·8· ·research geek and I think my med school instilled ·9· ·that in me, be a lifelong learner, thanks 10· ·Dr. Bebluebler.· So I think that, you know, that was 11· ·our first one we tested them and they were positive. 12· ·That child does still have some symptoms.· That 13· ·child still has some achiness and fatigue, and I 14· ·still am seeing it in my staff as well. 15· · · · · · ·The 15-year-old who I mentioned who had a 16· ·stroke, she's going to have lifelong complications, 17· ·even with the best and most aggressive therapy, 18· ·unfortunately. 19· · · · Q.· ·Perfect. 20· · · · · · ·I'm going to jump into another topic with 21· ·you, Dr. Nielsen.· You were fortunate enough to be 22· ·asked to join a medical advisory panel for Orange 23· ·County Public Schools; is that right? 24· · · · A.· ·Yes, I was. 25· · · · Q.· ·Okay.· Were you given specific directives
0313 Page 252 ·1· ·as to what to do when you joined that medical ·2· ·advisory panel? ·3· · · · A.· ·When we were first joined, we were told ·4· ·that we were being asked to do this so that we could ·5· ·give the board the best scientific evidence and the ·6· ·best ideas and the best medicine.· The current ·7· ·issues. ·8· · · · · · ·In doing so, though, in our first meeting, ·9· ·we were also instructed, though, that unfortunately, 10· ·due to funding considerations, not opening after 11· ·August the 31st was not an option.· If you opened 12· ·after August 31st, the schools weren't going to have 13· ·the funding.· And that was going to be devastating, 14· ·and that wasn't something we were willing to 15· ·entertain. 16· · · · · · ·So we had a constraint of time work that 17· ·we had to work with -- a timeline we had to work in, 18· ·to figure out how we were going to suggest opening. 19· ·At that first meeting, none of us felt that we 20· ·should be opening schools, and we kind of still were 21· ·at that point most recently. 22· · · · · · ·We did go ahead and say -- 23· · · · Q.· ·Okay. 24· · · · A.· ·-- at our least meeting that, you know, we 25· ·could try opening our elementary schools, but hold
0314 Page 253 ·1· ·off on your middle schools and your high schools ·2· ·because the information we have, and the scientific ·3· ·research shows that, right now, 10-year-olds and up ·4· ·spread it just like an adult.· Your viral load in ·5· ·your younger kids is high, but because they don't ·6· ·cough as forcefully, the spread may not be as fast ·7· ·or as rapid. ·8· · · · · · ·By only allowing elementary to open up ·9· ·initially, we were also hoping that the schools 10· ·would have time to improve safety procedures and 11· ·protocols.· We know that there's issues between 12· ·different types of masks.· It's recently come out 13· ·that the gaiter-style mask is ineffective and 14· ·inappropriate to be used in a school setting. 15· · · · · · ·However, that's still not delineated in 16· ·the safety manual that OCPS has put out.· That's 17· ·something that we're actually going to be talking 18· ·about this evening, I believe. 19· · · · Q.· ·Okay. 20· · · · A.· ·In addition to that, we went ahead and 21· ·said, you know, you need to have robust testing, 22· ·because without robust testing and contact tracing, 23· ·you're going to have an ineffective system as well. 24· · · · Q.· ·Let's talk about a couple things. 25· · · · · · ·As a part of the medical advisory panel,
0315 Page 254 ·1· ·were you provided, at any point, with the Department ·2· ·of Education's reopening CARES Act Florida, which I ·3· ·believe may have been back in May? ·4· · · · A.· ·We were not. ·5· · · · Q.· ·Okay.· Have you since had a chance to ·6· ·review that as a part of defense's exhibits? ·7· · · · A.· ·I have. ·8· · · · Q.· ·Okay.· And if you can just give me a brief ·9· ·summary of what you noted in that -- I assume it was 10· ·a PowerPoint presentation, is what it looked like to 11· ·me. 12· · · · A.· ·It is.· That's what I looked up when I was 13· ·looking through documents on CDC and things. 14· · · · · · ·I noticed that page 36 through 71, so 35 15· ·pages of a 143-page manual, actually dealt with 16· ·health and safety of children.· I thought that was 17· ·pretty sad. 18· · · · · · ·On page 36, it said, "Reopening will 19· ·require locally driven strategies, guidance from the 20· ·Department of Education, Department of Health, DCF, 21· ·and the Department of Emergency Management, and 22· ·local health officials." 23· · · · · · ·Unfortunately, our local health official, 24· ·Dr. Pino, was not willing to give the board 25· ·directive as to how it should be handled.· We did
0316 Page 255 ·1· ·invite Dr. Pino to one of our MAC meetings, our ·2· ·Medical Advisory Committee meetings.· However, ·3· ·Dr. Pino again said -- his answer when I asked the ·4· ·question should we open, he said, if you had asked ·5· ·me that a month ago, I would have said no. ·6· · · · · · ·Well, maybe I should have asked him a ·7· ·month ago instead of the board asking him. ·8· · · · · · ·On page 37, it said to, "Use this document ·9· ·as points and to consider and implement with the 10· ·local context, knowing that there's not a perfect 11· ·formula."· That's actually true.· You should be 12· ·opening this gently with local context because 13· ·there's not a perfect formula.· They say it right 14· ·there.· Plans to reopen don't need to mirror each 15· ·other.· That's true.· Plans cannot mirror each 16· ·other. 17· · · · · · ·Every county is a different beast.· You 18· ·know, if you look at Orange County, our numbers are 19· ·high.· If you look at some other counties, their 20· ·numbers are lower.· So it's not going to be a 21· ·one-size-fits-all.· Just like, you know, a shoe 22· ·isn't a one-size-fits-all.· You got to figure out 23· ·what fits your area. 24· · · · · · ·So if we look at Fort Walton Beach, for 25· ·instance, with hardly any, you know, positivity,
0317 Page 256 ·1· ·well, okay, let's let Fort Walton Beach open if ·2· ·they're ready.· But don't force Orange County. ·3· ·Don't force Hillsborough because they aren't ready. ·4· · · · · · ·You said it in your own document.· Do it. ·5· ·They don't have to mirror each other.· Page 41, ·6· ·"Adhere to the guidelines from the CDC, state and ·7· ·local health department."· Do that dimmer switch ·8· ·approach, and if it fails, reconsider things.· Well, ·9· ·that's what that Osceola County St. Cloud day camp 10· ·had happen to them.· They did the dimmer switch 11· ·approach.· They're still going to open up on August 12· ·the 24th. 13· · · · · · ·Page 51, it recommends to redesign the 14· ·school day to make it feasible and consider and to 15· ·explore things like masks and handwashing.· They 16· ·don't say wear a mask.· They say consider it. 17· ·Should you consider hitting somebody?· No, you just 18· ·shouldn't do it.· Let's just be honest, guys. 19· · · · · · ·It said, "At a minimum, school should be 20· ·supportive of voluntarily having people wear cloth 21· ·face masks."· Again, that's old data.· When I was a 22· ·resident, if a doctor wrote an order, the newest 23· ·order knocked out all preceding orders, so that's 24· ·the other problem.· But I'll get to that in a 25· ·second.
0318 Page 257 ·1· · · · · · ·Page 59, "The CDC disclaimer of the ·2· ·importance of local context should be noted."· Well, ·3· ·the CDC is saying that Florida has too many cases to ·4· ·open. ·5· · · · · · ·Page 62, "Consider a contact tracing ·6· ·protocol."· Consider it.· Don't do it?· Y'all, that ·7· ·just doesn't make any sense.· God love them. ·8· · · · · · ·Page 63, "Consider a testing protocol." ·9· ·We're in a pandemic.· You want to consider a testing 10· ·protocol?· Let's make one.· Why are you making all 11· ·of these individual school boards come up with one? 12· ·School boards aren't trained on how to contact 13· ·trace.· No -- 14· · · · · · ·MR. WELLS:· Your Honor -- 15· · · · A.· ·They are not trained on how to do any of 16· ·this. 17· · · · · · ·THE COURT:· Excuse me, Dr. Nielsen. 18· · · · Excuse me, Dr. Nielsen. 19· · · · · · ·Yes, Mr. Wells? 20· · · · · · ·MR. WELLS:· At some time can we have a 21· · · · question and answer, as opposed to the long 22· · · · soliloquy? 23· · · · · · ·THE COURT:· Well, I think the question 24· · · · invited a narrative, so I'll allow Dr. Nielsen 25· · · · to continue there.
0319 Page 258 ·1· · · · · · ·THE WITNESS:· Thank you, Judge. ·2· · · · A.· ·And on page 67, "If surfaces are dirty, ·3· ·use soap and water prior to disinfecting them."· You ·4· ·don't say "if they're dirty."· You have to assume ·5· ·they're dirty.· It's not an "if."· It just is. ·6· · · · · · ·So in my opinion, there was a lot of lack ·7· ·of direction, lack of certainty, lack of definition, ·8· ·and lack of guidance.· These are schools.· These ·9· ·aren't hospitals.· These are teachers.· These are 10· ·custodians.· These are cafeteria workers. 11· · · · · · ·Don't make them create it.· Tell them, 12· ·"Wear a mask.· We're going to test.· We're going to 13· ·contact trace.· We're going to provide your kids and 14· ·your employees with a safe environment." 15· · · · · · ·There's some really inspiring speech in 16· ·that PowerPoint, which is amazing, but then when you 17· ·get to the meat of it, you get the bun, but you 18· ·don't get the burger.· I like the burger. 19· · ·BY MR. WIELAND 20· · · · Q.· ·Dr. Nielsen, let's contrast that 21· ·PowerPoint presentation with what's come out more 22· ·recently from the CDC and the American Association 23· ·of Pediatrics. 24· · · · · · ·What is the difference between what the 25· ·governor and his task force put out regarding
0320 Page 259 ·1· ·opening schools, which I believe may have dated all ·2· ·the way back to May, as to what's come out in the ·3· ·last couple weeks? ·4· · · · A.· ·In the last couple weeks, the American ·5· ·Academy of Pediatrics, the president, he sent five, ·6· ·potentially six copies, of the exact same letter to ·7· ·the governor, stating that current states in the ·8· ·state of Florida, no school has any business ·9· ·opening. 10· · · · · · ·The sad part is, is that the governor has 11· ·yet to respond to him.· Not once.· Not even a 12· ·secretary has responded to him.· That's just not 13· ·what I would consider appropriate. 14· · · · · · ·You've got the head of the Florida AAP 15· ·saying, hey, you don't need to be opening schools. 16· ·At least call them say, "Why, why do you feel that 17· ·way?· Let's talk.· Let's work together as a team." 18· ·Because, yes, kids need to be in school, but they 19· ·have to be there safely. 20· · · · · · ·And if you look at the CDC, the CDC also 21· ·is saying that in context, you need to look at your 22· ·positivity rate along with the World Health 23· ·Organization.· Your positivity rate needs to be less 24· ·than 5 percent to effectively open, and you have to 25· ·provide a safe environment.
0321 Page 260 ·1· · · · · · ·You have to have masks.· You have to have ·2· ·science based on robust testing, contact tracing, ·3· ·and the ability to isolate and quarantine. ·4· ·Unfortunately, we don't have robust testing ·5· ·available in Orange County anywhere for children. ·6· ·Not even in the outpatient setting. ·7· · · · · · ·Dr. Pino mentioned that he has about ·8· ·10,000 tests available for our students in Orange ·9· ·County.· We have over 210,000 kids in Orange County. 10· ·We're missing quite a few of those tests, I believe, 11· ·if we need to give every kid a test. 12· · · · Q.· ·Dr. Nielsen, let's talk about a couple of 13· ·the things you hit on, which was positivity rate, 14· ·masks, and testing.· Let's start with testing. 15· · · · · · ·In your experience with the patients 16· ·you've treated with COVID, how quickly are tests 17· ·being turned around? 18· · · · A.· ·It depends on where you get the tests. 19· ·There's different tests out there. 20· · · · · · ·First, let's start with antibody testing. 21· ·Initially, when this came out, everybody thought, 22· ·oh, if you've got antibodies, kind of like you get 23· ·from a vaccine, you won't be able to get it.· That's 24· ·now been debunked, and so we know that those tests 25· ·are not really worth anything.
0322 Page 261 ·1· · · · · · ·You only have antibodies from anywhere ·2· ·from 30 to 60 days and then they're gone.· And not ·3· ·everybody creates antibodies.· In my own staff, of ·4· ·the ones who got sick, half had antibodies, half ·5· ·didn't.· Then -- so antibody tests have no place and ·6· ·no role in testing at this point.· They're just not ·7· ·accurate or useful. ·8· · · · · · ·Then you have to look at an antigen test. ·9· ·Antigen tests are usually rapid tests that can be 10· ·run in a doctor's office.· That's similar to your 11· ·flu or strep test that you get when your doctor 12· ·swabs you.· There are primarily two manufacturers of 13· ·the rapid test.· One is Quidel, which uses the Sofia 14· ·2 machine.· The Sofia 2 machine's also been used in 15· ·primary care offices for things like flu and strep. 16· · · · · · ·So if you were lucky enough to already 17· ·have the machine, which I believe there were about a 18· ·thousand in the country, so in the entire United 19· ·States, then you could order the test and you could 20· ·run the test. 21· · · · · · ·There is one local urgent care center here 22· ·in Orange County that has that test.· There is one 23· ·pediatric office that has that test.· That is the 24· ·only two providers in Orange County, other than 25· ·hospital emergency rooms, who has that test
0323 Page 262 ·1· ·available for children. ·2· · · · · · ·If you're 18 and over, you can get that ·3· ·test done at local AdventHealth care options and ·4· ·some other urgent care options, but not if you're ·5· ·under 18.· If you go to the State's health ·6· ·department testing sites, they're not going to test ·7· ·a kid under the age of 18, unless they're severely ·8· ·symptomatic.· And even then, my patients have gotten ·9· ·pushback. 10· · · · · · ·That's not with a rapid test, either. 11· ·That's with a PCR send-out test that can take seven 12· ·to 14 days, if it's processed correctly.· By the 13· ·time a test comes back seven to 14 days, you've 14· ·increased your local spread, and you've made the 15· ·situation worse.· So it's not the great test. 16· ·Granted, the antigen isn't either. 17· · · · · · ·There's pros and cons to every test, but 18· ·to be a good, effective test, you have to get an 19· ·accurate result quickly.· You don't find out for 14 20· ·days that you have it, well, you've already gone to 21· ·Sam's and Publix and BJ's, and, you know, 22· ·McDonald’s. 23· · · · Q.· ·And what does the CDC recommend as far as 24· ·test turnaround time? 25· · · · A.· ·CDC says you need to get it within 24
0324 Page 263 ·1· ·hours. ·2· · · · Q.· ·And -- ·3· · · · A.· ·Forty-eight at the most. ·4· · · · Q.· ·And you were on -- like we mentioned ·5· ·earlier, you were on the medical advisory panel for ·6· ·Orange County Public Schools. ·7· · · · · · ·Was there any discussion about maybe ·8· ·having Orange County Public Schools, Department ·9· ·of Education, or even the health department provide 10· ·testing directly to students in the school, or are 11· ·they going to have to travel somewhere to get 12· ·tested? 13· · · · A.· ·I asked that question directly, and 14· ·Dr. Pino looked kind of surprised.· He was not sure 15· ·that there was anything set up.· He had no location 16· ·for kids or staff to go to. 17· · · · · · ·He simply said that he had 10,000 tests 18· ·assigned to Orange County, but at that point he had 19· ·no idea what he was going to do with them, how they 20· ·were going to be administered, who would administer 21· ·them, or what the results be done with. 22· · · · · · ·However, the CDC and the white paper from 23· ·the American Academy of Pediatrics recommends having 24· ·every parent sign a FERPA form, which is the 25· ·Educational Protection Act.· It's Trump's HIPAA,
0325 Page 264 ·1· ·actually.· HIPAA doesn't apply to any elementary or ·2· ·middle schools.· FERPA does. ·3· · · · · · ·And so the white paper, as well as the ·4· ·CDC, suggest having every family sign a FERPA.· That ·5· ·way, a test could be done at a school, and then you ·6· ·could get a result so you would know how to ·7· ·appropriately handle that child, that classroom, and ·8· ·anyone exposed. ·9· · · · Q.· ·But in your experience, that hasn't been 10· ·set up yet by Orange County Public Schools? 11· · · · A.· ·It is not at all. 12· · · · Q.· ·Okay.· Let's talk a little bit about -- 13· ·have you noticed, from your research and some of the 14· ·stuff that you've referenced and that we have put 15· ·into evidence, an increase from July until August in 16· ·the pediatric COVID rates? 17· · · · A.· ·Yes.· Definitely.· My office currently has 18· ·a 30 percent positivity rate. 19· · · · Q.· ·Okay.· And then let's talk about the 20· ·positivity rate that lends us right into a good 21· ·conversation about that. 22· · · · · · ·Have you been reviewing the daily stats 23· ·from the Florida Department of Health as to positive 24· ·tests, number of tests done, number of negatives, 25· ·and the actual positivity rate; have you reviewed
0326 Page 265 ·1· ·that? ·2· · · · A.· ·I've reviewed it at length. ·3· · · · Q.· ·Okay.· Can you tell me about -- obviously ·4· ·we've seen the numbers dropping as far as positivity ·5· ·rate and positive tests; can you tell me what that ·6· ·means after you've reviewed the raw data? ·7· · · · A.· ·So my sister is a professor -- a math ·8· ·professor in the University of Colorado at Boulder. ·9· ·So not only have I reviewed it, I actually reviewed 10· ·it with her, because it seemed so unbelievable and 11· ·laughable to me, I wanted to make sure I wasn't 12· ·overlooking something. 13· · · · · · ·So in reviewing it with her, it became 14· ·pretty obvious we're double counting our negatives. 15· ·So if you have to have two negative tests to return 16· ·to work, both of those negatives get put into the 17· ·negative denominator, or in the negative pile. 18· ·Well, that dilutes your positivity rate.· You can't 19· ·double count your negative tests. 20· · · · · · ·And so we've seen the number in the state 21· ·of Florida go very high.· And it still has yet to be 22· ·below 5 percent or anywhere near 5 percent.· Today, 23· ·it's actually 15.1 percent. 24· · · · Q.· ·And how did you come to that number? 25· ·Because obviously the Florida Department of Health
0327 Page 266 ·1· ·has a different number on their website. ·2· · · · A.· ·If you actually look at the data that they ·3· ·provide, so they actually have, like, a two-sheet ·4· ·spread, so not just their dashboard.· If you ·5· ·actually go to that, you can actually calculate your ·6· ·true positives and your true negatives, and it takes ·7· ·out the double negatives. ·8· · · · · · ·And at the bottom of the second page it ·9· ·actually has a set -- like, a little disclaimer that 10· ·says the negative rate and this positivity rate are 11· ·based on double negatives, that they're not correct. 12· · · · Q.· ·Then let's talk also about as it relates 13· ·to testing. 14· · · · · · ·Is there any indication that we're pulling 15· ·-- and I don't know this, and you may or may not 16· ·know it -- is there any indication that -- let's say 17· ·for the NBA bubbled down at Disney.· They're 18· ·testing -- I don't know if it's every day or every 19· ·other day, but they're testing a lot over there. 20· · · · · · ·And obviously, they've done a great job in 21· ·the bubble and they haven't had any positive cases 22· ·as of late, is my understanding.· Do you know if 23· ·that data's being pulled out separately because 24· ·that's not representative of the community, or is 25· ·that --
0328 Page 267 ·1· · · · A.· ·It is not being pulled out.· It's not ·2· ·being pulled out.· It's part of it as well. ·3· · · · Q.· ·Okay. ·4· · · · A.· ·Same thing with Major League Soccer that ·5· ·was here, too. ·6· · · · Q.· ·And all those numbers, do you think those ·7· ·are affecting our positivity rate, not only in ·8· ·Orange County but around the state? ·9· · · · A.· ·Yes. 10· · · · · · ·And Dr. Pino actually made a statement 11· ·on -- I saw it on the news that said that you should 12· ·assume that the positivity rate is considerably 13· ·higher than what we're actually saying out loud. 14· · · · Q.· ·Okay.· And we talked about this 5 percent, 15· ·or at least you mentioned it, that seems to be the 16· ·gold standard.· We've heard it from just about 17· ·everybody that's testified today, and in the news. 18· · · · · · ·Why 5 percent, Dr. Nielsen? 19· · · · A.· ·If you have 5 percent or less, then you're 20· ·at less risk of creating more increased spread. 21· · · · · · ·So the goal when you have a pandemic is to 22· ·control it.· Don't let it get out of control.· Don't 23· ·let that fire ravage your entire county or state. 24· · · · · · ·So if you have less than 5 percent or 25· ·5 percent, then you don't have numbers that will
0329 Page 268 ·1· ·ravage it.· And using things like handwashing, ·2· ·gowns, gloves, masks, social distancing will be ·3· ·effective; however, it's been shown and well ·4· ·documented that if that number is over 5 percent, ·5· ·masks and social distancing alone are not as ·6· ·effective because of the way it spreads:· Airborne ·7· ·and droplet. ·8· · · · Q.· ·Are you saying that we should keep schools ·9· ·closed until we have a vaccine, or are you just 10· ·saying, look, we need to keep schools closed until 11· ·we hit, you know, 5 percent or below? 12· · · · A.· ·There -- I don't think you need to keep 13· ·schools closed until you hit a vaccine, because just 14· ·like with Polio and Smallpox, that can be a long way 15· ·off. 16· · · · · · ·But what you do have to have is a 17· ·situation based on science, robust testing, contact 18· ·tracing, and the ability to keep kids safe.· Because 19· ·you can't bring those teachers and those kids in and 20· ·say, "Hi, welcome back to first grade.· Sorry, now 21· ·you're going to go home for 14 days because Jimmy 22· ·got it, and his sibling does, too." 23· · · · · · ·So kids do need to be in school.· That is 24· ·so true.· That's where we all know that's where they 25· ·need to be; however, you have to do it in the lens
0330 Page 269 ·1· ·of safety.· Otherwise, you're just going to spread ·2· ·it around, and our numbers are going to go up even ·3· ·more, and then Jimmy's going to give it to his ·4· ·grandmother who may die, and then we've got to deal ·5· ·with Jimmy and his emotional needs for the rest of ·6· ·his life. ·7· · · · Q.· ·How do we do that?· I mean, how would you ·8· ·recommend trying to bring students back to school ·9· ·safely?· Would that include a firm date by X date we 10· ·need to open all schools? 11· · · · A.· ·No.· No. 12· · · · · · ·Kids whose fathers are firefighters don't 13· ·expect Christmas to always be on the 25th.· Santa 14· ·sometimes comes on the 26th or the 28th, depending 15· ·on his shift, last time I checked.· Same thing is 16· ·true with school.· You can't say, here's my 17· ·line-in-the-sand date I'm going to open. 18· · · · · · ·Because what if half of New York or half 19· ·of some other state comes down to Disney World this 20· ·weekend and it outbreaks again?· Well, okay, let's 21· ·be real.· Let's keep Florida safe.· Let's make sure 22· ·we have air-conditioning vents and ductwork in place 23· ·that can protect kids, because it is airborne, as 24· ·well as teachers, and industry staff. 25· · · · · · ·Let's make sure we have contact tracing in
0331 Page 270 ·1· ·place.· Dr. Pino mentioned at our last MAC meeting ·2· ·he was hoping to hire about 130 people.· That's a ·3· ·great hope.· He hasn't done it yet, unfortunately. ·4· · · · · · ·Let's make sure we have testing.· He's got ·5· ·10,000 tests for 212,000 kids and no place to do it, ·6· ·and no one to do it, and he doesn't have the ·7· ·parental permission to actually do the test, and no ·8· ·one to trace it.· So that's a failure also. ·9· · · · · · ·We're simply not ready.· We don't have the 10· ·things in place to open.· We do need to open; 11· ·however, you shouldn't do something like that so 12· ·flippantly and haphazardly. 13· · · · Q.· ·And let's go into -- a little bit into the 14· ·details, okay? 15· · · · · · ·There are certain things that are -- we 16· ·had a witness who came on earlier who's a teacher in 17· ·Orange County, and he talked about concerns 18· ·regarding bathrooms and changing classes and things 19· ·like that. 20· · · · · · ·Are those concerns that were brought up to 21· ·you as a part of the Medical Advisory Committee, or 22· ·are those things that were discussed, or do you 23· ·think, generally, those things need to be a part of 24· ·the reopen plan? 25· · · · A.· ·Those have to be part of the reopen plan.
0332 Page 271 ·1· ·The American Academy of Pediatrics put that in their ·2· ·white paper. ·3· · · · · · ·Okay.· I don't know about you guys, but in ·4· ·a girls bathroom, when you walk in, there's still no ·5· ·lid to put down on top of the toilet when you flush. ·6· ·Well, it's spread in the poop, y'all.· So if you ·7· ·flush the toilet after you poop or pee, it's going ·8· ·to go into the air. ·9· · · · · · ·Now, no one else needs to walk into that 10· ·bathroom for 30 minutes.· Doesn't that make Target 11· ·fun?· So we have to think about kids going to the 12· ·bathroom.· Kids are messy.· They pee everywhere. 13· ·Most parents have noticed that about their own kids, 14· ·let's be honest. 15· · · · · · ·So you also can't have more than one kid 16· ·in a teeny tiny bathroom, so bathroom breaks are 17· ·going to be laborious.· Kids don't always use soap. 18· ·There's not always soap available.· There's not 19· ·always paper towels available.· So we have to think 20· ·about how you're going to line up kids to go to the 21· ·bathroom. 22· · · · · · ·Then you also have to consider water 23· ·fountains and water refreshment stations.· Those are 24· ·expensive.· Kids spit in water fountains.· It 25· ·happens even in my own office.· It's nasty.· I don't
0333 Page 272 ·1· ·use the water fountain here.· We have a certain ·2· ·water cooler for the staff. ·3· · · · · · ·So you have to have these things in place ·4· ·because these are great surfaces to spread it on. ·5· ·And you would have to wipe it down between every ·6· ·single kid if you were going to expect to use those ·7· ·facilities.· But, no, the MAC has not been -- that ·8· ·hasn't been discussed yet. ·9· · · · Q.· ·Okay.· Are those things that should be 10· ·part of a discussion before you open up a school? 11· · · · A.· ·Definitely. 12· · · · Q.· ·Okay.· And -- 13· · · · A.· ·Definitely. 14· · · · Q.· ·And -- 15· · · · A.· ·And what the CDC initially said back in 16· ·May was that every school bathroom toilet actually 17· ·needed to have a lid modified onto it so you could 18· ·close the lid before you flushed. 19· · · · Q.· ·Has that been a part of any of the 20· ·discussions at Orange County Public Schools, or have 21· ·you heard anything come down from the Department 22· ·of Education or Department of Health about getting 23· ·those installed? 24· · · · A.· ·Not at all. 25· · · · Q.· ·Okay.
0334 Page 273 ·1· · · · A.· ·Not at all. ·2· · · · Q.· ·I also noted in some of the materials that ·3· ·I believe you reviewed, and as part of our evidence, ·4· ·about cohorting.· It seems to be mentioned a lot ·5· ·between CDC, and I believe even the white paper ·6· ·you've been referencing. ·7· · · · · · ·Can you talk to us a little bit about what ·8· ·cohorting means, and if that would be something you ·9· ·would recommend be implemented as a part of a reopen 10· ·plan at some point in the future? 11· · · · A.· ·Cohorting is a great idea, concept, and 12· ·reality.· It's what we actually saw used in a lot of 13· ·the Florida daycares this summer that were taking 14· ·care of the kids of the first responders and medical 15· ·community. 16· · · · · · ·What they did is they found one teacher, 17· ·possibly two, to split the day with.· They would 18· ·take five, no more than seven kids in the same room 19· ·at the same time, and they kept them together all 20· ·day long.· They didn't go play with any other 21· ·children, so they kept their germs to themselves. 22· · · · · · ·Some of those kids even didn't -- weren't 23· ·required to wear a mask because they knew they were 24· ·sharing their same germs with the same people.· The 25· ·families had signed contracts with the daycare
0335 Page 274 ·1· ·facility, saying, we're going to be sure that we're ·2· ·safe, and if anybody gets exposed, we're going to ·3· ·keep our kid out for 14 days, or until two negative ·4· ·tests. ·5· · · · · · ·That actually happened to one of my ·6· ·co-workers.· Because she was exposed here, although ·7· ·did not turn positive on her test or have COVID, ·8· ·despite exposure, she had to take her child out and ·9· ·keep that child at home for a prolonged period of 10· ·time until we knew it was negative.· Because it was 11· ·the responsibility of the cohort. 12· · · · · · ·So if you look at elementary schools, that 13· ·would mean taking five to eight kids in, you know, a 14· ·grade, and saying, we're going to keep these kids 15· ·together.· They're going to move fluidly together. 16· ·They're not going to play on the playground with 17· ·this other class, because then they share germs. 18· ·We're not going to send them to the cafeteria 19· ·because that's where they're going to spread germs. 20· · · · · · ·Instead, let's get some tents and put a 21· ·tent out back so they can go sit outside and eat 22· ·lunch, but let's keep those kids together.· That's 23· ·something that should be considered for middle and 24· ·high schools as well, as opposed to all the changing 25· ·of classes.
0336 Page 275 ·1· · · · · · ·If you have hectic changing of classes, ·2· ·you're going to have big numbers of kids in ·3· ·hallways, and I don't know about you, but our high ·4· ·school hallways weren't that big in Birmingham, and ·5· ·so we were always bumping into each other. ·6· · · · · · ·So you have to consider changing classes, ·7· ·changing spaces.· The less movement you have, the ·8· ·better you are. ·9· · · · Q.· ·Is that -- any of those recommendations 10· ·you just mentioned about cohorting, modifying how 11· ·middle and high school students change class, has 12· ·any of that -- any of that been a part of any 13· ·recommendations from the Department of Education or 14· ·the Department -- or Orange County Public Schools? 15· · · · A.· ·No. 16· · · · · · ·It was brought up, I believe, at a board 17· ·meeting.· It was thought about.· However, it was 18· ·said that that was going to be unrealistic and not 19· ·possible to obtain or achieve. 20· · · · Q.· ·Okay.· And in your review of the -- what's 21· ·marked as -- I believe it's Plaintiffs' Exhibit 36, 22· ·which is the reopening plan we talked about earlier, 23· ·Dr. Nielsen, from the Department of Education, did 24· ·you see anything about how to implement these -- at 25· ·the cohorting or modifying changing schedule, or
0337 Page 276 ·1· ·even as simple as putting seats on toilets that you ·2· ·mentioned earlier? ·3· · · · A.· ·Not at all. ·4· · · · Q.· ·Okay.· The governors talked, as well as ·5· ·the Department of Education, have talked, a lot ·6· ·about concerns with children falling behind, which ·7· ·is obviously a huge concern for a lot of people with ·8· ·what we're going through. ·9· · · · · · ·In rendering your opinions about whether 10· ·it's safe to return to school, have you taken that 11· ·into consideration? 12· · · · A.· ·Definitely. 13· · · · · · ·And my staff and I have actually 14· ·brainstormed on some ways to work with that. 15· ·Because, yes, kids need to have education.· But if a 16· ·kid is dead, they're not going to need education 17· ·anymore, I think.· And so what we've said is that, 18· ·you know what?· Let's look at these kids.· Let's 19· ·talk to the local Boys and Girls Club.· Let's talk 20· ·to churches.· Let's come up with ways to make 21· ·learning pods outside of the school environment for 22· ·these kids. 23· · · · · · ·One of my best friends is the CEO of the 24· ·Hope Center in Osceola County.· They serve the 25· ·underserved along the 192 route, and countless
0338 Page 277 ·1· ·numbers of kids and families living in homeless ·2· ·shelters, as well as hotels.· She did an informal ·3· ·survey for me because I was curious, and I wanted to ·4· ·know how I could represent those kids the best. ·5· · · · · · ·And so I asked her, I said, find out how ·6· ·many of your patients, your kids, those parents want ·7· ·their kids to go back to school.· My favorite ·8· ·response so one of our questions was, "Hell, no, I'm ·9· ·not sending my kid."· None of them were going to 10· ·send their kids back. 11· · · · · · ·So I think we have to take into 12· ·consideration even the people who may be indigent, 13· ·who may not be affluent.· Who may not even be middle 14· ·class.· They don't feel it's safe to go back to 15· ·school.· And so we need to be serving all of our 16· ·customers, and all of our clients, and all of our 17· ·students and families. 18· · · · · · ·So we have to figure out how to get Boys 19· ·and Girls Clubs, churches, neighborhood road 20· ·captains together to work with those kids. 21· · · · Q.· ·Do you believe that there is a way to -- 22· ·the word I'm going to use is very basic -- but 23· ·partially open schools to some people who are in 24· ·those more at-risk categories, rather than having a 25· ·everything-must-be-open order effective August 31st?
0339 Page 278 ·1· · · · · · ·Do you think that's a possible ·2· ·recommendation that you would agree with, and would ·3· ·you believe that would be safer? ·4· · · · A.· ·I think it would be a much more humane ·5· ·option, yes.· Because the other thing that we know ·6· ·from the CDC is that those medically more complex ·7· ·kiddos, those special ed sensory kiddos, the kids ·8· ·with higher IEP levels and services are actually ·9· ·more vulnerable for COVID and for complications. 10· · · · · · ·As are our obese kids, our diabetic kids, 11· ·our asthmatic kids.· And so you have to take that 12· ·into consideration as well when you're talking about 13· ·opening.· But a full-on opening is totally 14· ·irresponsible. 15· · · · Q.· ·Perfect. 16· · · · · · ·Doctor, I skipped a couple questions at 17· ·the beginning so I'm going to go back and then we'll 18· ·wrap up with a couple, but you're almost done. I 19· ·appreciate your testimony here today. 20· · · · · · ·And my understanding, and you can correct 21· ·me if I'm wrong here, Doctor, this is the first time 22· ·you've ever been asked to testify as an expert in 23· ·your field? 24· · · · A.· ·Correct. 25· · · · Q.· ·Okay.· And you haven't been retained by
0340 Page 279 ·1· ·either of the plaintiffs, correct? ·2· · · · A.· ·No. ·3· · · · Q.· ·You've just been asked to testify, not ·4· ·obviously been paid by anybody? ·5· · · · A.· ·No. ·6· · · · Q.· ·Okay.· Dr. Nielsen, just to wrap up, ·7· ·the -- just generally, Dr. Nielsen, what is your ·8· ·recommendation as it stands today:· Do you think we ·9· ·should be opening schools by August 31st in the 10· ·state of Florida? 11· · · · A.· ·We have no business opening schools based 12· ·on a certain deadline, and definitely not by August 13· ·the 31st. 14· · · · · · ·If you look at Orange County specifically, 15· ·right now, they have MERV 10 filters in their HVAC 16· ·systems, and they are very proud of that fact. 17· ·Unfortunately, MERV 10 A/C filters don't filter out 18· ·COVID.· MERV 13 does.· And so we don't even have 19· ·appropriate air filters in schools. 20· · · · · · ·I understand that Orange County systems 21· ·are not meant for a MERV 13, but that means we need 22· ·to get individual air filtration options into each 23· ·one of those classrooms.· We need a chance to talk 24· ·with our foundations in the schools.· We need Home 25· ·Depot, Pine Castle Hardware, Miller's in Winter
0341 Page 280 ·1· ·Park, we need all of our local hardware places, and ·2· ·Lowe's, to jump on the bandwagon along with ACE and ·3· ·get us some air filters in these schools. ·4· · · · · · ·Across the state.· Because if you're going ·5· ·to open up, you have to have the air clean.· You ·6· ·have to have the ability to be safe.· We're not ·7· ·there.· We don't have anything ready.· It's like a ·8· ·disaster waiting to happen. ·9· · · · Q.· ·If schools open, what -- what do you think 10· ·is going to happen, No. 1, and what is the 11· ·protocol -- from your time on the medical advisory 12· ·panel, what is going to happen if somebody does come 13· ·down with COVID in a school? 14· · · · A.· ·Well, somebody's going to show up the 15· ·first day with it.· Let's just be honest.· You can 16· ·know that based on what happened in Seminole County. 17· ·You don't have to re-create history just to figure 18· ·that one out. 19· · · · · · ·So the first day, someone's going to have 20· ·it.· Someone's going to be exposed.· And 21· ·unfortunately, we have yet to be presented with the 22· ·plan for what's going to happen if someone does get 23· ·it.· That's part of tonight's MAC as well.· So we 24· ·don't know what Orange County's plan is. 25· · · · · · ·I know what Oregon's Department of
0342 Page 281 ·1· ·Health's plan is, and it's phenomenal. ·2· · · · Q.· ·Okay.· And we can talk about that in a ·3· ·second, but let me just go back real quick. ·4· · · · · · ·It's my understanding that -- I mean, my ·5· ·daughter is set -- is going to school virtually this ·6· ·year, and is in kindergarten here in Orange County. ·7· · · · · · ·Are you testifying here today that as it ·8· ·stands today, if somebody shows up with COVID on ·9· ·Friday when brick-and-mortar schools open, there's 10· ·not a specific plan in place on how to handle that? 11· · · · A.· ·There is not a plan that MAC has been 12· ·approved -- has been shown or approved of. 13· · · · · · ·As of the Monday night school board 14· ·meeting, they -- the school board members themselves 15· ·were also unaware of what the plan was. 16· · · · Q.· ·Are we going to -- do you know if we're 17· ·going to require a negative test before students 18· ·come back to school? 19· · · · A.· ·I don't believe that's on the table at 20· ·all. 21· · · · Q.· ·And let me rephrase that question. 22· · · · · · ·Are we going to require a negative test 23· ·before they come back to school if they've tested 24· ·positive for COVID or been potentially exposed to 25· ·COVID?
0343 Page 282 ·1· · · · A.· ·No. ·2· · · · Q.· ·Okay.· Dr. Nielsen, let me just look ·3· ·through my notes real quick.· I think I may be ·4· ·wrapping up with you. ·5· · · · · · ·MR. WIELAND:· Judge, if you'll just give ·6· · · · me one second. ·7· · · · · · ·THE COURT:· Sure, yes, sir. ·8· · · · · · ·MR. WIELAND:· Thank you. ·9· · ·BY MR. WIELAND 10· · · · Q.· ·Dr. Nielsen, you may have covered this, 11· ·but in your research and in your experience, is 12· ·COVID-19 passed both through the air, as well as on 13· ·surfaces? 14· · · · A.· ·Yes, it is.· Yes, it is. 15· · · · · · ·So there actually was a study that came 16· ·out in January, and it was referencing a restaurant 17· ·in Gung Ho, China.· And what happened was, there was 18· ·a family that was sitting on -- and I believe I have 19· ·a copy in the seminar, if y'all need it. 20· · · · · · ·There was a family that was sitting on one 21· ·side of a restaurant at a round table.· The air 22· ·ducts started at this side -- let me see if I can do 23· ·this on camera -- and then there were other -- so 24· ·the return was here, and the output was here. 25· · · · · · ·So the family sitting over here where the
0344 Page 283 ·1· ·return was, was healthy.· There was one family ·2· ·member on the input of the air, so where air's being ·3· ·sucked up, there was one family member who was ill, ·4· ·not known to be COVID at that point.· However, this ·5· ·family, three people ended up having it.· Then this ·6· ·table way over here ended up getting it as well. ·7· · · · · · ·It was on the third -- I believe it was on ·8· ·the fifth -- the third floor of a five-floor ·9· ·restaurant that that happened at, and that third 10· ·floor had its own individual air-conditioning system 11· ·developed for it.· And so it was shown to be 12· ·airborne at that point. 13· · · · · · ·The sad thing is, is that when you get a 14· ·new virus, or a new plague, or a new whatever, you 15· ·don't know everything about it.· Just like when you 16· ·get a new car.· So you have to kind of play around 17· ·with the buttons and see what happens.· And, you 18· ·know, I got a new used car back in January. 19· ·Yesterday, I found a new feature and it was pretty 20· ·cool. 21· · · · · · ·Illnesses are the same way.· When you 22· ·first get an illness, we thought it was just 23· ·droplets.· But then that showed it was airborne, but 24· ·then we didn't have any ability to do any more 25· ·research on it, really, since then.
0345 Page 284 ·1· · · · · · ·The University of Florida came out a week ·2· ·ago, I believe it was, with a paper that -- where ·3· ·they showed it was airborne as well.· So it's no ·4· ·longer droplet.· You have to know that it's airborne ·5· ·as well. ·6· · · · Q.· ·And that's what you're referring to about ·7· ·the filters within -- at least as far as you know, ·8· ·Orange County Public Schools doesn't have the proper ·9· ·filter to keep COVID-19 from traveling through their 10· ·HVAC system? 11· · · · A.· ·Correct.· That was what the head of the 12· ·custodian department disclosed Monday night at the 13· ·meeting. 14· · · · · · ·Also, if you think about it, if it weren't 15· ·airborne, we'd all be sitting in the same room 16· ·together right now, wouldn't we? 17· · · · Q.· ·Doctor, one last question. 18· · · · · · ·I think we've kind of covered it, but I'd 19· ·like you to just kind of reiterate.· And then I'm 20· ·going to move some stuff into evidence after you're 21· ·done talking. 22· · · · · · ·But generally, what are the risks if we do 23· ·go ahead and open schools by August 31st, or as far 24· ·as Orange County is concerned on Friday? 25· · · · A.· ·Numbers are going to increase.· You're
0346 Page 285 ·1· ·going to have kids get sick.· You're going to have ·2· ·teachers become sick.· You're going to have -- ·3· ·everyone in the school will have a close contact who ·4· ·becomes sick. ·5· · · · · · ·So not only will you have illness, but ·6· ·then in response to that, you'll also have ·7· ·complications, whether that's heart issues, dialysis ·8· ·issues, multitude of issues that you can have. ·9· ·Clotting issues, strokes.· And then you're going to 10· ·have the hospitals start to fill up.· And that's 11· ·when your elective surgeries get cut back.· That's 12· ·when your ICU beds get clogged up. 13· · · · · · ·We already don't have an appropriate ICU 14· ·bed number to be opening up.· I looked at it a 15· ·little while ago and right now, in Orange County -- 16· ·sorry about that.· In -- 17· · · · Q.· ·Doctor, are you pulling the numbers from 18· ·today about the ICU beds from -- 19· · · · A.· ·From AHCA.· From the AHCA one. 20· · · · Q.· ·Okay. 21· · · · A.· ·Because it's no longer being released 22· ·appropriately -- like, accurately. 23· · · · Q.· ·Got you. 24· · · · A.· ·However, Florida's doing better than the 25· ·nation.
0347 Page 286 ·1· · · · · · ·So in Orange County, the available ·2· ·pediatric ICU beds, we have 42 beds in Orange County ·3· ·that are available out of 112 beds.· So if you get ·4· ·42 kids who need to be in an ICU bed, you're great. ·5· ·What about that 43rd one?· We don't have it. ·6· · · · · · ·We know that one out of three kids ·7· ·admitted to the hospital, just like in the adult ·8· ·world, end up in the intensive care unit.· There are ·9· ·234 people in-house and hospitals in Orange County 10· ·with COVID.· There is only 81 adult ICU beds 11· ·available right now also in Orange County out of 12· ·291. 13· · · · · · ·That's not very many.· I want all my 14· ·teachers to have an ICU bed if they need one, but I 15· ·don't want them to go there anyway. 16· · · · Q.· ·Last question, Dr. Nielsen.· I thought -- 17· ·I probably said that about the last question, but 18· ·this truly is going to be my last question. 19· · · · · · ·Defense has painted a picture sometimes of 20· ·gloom and doom, and nobody wants to open schools. 21· · · · · · ·That's not your testimony here today, is 22· ·it? 23· · · · A.· ·Not at all.· I want kids in school.· But I 24· ·want them to be there and I don want them to have to 25· ·keep coming out.
0348 Page 287 ·1· · · · · · ·I don't want a kid to go for one day, get ·2· ·sent home for 14 days, go back for two days, home ·3· ·for 14 more days, when you could just go a little ·4· ·slower, be a little bit more diligent.· Be ready. ·5· ·Now, granted, you could have started getting ready a ·6· ·lot earlier than this, but -- we could have been ·7· ·getting ready, and that way, when kids go, they can ·8· ·stay. ·9· · · · · · ·It's not good for anyone's mental health. 10· ·That Yo-yo effect is what's going to cause more 11· ·issues with the way kids are feeling.· They're going 12· ·to be, hi, there's my teacher; no, it's not.· Hi, 13· ·there's my friend; no, it's not.· That Yo-yo effect 14· ·is worse than the existence right now, according to 15· ·my current teachers and my patients. 16· · · · · · ·MR. WIELAND:· Thank you, Doctor. 17· · · · · · ·Judge, we'd like to move some things into 18· · · · evidence based on her testimony and things that 19· · · · she's relied upon as an expert. 20· · · · · · ·Those items, Judge, would be Plaintiffs' 21· · · · Exhibit Nos. 8, 13, 27, 36, 49, 50, 51, 53, 54, 22· · · · 59.· In addition to those items, Judge, I 23· · · · believe Dr. Nielsen pulled some additional 24· · · · information that was not available before 25· · · · today, because it's based on today's stats, and
0349 Page 288 ·1· ·those would be the AHCA numbers that she ·2· ·referenced here at the end of her testimony, as ·3· ·well as, I believe what we refer to as the ·4· ·Department of Health's Daily COVID Report with ·5· ·the numbers that are provided. ·6· · · · Judge, those are the numbers that I ·7· ·believe Dr. Nielsen has relied upon in her ·8· ·testimony, in addition to her curriculum vitae, ·9· ·which was provided to defense counsel as 10· ·No. 49.· But every other item that I've 11· ·referenced, I believe, is something that 12· ·Dr. Nielsen relied upon or reviewed as a part 13· ·of her testimony as an expert here today. 14· · · · MR. WELLS:· Your Honor, I apologize, but 15· ·it went way too fast for me to get all the 16· ·numbers.· If you could -- 17· · · · MR. WIELAND:· I'd be happy to.· You want 18· ·to take them one at a time, Dave? 19· · · · MR. WELLS:· Yeah, thanks. 20· · · · MR. WIELAND:· Sure.· No. 8. 21· · · · MR. WELLS:· Okay. 22· · · · MR. WIELAND:· Which is the white paper 23· ·Dr. Nielsen referred to. 24· · · · MR. WELLS:· Yeah, I've got your list now 25· ·so I can read it.
0350 Page 289 ·1· · · · MR. WIELAND:· Okay.· Good.· No. 13. ·2· · · · MR. WELLS:· Okay. ·3· · · · MR. WIELAND:· No. 27; No. 36, which is ·4· ·actually y'all's -- one of your pieces of ·5· ·evidence as well. ·6· · · · No. 49. ·7· · · · MR. WELLS:· Okay.· Hang on. ·8· · · · MR. WIELAND:· You're fine.· No. 49, which ·9· ·is just her CV. 10· · · · MR. WELLS:· I got that.· Forty-nine. 11· · · · MR. WIELAND:· No. 50. 12· · · · MR. WELLS:· My list stops at 49; what's 13· ·50? 14· · · · MR. WIELAND:· Fifty is the Florida -- and, 15· ·Dr. Nielsen, you can help we with this -- it's 16· ·the Academy of Pediatrics for Florida.· What's 17· ·"FC" stand for? 18· · · · THE WITNESS:· The Florida chapter. 19· · · · MR. WIELAND:· Florida Chapter -- 20· · · · THE WITNESS:· Florida Chapter of the 21· ·American Academy of Pediatrics. 22· · · · MR. WELLS:· Okay. 23· · · · MR. WIELAND:· And that's the consideration 24· ·for school reopening. 25· · · · Fifty-one would also be another one that's
0351 Page 290 ·1· ·similar to that, which is the white paper that ·2· ·Dr. Nielsen referred to. ·3· · · · MR. WELLS:· Okay. ·4· · · · MR. WIELAND:· Fifty-three would be the ·5· ·article that she referenced about -- I guess ·6· ·technically it's a study that was referenced ·7· ·from China about the virus being airborne. ·8· ·It's obviously not a Chinese study, it's a CDC ·9· ·study.· I think that goes without saying. 10· · · · No. 54, which is an article titled, 11· ·"Preparing K through 12 administrators for a 12· ·safe return to school in fall."· And that's 13· ·from the CDC. 14· · · · And if one of my colleagues can help me 15· ·with No. 59, I have the old list, I don't have 16· ·59. 17· · · · MS. AGUILA:· That's also another CDC 18· ·article. 19· · · · MR. WIELAND:· Perfect. 20· · · · Dave, do you have any questions about any 21· ·of those? 22· · · · MR. WELLS:· No, I'm fine.· We don't have 23· ·any objection. 24· · · · THE COURT:· No objection, you say, 25· ·Mr. Wells?
0352 Page 291 ·1· · · · MR. WELLS:· Yes, Your Honor.· I'm sorry. ·2· · · · THE COURT:· Okay.· So Plaintiffs' 8, 13, ·3· ·27, 36, 49, 50, 51, 53, 54, and 59 are ·4· ·admitted. ·5· · · · (Thereupon, received in evidence as ·6· ·Plaintiff Exhibits 8, 13, 27, 36, 49, 50, 51, ·7· ·53, and 54.) ·8· · · · MR. WIELAND:· Dr. Nielsen, thank you. I ·9· ·think Mr. Wells may have some questions for 10· ·you. 11· · · · THE WITNESS:· Thank you. 12· · · · MR. WELLS:· Your Honor, can we take a 13· ·short break before we do her cross?· We've been 14· ·going -- 15· · · · THE COURT:· Let's take a five-minute break 16· ·and we'll start with the cross -- 17· · · · MR. WELLS:· Thank you, Your Honor. 18· · · · THE COURT:· -- of Dr. Nielsen.· Court will 19· ·be in recess for five minutes. 20· · · · (Proceedings continued in Volume 3.) 21 22 23 24 25
0353 Page 292 ·1· · · · · · · · · · COURT CERTIFICATE
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·4· ·STATE OF FLORIDA
·5· ·COUNTY OF LEON
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·7· · · · · · ·I, MARYKAY HORVATH, RPR CRR, FPR, certify
·8· · · · that I was authorized to and did
·9· · · · stenographically report the foregoing
10· · · · proceedings, and that the transcript is a true
11· · · · and complete record of my stenographic notes.
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13· · · · · · ·Dated this 27th day of August 2020.
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16· ·______· · · · · MARYKAY HORVATH, RPR, CRR, FPR 17
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· · · · · · · CASE NO.:· 2020 CA 1450
FLORIDA EDUCATION ASSOCIATION; STEFANIE BETH MILLER, LADARA ROYAL; MINDY FESTGE; VICTORIA DUBLINO-HENJES; and ANDRES HENJES,
· · · · · · · ·Plaintiffs, vs.
RON DESANTIS, in his official capacity as Governor of the State of Florida; RICHARD CORCORAN, in his official capacity as Florida Commissioner of Education; FLORIDA DEPARTMENT OF EDUCATION; and FLORIDA BOARD of EDUCATION,
· · · · · · · ·Defendants. ______/
· · · · · (Consolidated with:)
0390 Page 294 · · · · · · · ·CASE NO.:· 2020 CA 1467
MONIQUE BELLEFLEUR, individually and on behalf of D.B. Jr., M.B., and D.B. and KATHRYN HAMMOND, ASHLEY MONROE, and JAMES LIS, · · · · · · · ·Plaintiffs, vs. RON DESANTIS, Governor of Florida, in his official capacity as Chief Executive Officer of the State of Florida, ANDY TUCK, in his official capacity as the chair of the State Board of Education, STATE BOARD of EDUCATION, RICHARD CORCORAN, in his official capacity as Commissioner of the Florida Department of Education, FLORIDA DEPARTMENT OF EDUCATION, JACOB OLIVA, in his official capacity as Chancellor, Division of Public Schools, TERESA JACOBS, in her official capacity as the chair of the SCHOOL BOARD OF ORANGE COUNTY, BARBARA JENKINS, in her official capacity as the Superintendent of Orange County Public Schools, and ORANGE COUNTY PUBLIC SCHOOLS, · · · · · · · Defendants.
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· TRANSCRIPT OF WEB CONFERENCE HEARING PROCEEDINGS · · PLAINTIFFS' EXPEDITED MOTION FOR TEMPORARY · · · · · · · · · · ·INJUNCTION
· · · · · · ·VOLUME 3 (Pages 293 - 412)
· ·DATE TAKEN:· Wednesday, August 19th, 2020 · ·TIME:· · · · 2:40 p.m. to 4:40 p.m. · ·PLACE:· · · ·Leon County Courthouse · · · · · · · · 301 South Monroe Street · · · · · · · · Tallahassee, Florida 32301 · ·BEFORE:· · · Charles Dodson, Circuit Judge · · · · · · · · · · ·(via Zoom)
· · ·This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were stenographically reported via Zoom by:
· · · · · ·MaryKay Horvath, RPR, CRR, FPR · · · · · · Certified Realtime Reporter
Job No.: 151241
0391 Page 295 ·1· ·APPEARANCES: (all appearing via videoconference)
·2· ·On behalf of Plaintiffs Florida Education · · ·Association, Stefanie Beth Miller, Ladara Royal, ·3· ·Mindy Festge, Victoria Dublino-Henjes, and Andres · · ·Henjes: ·4 · · · · · MEYER, BROOKS, BLOHM & HEARN, P.A. ·5· · · · 131 North Gadsden Street · · · · · Post Office Box 1547 ·6· · · · Tallahassee, Florida 32301 · · · · · (850)878-5212 ·7· · · · BY:· RONALD G. MEYER, ESQ. · · · · · [email protected] ·8
·9· · · · COFFEY BURLINGTON, P.L. · · · · · 2601 South Bayshore Drive 10· · · · Penthouse · · · · · Miami, Florida 33133 11· · · · (305)858-2900 · · · · · BY:· KENDALL B. COFFEY, ESQ. 12· · · · [email protected] · · · · · · · ·JOSEFINA M. AGUILA, ESQ. 13· · · · [email protected] · · · · · · · ·SCOTT A. HIAASEN, ESQ. 14· · · · [email protected]
15· · · · PHILLIPS & RICHARD, P.A. · · · · · 9360 Southwest 72nd Street 16· · · · Suite 283 · · · · · Miami, Florida 33173 17· · · · (305)412-8322 · · · · · BY:· MARK H. RICHARD, ESQ. 18· · · · [email protected]
19· · · · FLORIDA EDUCATION ASSOCIATION · · · · · 213 South Adams Street 20· · · · Tallahassee, Florida 32301 · · · · · (850)201-3382 21· · · · BY:· KIMBERLY C. MENCHION, ESQ. · · · · · [email protected] 22
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·2· ·On behalf of Defendants:
·3· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 225 Water Street ·4· · · · Suite 1750 · · · · · Jacksonville, Florida 32202 ·5· · · · (904)354-1980 · · · · · BY:· DAVID M. WELLS, ESQ. ·6· · · · [email protected]
·7· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 200 South Orange Avenue ·8· · · · Suite 1400 · · · · · Florida Orlando, Florida 32801 ·9· · · · (407)648-5077 · · · · · BY:· NATHAN W. HILL, ESQ. 10· · · · [email protected]
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0393 Page 297 ·1· · · · · · · · · · · · I N D E X
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·7· ·ANNETTE NIELSEN, M.D., F.A.A.P.
·8· ·Cross· · · · · · · ·By Mr. Wells· · · · · · ·300 · · ·Redirect· · · · · · By Mr. Wieland· · · · · ·303 ·9· ·THOMAS BURKE, M.D.
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12· ·ANDRE ESCOBAR
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·4· · · · · · · · · · · · · · · · · · · · · · · ·Page · · ·Plaintiff Exhibit 1· · · · · · · · · · · · · 390 ·5· ·Plaintiff Exhibit 2· · · · · · · · · · · · · 390 · · ·Plaintiff Exhibit 3· · · · · · · · · · · · · 388 ·6· ·Plaintiff Exhibit 4· · · · · · · · · · · · · 389 · · ·Plaintiff Exhibit 6· · · · · · · · · · · · · 391 ·7· ·Plaintiff Exhibit 7· · · · · · · · · · · · · 389 · · ·Plaintiff Exhibit 9· · · · · · · · · · · · · 391 ·8· ·Plaintiff Exhibit 10· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 14· · · · · · · · · · · · ·395 ·9· ·Plaintiff Exhibit 16· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 17· · · · · · · · · · · · ·391 10· ·Plaintiff Exhibit 18· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 19· · · · · · · · · · · · ·394 11· ·Plaintiff Exhibit 20· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 21· · · · · · · · · · · · ·393 12· ·Plaintiff Exhibit 22· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 23· · · · · · · · · · · · ·394 13· ·Plaintiff Exhibit 25· · · · · · · · · · · · ·393 · · ·Plaintiff Exhibit 26· · · · · · · · · · · · ·395 14· ·Plaintiff Exhibit 28· · · · · · · · · · · · ·395 · · ·Plaintiff Exhibit 29· · · · · · · · · · · · ·395 15· ·Plaintiff Exhibit 30· · · · · · · · · · · · ·395 · · ·Plaintiff Exhibit 31· · · · · · · · · · · · ·395 16· ·Plaintiff Exhibit 32· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 33· · · · · · · · · · · · ·394 17· ·Plaintiff Exhibit 34· · · · · · · · · · · · ·396 · · ·Plaintiff Exhibit 35· · · · · · · · · · · · ·364 18· ·Plaintiff Exhibit 46· · · · · · · · · · · · ·349 · · ·Plaintiff Exhibit 48· · · · · · · · · · · · ·392 19· ·Plaintiff Exhibit 57· · · · · · · · · · · · ·390 · · ·Plaintiff Exhibit 60· · · · · · · · · · · · ·394 20· ·Plaintiff Exhibit 61· · · · · · · · · · · · ·348 · · ·Plaintiff Exhibit 63· · · · · · · · · · · · ·397 21
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·4· · · · · · · · · · · · · · · · · · · · · · · ·Page · · ·Plaintiff Exhibit 1· · · · · · · · · · · · · 391 ·5· ·Plaintiff Exhibit 2· · · · · · · · · · · · · 391 · · ·Plaintiff Exhibit 3· · · · · · · · · · · · · 388 ·6· ·Plaintiff Exhibit 4· · · · · · · · · · · · · 389 · · ·Plaintiff Exhibit 6· · · · · · · · · · · · · 391 ·7· ·Plaintiff Exhibit 7· · · · · · · · · · · · · 389 · · ·Plaintiff Exhibit 10· · · · · · · · · · · · ·394 ·8· ·Plaintiff Exhibit 13· · · · · · · · · · · · ·390 · · ·Plaintiff Exhibit 14· · · · · · · · · · · · ·395 ·9· ·Plaintiff Exhibit 16· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 18· · · · · · · · · · · · ·394 10· ·Plaintiff Exhibit 19· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 20· · · · · · · · · · · · ·394 11· ·Plaintiff Exhibit 22· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 23· · · · · · · · · · · · ·394 12· ·Plaintiff Exhibit 26· · · · · · · · · · · · ·396 · · ·Plaintiff Exhibit 28· · · · · · · · · · · · ·396 13· ·Plaintiff Exhibit 29· · · · · · · · · · · · ·396 · · ·Plaintiff Exhibit 30· · · · · · · · · · · · ·396 14· ·Plaintiff Exhibit 31· · · · · · · · · · · · ·396 · · ·Plaintiff Exhibit 32· · · · · · · · · · · · ·394 15· ·Plaintiff Exhibit 33· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 34· · · · · · · · · · · · ·396 16· ·Plaintiff Exhibit 35· · · · · · · · · · · · ·382 · · ·Plaintiff Exhibit 46· · · · · · · · · · · · ·350 17· ·Plaintiff Exhibit 47· · · · · · · · · · · · ·350 · · ·Plaintiff Exhibit 57· · · · · · · · · · · · ·390 18· ·Plaintiff Exhibit 60· · · · · · · · · · · · ·394 · · ·Plaintiff Exhibit 61· · · · · · · · · · · · ·350 19· ·Plaintiff Exhibit 62· · · · · · · · · · · · ·397 · · ·Plaintiff Exhibit 63· · · · · · · · · · · · ·397 20
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0396 Page 300 ·1· ·The following proceedings via Zoom continued at 2:40 ·2· ·p.m.: ·3· · · · · · ·THE COURT:· Okay.· Mr. Wells, you may ·4· · · · start with the cross-examination of ·5· · · · Dr. Nielsen. ·6· · · · · · ·MR. WELLS:· Thank you, Your Honor.· And ·7· · · · I'll be brief. ·8· · · · · · · · · · CROSS EXAMINATION ·9· · ·BY MR. WELLS 10· · · · Q.· ·Dr. Nielsen, you have an active pediatric 11· ·practice, don't you? 12· · · · A.· ·Very. 13· · · · Q.· ·You've gone from zero to 6,000 patients, 14· ·that's amazing. 15· · · · · · ·As I read your resume, your fellowship was 16· ·in hematology and oncology? 17· · · · A.· ·Yes.· Pediatric cancer and blood 18· ·disorders. 19· · · · Q.· ·Right. 20· · · · · · ·And that was after a medical fellowship 21· ·that was after a residency at Arnold Palmer Hospital 22· ·in pediatrics? 23· · · · A.· ·Correct. 24· · · · Q.· ·You didn't do a residency in infectious 25· ·disease or epidemiology, did you?
0397 Page 301 ·1· · · · A.· ·Part of pediatric hematology/oncology is ·2· ·unfortunately infectious disease, because if a kid ·3· ·doesn't get another diagnosis, they end up with us, ·4· ·and we often end up finding the infectious disease. ·5· · · · · · ·It was not a straight-up fellowship, no. ·6· · · · Q.· ·Well, and let's just be clear.· Your ·7· ·residency was in pediatrics, right? ·8· · · · A.· ·Correct, general pediatrics, which ·9· ·includes infectious disease, as well as 10· ·epidemiology. 11· · · · Q.· ·And there are people who take residencies 12· ·in epidemiology? 13· · · · A.· ·Not in residencies.· They take fellowships 14· ·and they take master's degrees.· But it's not part 15· ·of a medical school degree. 16· · · · Q.· ·Fair enough. 17· · · · · · ·So -- but you don't have a fellowship in 18· ·either infectious disease or in epidemiology? 19· · · · A.· ·Correct.· Not a fellowship. 20· · · · Q.· ·Okay.· And you talked about research that 21· ·you have done with respect to coronavirus.· That's 22· ·something you do as being a pediatrician to keep up 23· ·with what's going on and what's affecting children? 24· · · · A.· ·Correct.· A lifelong learner in medicine 25· ·is important.
0398 Page 302 ·1· · · · Q.· ·Understand. ·2· · · · · · ·But you're not a researcher in the sense ·3· ·of someone who has done research and published it to ·4· ·be reviewed by other doctors or other research ·5· ·professionals? ·6· · · · A.· ·I actually am. ·7· · · · · · ·So back before I went to medical school, I ·8· ·did asthma drug studies as part of the AstraZeneca ·9· ·and multiple asthma drug studies, so I've been a 10· ·medical researcher as well. 11· · · · Q.· ·Okay.· Well, let me just be more focused. 12· · · · · · ·You haven't done any type of published 13· ·research on the concept of coronavirus and how we 14· ·should address it? 15· · · · A.· ·Correct. 16· · · · Q.· ·Nothing's been published, nothing's been 17· ·reviewed, on your opinions on how to address it? 18· · · · A.· ·Correct. 19· · · · Q.· ·Your views are based on your experience as 20· ·a pediatrician and what you've read? 21· · · · A.· ·My views are based on fact from the 22· ·American Academy of Pediatrics, the CDC, and other 23· ·services like that, yes. 24· · · · Q.· ·That you've read; you've sat down and 25· ·read --
0399 Page 303 ·1· · · · A.· ·I've read, I've studied, and I've talked ·2· ·to other epidemiologists and asked questions to, ·3· ·correct. ·4· · · · Q.· ·Fair enough. ·5· · · · · · ·And so in terms of anybody being able to ·6· ·evaluate your opinions, there's been nothing that's ·7· ·been published out there, nothing where any other ·8· ·researchers or doctors have commented on it? ·9· · · · A.· ·I think by the pure fact of being invited 10· ·to the Medical Advisory Committee, I'm a pretty 11· ·well-respected pediatrician in town. 12· · · · · · ·MR. WELLS:· Okay.· Thank you.· We don't 13· · · · have any other questions. 14· · · · · · ·THE COURT:· Any redirect? 15· · · · · · ·MR. WIELAND:· Just quickly, Your Honor. 16· · · · · · · · · ·REDIRECT EXAMINATION 17· · ·BY MR. WIELAND 18· · · · Q.· ·Dr. Nielsen, coronavirus started when? 19· · · · A.· ·We had 38 cases in Orange County on March 20· ·the 13th. 21· · · · Q.· ·Other than the CDC and maybe a couple 22· ·other larger agencies, have you seen much in the way 23· ·of published studies as far as COVID-19 is 24· ·concerned? 25· · · · A.· ·There is nothing.
0400 Page 304 ·1· · · · · · ·In fact, my office is in the current ·2· ·process of filing a research paper on children ·3· ·having an increased risk of Type 1 Diabetes with ·4· ·COVID. ·5· · · · · · ·We've had three type -- new Type 1 ·6· ·diabetic patients in the last three months.· So it's ·7· ·been shown at least -- at least we perceive it's ·8· ·been shown that Type 1 Diabetes is more prevalent to ·9· ·become a new onset illness in the light of the COVID 10· ·pandemic. 11· · · · Q.· ·And let's just sum up your testimony, 12· ·generally, Dr. Nielsen. 13· · · · · · ·You're testifying from the perspective -- 14· · · · · · ·MR. WELLS:· Your Honor, this is beyond 15· · · · redirect here on my limited questioning to sum 16· · · · up her testimony. 17· · · · · · ·THE COURT:· Sustained. 18· · · · · · ·MR. WIELAND:· Your Honor, may I be heard 19· · · · just briefly? 20· · · · · · ·THE COURT:· Sure. 21· · · · · · ·MR. WIELAND:· The only question I was 22· · · · going to ask her, Your Honor, was just simply 23· · · · based on Mr. Wells's assertion that 24· · · · essentially, she's not an expert in her field. 25· · · · I was just going to simply ask her that her
0401 Page 305 ·1· · · · testimony was simply based upon her experience ·2· · · · as a pediatric doctor, and her research and ·3· · · · review. ·4· · · · · · ·THE COURT:· I'll allow you to ask -- I'll ·5· · · · allow you to ask that one question. ·6· · ·BY MR. WIELAND ·7· · · · Q.· ·Dr. Nielsen, do you need me to repeat that ·8· ·question, or you got it? ·9· · · · A.· ·No, I would agree with you.· That's 10· ·exactly correct. 11· · · · · · ·MR. WIELAND:· I don't have any further 12· · · · questions. 13· · · · · · ·THE COURT:· Okay.· May Dr. Nielsen be 14· · · · excused? 15· · · · · · ·MR. WELLS:· Yes, Your Honor. 16· · · · · · ·MR. WIELAND:· As far as the plaintiffs are 17· · · · concerned, Dr. Nielsen, thank you for your 18· · · · time. 19· · · · · · ·Thank you, Judge. 20· · · · · · ·THE COURT:· Dr. Nielsen, you are free to 21· · · · leave the meeting.· Thank you very much. 22· · · · · · ·Call your next -- 23· · · · · · ·THE WITNESS:· Thank you so much, Your 24· · · · Honor.· Have a great day. 25· · · · · · ·THE COURT:· Thanks, you too.
0402 Page 306 ·1· · · · · · ·Okay.· I'll let Dr. Burke in. ·2· · · · · · ·Dr. Burke, are you there?· There you are. ·3· · · · Dr. Burke, if you would unmute yourself there, ·4· · · · and raise your right hand, please. ·5· ·Thereupon: ·6· · · · · · · · · · THOMAS BURKE, M.D. ·7· ·having been sworn by the Court testified as follows: ·8· · · · · · ·THE WITNESS:· I do, Your Honor. ·9· · · · · · ·THE COURT:· Thank you, sir.· You can put 10· · · · your hand down. 11· · · · · · ·MR. STUART:· May I proceed, Your Honor? 12· · · · · · ·THE COURT:· Yes, sir. 13· · · · · · · · · · DIRECT EXAMINATION 14· · ·BY MR. STUART 15· · · · Q.· ·Dr. Burke, it's finally nice to see your 16· ·face.· We've been talking on the phone, so it's good 17· ·to see you. 18· · · · A.· ·Yes, sir. 19· · · · Q.· ·A few things, sir.· First, I need you -- 20· ·there's a stenographer recording what's going on, so 21· ·I need you to say and spell your first and last 22· ·name, please. 23· · · · A.· ·Okay.· I'm Thomas Burke, and that's 24· ·T-H-O-M-A-S and B-U-R-K-E. 25· · · · Q.· ·Thank you, Dr. Burke.· And we're going to
0403 Page 307 ·1· ·have to go through some of your background before we ·2· ·get to testimony, okay? ·3· · · · · · ·The first is tell us a little bit about ·4· ·your professional degree, starting with undergrad, ·5· ·if you could. ·6· · · · A.· ·Okay.· I have a degree in mathematics and ·7· ·a degree in neuroscience from University of ·8· ·Massachusetts in Amherst, Massachusetts, and then a ·9· ·doctorate in medicine from Albany Medical College. 10· ·And then I thereafter was at a joint program at 11· ·Madigan Army Medical Center, as well as at the 12· ·University of Washington in a four-year program in 13· ·emergency medicine. 14· · · · Q.· ·And then after your residency, my 15· ·understanding is you ended up serving our country in 16· ·a capacity with the military; is that correct? 17· · · · A.· ·Yes.· I was in the United States Army for 18· ·seven and a half years. 19· · · · Q.· ·And were you on active duty at any point 20· ·in time, or were you in reserve? 21· · · · A.· ·I was on active duty the entire time. 22· · · · Q.· ·And what was your capacity while you were 23· ·in active duty as a doctor? 24· · · · A.· ·I was a faculty emergency physician at 25· ·Madigan Army Medical Center.· And again, that was a
0404 Page 308 ·1· ·joint program at that time with the University of ·2· ·Washington.· But then I additionally was deployed to ·3· ·a variety of military engagements. ·4· · · · Q.· ·And then at some point in time as well, ·5· ·you were working with the FBI, the Federal Bureau of ·6· ·Investigation, as well, here back stateside; is that ·7· ·correct? ·8· · · · A.· ·Yes, I was the doctor at -- for those that ·9· ·are my generation or older, I was the doctor for the 10· ·FBI hostage rescue team in Waco, Texas, and then 11· ·also Ruby Ridge, Idaho. 12· · · · Q.· ·And you also were in Libya back in 13· ·September of 2012, is that correct, when there was 14· ·the attack on our embassy there? 15· · · · A.· ·Yes, I was. 16· · · · Q.· ·All right.· Well, thank you for your 17· ·service.· I've communicated that to you, but I want 18· ·to do that again. 19· · · · · · ·After you were done serving our country in 20· ·those capacities, did you end up moving to a 21· ·different station in your life where you are 22· ·currently? 23· · · · A.· ·Yes, I -- I worked in community medicine 24· ·for a number of years.· And in 2004, I was invited 25· ·to become faculty at Harvard University, and I've
0405 Page 309 ·1· ·been a practicing physician at the Brigham and ·2· ·Women's Hospital, Boston Children's Hospital, and ·3· ·the Massachusetts General Hospital over that time, ·4· ·since 2004. ·5· · · · Q.· ·And so, you know, your curriculum vitae, ·6· ·it's very impressive.· It's almost like a book, ·7· ·Dr. Burke, so there's so many things to go into. ·8· ·But, you know, in relation to the study of pandemics ·9· ·and infectious diseases, would you mind reviewing 10· ·some of your work you've done in that capacity? 11· · · · A.· ·I think I would start by saying that my 12· ·nonclinical work is -- I'm a senior faculty at the 13· ·Harvard School of Public Health in the Department 14· ·of Global Health and Population, and also at Harvard 15· ·Medical School. 16· · · · · · ·And I have been -- I was the founding 17· ·director of the Massachusetts General Hospital 18· ·Center for Global Health, and then I'm currently the 19· ·director of the Global Health Innovation Lab at the 20· ·Massachusetts General Hospital. 21· · · · · · ·And all of that work, and actually, you 22· ·know, really a considerable amount of my work in the 23· ·last few decades, has been focused on population 24· ·health, and my focus is on women and children's 25· ·health on a variety of different -- in a variety of
0406 Page 310 ·1· ·different areas, but essentially on survival and ·2· ·mortality. ·3· · · · · · ·When it comes to activities currently that ·4· ·I'm involved in, from the COVID-19 perspective, I've ·5· ·been asked to provide consulting services, and none ·6· ·of these I get paid for.· This is part of, you know, ·7· ·what I do. ·8· · · · · · ·And I've been a consultant to the Bahamas ·9· ·government, to Barbados, St. Lucia, to the Kenya 10· ·Ministry of Health, the Tanzania Ministry of Health, 11· ·and the India Ministry of Health, on COVID-19 12· ·pandemic, and I've chaired several webinars, one, 13· ·two, three -- five webinars, to various ministries 14· ·of that invited, you know, their nation's doctors to 15· ·be participants and listen in on providing guidance 16· ·and advice. 17· · · · · · ·I also am a consultant for some very 18· ·high-end travel by private jet companies that 19· ·actually brings in revenue that goes to poor people. 20· ·I never touch it, so they're a Robin Hood approach. 21· ·But on how to address their own businesses during 22· ·COVID-19, and how to develop green-light protocols 23· ·ultimately to reopen their businesses. 24· · · · Q.· ·And in all this work, you were also, my 25· ·understanding is, on a committee at Harvard
0407 Page 311 ·1· ·University in regards to domestic violence and ·2· ·COVID-19 as well? ·3· · · · A.· ·Yes, I'm a -- I'm a board member of a ·4· ·COVID-19 task force on domestic violence.· And ·5· ·similarly, one for the International Federation of ·6· ·OB/GYN, I was just asked to be co-chair of a task ·7· ·force on COVID-19. ·8· · · · Q.· ·And so is it fair to say -- and, you know, ·9· ·this is again for the record.· I'm not trying to 10· ·question your credentials. 11· · · · · · ·But is part of your position or positions, 12· ·whether it's volunteer or working officially with 13· ·Harvard and Massachusetts General Hospital, that you 14· ·keep up to date with current research that's ongoing 15· ·with the COVID-19 pandemic? 16· · · · A.· ·Absolutely.· That's true. 17· · · · Q.· ·And it would be fair to say that since the 18· ·pandemic became known to Americans, whether it's 19· ·October or January, or anywhere in between, in terms 20· ·of which portion of the population became aware of 21· ·it, would it be fair to say that this is an evolving 22· ·type situation, where we're learning more about the 23· ·virus on a daily basis? 24· · · · A.· ·Absolutely.· In fact, one of the joys of 25· ·being a faculty at Harvard Medical School, we get
0408 Page 312 ·1· ·updates on the COVID-19 research a few times every ·2· ·single day.· I mean, literally five to seven days a ·3· ·week, we'll get updates on data that's coming in, ·4· ·new understandings as it's evolving. ·5· · · · Q.· ·So to be clear, you're -- even though ·6· ·you're not here in Florida, you're aware of the ·7· ·pandemic, and its effect, the COVID-19 pandemic ·8· ·specifically here in Florida and what's been going ·9· ·on in Florida? 10· · · · A.· ·I certainly am, and I have three 11· ·grandchildren in Florida, so I'm especially paying 12· ·attention to Florida. 13· · · · Q.· ·I understand that. 14· · · · · · ·And going back, you're paying attention to 15· ·Florida, you've been looking at daily statistics in 16· ·regards to infection rates and what's been going 17· ·on -- 18· · · · A.· ·Yes. 19· · · · Q.· ·-- is that fair to say? 20· · · · A.· ·Yes, that's true. 21· · · · Q.· ·All right.· So starting off, you know, as 22· ·part of your studies -- before getting into what's 23· ·going on in Florida, have there been other countries 24· ·already that have begun to look at opening schools, 25· ·meaning brick-and-mortar physical schools?
0409 Page 313 ·1· · · · A.· ·It's a great question, actually. ·2· · · · · · ·So I think, you know, something that we ·3· ·all could certainly learn from is looking across the ·4· ·ocean at other countries.· And how they've ·5· ·approached the pandemic is there are a number of ·6· ·different experiments that have been tried as to how ·7· ·to address the pandemic and how to reopen schools. ·8· · · · · · ·And we see Austria, Sweden, the ·9· ·Netherlands, you know, Germany, have been able to 10· ·successfully reopen schools; whereas, in Israel, 11· ·they had significant trouble.· And what do we learn 12· ·from that? 13· · · · · · ·We learn that in countries where they 14· ·drove down the community spread, and then had 15· ·mitigation factors in place in schools, which in 16· ·some countries included bubbles, essentially 17· ·cohorting students, or having alternate days, and 18· ·ensuring that the students didn't aggregate, and 19· ·that they had cleaning materials available and PPE 20· ·available certainly for -- 21· · · · Q.· ·And, Dr. Burke, not to interrupt you, but 22· ·you obviously are familiar with some of these terms, 23· ·I want to make sure we are, because I'm not on all 24· ·them. 25· · · · · · ·When you're looking at a study like we're
0410 Page 314 ·1· ·talking about, you mention these different ·2· ·standards, and so what I guess I'm looking for is ·3· ·that specifically when you're in your line of work, ·4· ·when countries or communities will participate in ·5· ·pandemics, is it traditional that those practices ·6· ·are then reported to some type of database or ·7· ·something that's shared with professors and doctors ·8· ·like you around the world? ·9· · · · A.· ·Absolutely.· There's actually quite a bit 10· ·of literature that's -- I mean, there's -- many 11· ·journals have in fact, you know, turned their entire 12· ·attention to COVID-19. 13· · · · · · ·So -- so there is peer-reviewed literature 14· ·emerging, you know, quite frequently, and, you know, 15· ·in pediatrics, you know, in MMWR and the CDC weekly 16· ·reports, we are seeing, you know, data emerging that 17· ·helps us, helps us make decisions. 18· · · · · · ·And the data that is verified and 19· ·validated from Europe is particularly helpful 20· ·because their school calendars are different than 21· ·ours.· So they've had an experiment for us to -- you 22· ·know, many of the countries have had an experiment 23· ·for us to learn from. 24· · · · Q.· ·So going back to that -- and forgive me 25· ·for going out of order, but that context you
0411 Page 315 ·1· ·provided is helpful. ·2· · · · · · ·Going back to the two examples you've ·3· ·cited, before we get to what's happened in Asia, but ·4· ·specifically in the Netherlands and Germany versus ·5· ·what happened in Israel, tell us from your medical ·6· ·profession what's worked and what hasn't worked in ·7· ·opening up specifically in-person schools. ·8· · · · A.· ·Right. ·9· · · · · · ·First of all, in showing that community 10· ·spread is down, at least two weeks of a downward 11· ·trend, and then certainly less than 5 percent 12· ·positive rate, that's -- that's clear.· That's 13· ·become fairly standard. 14· · · · · · ·And then secondly, those countries that 15· ·have been successful have had significant additional 16· ·investments.· One, just moving to a virtual training 17· ·platform for teachers and for a school is not 18· ·trivial.· To have quality education across -- across 19· ·virtual is expensive. 20· · · · · · ·But then, you know, moving that then back 21· ·to in-person requires, you know, investing in the 22· ·school in terms of ensuring that hand sanitizer's 23· ·available, ensuring that there is protection, you 24· ·know, as students between classes, ensuring that 25· ·classrooms are safe and cleaned properly.
0412 Page 316 ·1· · · · · · ·And then you have to have contact tracing. ·2· ·And you have to be able to -- otherwise, the schools ·3· ·are going to shut down very quickly. ·4· · · · · · ·And that's what happened in -- in Israel. ·5· ·There wasn't contact tracing in place, and they also ·6· ·made -- they did -- they lifted children and -- and ·7· ·the staff needing to wear masks.· And as soon as ·8· ·that happened, the rates exploded and the schools ·9· ·had to shut down. 10· · · · Q.· ·So there's a couple things there you said 11· ·I want to focus in on. 12· · · · · · ·When you mean -- when you say "community 13· ·spread," what exactly do you mean by that term? 14· · · · A.· ·Yeah. 15· · · · · · ·Meaning that the disease prevalence, in 16· ·other words, the presence of the disease within the 17· ·community, is being spread from person to person in 18· ·such a rate that the -- that the disease is actually 19· ·expanding.· We need the disease to not expand, and 20· ·we need to actually get it to shrink. 21· · · · · · ·And so once it's spreading within the 22· ·community, we have to put -- we really have to be 23· ·stringent in mitigation efforts in order to get it 24· ·under control. 25· · · · Q.· ·So before asking you about any examples
0413 Page 317 ·1· ·you have from Asia, from what you and I have talked ·2· ·about, and some of the literature that's already ·3· ·been introduced into evidence, does there have to be ·4· ·a plan before you can start talking about, you know, ·5· ·the conditions of the community, and also, you know, ·6· ·the mitigation effects? ·7· · · · · · ·I mean, is that the first step?· How does ·8· ·that work if in-school is to start? ·9· · · · A.· ·Yeah.· Well, certainly, again, you know, 10· ·teachers, staff at school, do what they do.· They're 11· ·committed, you know, but they're not public health 12· ·officials, they're not doctors, they're not 13· ·epidemiologists. 14· · · · · · ·They need help.· We need to work together, 15· ·put our heads all together.· So there needs to be an 16· ·overarching guidance within certainly the 17· ·flexibility -- with the flexibility for local 18· ·determination based on, you know, the assets the 19· ·local community has in place, and the community 20· ·spread in a particular community, and the -- you 21· ·know, the ability for a school to provide mitigation 22· ·effects, including contact tracing. 23· · · · Q.· ·So before we talk about Florida, are there 24· ·any other lessons that you have learned in terms of 25· ·your perspective of how COVID-19 affects children
0414 Page 318 ·1· ·and teachers and learning of in-person, from Asia? ·2· · · · A.· ·From Asia? ·3· · · · Q.· ·Specifically South Korea. ·4· · · · A.· ·South Korea. ·5· · · · · · ·Well, I mean, they've -- there's more ·6· ·than -- actually since the study came out from ·7· ·South Korea, there's even more evidence that -- that ·8· ·actually children, particularly above age 10, have ·9· ·higher concentrations of virus than do adults, it 10· ·appears.· And this is hot off the press.· It's 11· ·actually in JAMA Pediatrics, Emerging Infectious 12· ·Diseases, and in MMWR, just in the last few weeks. 13· · · · · · ·And the children actually can and do 14· ·spread the disease, and indeed, children -- we still 15· ·don't understand very well -- have a higher 16· ·resilience, but they can be the vectors, and are the 17· ·vectors.· And we've seen that in -- and there was a 18· ·study published looking at camps, in Florida, in 19· ·fact, as well as other settings of daycare, where 20· ·children are able to rapidly be -- you know, convey 21· ·and spread the disease. 22· · · · Q.· ·So if a child gets COVID-19, meaning a 23· ·person under 18 years of age, is it possible that 24· ·even if they don't die, they can have long-term 25· ·effects, meaning any issues with any of their major
0415 Page 319 ·1· ·internal organs, or neurological, or anything of ·2· ·that nature? ·3· · · · A.· ·I think that's an extremely important ·4· ·question, issue, for children, and all of us.· All ·5· ·of us because, you know, currently, those that are ·6· ·watching, which I think are most of us in this ·7· ·country now, we see -- we see positives that are ·8· ·confirmed, and we see mortality rates.· And then we ·9· ·see some prevalence based on those.· What we're not 10· ·seeing is the true injury that is being caused to 11· ·the American population. 12· · · · · · ·For everyone that dies, there are many -- 13· ·and we don't know the answer yet, but I will tell 14· ·you from -- from population-based research that I 15· ·do, these numbers are usually between 10 and 20 16· ·times. 17· · · · · · ·When a mother doesn't die from a 18· ·particular disease, which is a lot of my research, 19· ·it's usually 20 times that number don't die but 20· ·become injured.· Children with pneumonia -- which 21· ·this now gets very close to -- children with 22· ·pneumonia worldwide, many, many die.· Those that 23· ·don't die, there are ten times that number that are 24· ·permanently injured. 25· · · · · · ·So when we look at what's happening to our
0416 Page 320 ·1· ·children in the United States, we have to be mindful ·2· ·that there are children -- I've had a child that ·3· ·is -- didn't die, thankfully, ten months old, but ·4· ·was critically ill, heart failure.· That little girl ·5· ·is going to be in trouble for the rest of her life. ·6· · · · · · ·And those are important numbers for us to ·7· ·pay attention to, but they're not being -- they're ·8· ·not being shared, you know, publicly. ·9· · · · Q.· ·And talking about numbers, you mentioned 10· ·before the positivity rate for a population. 11· · · · · · ·It's been introduced into evidence 12· ·already, but do you agree where the CDC -- the 13· ·American CDC, I should be specific, and their 14· ·5 percent positivity rate as the -- that's the gold 15· ·standard, the rate of which it needs to be below 16· ·before we start opening up things in person? 17· · · · A.· ·Absolutely.· And that's -- that's a 18· ·minimum standard. 19· · · · · · ·I mean, we -- the Europeans have driven 20· ·well below that and been successful in opening 21· ·schools.· And so we definitely need to get to that 22· ·point before we open schools.· But certainly, our 23· ·targets are even better than that. 24· · · · Q.· ·And coming back now to Florida, and 25· ·talking about what this suit's about, which is
0417 Page 321 ·1· ·whether or not in-person schools -- or in-person ·2· ·teaching in brick-and-mortar schools should open, ·3· ·and how that should happen, we've had examples -- ·4· ·you were talking about different models. ·5· · · · · · ·There have been professional sports, ·6· ·specifically in central Florida, that have worked. ·7· ·National Basketball Association's doing that right ·8· ·now.· So how is it possible, from your perspective, ·9· ·that the NBA can do it, the National Basketball 10· ·Association, meaning having a large group of people 11· ·together and having a relatively -- I think it's 12· ·less than 1 percent rate of positive infections, how 13· ·can they do it, but not schools do it? 14· · · · A.· ·Yeah.· That's a really great question, and 15· ·there's a whole ethical principle in there that I 16· ·find extremely troubling. 17· · · · · · ·So professional sports in general -- I 18· ·just want to make a statement here. 19· · · · · · ·Professional sports in general, we are all 20· ·so excited that they're beginning to provide us 21· ·entertainment.· But look at -- players are allowed 22· ·to opt out.· And why are they allowed to opt out? 23· · · · · · ·And we all respect it because they might 24· ·live at home with an elderly family member or 25· ·someone who's vulnerable.· And yet they're opting
0418 Page 322 ·1· ·out and not playing because they know they would be ·2· ·at risk.· However, what kind of risk are they at? ·3· · · · · · ·They get tested almost daily, if not ·4· ·daily.· They -- the NBA and NHL are in bubbles.· And ·5· ·the NBA is right there in Orlando, of course.· And ·6· ·so a tremendous amount of work for them to feel safe ·7· ·to be able to do what they do, to play a sport.· For ·8· ·us all to believe that they are safe, there need to ·9· ·be mitigation efforts in place. 10· · · · · · ·Their population and community is not 11· ·5 percent, it's well below 5 percent, if not zero, 12· ·for them to feel safe.· And they are not allowed 13· ·outside of that bubble.· They have every mitigation 14· ·effort in play that -- that we all would love to see 15· ·our children have access to as well. 16· · · · · · ·So what we say as a standard as necessary 17· ·to keep the families of professional athletes 18· ·healthy, we don't come anywhere close to for our 19· ·children. 20· · · · Q.· ·And what about the teachers as well, at 21· ·schools?· I mean, they face the same type of issue 22· ·as well as the children? 23· · · · A.· ·Absolutely.· Absolutely.· Teachers are 24· ·absolutely being placed at risk.· Yes. 25· · · · Q.· ·So going back now specifically to Florida
0419 Page 323 ·1· ·and what this case is about, about opening ·2· ·brick-and-mortar schools, you know, is there any ·3· ·situation -- let me put it this way for you as the ·4· ·expert, because clearly your credentials speak for ·5· ·themselves. ·6· · · · · · ·If there are 60 -- are you aware that ·7· ·there are 67 counties in the state of Florida; are ·8· ·you aware of that? ·9· · · · A.· ·I am. 10· · · · Q.· ·And you mentioned before, if any of those 11· ·counties have a 5 percent or higher infection rate 12· ·of COVID-19, is there any situation that you can 13· ·find or that you believe that would be permissible 14· ·to open up brick-and-mortar schools here? 15· · · · A.· ·No, we cannot open brick-and-mortar 16· ·schools, in-person teaching, with -- with a 17· ·community positive rate that's over 5 percent. 18· · · · Q.· ·And why is that? 19· · · · A.· ·Because the risk for rapid expansion, for 20· ·rapid surge of disease that will harm the 21· ·population.· As well as overwhelm the health system, 22· ·you know, gets magnified immensely. 23· · · · Q.· ·And so -- and let's presume, though, 24· ·that -- well, I just want to be clear. 25· · · · · · ·So your testimony is that there is no plan
0420 Page 324 ·1· ·or no situation that you would deem safe for the ·2· ·students, teachers, or public, if the infection rate ·3· ·is 5 percent or higher? ·4· · · · A.· ·Absolutely. ·5· · · · Q.· ·All right.· If the infection rate is lower ·6· ·than 5 percent, meaning we have a condition that you ·7· ·find there may be some type of plan or green-light ·8· ·condition that can be permitted, if you were to ·9· ·bring children back into a classroom, what are some 10· ·of the things that would be necessary, based upon 11· ·your studies and your entire life's work, that would 12· ·allow there to be minimized or mitigated 13· ·transmission of the virus, Doctor? 14· · · · A.· ·Yeah.· So we'd need to have a plan.· We 15· ·need to have a plan in place for what happens when 16· ·someone is tested and is positive. 17· · · · · · ·How do we actually behave in order to keep 18· ·the children safe?· Because just because it's below 19· ·5 percent, if it's 4 percent, that still means that 20· ·there is COVID virus out there. 21· · · · · · ·And we want to continue to stay below 22· ·5 percent, and drive below 5 percent.· So we need to 23· ·have available -- there needs to be mandatory mask 24· ·wearing.· Not -- not conditional, but mandatory mask 25· ·wearing above the age of 2.· There certainly needs
0421 Page 325 ·1· ·to be the availability to have -- you know, children ·2· ·need to be mentored in washing their hands ·3· ·continually, keeping their masks on, and being able ·4· ·to stay within either aggregated small groups that ·5· ·they're committed to, or actually be spaced at all ·6· ·times. ·7· · · · · · ·There needs to be cleaning protocols for ·8· ·institutions, and the air quality needs to be ·9· ·ensured that it's -- it's safe and filtered. 10· · · · · · ·So there's a lot that needs to be done in 11· ·order to maintain and ensure that there is -- that 12· ·we have safety. 13· · · · · · ·Then there needs to be contact tracing. 14· ·Otherwise, the schools would rapidly shut down, even 15· ·if below 5 percent, because there will be chaos. A 16· ·few students test positive, and if there isn't a 17· ·clear plan in place, there isn't contact tracing, 18· ·then a wildfire will begin. 19· · · · Q.· ·So to be clear, if there is below 20· ·5 percent, what would you, as a doctor who 21· ·specializes in this type of area, what would you 22· ·want the infection rate to be before you would 23· ·recommend opening brick-and-mortar schools with the 24· ·mitigation you've described? 25· · · · A.· ·Yeah.
0422 Page 326 ·1· · · · · · ·Once the community spread is at such a ·2· ·level that it's been driven down so the positive ·3· ·rate is 5 percent or less, and during that time -- ·4· ·you know, between now and that moment, or hopefully ·5· ·it's well underway, prepare the schools in a fashion ·6· ·that they can figure out ways -- and each school's ·7· ·going to be a little bit different, depending on ·8· ·their positivity rate, depending on the architecture ·9· ·of the school itself, depending on the size of the 10· ·population of the classroom. 11· · · · · · ·So starting slowly, seeing how it goes, 12· ·introducing perhaps every other day -- there are 13· ·many different models, and there are lots of 14· ·examples out there. 15· · · · · · ·But introducing in-person in a way that 16· ·makes sense, can be adopted, and we can grow toward 17· ·what we've -- you know, towards a full 18· ·brick-and-mortar, but not start and stop 19· ·immediately. 20· · · · Q.· ·So is it fair to say that you would not 21· ·recommend, as of Friday, that we open up 22· ·brick-and-mortar schools in all 67 counties in the 23· ·state of Florida? 24· · · · A.· ·Absolutely.· That doesn't make any sense. 25· · · · Q.· ·And what would be the result, from your
0423 Page 327 ·1· ·expert position, if we did open up brick-and-mortar ·2· ·schools in all 67 counties Friday or, you know, next ·3· ·week, if that were to really begin to happen, what ·4· ·would you say that Florida should be able to ·5· ·anticipate in the coming weeks and months? ·6· · · · A.· ·Yeah. ·7· · · · · · ·You know, in the last couple days, with ·8· ·great hope to all of us, we've seen the numbers ·9· ·coming down a little bit in Florida.· It's pretty 10· ·exciting.· We'd see an explosion in Florida if we 11· ·reopen the schools the way it's been described, 12· ·sudden opening of all schools. 13· · · · Q.· ·And going back to what you said about 14· ·mitigation for schools when they do open, that are 15· ·appropriate, you said that masks are absolutely 16· ·mandatory, everyone would have to wear a mask; is 17· ·that correct? 18· · · · A.· ·Absolutely. 19· · · · Q.· ·You said that you would have to teach 20· ·children proper hygiene and behavior, or cleaning 21· ·themselves and their desk area; is that right? 22· · · · A.· ·Absolutely. 23· · · · Q.· ·You would have to look at ventilation in 24· ·each room in each of the schools; is that correct? 25· · · · A.· ·Yes.
0424 Page 328 ·1· · · · Q.· ·And then you mentioned before, as I have ·2· ·it here on my notes, as an absolute must, you ·3· ·mentioned you have to have contact tracing, and you ·4· ·mentioned that a few times now. ·5· · · · · · ·What is contact tracing, and why is that ·6· ·so important in protecting citizens of Florida and ·7· ·the country like you just described? ·8· · · · A.· ·Yeah. ·9· · · · · · ·Well, contact tracing is when someone 10· ·tests positive, to be able to break the chain of 11· ·transmission, prevent further transmission.· And the 12· ·way that needs to be done is whomever that child -- 13· ·in this example, child -- whomever that child has 14· ·been in contact with, then also is -- there's a 15· ·boundary quarantine that's put around them, so that 16· ·they can understand if they are safe. 17· · · · · · ·And now you block the ability for that 18· ·particular virus amongst that group that were in 19· ·contact with one another, to break out of that group 20· ·and infect others, and hopefully, then, you've 21· ·contained it within that group. 22· · · · · · ·Even whether or not -- you know, if that 23· ·one child becomes an isolated infected child, that's 24· ·fine, that's great.· But it's possible that those 25· ·that that person's been in contact with are also
0425 Page 329 ·1· ·infected.· So to break the chain of transmission, we ·2· ·need to test and contain. ·3· · · · Q.· ·And without masks, without proper hygiene, ·4· ·without contact tracing, is there any way that we ·5· ·can successfully open schools, even with a low ·6· ·infection rate, and continue to fight off the virus? ·7· · · · A.· ·No, these -- these work in absolute ·8· ·tandem.· You can't open schools until you get below ·9· ·5 percent.· But you will quickly go back above 10· ·5 percent if we don't have mitigation strategies in 11· ·place as you just described. 12· · · · Q.· ·I want to talk to you about -- there's a 13· ·prevailing counterargument by others in your 14· ·profession, about this idea of herd immunity, and 15· ·why we should open schools, and something similar to 16· ·the Sweden model that you mentioned before, earlier, 17· ·I believe. 18· · · · · · ·Tell us what this idea of herd immunity is 19· ·in terms of dealing with the COVID-19 virus. 20· · · · A.· ·Yeah. 21· · · · · · ·Herd immunity means that we infect enough 22· ·of the population that it really breaks the line of 23· ·transmission.· That enough people have gained 24· ·immunity, so that those remaining -- and whatever 25· ·that number is, 30 percent -- it takes somewhere
0426 Page 330 ·1· ·-- you know, 55 to 70 percent of the society, at ·2· ·least, to have immunity in order to protect the ·3· ·rest. ·4· · · · · · ·There's some real problems with that.· One ·5· ·is the lethality and injury associated with this ·6· ·infection is really unacceptable.· We can't just say ·7· ·that we're going to lose some astronomical number of ·8· ·Americans to death and disability.· So that's one. ·9· ·And we know there's neurological injury, there's 10· ·kidney injury, there's cardiac injury, there's 11· ·pulmonary injury, and this includes children. 12· · · · · · ·The other is we don't know enough about 13· ·this disease to know that that would even be 14· ·effective.· We don't know enough to know that herd 15· ·immunity will even exist and prevail, that -- that 16· ·once one is infected, one is immune.· We hope that's 17· ·true. 18· · · · · · ·We do know that the -- we do know that the 19· ·immunizations that are being worked on are hopefully 20· ·even going to be stronger in creating an immune 21· ·response than if one was infected, but we don't know 22· ·enough to know. 23· · · · · · ·It would be quite risky and speculative to 24· ·imagine that we would all be safe if we -- if we 25· ·killed off some big portion of our population so the
0427 Page 331 ·1· ·rest us are safe.· That may not even be true. ·2· · · · Q.· ·Right. ·3· · · · · · ·So even if we sacrifice a portion of the ·4· ·population in the herd immunity theory, due to our ·5· ·lack of knowledge of the virus, it may not work? ·6· · · · A.· ·Absolutely. ·7· · · · Q.· ·We may have lost all those lives for ·8· ·nothing? ·9· · · · A.· ·Absolutely. 10· · · · Q.· ·What about this idea that children who are 11· ·home doing virtual learning aren't getting the same 12· ·learning -- or the same level of quality of 13· ·education that they would in person, is that an 14· ·accurate statement? 15· · · · A.· ·You know, I think what's accurate -- just 16· ·to step back, is that all of us -- I think everybody 17· ·can come to consensus that we all want in-person 18· ·learning, that in-person learning is ideal. 19· · · · · · ·The relationships with -- with teachers, 20· ·with staff, with -- you know, the socialization that 21· ·occurs, is important in the growth and maturation of 22· ·children. 23· · · · · · ·But at this time, when it's unsafe, that 24· ·equation takes us to a place where we cannot -- we 25· ·know the -- we know the formula that's most widely
0428 Page 332 ·1· ·agreed upon, which is this 5 percent, and then ·2· ·really having a strategy and set of mitigation ·3· ·efforts in place. ·4· · · · · · ·So without that, we can't do it. ·5· · · · Q.· ·Yeah. ·6· · · · A.· ·But we do know learning is -- virtual ·7· ·learning is in many ways inferior.· There are a few ·8· ·students that have better learning with virtual. ·9· ·But for the majority, in-person certainly is without 10· ·question better. 11· · · · Q.· ·And so in that same vein, there's also an 12· ·argument about bringing children back to school in 13· ·brick-and-mortar via in-person learning due to the 14· ·rise of domestic violence issues. 15· · · · A.· ·Yeah. 16· · · · Q.· ·So I would ask you to speak to the Court 17· ·and to Judge Dodson about the balance, in your 18· ·opinion, about the threat of children being victims 19· ·of domestic violence versus what them being in 20· ·school means to the pandemic, like you've talked 21· ·about before. 22· · · · A.· ·Right. 23· · · · · · ·And I just recently authored a piece in 24· ·Lancet Global Health, in an editorial, on this very 25· ·topic.· And that is one of the many reasons why it's
0429 Page 333 ·1· ·so important for us to get children back to school ·2· ·in person as soon as it is safe and as soon as we ·3· ·have, you know, plans in place. ·4· · · · · · ·We know that in times of stress, domestic ·5· ·violence increases.· And we know also that teachers ·6· ·and school ecosystems play a very important role in ·7· ·the safety of children, and we -- we -- there is -- ·8· ·actually, several other countries have already put ·9· ·into place mechanisms in order to identify students 10· ·that are at risk, and to provide community services 11· ·and check on the students. 12· · · · · · ·In fact, my own daughter, who is a teacher 13· ·in Florida, in Seminole County, described that they 14· ·have put together car caravans to visit students, 15· ·particularly students at risk.· They even put 16· ·together birthday parties. 17· · · · · · ·Not just virtually, they go to their homes 18· ·in their cars and surround the -- so there are -- 19· ·there are community activities that we do need to 20· ·put into place in this time of virtual world, in 21· ·order to keep children safe, not just from the 22· ·virus, but keep children safe in other ways. 23· · · · Q.· ·I want to go back to this, Dr. Burke, 24· ·because I think it's important. 25· · · · · · ·The idea -- we all can agree that any
0430 Page 334 ·1· ·child or any person, woman or man, who's the subject ·2· ·of domestic violence is a horrible thing, correct? ·3· · · · A.· ·Yes. ·4· · · · Q.· ·No one should have to endure that. ·5· · · · · · ·But from your perspective in your unique ·6· ·role and your background, does that -- the threat of ·7· ·a child being a victim of domestic violence, does ·8· ·that outweigh the current pandemic and what that ·9· ·could mean long term to our society in children and 10· ·teachers? 11· · · · A.· ·Yeah. 12· · · · · · ·You know, currently, with the -- the 13· ·infectivity rate in Florida, they -- it does not 14· ·make sense.· Even given all of those other 15· ·associated concerns, it does not make sense to open 16· ·brick-and-mortar schools. 17· · · · Q.· ·I want to go back for a minute. 18· · · · · · ·Commissioner Corcoran, who is a party in 19· ·this case, being represented by Mr. Wells, he 20· ·mentioned before at the White House back on 21· ·August 12th, 2020 -- he was up in DC, and he 22· ·testified -- or not testified.· He spoke saying that 23· ·he envisions Florida will be up to 80 percent 24· ·enrollment of its students, and 95 to 100 percent of 25· ·its teachers by the end of September.
0431 Page 335 ·1· · · · · · ·If that's the case, and if Corcoran or -- ·2· ·Commissioner Corcoran is correct, and 80 percent of ·3· ·Florida's 2.5 million children are back in schools ·4· ·by the end of September, can parents and citizens of ·5· ·Florida expect them to be safe if they're in ·6· ·brick-and-mortar schools? ·7· · · · A.· ·Yeah, the only way that that is possible, ·8· ·if somehow the virus disappears from Florida, which ·9· ·I don't think anybody anticipates is going to 10· ·happen. 11· · · · · · ·So where we stand and what we know today, 12· ·it doesn't make any sense to have that number of 13· ·students with in-person teaching -- with in-person 14· ·education in Florida. 15· · · · Q.· ·Right. 16· · · · · · ·But specifically, Dr. Burke, could those 17· ·students -- and I can infer it from what you said, 18· ·but I want you to answer directly, if you could, 19· ·please. 20· · · · · · ·Could those students and their parents 21· ·expect them to be safe in brick-and-mortar schools 22· ·at the current infection rates, and 80 percent of 23· ·students back in brick-and-mortar; is that possible? 24· · · · A.· ·They will not be safe. 25· · · · Q.· ·What about the teachers, if -- if
0432 Page 336 ·1· ·Commissioner Corcoran's correct and if Florida's ·2· ·teachers, if 95 to 100 percent are back, as he ·3· ·indicated at the White House on August 12th, 2020, ·4· ·which has already been premarked and has already ·5· ·been entered as an exhibit, if that's true by the ·6· ·end of September, is there any way teachers could be ·7· ·safe and secure if they're in schools, if those are ·8· ·the facts at brick-and-mortar schools? ·9· · · · A.· ·No, they cannot be safe. 10· · · · Q.· ·Even with all the mitigation that we've 11· ·talked about, potentially if the numbers are below a 12· ·5 percent margin? 13· · · · A.· ·If they're above 5 percent, they're not 14· ·safe.· If they're below 5 percent, with mitigation 15· ·efforts, then schools really ought to open, yes. 16· · · · Q.· ·But if -- the one point I want to make -- 17· ·and I misspoke there, forgive me. 18· · · · · · ·All the mitigation things, as you 19· ·mentioned before -- and I have it written down.· You 20· ·mentioned the word "in tandem" or the phrase "in 21· ·tandem."· You can't just have masks, for instance, 22· ·and not have contact tracing or proper hygiene or 23· ·ventilation, correct?· You have to have all of it? 24· · · · A.· ·Absolutely. 25· · · · Q.· ·And if you don't have one of them in each
0433 Page 337 ·1· ·school, even if the infection rate is below ·2· ·5 percent, it can lead to an upsurge in infection ·3· ·rates that could end up being dangerous again; is ·4· ·that correct? ·5· · · · A.· ·The best practice formula we have, that we ·6· ·know, to make it safe to open schools -- and make it ·7· ·safe doesn't mean it's going to be a hundred percent ·8· ·safe.· We even know if it's less than 5 percent, we ·9· ·have risk. 10· · · · · · ·But is really what you just described and 11· ·what we discussed, which is we need to be below 12· ·5 percent.· We need mitigation efforts, such as 13· ·masks, able to be cleaning, able to have PPE, and 14· ·certainly need to be able to have contact tracing. 15· · · · Q.· ·Thank you. 16· · · · · · ·MR. STUART:· Your Honor, may I have one 17· · · · moment, please, just to review my notes? 18· · · · · · ·THE COURT:· Sure.· Yes, sir. 19· · · · · · ·MR. STUART:· Thank you. 20· · · · · · ·A few more questions, if I may, Your 21· · · · Honor, just a few more minutes. 22· · · · · · ·THE COURT:· Go ahead. 23· · · · · · ·MR. STUART:· Thank you. 24· · ·BY MR. STUART 25· · · · Q.· ·Dr. Burke, God forbid if there is an
0434 Page 338 ·1· ·outbreak or an upsurge, what would we need to do as ·2· ·Floridians to stop that from happening? ·3· · · · A.· ·Yeah. ·4· · · · · · ·You'd need to actually shut down the ·5· ·state.· If there's a sudden surge where you, you ·6· ·know, suddenly move back to -- or beyond the high ·7· ·numbers that we were seeing a few weeks ago, to ·8· ·really get your arms around that, you need to shut ·9· ·the state down. 10· · · · Q.· ·Meaning all nonessential work and movement 11· ·from someone's home or residence would need to be -- 12· ·cease to exist, to stop the spread of the virus? 13· · · · A.· ·Absolutely.· You'd overwhelm hospitals, 14· ·and people would be dying in -- in even higher 15· ·numbers than we're seeing now. 16· · · · Q.· ·Is it fair to say, Dr. Burke, that in your 17· ·experience and your studies, has America or the 18· ·world ever faced a pandemic like this before? 19· · · · A.· ·Not in our lifetimes. 20· · · · Q.· ·Well, that's what I -- I mean, obviously 21· ·we can go back to the Renaissance and some other 22· ·things, I'm sure.· But I meant I guess in the 23· ·past -- since the Spanish flu right at -- or during 24· ·or right after World War I, depending on which 25· ·perspective you're looking at, but in the past, you
0435 Page 339 ·1· ·know, 80 to 90 years, we've never dealt with ·2· ·anything like this before; is that fair to say? ·3· · · · A.· ·We have not. ·4· · · · Q.· ·Okay. ·5· · · · · · ·MR. STUART:· Thank you, Dr. Burke.· It was ·6· · · · a pleasure to meet you face to face. I ·7· · · · appreciate your time. ·8· · · · · · ·No further questions, Your Honor. ·9· · · · · · ·THE COURT:· Cross? 10· · · · · · ·MR. WELLS:· Yes.· Thank you, Your Honor. 11· · · · · · · · · · CROSS EXAMINATION 12· · ·BY MR. WELLS 13· · · · Q.· ·Dr. Burke, my name is David Wells. I 14· ·represent the Governor, the Commissioner, and the 15· ·other defendants.· Thank you for your time today. 16· · · · · · ·You mentioned multiple times a 5 percent 17· ·number.· 5 percent of what?· How is that number 18· ·calculated? 19· · · · A.· ·Yeah, it's 5 percent of the positive rate 20· ·of the -- the testing that's occurring. 21· · · · · · ·So if you're testing -- and it really does 22· ·need to be -- you need to remove doubles.· So -- and 23· ·you need to remove actually all these athletes as 24· ·well.· But -- but, you know, so often, hospitals in 25· ·particular, or other workplaces, require two
0436 Page 340 ·1· ·negatives. ·2· · · · · · ·And so if someone gets two negatives, it ·3· ·should be per person.· So it's a 5 percent positive ·4· ·rate or less. ·5· · · · Q.· ·So meaning that if 5 percent or more of ·6· ·the people tested are positive, that's when you ·7· ·don't open the schools? ·8· · · · A.· ·That's correct. ·9· · · · Q.· ·And you mentioned, when Mr. Stuart was 10· ·asking you questions about an outbreak, that there 11· ·would be the potential for shutting the state down 12· ·to everything except for essential services. 13· · · · · · ·What percentage is that? 14· · · · A.· ·What percentage is what? 15· · · · Q.· ·What percentage would you say we have to 16· ·shut the state down? 17· · · · A.· ·Yeah. 18· · · · · · ·I -- I think that, you know, we're 19· ·learning as we go.· So I'm -- you know, it really 20· ·comes down to tolerance of lives lost, and what are 21· ·we going to tolerate.· And those are going to be, 22· ·you know, certainly decisions made at the -- you 23· ·know, at the CDC and the state level. 24· · · · · · ·So I'm not going to sit here and tell you 25· ·what -- what you're willing to lose in terms of your
0437 Page 341 ·1· ·own family members and as a state.· But today, I ·2· ·think -- or yesterday, Florida lost more than 200 ·3· ·lives, and some significant multiple of that became ·4· ·permanently injured. ·5· · · · · · ·So what are you willing to tolerate? ·6· ·That's -- that's going to be the ongoing question ·7· ·that's going to drive the decision.· But ·8· ·undoubtedly, if you're -- if you're climbing in ·9· ·numbers and your death rate is climbing, you're 10· ·going -- the only way to -- to decrease that climb 11· ·is going to be to back off in -- in the interactions 12· ·of the population with one another, in order to 13· ·break the chain of transmission, to wear masks, and 14· ·to do all the things that we know in terms of our 15· ·own personal hygiene. 16· · · · Q.· ·So, I mean, if I hear you, you're not 17· ·giving me a particular answer, because you're saying 18· ·it -- or a particular percentage, because you say 19· ·that's a horrific policy decision that someone is 20· ·going to have to make in the tradeoff between the 21· ·economy of lives, it's what you're saying? 22· · · · A.· ·Yeah, that's right. 23· · · · Q.· ·Okay.· And in your view, in terms of 24· ·the -- the tradeoff between the need for education 25· ·and what education brings, that there should be no
0438 Page 342 ·1· ·opening as long as -- at least until it's below ·2· ·5 percent.· That's where you would draw that line? ·3· · · · A.· ·That's right. ·4· · · · · · ·And that's -- that's -- and that's best ·5· ·practice, WHO, CDC.· You know, I didn't make up that ·6· ·number, obviously. ·7· · · · Q.· ·I understand.· I'm just asking you that is ·8· ·your opinion, that's what you're telling the Court, ·9· ·that's where that line should be drawn? 10· · · · A.· ·Yeah. 11· · · · Q.· ·Now, talking about the need to be back in 12· ·school, on the idea of domestic violence, you've 13· ·actually written a couple of articles that are 14· ·referenced in your curriculum vitae, haven't you? 15· · · · A.· ·I have. 16· · · · Q.· ·Okay.· As I understand it, what those 17· ·articles lay out is that staying at home because of 18· ·the coronavirus not only places survivors of 19· ·domestic violence at risk for further violence, but 20· ·it also isolates them from networks of support? 21· · · · A.· ·Yes. 22· · · · Q.· ·One of the networks of support is school, 23· ·and I think some of your research found that reports 24· ·on domestic abuse of children have gone down with 25· ·the children not being in school, no teacher to see
0439 Page 343 ·1· ·the red flags? ·2· · · · A.· ·Absolutely. ·3· · · · Q.· ·Okay.· And that in fact, the teachers are ·4· ·a good -- I don't know what to call it, canary in ·5· ·the coal mine, whatever the right word would be, to ·6· ·help the Division of Child and Family Services and ·7· ·others to know that there are problems going on with ·8· ·those children? ·9· · · · A.· ·That's correct. 10· · · · Q.· ·Okay.· And you'd agree with what the 11· ·American pediatric association and the CDC has said 12· ·about the need to get children back into schools to 13· ·be able to give them better learning than the 14· ·virtual learning? 15· · · · A.· ·I agree, but the CDC and the AAP, 16· ·especially the AAP very recently, if you look at 17· ·their website today, have come out to clarify, which 18· ·has been interpreted as we need -- that we need to 19· ·push hard to open schools.· They've come out and 20· ·clarified only if safe, only if the mitigation 21· ·factors are in place. 22· · · · Q.· ·I think nobody would argue that the CDC 23· ·and the APA (sic), even your Harvard T.H. Chan 24· ·School of Public Health, have all said it's good to 25· ·be back, but don't do it unless it's safe?
0440 Page 344 ·1· · · · A.· ·Right. ·2· · · · Q.· ·All right.· And in fact, you mentioned ·3· ·plans, and the fact that if you're going back to ·4· ·school, there should be plans, and there are various ·5· ·things that schools need to look at based upon the ·6· ·particular school, correct? ·7· · · · A.· ·Yes. ·8· · · · Q.· ·And there are guidelines that have been ·9· ·put out; in fact, the Harvard T.H. Chan school for 10· ·health provided a document in June of 2020, Risk 11· ·Reduction Strategies for Reopening Schools. 12· · · · · · ·Are you familiar with that? 13· · · · A.· ·I am.· It's a little outdated, but, yes. 14· · · · Q.· ·Well, we're moving so fast that June's 15· ·outdated in August, but I understand. 16· · · · A.· ·Right. 17· · · · Q.· ·And similarly, the CDC and APA and others 18· ·have provided a listing of various mitigation 19· ·strategies that the different schools can use? 20· · · · A.· ·That's true. 21· · · · Q.· ·Okay. 22· · · · A.· ·Yes. 23· · · · · · ·MR. WELLS:· No further questions. 24· · · · · · ·THE COURT:· Any redirect? 25· · · · · · ·MR. STUART:· Just briefly, Your Honor, if
0441 Page 345 ·1· · · · I may, sir. ·2· · · · · · ·THE COURT:· Sure. ·3· · · · · · · · · ·REDIRECT EXAMINATION ·4· · ·BY MR. STUART ·5· · · · Q.· ·Just a few things, Dr. Burke. ·6· · · · · · ·First, your testimony about not knowing -- ·7· ·or not being able to say what an exact percentage is ·8· ·in terms of an infection rate to close everything ·9· ·down, you're saying that because that's not your 10· ·position and your role, is that correct, where you 11· ·currently work? 12· · · · A.· ·Absolutely. 13· · · · · · ·It's not my decision to -- when you shut 14· ·businesses down, when you choose to shut down your 15· ·economy to -- you know, based on level of -- of 16· ·pandemic within your community. 17· · · · Q.· ·And true, that's a political decision, but 18· ·in terms of opening schools, your testimony is 19· ·unequivocally clear from my perspective, I want to 20· ·clarify that, that there should be no schools open 21· ·unless it's below 5 percent infection rate, correct? 22· · · · A.· ·That is correct. 23· · · · Q.· ·All right.· And then if there is a 24· ·percentage rate in a county of one of the 67 25· ·counties of the state of Florida, it would need to
0442 Page 346 ·1· ·have all of the mitigation required, and it be done ·2· ·in tandem and done effectively, including contact ·3· ·tracing, masks, proper hygiene, social distancing, ·4· ·all the things we've talked about, for it to prevent ·5· ·a new outbreak; is that right? ·6· · · · · · ·MR. WELLS:· Your Honor, we're getting well ·7· · · · beyond redirect, and we've now got Mr. Stuart ·8· · · · testifying. ·9· · · · · · ·THE COURT:· Be sure -- this is just 10· · · · redirect. 11· · · · · · ·MR. STUART:· All right, Judge. 12· · ·BY MR. STUART 13· · · · Q.· ·And one other thing.· You mentioned before 14· ·with Mr. Wells about a prior article in regards to 15· ·domestic violence.· I believe we touched on it, but 16· ·I want to clarify your position. 17· · · · · · ·You testified before that of course 18· ·children are better to be in school, especially when 19· ·dealing with domestic violence; is that right? 20· · · · A.· ·I did. 21· · · · · · ·At the -- but also, if you look at what I 22· ·wrote, I wrote that the imperative is -- if you look 23· ·at the Lancet piece that I wrote, the imperative is 24· ·to ensure that communities also have strategies in 25· ·place for a virtual learning, and that domestic
0443 Page 347 ·1· ·violence and -- and child protection community ·2· ·services need to be established, including in a ·3· ·virtual time in order -- and it's not to -- it's not ·4· ·to say that that overtakes the -- the concern of ·5· ·health and survival when the rate is above ·6· ·5 percent. ·7· · · · Q.· ·Okay.· That's what I thought. ·8· · · · · · ·MR. STUART:· Thank you, Your Honor. I ·9· · · · have no further questions for Dr. Burke. 10· · · · · · ·THE COURT:· May Dr. Burke be excused? 11· · · · · · ·MR. WELLS:· No problem. 12· · · · · · ·MR. MEYER:· Yes, sir, from the plaintiffs. 13· · · · · · ·THE COURT:· All right.· Dr. Burke, you are 14· · · · free to go.· Thank you, sir. 15· · · · · · ·THE WITNESS:· Thank you, Your Honor. 16· · · · · · ·MR. STUART:· And, Your Honor, before I 17· · · · turn it back over to Mr. Meyer, my colleague, 18· · · · there's a few things I'd like to introduce into 19· · · · evidence, based upon the testimony of 20· · · · Dr. Burke. 21· · · · · · ·If I may proceed, Your Honor, with the 22· · · · plaintiffs' exhibit list.· Is that all right? 23· · · · · · ·THE COURT:· Sure. 24· · · · · · ·MR. STUART:· To be sure, to make sure I 25· · · · have everything taken care of, there was --
0444 Page 348 ·1· ·it's item No. 57 in plaintiffs' list, the ·2· ·American Academy of Pediatrics update. ·3· · · · There is 61, which is -- plaintiffs' item ·4· ·Exhibit 61, which is the Kaiser Family ·5· ·Foundation. ·6· · · · (Thereupon, marked for identification is ·7· ·Plaintiffs' Exhibit 61.) ·8· · · · MR. WELLS:· Can I just slow you down? ·9· · · · You said 57? 10· · · · MR. STUART:· Yes, sir. 11· · · · MR. WELLS:· It's COVID-19 Planning 12· ·Consideration?· That's what I have. 13· · · · I mean, I heard you saying something 14· ·different, that's why I asked. 15· · · · And, Your Honor, if we disappear, it's 16· ·because we're in the middle of a wicked 17· ·lightning storm.· We lose the Internet when 18· ·that happens. 19· · · · MR. STUART:· Okay.· Well, let me move away 20· ·from 57 for a second, to get that taken care 21· ·of, because you're right, Mr. Wells, I miswrote 22· ·that in my notes, and I'd ask Mr. Wieland to 23· ·help me with that. 24· · · · I'm looking in particular for the American 25· ·Academy of Pediatrics update that came out
0445 Page 349 ·1· ·today.· That's an exhibit we disclosed. ·2· · · · But before that, item 61, which is What to ·3· ·Do About Transmissions.· And that's the Kaiser ·4· ·Family Foundation one, Your Honor. ·5· · · · I also have the -- it's been previously ·6· ·disclosed, the curriculum vitae for Mr. Burke, ·7· ·which is item Exhibit No. 46. ·8· · · · (Thereupon, marked for identification is ·9· ·Plaintiff Exhibit 46.) 10· · · · MR. STUART:· And I believe the other items 11· ·have been already entered into evidence, the 12· ·list I'm looking at.· But the only issue I have 13· ·is the American Pediatric -- just one second. 14· · · · You know, Judge, just to save time, if you 15· ·would just allow me to revisit that once I get 16· ·my notes taken care of, and I can bring that 17· ·back up to your attention, sir. 18· · · · THE COURT:· So right now you're asking for 19· ·61 and 46? 20· · · · MR. STUART:· Yes, sir. 21· · · · THE COURT:· Any objection to those two, 22· ·Mr. Wells? 23· · · · MR. WELLS:· No, Your Honor. 24· · · · And I don't think I have an objection to 25· ·the other one.· Let's just get cleared up on
0446 Page 350 ·1· ·the exhibit number, Mr. Stuart. ·2· · · · MR. STUART:· And I have one more, Judge, ·3· ·if I may.· Exhibit No. 47, which is the contact ·4· ·tracing study from the CDC of the United States ·5· ·regarding South Korea. ·6· · · · MR. WELLS:· No objection, Your Honor. ·7· · · · THE COURT:· Sixty-one, 46 and 47 are ·8· ·admitted. ·9· · · · (Thereupon, received in evidence as 10· ·Plaintiffs' Exhibits 61, 46, and 47.) 11· · · · MR. STUART:· And if we can just table that 12· ·until after the next witness, Your Honor, to 13· ·allow us to get organized.· I apologize for the 14· ·inconvenience. 15· · · · THE COURT:· Okay.· Call your next witness. 16· · · · MR. MEYER:· Your Honor, our next witness 17· ·will be Mr. Andre Escobar, who is, I believe, 18· ·in a waiting room.· And Mr. Wieland will 19· ·conduct the direct examination. 20· · · · THE COURT:· Okay.· Mr. Escobar is in. 21· · · · Okay.· Mr. Escobar, if you would go ahead 22· ·and just unmute your device there.· There you 23· ·go.· If you would raise your right hand, 24· ·please. 25
0447 Page 351 ·1· ·Thereupon: ·2· · · · · · · · · · · ANDRE ESCOBAR ·3· ·having been sworn by the Court testified as follows: ·4· · · · · · ·THE WITNESS:· I do. ·5· · · · · · ·THE COURT:· Thank you, sir.· You can put ·6· · · · your hand down. ·7· · · · · · · · · · DIRECT EXAMINATION ·8· · ·BY MR. WIELAND ·9· · · · Q.· ·Andre, good to see you today.· How are you 10· ·doing? 11· · · · A.· ·Good.· How about yourself? 12· · · · Q.· ·Doing all right. 13· · · · · · ·Just as a preliminary matter, we have a 14· ·court reporter here typing everything we're saying, 15· ·they're typing everything we're saying up.· If you 16· ·don't understand any of my questions, want me to 17· ·repeat or rephrase, just let me know. 18· · · · · · ·Obviously with Zoom, there can be some 19· ·technical issues, so don't hesitate if you can't 20· ·hear me or something doesn't come across.· Just let 21· ·me know, okay? 22· · · · A.· ·Okay. 23· · · · Q.· ·Can you state your full name and spell 24· ·your first and last name for the record, please? 25· · · · A.· ·Andre Escobar.· It's A-N-D-R-E, and my
0448 Page 352 ·1· ·last name is E-S-C-O-B-A-R. ·2· · · · Q.· ·Perfect. ·3· · · · · · ·What's your date of birth, Mr. Escobar? ·4· · · · A.· ·November 29th, 1984. ·5· · · · Q.· ·Perfect. ·6· · · · · · ·And just tell me what county you're a ·7· ·resident of. ·8· · · · A.· ·Osceola County. ·9· · · · Q.· ·Perfect. 10· · · · · · ·And do you teach in Osceola County as 11· ·well? 12· · · · A.· ·Yes. 13· · · · Q.· ·Let me get a little background from you, 14· ·Andre.· Where did you attend high school? 15· · · · A.· ·I went to a number of different high 16· ·schools.· I started at Northeast High School in 17· ·Fort Lauderdale, then Piper High School in Sunrise, 18· ·and then I moved up to Michigan to finish out my 19· ·high school year in Petoskey, Michigan. 20· · · · Q.· ·Fair to say you've attended some Florida 21· ·public schools? 22· · · · A.· ·Yes. 23· · · · Q.· ·And you're currently teaching in one? 24· · · · A.· ·Yes. 25· · · · Q.· ·Perfect.
0449 Page 353 ·1· · · · · · ·Did you get a -- after high school, did ·2· ·you attend college? ·3· · · · A.· ·Yes, I did. ·4· · · · Q.· ·Where did you go for that? ·5· · · · A.· ·Nova Southeastern University. ·6· · · · Q.· ·Did you get a four-year degree? ·7· · · · A.· ·Yes. ·8· · · · Q.· ·What was your four-year degree in? ·9· · · · A.· ·In secondary education, in mathematics. 10· · · · Q.· ·Perfect. 11· · · · · · ·Any schooling after Nova Southeastern? 12· · · · A.· ·Not -- no, not after, no. 13· · · · Q.· ·After you graduated from college, what was 14· ·your first job? 15· · · · A.· ·Teaching high school math. 16· · · · Q.· ·And where are you currently teaching? 17· · · · A.· ·Gateway High School. 18· · · · Q.· ·Is that where you started teaching? 19· · · · A.· ·Yes. 20· · · · Q.· ·And how many years have you been there? 21· · · · A.· ·I believe this is going to be my eighth 22· ·year. 23· · · · Q.· ·What grade level or grade levels do you 24· ·teach? 25· · · · A.· ·I teach all grade levels.· I've taught
0450 Page 354 ·1· ·pretty much every topic that we cover at -- in high ·2· ·school, as far as math goes. ·3· · · · Q.· ·Taught basic, you know, let's say algebra, ·4· ·all the way up to AP or honors courses? ·5· · · · A.· ·Yes, I've taught, you know, basic ·6· ·Algebra I, all the way up to IB high-level math. ·7· · · · Q.· ·How many students are at your high school ·8· ·typically? ·9· · · · A.· ·I'd say about 2,500 or so.· But that 10· ·fluctuates. 11· · · · Q.· ·Since you're in a high school, are those 12· ·students rotating amongst classes? 13· · · · A.· ·Yes. 14· · · · Q.· ·How many classes per day do these students 15· ·have? 16· · · · A.· ·I believe eight. 17· · · · Q.· ·Okay.· And how many courses do you teach 18· ·per day? 19· · · · A.· ·I teach six. 20· · · · Q.· ·Typically how many students are you seeing 21· ·in and out of your room per day? 22· · · · A.· ·I'd say an average of 30. 23· · · · Q.· ·And that's per class? 24· · · · A.· ·Yes. 25· · · · Q.· ·So just estimating, about 180 to 200,
0451 Page 355 ·1· ·would that be pretty fair to say, per day? ·2· · · · A.· ·Yeah, that would be fair. ·3· · · · Q.· ·Obviously, and fortunately, some of the ·4· ·parents have chosen to keep their kids home and do ·5· ·LaunchED -- or that's what we're calling it in ·6· ·Orange County.· I don't know what they're calling it ·7· ·in Osceola County, but an at-home virtual program. ·8· · · · · · ·Is that fair to say? ·9· · · · A.· ·Yeah. 10· · · · Q.· ·So as it stands right now, Mr. Escobar, 11· ·how many students do you anticipate seeing on a 12· ·daily basis if schools were to open 13· ·brick-and-mortar? 14· · · · A.· ·Me personally, about 60, maybe 50 to 60 15· ·students. 16· · · · Q.· ·Okay.· So would that average give or take 17· ·about ten plus per class? 18· · · · A.· ·Well, for me, I have two -- only two 19· ·face-to-face classes, where they're blended.· And I 20· ·believe I have about 25. 21· · · · · · ·But the -- they're not done scheduling 22· ·yet.· They're still working out -- some students are 23· ·still calling in to do face-to-face, and, you know, 24· ·vice versa.· So I have two classes with about 25 25· ·students or so.
0452 Page 356 ·1· · · · Q.· ·I'm a little bit confused.· So rather than ·2· ·staggering them out over six courses during the day, ·3· ·they've condensed them all into a couple courses? ·4· · · · A.· ·No.· So I have six courses.· I teach three ·5· ·geometry courses, which are all digital.· There will ·6· ·be no face-to-face with the geometry courses. ·7· · · · · · ·I'm going to teach three precalculus ·8· ·classes, one of which is going to be digital, but ·9· ·the other two will be blended.· We'll have some 10· ·students in the class and some students out of a 11· ·class, you know, distance learning.· And those two 12· ·classes are blended, I'll have about 25 students in 13· ·the class, last time I checked. 14· · · · Q.· ·Twenty-five students per class? 15· · · · A.· ·Yes, per class. 16· · · · Q.· ·All right.· And typically, what type of 17· ·room are you in? 18· · · · A.· ·For the seven or eight years that I've 19· ·been teaching, I've been in a portable. 20· · · · Q.· ·Has that changed in the past 24 hours? 21· · · · A.· ·Yeah.· Just this afternoon, my principal 22· ·that has been really working hard to try to 23· ·accommodate me as a teacher, because of my 24· ·situation, to be able to, you know, limit my 25· ·exposure to the students as much as possible.
0453 Page 357 ·1· · · · Q.· ·Let's talk a little bit about that. ·2· · · · · · ·Do you have any underlying medical ·3· ·conditions? ·4· · · · A.· ·Yes.· So I'm a C4-C5 spinal-cord-injury ·5· ·quadriplegic. ·6· · · · Q.· ·What does that mean, Mr. Escobar, for ·7· ·those of us who aren't familiar with paralysis, if ·8· ·you will? ·9· · · · A.· ·So because my spinal cord is injured, 10· ·the -- the nerves between my brain and the rest of 11· ·my body, it's, like -- the signals that go from my 12· ·brain to the rest of my body are impaired, so I have 13· ·a partial paralysis in my legs. 14· · · · · · ·In my hands, I don't have function -- I 15· ·really don't have function of my fingers.· My trunk, 16· ·I have very weak abdominal muscles, if any.· My 17· ·right leg is very weak.· My left leg is kind of 18· ·strong. 19· · · · · · ·But I have limited feeling from my chest 20· ·down.· From my chest up is kind of normal.· From my 21· ·chest up, I would say everything's about normal, but 22· ·chest down, everything is -- has some sort of 23· ·impairment or paralysis. 24· · · · Q.· ·And you said from your chest up, it's 25· ·pretty normal.· But do you have any type of weakened
0454 Page 358 ·1· ·pulmonary system -- ·2· · · · A.· ·Yeah. ·3· · · · Q.· ·-- are your lungs weakened by this ·4· ·condition? ·5· · · · A.· ·Because of my weak stomach and lungs -- I ·6· ·mean, and diaphram, it's really hard for me as a ·7· ·person with my -- as any quadriplegic, to be able to ·8· ·cough and, you know, get rid of, like, mucus and ·9· ·that kind of stuff.· So I imagine that a disease 10· ·like COVID would be, you know, really harmful for 11· ·me. 12· · · · · · ·As it is, when I get sick, I'm more 13· ·susceptible to things like pneumonia because I can't 14· ·expel the -- you know, the mucus and the stuff 15· ·that's inside your -- your lungs and respiratory 16· ·system. 17· · · · Q.· ·What's your understanding of what might 18· ·happen to you if you come down with COVID? 19· · · · A.· ·As I -- when I spoke to my doctor, he said 20· ·that I would be very unlikely to survive.· It would 21· ·be grave. 22· · · · Q.· ·I'm sorry to hear that. 23· · · · · · ·Mr. Escobar, let's go back just generally 24· ·to your condition.· Obviously we talked a little bit 25· ·about what's going on as far as your legs and your
0455 Page 359 ·1· ·arms and your trunk, if you will, as well as your ·2· ·pulmonary function. ·3· · · · · · ·How do you ambulate, how do you walk ·4· ·around the classroom or move around the classroom? ·5· · · · A.· ·In the classroom, I use a walker.· I have ·6· ·a -- kind of a special platform walker that's a ·7· ·little bit higher.· Yeah, I walk slow, but, you ·8· ·know, I get it done in the classroom.· That's how I ·9· ·ambulate in the classroom. 10· · · · · · ·Outside of the classroom, I use a scooter. 11· · · · Q.· ·And describe that scooter.· Is that, like, 12· ·a motorized scooter that you use to get around the 13· ·school? 14· · · · A.· ·Yeah, it's a motorized, you know, 15· ·three-wheel scooter that, you know, goes around a 16· ·lot faster than I could walk. 17· · · · Q.· ·I understand. 18· · · · · · ·All right.· As a part of having this 19· ·condition, Mr. Escobar, did you put in a request to 20· ·your principal or to the school board in Osceola 21· ·County to be accommodated? 22· · · · A.· ·Yeah. 23· · · · · · ·So I first called the Osceola -- the 24· ·district, to see what my options were because of my 25· ·condition.· And the only options they gave me were
0456 Page 360 ·1· ·two weeks paid leave because of the CARES Act, and ·2· ·after that, I would have available FMLA. ·3· · · · · · ·But other than that, I really didn't have ·4· ·any other options.· I was either going to teach or ·5· ·have to quit.· And they recommended that I talk to ·6· ·my principal, and I've been talking to my principal. ·7· · · · · · ·We've been in constant communication, ·8· ·trying to figure things out, especially my assistant ·9· ·principals, trying to -- you know, they're trying to 10· ·schedule it around me, you know, especially because 11· ·of my condition and being able to have as much 12· ·digital distance learning as possible. 13· · · · Q.· ·Let's go back just for a second.· You 14· ·mentioned FMLA, Family Medical Leave Act. 15· · · · A.· ·Yes. 16· · · · Q.· ·Did -- were you told that if you take 17· ·FMLA, that will be paid or unpaid? 18· · · · A.· ·Unpaid. 19· · · · Q.· ·Okay.· And I know that your assistant 20· ·principal and your principal are trying to work with 21· ·you, but as it stands now, have you been required to 22· ·return to the classroom? 23· · · · A.· ·Yes. 24· · · · Q.· ·And teach students live in your classroom? 25· · · · A.· ·Yes.
0457 Page 361 ·1· · · · Q.· ·Okay.· Are there any other teachers you ·2· ·know of that put in for accommodations and that have ·3· ·not been granted? ·4· · · · A.· ·Yeah, you know, there's teachers that have ·5· ·asked to do all digital, but the -- you know, the ·6· ·school and the principal are kind of at the helm of ·7· ·what they get in students, and they're kind of stuck ·8· ·in scheduling. ·9· · · · · · ·And, you know, the district doesn't -- or 10· ·we don't have many other options that they can 11· ·exercise to -- to give us. 12· · · · Q.· ·Okay.· As it stands now, are masks 13· ·required at your school? 14· · · · A.· ·Yes. 15· · · · Q.· ·Have you seen -- are masks required for 16· ·students, and are they required for teachers as 17· ·well? 18· · · · A.· ·Yes, for both. 19· · · · Q.· ·Have the students returned to your school 20· ·yet? 21· · · · A.· ·No. 22· · · · Q.· ·Have the teachers returned to your school? 23· · · · A.· ·Yes. 24· · · · Q.· ·Okay.· And have you seen any of these 25· ·teachers around campus?
0458 Page 362 ·1· · · · A.· ·Yes.· We've had full -- full staff ·2· ·meetings in the cafeteria.· We've had a few ·3· ·meetings. ·4· · · · Q.· ·And has anybody in those meetings -- or ·5· ·have all the people been following the masking ·6· ·policy? ·7· · · · A.· ·No, there's been a few that unfortunately ·8· ·don't follow it, you know, as it's supposed to be ·9· ·followed. 10· · · · Q.· ·Do you expect the students to follow the 11· ·masking policy as it's required? 12· · · · A.· ·Not if all staff are not, no. 13· · · · Q.· ·Okay.· It's my understanding that Gateway 14· ·High School may be a Title I school; is that right? 15· · · · A.· ·That is correct. 16· · · · Q.· ·As a part of being a Title I school, what 17· ·does that mean? 18· · · · A.· ·Specifically at our school, we provide 19· ·free lunch and breakfast to students.· And we -- 20· ·that's one of the things that we have to make sure 21· ·that students get, is they get their breakfast and 22· ·lunch, that they're -- or at least they have the 23· ·availability to get it. 24· · · · Q.· ·And as far as breakfast goes, prior to the 25· ·pandemic how would that be handled?
0459 Page 363 ·1· · · · A.· ·They would just go to the cafeteria and ·2· ·get breakfast if they wanted, at their own will. ·3· · · · Q.· ·Has your principal put forward a different ·4· ·plan due to COVID-19? ·5· · · · A.· ·Yes, because our cafeteria is so -- is not ·6· ·large enough to hold all the students at once, and ·7· ·students need to be supervised at all times, they ·8· ·provided that all first-period teachers, if you have ·9· ·a class, that those students are to grab their 10· ·lunch -- or, I'm sorry, their breakfast and bring it 11· ·to their classrooms and eat breakfast in their 12· ·classrooms. 13· · · · Q.· ·So the students -- just so I'm clear, the 14· ·students are going to take their lunch from the -- 15· ·or their breakfast, excuse me, from the cafeteria 16· ·and bring it into the classroom. 17· · · · · · ·Does a teacher have to be present or is a 18· ·teacher expected to be present while they eat 19· ·breakfast? 20· · · · A.· ·Yes, that's correct. 21· · · · Q.· ·Is the masking policy going to be 22· ·enforced -- I guess how is the masking policy going 23· ·to be enforced if they're eating breakfast? 24· · · · A.· ·I don't know.· Unless you can somehow 25· ·devise a way to eat through the mask without taking
0460 Page 364 ·1· ·the mask off, I don't see how that's possible. ·2· · · · Q.· ·Okay.· And generally, masks, are they ·3· ·going to be required at all times throughout the ·4· ·day, meaning in class, while you're walking around ·5· ·campus? ·6· · · · A.· ·Yes. ·7· · · · Q.· ·Okay.· Except obviously when they're ·8· ·eating in the classroom before first period? ·9· · · · A.· ·Yes. 10· · · · Q.· ·Okay. 11· · · · · · ·MR. WIELAND:· All right.· I'd like, if we 12· · · · could, Judge, to publish a couple pictures that 13· · · · Mr. Escobar has taken himself of his classroom. 14· · · · They are composite Exhibit No. 35, if we can 15· · · · get those up on the screen. 16· · · · · · ·(Thereupon, marked for identification is 17· · · · Plaintiff Exhibit 35.) 18· · ·BY MR. WIELAND 19· · · · Q.· ·All right.· Mr. Escobar, I think we've got 20· ·three pictures.· So let's start with this one right 21· ·here. 22· · · · · · ·Can you see that on your screen? 23· · · · A.· ·Yes. 24· · · · Q.· ·What is that? 25· · · · A.· ·That's a picture of my desk, a table in
0461 Page 365 ·1· ·front of my desk, and the -- just a small portion -- ·2· ·well, a portion of the student desk. ·3· · · · Q.· ·Okay.· And it may not be apparent from the ·4· ·picture, but if you can describe for the judge, are ·5· ·those desks being spaced six feet apart? ·6· · · · A.· ·No.· They're not. ·7· · · · Q.· ·How far -- how far do you think they are ·8· ·apart, in your estimation? ·9· · · · A.· ·I would say two and a half to maybe three 10· ·feet. 11· · · · Q.· ·Are you in your classroom right now? 12· · · · A.· ·Yes. 13· · · · Q.· ·Okay.· I just saw you looking over to the 14· ·side. 15· · · · A.· ·Yeah. 16· · · · Q.· ·Could you tell when you came back to 17· ·school if your room had been cleaned? 18· · · · A.· ·I mean, I can't tell.· I don't know how -- 19· ·how I would be able to tell that, no. 20· · · · Q.· ·Are you going to be required to clean your 21· ·classroom? 22· · · · A.· ·Yeah, as -- as -- my understanding, we're 23· ·required to clean between periods, we're supposed to 24· ·spray down the desks between periods. 25· · · · Q.· ·And practically with your -- you know,
0462 Page 366 ·1· ·with your paralysis or with your condition, is that ·2· ·something that you can possibly do, to clean that ·3· ·many desks -- ·4· · · · A.· ·No. ·5· · · · Q.· ·-- before the next class? ·6· · · · · · ·So how many minutes between classes do you ·7· ·have -- would a person have to clean those desks? ·8· · · · A.· ·I believe six to seven.· I don't -- I ·9· ·honestly don't remember the timeframe. 10· · · · Q.· ·Okay.· But I assume kids kind of filter in 11· ·slowly throughout, so it's not a set six minutes 12· ·before they walk in the door -- 13· · · · A.· ·Right. 14· · · · Q.· ·-- they're coming in typically as the day 15· ·progresses? 16· · · · A.· ·Correct.· Yeah, I've had kids come in, you 17· ·know, 30 seconds after the bell rings for my class 18· ·to leave.· So, yeah. 19· · · · Q.· ·Are you familiar with the term "PPE," 20· ·Mr. Escobar? 21· · · · A.· ·Yeah, I've heard it. 22· · · · Q.· ·Okay.· So personal protective equipment 23· ·is, I believe, what it stands for.· What have you 24· ·been provided as a teacher at Gateway High School as 25· ·far as PPE is concerned?
0463 Page 367 ·1· · · · A.· ·So far, we've been provided masks, and ·2· ·Kleenex. ·3· · · · Q.· ·When you say "Kleenex," are you referring ·4· ·to, you know, if you've got a runny nose, you grab a ·5· ·tissue or a Kleenex? ·6· · · · A.· ·Yep. ·7· · · · Q.· ·These are not Kleenex-branded wipes that ·8· ·have alcohol or some other cleaning agent in them? ·9· · · · A.· ·No. 10· · · · Q.· ·Have you been told that you're going to 11· ·receive some type of cleaning device to clean the 12· ·desks as you've been told you have to? 13· · · · A.· ·Yeah, we've been told that we're going to 14· ·receive spray bottles to clean the desks. 15· · · · Q.· ·Okay. 16· · · · A.· ·Yeah. 17· · · · Q.· ·When is school supposed to start, 18· ·Mr. Escobar? 19· · · · A.· ·It's supposed to start on Monday, the 20· ·24th. 21· · · · Q.· ·And do you have any of that stuff yet? 22· · · · A.· ·No. 23· · · · Q.· ·All right.· Due to your condition, you're 24· ·at an increased risk.· Has your school provided you 25· ·with any additional safety measures beyond what a
0464 Page 368 ·1· ·normal teacher gets? ·2· · · · A.· ·No. ·3· · · · Q.· ·Have they provided you with a sneeze guard ·4· ·or plexiglass to put in front of your desk so you ·5· ·can stay behind your desk away from the students? ·6· · · · A.· ·No. ·7· · · · Q.· ·Have they provided any additional ·8· ·handwashing stations in the classroom? ·9· · · · A.· ·No. 10· · · · Q.· ·Describe to me the bathroom situation at 11· ·your school.· Typically before the pandemic, would 12· ·there be a line between classes sometimes for 13· ·students to use the restroom? 14· · · · A.· ·Yes. 15· · · · Q.· ·Okay.· And has there been a change to, you 16· ·know, either monitoring people's use in the 17· ·restroom, so people aren't lining up behind each 18· ·other, or has there been any recommendations about 19· ·how often children are supposed to wash their hands 20· ·or teachers are supposed to wash their hands? 21· · · · A.· ·No, they're still trying to figure things 22· ·out.· I mean, I don't know how -- there's -- it's 23· ·very sensitive.· I don't know how we're supposed to 24· ·monitor students in the bathroom. 25· · · · Q.· ·School -- or -- you're in a high school,
0465 Page 369 ·1· ·so kids rotate between classes, I think we ·2· ·established that? ·3· · · · A.· ·Yes. ·4· · · · Q.· ·Has there been any discussion about ·5· ·staggering the switching of classes so there are not ·6· ·as many children in the hallway? ·7· · · · A.· ·No, not that I'm aware of. ·8· · · · Q.· ·Okay.· What training have you received ·9· ·from either the Department of Education, the 10· ·Department of Health, or Osceola school board about 11· ·how to handle COVID-19? 12· · · · A.· ·None. 13· · · · Q.· ·Has anybody come in to provide training to 14· ·the staff or the -- the teachers? 15· · · · A.· ·No. 16· · · · Q.· ·Have you provided any -- been provided any 17· ·social distancing training? 18· · · · A.· ·No. 19· · · · Q.· ·Are you being told how you're supposed to 20· ·enforce social distancing and masking policies? 21· · · · A.· ·For the masking policy, yeah, our 22· ·principal told us that if we get students that don't 23· ·have masks or refuse to put on the masks, send them 24· ·to the front office, at which point they would be 25· ·told they have to wear a mask or attend distance
0466 Page 370 ·1· ·learning. ·2· · · · Q.· ·What about social distancing? ·3· · · · A.· ·I don't know how we're going to make ·4· ·students -- I mean, as you can see, my -- the ·5· ·classrooms, it's -- they're not six feet apart. ·6· ·It's almost impossible to have 25 desks in the size ·7· ·classrooms we have, to put them in -- have them six ·8· ·feet apart. ·9· · · · Q.· ·And I think -- we're scrolling down here. 10· ·Is that another picture -- 11· · · · A.· ·Yes. 12· · · · Q.· ·-- page 2 of 3 of this exhibit, is that 13· ·another picture of your classroom? 14· · · · A.· ·Yeah, that's correct. 15· · · · Q.· ·Talk to me about the ventilation system in 16· ·your classroom.· I mean, when we return to school in 17· ·August, let's say, you know, is the ventilation 18· ·system, you believe, up to par and will be safe? 19· · · · A.· ·I -- I wouldn't trust it.· You know, I 20· ·don't know.· I'm looking at it right now, that's 21· ·what I'm looking at. 22· · · · · · ·Because portables have their own A/C unit. 23· ·We have A/C issues all the time.· I mean, just this 24· ·morning in the building, the A/C wasn't working. 25· ·I'm just fortunate in a portable, we have our own
0467 Page 371 ·1· ·isolated A/C unit, so I'm not dependent on the ·2· ·entire system.· So if the system goes down, I still ·3· ·have A/C.· But if my A/C goes down, then my A/C goes ·4· ·down, which it has in the past. ·5· · · · Q.· ·Have they provided you any new filtering ·6· ·system for your classroom, any air purifiers or ·7· ·updated air filters that are specifically designed ·8· ·to keep COVID-19 from being passed through the ·9· ·air-conditioning system? 10· · · · A.· ·No. 11· · · · Q.· ·Is there any plans to do any of that? 12· ·Have they talked to you about that? 13· · · · A.· ·Not that I'm -- they haven't talked to us 14· ·about that, no. 15· · · · Q.· ·Okay.· Do you know of any plans, when the 16· ·school year starts, to have the Department 17· ·of Education, the Florida Department of Health, or 18· ·any other health providers or anybody else come in 19· ·and train the students on the new rules about 20· ·COVID-19? 21· · · · A.· ·No.· I'm not aware of that. 22· · · · Q.· ·What's the procedure if a student tests 23· ·positive or has symptoms of COVID-19? 24· · · · A.· ·I believe they're supposed to quarantine 25· ·for two weeks, and then they come back to the front
0468 Page 372 ·1· ·office, and if they -- they don't display symptoms ·2· ·of COVID, then they're free to return to ·3· ·face-to-face teaching. ·4· · · · Q.· ·Who's making that determination, ·5· ·Mr. Escobar? ·6· · · · A.· ·I believe the front office staff.· I don't ·7· ·know if it's the APs.· I don't -- I'm not sure.· The ·8· ·school nurse maybe.· I'm not sure. ·9· · · · Q.· ·Are they requiring a negative test before 10· ·somebody is able to return to the classroom? 11· · · · A.· ·Not that I'm aware of. 12· · · · Q.· ·Okay.· Have you been offered any type of 13· ·flexibility in your work schedule, given your 14· ·underlying condition? 15· · · · A.· ·No. 16· · · · Q.· ·Has the principal talked to you about 17· ·being in a lower-risk area due to your paralysis? 18· · · · A.· ·What do you mean by lower-risk area? 19· · · · Q.· ·It's been brought up by the defense as 20· ·a -- possibly as a way to mitigate teachers who have 21· ·underlying conditions, that they could be put in a, 22· ·quote, lower-risk area.· Has that been offered to 23· ·you or even discussed with you? 24· · · · A.· ·I mean, they're trying to reduce the 25· ·amount of students that I would see face to face,
0469 Page 373 ·1· ·but I don't know -- I don't understand -- because if ·2· ·you're still seeing students, aren't you still at ·3· ·risk? ·4· · · · · · ·I mean, a lower-risk area to me would be ·5· ·digitally or not seeing face-to-face students or ·6· ·having them so far apart that it wouldn't be, you ·7· ·know -- you wouldn't be at risk of catching any kind ·8· ·of, you know, virus from them. ·9· · · · Q.· ·You were teaching in the spring of 2020, 10· ·correct? 11· · · · A.· ·Yes. 12· · · · Q.· ·When we went digital, what, right after 13· ·spring break? 14· · · · A.· ·Correct. 15· · · · Q.· ·There's been a lot of talk about students 16· ·falling behind.· In your estimation, did you notice 17· ·a substantial increase in the number of students 18· ·falling behind due to going online? 19· · · · A.· ·No.· I just had students -- students, you 20· ·know -- in my class, students did better.· Like, 21· ·grade-wise, they were able to do their work, and 22· ·they got better grades than they normally would 23· ·have. 24· · · · Q.· ·Okay.· The last year, if there was a 25· ·student that was struggling, were you still able to
0470 Page 374 ·1· ·spot that student through the online system? ·2· · · · A.· ·Yes.· Absolutely. ·3· · · · Q.· ·Were you able to offer additional ·4· ·assistance to that student? ·5· · · · A.· ·Yes.· In fact, I think -- you know, it's ·6· ·my personal opinion, but when -- due to the way that ·7· ·I was running the online classes, I was able to ·8· ·group -- so right now I have three geometry classes, ·9· ·and they're separate periods, but I was able to kind 10· ·of like clump them together. 11· · · · · · ·When I teach one lesson, I taught all 60 12· ·or 75 students at once, so then that freed up more 13· ·time for me to do, like, one-on-one sessions with 14· ·individual students.· So I was able to reach more 15· ·one-on-one students than I would normally on a 16· ·face-to-face basis. 17· · · · Q.· ·Did you provide additional assistance to 18· ·those students, not only for additional time, but 19· ·fortunately you're bilingual, is my understanding? 20· · · · A.· ·Yes.· Yeah.· I always offer to teach in 21· ·English and Spanish to my students.· I just, you 22· ·know, try to get them to learn the material. 23· · · · Q.· ·And are you aware of other teachers making 24· ·similar accommodations for those students when 25· ·everybody was online in the spring?
0471 Page 375 ·1· · · · A.· ·Yes.· We had, you know, paraprofessionals ·2· ·or ESOL professionals that were -- they were getting ·3· ·online and making sure students were not falling ·4· ·behind.· They would call parents, and they were ·5· ·helping out with that part of the distance learning ·6· ·of calling parents. ·7· · · · · · ·Which that part was kind of difficult for ·8· ·us, because teaching and calling parents was time ·9· ·consuming. 10· · · · Q.· ·Of course.· And we're not sitting here 11· ·saying the online system was better. 12· · · · A.· ·No. 13· · · · Q.· ·But my question to you, Mr. Escobar, is, 14· ·if you were permitted or if the school board was 15· ·permitted and given the right by the governor and 16· ·the Department of Education to make their own 17· ·decision about when to return to school, and that 18· ·might include delaying the start of the school year, 19· ·is that something you think that we could still work 20· ·through in an online system, for at least a 21· ·temporary period of time? 22· · · · A.· ·Yeah, just because we just started right 23· ·now, and they've introduced a bunch of new digital 24· ·applications to be able to support students and -- 25· ·and monitor students, and it's been really -- like,
0472 Page 376 ·1· ·normally, you know, the beginning of the year, we're ·2· ·a little bit overwhelmed because we're starting, ·3· ·we're trying to get everything together, we have to ·4· ·do everything in a week, but this time it's on a new ·5· ·level of -- you know, we have so many new ·6· ·applications. ·7· · · · · · ·Which they all sound great, and we want to ·8· ·learn how to use them, but we're just -- it's a lot ·9· ·in a little bit of time to start trying to implement 10· ·them, with such little time of training and -- and 11· ·being able to practice with them. 12· · · · Q.· ·Do you feel like you've been properly 13· ·prepared to return to the classroom, though, 14· ·Mr. Escobar, to avoid COVID-19? 15· · · · A.· ·Oh, absolutely not. 16· · · · Q.· ·Are you concerned -- tell me a little bit 17· ·about your concerns, Mr. Escobar, about -- given 18· ·your condition. 19· · · · · · ·I know that you're paralyzed, you know, 20· ·essentially from the waist down, or at least have 21· ·extremely limited mobility.· Tell me about your 22· ·concerns being forced back into the classroom. 23· · · · A.· ·Yeah, so I'm not -- I'm not scared, 24· ·because I don't live based off of fear or anything 25· ·like that.· It's just that I understand the risks
0473 Page 377 ·1· ·that I would be taking. ·2· · · · · · ·I have a wife and son at home.· I'm the ·3· ·-- you know, basically the main breadwinner in the ·4· ·home.· My wife has a little small business, but it's ·5· ·not anywhere near that we'd be able to just me quit ·6· ·and go home and give up teaching just so that I ·7· ·would not be at risk. ·8· · · · · · ·And if I were to, you know, catch COVID ·9· ·and be in that situation, it would -- it would be 10· ·very damaging to me and my family. 11· · · · Q.· ·Okay.· We had a teacher that testified a 12· ·little earlier that he's probably going to have to 13· ·retire prematurely if he's required to go back into 14· ·schools.· You don't have that choice, though, do 15· ·you, Mr. Escobar? 16· · · · A.· ·No, I can't retire. 17· · · · Q.· ·Is that -- like you testified earlier, is 18· ·that due to the fact that you've got a wife and 19· ·child to support? 20· · · · A.· ·Yeah. 21· · · · · · ·Also, I've only been teaching eight years. 22· ·I don't know -- I don't think I would make enough 23· ·during retirement to -- you know, to survive off 24· ·that.· I've been -- honestly, I've been doing my due 25· ·diligence to try to apply to other jobs, to have
0474 Page 378 ·1· ·just a backup in case I was put in a very difficult ·2· ·situation. ·3· · · · · · ·But because my degree is, you know, ·4· ·specialized in education, it's hard to -- you know, ·5· ·just because I have a bachelor's doesn't mean that I ·6· ·can qualify for other working positions to be able ·7· ·to transfer and work in another field. ·8· · · · Q.· ·Yeah. ·9· · · · · · ·Tell me a little bit about -- more about 10· ·your background, Mr. Escobar.· Obviously you went to 11· ·Nova Southeastern.· Was it your intent -- or how 12· ·early on was it your intent to become a teacher? 13· ·Obviously you got a degree in essentially teaching, 14· ·but -- 15· · · · A.· ·Yeah. 16· · · · · · ·So I went to -- I went to Broward College 17· ·for a couple years.· I got my degree in finance, 18· ·which I wanted to get just so I can, like, work a 19· ·bookkeeping job while I went to a four-year degree. 20· ·But I quickly found out that you need more than an 21· ·associate's degree to be a bookkeeper, for the most 22· ·part. 23· · · · · · ·But I ended up getting a scholarship, and 24· ·my full intent was to teach, you know, high school 25· ·math, be a coach, an athletic coach.· I coached here
0475 Page 379 ·1· ·for about six or seven years. ·2· · · · · · ·Recently, you know, stopped doing that so ·3· ·I could spend more time with family.· But, yeah. ·4· · · · Q.· ·Well, tell me, when did you decide to ·5· ·become a teacher? ·6· · · · A.· ·In -- I've always had an enjoyment for ·7· ·math, and I've always loved to tutor my friends and ·8· ·other students.· So about 2010 is when I decided, ·9· ·you know, I really want to pursue this and be an 10· ·educator. 11· · · · Q.· ·And just so we're clear, did you have to 12· ·go back to school and essentially start a new 13· ·degree, to a certain extent, to then get a degree to 14· ·become a teacher? 15· · · · A.· ·No, because when I graduated from Broward 16· ·College, I had -- I had most of my -- I had basic 17· ·credits, so when I went to -- well, I mean, I guess 18· ·a little bit, because I would have normally just had 19· ·the two years at Nova Southeastern. 20· · · · · · ·But because I didn't have any of the 21· ·education credits, I had to start -- you know, and 22· ·it took about three years to graduate from Nova 23· ·Southeastern. 24· · · · Q.· ·Got you. 25· · · · · · ·And did you have any student loans or
0476 Page 380 ·1· ·anything like that from Nova? ·2· · · · A.· ·Yeah.· Yeah. ·3· · · · Q.· ·Are you using your teaching salary to try ·4· ·and pay those off, or are you hoping those will be ·5· ·forgiven under a repayment program of some sort? ·6· · · · A.· ·Yeah, part of it has been forgiven.· I was ·7· ·planning on, at the very minimum, you know, making ·8· ·sure that I taught for ten years so that there -- ·9· ·all of my student loans would be forgiven. 10· · · · Q.· ·So if you were -- if you had to quit or 11· ·change professions, not only would you have to 12· ·forfeit your eight years of -- eight years of 13· ·history in teaching, whatever retirement benefits 14· ·might come with that down the road, your salary, but 15· ·also potentially your loan forgiveness? 16· · · · A.· ·Yes. 17· · · · Q.· ·Okay.· And I've just got a few more 18· ·questions, Mr. Escobar.· I appreciate your time. I 19· ·know it's probably not very comfortable to sit still 20· ·this long, especially with your condition. 21· · · · · · ·As it stands now, based on what you know 22· ·specifically, Mr. Escobar, as a teacher of eight 23· ·years, and what you've seen in your school and in 24· ·your community of teachers, do you think it's safe 25· ·for us to be forcing teachers back into the
0477 Page 381 ·1· ·classroom before the end of August? ·2· · · · A.· ·No. ·3· · · · Q.· ·Okay.· And have you been able to see some ·4· ·of these statements that might have been put on the ·5· ·news, or maybe even a part of our case, that the ·6· ·governor and the Department of Education, ·7· ·Commissioner Corcoran, have said, look, we should ·8· ·give parents a choice, but also teachers should have ·9· ·a choice, and they shouldn't be forced back into the 10· ·classroom? 11· · · · · · ·Have you seen those statements? 12· · · · A.· ·Yes, I have. 13· · · · Q.· ·Given the ongoing pandemic, would it be -- 14· ·would it be -- if it was your choice, would you 15· ·return to live face-to-face instruction? 16· · · · A.· ·No, I would not. 17· · · · Q.· ·So do you believe -- according to what the 18· ·governor and the commissioner of education have 19· ·said, do you believe that you even have a choice? 20· · · · A.· ·No, I don't. 21· · · · Q.· ·Okay.· Other than the choice, obviously, 22· ·being to forfeit all those things we just talked 23· ·about, quit your job? 24· · · · A.· ·Yeah. 25· · · · Q.· ·And then try and find a new career?
0478 Page 382 ·1· · · · A.· ·Correct. ·2· · · · Q.· ·Or return to face-to-face instruction? ·3· · · · A.· ·Correct. ·4· · · · · · ·MR. WIELAND:· Your Honor, the witness can ·5· · · · be yielded for cross-examination. ·6· · · · · · ·Before that, I would like to move into ·7· · · · evidence the images that Mr. Escobar took ·8· · · · himself and testified to.· They are Plaintiffs' ·9· · · · Exhibit No. 35. 10· · · · · · ·THE COURT:· Any objection to No. 35? 11· · · · · · ·MR. HILL:· No, Your Honor. 12· · · · · · ·THE COURT:· Plaintiff 35 is admitted. 13· · · · · · ·(Thereupon, received in evidence as 14· · · · Plaintiffs' Exhibit 35.) 15· · · · · · ·THE COURT:· Cross? 16· · · · · · ·MR. HILL:· Thank you, Your Honor. 17· · · · · · · · · · CROSS EXAMINATION 18· · ·BY MR. HILL 19· · · · Q.· ·Good afternoon, Mr. Escobar. 20· · · · A.· ·Good afternoon. 21· · · · Q.· ·First of all, thank you for testifying 22· ·here today, and thank you for being a teacher.· I am 23· ·also a product of the Florida public schools, and as 24· ·it happens, of Gateway High School. 25· · · · · · ·So I -- I know that teachers can be an
0479 Page 383 ·1· ·important part of a student's life, and I'm sure you ·2· ·would agree with me that teachers are very important ·3· ·for students; is that right? ·4· · · · A.· ·That's correct. ·5· · · · Q.· ·And I -- I'm sure you probably also agree ·6· ·with me that remote education is no substitute for ·7· ·an in-person teacher; is that right as well? ·8· · · · A.· ·I mean, it just depends on the student, ·9· ·but I think most students prefer in-teacher, you 10· ·know, education, but a lot of student -- I mean, 11· ·there's a few students -- I don't know how many, but 12· ·I would say there's a percentage of students that 13· ·prefer online education and the flexibility that it 14· ·provides. 15· · · · Q.· ·So do you know how many -- approximately 16· ·how many students chose to return in person, just as 17· ·a percentage, in Osceola County? 18· · · · A.· ·Not in the county.· I think in our school, 19· ·we were almost 50/50, I think, but most were -- the 20· ·majority, I believe, at our school were choosing to 21· ·do digital.· I mean -- but a slight majority, I 22· ·think. 23· · · · Q.· ·Okay.· So somewhere around 50/50 chose to 24· ·come back; is that what you're saying? 25· · · · A.· ·I would -- yeah, I think so.
0480 Page 384 ·1· · · · Q.· ·Okay.· And I believe you also said that ·2· ·the school district and the school board was going ·3· ·to try to offer teachers an option to teach ·4· ·virtually or teach in-person; is that correct? ·5· · · · A.· ·The -- the school district, they said that ·6· ·teachers would have an option to teach remotely or ·7· ·to be face to face.· They would have to communicate ·8· ·with the principal. ·9· · · · Q.· ·And in fact, you've asked for 10· ·accommodations like that, haven't you, to be able to 11· ·teach remotely for as long as possible, right? 12· · · · A.· ·Yes. 13· · · · Q.· ·But the reason why you can't do that, and 14· ·why maybe someone who teaches might not be able to 15· ·do that is because a lot of students have chosen to 16· ·come back to school; isn't that right? 17· · · · A.· ·I don't know if it's directly related to 18· ·the amount of students that have chosen to come 19· ·back.· But just the difficulty in scheduling they're 20· ·having.· They're having difficulty in just 21· ·scheduling, period, the number of students for 22· ·teachers. 23· · · · Q.· ·Well, if less students chose to come back 24· ·to school, there's a much greater likelihood that 25· ·you would have actually been able to stay as a
0481 Page 385 ·1· ·remote teacher, right?· Would you agree with that? ·2· · · · A.· ·Yeah. ·3· · · · Q.· ·And you also have a contract with the ·4· ·school district, don't you? ·5· · · · A.· ·Yes. ·6· · · · Q.· ·And that contract is part of a collective ·7· ·bargaining process with the union; is that right? ·8· · · · A.· ·Yes. ·9· · · · Q.· ·Are you a member of any teachers unions? 10· · · · A.· ·Yes.· I'm a member of Osceola's union. 11· · · · Q.· ·And you know that your contract has a 12· ·grievance procedure in it that has arbitration 13· ·provisions and things like that? 14· · · · A.· ·Yeah, I believe so. 15· · · · Q.· ·And -- I'm sorry? 16· · · · A.· ·I believe so. 17· · · · Q.· ·And so if you have -- so if you were 18· ·improperly fired, if you have a dispute about your 19· ·working conditions, you would be able to bring a 20· ·claim under your contract against the school 21· ·district, wouldn't you? 22· · · · A.· ·I -- I haven't had to use that or do that, 23· ·so I'm not aware of the procedures of that process. 24· · · · Q.· ·Okay.· Fair enough. 25· · · · · · ·MR. HILL:· May I have a moment, Your
0482 Page 386 ·1· · · · Honor? ·2· · · · · · ·THE COURT:· Sure. ·3· · · · · · ·MR. HILL:· Thank you very much, ·4· · · · Mr. Escobar. ·5· · · · · · ·I have no further questions, Your Honor. ·6· · · · · · ·THE COURT:· Any redirect? ·7· · · · · · ·MR. WIELAND:· Briefly, Your Honor. ·8· · · · · · · · · ·REDIRECT EXAMINATION ·9· · ·BY MR. WIELAND 10· · · · Q.· ·Mr. Escobar, what was communicated to you 11· ·as to requests or how to request an accommodation? 12· · · · A.· ·To speak to Risks and Benefits, and then I 13· ·spoke to them, and they told me to speak to my 14· ·principal, and my principals -- you know, they do 15· ·what they did, but they were told -- he told me that 16· ·they were required to give those -- those cases, 17· ·refer them back to district. 18· · · · Q.· ·So essentially, that was not -- your 19· ·request was not accepted? 20· · · · A.· ·Correct. 21· · · · Q.· ·Okay.· And you're being forced to return 22· ·to the classroom for live instruction? 23· · · · A.· ·Yes. 24· · · · Q.· ·Okay.· And I know you're unfamiliar with 25· ·the grievance procedure, but based on your
0483 Page 387 ·1· ·understanding, do you think a grievance procedure is ·2· ·even plausible at this point in time, with us ·3· ·returning to school on Monday? ·4· · · · · · ·I'm sorry, can you answer that again, just ·5· ·for the record? ·6· · · · A.· ·No, I don't believe so. ·7· · · · Q.· ·Okay.· As it stands now, are you being ·8· ·forced to make a choice between returning to the ·9· ·classroom or -- and putting your health at risk, or 10· ·losing your career? 11· · · · A.· ·That is correct. 12· · · · · · ·MR. WIELAND:· I have no further questions, 13· · · · Your Honor. 14· · · · · · ·THE COURT:· May Mr. Escobar be excused? 15· · · · · · ·MR. MEYER:· Yes, he may. 16· · · · · · ·MR. HILL:· Yes, Your Honor. 17· · · · · · ·THE COURT:· Mr. Escobar, you're free to 18· · · · leave the meeting.· Thank you, sir. 19· · · · · · ·THE WITNESS:· Thank you very much. 20· · · · · · ·MR. MEYER:· Your Honor, I'm going to ask 21· · · · Mr. Stuart, who I believe has now got the 22· · · · exhibit numbers correct -- toss it over to him, 23· · · · and then afterwards, Ms. Aguila will address 24· · · · the evidence that we yet have to move into the 25· · · · record.
0484 Page 388 ·1· · · · MR. STUART:· Thank you, Mr. Meyer. ·2· · · · Your Honor, I apologize for the ·3· ·inconvenience before, I just screwed up my ·4· ·notes.· If we could proceed, there's several ·5· ·exhibits we want to move in. ·6· · · · First is Plaintiffs' Exhibit 3, CDC ·7· ·Activities Initiatives for COVID-19 Response. ·8· ·There is -- Mr. Wells, can you hear me as well ·9· ·too, sir? 10· · · · MR. WELLS:· Yes, I just didn't get the -- 11· ·sorry, my eyes are really a problem this 12· ·afternoon, so give me a second.· Exhibit 3? 13· · · · MR. STUART:· Yes, sir. 14· · · · MR. WELLS:· CDC, yeah, that's fine. 15· · · · (Thereupon, marked for identification is 16· ·Plaintiffs' Exhibit 3.) 17· · · · MR. STUART:· Yes, sir.· Exhibit 4 -- 18· · · · THE COURT:· Hang on a second.· Exhibit 3 19· ·is admitted. 20· · · · (Thereupon, received in evidence as 21· ·Plaintiffs' Exhibit 3.) 22· · · · MR. STUART:· Thank you, Your Honor. 23· · · · May I proceed? 24· · · · THE COURT:· Yes, please. 25· · · · MR. STUART:· Yes, sir.· Plaintiffs'
0485 Page 389 ·1· ·Exhibit No. 4, World Health Organization, ·2· ·"Public health criteria to address public ·3· ·health and social measures in the context of ·4· ·COVID-19." ·5· · · · (Thereupon, marked for identification is ·6· ·Plaintiffs' Exhibit 4.) ·7· · · · MR. WELLS:· No objection. ·8· · · · THE COURT:· Plaintiffs' 4 is admitted. ·9· · · · (Thereupon, received in evidence as 10· ·Plaintiffs' Exhibit 4.) 11· · · · MR. STUART:· Plaintiffs' Exhibit 7, 12· ·Transcript for CDC Telebriefing on new 13· ·Resources and Tools to Support Opening Schools. 14· · · · MR. WELLS:· No objection. 15· · · · (Thereupon, marked for identification is 16· ·Plaintiffs' Exhibit 7.) 17· · · · THE COURT:· Plaintiffs' 7 is admitted. 18· · · · (Thereupon, received in evidence as 19· ·Plaintiffs' Exhibit 7.) 20· · · · MR. STUART:· Plaintiffs' Exhibit 13, AAP 21· ·and CHA - Children and COVID-19 State Data 22· ·Report. 23· · · · MR. WELLS:· No objection. 24· · · · THE COURT:· Plaintiffs' 13 is admitted. 25
0486 Page 390 ·1· · · · (Thereupon, received in evidence as ·2· ·Plaintiffs' Exhibit 13.) ·3· · · · MR. STUART:· I have Exhibit No. -- sorry. ·4· ·The last one is Exhibit 57, which is the ·5· ·COVID-19 Planning Considerations:· Guideline ·6· ·for School Reentry. ·7· · · · MR. WELLS:· No objection. ·8· · · · (Thereupon, marked for identification is ·9· ·Plaintiffs' Exhibit 57.) 10· · · · THE COURT:· Plaintiffs' 57 is admitted. 11· · · · (Thereupon, received in evidence as 12· ·Plaintiffs' Exhibit 57.) 13· · · · MR. STUART:· And that's all I have at this 14· ·moment, Your Honor.· Thank you. 15· · · · MR. MEYER:· Your Honor, I believe 16· ·Ms. Aguila is prepared to provide the listing 17· ·of our other exhibits that need to be admitted. 18· ·She's going to be on Mr. Coffey's microphone. 19· · · · THE COURT:· Ms. Aguila. 20· · · · MS. AGUILA:· Thank you. 21· · · · Okay.· Going through the remaining 22· ·exhibits, Exhibits 1 and 2 are Department 23· ·of Health press releases. 24· · · · (Thereupon, marked for identification is 25· ·Plaintiffs' Exhibit 1 and 2.)
0487 Page 391 ·1· · · · THE COURT:· Any objection to 1 and 2? ·2· · · · MS. AGUILA:· Is there any objection? ·3· · · · MR. WELLS:· No. ·4· · · · THE COURT:· So 1 and 2 are admitted. ·5· · · · (Thereupon, received in evidence as ·6· ·Plaintiffs' Exhibits 1 and 2.) ·7· · · · MS. AGUILA:· No. 6 is also a Department ·8· ·of Health press release. ·9· · · · MR. WELLS:· No objection. 10· · · · (Thereupon, marked for identification is 11· ·Plaintiffs' Exhibit 6.) 12· · · · THE COURT:· Plaintiffs' 6 is admitted. 13· · · · (Thereupon, received in evidence as 14· ·Plaintiffs' Exhibit 6.) 15· · · · MS. AGUILA:· No. 7 was just admitted, 16· ·correct? 17· · · · THE COURT:· Correct. 18· · · · MS. AGUILA:· Okay.· No. 9 is a public 19· ·records request that we made to the Florida 20· ·Department of Education.· No. 9 and 17 are both 21· ·letters from our law firm to the Department 22· ·of Education. 23· · · · (Thereupon, marked for identification is 24· ·Plaintiffs' Exhibits 9 and 17.) 25· · · · THE COURT:· Any objection to 9 and 17?
0488 Page 392 ·1· · · · MR. WELLS:· Well, I don't know what the ·2· ·relevance are of public records requests in ·3· ·this matter, Your Honor. ·4· · · · MS. AGUILA:· We've also included the ·5· ·entire production from the Department of ·6· ·Education as Exhibit -- as Exhibit 48, and ·7· ·those are documents we will likely be relying ·8· ·on tomorrow. ·9· · · · (Thereupon, marked for identification is 10· ·Plaintiffs' Exhibit 48.) 11· · · · MR. WELLS:· Your Honor -- 12· · · · THE COURT:· So there's objection to 9 and 13· ·17 based on relevance? 14· · · · MR. WELLS:· Yes, Your Honor.· And then the 15· ·Exhibit 48, if I read this right, is 1,100 16· ·pages that we have not had the opportunity to 17· ·review and decide on an individual basis. 18· · · · MS. AGUILA:· They were -- they were 19· ·produced by your client. 20· · · · MR. WELLS:· Yeah, pursuant to the public 21· ·records request, and now you're asking to put 22· ·in 1,100 pages of documents.· And, you know, 23· ·our objection is we have not had a chance to 24· ·review each of these individual documents to 25· ·know which ones may or may not be appropriate
0489 Page 393 ·1· ·to be in. ·2· · · · THE COURT:· I think those objections are ·3· ·well taken.· I'm not going to allow 9, 17 -- I ·4· ·may or may not allow 48.· But I'm not going to ·5· ·just do a blanket admission of 1,138 pages just ·6· ·because they were produced. ·7· · · · MS. AGUILA:· Okay.· The request for -- ·8· ·public record request specifically asks for ·9· ·documents relied on in making the emergency 10· ·order, if the relevance is any -- any help. 11· ·But we may rely on them individually tomorrow. 12· · · · THE COURT:· Okay.· Any others? 13· · · · MS. AGUILA:· Twenty-one and 25 are also 14· ·related to the public record request, so those 15· ·will all be grouped together. 16· · · · (Thereupon, marked for identification is 17· ·Plaintiffs' Exhibit 21 and 25.) 18· · · · MR. WELLS:· Twenty-one and 25, the same 19· ·objection, Your Honor.· Now we're talking about 20· ·the responses to the request. 21· · · · THE COURT:· Same ruling.· Twenty-one and 22· ·25 will not be admitted. 23· · · · MS. AGUILA:· All right.· And then we have 24· ·a series of declarations. 25· · · · The parties agreed beforehand that we
0490 Page 394 ·1· ·would be submitting some evidence by ·2· ·declaration because we wouldn't have time to ·3· ·present all of the witnesses.· So that's ·4· ·Exhibit 10. ·5· · · · Dr. Hourihan, she actually submitted the ·6· ·same declaration as part of our motion for ·7· ·injunctive relief, so that's already on the ·8· ·record. ·9· · · · THE COURT:· Now, you can just say the 10· ·numbers, if they've already been agreed to. 11· · · · MS. AGUILA:· Okay.· No. 10, No. 16, 18, 19 12· ·and 20, 22 and 23, 32, 33, and No. 60. 13· · · · (Thereupon, marked for identification is 14· ·Plaintiffs' Exhibits 10, 16, 18, 19, 20, 22, 15· ·23, 32, 33, and 60.) 16· · · · MR. WELLS:· And 60.· Okay. 17· · · · THE COURT:· Any objection to those, 18· ·Mr. Wells? 19· · · · MR. WELLS:· No, Your Honor.· We agreed on 20· ·both sides, given the amount of time that -- 21· · · · THE COURT:· Okay.· Plaintiffs' 10, 16, 18, 22· ·19, 20, 22, 23, 32, 33, and 60 are admitted. 23· · · · (Thereupon, received in evidence as 24· ·Plaintiffs' Exhibits 10, 16, 18, 19, 20, 22, 25· ·23, 32, 33, 60.)
0491 Page 395 ·1· · · · MS. AGUILA:· Exhibit No. 14 is the ·2· ·Hillsborough County agenda of the August 6th ·3· ·meeting that was discussed with the first ·4· ·witness. ·5· · · · (Thereupon, marked for identification is ·6· ·Plaintiffs' Exhibit 14.) ·7· · · · THE COURT:· Any objection? ·8· · · · MR. WELLS:· No, Your Honor. ·9· · · · THE COURT:· Fourteen's admitted. 10· · · · (Thereupon, received in evidence as 11· ·Plaintiffs' Exhibit 14.) 12· · · · MS. AGUILA:· Okay.· No. 26, 28, 29, 30 and 13· ·31 are the Department of Health's daily reports 14· ·for these counties, Hillsborough, Manatee, 15· ·Orange, Osceola, and the state of Florida for 16· ·COVID-19.· It has -- it tracks hospital beds, 17· ·positivity rate by state -- by county daily. 18· · · · (Thereupon, marked for identification is 19· ·Plaintiffs' Exhibits 26, 28, 29, 30, and 31.) 20· · · · THE COURT:· Any objection to those? 21· · · · MR. WELLS:· I'm sorry, I got lost.· When I 22· ·saw the reports, I thought -- Ms. Aguila, I 23· ·thought you were talking about the school 24· ·report. 25· · · · So 28, 29, 30, and what was the other one?
0492 Page 396 ·1· · · · THE COURT:· I think it was 26, 28, 29, 30, ·2· ·and 31. ·3· · · · MR. WELLS:· Okay.· Those are just the ·4· ·reports for those particular days as to what ·5· ·the COVID rates were?· No objection. ·6· · · · MS. AGUILA:· Right. ·7· · · · THE COURT:· All right.· Those are ·8· ·admitted. ·9· · · · (Thereupon, received in evidence as 10· ·Plaintiffs' Exhibits 26, 28, 29, 30, 31.) 11· · · · MS. AGUILA:· Okay.· Exhibit 34 is the 12· ·sources, the bibliography, from the composite 13· ·video of Governor DeSantis and Richard 14· ·Corcoran. 15· · · · (Thereupon, marked for identification is 16· ·Plaintiffs' Exhibit 34.) 17· · · · MR. WELLS:· I'll make the same objection 18· ·we made earlier, Your Honor, but you've already 19· ·ruled, so I don't know that keeping the 20· ·bibliography out makes any difference. 21· · · · THE COURT:· Right.· So same ruling, 34's 22· ·admitted. 23· · · · (Thereupon, received in evidence as 24· ·Plaintiffs' Exhibit 34.) 25· · · · MS. AGUILA:· Okay.· Then the last two,
0493 Page 397 ·1· ·Exhibit 62 and 63, those were used during the ·2· ·direct of the chief of staff of the Department ·3· ·of Health.· It's the subpoena we issued and the ·4· ·document response. ·5· · · · (Thereupon, marked for identification is ·6· ·Plaintiffs' Exhibit 63.) ·7· · · · MR. WELLS:· You mean the response ·8· ·documents -- ·9· · · · MS. AGUILA:· Yes. 10· · · · MR. WELLS:· -- that you put up?· Yes, 11· ·okay.· No objection. 12· · · · THE COURT:· Okay, 62 and 63 are admitted. 13· · · · (Thereupon, received in evidence as 14· ·Plaintiffs' Exhibits 62, 63.) 15· · · · MS. AGUILA:· That's it. 16· · · · THE COURT:· Okay.· What can we do next? 17· · · · MR. MEYER:· Your Honor, we still have 18· ·pending a motion for leave to file an amicus 19· ·brief, which was filed by a group of other 20· ·organizations, as well as a motion for 21· ·admission pro hac vice for the attorney who 22· ·prepared the brief. 23· · · · Your Honor, we'd like -- 24· · · · MR. WELLS:· No objection, Your Honor.· We 25· ·don't object.
0494 Page 398 ·1· · · · MR. MEYER:· Okay. ·2· · · · MR. WELLS:· We don't object. ·3· · · · MR. MEYER:· So it's my understanding the ·4· ·State does not object, so if we could grant the ·5· ·pro hac vice and grant leave for the amicus to ·6· ·be received, I believe that's all of the ·7· ·remaining issues we have before you today, Your ·8· ·Honor. ·9· · · · THE COURT:· All right.· Both are granted 10· ·without objection. 11· · · · Now, is the plaintiff -- are the 12· ·plaintiffs finished? 13· · · · MR. MEYER:· Yes, Your Honor.· We're 14· ·resting. 15· · · · THE COURT:· Plaintiffs are resting. 16· · · · Anything we can do to get started on the 17· ·defense case today, Mr. Wells? 18· · · · MR. WELLS:· I don't think so, Your Honor, 19· ·just in terms of the folks that -- we tried to 20· ·have some folks on standby, but as we got later 21· ·in the day, we've had to let them go. 22· · · · But I don't see any problem getting our 23· ·case on tomorrow. 24· · · · THE COURT:· Tell me what we're -- we've 25· ·got left to do tomorrow, now.
0495 Page 399 ·1· · · · MR. WELLS:· Oh, my goodness.· Is our ·2· ·witness list here? ·3· · · · MR. HILL:· Somewhere, yeah. ·4· · · · MR. WELLS:· I know that we're calling ·5· ·Jacob Oliva, who's the chancellor.· We're ·6· ·calling Dr. Jay Bhattacharya -- I'm messing up ·7· ·his name as well.· We're calling -- there are ·8· ·some individual teachers, Your Honor. ·9· · · · And who else do we have? 10· · · · MR. HILL:· We have some Department 11· ·of Education witnesses. 12· · · · MR. WELLS:· Oh, some Department 13· ·of Education witnesses as well, Your Honor, but 14· ·they'll be brief. 15· · · · THE COURT:· So if we start at 8:30 again 16· ·tomorrow, what time -- what time would you 17· ·estimate the defense case will be finished? 18· · · · MR. WELLS:· I would say certainly by this 19· ·time.· And maybe sooner.· It's hard to guess 20· ·on -- 21· · · · THE COURT:· Right. 22· · · · MR. WELLS:· -- what cross-examination's 23· ·going to look like.· We had some very brief 24· ·cross today, and, you know, I don't know that I 25· ·can count on it necessarily tomorrow.
0496 Page 400 ·1· · · · THE COURT:· So do I need to start setting ·2· ·aside some time on Friday to finish?· I've got ·3· ·a hearing that's supposed to last all Friday ·4· ·morning. ·5· · · · MR. WELLS:· I would say that it wouldn't ·6· ·be a bad idea to use it, Your Honor, but as you ·7· ·probably saw today, I tend to be brief, and I ·8· ·think that our directs will be, you know, ·9· ·hopefully precise and focused. 10· · · · But I just -- you know, between Dr. -- 11· ·Dr. Battahomma (sic) and Mr. Oliva, I just 12· ·don't know how much time these folks are going 13· ·to take on cross, so it's hard to guess. 14· · · · THE COURT:· Well, let's -- we can look at 15· ·that tomorrow.· If we go Friday, it would 16· ·probably have to start at noon, because I've 17· ·got a hearing, and it's supposed to go, I 18· ·think, 9:30 to noon on Friday morning. 19· · · · MR. WELLS:· Thank you, Your Honor. 20· · · · Just a couple of questions around that. 21· ·Are you anticipating, when we get done, doing 22· ·any type of closing arguments or having any 23· ·type of closing briefs to deal with all the 24· ·evidence? 25· · · · THE COURT:· I would love to have that.
0497 Page 401 ·1· ·What I'm getting from the plaintiffs, though, ·2· ·is a strong sense of urgency. ·3· · · · And, I mean, y'all have given me already ·4· ·quite a few exhibits to go over.· I've got a ·5· ·stack of hard copies of the defense exhibits ·6· ·behind me here for tomorrow.· And I guess I'll ·7· ·need to ask Mr. Meyer, Mr. Coffey, Mr. Stuart, ·8· ·and Mr. Wieland how much time I've got to get ·9· ·an order out. 10· · · · MR. STUART:· Well, Your Honor -- this is 11· ·Jacob Stuart, by the way. 12· · · · As Mr. Lis testified earlier today, if an 13· ·order is not entered by -- Mr. Lis, for the 14· ·record, is one of our plaintiffs, and my 15· ·client.· If an order is not entered before the 16· ·start of school Friday morning -- 17· · · · THE COURT:· I know, I heard that.· So how 18· ·in the world's that going to happen? 19· · · · MR. STUART:· I understand, Judge, the 20· ·position that unfortunately you're being put 21· ·in, but that's the relief we are requesting. 22· ·Otherwise, it becomes moot for Mr. Lis.· So 23· ·potentially, you know, a temporary order 24· ·forcing Orange County not to open.· If you need 25· ·more time, I'm sure we would be open to that,
0498 Page 402 ·1· ·Your Honor. ·2· · · · THE COURT:· Well, let's go as far as we ·3· ·can, tomorrow, and just -- I mean, with a case ·4· ·of this magnitude, not only the importance of ·5· ·it, but the amount of testimony and the number ·6· ·of exhibits, I would certainly like to have ·7· ·closing arguments tomorrow.· I mean, I'll be ·8· ·going through everything I can tonight. ·9· · · · MR. COFFEY:· Your Honor, this is Kendall 10· ·Coffey, and I certainly don't have anything but 11· ·the utmost respect for Mr. Stuart's clients and 12· ·their urgency.· But on the other hand, rushing 13· ·into things is -- is not always the best way to 14· ·open schools, and it's certainly not -- not 15· ·necessarily -- it's really up to Your Honor, 16· ·but the best way to make what is a truly 17· ·historic and momentous decision. 18· · · · So I would suggest this:· I think 19· ·Mr. Wells and I, or others who may be 20· ·participating in the closing argument, may have 21· ·an opportunity to do so.· But I don't want to 22· ·suggest that that puts Your Honor in a position 23· ·where this has to be decided, in particular 24· ·sometimes without the benefits of post-hearing 25· ·papers, which perhaps could be even --
0499 Page 403 ·1· ·something could be filed on Friday. ·2· · · · But this is a really, really important ·3· ·case.· We -- we think we've produced some very ·4· ·compelling evidence today, but we assume the ·5· ·other side's going to have their side of it. ·6· ·And your Honor's not -- you know, wants to hear ·7· ·both sides and review the evidence. ·8· · · · So I would suggest this way:· Is there ·9· ·anything that can be done within the Orange 10· ·County school system, if there are some 11· ·individual teachers who need a few more days to 12· ·make these important decisions, is there some 13· ·way that that can be managed or handled, so 14· ·that we're not all faced in the position of 15· ·having to have a decision in this case by, I 16· ·don't know, 10:00 tomorrow night? 17· · · · MR. WELLS:· Your Honor, just speaking for 18· ·the State, I find myself agreeing with Kendall 19· ·on not rushing it.· I'll leave it to Mr. Stuart 20· ·to speak with the folks from Orange County, but 21· ·you're truly talking about a monumental 22· ·decision here. 23· · · · You're talking about, you know, stepping 24· ·in and saying yea or nay to the opening of -- I 25· ·don't know how many more schools are left to
0500 Page 404 ·1· ·open, who all have plans to open, whose parents ·2· ·have plans to be there, and doing it on the ·3· ·heels of two days of intense testimony and ·4· ·documents, without the benefit of the time to ·5· ·look at it in briefing, I would just suggest ·6· ·that Mr. Coffey is right on that, and we should ·7· ·try to do that with the right amount of time. ·8· · · · I leave that to Your Honor.· Your Honor's ·9· ·the one standing here having to deal with the 10· ·decision. 11· · · · MR. STUART:· And, Your Honor, may I just 12· ·respond briefly, please? 13· · · · THE COURT:· Sure. 14· · · · MR. STUART:· This -- you know, we were -- 15· ·we filed the suit first, of anyone else in the 16· ·state.· We for sure understand the gravity of 17· ·the situation. 18· · · · This, though, is a motion for temporary 19· ·injunction.· This is not a hearing on the final 20· ·complaint.· This is the hearing that we pushed 21· ·forward and down in Orlando.· It was set last 22· ·week, that obviously we -- we agreed to move it 23· ·up here for a variety of reasons. 24· · · · And for purposes of our clients -- and I 25· ·have all the respect for the 67 counties and
0501 Page 405 ·1· ·what this means, but if there is some type of ·2· ·ability to do a temporary stay in Orange ·3· ·County, that certainly would be something we ·4· ·would be open to, to allow you the proper time ·5· ·to make a final decision to allow us to ·6· ·prepare. ·7· · · · But for closing arguments, I mean, my ·8· ·clients totally -- just like in opening, we ·9· ·intend -- if there are closing arguments, we 10· ·want to be part of that process in terms of the 11· ·motion for the temporary injunction, Your 12· ·Honor. 13· · · · THE COURT:· Well, I don't think I can 14· ·enter any kind of temporary stay without the 15· ·defense agreeing to it.· I just don't think I 16· ·have the -- the authority to do that. 17· · · · MR. MEYER:· Your Honor, perhaps the 18· ·defense could be of assistance in speaking with 19· ·the Orange County School District to fashion 20· ·some sort of relief temporarily, whether it be 21· ·granting leaves of absence to those people who 22· ·are faced with the dilemma that Mr. Lis is, or 23· ·some other mechanism that would both preserve 24· ·his career as well as his safety, and preserve 25· ·the right for Your Honor to get to the -- the
0502 Page 406 ·1· ·bottom of this.· I think it would -- it would ·2· ·go a long way if the -- if the State defendants ·3· ·were to work with Mr. Stuart and with the ·4· ·school district in fashioning some sort of ·5· ·relief. ·6· · · · MR. WELLS:· Your Honor -- ·7· · · · MR. STUART:· Well, I think, Judge, too, ·8· ·though, that the -- us -- part of our testimony ·9· ·put on today, especially from Dr. Burke, if the 10· ·more and more that schools open, and the more 11· ·and more, especially coming Monday, that 12· ·students and teachers are back in school, the 13· ·more we put Florida on a trajectory for a new 14· ·catastrophic outbreak. 15· · · · So that's -- again, the reason we sought 16· ·the remedy for the motion for temporary 17· ·injunction relief versus the actual complaint 18· ·is due to the nature of the pandemic we're in 19· ·right now, Your Honor. 20· · · · THE COURT:· Yeah, but I don't think -- I 21· ·mean, today we've admitted 50 exhibits -- 22· · · · MR. WELLS:· Somewhere around there. 23· · · · THE COURT:· -- about?· Maybe about there? 24· · · · Tomorrow, I'm going to have a big stack of 25· ·defense exhibits and more testimony.· And I
0503 Page 407 ·1· ·think in fairness to both sides, I've got to ·2· ·make a review of those exhibits.· I mean, there ·3· ·have been several that have been made by ·4· ·declarations, other reports from the CDC and -- ·5· ·and -- and other entities, and I don't think I ·6· ·can just look into a crystal ball at 8:00 or ·7· ·9:00 tomorrow night and make a ruling without ·8· ·reviewing the evidence. ·9· · · · I mean, if y'all put that in, I'm assuming 10· ·you wanted me to look at it. 11· · · · MR. COFFEY:· That's fine. 12· · · · MR. STUART:· I understand what you're 13· ·saying, Your Honor, and I fully appreciate the 14· ·gravity, again. 15· · · · But from our perspective, if schools 16· ·continue to open, the testimony that Dr. Burke 17· ·elicited -- or was elicited from Dr. Burke 18· ·proves the fact that Florida will find itself 19· ·again in a very dangerous situation. 20· · · · So our purpose of seeking temporary relief 21· ·to allow you time to decide on the overall 22· ·merits of the complaint -- I mean, our motion 23· ·for temporary relief mirrors -- is almost 24· ·identical to our original complaint, verified 25· ·complaint.· You would be afforded the time to
0504 Page 408 ·1· ·make the final decision. ·2· · · · But certainly you have the right under the ·3· ·temporary relief in the complaint to enter the ·4· ·temporary injunction to allow you to make the ·5· ·final decision, Your Honor. ·6· · · · MR. COFFEY:· Your Honor, forgive me if I'm ·7· ·restating it, but we want the evidence ·8· ·reviewed.· We -- we want this -- we don't want ·9· ·to put Your Honor in a position of not having 10· ·an opportunity to consider the evidence that's 11· ·been admitted into this case. 12· · · · And if there is a need -- and we will move 13· ·at your pace, Judge.· We'll move as fast as 14· ·humanly possible.· If the Court has any 15· ·interest, after tomorrow, in some kind of 16· ·hearing brief, we'll submit it Friday, we'll 17· ·submit it Saturday. 18· · · · We will not stop working.· We know how 19· ·urgent this is.· But it's got to be done in the 20· ·appropriate judicial way. 21· · · · MR. STUART:· And there's no question about 22· ·that, but every day we go by and allow more 23· ·teachers and students to be in school, creates 24· ·the effect that we're all trying to prevent. 25· · · · At least both sides can agree to that, we
0505 Page 409 ·1· ·all want safe schools, safe teachers, a safe ·2· ·society, but we're talking -- this case has an ·3· ·impact on over 22 million Floridians, and it ·4· ·would just -- from our point of view, from ·5· ·Ms. Bellefleur, Mr. Lis, Ms. Hammond, and ·6· ·Ms. Monroe, on behalf of them and what their ·7· ·claims are, it would make immediate sense to -- ·8· ·from our position here, for you to consider the ·9· ·motion of temporary relief. 10· · · · And if you're not inclined to do that, 11· ·then you would consider the merits of the 12· ·complaint, which is the way that we originally 13· ·filed it, Your Honor.· Because waiting 14· ·undercuts what the purpose of this emergency 15· ·relief was sought for back in July. 16· · · · THE COURT:· Oh, I understand that.· But I 17· ·don't think I can just make an off-the-cuff 18· ·decision of this magnitude without going over 19· ·all the evidence.· I -- I understand, and I 20· ·understand the plaintiffs' positions, I 21· ·understand the defendants' positions.· So I 22· ·think I've got to hear both sides. 23· · · · I think the fastest I can do this is y'all 24· ·get me proposed orders, no more than 15 pages, 25· ·by 5:00 Friday, and let me work on it this
0506 Page 410 ·1· ·weekend, and try to get out something as early ·2· ·next week as I can. ·3· · · · MR. RICHARD:· Your Honor, if I may, it's ·4· ·Mark Richard.· I was lead counsel on the ·5· ·mediation.· And I'm sure Mr. Wells will agree, ·6· ·when we're off out of court today, we can still ·7· ·talk about these other issues amongst the ·8· ·parties.· But we'll surely comply with your ·9· ·schedule. 10· · · · THE COURT:· I would be delighted if I got 11· ·an email about 8:00 tonight saying y'all had 12· ·resolved your differences. 13· · · · MR. RICHARD:· We'll try to send it, Judge. 14· ·We'll try to send it. 15· · · · THE COURT:· So let's just -- y'all be back 16· ·tomorrow morning at 8:30.· My present thinking 17· ·is I'm going to need proposed orders from both 18· ·sides by Friday, 5:00 p.m., no more than 19· ·15 pages, so that I can work on that and get an 20· ·order out as soon as possible. 21· · · · MR. WELLS:· Okay.· Will do, Your Honor. 22· · · · THE COURT:· Anything further today? 23· · · · MR. MEYER:· Great, Your Honor.· No.· Thank 24· ·you, Your Honor. 25· · · · THE COURT:· I'll see y'all at 8:30
0507 Page 411 ·1· ·tomorrow morning.· Great.· Thanks. ·2· · · · (Proceedings adjourned at 4:40 p.m. and ·3· ·continued in Volume 4.) ·4 ·5 ·6 ·7 ·8 ·9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
0508 Page 412 ·1· · · · · · · · · · COURT CERTIFICATE
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·4· ·STATE OF FLORIDA
·5· ·COUNTY OF LEON
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·7· · · · · · ·I, MARYKAY HORVATH, RPR CRR, FPR, certify
·8· · · · that I was authorized to and did
·9· · · · stenographically report the foregoing
10· · · · proceedings, and that the transcript is a true
11· · · · and complete record of my stenographic notes.
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13· · · · · · ·Dated this 27th day of August 2020.
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16· ·______· · · · · MARYKAY HORVATH, RPR, CRR, FPR 17
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0509 0510 0511 0512 0513 0514 0515 0516 0517 0518 0519 0520 0521 0522 0523 0524 0525 0526 0527 0528 0529 0530 0531 0532 0533 0534 0535 0536 0537 0538 0539 0540 0541 0542 0543 0544 0545 0546 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT · · · · · IN AND FOR LEON COUNTY, FLORIDA
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· · · · · · · CASE NO.:· 2020 CA 1450
FLORIDA EDUCATION ASSOCIATION; STEFANIE BETH MILLER, LADARA ROYAL; MINDY FESTGE; VICTORIA DUBLINO-HENJES; and ANDRES HENJES,
· · · · · · · ·Plaintiffs, vs.
RON DESANTIS, in his official capacity as Governor of the State of Florida; RICHARD CORCORAN, in his official capacity as Florida Commissioner of Education; FLORIDA DEPARTMENT OF EDUCATION; and FLORIDA BOARD of EDUCATION,
· · · · · · · ·Defendants. ______/
· · · · · (Consolidated with:)
0547 Page 414 · · · · · · · ·CASE NO.:· 2020 CA 1467
MONIQUE BELLEFLEUR, individually and on behalf of D.B. Jr., M.B., and D.B. and KATHRYN HAMMOND, ASHLEY MONROE, and JAMES LIS, · · · · · · · ·Plaintiffs, vs. RON DESANTIS, Governor of Florida, in his official capacity as Chief Executive Officer of the State of Florida, ANDY TUCK, in his official capacity as the chair of the State Board of Education, STATE BOARD of EDUCATION, RICHARD CORCORAN, in his official capacity as Commissioner of the Florida Department of Education, FLORIDA DEPARTMENT OF EDUCATION, JACOB OLIVA, in his official capacity as Chancellor, Division of Public Schools, TERESA JACOBS, in her official capacity as the chair of the SCHOOL BOARD OF ORANGE COUNTY, BARBARA JENKINS, in her official capacity as the Superintendent of Orange County Public Schools, and ORANGE COUNTY PUBLIC SCHOOLS, · · · · · · · Defendants.
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· TRANSCRIPT OF WEB CONFERENCE HEARING PROCEEDINGS · · PLAINTIFFS' EXPEDITED MOTION FOR TEMPORARY · · · · · · · · · · ·INJUNCTION
· · · · · · ·VOLUME 4 (Pages 413 - 600)
· ·DATE TAKEN:· Thursday, August 20th, 2020 · ·TIME:· · · · 8:33 a.m. to 12:41 p.m. · ·PLACE:· · · ·Leon County Courthouse · · · · · · · · 301 South Monroe Street · · · · · · · · Tallahassee, Florida 32301 · ·BEFORE:· · · Charles Dodson, Circuit Judge · · · · · · · · · · ·(via Zoom)
· · ·This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were stenographically reported via Zoom by:
· · · · · ·MaryKay Horvath, RPR, CRR, FPR · · · · · · Certified Realtime Reporter
Job No.: 151242
0548 Page 415 ·1· ·APPEARANCES: (all appearing via videoconference)
·2· ·On behalf of Plaintiffs Florida Education · · ·Association, Stefanie Beth Miller, Ladara Royal, ·3· ·Mindy Festge, Victoria Dublino-Henjes, and Andres · · ·Henjes: ·4 · · · · · MEYER, BROOKS, BLOHM & HEARN, P.A. ·5· · · · 131 North Gadsden Street · · · · · Post Office Box 1547 ·6· · · · Tallahassee, Florida 32301 · · · · · (850)878-5212 ·7· · · · BY:· RONALD G. MEYER, ESQ. · · · · · [email protected] ·8
·9· · · · COFFEY BURLINGTON, P.L. · · · · · 2601 South Bayshore Drive 10· · · · Penthouse · · · · · Miami, Florida 33133 11· · · · (305)858-2900 · · · · · BY:· KENDALL B. COFFEY, ESQ. 12· · · · [email protected] · · · · · · · ·JOSEFINA M. AGUILA, ESQ. 13· · · · [email protected] · · · · · · · ·SCOTT A. HIAASEN, ESQ. 14· · · · [email protected]
15· · · · PHILLIPS & RICHARD, P.A. · · · · · 9360 Southwest 72nd Street 16· · · · Suite 283 · · · · · Miami, Florida 33173 17· · · · (305)412-8322 · · · · · BY:· MARK H. RICHARD, ESQ. 18· · · · [email protected]
19· · · · FLORIDA EDUCATION ASSOCIATION · · · · · 213 South Adams Street 20· · · · Tallahassee, Florida 32301 · · · · · (850)201-3382 21· · · · BY:· KIMBERLY C. MENCHION, ESQ. · · · · · [email protected] 22
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·2· ·On behalf of Defendants:
·3· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 225 Water Street ·4· · · · Suite 1750 · · · · · Jacksonville, Florida 32202 ·5· · · · (904)354-1980 · · · · · BY:· DAVID M. WELLS, ESQ. ·6· · · · [email protected]
·7· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 200 South Orange Avenue ·8· · · · Suite 1400 · · · · · Florida Orlando, Florida 32801 ·9· · · · (407)648-5077 · · · · · BY:· NATHAN W. HILL, ESQ. 10· · · · [email protected]
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0550 Page 417 ·1· · · · · · · · · · · · I N D E X
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·5· · · · · · · ·VOLUME 4 (Pages 413 - 600)
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·7· ·LINDSEY ARTHUR
·8· ·Direct· · · · · · · By Mr. Hill· · · · · · · 420 · · ·Cross· · · · · · · ·By Mr. Coffey· · · · · · 438 ·9
10· ·JENNIFER TRIBBLE· · · · · · · · · · · · · · ·442
11· ·Direct· · · · · · · By Mr. Hill· · · · · · · 442
12· ·LAURA POPE· · · · · · · · · · · · · · · · · ·455
13· ·Direct· · · · · · · By Mr. Hill· · · · · · · 456
14· ·GLENTON GILZEAN· · · · · · · · · · · · · · · 468
15· ·Direct· · · · · · · By Mr. Wells· · · · · · ·468 · · ·Cross· · · · · · · ·By Mr. Stuart· · · · · · 474 16
17· ·JAYANTA BHATTACHARYA, MD, PhD· · · · · · · · 495
18· ·Direct· · · · · · · By Mr. Wells· · · · · · ·495 · · ·Cross· · · · · · · ·By Mr. Stuart· · · · · · 563 19
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0552 Page 419 ·1· ·The following proceedings via Zoom continued at 8:33 ·2· ·a.m.: ·3· · · · · · ·THE COURT:· Everybody ready to go?· Okay, ·4· · · · Mr. Wells? ·5· · · · · · ·MR. WELLS:· Actually, Mr. Hill's starting ·6· · · · today. ·7· · · · · · ·THE COURT:· All right.· Mr. Hill. ·8· · · · · · ·MR. HILL:· Thank you, Your Honor. ·9· · · · · · ·The defendants call Ms. Lindsey Arthur. 10· · · · · · ·Good morning, Ms. Arthur.· How are you 11· · · · doing today? 12· · · · · · ·THE WITNESS:· I'm well, thank you. 13· · · · · · ·THE COURT:· Let me find Ms. Arthur on my 14· · · · screen here.· Oh, there -- okay.· Ms. Arthur, I 15· · · · see you there now. 16· · · · · · ·If you'd raise your right hand, please. 17· ·Thereupon: 18· · · · · · · · · · · LINDSEY ARTHUR 19· ·having been sworn by the Court testified as follows: 20· · · · · · ·THE WITNESS:· I do. 21· · · · · · ·THE COURT:· Thank you, ma'am.· You can put 22· · · · your hand down. 23· · · · · · ·MR. HILL:· May I proceed, Your Honor? 24· · · · · · ·THE COURT:· Yes, sir. 25· · · · · · ·MR. HILL:· Thank you.
0553 Page 420 ·1· · · · · · · · · · DIRECT EXAMINATION ·2· · ·BY MR. HILL ·3· · · · Q.· ·So, good morning, Ms. Arthur.· How are you ·4· ·doing today? ·5· · · · A.· ·I'm fine, thank you very much. ·6· · · · Q.· ·So can you start by just telling me what ·7· ·it is that you do for a living. ·8· · · · A.· ·I am a special education teacher in ·9· ·Hillsborough County.· My students have varying 10· ·exceptionalities under the scope of -- they might 11· ·have Down Syndrome, or autism, or other, like I 12· ·said, intellectual disabilities, so I'm their 13· ·teacher. 14· · · · Q.· ·How long have you been a teacher? 15· · · · A.· ·I've been teaching 12 years now. 16· · · · Q.· ·And what district do you teach in 17· ·currently? 18· · · · A.· ·I'm in Hillsborough County. 19· · · · Q.· ·Have you taught in Hillsborough County for 20· ·all of those 12 years? 21· · · · A.· ·I was in Duval County in Jacksonville for 22· ·seven years, and then I moved here to Hillsborough. 23· · · · Q.· ·Have you taught special needs children for 24· ·that entire 12 years? 25· · · · A.· ·One of those years I taught resource
0554 Page 421 ·1· ·classes, and I did have some regular ed classes, but ·2· ·the rest of the time it was all special education. ·3· · · · Q.· ·What do you mean by resource classes? ·4· · · · A.· ·Resource classes is inclusion classes.· So ·5· ·it mixes some gen ed and special needs students in ·6· ·the same class. ·7· · · · Q.· ·What is your educational background? ·8· · · · A.· ·I have an undergrad and also a master's ·9· ·degree in special education. 10· · · · Q.· ·So I know you spoke a bit about this 11· ·before, but can you tell me a little bit more about 12· ·your students? 13· · · · A.· ·Sure. 14· · · · · · ·So the majority of our students -- well, 15· ·all of our students have a 70 IQ or lower in our 16· ·self-contained unit.· They require additional 17· ·support by our paraprofessionals that are in our 18· ·classes as well. 19· · · · · · ·So I would facilitate the whole group 20· ·while some of our students require one-on-one 21· ·support by a paraprofessional, other students are 22· ·in -- two to three students with a paraprofessional. 23· ·And then I will monitor the whole group while also 24· ·monitoring the behaviors of our students. 25· · · · Q.· ·Can you just explain what a
0555 Page 422 ·1· ·paraprofessional is? ·2· · · · A.· ·A paraprofessional is the additional ·3· ·support of an adult in our classroom that works with ·4· ·our students, with their academic and also their ·5· ·social-emotional goals that we have. ·6· · · · Q.· ·Were you teaching in Hillsborough County ·7· ·in this last semester?· That would be, I guess, ·8· ·spring of 2020. ·9· · · · A.· ·Yes, I was. 10· · · · Q.· ·And were you teaching a -- what type of 11· ·classes were you teaching in that last semester? 12· · · · A.· ·When -- let me clarify.· Do you mean when 13· ·we went on to the eLearning? 14· · · · Q.· ·So just go back to spring 2020. 15· · · · · · ·Were you teaching resource classes, or gen 16· ·ed, what type of classes did you have? 17· · · · A.· ·I was teaching my self-contained class 18· ·with the addition of my paraprofessionals. 19· · · · Q.· ·Okay.· And how many students were in that 20· ·class in spring of 2020? 21· · · · A.· ·We had four different groups of students 22· ·that rotated between my unit, and the students -- 23· ·one class had seven, another class had eight.· One 24· ·class had nine, and one class had ten students. 25· · · · Q.· ·Okay.· So how many students is that total?
0556 Page 423 ·1· · · · A.· ·I believe it's a little under 40. ·2· · · · Q.· ·And how does that work throughout the day? ·3· ·Do they switch to different rooms?· Can you explain ·4· ·that a little bit, please? ·5· · · · A.· ·Sure. ·6· · · · · · ·We are -- our four units are split up by ·7· ·our subject.· So I've got language arts, and I also ·8· ·have unique skills, which is working on ·9· ·social-emotional skills.· So they might start in my 10· ·class, and then after about 50 minutes they might 11· ·rotate to math or to science or to social studies. 12· · · · Q.· ·Now, do your students -- are they in a 13· ·particular grade, are they grouped by grade, or how 14· ·does that work? 15· · · · A.· ·It depends on the situation or what class 16· ·they're taking. 17· · · · · · ·My students are 6th, 7th, and 8th grade, 18· ·so some they might all go to their elective 19· ·together.· They still get to go to PE, they still 20· ·get to go and have an art or a music class.· So it 21· ·just varies on some are in their level, and some 22· ·it's a mixed group. 23· · · · Q.· ·So do you recall in March or thereabouts 24· ·in the last semester when did the school close? 25· · · · A.· ·We were supposed to come back after spring
0557 Page 424 ·1· ·break.· I think it was around March -- it was mid ·2· ·March, and then they decided not to come back after ·3· ·spring break and we went on to the eLearning. ·4· · · · Q.· ·So do you remember approximately how many ·5· ·months were you on this eLearning? ·6· · · · A.· ·So we did eLearning on the end of March, ·7· ·April, and some of -- some of May, I believe. ·8· · · · Q.· ·So roughly three months? ·9· · · · A.· ·Right.· And then I also taught summer 10· ·school through eLearning. 11· · · · Q.· ·So in the -- the first few months that you 12· ·switched to eLearning, can you just tell me about 13· ·your experience with that? 14· · · · A.· ·So it was very different.· The teachers 15· ·and the staff had to take on a new role, I guess you 16· ·could say. 17· · · · · · ·We -- we had to get -- provide all the -- 18· ·the families with their computers.· Even though a 19· ·lot of the families were provided, there were 20· ·obstacles that we seemed to face, you know, trying 21· ·to -- to teach, you know, through the eLearning 22· ·system. 23· · · · Q.· ·What were some of those obstacles? 24· · · · A.· ·Some of the parents or families simply we 25· ·could not reach.· Our paraprofessionals or a teacher
0558 Page 425 ·1· ·called every single family every single day to check ·2· ·in, ask them how we can help them.· Do you need ·3· ·assistance with anything, what can we do? ·4· · · · · · ·Either we never heard -- heard back, or ·5· ·they had issues with the technology.· Some had ·6· ·conflicts with their own schedule.· They might have ·7· ·had a meeting through their own Zoom at the same ·8· ·time.· They didn't get home from work 'til later. ·9· · · · · · ·The person that was with their student at 10· ·the house was -- simply couldn't get online for 11· ·whatever reason.· Some couldn't get the Internet 12· ·access because their credit was bad.· It didn't seem 13· ·to be an easy task for my -- for my students. 14· · · · Q.· ·So explain to me a little bit how it was 15· ·supposed to work.· Do you -- are you in school and 16· ·do you wait for them to log into a program like a 17· ·Zoom meeting like we have here? 18· · · · A.· ·Yes.· So some assignments we can post 19· ·online, and others -- we had a Zoom every day at a 20· ·certain time for each class, and we would rotate. 21· · · · · · ·So, for example, at 10:30, you know, this 22· ·group of students is supposed to log on with me and 23· ·have language arts.· Maybe let's say I had nine 24· ·students in that class, one to two were, you know, 25· ·interacting and -- and logging on, and had a parent
0559 Page 426 ·1· ·or another support that was helping them through ·2· ·that -- that time that we were doing the lessons. ·3· · · · Q.· ·So of the roughly 40 students that you had ·4· ·in the spring 2020 semester, how many did you see on ·5· ·a daily basis through this remote learning platform? ·6· · · · A.· ·On a daily basis, I would say -- well, ·7· ·it -- there's three other teachers, so each one had ·8· ·a different teacher each day.· But maybe ten. ·9· · · · · · ·And it was typically the same students 10· ·that had the support, and they were able -- because 11· ·my students need continuous support, somebody 12· ·sitting with them the entire time.· So, you know, an 13· ·adult -- excuse me.· An adult would have to be 14· ·sitting with them the entire time they were online. 15· · · · · · ·So about ten, and it was typically the 16· ·same students. 17· · · · Q.· ·So then there were some students that you 18· ·never saw at all after March? 19· · · · A.· ·Correct.· Our more independent students 20· ·completed maybe one to two of the, I don't know, 25 21· ·assignments that were posted, and then some we 22· ·reached out to every day and did not hear from. 23· · · · Q.· ·So for those students that actually 24· ·appeared and showed up, what difficulty did you 25· ·find, if any, in instructing them?
0560 Page 427 ·1· · · · A.· ·Well, there's a -- the attention span of ·2· ·any child is going to be not that long to sit on a ·3· ·computer, especially a student who has special ·4· ·needs. ·5· · · · · · ·You know, when we're in person, we want to ·6· ·differentiate instruction for the needs of each ·7· ·student, and it makes it very difficult to do that ·8· ·when you're on a computer and each student's need is ·9· ·different.· I found that, you know, our students 10· ·might wander off while we're teaching, they're -- 11· ·they have different -- they might call out while 12· ·we're calling on one student, and we can't really 13· ·provide any tactile or manipulatives or anything 14· ·interactive like we would in the classroom with our 15· ·students. 16· · · · Q.· ·So what would you have to do if a student, 17· ·as you said, wandered off? 18· · · · A.· ·On the eLearning? 19· · · · Q.· ·Yes. 20· · · · A.· ·I just would say, "Johnny, come back to 21· ·the screen.· Where is your mom?"· But that's all I 22· ·can really do if I'm on a -- on the computer.· What 23· ·do you do when this kid goes and hides under the 24· ·table?· So... 25· · · · Q.· ·So in addition to that, you also said
0561 Page 428 ·1· ·there were some sort of, like, homework assignments ·2· ·that you would send them to complete individually? ·3· · · · A.· ·Right. ·4· · · · · · ·We -- we do that to the students that for ·5· ·whatever reason could not Zoom our sessions, so we ·6· ·would also provide that as an option so that they ·7· ·were working on something.· So some of our more ·8· ·independent students would complete part of it, we ·9· ·would try to correct it and work with them. 10· · · · · · ·You know, that wasn't as successful if we 11· ·could be in person with our students, clearly. 12· · · · Q.· ·So out of the 40 or so students that you 13· ·had, you said ten of them, roughly, would show up on 14· ·screen every day; how many students, roughly, would 15· ·actually complete these homework assignments? 16· · · · A.· ·Oh, probably about the same amount. 17· · · · Q.· ·So ten on top of the other ten? 18· · · · A.· ·Yes.· Maybe they did one or two of the 19· ·assignments, yes, sir. 20· · · · Q.· ·Did that -- did these issues get any 21· ·better through the course of the -- the remainder of 22· ·the spring 2020 semester? 23· · · · A.· ·No. 24· · · · · · ·The teachers and the paras, it just 25· ·increased the amount that we were reaching out, you
0562 Page 429 ·1· ·know, asking them, please, you know, get online.· We ·2· ·really want you to get some assignments or get some, ·3· ·you know, education in these last few weeks.· We ·4· ·know it's very, very difficult right now. ·5· · · · Q.· ·So do you see the same students semester ·6· ·after semester?· So will you see those same students ·7· ·that you had again? ·8· · · · A.· ·Yes, sir.· But I will also have some ·9· ·incoming sixth graders. 10· · · · Q.· ·What about over the summer; you said you 11· ·taught over the summer? 12· · · · A.· ·Yes, I taught elementary special education 13· ·eLearning over the summer. 14· · · · Q.· ·Were some of the same students from your 15· ·spring 2020 class in your summer class? 16· · · · A.· ·No.· It was different students, because 17· ·they were elementary school. 18· · · · Q.· ·So tell me a bit about the summer class. 19· ·How did that differ at all from your spring class? 20· · · · A.· ·So I've taught summer school for many 21· ·years now in -- you know, traditionally.· So this 22· ·eLearning, we had, I believe, 14 students assigned 23· ·to my class. 24· · · · · · ·Three of them came over the Zoom.· One 25· ·student was every day, and the other two Zoomed and
0563 Page 430 ·1· ·participated without a parent present, so that made ·2· ·it more difficult.· And they would come one to two ·3· ·times to class per week. ·4· · · · Q.· ·Did you notice any difference in either -- ·5· ·in your ability to teach those students or in their ·6· ·reactions over the summer as compared to what you ·7· ·saw in spring? ·8· · · · A.· ·I feel like there's going to be a ·9· ·tremendous, you know, gap in especially our -- you 10· ·know, our special needs students, a tremendous gap 11· ·in our English language learner students.· Those are 12· ·the ones that tend to fall behind the easiest and 13· ·the quickest.· And they're not having any 14· ·interaction.· It's very difficult for them to, you 15· ·know, access, get online, and participate. 16· · · · · · ·So, yes, I've seen a, you know, 17· ·degression.· Especially in the social-emotional area 18· ·as well, because we're usually able to play games, 19· ·and role play, and we haven't been able to any of 20· ·those things. 21· · · · Q.· ·So just to clarify, for both your spring 22· ·and your summer students, those that you actually 23· ·had some contact with, did you notice regression in 24· ·some form in all of them, or some of them? 25· · · · A.· ·Yes.
0564 Page 431 ·1· · · · · · ·I feel not only academically but I've ·2· ·noticed -- and I've also spoken to a lot of parents ·3· ·as well.· We work a lot on fostering the ·4· ·independence of our students so they can do things ·5· ·on their own.· And that's something that we work on ·6· ·every single day. ·7· · · · · · ·And it could be something as simple as, ·8· ·you know, opening their own juice box, and we do it ·9· ·not for them but with them.· Or tying their shoe or 10· ·writing their name.· It's always with them, not for 11· ·them.· You know, making sure they're independent. 12· · · · · · ·And those are the things that, you know, 13· ·we really look forward to getting back to and 14· ·working on with our students. 15· · · · Q.· ·Do you know what an IEP is? 16· · · · A.· ·And -- I'm sorry, you cut out.· An IEP? 17· · · · Q.· ·Yes. 18· · · · A.· ·Yes, it's the individual educational plan 19· ·that each of our students have. 20· · · · Q.· ·And can you describe that a little bit; 21· ·what does that mean? 22· · · · A.· ·Sure. 23· · · · · · ·So all of our students that -- our ESE 24· ·students, our exceptional students, have an IEP, and 25· ·it's written to address how the student is doing.
0565 Page 432 ·1· ·It's a yearly legal document.· It also -- it's a ·2· ·team that puts together the IEP.· It can consist of ·3· ·multiple teachers, it may be if we need a social ·4· ·worker, there's occupational therapists, speech ·5· ·therapists, deaf and hard-of-hearing, if that's what ·6· ·the student is provided. ·7· · · · · · ·And they write the goals for the students ·8· ·as well that they are expected to meet by the end of ·9· ·the following year. 10· · · · Q.· ·And are those IEP plans something that 11· ·you're required to provide to students who have a 12· ·learning difficulty of some kind? 13· · · · A.· ·Yes.· So these are all, you know, legal 14· ·documents.· They also provide how many minutes a 15· ·student is expected to receive certain services. 16· · · · · · ·So, for example, if on that IEP it states 17· ·the speech pathologist, who is an expertise in her 18· ·field, feels that little Johnny needs 90 minutes of 19· ·speech and language therapy that week, that's on 20· ·that, you know, IEP and that legal document, and it 21· ·needs to be provided. 22· · · · · · ·Or the occupational therapist comes to 23· ·school and works with our student, you know, once 24· ·every two weeks on so-and-so.· You know, my 25· ·expertise would be writing it on the academic side
0566 Page 433 ·1· ·of things, what they need to -- to do with their ·2· ·writing, or their reading, or their social-emotional ·3· ·and independent skills. ·4· · · · Q.· ·So for your students in spring and summer, ·5· ·were you able to meet or progress on any of their ·6· ·IEPs? ·7· · · · A.· ·So it made it -- excuse me -- makes it ·8· ·very difficult, because usually we provide that ·9· ·service one on one, but if you're in a whole group 10· ·over the -- you know, there's two or three kids, it 11· ·makes it difficult to just have that one-on-one 12· ·service with that child. 13· · · · · · ·And the speech and language pathologists, 14· ·or the deaf and hard-of-hearing students are not 15· ·able to be provided those services at all.· So these 16· ·needs are not being met. 17· · · · Q.· ·Has school opened for you yet in 18· ·Hillsborough County? 19· · · · A.· ·We're still in preplanning right now. 20· ·Monday, the students will start one week of 21· ·eLearning, and the following week it will be an 22· ·option to do eLearning, or brick-and-mortar. 23· · · · Q.· ·How many students are you going to have in 24· ·this fall semester? 25· · · · A.· ·All together?
0567 Page 434 ·1· · · · Q.· ·Yes. ·2· · · · A.· ·I believe we're scheduled at about, I ·3· ·think, approximately 40 or 42. ·4· · · · Q.· ·And are many of those the same kids that ·5· ·you had the previous semester? ·6· · · · A.· ·Some are.· Some went on to high school. ·7· ·We have incoming 6th graders as well. ·8· · · · Q.· ·Were your students given a choice on ·9· ·whether to participate in person or remotely? 10· · · · A.· ·Sure.· Yes, they were.· And it's -- it was 11· ·actually pretty split down the middle; so half 12· ·chosen (sic) to continue with the eLearning, and 13· ·half have chosen traditional to come back. 14· · · · Q.· ·Were you given that choice? 15· · · · A.· ·Yes.· They sent out some -- a survey what 16· ·we would prefer to do.· We do have one of our four 17· ·units of special needs teachers, she will be doing 18· ·all of eLearning, and I will be splitting between 19· ·eLearning and brick-and-mortar, half and half. 20· · · · Q.· ·Okay.· Have you received any additional 21· ·training, or has the eLearning platform gotten any 22· ·better since your last experience? 23· · · · A.· ·Well, we did use a different format last 24· ·semester and over the summer, so we've been 25· ·introduced a brand new one to use, which we have
0568 Page 435 ·1· ·been provided many trainings, which is what the ·2· ·teachers and staff are working on now, how to ·3· ·understand it, since that's what we'll be using, and ·4· ·that's how the students will be getting online as ·5· ·well. ·6· · · · Q.· ·Are you having any trouble with that ·7· ·personally? ·8· · · · A.· ·It's been, to be honest, a little ·9· ·overwhelming, because it is a lot of information and 10· ·tech -- you know, it's a lot of new technology to 11· ·learn.· So it's been -- like I said, it's been an 12· ·interesting school year in the past couple months. 13· · · · Q.· ·What about for the students who come in 14· ·person; has the school provided you with some 15· ·guidance and some help in sanitizing and protecting 16· ·those students? 17· · · · A.· ·Sure. 18· · · · · · ·Our administration has been amazing.· Our 19· ·superintendent is, you know, giving us updates as -- 20· ·you know, as much as he can.· We've gotten -- you 21· ·know, whatever we need in our unit, we've got 22· ·gloves, we've got sanitizer.· We've been given 23· ·masks.· We also have our face shields. 24· · · · · · ·And something else that's pretty neat is a 25· ·new type of plastic clear mask that goes across our
0569 Page 436 ·1· ·face this way to provide for our deaf and ·2· ·hard-of-hearing students so they can see our mouths ·3· ·and our expressions when we're talking or when we're ·4· ·signing to them.· So that was something really neat ·5· ·to help keep them safe, but they can also, you know, ·6· ·hear us or see our expressions. ·7· · · · Q.· ·I would -- I don't know. ·8· · · · · · ·Did -- I would expect that you would have ·9· ·to interact more closely with some of your students 10· ·than you would in a typical general education class; 11· ·is that correct? 12· · · · A.· ·Some of our students do sometimes need to 13· ·be provided that proximity control for, you know, 14· ·typically on behavioral issues to help -- or calm 15· ·them down.· Sure.· That's a fair assessment. 16· · · · Q.· ·Taking that into consideration, along with 17· ·all of the resources the school has provided you, do 18· ·you feel like you'll be adequately safe going back 19· ·to school? 20· · · · A.· ·I do, absolutely.· Yes. 21· · · · · · ·I think it's -- it would be normal 22· ·to -- you know, I empathize with those who have 23· ·concern, but I feel like if we follow all the -- the 24· ·guidelines, and CDC, and continuous washing, you 25· ·know, our hands and wearing our mask, and our
0570 Page 437 ·1· ·six-foot distancing whenever possible, I do feel ·2· ·safe. ·3· · · · · · ·MR. HILL:· May I have a brief moment, Your ·4· · · · Honor? ·5· · · · · · ·THE COURT:· Sure, yes, sir. ·6· · · · · · ·MR. HILL:· Just one more question.· Can ·7· · · · you go off mute real quick? ·8· · · · · · ·THE WITNESS:· Yes. ·9· · ·BY MR. HILL 10· · · · Q.· ·Based on your experience, your 12 years 11· ·teaching, would you expect students with the same 12· ·needs throughout the state to have those same 13· ·problems? 14· · · · A.· ·I've taught, like you mentioned, for many 15· ·years, and at a few schools, and the kids are the 16· ·kids.· Wherever I go.· They're amazing and they're 17· ·wonderful, but they need that -- that support. 18· · · · · · ·They need to be with their teacher, if 19· ·they can, with those paraprofessionals, with their 20· ·friends, to grow and to learn, and it's simply -- it 21· ·was just not possible during the eLearning 22· ·experience at all. 23· · · · · · ·MR. WELLS:· Thank you, ma'am.· I have no 24· · · · questions, Your Honor. 25· · · · · · ·THE COURT:· Cross?
0571 Page 438 ·1· · · · · · ·MR. COFFEY:· Yeah, just one or two ·2· · · · questions. ·3· · · · · · · · · · CROSS EXAMINATION ·4· · ·BY MR. COFFEY ·5· · · · Q.· ·I want to, first of all, thank you very ·6· ·much, ma'am, for the heroic work you do for ·7· ·children.· I had a pretty narrow question in trying ·8· ·to understand a little bit of the structure and ·9· ·role. 10· · · · · · ·Do you teach in or about something called 11· ·a specialized learning center? 12· · · · A.· ·We are at a -- at a regular school, and we 13· ·are in a -- part of the building is our 14· ·self-contained unit, so it's not a special center, 15· ·no. 16· · · · Q.· ·But what is a specialized learning center? 17· ·Isn't that a facility that provides the 18· ·infrastructure for you and your students? 19· · · · A.· ·Let me reflect on that question for just a 20· ·second. 21· · · · · · ·I can't speak to that.· I'm not in a 22· ·specialized learning center. 23· · · · Q.· ·Okay. 24· · · · A.· ·I -- so that wouldn't be my area to speak 25· ·on, sir.
0572 Page 439 ·1· · · · Q.· ·What is -- if I may ask, what is a ·2· ·specialized learning center? ·3· · · · A.· ·I believe it's a separate area which would ·4· ·just have the special education students. ·5· · · · Q.· ·Okay. ·6· · · · A.· ·Like, a school that's just for ESE ·7· ·students. ·8· · · · Q.· ·Okay. ·9· · · · A.· ·I -- I believe.· I believe so.· I haven't 10· ·taught at one before. 11· · · · Q.· ·And you teach in regular classrooms 12· ·instead? 13· · · · A.· ·I teach in a -- in a school that has a 14· ·general education setting, and my wing of the school 15· ·is all self-contained classes. 16· · · · Q.· ·Okay. 17· · · · A.· ·So it's only special needs students in my 18· ·class. 19· · · · Q.· ·But in the specialized learning centers, 20· ·they teach special needs children; is that correct? 21· · · · A.· ·I've -- I've never taught there, but 22· ·that -- I believe -- I believe that's correct. 23· · · · Q.· ·Okay.· Were you aware of the fact that 24· ·Hillsborough had proposed to basically open the 25· ·specialized learning centers for face-to-face
0573 Page 440 ·1· ·instruction as of August 31st?· Were you aware of ·2· ·that? ·3· · · · A.· ·I was not. ·4· · · · Q.· ·Okay.· And did you recommend to your ·5· ·administration or even to the school board that ·6· ·children with the special needs that you would teach ·7· ·should be allowed to return to brick-and-mortar ·8· ·earlier than, for example, September 14th or some ·9· ·later times, as -- so that there would be special 10· ·attention for children with special needs? 11· · · · A.· ·Have I ever spoken to the school board or 12· ·the administration? 13· · · · Q.· ·At the administration, just say, "Look, 14· ·these kids need brick-and-mortar.· You could put a 15· ·small part of the student population into 16· ·brick-and-mortar by moving, for example, your 17· ·classes into brick-and-mortar at an earlier time," 18· ·which seemed to have been done -- or proposed for 19· ·special learning centers. 20· · · · A.· ·Right.· I think that it should be an 21· ·option for those that feel comfortable to do so. 22· · · · Q.· ·Okay. 23· · · · · · ·MR. COFFEY:· Thank you, Your Honor, I have 24· · · · no more questions. 25· · · · · · ·THE COURT:· Any redirect?
0574 Page 441 ·1· · · · · · ·MR. HILL:· No, Your Honor. ·2· · · · · · ·THE COURT:· Ms. Arthur, thank you very ·3· · · · much. ·4· · · · · · ·Is Ms. Arthur free to go? ·5· · · · · · ·MR. HILL:· Yes, Your Honor. ·6· · · · · · ·THE COURT:· Ms. Arthur, you may leave the ·7· · · · meeting.· Thanks. ·8· · · · · · ·THE WITNESS:· All right.· Thank you.· Have ·9· · · · a great day. 10· · · · · · ·THE COURT:· You too, thanks. 11· · · · · · ·Call your next witness. 12· · · · · · ·Defendants call Jennifer Tribble, who I 13· · · · believe is already in the meeting here. 14· · · · · · ·THE WITNESS:· I am. 15· · · · · · ·THE COURT:· Okay.· I see Ms. Tribble 16· · · · there. 17· · · · · · ·Ms. Tribble, if you'd raise your right 18· · · · hand, please. 19· ·Thereupon: 20· · · · · · · · · · ·JENNIFER TRIBBLE 21· ·having been sworn by the Court testified as follows: 22· · · · · · ·THE WITNESS:· I do. 23· · · · · · ·THE COURT:· Thank you, ma'am.· Put your 24· · · · hand down. 25· · · · · · ·MR. HILL:· May I proceed, Your Honor?
0575 Page 442 ·1· · · · · · ·THE COURT:· Yes, please. ·2· · · · · · · · · · DIRECT EXAMINATION ·3· · ·BY MR. HILL ·4· · · · Q.· ·Good morning, Ms. Tribble. ·5· · · · A.· ·Hello. ·6· · · · Q.· ·Can you see me? ·7· · · · A.· ·I can.· I'm on my son's computer and it is ·8· ·a huge computer screen. ·9· · · · Q.· ·Well, let me know if you have any trouble 10· ·hearing me, okay? 11· · · · A.· ·Okay. 12· · · · Q.· ·So can you please start by just telling me 13· ·where you live, what city? 14· · · · A.· ·Orlando. 15· · · · Q.· ·Okay.· Do you have any kids? 16· · · · A.· ·I have two boys. 17· · · · Q.· ·What are their ages? 18· · · · A.· ·They are eight and nine. 19· · · · Q.· ·And what -- do they attend public school? 20· · · · A.· ·They attend Cornerstone Charter Academy. 21· · · · Q.· ·Is that within some school district? 22· · · · A.· ·It is.· It's in Orange County. 23· · · · Q.· ·Can you tell me a bit about your children, 24· ·ma'am? 25· · · · A.· ·I have two boys.· I have my oldest, he --
0576 Page 443 ·1· ·his name is T.· He is a gifted child.· He's in the ·2· ·gifted program at Cornerstone.· He's very active. ·3· ·He's very social.· He plays sports.· He plays ·4· ·football and baseball.· He's played baseball since ·5· ·he was 3. ·6· · · · · · ·And then my younger boy is in second ·7· ·grade, also very active.· Has sports -- he plays ·8· ·baseball and football.· He is an exceptional runner. ·9· ·And, I mean, they're just your typical little boys. 10· · · · Q.· ·Do any of your children have any learning 11· ·disabilities or other special needs? 12· · · · A.· ·I -- my oldest son is gifted. 13· · · · · · ·I know that most people don't refer to 14· ·that as a special need, but if you could see how 15· ·high octane he is and how much attention he needs, 16· ·I've always kind of lovingly referred to that as his 17· ·special need. 18· · · · · · ·My younger boy, he -- there's not a 19· ·diagnosed special need -- 20· · · · · · ·(An interruption took place.) 21· · · · · · ·THE WITNESS:· Oh, I'm so sorry. 22· · · · A.· ·There's not a diagnosed special need 23· ·and -- but he really, really struggles with reading, 24· ·and we have paid tutors -- we paid all last year to 25· ·kind of help him get over his issues with reading.
0577 Page 444 ·1· · ·BY MR. HILL ·2· · · · Q.· ·And I believe you said that your children ·3· ·were aged eight and nine; is that right? ·4· · · · A.· ·Correct. ·5· · · · Q.· ·And what grades are they in? ·6· · · · A.· ·Third and fourth.· Well, they'll be in 3rd ·7· ·and 4th. ·8· · · · Q.· ·So before the whole pandemic started, just ·9· ·tell me a bit about how your kids did in school. 10· ·Did they like it? 11· · · · A.· ·Oh, they loved it. 12· · · · · · ·Like I said, my older boy T. is very 13· ·social.· He -- he's in a gifted pod at Cornerstone, 14· ·so the way Cornerstone works is there's a few kids 15· ·that are gifted in each class with -- with regular 16· ·students, and they get a little bit of extra work 17· ·and they get some extra assignments.· He's just 18· ·always had a really easy time at school.· Everything 19· ·was a breeze for him. 20· · · · · · ·My younger boy, gosh, he's just -- like I 21· ·said, he struggles a little bit to read, but they 22· ·just -- we would walk to school every day.· I would 23· ·walk to pick them up.· It was our time alone to kind 24· ·of gather our thoughts.· And then I'd pick them up 25· ·every day after I did my job, and then we would go
0578 Page 445 ·1· ·to baseball or football or whatever the case may be. ·2· · · · Q.· ·What do you do for a living? ·3· · · · A.· ·I'm a small business owner. ·4· · · · Q.· ·Are you married? ·5· · · · A.· ·I am. ·6· · · · Q.· ·And what does your husband do? ·7· · · · A.· ·He is in commercial construction. ·8· · · · Q.· ·So does that -- do your jobs keep you both ·9· ·out of the house a lot? 10· · · · A.· ·So my husband travels.· My husband does 11· ·very large construction.· We are hoping that he 12· ·still has a job here in the next week or two. 13· · · · · · ·He does hospital construction primarily, 14· ·and the pandemic has really affected the hospital's 15· ·revenue, so his project did get suspended back in 16· ·June.· He's been working to save that up, so 17· ·hopefully he will remain employed. 18· · · · · · ·And then I own my -- I have three 19· ·locations of my small businesses here.· And, you 20· ·know, we did the small businesses in hopes that it 21· ·would free me up to be a little bit more of a mom, 22· ·but when you couple a small business with what's 23· ·going on in the world today, the truth of the matter 24· ·is, right now I'm working more than I ever have just 25· ·to try to save that and to try and keep my employees
0579 Page 446 ·1· ·employed. ·2· · · · Q.· ·So can you tell me a bit about what ·3· ·happened when the schools closed in March; how did ·4· ·you adjust to that change? ·5· · · · A.· ·We were on spring break when we found out ·6· ·that it was closing, and we put our children on two ·7· ·opposite ends of our home, set them up with ·8· ·computers.· I sort of moved my workspace to the ·9· ·kitchen table, and then I would try to do my job 10· ·while volleying between their two desks all day and 11· ·answering questions. 12· · · · · · ·They had a really, really hard time, 13· ·especially the gifted one, paying attention.· It 14· ·wasn't challenging for him in any way, shape, or 15· ·form, and I have never loved them staring at 16· ·computers all day or having a lot of screen time, 17· ·and it's sort of like Ms. Arthur said a second ago, 18· ·it was constantly coming in here and finding him 19· ·under the table or playing with the dog or shopping 20· ·on Amazon. 21· · · · · · ·He's smart enough that he figured out how 22· ·to split the screen into two different things and -- 23· ·and play a game while he thought -- so it was just a 24· ·constant having to stay after him. 25· · · · · · ·My younger son, who, like I said, has
0580 Page 447 ·1· ·always struggled with reading, the reading online, ·2· ·he's really regressed, and that's all there is to ·3· ·it.· We're going to start back over at second grade. ·4· ·Luckily, his teacher that's been assigned to him at ·5· ·Cornerstone is the same one that we had hired to ·6· ·tutor him, so she knows the work that we have to do. ·7· · · · · · ·And then the younger one also figured out ·8· ·that there's a calculator on the computer, so when ·9· ·math started, he would just pull the calculator up 10· ·and start doing that.· So it literally -- it was a 11· ·real -- my husband was out of town.· Most of his 12· ·work is done in Tampa, so he's not here.· We don't 13· ·have family here. 14· · · · · · ·I lost my revenue in small businesses, so 15· ·I was making no money.· I couldn't hire somebody to 16· ·come in, so I was trying to do all of the things and 17· ·make sure that they were saying on focus with what 18· ·they were supposed to be doing.· So it was tough. 19· ·It was tough. 20· · · · · · ·And then we took all their sports away, 21· ·too, so it was a lot. 22· · · · Q.· ·So did you -- were you able to work, or 23· ·were you basically a full-time teacher during the 24· ·last part of the spring semester? 25· · · · A.· ·So they only went to school for three
0581 Page 448 ·1· ·hours a day, so we did school from about 8:00 to ·2· ·1:00 every day, and then I would try to work, and I ·3· ·would -- I mean, I hate to even admit this, but the ·4· ·television and the Switches became the babysitter. ·5· · · · · · ·And luckily, my young -- my older son ·6· ·could do his homework pretty well on his own.· They ·7· ·did, once a week, do a gifted program Zoom meeting, ·8· ·but then my younger son, we would sit down to do his ·9· ·work.· I would help him through that. 10· · · · · · ·And then, yeah, I -- once I put them to 11· ·bed every night, I -- and this has been all through 12· ·the summer -- I worked 'til 1:00, 1:30 in the 13· ·morning trying to do -- that's the good thing, I 14· ·guess, about being a small business owner is you get 15· ·to choose which 14 hours a day you work. 16· · · · Q.· ·What did you do with your children over 17· ·the summer? 18· · · · A.· ·I had this very detailed plan in place, of 19· ·all the camps they were going to go to, and -- and a 20· ·lot of those got canceled. 21· · · · · · ·They did get to go to a couple of camps, 22· ·but we pretty much have been here stuck in the 23· ·house.· They have watched a lot of TV.· I did do 24· ·workbooks with them.· I tried to keep on top of 25· ·things.· I don't want to call myself a failure, but
0582 Page 449 ·1· ·if I've ever failed at anything, it's been this ·2· ·shutdown and trying to manage everything. ·3· · · · Q.· ·Well, tell me a bit about the regression ·4· ·that you've seen in your children that you mentioned ·5· ·since the spring semester. ·6· · · · A.· ·I would say probably the main regression ·7· ·that I've seen is I had two very active kids who ·8· ·never sat down, who never stopped playing, who never ·9· ·did -- and now they are so lazy, and it is hard to 10· ·get them out of the house to do anything. 11· · · · · · ·They don't have any motivation.· They are 12· ·both very excited about getting to go back to school 13· ·and to get to have some structure and some 14· ·organization.· My younger son, like I said, his 15· ·reading has regressed so -- we really are right back 16· ·at where we were at 2nd grade. 17· · · · · · ·And what he does, he reads a paragraph and 18· ·he skips words.· It's -- it's bizarre.· I've never 19· ·seen anything like it.· I don't know how to address 20· ·it.· He needs help.· He needs help with it.· So 21· ·they're excited, but I would say just -- just the 22· ·sheer laziness, the unmotivation, the -- the -- I 23· ·don't know. 24· · · · · · ·They don't seem like kids anymore.· They 25· ·seem like teenagers.
0583 Page 450 ·1· · · · Q.· ·Is this a different sort of educational ·2· ·regression than you would see typically over the ·3· ·summer with your children? ·4· · · · A.· ·Oh, for sure.· Oh, yes. ·5· · · · · · ·My kids, like I said, have always been ·6· ·very active.· They would have been in camps.· They ·7· ·would have been -- we -- we did sign my older boy up ·8· ·for coding.· My -- my husband did it.· So that's a ·9· ·little bit of something that he's getting to do. 10· · · · · · ·But when you work -- when you have two 11· ·full-time working parents, it's hard to try to 12· ·provide the -- the level that a nine- or 13· ·ten-year-old gifted child needs, or one that's 14· ·reading regressed needs.· I can't -- and, you know, 15· ·I talked to some friends of mine that have been 16· ·furloughed. 17· · · · · · ·If that had been an option, that would 18· ·have been ideal, right?· But I've also got to worry 19· ·about 20 employees and keeping them going.· So I 20· ·have to do it all. 21· · · · Q.· ·Can you tell me a little bit about how the 22· ·actual remote learning worked for you; was it a Zoom 23· ·meeting, did they -- did your children get homework 24· ·assignments?· How did that actually work? 25· · · · A.· ·Yes.
0584 Page 451 ·1· · · · · · ·So it was a Zoom meeting.· They had to be ·2· ·in their uniform in front of the computer every ·3· ·morning at 8:00, which was wonderful.· And they ·4· ·worked with the teacher from 8:00 to 11:00, and I ·5· ·could -- I could work, and I would listen to, "H., ·6· ·T., where are you?· Come back to the screen." ·7· · · · · · ·And then I would get up and I would go try ·8· ·to get them back in front of the computer.· And then ·9· ·they would do -- they had assignments in Google 10· ·Classroom that they would have to do. 11· · · · · · ·My -- my issue with those -- and I -- I 12· ·don't want to say anything bad about Cornerstone 13· ·because I really do love it, but it was do an hour 14· ·of i-Ready, and do an hour of Prodigy.· And it -- 15· ·for someone who really struggles with screen time 16· ·for my kids, to give them all of their homework on 17· ·these computer games, and -- and it just -- I really 18· ·struggled with it. 19· · · · · · ·Now, I did sit down with them and I 20· ·brought Brain Quest and I bought "Highlights" and 21· ·things like that, but I'm not a trained teacher, so 22· ·I -- I did the best I could. 23· · · · · · ·But they didn't get a lot of -- I either 24· ·wrote the teachers at -- at Cornerstone and I said, 25· ·"Could you assign reading a book?· Because when I
0585 Page 452 ·1· ·ask them to read a book, it's a battle, but if you ·2· ·tell them they have to read a book, they'll do it." ·3· ·And they said it was easier -- or it was better for ·4· ·them to be able to see their progress if they did it ·5· ·on Prodigy. ·6· · · · Q.· ·Were you given an option by the school and ·7· ·the school district whether you wanted your kids to ·8· ·return in person or continue with remote learning? ·9· · · · A.· ·Yes. 10· · · · Q.· ·Have you chosen one of those options? 11· · · · A.· ·I have.· We are going back full 12· ·face-to-face. 13· · · · Q.· ·Do you know when that is scheduled to 14· ·start? 15· · · · A.· ·They meet the teacher this Friday, the 16· ·21st, virtually, that's all day virtually, and then 17· ·on Monday they go back face-to-face. 18· · · · Q.· ·So based on your experience -- I'm sorry? 19· · · · A.· ·I just said yay. 20· · · · Q.· ·So based on your experience over the 21· ·summer and at the end of last semester, what would 22· ·you do if you were forced to go back to remote 23· ·learning for your kids? 24· · · · A.· ·My husband and I have had this 25· ·conversation.
0586 Page 453 ·1· · · · · · ·We would have to figure out a way to hire ·2· ·someone that was qualified to come in and help us ·3· ·through this.· And like I said, I -- since March, ·4· ·the beginning of March, I have made no money, and my ·5· ·husband's job is in real jeopardy.· So we would need ·6· ·to dig into our retirement savings to educate our ·7· ·children. ·8· · · · Q.· ·And based on your same experiences, do you ·9· ·think that remote learning can ever work for your 10· ·children? 11· · · · A.· ·I -- maybe when they're older.· I mean, 12· ·maybe when there's some discipline. 13· · · · · · ·But a 2nd and 3rd grader, which is what 14· ·they were last year, and now a 3rd and 4th grader, 15· ·there's just -- they don't have that attention span. 16· ·And they need -- I -- I just think they need 17· ·interaction. 18· · · · · · ·And I wish I could stand behind them both 19· ·and do it all day.· I -- I can't. 20· · · · Q.· ·Are you afraid that in sending your kids 21· ·back to school in person, that they might contract 22· ·COVID? 23· · · · A.· ·I'm not.· And I don't want to say that I'm 24· ·not afraid that they're going to get COVID.· I don't 25· ·think anybody wants a viral respiratory ailment.
0587 Page 454 ·1· · · · · · ·And what my view of it is, it's ·2· ·inevitable, and it's not going anywhere anytime ·3· ·soon.· And I can tell you the real impact that is ·4· ·happening to my children and their socialization. ·5· ·And we found my oldest son, who is very unemotional, ·6· ·two weeks ago crying in his bed at 12:30 at night, ·7· ·and went in and asked him what was wrong.· And he ·8· ·said, "I don't have any friends.· Nobody like me." ·9· · · · · · ·So I can see firsthand the real impacts of 10· ·what taking him away from every activity that he had 11· ·is doing.· And if I thought nine more weeks or six 12· ·more weeks there wouldn't be a risk still, I just 13· ·don't think that's the case.· So I have to address 14· ·the issue that I'm seeing firsthand on a day-to-day 15· ·basis. 16· · · · · · ·MR. HILL:· May I have a moment, Your 17· · · · Honor? 18· · · · · · ·THE COURT:· Sure, yes, sir. 19· · · · · · ·MR. HILL:· I have nothing further, Your 20· · · · Honor. 21· · · · · · ·THE COURT:· Cross? 22· · · · · · ·MR. STUART:· We have no questions, Judge. 23· · · · · · ·MR. COFFEY:· Yeah, Your Honor, we have no 24· · · · questions. 25· · · · · · ·THE COURT:· Okay.· Thank you, Ms. Tribble.
0588 Page 455 ·1· · · · · · ·May Ms. Tribble be excused? ·2· · · · · · ·MR. HILL:· Yes, Your Honor. ·3· · · · · · ·THE COURT:· Ms. Tribble, you are free to ·4· · · · go. ·5· · · · · · ·THE WITNESS:· Thank you. ·6· · · · · · ·THE COURT:· Thank you. ·7· · · · · · ·Call your next witness. ·8· · · · · · ·MR. HILL:· State calls Laura Pope. I ·9· · · · believe she should be in the waiting room, Your 10· · · · Honor.· There she is. 11· · · · · · ·THE COURT:· Okay.· I see Ms. Pope there. 12· · · · · · ·Ms. Pope, if you would take your computer 13· · · · off mute there. 14· · · · · · ·THE WITNESS:· There you go. 15· · · · · · ·THE COURT:· There you go, right.· If you'd 16· · · · raise your hand, please. 17· ·Thereupon: 18· · · · · · · · · · · · LAURA POPE 19· ·having been sworn by the Court testified as follows: 20· · · · · · ·THE WITNESS:· Yes. 21· · · · · · ·THE COURT:· Thank you, ma'am.· Put your 22· · · · hand down, please. 23· · · · · · ·MR. HILL:· May I proceed, Your Honor? 24· · · · · · ·THE COURT:· Yes, sir. 25
0589 Page 456 ·1· · · · · · · · · · DIRECT EXAMINATION ·2· · ·BY MR. HILL ·3· · · · Q.· ·Good morning, Ms. Pope.· Can you see me? ·4· · · · A.· ·Yes, I can.· Good morning. ·5· · · · Q.· ·Good morning. ·6· · · · · · ·So can you please start by just telling me ·7· ·where you live? ·8· · · · A.· ·I live in Palm Beach Gardens, Florida. ·9· · · · Q.· ·Do you have any children? 10· · · · A.· ·I have one child who is 16 years old. 11· · · · Q.· ·Okay.· Does your child attend school? 12· · · · A.· ·Yes. 13· · · · Q.· ·What school does your child attend? 14· · · · A.· ·Connections Education Center of the 15· ·Palm Beaches. 16· · · · Q.· ·And what kind of school is that? 17· · · · A.· ·It's a charter school for autism. 18· · · · Q.· ·So tell me a bit about your child. 19· · · · A.· ·My son Chris is 16.· He was diagnosed with 20· ·autism at two and a half.· He has been getting 21· ·services and has had an IEP basically since 22· ·preschool.· We lived in Connecticut and moved down 23· ·to Florida two years ago. 24· · · · · · ·He is, for the most part, nonverbal, and 25· ·has sensory processing disorder.· So those are his
0590 Page 457 ·1· ·two main areas of difficulty within autism in ·2· ·general. ·3· · · · Q.· ·Before the pandemic started, can you tell ·4· ·me a bit about schooling for your son?· Did he go ·5· ·every day, how did that work? ·6· · · · A.· ·Every day, dropoff was around 8:30, and ·7· ·pickup about 2:30. ·8· · · · Q.· ·What was his -- what were his classes ·9· ·like? 10· · · · A.· ·So Connections really focuses on life 11· ·skills and obviously working within the framework of 12· ·a general education, but catering to the specific 13· ·needs of autistic children, and then drilling it 14· ·down to the specific needs of the child. 15· · · · · · ·So focusing on speech therapy, 16· ·occupational therapy.· But again, the focus on life 17· ·skills, being able to teach children how to be 18· ·independent, and then as well as socialize. 19· · · · Q.· ·Did he enjoy school? 20· · · · A.· ·Yes, very much so.· He's very much looking 21· ·forward to every day wake up in the morning, 22· ·"school, school, school, school."· So simple words, 23· ·he can say words, but very simple one to two words. 24· · · · Q.· ·When he was at school in person, did you 25· ·notice progression in his education, behaviors,
0591 Page 458 ·1· ·things like that? ·2· · · · A.· ·Yes, he made great strides at Connections. ·3· · · · · · ·He was -- originally, when we first moved ·4· ·down, he was in the general district's school, but ·5· ·it wasn't working, so we put him at Connections, and ·6· ·he made great progress.· Much better socialization. ·7· ·His speech getting better, getting -- being able to ·8· ·add, you know, a third word to a -- to a possible ·9· ·sentence. 10· · · · · · ·Just generally overall happy and less 11· ·behavior issues, and being able to get through the 12· ·day going from, you know, his classes or transition 13· ·from one activity to the next.· And was making 14· ·really great progress before everything sort of hit 15· ·the skid, so to speak. 16· · · · Q.· ·Well, so why don't you tell me about that; 17· ·what happened when schools closed in March? 18· · · · A.· ·Well, you know, when we first originally 19· ·thought maybe it was just going to be a couple 20· ·weeks, you know, he generally does okay for one to 21· ·two weeks, like a school vacation, but anything 22· ·after that starts to derail his -- his progress and 23· ·his ability to stay regulated. 24· · · · · · ·He's a routine seeker.· He needs his 25· ·routine.· He's very focused on a routine, so when
0592 Page 459 ·1· ·you do anything to change that routine, his sensory ·2· ·issues start to exacerbate.· There is more stimming ·3· ·with his hands, rocking.· Behaviors start to creep ·4· ·up.· Frustration.· You know, you could get anything ·5· ·from just sort of tapping the -- the chin to ·6· ·literally banging his head against a wall. ·7· · · · · · ·So as time just kept going on and on, and ·8· ·the routine not being there, you know, things just ·9· ·get harder and harder. 10· · · · Q.· ·What resources or guidance did the school 11· ·provide you in March for remote learning? 12· · · · A.· ·Well, they -- you know, they put together 13· ·what they -- what they could in the short time that 14· ·they had to prepare.· And, you know, we have an 15· ·iPad, so we already had that part.· Virtual classes 16· ·and activities.· Some live one-on-one, you know, 17· ·once a week. 18· · · · · · ·But Christopher doesn't have the ability 19· ·to generalize across environments, so he doesn't 20· ·understand why he's doing schoolwork at home. 21· ·School is school, home is home.· So to put the iPad 22· ·in front of him and then to start having -- to give 23· ·him activities to do, you could get through maybe 24· ·one activity for about 15 minutes, but that's where 25· ·his threshold was.
0593 Page 460 ·1· · · · · · ·And if you tried to do anything live like ·2· ·you and I are doing, he doesn't understand that.· He ·3· ·doesn't understand seeing another person, and that ·4· ·would cause more distress where he would throw the ·5· ·iPad and then become self-injurious or even ·6· ·aggressive toward me because I'm trying to force him ·7· ·to do something that he doesn't understand why he's ·8· ·doing. ·9· · · · · · ·So it didn't work out so well.· And I sort 10· ·of had to scale back and just say, for his safety, 11· ·my safety, and his general keeping him calm, knowing 12· ·there's no -- we don't know what the end in sight 13· ·is, I kind of just had to back off of the virtual. 14· · · · Q.· ·So how many -- roughly how many days did 15· ·you attempt to do this before you backed off? 16· · · · A.· ·And I -- I really did try from March until 17· ·the end of school year to at least log in once a day 18· ·and to get him do -- to do one or two activities, 19· ·but I couldn't -- we couldn't do anything where it 20· ·was trying to push these live sessions. 21· · · · · · ·Because when you're dealing with speech 22· ·therapy or occupational therapy, you need to be 23· ·face-to-face physically.· There needs to be 24· ·modeling.· He can't understand -- if he's trying to 25· ·learn things, he has to see somebody's mouth move
0594 Page 461 ·1· ·and how that works.· And there needs to be, ·2· ·especially in OT when you're trying to focus on ·3· ·handwriting, you need to have hand over hand.· You ·4· ·can't do that through a screen.· So it really didn't ·5· ·work.· And the more I tried to force it at home, ·6· ·again, he knows I'm not his teacher.· I'm Mom.· So ·7· ·this whole thing really just threw him for a loop. ·8· · · · · · ·So I did the best I could, logged on when ·9· ·I could, get him to do an activity here or there. 10· ·But, again, I chose not to push his -- push his 11· ·limits, for everyone's sanity. 12· · · · Q.· ·Did you have a full-time job during that 13· ·time? 14· · · · A.· ·I did. 15· · · · · · ·I'm a real estate agent, and, granted, 16· ·that gives you a flexible schedule.· But if you have 17· ·a child that you have to take care of, you clearly 18· ·can't try to sell real estate.· So I haven't 19· ·basically done a thing for months. 20· · · · · · ·So... 21· · · · Q.· ·Are you married? 22· · · · A.· ·I am. 23· · · · Q.· ·And what does your spouse do for a living? 24· · · · A.· ·My husband is a financial adviser. 25· · · · Q.· ·Have you had to make any accommodations
0595 Page 462 ·1· ·for his job during this time? ·2· · · · A.· ·Yes, he -- his company decided that they ·3· ·could not be in the office so he had to set up in ·4· ·our home, which requires the dining room and three ·5· ·computer screens. ·6· · · · · · ·And again, now he's home, working, which ·7· ·obviously, with me not working, his job becomes even ·8· ·more important, and he has to speak to clients all ·9· ·day.· He works, obviously, in the stock market, so 10· ·he, from -- basically, you know, when the stock 11· ·market opens to the stock market closes, and any 12· ·time in between, he's on the phone with clients. 13· · · · · · ·So made it even harder having an autistic 14· ·child in the house.· Can't have him running around 15· ·screaming and yelling and going into a full 16· ·meltdown, so my job basically is to get Chris out of 17· ·the house most of the day.· Which obviously is 18· ·complicated during a pandemic. 19· · · · Q.· ·Yeah, so what do you -- what do you do? 20· · · · A.· ·We drive.· We drive in the car.· The thing 21· ·that makes my son happiest is being in the car.· It 22· ·always has been a soothing mechanism for him.· So on 23· ·any given day, we drive anywhere from a hundred to 24· ·two hundred miles, taking car rides. 25· · · · · · ·So in the morning, every morning when he
0596 Page 463 ·1· ·wakes up, a long car ride.· Then we might come home ·2· ·for a break, have a little breakfast, and then back ·3· ·out in the car for another car ride.· We may get a ·4· ·walk in here and there, depending on the heat in ·5· ·Florida and how -- you know, how tolerable it is, ·6· ·and then that goes on basically all day. ·7· · · · · · ·When my husband can take a break, he takes ·8· ·him out to give me a break.· So this goes on ·9· ·basically all day, and, you know, I -- thousands of 10· ·miles on the car.· And I don't really leave the 11· ·county, so... 12· · · · Q.· ·What did you do with your son over the 13· ·summer?· Was there summer camps, or was there 14· ·typically summer school of some kind that you can 15· ·send him to? 16· · · · A.· ·They -- the school normally does a 17· ·two-week summer school and then they do a summer 18· ·camp.· Obviously that was canceled. 19· · · · · · ·My son has been going to a sleepover camp 20· ·for special needs children since he was six up in 21· ·upstate New York, but that was canceled due to the 22· ·pandemic.· So we basically just did things around 23· ·here and, you know, again, driving, walking, taking 24· ·walks.· He would swim here and there in -- you know, 25· ·in the swimming pool or the beach, again, depending
0597 Page 464 ·1· ·on the weather and how hot it is. ·2· · · · · · ·But, you know, basically I did anything ·3· ·just to keep him calm and to keep him from having ·4· ·episodes.· That's just all I did. ·5· · · · Q.· ·So on top of those daily issues and ·6· ·concerns, did you notice any regression behaviorally ·7· ·or educationally with your son over this time? ·8· · · · A.· ·Yeah, he just -- he's -- he's regressed. ·9· · · · · · ·I mean, he just -- his stimming with 10· ·constant repeating of just the same word over and 11· ·over and over, or the rocking.· I mean, all the 12· ·things that just sort of take -- you know, just are 13· ·signs that he's -- he's not able to, like, calm 14· ·himself, have just gotten more and more severe. 15· · · · · · ·You know, you used to pretty much be able 16· ·to keep him level, but the anxiety, I think it's 17· ·mostly anxiety at this point, everything just sort 18· ·of -- it just raises his -- you know, his level up, 19· ·the slightest thing. 20· · · · · · ·So, you know, I've gotten him used to 21· ·wearing a mask.· That took some time, because 22· ·obviously when school does return, he's got to wear 23· ·a mask.· So that took some training, but he's coming 24· ·along with that.· But come -- with that comes also, 25· ·you know, that anxiety.
0598 Page 465 ·1· · · · · · ·So there's just a -- a large sense of ·2· ·anxiety right now with him, and we're trying to see ·3· ·what we can do to reduce that. ·4· · · · Q.· ·Were you given an option recently by the ·5· ·school district whether or not to have your son ·6· ·return to his school in person? ·7· · · · A.· ·So Connections generally follows to a ·8· ·certain degree the -- the district.· So they are ·9· ·starting virtually come Monday, the -- this coming 10· ·Monday, the 24th. 11· · · · · · ·They opted to start a week earlier 12· ·virtually than the district.· But they are following 13· ·the district as far as when brick-and-mortar opens. 14· ·So when the district decides to open 15· ·brick-and-mortar, then Connections will open 16· ·brick-and-mortar. 17· · · · · · ·But they will slowly open.· They will only 18· ·return two days a week for two hours, which I'm not 19· ·really sure what that accomplishes, and then when we 20· ·get to phase 3, they will open four days a week for 21· ·half a day. 22· · · · · · ·So I don't know when they will actually be 23· ·open five days a week for a full day. 24· · · · Q.· ·So what would you prefer if given the 25· ·option for your son?
0599 Page 466 ·1· · · · A.· ·Well, I prefer -- you know, I would -- in ·2· ·my opinion, opening virtually doesn't -- doesn't ·3· ·help me.· It doesn't help my son.· It's not an ·4· ·appropriate education for him, so I would rather ·5· ·they wait and open, and open completely full-time. ·6· ·That would be the best scenario. ·7· · · · Q.· ·How do you think you would manage if you ·8· ·were required to keep your son at home doing some ·9· ·remote education in the future? 10· · · · A.· ·You know, again, I don't -- I don't even 11· ·know how I'm going to get him to go back into it. 12· · · · · · ·I've tried this past week to bring up the 13· ·subject, and put the iPad in front of him and say, 14· ·"Hey, we're going to start doing schoolwork," and 15· ·immediate reaction of anxiety.· "No school.· No 16· ·school.· No school."· And then the iPad goes across 17· ·the room. 18· · · · · · ·So I'm not sure how I'm going to even be 19· ·able to.· I've already told the school that we just 20· ·may not participate in any kind of way until they 21· ·actually open because I can't do any more damage. 22· ·You know, I can't be part of doing any more damage 23· ·to my son's mental well-being at this point.· And my 24· ·own. 25· · · · · · ·MR. HILL:· May I have a moment, Your
0600 Page 467 ·1· · · · Honor? ·2· · · · · · ·THE COURT:· Sure, yes, sir. ·3· · · · · · ·MR. HILL:· I have nothing further at this ·4· · · · time, Your Honor. ·5· · · · · · ·THE COURT:· Cross? ·6· · · · · · ·MR. COFFEY:· Your Honor, we have no cross. ·7· · · · · · ·THE COURT:· Ms. Pope, you are free to go. ·8· · · · · · ·May Ms. Pope be excused? ·9· · · · · · ·MR. HILL:· Yes, Your Honor. 10· · · · · · ·THE COURT:· All right.· Ms. Pope, you are 11· · · · free to go.· Thank you very much.· Yes, ma'am. 12· · · · · · ·THE WITNESS:· Thank you.· Bye-bye. 13· · · · · · ·THE COURT:· Call your next witness. 14· · · · · · ·MR. HILL:· May I just have one moment, 15· · · · Your Honor, just to see who we have waiting? 16· · · · · · ·THE COURT:· I see -- I see Glenton Gilzean 17· · · · is in the waiting room. 18· · · · · · ·MR. HILL:· Okay.· Yeah, that will be good. 19· · · · We will call Glen Gilzean, then, please. 20· · · · · · ·THE COURT:· Okay.· If you would go ahead 21· · · · and let him in, Ms. Jessica. 22· · · · · · ·Mr. Gilzean, if you'd take your computer 23· · · · off mute -- there you go. 24· · · · · · ·Raise your right hand, please. 25· ·Thereupon:
0601 Page 468 ·1· · · · · · · · · · ·GLENTON GILZEAN ·2· ·having been sworn by the Court testified as follows: ·3· · · · · · ·THE WITNESS:· Yes, sir. ·4· · · · · · ·THE COURT:· Thank you, sir.· You can put ·5· · · · your hand down. ·6· · · · · · ·MR. WELLS:· May I proceed, Your Honor? ·7· · · · · · ·THE COURT:· Yes, sir. ·8· · · · · · · · · · DIRECT EXAMINATION ·9· · ·BY MR. WELLS 10· · · · Q.· ·All right.· Would you give us your full 11· ·name, sir? 12· · · · A.· ·Glenton Gilzean, Junior. 13· · · · Q.· ·And, Mr. Gilzean, where do you live? 14· · · · A.· ·Orlando -- well, Ocoee, Florida. 15· · · · Q.· ·And what do you do for a living, sir? 16· · · · A.· ·I'm the president and CEO of the Central 17· ·Florida Urban League. 18· · · · Q.· ·What's the Central Florida Urban League, 19· ·Mr. Gilzean? 20· · · · A.· ·The Central Florida Urban League is a 21· ·Civil Rights organization.· We are an affiliate of 22· ·the National Urban League that was founded 110 years 23· ·ago on the premise of helping African-Americans get 24· ·social justice through education, employment, 25· ·housing, and health.
0602 Page 469 ·1· · · · Q.· ·What is your job as the CEO? ·2· · · · A.· ·My job is to provide leadership and ·3· ·guidance to the staff, to the board, and then, more ·4· ·importantly, provide -- obtain services for my ·5· ·community. ·6· · · · Q.· ·You mentioned that one of the things that ·7· ·you were -- that you promote and seek as part of the ·8· ·Urban League is education; can you help us ·9· ·understand that a bit better? 10· · · · A.· ·Yes. 11· · · · · · ·My board agreed to follow my -- some 12· ·keywords from my mom in my upbringing, which is, she 13· ·said, "Baby, ain't nobody going to hire you if you 14· ·can't read, and ain't nobody going to invest in you 15· ·if you have no work experience." 16· · · · · · ·So we have revamped our mission statement 17· ·to focus on the three "Es":· Education, employment, 18· ·entrepreneurship.· And in our education program, we 19· ·help at-risk youth through mentoring, and then we 20· ·also provide educational support like tutoring. 21· · · · Q.· ·Have you had any involvement, sir, with 22· ·the Re-Open Florida Task Force? 23· · · · A.· ·Yes, sir. 24· · · · Q.· ·Can you tell the Court first what the 25· ·Re-Open Florida Task Force is, and then what's your
0603 Page 470 ·1· ·role? ·2· · · · A.· ·The governor launched a task force, ·3· ·selected a number of individuals from the private ·4· ·sector, community sector, and the role was to ·5· ·provide guidance on how to properly and safely open ·6· ·up Florida. ·7· · · · Q.· ·And is education any part of what you're ·8· ·looking at as part of the Re-Open Florida Task ·9· ·Force? 10· · · · A.· ·Yes, sir.· Education, and also -- also 11· ·businesses. 12· · · · · · ·One of the things that was super important 13· ·to me and my constituents is that we've always said 14· ·that the -- the schools and the African-American 15· ·businesses in our community are the two major 16· ·anchors that supports our community. 17· · · · · · ·There was a recent study that showed that 18· ·40 percent of all black businesses will either close 19· ·or have closed due to COVID-19.· So being a member 20· ·of that task force, it was super important that we 21· ·advocated to ensure that schools and our businesses 22· ·get the support they need. 23· · · · · · ·Because without those two major pillars, 24· ·there is no African-American community. 25· · · · Q.· ·And do you have any concern, as a member
0604 Page 471 ·1· ·of the African-American community, and as a chief ·2· ·executive officer of the Urban League, about the ·3· ·schools remaining closed and what impact that might ·4· ·have? ·5· · · · A.· ·Yes, absolutely. ·6· · · · · · ·In some cases, the school is the most ·7· ·safe -- safest place for our children, our babies, ·8· ·and also, it provides a lot of nutritional support, ·9· ·in addition to the social and emotional supports. 10· · · · Q.· ·Do you have any personal experience with 11· ·the Florida public school system, sir? 12· · · · A.· ·Yes, sir. 13· · · · Q.· ·Tell us what that is. 14· · · · A.· ·Uh-oh.· Did I lose everybody? 15· · · · Q.· ·Can you hear me now? 16· · · · A.· ·Oh, yes, I can.· It just froze a second 17· ·ago. 18· · · · · · ·Yes, I'm a proud graduate of 19· ·Broward County public schools.· Graduated from Nova 20· ·High School.· Go Titans. 21· · · · Q.· ·Okay.· You mentioned that you -- the 22· ·school is the safest place for certain students. 23· · · · · · ·What do you mean by that, sir?· What's 24· ·your basis to say that? 25· · · · A.· ·Working in underserved communities,
0605 Page 472 ·1· ·communities -- mostly minorities, low income, in ·2· ·some cases, the school is where we get nutritional ·3· ·support. ·4· · · · · · ·And I can speak for myself, growing up, ·5· ·that's where I was able to get a healthy meal.· My ·6· ·mom and my -- my dad did as much as they could, but ·7· ·they had to work multiple jobs, and the school was ·8· ·actually a safe haven for me.· And I know that ·9· ·firsthand, and I know that countless of number of 10· ·low income minority African-American students face 11· ·the same struggles. 12· · · · · · ·That's the reason why I took this job, to 13· ·fight for them. 14· · · · Q.· ·Have you had any experience as a school 15· ·board member, Mr. Gilzean? 16· · · · A.· ·Yes, sir. 17· · · · Q.· ·Tell us what that experience has been. 18· · · · A.· ·I had the privilege of serving in the 19· ·Pinellas County school board system representing 20· ·District 9. 21· · · · · · ·The schools in District 9 were a majority 22· ·minority students.· It was also the lowest income 23· ·part of Pinellas County.· I represented District 7, 24· ·and all the students there -- I said District 9 but 25· ·I meant District 7, sorry -- and it -- we covered
0606 Page 473 ·1· ·all the students down in the South County of ·2· ·Pinellas County. ·3· · · · Q.· ·Based on your experience there in ·4· ·Pinellas County as a board member, what's your view ·5· ·on the importance of reopening schools? ·6· · · · A.· ·Again, ensuring that children, especially ·7· ·low income children, have the necessary supports, ·8· ·social, emotional, but more importantly nutritional ·9· ·and safety that a school offers. 10· · · · Q.· ·Okay.· Do you ever refer to the -- I guess 11· ·the phrase, the school-to-prison pipeline? 12· · · · A.· ·Yes, sir.· And that's a real fear within 13· ·the -- in our community. 14· · · · Q.· ·What's the fear?· I know you told me what 15· ·that was, but explain, if you would, to the Court 16· ·what you're talking about when you use that phrase 17· ·of yours. 18· · · · A.· ·Yes. 19· · · · · · ·So we understand that without quality 20· ·schools, quality education, there was a recent study 21· ·that showed that more than 60 percent of individuals 22· ·who are incarcerated today in Florida's prisons lack 23· ·a high school diploma, have reading scores that are 24· ·tremendously poor. 25· · · · · · ·So we understand that if the -- the
0607 Page 474 ·1· ·education components, that the education supports ·2· ·are not there, you're basically feeding into the ·3· ·school-to-prison pipeline. ·4· · · · Q.· ·And as you're -- as a member of the school ·5· ·board, were you called upon to have to make tough ·6· ·decisions about policies, what to do with your ·7· ·particular school district? ·8· · · · A.· ·Oh, absolutely.· That's part of the job. ·9· · · · Q.· ·Okay. 10· · · · · · ·MR. WELLS:· I don't think we have any 11· · · · more, Your Honor. 12· · · · · · ·THE COURT:· Cross? 13· · · · · · ·MR. STUART:· May I proceed, Your Honor? 14· · · · · · ·THE COURT:· Sure.· Yes, sir. 15· · · · · · ·MR. STUART:· I have a little bit of a 16· · · · delay so I apologize. 17· · · · · · · · · · CROSS EXAMINATION 18· · ·BY MR. STUART 19· · · · Q.· ·Mr. Gilzean, it's good to see you. 20· · · · A.· ·Yes, sir.· Good to see you as well. 21· · · · Q.· ·So a few things.· You mentioned before 22· ·you're the chairman of the Central Florida Urban 23· ·League; is that correct? 24· · · · A.· ·No, sir.· Not the chairman, just the 25· ·president and CEO.
0608 Page 475 ·1· · · · Q.· ·And you mentioned before as the president ·2· ·and CEO, it's a local affiliate, meaning that you ·3· ·are a member of the national organization that you ·4· ·said was founded about 110 years ago? ·5· · · · A.· ·Yes, sir. ·6· · · · Q.· ·And as an affiliate, what does it mean to ·7· ·be that?· I mean, do you have to follow what they ·8· ·say, or do you have autonomy to do what you want to ·9· ·do under their umbrella? 10· · · · A.· ·As an affiliate, we -- our -- so the urban 11· ·league is set up on a federated model, which means 12· ·it's governed by the local board of directors and 13· ·the local CEO. 14· · · · · · ·However, we still have to work within our 15· ·terms of affiliation, which means that we have to 16· ·offer services and program and advocacy in the four 17· ·pillars, which is education, health, housing, and 18· ·jobs. 19· · · · Q.· ·Okay.· So would it be fair to say that 20· ·your position as the president of the Central 21· ·Florida Urban League, and it's been well documented 22· ·beyond testimony today but also in the news, that 23· ·you believe we should open brick-and-mortar schools 24· ·effective immediately; is that correct? 25· · · · A.· ·I believe that we have to provide parents
0609 Page 476 ·1· ·an option. ·2· · · · · · ·I believe that parents, like my own, if we ·3· ·didn't have the option of brick-and-mortar, I don't ·4· ·know if I would be here testifying before you, or ·5· ·even have the friendship that you and I have outside ·6· ·of this. ·7· · · · Q.· ·Fair enough. ·8· · · · · · ·But what I'm asking, though, Mr. Gilzean, ·9· ·is that -- not that we should not one day open 10· ·brick-and-mortar, but your position is we should 11· ·open brick-and-mortar effectively on the current 12· ·plans we have now, especially, like, in -- for 13· ·instance, in Orange County, where both of us live, 14· ·effective tomorrow. 15· · · · · · ·You're in agreement with that; is that 16· ·right? 17· · · · A.· ·I'm in agreement, and I've been a tireless 18· ·advocate for this.· But I'm in agreement to giving 19· ·parents options.· So if there's a parent that needs 20· ·a brick-and-mortar option, we need to provide 21· ·that -- that option. 22· · · · Q.· ·And your position is that we should do 23· ·that because, as I quote, you've said this before, 24· ·"We can rebuild black businesses, but I don't know 25· ·how we can rebuild any of our kids' childhoods."
0610 Page 477 ·1· · · · · · ·Is that an accurate statement of what you ·2· ·said for backing that up? ·3· · · · A.· ·Absolutely.· With -- as I -- as I made the ·4· ·argument in the past, that you can be an ·5· ·eight-year-old in the 3rd grade once. ·6· · · · Q.· ·I understand that. ·7· · · · · · ·But at the same time, you -- do you -- are ·8· ·you under -- do you know, from your knowledge, in ·9· ·terms of you being president, that the 10· ·African-American community is disproportionally 11· ·affected by the COVID-19 virus?· Are you aware of 12· ·that? 13· · · · A.· ·I am, sir. 14· · · · Q.· ·And so are you concerned that black people 15· ·compared to white people, other races, being 16· ·disproportionally affected by COVID-19, having a 17· ·high mortality rate, that children could transmit 18· ·those diseases to their parents or caregivers? 19· · · · A.· ·Absolutely.· And in addition to that, I 20· ·would say that's why it's so important to have 21· ·options. 22· · · · · · ·So for the families that want -- out of 23· ·safety want to have a virtual option, be so.· Let it 24· ·be so. 25· · · · Q.· ·Right.
0611 Page 478 ·1· · · · A.· ·But for the families who want a -- an ·2· ·alternative option, I think that's what this is all ·3· ·about. ·4· · · · · · ·But not offering that, I think what you do ·5· ·is you continue to exasperate the disproportional -- ·6· ·like today, I drove through my community, and one of ·7· ·the elementary school, Hiawassee, which you know is ·8· ·in the heart of Pine Hills, one of the lowest ZIP ·9· ·codes in Orange County, and it said that to pick up 10· ·lunch, it's only available on Mondays, between the 11· ·hours of 4:00 and 5:00. 12· · · · Q.· ·Right. 13· · · · · · ·But, Mr. Gilzean -- and I hear what you're 14· ·saying, there's no question we have a lot of public 15· ·policy issues to deal with. 16· · · · · · ·But for purposes of the suit today, we're 17· ·only talking about opening the brick-and-mortar 18· ·schools in the face of a trending pandemic.· And so 19· ·what I want to get back to, though, is that there 20· ·are a lot of things that need to be decided in 21· ·legislature or the governor, but for purposes of 22· ·today, we're talking about your position as a quasi 23· ·expert on African-American issues. 24· · · · · · ·For my point, though, I want to get to 25· ·this:· Do you have any medical background or any
0612 Page 479 ·1· ·medical training whatsoever? ·2· · · · A.· ·No, sir, I do not. ·3· · · · Q.· ·All right.· And you mentioned before, ·4· ·you're aware about the effect of the black community ·5· ·in terms of the pandemic and how it's ·6· ·disproportionally affecting our brothers and sisters ·7· ·here locally and throughout the state. ·8· · · · · · ·You said you're aware of that? ·9· · · · A.· ·Yes, sir. 10· · · · Q.· ·All right.· The National -- are you aware 11· ·of the fact that the National -- the president of 12· ·the National Urban League released a report on 13· ·Saturday, August 15th, and in that report, your 14· ·president mentioned the fact that they do not 15· ·support reopening schools until the virus is under 16· ·control; are you aware of that? 17· · · · A.· ·I am. 18· · · · Q.· ·So your statement about reopening schools 19· ·here in central Florida, and actually throughout the 20· ·whole case of Florida, is in direct opposition to 21· ·what your president is saying for the national 22· ·affiliate; is that correct? 23· · · · A.· ·Absolutely. 24· · · · · · ·But again, they oversee aspects from a 25· ·federated model where they talk on a national basis.
0613 Page 480 ·1· ·But when you look at our terms of affiliation, I ·2· ·have the ability to advocate for the issues on the ·3· ·ground here at a local and state level. ·4· · · · · · ·So there's times where we're -- we're in ·5· ·odds, and that's perfectly fine.· That's how our ·6· ·organization is structured.· Because we understand ·7· ·that the needs out of New York are completely ·8· ·different than the needs right here in Orange County ·9· ·and Pine Hills, Florida. 10· · · · Q.· ·Well -- but if that's the basis of what 11· ·you're saying, are you aware that the positivity 12· ·rate for the COVID-19 virus is lower in New York 13· ·than it is in Florida? 14· · · · · · ·So why would we be advocating for it to be 15· ·close -- or they would be advocating your same 16· ·organization to close in New York but not Florida? 17· · · · A.· ·Again, I can't control what Mr. Mark 18· ·Morial does at the national level.· My board of 19· ·directors and myself, we are the ones who are 20· ·responsible for governing our community and our 21· ·needs right here on the ground. 22· · · · · · ·And I can speak for the families I spoke 23· ·to, tons of families, tons of teachers, and we have 24· ·feedback from them that have said, yes, we need to 25· ·open up schools for the same four reasons I
0614 Page 481 ·1· ·mentioned:· One, safety; two, nutritional support; ·2· ·three, the social and emotional things that a school ·3· ·offers for our kids. ·4· · · · · · ·And again, we're not arguing that it needs ·5· ·to only be brick-and-mortar.· We're arguing that, ·6· ·hey, we need to have options.· And the more options ·7· ·that we can provide, that's the best way that we're ·8· ·going to improve this generational curse that's out ·9· ·there, generational poverty. 10· · · · · · ·And that's what I'm in the business of 11· ·doing, is ending that generational curse. 12· · · · Q.· ·Fair enough.· And I understand what your 13· ·work is. 14· · · · · · ·But in terms of getting back to what the 15· ·suit's about, you mentioned before about 16· ·African-Americans -- or, excuse me, people who have 17· ·lower socioeconomical availability; for instance, 18· ·they don't have the ability to go on beach trips or 19· ·have boats or things like that, that rely on getting 20· ·fed breakfast or lunch through school. 21· · · · · · ·Are you aware of the fact while we were in 22· ·virtual learning or while we were in lockdown, 23· ·Orange County specifically was able to provide food 24· ·for students who needed it?· Are you aware of that? 25· · · · A.· ·Yes, sir, on select days.
0615 Page 482 ·1· · · · Q.· ·Right. ·2· · · · A.· ·And also -- and specifically going back to ·3· ·the point with Orange County, the nearest site for ·4· ·the local African-American community was actually ·5· ·about seven miles.· Right? ·6· · · · · · ·So you're asking someone who may have a ·7· ·barrier to transportation, and we know how, sadly, ·8· ·the infrastructure is for -- for transportation here ·9· ·in Orange County, to jump on a bus, that may take 10· ·them about an hour or so to go get food and then 11· ·come back, right? 12· · · · · · ·So what I'm advocating is that if we have 13· ·that opportunity where the neighborhood school is 14· ·back open, now that child is receiving the 15· ·nutritional support, the safety support, and the 16· ·social and emotional piece. 17· · · · · · ·Again, it's not for everyone, but I'm just 18· ·saying that when you factor in the components, when 19· ·you factor in the generational poverty curse, that's 20· ·why we're advocating for this, because we know we 21· ·need it. 22· · · · Q.· ·And I understand what you're advocating 23· ·for, but I want to get back to it, because part of 24· ·your goal you said was to protect black children and 25· ·African-American children, right?· That's what you
0616 Page 483 ·1· ·want to do? ·2· · · · A.· ·Yes, sir. ·3· · · · Q.· ·You want to protect black families, and ·4· ·black teachers, and black bus drivers.· And I assume ·5· ·white teachers and white bus drivers, too?· All ·6· ·alike, right? ·7· · · · A.· ·Absolutely. ·8· · · · Q.· ·Right. ·9· · · · · · ·Are you aware, even though you have no 10· ·medical background, that even if people choose or 11· ·not choose to go to certain places, the virus can be 12· ·transmitted, and it doesn't have -- the virus 13· ·doesn't choose between black and white, it just goes 14· ·to where the person is? 15· · · · · · ·Are you aware of that? 16· · · · A.· ·I am. 17· · · · Q.· ·So under -- you know, under your position 18· ·about that we have to provide all these things for 19· ·people, you also understand that just like your 20· ·national association has said, that there's a 21· ·balancing test and you have to be able to protect 22· ·the safety and well-being of your citizens, versus 23· ·providing, I guess, occasional meals. 24· · · · · · ·So I guess my question is -- directly to 25· ·you, Mr. Gilzean, is that:
0617 Page 484 ·1· · · · · · ·Don't you think it's more important to ·2· ·protect people from a pandemic than to rush to ·3· ·opening back the schools?· There's no question we ·4· ·want to open schools at some point, but why not do ·5· ·it when it's safe and the medical experts agree with ·6· ·it? ·7· · · · · · ·MR. WELLS:· Is there a question in there ·8· · · · somewhere, Your Honor?· Just object. ·9· · · · · · ·MR. STUART:· I'll rephrase it, Your Honor. 10· · ·BY MR. STUART 11· · · · Q.· ·Why would -- let me put it this way.· Let 12· ·me be direct. 13· · · · · · ·Isn't it more important to protect 14· ·African-Americans from dying or having long-term 15· ·harm from the virus than opening schools up now? 16· · · · A.· ·It is super important to protect all of 17· ·our citizens. 18· · · · · · ·But what I will also add to that is that 19· ·just like your little ones, they have access to 20· ·educational options.· I'm arguing let's not rob our 21· ·community.· Our community has been decimated.· You 22· ·know right here in Orange County that the 23· ·African-American wealth is less than $18,000. 24· · · · · · ·Black people -- 25· · · · Q.· ·That's not what I'm asking, though.· I'm
0618 Page 485 ·1· ·asking -- ·2· · · · · · ·MR. WELLS:· Your Honor, can the witness -- ·3· · · · excuse me. ·4· · · · · · ·We listened to, you know, four-minute ·5· · · · questions.· Can the witness at least have the ·6· · · · opportunity to answer without interruption? ·7· · · · · · ·MR. STUART:· He's being nonresponsive, ·8· · · · Your Honor. ·9· · · · · · ·THE COURT:· Ask the question again, 10· · · · Mr. Stuart.· Let's start over. 11· · ·BY MR. STUART 12· · · · Q.· ·Mr. Gilzean, from your position as the 13· ·central Florida president of the Urban League, it 14· ·more important to protect children and their parents 15· ·and caregivers from the virus or to open schools? 16· ·What's more important? 17· · · · A.· ·I think they're equally important, sir. I 18· ·think we've got to keep people safe.· I've always 19· ·argued that, and I think we have to educate our 20· ·children. 21· · · · Q.· ·Are you aware of any plan that 22· ·Orange County's put forward to keep their children 23· ·and teachers safe? 24· · · · A.· ·I am not aware of Orange County's plans. 25· · · · Q.· ·Are you aware -- are there plans -- are
0619 Page 486 ·1· ·you aware of the existence of plans here in central ·2· ·Florida? ·3· · · · A.· ·I am not aware of any of the plans. ·4· · · · · · ·MR. STUART:· One moment, Your Honor. ·5· · · · · · ·THE COURT:· Yes, sir. ·6· · · · · · ·MR. STUART:· One more line of questioning, ·7· · · · Your Honor. ·8· · ·BY MR. STUART ·9· · · · Q.· ·Mr. Gilzean, you know, part of the 10· ·complaint of our case is opening schools at a later 11· ·time. 12· · · · · · ·Going on with your line of questioning 13· ·about giving access, what's the danger of waiting 14· ·one more month or two more months to open schools 15· ·versus opening now when the pandemic's still raging? 16· · · · A.· ·So studies have shown that there's a thing 17· ·called the summer learning slide.· And what happens 18· ·is that a child loses a lot of the stuff that they 19· ·learn in the school year just in a two-month period. 20· · · · · · ·So now let's focus on, like, again, going 21· ·back to what my job is, is advocating for 22· ·African-American families and kids.· We've been out 23· ·of school since March.· And if you continue to delay 24· ·that, from an educational standpoint -- and let's 25· ·take the social emotional and the food piece off and
0620 Page 487 ·1· ·just focus on academics. ·2· · · · · · ·Going back to the point that I made ·3· ·earlier, if our black wealth is less than $18,000 a ·4· ·year, and we know that education is the equalizer to ·5· ·get us out of that, what are you saying as it ·6· ·relates to my community?· Are you saying that we're ·7· ·going to continue to keep them down and oppressed? ·8· ·So that's why it's important to provide the option. ·9· · · · · · ·Again, we need to make sure that the 10· ·educational opportunities exist.· For those parents 11· ·who need a -- a virtual option, give it to them. 12· ·But for a lot of parents, they said that -- and I'll 13· ·use my mom as the example. 14· · · · · · ·My mom dropped out of high school, right, 15· ·and she had to work multiple jobs just to keep the 16· ·roof over our heads and kept us fed.· Now, if she 17· ·had to also be the teacher and instructor, and 18· ·trying to figure it out, again, I wouldn't be here. 19· · · · Q.· ·Mr. -- 20· · · · A.· ·And you and I -- yes, sir.· Go ahead. 21· · · · Q.· ·But that's not -- and I appreciate your 22· ·life story and what your parents did for you, but 23· ·that's not what I'm talking about.· And that's not 24· ·what this suit's about.· And you answered my 25· ·question.
0621 Page 488 ·1· · · · · · ·Your position is, so we're clear, even in ·2· ·the face of the pandemic, you believe we should open ·3· ·schools effectively tomorrow in Orange County and ·4· ·give people the option to go back in ·5· ·brick-and-mortar, even though we're still in the ·6· ·midst of the pandemic here locally in Orange County? ·7· · · · A.· ·I am advocating for that mom who is not ·8· ·here who has to work two jobs and has an ·9· ·eight-year-old that can't -- she can't leave her -- 10· ·him at home, and she doesn't have the opportunity to 11· ·work from home. 12· · · · · · ·So what she needs is an opportunity for 13· ·that -- for her child to get a good education in an 14· ·environment that's safe and provides the nutritional 15· ·support. 16· · · · Q.· ·What about the black teachers who are 17· ·going to get infected with the virus?· What about 18· ·them? 19· · · · A.· ·So, again, I think having these options, 20· ·you can have that black teacher, the district, 21· ·Dr. Jenkins, to say, "Hey, you know what --" and I 22· ·hope the unions locally will allow that, where the 23· ·teacher can actually provide their educational 24· ·services online. 25· · · · · · ·But for those teachers, I know for a fact
0622 Page 489 ·1· ·that says, you know what?· I want to be in the ·2· ·classroom with the child, because I know what I can ·3· ·do to help them academically and socially and ·4· ·emotionally. ·5· · · · · · ·So for those who feel unsafe, let them go ·6· ·into a virtual opportunity.· And that's what I think ·7· ·this is all about.· Just create the options for the ·8· ·people who need it. ·9· · · · Q.· ·But what if there aren't options for 10· ·teachers and they have to go back, and like 11· ·yesterday, there was testimony about teachers here 12· ·locally who, despite medical conditions, or medical 13· ·conditions of loved ones who are being ordered to go 14· ·back and teach in person, what about them? 15· · · · A.· ·I would say that the local district, you 16· ·have -- and you -- the local district, the local 17· ·school board members, they have to listen to their 18· ·residents, and they have to create the options. 19· · · · · · ·That's why they were elected.· Let them be 20· ·able to figure it out.· They have to.· Because to 21· ·say that the options don't exist and not to provide 22· ·it, then that's -- that's really a collective 23· ·bargaining issue, right?· That's one of the things 24· ·that -- 25· · · · Q.· ·No, Mr. Gilzean.
0623 Page 490 ·1· · · · · · ·Actually, the local school boards, as I ·2· ·know you're aware, have voted saying that their ·3· ·hands are tied and they have to follow the executive ·4· ·order from Commissioner Corcoran and ·5· ·Governor DeSantis, despite the fact they don't want ·6· ·to.· So your statement about the county, Orange ·7· ·County, being able to make their own decisions is ·8· ·inaccurate. ·9· · · · · · ·So again, I want to ask you, as a leader 10· ·of the community, what do you say to teachers who 11· ·are being ordered to go back to school?· Just to 12· ·deal with it? 13· · · · A.· ·No, sir.· What I'm saying is that the 14· ·district has to find a way to provide the option. 15· ·And I -- and if -- I truly believe that the district 16· ·does have options.· That true -- they -- they need 17· ·to make the choices. 18· · · · Q.· ·What if the district can't make the 19· ·choices? 20· · · · A.· ·I -- that's -- that's not -- that's not 21· ·what the executive order says.· There are options 22· ·that the district has. 23· · · · · · ·MR. STUART:· One second, Your Honor, if I 24· · · · may. 25
0624 Page 491 ·1· · ·BY MR. STUART ·2· · · · Q.· ·Few more questions. ·3· · · · · · ·Mr. Gilzean, are you aware -- you ·4· ·mentioned before that teachers in districts should ·5· ·have options. ·6· · · · · · ·Are you aware personally of teachers ·7· ·having options universally in Orange County to ·8· ·decide if they want to teach virtually? ·9· · · · A.· ·No, sir, I'm not aware of that. 10· · · · Q.· ·So, you know, we're less than 24 hours to 11· ·school opening, and again, I want to ask you: 12· · · · · · ·You not being aware and ensuring that 13· ·teachers have options, and just like you said, that 14· ·you want parents to have options, I'm sure you 15· ·want -- you would agree, like you said, that 16· ·teachers should have options, correct? 17· · · · A.· ·Absolutely. 18· · · · · · ·MR. WELLS:· Just object.· He's now gotten 19· · · · to the same question about six different times. 20· · · · It's been answered that many. 21· · · · · · ·THE COURT:· I think Mr. Gilzean's answered 22· · · · that question. 23· · · · · · ·MR. STUART:· All right.· I'll move on, 24· · · · Your Honor. 25
0625 Page 492 ·1· · ·BY MR. STUART ·2· · · · Q.· ·So if the teachers don't have options, ·3· ·wouldn't you feel that -- they don't have an option ·4· ·to teach virtually or teach in person, wouldn't you ·5· ·feel that there should be more time and we should ·6· ·postpone opening schools to allow them time to have ·7· ·options, Mr. Gilzean? ·8· · · · A.· ·I think the -- the district -- the school ·9· ·district should be working diligently to create the 10· ·necessary options available for students and also 11· ·teachers as well. 12· · · · · · ·And I think we need to make sure that our 13· ·families get the tools and the resources they need. 14· · · · Q.· ·That's not what I asked, Mr. Gilzean. 15· · · · · · ·What I asked was, that since you don't 16· ·know teachers have options, and there's testimony in 17· ·the -- before the Court of teachers being forced to 18· ·go back, should Orange County delay opening to allow 19· ·teachers to have the option to be virtual versus in 20· ·person? 21· · · · A.· ·No, I think -- I think that Orange County 22· ·should provide the -- they need to work overtime and 23· ·figure out how to create those environments.· They 24· ·did it in March, where they went online, and I think 25· ·that they can do the same thing now.
0626 Page 493 ·1· · · · Q.· ·You mean they can just teach -- you mean ·2· ·they -- back in March, everyone taught virtually or ·3· ·online; so you mean that's what we should do? ·4· · · · A.· ·No, sir. ·5· · · · · · ·What I'm saying is that they have the ·6· ·ability to come up with a system -- that's how our ·7· ·democracy works, right?· If the people want ·8· ·something, then the leaders need to figure out how ·9· ·to make that happen. 10· · · · · · ·MR. STUART:· Okay.· No further questions, 11· · · · Your Honor. 12· · · · · · ·THE COURT:· Any redirect? 13· · · · · · ·MR. WELLS:· No, Your Honor. 14· · · · · · ·THE COURT:· Thank you, Mr. Gilzean. 15· · · · · · ·You are -- is Mr. Gilzean free to leave? 16· · · · · · ·MR. WELLS:· Yes, Your Honor. 17· · · · · · ·THE COURT:· Yes, sir, you are free to 18· · · · leave.· Thank you, sir. 19· · · · · · ·THE WITNESS:· Thank you. 20· · · · · · ·THE COURT:· Do you want to go on to your 21· · · · next witness now, or do you want to take a 22· · · · short break? 23· · · · · · ·MR. WELLS:· I think it would be prudent to 24· · · · take a short break.· I need to set up a fair 25· · · · number of documents with this next witness.
0627 Page 494 ·1· · · · · · ·THE COURT:· Okay.· Let's take a ten-minute ·2· · · · break.· Court will be in recess for ten ·3· · · · minutes. ·4· · · · · · ·MR. WELLS:· Thank you, Your Honor. ·5· · · · · · ·MR. COFFEY:· May we inquire who the ·6· · · · witness will be? ·7· · · · · · ·MR. WELLS:· Dr. Bhattacharya. ·8· · · · · · ·MR. COFFEY:· Thank you, David. ·9· · · · · · ·MR. WELLS:· Thanks, yeah. 10· · · · · · ·(Recess from 10:02 a.m. to 10:16 a.m.) 11· · · · · · ·THE COURT:· Okay.· Let's go back on the 12· · · · record. 13· · · · · · ·Who's your next witness now, Mr. Wells? 14· · · · · · ·MR. WELLS:· Our next witness is 15· · · · Dr. Bhattacharya. 16· · · · · · ·THE COURT:· All right.· Dr. Bhattacharya, 17· · · · I'll go ahead and admit him now. 18· · · · · · ·Dr. Bhattacharya, if you would take your 19· · · · computer off mute there now, and raise your 20· · · · right hand, please. 21· ·Thereupon: 22· · · · · · · JAYANTA BHATTACHARYA, MD, PhD 23· ·having been sworn by the Court testified as follows: 24· · · · · · ·THE WITNESS:· I do. 25· · · · · · ·THE COURT:· Thank you, sir.· You can put
0628 Page 495 ·1· · · · your hand down. ·2· · · · · · · · · · DIRECT EXAMINATION ·3· · ·BY MR. WELLS ·4· · · · Q.· ·Doctor, would you give us your name for ·5· ·the record, please. ·6· · · · A.· ·Sure, I'm Jayanta Bhattacharya. ·7· · · · Q.· ·Dr. Bhattacharya, by whom are you ·8· ·employed? ·9· · · · A.· ·I'm employed by Stanford University. 10· · · · Q.· ·What do you do at Stanford University, 11· ·Doctor? 12· · · · A.· ·I'm a professor of medicine here at 13· ·Stanford. 14· · · · Q.· ·How long have you been at the Stanford 15· ·University? 16· · · · A.· ·I've been teaching here since 2001.· I was 17· ·a student the year before that. 18· · · · Q.· ·Okay.· Do you have any role with the 19· ·Stanford Center for Demography and Economics of 20· ·Health and Aging? 21· · · · A.· ·Yes.· I'm the director of that -- of that 22· ·entity.· I -- I've been directing that, I think, 23· ·since 2008. 24· · · · · · ·MR. WELLS:· Mr. Hill, can we pull up the 25· · · · Doctor's CV?· And I'll just go ahead and get
0629 Page 496 ·1· · · · him to identify it. ·2· · · · · · ·MR. HILL:· Ask the judge to allow it. ·3· · · · · · ·MR. WELLS:· Judge, can you let us put an ·4· · · · exhibit in, please, sir? ·5· · · · · · ·THE COURT:· Hang on just one second, ·6· · · · please. ·7· · · · · · ·It's ready now. ·8· · · · · · ·(Thereupon, marked for identification is ·9· · · · Defense Exhibit 8.) 10· · ·BY MR. WELLS 11· · · · Q.· ·Dr. Bhattacharya, I'm going to show you 12· ·what's marked as Defendant's Exhibit 8.· And 13· ·obviously you've only got the full screen, but does 14· ·this say "current CV"? 15· · · · A.· ·It's the most -- June 2020, yeah, I think 16· ·that's the last time I updated it. 17· · · · Q.· ·Okay.· And does it accurately reflect your 18· ·curriculum vitae, through that time, at least? 19· · · · A.· ·Yes. 20· · · · Q.· ·Okay.· You can take it down. 21· · · · · · ·Tell us about your educational background, 22· ·Doctor. 23· · · · A.· ·Sure. 24· · · · · · ·So I did my undergraduate degree at 25· ·Stanford in economics, as well as premedical in -- I
0630 Page 497 ·1· ·think it was '86 to 1990.· Then in 1990, I started ·2· ·medical school also at Stanford University. ·3· · · · · · ·And in 1991, I started a PhD in economics ·4· ·at Stanford, completed -- ·5· · · · Q.· ·Were you doing your PhD and medical school ·6· ·at the same time? ·7· · · · A.· ·I was, yes. ·8· · · · Q.· ·Okay.· Did you graduate from medical ·9· ·school at Stanford, sir? 10· · · · A.· ·I did, in 1997. 11· · · · Q.· ·And did you get your PhD from Stanford as 12· ·well? 13· · · · A.· ·I did.· In 2000.· Though, I left for -- to 14· ·work at RAND, which is a think tank in Santa Monica, 15· ·in 1998. 16· · · · Q.· ·What was your PhD in? 17· · · · A.· ·It was in economics. 18· · · · Q.· ·And you mentioned you worked at RAND in a 19· ·think tank; can you tell us what that was? 20· · · · A.· ·Sure. 21· · · · · · ·So I was employed as an economist at RAND 22· ·corporation, studying health policy and health 23· ·economics issues.· So there I wrote some articles on 24· ·HIV, a range of other topics. 25· · · · Q.· ·Okay.· Have you ever had any other
0631 Page 498 ·1· ·involvement with the Hoover Institution? ·2· · · · A.· ·I was -- for about six months, I think I ·3· ·was a -- when I was a junior faculty member, I was a ·4· ·national fellow.· Or a research fellow.· I don't ·5· ·remember the exact title. ·6· · · · Q.· ·Okay.· And did you have any -- have you ·7· ·had any employment at the -- or association, rather, ·8· ·with the National Bureau of Economic Research? ·9· · · · A.· ·I do.· I -- since -- I'm a research 10· ·associate there, which is sort of the -- what 11· ·happens when you get a full professorship, and they 12· ·appoint you to that. 13· · · · Q.· ·And what is the National Bureau of 14· ·Economic Research? 15· · · · A.· ·It's a collection of economists from 16· ·around the country that meet together or talk about 17· ·economic topics, publish articles and working 18· ·papers.· It's a selective organization, so you have 19· ·to be invited to be -- to participate. 20· · · · Q.· ·Okay.· What is the Stanford Institute for 21· ·Economic Policy Research? 22· · · · A.· ·Stanford Institute for Economic Policy 23· ·Research is an institute here at Stanford. 24· · · · · · ·It's -- it focused on, as the title says, 25· ·economic policy on a range of topics.· It includes
0632 Page 499 ·1· ·folks who do health economics.· In fact, it's run by ·2· ·a health economist, so -- and it also, just like the ·3· ·National Bureau of Economic Research, is focused on ·4· ·serving as a clearinghouse and a -- just, you know, ·5· ·place for discussion of economic policy topics. ·6· · · · Q.· ·What is health economics? ·7· · · · A.· ·So health economics is the study of the -- ·8· ·of the health care system. ·9· · · · · · ·It encompasses a wide range of topics, 10· ·including things like the effects of education on 11· ·health, the -- the policy for infectious -- you 12· ·know, sort of public health policy toward infectious 13· ·disease.· It encompasses obviously financing of 14· ·health care, the evaluation of the quality of 15· ·medical services. 16· · · · · · ·A whole range of topics related to health 17· ·and health care provision. 18· · · · Q.· ·Have you published scholarly journals in 19· ·the medical research field? 20· · · · A.· ·I have.· I think I -- I don't remember the 21· ·number, exactly.· Somewhere over 100 -- 135 papers 22· ·and peer-reviewed journals. 23· · · · Q.· ·Do you have a primary area of research, 24· ·Doctor? 25· · · · A.· ·I mean, I'm a health economist, so that's
0633 Page 500 ·1· ·my primary area.· But as I said, it encompasses a ·2· ·very wide set of topics. ·3· · · · · · ·So I -- ·4· · · · Q.· ·Did you -- I'm sorry.· Please go ahead. ·5· · · · A.· ·Yeah, so I've ended up publishing in ·6· ·medical journals, in epidemiology journals, in ·7· ·health policy journals, and health economics ·8· ·journals, statistics journals.· Just a whole range ·9· ·of disciplines that touch on health economics. 10· · · · Q.· ·Does your research include economic 11· ·epidemiology? 12· · · · A.· ·It does. 13· · · · Q.· ·Could you just explain for all of us here 14· ·who aren't economic epidemiologists what that means? 15· · · · A.· ·Sure. 16· · · · · · ·So it's obviously related to epidemiology. 17· ·The main unique twist on -- on epidemiology is that 18· ·economic epidemiologists analyze how risk of a 19· ·disease in a population induces changes in behavior 20· ·toward that risk. 21· · · · · · ·So when disease prevalence is higher, for 22· ·instance, people are more likely to wear masks. 23· ·That sounds like a very simple idea, but it turns 24· ·out that when you incorporate it into the models, it 25· ·changes the results of the epidemiologic models in
0634 Page 501 ·1· ·fundamental ways. ·2· · · · Q.· ·I'm sorry, what is epidemiology?· Can you ·3· ·just break that down for us? ·4· · · · A.· ·Sure. ·5· · · · · · ·Epidemiology is the study of disease, ·6· ·of -- of disease.· And the -- how common disease is, ·7· ·what -- what its consequences are. ·8· · · · · · ·It's focused a lot on statistics of ·9· ·diseases, how many people are getting the -- having 10· ·the -- have the disease, how many people have -- you 11· ·know, have negative side effects from drugs, for 12· ·instance, would enter some epidemiological work. 13· · · · · · ·So it's -- again, it's a broad-ranging 14· ·topic related to the -- to the prevalence of 15· ·disease. 16· · · · Q.· ·Okay.· What are your duties as director of 17· ·the Stanford Center for Demography and Economics of 18· ·Health and Aging? 19· · · · A.· ·So that -- that -- what I do mainly is I 20· ·try to convene research on topics related to 21· ·population aging, and the economics and health 22· ·consequences of population aging. 23· · · · · · ·So that involves, you know, looking 24· ·through proposals for funding.· It's an NIH-funded 25· ·center, or -- and so you look through proposals for
0635 Page 502 ·1· ·funding to see what are the best proposals, best ·2· ·ideas.· I convene and find junior researchers and ·3· ·other researchers who are interested in the area and ·4· ·try to generate interest in the topic, and then ·5· ·generate discussions among researchers on these ·6· ·topics. ·7· · · · Q.· ·Okay.· Does the center deal at all with ·8· ·vulnerable populations and research with respect to ·9· ·that? 10· · · · A.· ·It's centrally important to what we do. 11· · · · · · ·The topics include things like health 12· ·disparities, understanding how low income 13· ·populations cope with aging, and with -- with health 14· ·challenges.· Vulnerable populations are -- for me 15· ·personally has been a central focus of my research. 16· · · · Q.· ·Have you researched and published on the 17· ·medicine of infectious diseases? 18· · · · A.· ·I have. 19· · · · · · ·In fact, my very first paper was on -- one 20· ·of my very first papers was on HIV health policy 21· ·with respect to HIV, and I've also published on the 22· ·H1N1 flu, the H5N1 flu, antibiotic resistance, a 23· ·whole range of other sort of infectious disease 24· ·topics. 25· · · · Q.· ·When you say H1N1 flu and H5N1, remind us
0636 Page 503 ·1· ·what that was, or is. ·2· · · · A.· ·So H1N1 flu was the swine flu epidemic of ·3· ·2009, I think it was, about ten-some years ago.· So ·4· ·the flu, as everyone know -- you all know, I'm sure, ·5· ·has -- changes over time of what variant of it is ·6· ·most prominent. ·7· · · · · · ·And so they -- so there's a nomenclature ·8· ·for that.· I don't remember exactly the year for ·9· ·H5N1, but it's -- that's the year where that -- that 10· ·particular variant, I think, was very, very common. 11· · · · Q.· ·Did you have any involvement or research 12· ·dealing with things such as the SARS virus prior to 13· ·this advent of COVID-19 in this past year? 14· · · · A.· ·I didn't write about SARS.· I think that 15· ·was 2003, at the time; although, I did follow the 16· ·literature on SARS.· I have published on H1N1. 17· · · · Q.· ·And how does H1N1 relate, if at all, to 18· ·COVID?· All we hear about anymore is COVID, 19· ·COVID-19, COVID, et cetera. 20· · · · · · ·Help us understand how having done 21· ·research and work on H1N1 would help you in terms of 22· ·dealing with issues around COVID. 23· · · · A.· ·Of course. 24· · · · · · ·So epidemiology and forecasting how 25· ·disease spreads uses a set of models.· That -- the
0637 Page 504 ·1· ·kinds of models that have been used to forecast the ·2· ·spread of COVID-19 are related very closely to the ·3· ·set of models that were used to forecast the spread ·4· ·of H1N1. ·5· · · · · · ·In fact, they're used all the time in ·6· ·infectious disease modeling.· And these models, they ·7· ·inform public health in responses.· They inform ·8· ·government responses and other -- other, you know, ·9· ·expectation setting about how widespread the disease 10· ·is going to be.· What effect policies might have on 11· ·slowing the spread of the disease.· What -- you 12· ·know, sort of what the -- what the harm from the 13· ·disease is likely to be. 14· · · · · · ·But these models are used all the time, 15· ·and including in the H1N1 and COVID cases. 16· · · · Q.· ·Help us understand how the research that 17· ·you do, and others like you do, plays into the role 18· ·of policy makers in dealing with health issues such 19· ·as COVID. 20· · · · A.· ·This is one of those questions where you 21· ·just have to look around at this point. 22· · · · · · ·Every day, you see forecasts of where 23· ·COVID is likely to go.· Those are the result of some 24· ·model, someone's model somewhere.· Of the type of I 25· ·just -- I've been describing.
0638 Page 505 ·1· · · · · · ·And those numbers set expectations about ·2· ·what you're likely to see in the future with COVID, ·3· ·with basically, you know, a lot of infectious ·4· ·diseases.· The -- you can use the models to set ·5· ·expectations about what would happen if I, you know, ·6· ·shut down -- shut down the economy, how would it ·7· ·slow the spread? ·8· · · · · · ·People have used those kinds of models to ·9· ·inform those decisions, and I think government 10· ·policy makers have been looking at those models.· In 11· ·fact, I know they have, to decide -- make many, 12· ·many, many, decisions, in COVID and in other 13· ·settings. 14· · · · Q.· ·Okay.· Have you written any textbooks? 15· · · · A.· ·I have.· I've written a textbook on -- 16· ·it's entitled "Health Economics." 17· · · · Q.· ·Is it used by anybody? 18· · · · A.· ·I think so. 19· · · · · · ·As far as I know, it's one of the leading 20· ·textbooks in the world on health economics.· Used 21· ·all over the world.· I keep getting requests for 22· ·updates, which was supposed to happen before COVID 23· ·hit, but it slowed that down a little. 24· · · · Q.· ·Does the textbook in any way deal with the 25· ·literature on disease modeling and compartment
0639 Page 506 ·1· ·modeling? ·2· · · · A.· ·It does. ·3· · · · · · ·I have a chapter on epidemiology and ·4· ·economic epidemiology, where I go through, you ·5· ·know -- this is for students, so a simple version of ·6· ·the compartment models that are used in these ·7· ·settings and develop the students' intuition around ·8· ·that. ·9· · · · Q.· ·Have you done any research in the area of 10· ·COVID-19? 11· · · · A.· ·I have.· At this point, I think I 12· ·published two peer-reviewed journal pieces, and I 13· ·have four others sitting in peer review -- you know, 14· ·being reviewed by other scientists. 15· · · · Q.· ·How much of your time is spent in dealing 16· ·with the research of COVID-19? 17· · · · A.· ·Since March 9th, a hundred percent.· I -- 18· ·not -- I've been at work basically every single day 19· ·since March 9th, with the exception of a few days. 20· ·My wife forced me to go on vacation for -- it was, 21· ·like -- it was a rough go. 22· · · · Q.· ·Why March 9?· What's the witching hour 23· ·about that? 24· · · · A.· ·That was the day that the -- the 25· ·announcement that the Santa Clara County was going
0640 Page 507 ·1· ·to close down, the lockdown started ordering, I ·2· ·think, if I remember right.· And that was the day I ·3· ·realized I really needed to start working on this ·4· ·full-time.· Although, I had been thinking about it ·5· ·before that. ·6· · · · Q.· ·Which county did you say that was? ·7· · · · A.· ·Santa Clara County, California.· It's ·8· ·where I live. ·9· · · · Q.· ·Okay.· Now, had any of the work that you 10· ·had done -- research you had done before on other 11· ·diseases give you any, what you thought, insight 12· ·into what was going on in Santa Clara, California, 13· ·back in March of this year? 14· · · · A.· ·Yeah. 15· · · · · · ·So in the H1N1 -- during the H1N1 flu 16· ·epidemic, I had been very closely following the 17· ·literature on -- on the mortality rate of H1N1. 18· · · · · · ·If you all remember, when the initial 19· ·reports came out about H1N1, there was a huge amount 20· ·of panic, and rightfully so, because the initial 21· ·report suggested that the H1N1, about somewhere 22· ·between 1 to 3 percent of people -- in fact, in 23· ·Argentina, there was reports that said 10 percent of 24· ·people who get the disease would die from it. 25· · · · Q.· ·Why is that significant?· What is it that
0641 Page 508 ·1· ·causes panic, as you said, to say that that ·2· ·percentage of people would get the disease will die ·3· ·from it, sir? ·4· · · · A.· ·I mean, that's an enormously high ·5· ·percentage.· It means tens of millions of people, ·6· ·tens of millions of deaths worldwide, is what the ·7· ·projection models were suggesting.· And it's a cause ·8· ·for, you know, a lot of -- a policy aim to trying to ·9· ·slow the spread, do all kinds of mitigation 10· ·measures. 11· · · · · · ·Kind of like what we've seen here in 12· ·COVID. 13· · · · Q.· ·So if I understand what you're saying, if 14· ·you think that H1N1 is going to be this disease with 15· ·a high rate of fatality, you would react to it in a 16· ·rather drastic and dramatic way? 17· · · · A.· ·That's correct. 18· · · · Q.· ·And did your research look at, you know, 19· ·those issues, as to the mortality rate of H1N1? 20· · · · A.· ·So that -- in H1N1, it wasn't my research. 21· ·It was research of others that I tracked very 22· ·carefully. 23· · · · · · ·It's -- my research focused on some other 24· ·issues related to the health policy around H1N1, but 25· ·I did track very carefully the research on the
0642 Page 509 ·1· ·mortality rate, because it impinged on my research. ·2· · · · Q.· ·Let's break it down in pieces. I ·3· ·appreciate where you're going, but if I can break it ·4· ·down, it's going to be easier to follow for ·5· ·everyone. ·6· · · · · · ·So the research that you are following on, ·7· ·H1N1 and mortality rates, what was it teaching you? ·8· · · · A.· ·So in the early days, as I said, there ·9· ·were reports that the fatality rate was somewhere in 10· ·the order of 1 to 3 percent.· Those studies were 11· ·based on case reports, and on PCR testing of H1N1. 12· · · · · · ·PCR testing is the kind of testing that's 13· ·done to check if you actively have the virus in you 14· ·at the time. 15· · · · Q.· ·Let's stop you right there. 16· · · · · · ·PCR testing have anything to do with the 17· ·kind of testing that we're hearing about day in and 18· ·day out with the coronavirus? 19· · · · A.· ·Yes. 20· · · · · · ·So the case reports that you see for 21· ·coronavirus, like the most common ones that you see 22· ·put on the newspapers all the time, is PCR testing. 23· ·So PCR testing checks for the presence of the virus 24· ·actively in you.· So if you've cleared the virus 25· ·after you've, you know, gotten better, you will no
0643 Page 510 ·1· ·longer have the virus in you, and the PCR tests will ·2· ·be negative. ·3· · · · Q.· ·Okay.· And so what was the PCR testing ·4· ·issues around H1N1 that you were learning about? ·5· · · · A.· ·Well, the main issue is who gets selected ·6· ·for testing.· It's not a random sample of people. ·7· · · · Q.· ·Stop right there. ·8· · · · · · ·What do you mean by who gets selected for ·9· ·testing? 10· · · · A.· ·Well, ideally, if you want to know how 11· ·many people in a population have a disease or have 12· ·had a disease, you -- you could take a census of the 13· ·population, get their -- get their samples from 14· ·everybody and then check.· But that's just 15· ·infeasible.· You can't, in one day, test the entire 16· ·population of the United States, much less the 17· ·earth. 18· · · · · · ·So instead, what happens is, you look at 19· ·other datasets.· You say, okay, well, today, in 20· ·Santa Clara public health, they tested 500 people. 21· ·In Broward County, they tested 400 people.· And of 22· ·those tests, 300 -- 30 were positive.· You know, so 23· ·.75 percent -- 7.5 percent or whatever. 24· · · · · · ·So that -- you don't look at the 25· ·population, because it's not feasible.· Instead, you
0644 Page 511 ·1· ·look at the set of people who get picked for ·2· ·testing. ·3· · · · Q.· ·Okay.· And what's the problem with the ·4· ·concept that these tests are only being used on a ·5· ·select group of people? ·6· · · · A.· ·Well, and completely reasonably, you would ·7· ·expect people who doctors and others suspect to have ·8· ·the disease to be picked for testing.· You want to ·9· ·reserve these tests, especially when they're in 10· ·relatively limited supply, to the people -- where it 11· ·would make some clinical difference.· And so that's 12· ·what -- that's what tends to happen. 13· · · · · · ·The testing has been -- in the H1N1 14· ·setting, and I think also earlier -- especially in 15· ·the -- even now in the COVID setting, is done on 16· ·patients that are more likely to have the disease. 17· · · · Q.· ·And why does -- what does that -- let me 18· ·strike that, back up a little bit. 19· · · · · · ·What does the fact that you're testing 20· ·people that you think are likely to have a disease 21· ·do in the concept of how fatal a disease might be, 22· ·or the percentage of fatality? 23· · · · A.· ·Right. 24· · · · · · ·So if you test people selectively for -- 25· ·with symptoms, you're selecting people with a more
0645 Page 512 ·1· ·severe form of the disease.· Especially for diseases ·2· ·that have a range of symptoms ranging from very, ·3· ·very mild or no symptoms to deadly viral pneumonia ·4· ·like we see with COVID. ·5· · · · · · ·You tend to pick people who are more ·6· ·severely ill, and as a result, you end up with a ·7· ·higher death rate among the people who test positive ·8· ·than you would if you had selected the entire ·9· ·population at large randomly. 10· · · · Q.· ·And why would that concern you as a 11· ·medical professional epidemiologist if the death 12· ·rate is being overstated by using a select group? 13· · · · A.· ·Well, if you -- if you think about what 14· ·the right policy response is, you would do a very, 15· ·very different policy response if the death rate is 16· ·somewhere around the order of -- the case fatality 17· ·rate is somewhere around the order of 3 percent 18· ·or -- 3 percent, that warrants a very, very severe 19· ·response from a policy point of view. 20· · · · · · ·And also from a personal point of view. I 21· ·mean, you'll take precautions much more effectively 22· ·than -- much more with, you know, alacrity if you 23· ·are facing a disease that has such as a high death 24· ·rate.· On the other hand, if the death rate's 25· ·one-in-ten-thousand, or one -- as it turned out to
0646 Page 513 ·1· ·be, actually, in H1N1, then you'll act very, very ·2· ·differently. ·3· · · · · · ·You know, I'm going to take many more ·4· ·risks if I just have to face a one-in-ten-thousand ·5· ·risk.· I won't stop myself from going out in public ·6· ·for one-in-ten-thousand risk of dying, but I might ·7· ·in three-in-a-hundred risk of dying. ·8· · · · · · ·So very, very different orders of ·9· ·magnitude. 10· · · · Q.· ·Well, let me stop you there. 11· · · · · · ·When you're talking about making these 12· ·decisions, whether it's opening businesses or 13· ·closing businesses, or whether I wear a mask, you're 14· ·talking about risk-based analysis? 15· · · · A.· ·Yes. 16· · · · Q.· ·So if you think that the risk of death is 17· ·much higher, you take much more draconian steps? 18· · · · A.· ·Yeah. 19· · · · Q.· ·Okay.· All right.· So as COVID unwound in 20· ·March in Santa Clara, did your prior research and 21· ·review in the area of H1N1 lead you to come up with 22· ·any type of a hypothesis about what might be 23· ·happening there? 24· · · · A.· ·It did.· So let me circle back to the 25· ·story about H1N1.· The early reports were based --
0647 Page 514 ·1· ·on mortality were based on these PCR-based tests, ·2· ·where they looked to see if the virus is active in ·3· ·you. ·4· · · · · · ·Another kind of test is an antibody test. ·5· ·An antibody test is different than the PCR test ·6· ·because it doesn't just check whether the virus is ·7· ·active, but it checks to see if you have antibodies ·8· ·that persist after you have the disease in the first ·9· ·place.· Even after you've cleared the virus, very 10· ·often, antibodies last, and it's turning out to be 11· ·certainly true for H1N1 and also for COVID. 12· · · · · · ·If you measure the prevalence of 13· ·antibodies in the population using closer to a 14· ·random sample, then you have a better idea of how 15· ·many people actually got the disease.· That's what 16· ·happened in H1N1. 17· · · · · · ·The whole series of antibody studies -- 18· ·they're called seroprevalence studies -- 19· ·seroprevalence studies were conducted.· And what 20· ·they found -- what the researchers found was that 21· ·the disease was way more widespread than people had 22· ·realized based on just the case reports in H1N1. 23· · · · Q.· ·So let me stop you right there. 24· · · · · · ·So "seroprevalence" is S-E-R-O prevalence? 25· · · · A.· ·S-E-R-O prevalence.
0648 Page 515 ·1· · · · Q.· ·And what -- sero is blood? ·2· · · · A.· ·Sero is blood. ·3· · · · Q.· ·So it's the prevalence in the blood in ·4· ·this disease? ·5· · · · A.· ·Of antibodies, yeah.· Evidence of this ·6· ·disease. ·7· · · · Q.· ·Okay.· So why would it be -- if you're ·8· ·dealing with H1N1, why would it be good news to find ·9· ·out that there's much more community spread of that 10· ·disease when you're trying to understand what to do 11· ·from a policy basis? 12· · · · A.· ·Well, it's a question of what the death 13· ·rate is, right? 14· · · · · · ·So the number of deaths are -- we know 15· ·what they are.· And you divide by some number.· The 16· ·number is how many people you think got the disease. 17· ·If you look at case reports, you divide by small 18· ·number and you say, oh, the death rate is huge. 19· · · · · · ·But that's very misleading because the 20· ·number of cases identified by PCR is a small subset, 21· ·it turns out, in the case of H1N1, of the number of 22· ·people who actually have the disease.· So you divide 23· ·the number of deaths by a very large number. 24· · · · · · ·It turns out the death rate in H1N1 was on 25· ·the order of one-in-ten-thousand.· Not 1 percent.
0649 Page 516 ·1· ·Not one-in-a-hundred. ·2· · · · · · ·That -- that fact came out almost a year ·3· ·after the H1N1 -- H1N1 -- sort of the early ·4· ·mortality rates on H1N1 came out.· So it was -- it ·5· ·was -- the science got very, very sharply revised a ·6· ·year after -- roughly a year afterwards. ·7· · · · Q.· ·And what's the impact of that sharp ·8· ·revision of the science?· What is it that teaches ·9· ·epidemiologists such as yourself? 10· · · · A.· ·Well, for me, what I learned from that is 11· ·that -- is the performance of doing seroprevalence 12· ·studies, if we really want to really, truly 13· ·understand, or at least start to understand, how 14· ·deadly a disease actually is, how deadly an 15· ·infectious disease actually is. 16· · · · Q.· ·So did that knowledge of what happened 17· ·with H1N1 cause you to frame some hypothesis about 18· ·what might be happening with COVID in California? 19· · · · A.· ·It did. 20· · · · · · ·So that -- the early hypothesis I had was 21· ·that maybe the same thing that -- the same process 22· ·of first starting with case reports and PCR, and 23· ·then moving to seroprevalence would also lead to a 24· ·revision in the mortality rate estimates for COVID. 25· · · · · · ·That was the -- that was the hypothesis
0650 Page 517 ·1· ·that I had. ·2· · · · Q.· ·So correct me if I'm wrong.· Your ·3· ·hypothesis was there was a possibility that based on ·4· ·the way testing was done, that it was skewing the ·5· ·mortality rate? ·6· · · · A.· ·That's correct. ·7· · · · Q.· ·And your thought was to test that and see ·8· ·if it were true? ·9· · · · A.· ·Yes.· So at first -- 10· · · · Q.· ·Let me stop you right there and ask a 11· ·question.· You know, I -- my last science course was 12· ·so long ago I can't remember, but scientific methods 13· ·and hypothesis, and then you test it? 14· · · · A.· ·That's -- that's how science works, right? 15· · · · · · ·You have to have some idea, some -- that 16· ·you're looking at, and you have to be open that your 17· ·idea might be wrong, and you have to devise tests 18· ·that check to see if your idea is wrong.· I mean, 19· ·I've had many ideas that turned out to be wrong. 20· ·It's just -- it's just normal. 21· · · · · · ·If you don't do -- if you don't have ideas 22· ·that you test that turn out to be wrong, you're not 23· ·being honest with yourself. 24· · · · Q.· ·Okay.· As the coronavirus unwound -- that 25· ·may not be the right word -- but as it started
0651 Page 518 ·1· ·rolling there in Santa Clara, California, did you ·2· ·share that hypothesis, your thought that that might ·3· ·be the problem? ·4· · · · A.· ·I did. ·5· · · · · · ·So first with my -- some of my colleagues ·6· ·and former students, and then we -- we started ·7· ·looking at the data.· There were no prevalence ·8· ·studies of the sort that I really wanted done, but ·9· ·there were some indications in other data that maybe 10· ·the hypothesis is true. 11· · · · · · ·So we looked at the data from this 12· ·"Diamond Princess" cruise where so many people got 13· ·COVID.· We looked at a few other data sources and 14· ·thought, okay, you know, there's enough information 15· ·to suggest it's worth looking into this hypothesis 16· ·more. 17· · · · Q.· ·Okay.· Was that hypothesis of yours shared 18· ·publicly in the form of any opinion editorials, 19· ·things like that? 20· · · · A.· ·Yeah, I wrote a "Wall Street Journal" 21· ·editorial sharing this hypothesis, and calling for 22· ·more study to evaluate whether the hypothesis was 23· ·true. 24· · · · Q.· ·What study were you calling for?· What 25· ·were you asking, you know, other researchers in the
0652 Page 519 ·1· ·field to help you look at? ·2· · · · A.· ·Really, seroprevalence.· That's the main ·3· ·thing I wanted.· And population-level testing. ·4· ·Population random testing, not just selective ·5· ·testing in case reports. ·6· · · · Q.· ·Okay.· And have you published papers on ·7· ·seroprevalence of COVID-19? ·8· · · · A.· ·I have. ·9· · · · · · ·So I have a published paper in the 10· ·"Journal of the American Medical Association" on 11· ·seroprevalence of COVID-19 in Los Angeles County, 12· ·and I have a couple of other papers, one in 13· ·Santa Clara, and one for Major League Baseball, 14· ·where we have seroprevalence studies that are in 15· ·peer review right now. 16· · · · Q.· ·Okay.· Now, when you say peer-review, help 17· ·everybody understand:· What's that mean for an 18· ·article to be peer-reviewed? 19· · · · A.· ·So when you publish an article in a 20· ·scientific journal, you don't just get to publish it 21· ·because the editor says so. 22· · · · · · ·What happens is, they sent it out to 23· ·your-- to other scientists who read the paper, ask 24· ·you questions, make you -- force you to make 25· ·changes, essentially, where they find errors.· They
0653 Page 520 ·1· ·make you correct them.· And then after all of -- ·2· ·after several, you know, revisions are done, the ·3· ·editor then makes a decision whether to publish or ·4· ·no to publish. ·5· · · · · · ·It's a pretty rigorous process, generally. ·6· ·It's not perfect, of course, but it -- it sort of ·7· ·holds scientists honest. ·8· · · · Q.· ·What is a preprint paper? ·9· · · · A.· ·A preprint paper is not a peer-reviewed 10· ·paper.· It's a paper where, essentially, you say, 11· ·here is my preliminary results. 12· · · · · · ·And then you ask the scientific community 13· ·to look at it and say, well, what do you think, 14· ·where have we made mistakes, how can we correct it? 15· · · · · · ·Preprints are usually done before 16· ·publication in order to help improve the quality of 17· ·the public -- the paper, so when you submit it for 18· ·peer review it's in much stronger shape. 19· · · · Q.· ·Okay.· So if I understand it, you let it 20· ·out there, other people can take their best shots at 21· ·it and make suggestions or changes, and that 22· ·ultimately finds its way into the article that's 23· ·peer reviewed? 24· · · · A.· ·Right. 25· · · · · · ·And then once you -- you're satisfied that
0654 Page 521 ·1· ·you've -- you know, you've heard the criticisms and ·2· ·addressed them, you send it to a journal.· Has a ·3· ·much better chance of the journal accepting it. ·4· · · · Q.· ·Okay.· And with respect to your -- did you ·5· ·do a COVID research article on Santa Clara? ·6· · · · A.· ·I did. ·7· · · · · · ·I had a peer-reviewed -- I'm sorry, ·8· ·preprint article that we put out on a -- in a ·9· ·preprint server with -- on Santa Clara.· And then, 10· ·yeah, we have two versions of that, I think, up. 11· · · · · · ·Second version responding to the 12· ·criticisms we heard in the first. 13· · · · Q.· ·Okay.· And what criticisms were there that 14· ·you got for your first paper that went out? 15· · · · A.· ·The main ones were statistical. 16· · · · · · ·So in -- I felt a lot of obligation to get 17· ·this information -- normally, I don't go through 18· ·preprint process.· Normally, I just send it to a 19· ·journal which, you know, takes place behind a, you 20· ·know, editorial shield.· But I felt a very strong 21· ·obligation to get information that we were learning 22· ·about in Santa Clara out to the -- out to the 23· ·scientific communities, get this debate started. 24· · · · · · ·The scientific community, some folks found 25· ·some statistical issues with the first version of
0655 Page 522 ·1· ·the preprint which we corrected in the second ·2· ·version. ·3· · · · Q.· ·Okay.· Did you do an article -- did you ·4· ·move on to a larger study in L.A. County? ·5· · · · A.· ·Yeah, we did. ·6· · · · · · ·So we -- it was -- we actually organized ·7· ·both roughly simultaneously, although L.A. County ·8· ·happened, I think, a week after the Santa Clara ·9· ·study.· We used a very similar testing methodology 10· ·with a -- with a -- but -- and we found something -- 11· ·a result that was very similar in both Santa Clara 12· ·and L.A. County. 13· · · · Q.· ·The L.A. County report, was that 14· ·peer-reviewed? 15· · · · A.· ·Yes. 16· · · · Q.· ·Okay.· And that's the one that was 17· ·published in the "Journal of American Medical 18· ·Association"? 19· · · · A.· ·Yes. 20· · · · Q.· ·What did you find -- let me back up a 21· ·minute. 22· · · · · · ·You mentioned putting your article out 23· ·there on this preprint server.· Has that gone on 24· ·with a lot of the researchers under COVID in real 25· ·time to try to share their research?
0656 Page 523 ·1· · · · A.· ·Yeah, it's extraordinary.· I think there's ·2· ·something on the order of 50,000 articles that have ·3· ·been published on COVID.· And the preprints, there's ·4· ·even many, many more of those. ·5· · · · Q.· ·Yeah. ·6· · · · A.· ·I don't know.· I mean, it's very difficult ·7· ·to keep track of every single article. ·8· · · · Q.· ·Yesterday, one of the doctors testified ·9· ·that there was really not much out there written on 10· ·coronavirus; would you agree with that? 11· · · · A.· ·That's an astonishingly wrong statement. 12· · · · · · ·I have never in my lifetime seen such 13· ·sustained, focused work by scientists around the 14· ·world on one topic before.· The research output has 15· ·been absolutely amazing.· In just -- in just six 16· ·months, 50,000 articles published is incredible. 17· · · · Q.· ·Okay.· What did you find when you -- what 18· ·was the conclusion of your peer-reviewed research in 19· ·the "Journal of American Medical Association"? 20· · · · A.· ·So the main conclusion was that there was 21· ·somewhere in the order of 40 times more cases of 22· ·people with evidence of having had COVID in 23· ·Los Angeles County than you would glean from the 24· ·case reports alone. 25· · · · · · ·That the prevalence, while not high, was
0657 Page 524 ·1· ·about -- I think it was on the order of -- I don't ·2· ·remember the exact number.· I think it was, like, 3 ·3· ·or 4 percent.· 3 or 4 percent of the population had ·4· ·had it.· That was still many, many, many times more ·5· ·than the number of people who were being identified ·6· ·as cases. ·7· · · · · · ·The disease was more widespread than we ·8· ·had realized in Los Angeles County. ·9· · · · Q.· ·Okay.· My immediate reaction to that is 10· ·that sounds like terrible news to hear that, that 11· ·the disease is more widespread. 12· · · · · · ·Is that how the scientific community 13· ·reacted to that? 14· · · · A.· ·I mean, it's -- it's bad news in some 15· ·sense. 16· · · · · · ·It's -- you know, it's better not to have 17· ·a disease than not -- than to have it, right?· And 18· ·having more people have it, in some sense, is bad 19· ·news.· But it's also good news in another sense. 20· · · · · · ·Most of the people that had it, so let's 21· ·say half of the people that had it, had no symptoms 22· ·at all, or very, very few symptoms.· It was more 23· ·like a cold than the deadly viral pneumonia that 24· ·we've seen in the cases. 25· · · · · · ·So in that sense, it's good news, that
0658 Page 525 ·1· ·there's a range of clinical presentations for this ·2· ·disease, ranging from the horrible viral pneumonia ·3· ·that kills you that we see in hospitals to very -- ·4· ·basically asymptomatic, you didn't even know you had ·5· ·it at all, but yet you have blood evidence that you ·6· ·had it because you have antibodies to it. ·7· · · · Q.· ·Okay.· And what -- well, let me back up a ·8· ·minute. ·9· · · · · · ·Have you provided guidance to any types of 10· ·businesses on what to do with the coronavirus, how 11· ·to prepare for it, how to deal with it? 12· · · · A.· ·Not so much businesses, but I've talked 13· ·with -- with Major League -- with -- for baseball, 14· ·I've helped with, you know, sort of -- like, I 15· ·had -- I was on a Senate briefing with -- with some 16· ·very famous baseball players and softball players on 17· ·how to reopen softball. 18· · · · · · ·I provided some information to churches 19· ·and to -- and then also some private schools have 20· ·reached out to me on the safety of reopening their 21· ·operations. 22· · · · Q.· ·Okay.· Have you testified before any 23· ·senate people folks? 24· · · · A.· ·Yeah, so there was -- I had mentioned the 25· ·one in the senate.· There was -- Pat Toomey, I
0659 Page 526 ·1· ·think, organized this briefing on reopening ·2· ·softball. ·3· · · · · · ·I've testified to the Arizona legislature ·4· ·on sort of broad -- broader lockdown policies and on ·5· ·the safety of potentially reopening, and what might ·6· ·be needed for that. ·7· · · · · · ·And then I've also testified on vaccine ·8· ·safety to the -- to a House panel.· That -- you ·9· ·know, the House of Representatives panel. 10· · · · Q.· ·Okay.· Well, in talking about how this 11· ·research helps to inform policy, in your testimony 12· ·to the Arizona House of Representatives Health and 13· ·Human Services Committee, was there any discussion 14· ·of the impact of lockdown, risk-based analysis of 15· ·lockdown, in Arizona? 16· · · · A.· ·There was. 17· · · · · · ·One of the things -- one of the themes I 18· ·emphasized in that testimony was that lockdowns are 19· ·not riskless or costless.· And it's not just -- 20· ·sometimes people think about lockdowns as, okay, 21· ·it's just money.· We're just losing money.· But it's 22· ·not just losing money. 23· · · · · · ·There are real human costs of a lockdown, 24· ·including people that kill themselves at higher 25· ·rates, that -- the delayed education has health
0660 Page 527 ·1· ·consequences.· There are a whole range of health ·2· ·consequences, including mortality, as -- from ·3· ·policies like lockdown. ·4· · · · · · ·There's no riskless option, is what I ·5· ·emphasized in that testimony. ·6· · · · Q.· ·Do lockdowns cure diseases? ·7· · · · A.· ·No, they don't cure diseases. ·8· · · · · · ·What the models tell you and what ·9· ·empirical practice has told us is that lockdowns 10· ·delay the spread of the disease, but they don't 11· ·eliminate it.· Not -- never in human history has a 12· ·lockdown eliminated or eradicated a disease. 13· · · · Q.· ·You're talking about if we look back over 14· ·history dealing with the Black Plague and all those 15· ·things since then, the quarantines and lockdowns 16· ·didn't cure them? 17· · · · A.· ·No, they didn't eradicate them.· There's 18· ·only one disease that's ever been eradicated off the 19· ·face of the earth, infectious disease, and that's 20· ·Smallpox.· And it wasn't a lockdown that eradicated 21· ·it. 22· · · · Q.· ·Okay.· Let me ask -- there was a second 23· ·peer-reviewed paper that you spoke about; was that 24· ·published in the "Journal of Public Health"? 25· · · · A.· ·Yes.
0661 Page 528 ·1· · · · Q.· ·And what did that deal with? ·2· · · · A.· ·That dealt with knowledge and attitudes of ·3· ·different groups, but -- you know, racial groups on ·4· ·COVID, and there -- the focus was on trying to ·5· ·understand how vulnerable populations -- you know, ·6· ·what makes a population vulnerable, how those ·7· ·knowledge of mitigating behaviors, like handwashing ·8· ·and so on, how commonly that's known, things like ·9· ·that. 10· · · · Q.· ·Okay.· Now, you've been asked by the 11· ·defendants here, the State entities, to provide 12· ·opinions in this case; am I right? 13· · · · A.· ·Yes. 14· · · · Q.· ·Are you being paid anything for that? 15· · · · A.· ·No, I'm doing this pro bono. 16· · · · Q.· ·Okay.· Now, in the course of trying to get 17· ·yourself in a position to aid us and the Court here, 18· ·have you reviewed the Florida Department of Health's 19· ·Emergency Order 06?· We call it E06 here. 20· · · · A.· ·I have. 21· · · · Q.· ·And the complaints filed by the Florida 22· ·Education Association and Ms. Bellefleur? 23· · · · A.· ·I have.· I've reviewed both. 24· · · · Q.· ·Okay.· Are you familiar with the WHO, 25· ·World Health Organization, and U.S. Center for
0662 Page 529 ·1· ·Disease Control guidelines dealing with school ·2· ·reopening? ·3· · · · A.· ·I have.· I've read them carefully. ·4· · · · Q.· ·What else have you looked at and ·5· ·considered to be able to, you know, talk about the ·6· ·risks here of reopening schools? ·7· · · · A.· ·So I've been tracking the literature, and ·8· ·there's a vast literature now on how likely is it ·9· ·that children pass the disease, if they have it, to 10· ·adults relative to adults passing it to each other. 11· · · · · · ·I've also been tracking the literature and 12· ·actually been participating in writing in the 13· ·literature on how deadly the disease actually is for 14· ·different people of different age groups. 15· · · · Q.· ·How does that information, how does what 16· ·that research teaches us, fit into the concept of 17· ·whether it's prudent for schools in the state of 18· ·Florida to be offering options to parents to have 19· ·their children actually in school? 20· · · · A.· ·So let me tell you the main result from 21· ·that -- from that first literature on whether kids 22· ·can spread -- or to the extent to which kids spread 23· ·the disease, because it's counterintuitive and 24· ·incredibly important for school reopening. 25· · · · · · ·That literature has found that kids that
0663 Page 530 ·1· ·are -- have the disease are much, much less ·2· ·likely -- in fact, many of the researchers that look ·3· ·at it say not -- not likely at all, not at all, to ·4· ·pass the disease on to adults. ·5· · · · · · ·So let me reiterate that.· The finding -- ·6· ·the main finding from that literature is that kids ·7· ·do not pass the disease on to adults when they -- at ·8· ·any appreciable rate.· The risk that kids pose to ·9· ·adults is very, very small, even if they're 10· ·positive. 11· · · · Q.· ·And how current are you with respect to 12· ·this research?· Are you two weeks behind, three 13· ·weeks behind, are you -- 14· · · · A.· ·I mean, I didn't have time to look through 15· ·the papers today because I'm here, but I look every 16· ·morning to see on the preprint service and the 17· ·journals to see if there's new articles. 18· · · · Q.· ·Are there any particular studies that you 19· ·have found particularly informative on the issue of 20· ·the ability of -- of the likelihood the children 21· ·will get the disease and the ability of them to pass 22· ·it on to adults? 23· · · · A.· ·Yeah, I think the single best paper that 24· ·I've seen -- and I've read at this point thousands 25· ·plus papers on this -- on COVID in this epidemic is
0664 Page 531 ·1· ·a paper by a group in -- of scientists in Iceland. ·2· · · · · · ·And the paper is published in the ·3· ·"New England Journal of Medicine," which is probably ·4· ·the top medical journal in the world.· And what they ·5· ·did is they randomly sampled 15 percent -- somewhere ·6· ·around the order of 15 percent of the Icelandic ·7· ·population, and random sampling, so it doesn't ·8· ·suffer from the problem of -- ·9· · · · Q.· ·And let me stop you right there.· We'll 10· ·break it down into a couple of pieces. 11· · · · · · ·So 15 percent of the Icelandic population? 12· · · · A.· ·On that order, yes.· And some -- it could 13· ·be 14.· I don't remember exactly on there. 14· · · · Q.· ·And you say random selection.· I realize 15· ·in the world of biostatistics, in your world, that's 16· ·something special; can you help us understand what 17· ·that means? 18· · · · A.· ·Yeah, that's a big deal. 19· · · · · · ·So they're not just looking at people who 20· ·can walk into a test center.· They check -- they 21· ·have a process by which they pick you, like, out of 22· ·a hat, right?· So it's unselected.· It doesn't 23· ·suffer from that selection problem that we discussed 24· ·earlier for case reports and PCR testing. 25· · · · · · ·It --
0665 Page 532 ·1· · · · Q.· ·What does that do to -- what does that do ·2· ·to your view of the validity of a study like that, ·3· ·if they take 15 percent of the country's population ·4· ·selected randomly? ·5· · · · A.· ·I mean, that's an enormous number. ·6· ·15 percent is a big number. ·7· · · · Q.· ·Right.· I got something up here, I'm ·8· ·sorry. ·9· · · · · · ·Let me just go ahead and get you to 10· ·identify.· We've marked it as Exhibit 26. 11· · · · · · ·(Thereupon, marked for identification is 12· · · · Defense Exhibit 26.) 13· · ·BY MR. WELLS 14· · · · Q.· ·Is this the study that you're referring to 15· ·in the "New England Journal of Medicine"? 16· · · · A.· ·Yes, this is the study. 17· · · · Q.· ·The Spread of SARS-COVID-2 in the 18· ·Icelandic Population? 19· · · · A.· ·This is exactly the study. 20· · · · Q.· ·Okay. 21· · · · · · ·MR. WELLS:· You can take that down, 22· · · · Mr. Hill.· Thank you so much. 23· · ·BY MR. WELLS 24· · · · Q.· ·All right.· So you've told us 15 percent 25· ·of the population randomly selected; what did they
0666 Page 533 ·1· ·do with those lucky -- ·2· · · · A.· ·They tested with PCR.· So they're looking ·3· ·for the active virus for all of those people that ·4· ·they selected randomly. ·5· · · · Q.· ·Okay. ·6· · · · A.· ·And then -- ·7· · · · Q.· ·Go ahead. ·8· · · · A.· ·And this is the most remarkable thing ·9· ·about that study. 10· · · · · · ·They took every single positive case where 11· ·they identified the virus, and they sequenced the 12· ·full genome of every single positive case they 13· ·found. 14· · · · Q.· ·All right.· Stop right there, because what 15· ·does that mean that they sequenced somebody's 16· ·genome? 17· · · · A.· ·Well, so -- of the virus, right?· So not 18· ·the human genome, but the virus genome.· That -- 19· ·now, the virus has -- it's an RNA virus, and it has 20· ·a genome, that's how it infects people. 21· · · · · · ·The thing is, like all viruses and like -- 22· ·like any genetic material, there's some mutations 23· ·over time.· They identify something on the order of 24· ·900 mutations.· Most of them are minor mutations. 25· ·They don't change the activity of the virus or the
0667 Page 534 ·1· ·deadliness of the virus. ·2· · · · · · ·In fact, I think all of them identified ·3· ·they couldn't find -- I didn't see in the report ·4· ·anything that said that it changed the activity of ·5· ·the virus.· But the mutations are important, because ·6· ·if I have the virus, and I infect somebody else with ·7· ·it, the person I infect will have a variant of the ·8· ·virus which has the mutations that I had in my ·9· ·virus. 10· · · · Q.· ·Did -- 11· · · · A.· ·So just to be concrete, suppose I am 12· ·infected with a virus and I have mutation A in the 13· ·virus, and then I infect you with the virus and you 14· ·have mutation A and B.· Well, that's certainly 15· ·possible.· Mutation B could have happened after I 16· ·transmitted it to you. 17· · · · · · ·But you couldn't have transmitted it to me 18· ·because I don't have mutation B.· My virus doesn't 19· ·have mutation B.· Through this mutation analysis, 20· ·you can have pretty good evidence of did I pass it 21· ·to you, or did you pass it to me? 22· · · · · · ·And -- 23· · · · Q.· ·Can -- 24· · · · A.· ·You know -- 25· · · · Q.· ·What does that tell you?· You told us what
0668 Page 535 ·1· ·they're doing there with the testing of this genome, ·2· ·and what comes next in this analysis? ·3· · · · A.· ·So then they did a full contact tracing ·4· ·study in the sort we heard yesterday. ·5· · · · · · ·They found out how many -- who have you ·6· ·been in touch with for all of these people, for ·7· ·every single person that was positive.· And based on ·8· ·that, combined with the mutation analysis, they ·9· ·could see who passed the virus to whom.· Most 10· ·contact tracing studies that don't do this genetic 11· ·analysis, this mutation analysis, there's always a 12· ·mystery, right? 13· · · · · · ·So if I was in the same room with you and 14· ·we both get the disease, did you pass it to me, or 15· ·did I pass it to you?· It's very difficult to 16· ·disentangle that.· And statistics are the same, the 17· ·correlation is not causation.· The fact that we're 18· ·in the same room together, that's correlation, 19· ·right? 20· · · · Q.· ·That's in negligence cases, too. 21· ·Causation and correlation are different. 22· · · · A.· ·Yeah, I mean, it's -- I guess we all have 23· ·that saying, it's not just statisticians. 24· · · · · · ·But, so, yes, so I think the unique thing 25· ·about the study is it teased apart the causations by
0669 Page 536 ·1· ·using this genetic analysis to say, look, I passed ·2· ·the virus to you.· You couldn't have passed it to me ·3· ·because you have mutation A and B, and I have ·4· ·mutation A. ·5· · · · Q.· ·Okay.· How does that help us -- or how did ·6· ·anything in this Icelandic population help you in ·7· ·terms of whether children get sick or their ability ·8· ·to pass it on? ·9· · · · A.· ·Best remarkable finding in this study, and 10· ·utterly unrespected, I think, until the time we -- 11· ·it came out, not one instant -- they found not one 12· ·instance of a child passing the disease on to an 13· ·adult in that study.· Not one instance. 14· · · · Q.· ·Why do you -- you say it was unexpected 15· ·and remarkable.· With all your years in looking at 16· ·this, why was it that that came out that way? 17· · · · A.· ·The flu behaves very differently. 18· ·Children pass the flu on to adults when they're 19· ·sick. 20· · · · · · ·I mean, I have three children, and, you 21· ·know, they're older now, but when they were younger, 22· ·I spent a lot of time with colds.· You know, I'm 23· ·sure parents around the world can commiserate with 24· ·me about this.· Children pass on most viruses like 25· ·this to adults and their parents and so on.
0670 Page 537 ·1· · · · · · ·This finding is utterly unexpected because ·2· ·this virus in that sense doesn't behave like our ·3· ·normal expectations for how other viruses behave in ·4· ·terms of children passing it on. ·5· · · · · · ·There's another saying in medicine that ·6· ·children are not just little adults, that there's ·7· ·unique things about their sort of medical health -- ·8· ·how they react to challenges that aren't just like ·9· ·mini versions of adults.· And I think this plays 10· ·that out in a dramatic way.· Children react 11· ·differently, immunologically differently, to this 12· ·virus than adults do. 13· · · · Q.· ·Okay.· How has the scientific community, 14· ·the folks dealing with these COVID issues, reacted 15· ·to what the folks from Iceland put together in the 16· ·"New England Journal of Medicine"? 17· · · · A.· ·Well, first, to get a paper published in 18· ·the "New England Journal" is a great honor.· I mean, 19· ·it's one of the top medical journals in the world. 20· ·So of course that -- you can see that the scientific 21· ·community responded by -- by sort of putting that 22· ·paper in there, that's a big deal. 23· · · · · · ·But even beyond that, on the basis of 24· ·evidence like that, schools around the world have 25· ·reopened.
0671 Page 538 ·1· · · · Q.· ·Okay.· Well, let's stop right there. ·2· · · · · · ·So putting aside or trying to wrap up with ·3· ·the Icelandic research, what you take from it, ·4· ·scientific community is taking from it, is the ·5· ·children not spreading the disease? ·6· · · · A.· ·Well, children can spread the disease to ·7· ·other children. ·8· · · · Q.· ·Okay. ·9· · · · A.· ·That can certainly happen. 10· · · · Q.· ·Oh. 11· · · · A.· ·But children don't spread the disease to 12· ·adults.· That's the main conclusion. 13· · · · · · ·So, for instance, the danger that children 14· ·pose to teachers is much less than you would expect 15· ·if you had the mistaken impression that the kids 16· ·spread the disease to adults at the same rate that 17· ·they spread the flu, for instance. 18· · · · Q.· ·Okay. 19· · · · A.· ·That's an incorrect finding, given what we 20· ·know in the scientific literature now. 21· · · · Q.· ·Let me stop you there. 22· · · · · · ·You, I think earlier when we were talking, 23· ·talked about two things; one, that children don't 24· ·get as sick and that they don't pass it on.· Talk to 25· ·us about why you would suggest to this Court that
0672 Page 539 ·1· ·the scientific data, the research on COVID, ·2· ·indicates that the children do not get as sick as ·3· ·adults do. ·4· · · · A.· ·So that's where the seroprevalence studies ·5· ·come in. ·6· · · · · · ·Like I said, we -- if you want to ·7· ·understand more about -- sort of have a better ·8· ·understanding of how deadly the disease is, you have ·9· ·to know the denominator, how many people actually 10· ·had the disease, not just the case reports that we 11· ·see. 12· · · · · · ·From that evidence, what we found -- and 13· ·others, by the way.· Now it's not just my studies, 14· ·it's -- there's, I think, 50-plus studies been 15· ·preprint and published, and many, many more by 16· ·public health agencies around the world that have 17· ·done seroprevalence studies. 18· · · · · · ·They all find basically the same thing. 19· ·Which is that if you are under the age of 18, the 20· ·rate -- the mortality rate from getting infected is 21· ·lower than the flu.· Somewhere around the order of 22· ·one-to-five in 10,000. 23· · · · Q.· ·Did I just hear you say that the 24· ·scientific research indicates that the mortality 25· ·rate of children who get COVID-19 is less than those
0673 Page 540 ·1· ·that get the flu? ·2· · · · A.· ·That's correct. ·3· · · · Q.· ·And that's been reported where, sir? ·4· · · · A.· ·In published -- published literature. ·5· · · · · · ·There's a preprint article by ·6· ·John Ioannidis, which I've -- I think I shared with ·7· ·you all, that reports on this -- on -- it's a meta ·8· ·analysis.· Meta analysis is a summary of this ·9· ·literature.· And what he -- and that's -- that's 10· ·what he finds. 11· · · · · · ·MR. WELLS:· Hang on just one second and 12· · · · I'll put up Exhibit 28. 13· · · · · · ·(Thereupon, marked for identification is 14· · · · Defense Exhibit 28.) 15· · ·BY MR. WELLS 16· · · · Q.· ·Is this when you're referring to, The 17· ·Infection Fatality Rate of COVID-19 Inferred From 18· ·Seroprevalence Data, by John P. Ioannidis? 19· · · · A.· ·Yes, that's it. 20· · · · Q.· ·Okay.· Thank you. 21· · · · · · ·Who is he? 22· · · · A.· ·So he's a professor of medicine here at 23· ·Stanford University.· He's an infectious disease 24· ·doctor, and probably one of the most highly cited 25· ·scientists in the entire world.
0674 Page 541 ·1· · · · Q.· ·Okay.· And when you say inferred from ·2· ·seroprevalence data, what does that mean? ·3· · · · A.· ·He looked at every single seroprevalence ·4· ·study that has a supporting scientific paper behind ·5· ·it. ·6· · · · · · ·I think he's now found 45, 46, 47 of them, ·7· ·and he's been updating them -- every time he finds a ·8· ·new one, he updates the paper to add it.· And many ·9· ·of those studies, they look at mortality rate, not 10· ·just the overall, but by age. 11· · · · · · ·The striking finding there is that there 12· ·are very, very few -- the mortality rate is very 13· ·dependent on age.· If you're over 70, the mortality 14· ·rate is much higher than the flu.· If you're under 15· ·18, it's lower than the flu. 16· · · · · · ·It's -- the infection fatality rate is not 17· ·a constant.· It depends on your age, your clinical 18· ·circumstances, a whole host of things.· But for 19· ·kids, the risk of mortality from this disease is 20· ·low -- is low, relative to other risks that they 21· ·face. 22· · · · Q.· ·In terms of policy decisions across the 23· ·world, you talked about schools reopening, you know, 24· ·after this information on kids not passing it, and 25· ·kids not getting as sick.
0675 Page 542 ·1· · · · · · ·Tell us about what you've researched and ·2· ·what you know about school openings across the ·3· ·world. ·4· · · · A.· ·Yeah, so there's a whole host of studies ·5· ·that have been done on this, both school openings ·6· ·and school closings. ·7· · · · · · ·The -- I think with the exception of one ·8· ·study, and we can talk about that study in a bit, ·9· ·the literature says that school openings and school 10· ·closings have very little effect on community spread 11· ·of the disease. 12· · · · Q.· ·What does that mean?· When you say that 13· ·the opening doesn't have an impact, the closing 14· ·doesn't impact, flesh that out for us. 15· · · · A.· ·So you want to understand what activities 16· ·lead the disease to spread more than -- so that we 17· ·can understand what activities are safer and what 18· ·activities are less safe, right?· So -- and we make 19· ·decisions on the basis of that, because we have to 20· ·weigh the benefits of those activities. 21· · · · · · ·So, for instance, we have to keep grocery 22· ·stores open or else we won't have food.· We know 23· ·it's risky to go to the grocery store because you're 24· ·in close contact with the community that might have 25· ·the disease.
0676 Page 543 ·1· · · · · · ·The question is:· Empirically, if I close ·2· ·a school, what effect will it have on the spread of ·3· ·the disease in the population?· If I open a school, ·4· ·what effect will it have on disease spread in the ·5· ·population? ·6· · · · Q.· ·So I can have a hypothesis and a null ·7· ·hypothesis on the other side saying my hypothesis is ·8· ·that if I close schools in the state of Florida, ·9· ·that will reduce community spread, and that would be 10· ·a subject of research, and on the other side, if I 11· ·open schools, it will increase community spread. 12· · · · · · ·Is that what you're talking about? 13· · · · A.· ·That's exactly what I'm talking about, 14· ·yeah. 15· · · · Q.· ·And what has the research shown with 16· ·respect to, No. 1, the impact of closing down 17· ·schools and what it does to community spread? 18· · · · A.· ·The -- almost every study, again, with one 19· ·exception we can talk about in a bit, has found that 20· ·the closing and opening schools has no change, has 21· ·no appreciable change, on the community spread of 22· ·the disease. 23· · · · Q.· ·And how do those studies come to that 24· ·conclusion?· What is it that they do to be able to 25· ·say that, well, we looked, and schools were closed,
0677 Page 544 ·1· ·and we don't see the difference?· How is that ·2· ·figured out? ·3· · · · A.· ·So the studies have a range of ·4· ·methodologies.· Probably the most convincing ones ·5· ·are empirical studies -- to me, anyways -- empirical ·6· ·studies that look and measure community spread ·7· ·before and after school closing decisions in local ·8· ·areas. ·9· · · · · · ·And there are studies from around the 10· ·world now about this, and they find no effect.· Or 11· ·very little -- or very little effect.· Much less 12· ·effect than, for instance, opening and closing -- 13· ·opening and closing, you know, grocery stores. 14· · · · Q.· ·Okay.· What about any research with 15· ·respect to the impact on school openings?· We talked 16· ·about school closings; same thing? 17· · · · A.· ·Same thing, yeah.· Very, very similar. 18· · · · Q.· ·You mentioned studies around the world; 19· ·any particular ones? 20· · · · A.· ·Oh, there's one -- actually, I haven't 21· ·seen the paper yet, but there was a report about 22· ·this in the U.K., sort of the largest one, where 23· ·they found very little effect. 24· · · · · · ·Finland and Sweden have done a comparative 25· ·study where they found very little effect.· Denmark,
0678 Page 545 ·1· ·France -- I think -- I'm trying to remember exactly. ·2· ·I have it written up, but I -- and I can share that ·3· ·writeup with you. ·4· · · · · · ·But there's a whole host of studies from ·5· ·everywhere, or a whole bunch of studies around the ·6· ·world that find this.· And I can share all that ·7· ·information, if you like. ·8· · · · Q.· ·Fair enough. ·9· · · · · · ·Let me ask you this:· You said I think 10· ·twice now there's an exception out there in the 11· ·research or the papers; can you tell us about that? 12· · · · A.· ·Sure. 13· · · · · · ·There's a published paper in South Korea 14· ·that looked at the school openings and closings in 15· ·South Korea.· It was a contact tracing study, 16· ·actually.· And -- yeah, so this is the revision 17· ·paper. 18· · · · Q.· ·Yeah.· So -- 19· · · · A.· ·Not published. 20· · · · Q.· ·Well, we'll get you to -- we got it up a 21· ·little bit quickly. 22· · · · · · ·(Thereupon, marked for identification is 23· · · · Defense Exhibit 27.) 24· · ·BY MR. WELLS 25· · · · Q.· ·So Exhibit 27, Role of Children in
0679 Page 546 ·1· ·Household Transmission of COVID-19.· It's called a ·2· ·revision paper; what does that mean? ·3· · · · A.· ·Well, these scientists, they reanalyzed ·4· ·the data from the original paper and published ·5· ·essentially something that -- I'm calling it a ·6· ·revision paper, but it basically revised the ·7· ·conclusion of the original paper. ·8· · · · Q.· ·Okay.· Well, let's drop that down. ·9· · · · · · ·Yesterday, when Dr. Burke was talking 10· ·about his opinions, I believe he mentioned 11· ·South Korea and what the South Korean research 12· ·suggested in supporting his view that schools should 13· ·not open. 14· · · · · · ·Tell us about that research and the 15· ·revision of it. 16· · · · A.· ·Sure. 17· · · · · · ·So that South Korean study was 18· ·interesting, actually.· So what it did is, it's a 19· ·contact tracing study.· Not like Iceland where they 20· ·tracked the genetics of the virus, they just -- they 21· ·found all the people that were positive, selected 22· ·through some process, and then they tracked the 23· ·contacts of everybody. 24· · · · · · ·Well, what was interesting and unique 25· ·about that study was that they looked at the age
0680 Page 547 ·1· ·distribution of the contacts and the age ·2· ·distribution of the people that they -- that they -- ·3· ·you know, that they came in contact with. ·4· · · · · · ·And the original report suggested -- ·5· ·there's something called a secondary attack rate. ·6· ·So if I have the virus and I pass it to somebody ·7· ·else, in the contact tracing study, that's a ·8· ·secondary attack.· They found that the secondary ·9· ·attack rate among kids was really high. 10· · · · Q.· ·Let me stop you there. 11· · · · · · ·What would that mean or why would that 12· ·cause concern to know that the secondary attack rate 13· ·of this virus was high among children? 14· · · · A.· ·It's important.· Really important, right? 15· · · · · · ·So the other studies, like the Iceland 16· ·study and all the others I've mentioned, are finding 17· ·something different, where the secondary attack rate 18· ·to adults is very, very low if kids have the 19· ·disease. 20· · · · · · ·So it kind of contradicts that finding, 21· ·and so it's a cause for concern.· Maybe the 22· ·result -- earlier result, there's something special 23· ·about it or different about it, you don't -- it 24· ·would throw into question, like, what that 25· ·conclusion from the scientific literature will say.
0681 Page 548 ·1· · · · · · ·We need more research to sort it out. ·2· · · · Q.· ·Okay.· Let me just break it down. ·3· · · · · · ·You've got Iceland's report and others ·4· ·saying kids don't pass it on, not a big secondary ·5· ·attack rate, South Koreans come out with something ·6· ·that says "hold the press, that may not be right"? ·7· · · · A.· ·Yeah. ·8· · · · Q.· ·Am I thinking right? ·9· · · · · · ·Okay.· What happened after that?· After 10· ·this thing comes out -- 11· · · · A.· ·Okay. 12· · · · Q.· ·-- and caused people to go -- 13· · · · A.· ·This is another correlation/causation 14· ·thing. 15· · · · · · ·So that study, that South Korean study, 16· ·it -- it's a contact tracing study.· And was we 17· ·talked about earlier, in contact tracing studies, 18· ·you can't tell if I'm in contact with you if you 19· ·pass the virus to me or I pass the virus to you. 20· · · · Q.· ·Okay. 21· · · · A.· ·You can -- you can guess.· You can say, 22· ·okay, well -- 23· · · · Q.· ·Let me stop you. 24· · · · · · ·Does that mean they didn't do the -- 25· ·whatever the genome splitting was that was done in
0682 Page 549 ·1· ·Iceland? ·2· · · · A.· ·No, they didn't do the genome sequencing. ·3· · · · Q.· ·Okay. ·4· · · · A.· ·At least, they didn't report it in the ·5· ·papers. ·6· · · · · · ·So the -- so I can't tell -- now, you can ·7· ·try to guess.· You can say, look, you got sick later ·8· ·than me, couple days later than me, so I probably ·9· ·passed it to you, but that's a guess.· The revision 10· ·that's -- the second paper of what the paper you 11· ·just showed reanalyzed that same data with an 12· ·attempt to try to address this correlation/causation 13· ·problem. 14· · · · · · ·And the way they addressed it is, okay, 15· ·you and I have -- have been in contact with each 16· ·other.· We both got sick, right?· I don't know if I 17· ·passed it to you or you passed it to me.· But we 18· ·both -- my apologies, Judge.· We've also been in 19· ·contact with you. 20· · · · · · ·Well, let's exclude all the data where 21· ·there's a common contact that also was sick. 22· ·Because that screws up our ability to suss out who 23· ·passed it to whom.· So they removed all the shared 24· ·contact data, so where the causality is all messed 25· ·up, and then they reanalyzed it to see is there a
0683 Page 550 ·1· ·second -- higher secondary attack rate for children ·2· ·passing it to adults. ·3· · · · · · ·And the answer is no. ·4· · · · Q.· ·Let me stop you. ·5· · · · · · ·These are the same scientists, not a new ·6· ·group of folks -- ·7· · · · A.· ·I -- ·8· · · · Q.· ·-- got the same scientists looking at ·9· ·their data? 10· · · · A.· ·I think there's some overlap of the group 11· ·of scientists, yeah.· I don't know if it's exactly 12· ·the same group, but, yeah. 13· · · · Q.· ·Okay.· And what was the conclusion when 14· ·they reran the data? 15· · · · A.· ·It's consistent with the rest of the 16· ·literature, which is that children pass on the virus 17· ·at much lower rates, maybe vanishing zero rates to 18· ·adults. 19· · · · Q.· ·Okay.· Well, yesterday, we also heard a 20· ·couple things.· First, that the countries that have 21· ·reopened schools all have a much lower rate of the 22· ·disease than, say, the United States. 23· · · · · · ·Is that correct based on -- in your review 24· ·and your analysis? 25· · · · A.· ·No.
0684 Page 551 ·1· · · · · · ·So, for instance, Denmark opened up its ·2· ·schools when the case rate -- case rates were higher ·3· ·than the United States.· France is about to open up ·4· ·schools despite increasing cases on the basis of ·5· ·evidence -- the source of evidence I've been ·6· ·describing.· Also -- also on the basis of the fact ·7· ·that closing schools down is harmful to children. ·8· · · · · · ·So it's not true that countries around the ·9· ·world are looking at case rates or percent 10· ·positivity or whatever -- whatever to decide whether 11· ·to open or close schools down. 12· · · · Q.· ·Okay.· We also heard of something 13· ·happening with the openings of the schools in 14· ·Israel, and an argument that -- the example of what 15· ·happened there in Israel would teach anyone and 16· ·everyone that, no, you can't open schools at this 17· ·point in time; particularly, for example, in the 18· ·state of Florida. 19· · · · · · ·What can you tell us about that? 20· · · · A.· ·Sure. 21· · · · · · ·So I -- there's a lot of news reports 22· ·about that.· I have not been able to find, like, a 23· ·published paper on this, or -- but I -- it's 24· ·possible I missed it, but I don't think so. 25· · · · · · ·So what the news report suggests is very
0685 Page 552 ·1· ·interesting.· And actually, it's instructive and ·2· ·important.· So in Israel, there's, I think, ·3· ·something on the order of 5,000 schools. ·4· · · · · · ·A few of those schools, I think two or ·5· ·three of those schools, during a heatwave, what they ·6· ·did, there's -- their schools' class sizes are under ·7· ·38 to 40, and crowded classrooms in these schools. ·8· · · · · · ·During a heatwave, they closed the ·9· ·windows, they told students and faculty that they 10· ·didn't have to wear masks at all in these crowded 11· ·settings.· There was no social distancing at all. 12· ·Not three feet, not six feet.· And they turned on 13· ·this recirculated air-conditioning system, and they 14· ·also didn't tell teachers who were sick not to come 15· ·in. 16· · · · · · ·So what happened in some of these -- in a 17· ·couple of these Israeli schools is sick teachers 18· ·came in with symptoms, and turns out it was 19· ·COVID-19, and passed the virus to the kids. 20· · · · Q.· ·So they were letting sick teachers come to 21· ·school? 22· · · · A.· ·Yeah, they were letting sick teachers come 23· ·to school. 24· · · · Q.· ·Okay.· One of the other things that we 25· ·heard yesterday is that you would never reopen the
0686 Page 553 ·1· ·schools, and they talk about an incident in an ·2· ·overnight camp in Georgia. ·3· · · · · · ·And I know that the plaintiffs here have ·4· ·marked that -- ·5· · · · · · ·MR. WELLS:· Do you know what number that ·6· · · · is in their list?· I'll put it up. ·7· · · · · · ·MR. HILL:· Not off the top of my head. ·8· · ·BY MR. WELLS ·9· · · · Q.· ·What's called SARS-COVID Transmission and 10· ·Infection Among Attendees of an Overnight Camp 11· ·Georgia, June 2020, on the CDC site. 12· · · · · · ·Are you familiar with that? 13· · · · A.· ·Yeah, I've read that paper. 14· · · · Q.· ·Okay.· Well, why doesn't that teach you, 15· ·looking at that, that you should be saying, 16· ·Mr. Wells and the folks in the state of Florida, 17· ·don't even think about opening schools? 18· · · · A.· ·So that paper is actually similar to the 19· ·Israeli experience. 20· · · · · · ·So in Georgia, in those summer camps, the 21· ·kids were crowded together.· There were, from what I 22· ·understand, no mitigation actually done at all. 23· ·The -- the reports actually -- and you can see in 24· ·the report itself, they say in the limitations 25· ·section, they can't exclude that the kids arrived at
0687 Page 554 ·1· ·the camp with the disease.· And they can't exclude ·2· ·that some of the kids got it after. ·3· · · · · · ·It's -- so it's -- it's one of those ·4· ·studies where it -- we don't know who spread the ·5· ·disease to whom.· We do know the disease spread in a ·6· ·setting where there was no mitigation taken at all. ·7· ·They were singing loudly, and they were -- they ·8· ·were -- you know, they're doing summer camp ·9· ·activities, right? 10· · · · Q.· ·And this was an overnight camp? 11· · · · A.· ·Yeah, I think there was -- and they were 12· ·sleeping in relatively crowded cabins next to each 13· ·other.· So there was continuous exposure to each 14· ·other in settings where there was very little -- 15· ·very little thought to safety, I think. 16· · · · Q.· ·Okay.· Let's move to a little bit of a 17· ·different subject here. 18· · · · · · ·There was testimony yesterday that there 19· ·is a universally acknowledged standard that you 20· ·would not open a school under any circumstances, 21· ·where there's a 5 percent or higher, I think, 22· ·positive viral rate. 23· · · · · · ·First of all, what does that mean when we 24· ·say 5 percent positive viral rate? 25· · · · A.· ·Right.
0688 Page 555 ·1· · · · · · ·So every day, in basically every state in ·2· ·the country, you'll see this on the -- on public ·3· ·health websites.· They'll say, okay, yesterday, we ·4· ·tested a thousand people and 50 of them were ·5· ·positive. ·6· · · · Q.· ·Okay. ·7· · · · A.· ·Fifty over a 1,000, that's, if I'm doing ·8· ·the math right, 5 percent.· So 5 percent were ·9· ·positive. 10· · · · Q.· ·All right.· Is there a universal standard, 11· ·that you're aware of, that says, "Thou shalt not 12· ·open schools if there is a positive rate of 13· ·5 percent or greater"? 14· · · · A.· ·No, there is not such a standard. 15· · · · Q.· ·No -- 16· · · · A.· ·It's not in the CDC guidelines.· It's not 17· ·in the World Health Organization guidelines. 18· ·It's -- it is nowhere. 19· · · · Q.· ·Let's take it one at a time. 20· · · · · · ·So you said it's not in the World Health 21· ·Organization guideline? 22· · · · A.· ·No. 23· · · · Q.· ·It's not in the CDC guideline? 24· · · · A.· ·No. 25· · · · Q.· ·Well, are you familiar with -- and it's in
0689 Page 556 ·1· ·the plaintiffs' documents, it's their ·2· ·Exhibit No. 7 -- transcript of a -- I guess a series ·3· ·of interviews of folks from the CDC that discusses ·4· ·5 percent? ·5· · · · A.· ·Yeah. ·6· · · · · · ·So I read that in preparation for this. I ·7· ·hadn't seen it prior to my preparation for this. ·8· ·But, yeah, I've seen that.· It looks like it was a ·9· ·press conference with Dr. Redfield, who is the head 10· ·of the CDC. 11· · · · · · ·MR. WELLS:· Well, let's bring that up, if 12· · · · we can, Mr. Hill.· Plaintiffs' Exhibit 7.· You 13· · · · don't have it? 14· · ·BY MR. WELLS 15· · · · Q.· ·Okay.· Well, let me do this the hard way. 16· · · · · · ·The question -- and it was from some -- a 17· ·person named Lara Meckler with the 18· ·"Washington Post," says -- and it's to Mr. Redfield 19· ·-- "You mentioned a few times that in hotspots, 20· ·there may be -- you may need to keep schools closed 21· ·for a time.· My question is:· How much of the 22· ·country right now would you consider a hotspot? 23· · · · · · ·"Because a lot of times, we look at this 24· ·and we see large swath of country across the 25· ·southeast with hotspots.· Are those considered
0690 Page 557 ·1· ·hotspots?· And talking about large part of the ·2· ·country to open right now. ·3· · · · · · ·"And same question:· How much did the ·4· ·White House influence have in writing these new ·5· ·documents?" ·6· · · · · · ·MR. WELLS:· Did you find it? ·7· · · · · · ·MR. HILL:· Found it. ·8· · · · · · ·MR. WELLS:· Oh, we found it.· Okay.· Well, ·9· · · · let's go to that page.· It will be easier. 10· · · · It's -- well, it's four of six. 11· · · · · · ·THE WITNESS:· Yeah, this is -- I've read 12· · · · this document. 13· · ·BY MR. WELLS 14· · · · Q.· ·Oh, there you go.· We actually have it 15· ·highlighted.· So we've highlighted the response. 16· ·And you can see Mr. Redfield's response there. 17· · · · · · ·Do you consider that to be the formal 18· ·policy of the CDC? 19· · · · A.· ·It's not the formal policy of the CDC. 20· · · · · · ·The CDC has issued explicit guidance on 21· ·school -- considerations for school opening.· If you 22· ·read through that document in the official CDC 23· ·policy, you will find nowhere that 5 percent number. 24· ·Even in this setting where Dr. Redfield is talking 25· ·about 5 percent as a rough rule of thumb, he also
0691 Page 558 ·1· ·talks about 10 percent as a rough rule of thumb. ·2· · · · Q.· ·Well, let me stop you. ·3· · · · · · ·CDC, we know, because it's been put in the ·4· ·record here, has guidelines for opening K through ·5· ·12. ·6· · · · · · ·Do those guidelines say 5 percent in there ·7· ·anywhere? ·8· · · · A.· ·No, they do not. ·9· · · · Q.· ·World Health Organization, does it say 10· ·5 percent in their guidelines? 11· · · · A.· ·No, it does not. 12· · · · Q.· ·All right.· So we've got Mr. Redfield 13· ·answering these questions: 14· · · · · · ·"When you look at the hotspots, I think 15· ·most of us right now are looking where the percent 16· ·positivity rate within the community is greater than 17· ·5 percent, and a lot of the times, the maps you see 18· ·aren't granular," and it goes on. 19· · · · · · ·Let me go down to the bottom where he 20· ·says, "Clearly, there are many parts of our nation 21· ·that are having infection rates that would not be 22· ·inconsistent with, again, our guidance, and it's 23· ·just guidance, to consider it to be more cautious. 24· ·Particularly in those areas that have prevalence 25· ·rates of percent positive more than 10 percent."
0692 Page 559 ·1· · · · · · ·So he's saying if it's more than ·2· ·10 percent, be more cautious? ·3· · · · A.· ·Yeah, that -- there was good reason he's ·4· ·hedging here. ·5· · · · Q.· ·Why? ·6· · · · A.· ·Because that percent positivity does not ·7· ·actually reflect community risk.· It's not a random ·8· ·sample. ·9· · · · Q.· ·Okay. 10· · · · A.· ·And you could have increasing rates, so if 11· ·the -- if the community -- it's actually spreading 12· ·in the community where the percent positive is going 13· ·down, and you could have community -- you could have 14· ·the disease decreasing in -- and the -- where the 15· ·percent positive is going up. 16· · · · · · ·This -- under no setting would I say that 17· ·this number by itself is definitive in deciding 18· ·whether to open or close a school -- it's safe to 19· ·open or close a school district, as far as disease 20· ·is concerned. 21· · · · Q.· ·Thank you. 22· · · · · · ·And just to be clear, there are formal 23· ·guidelines that have been issued over the last three 24· ·months, multiple times, by the CDC. 25· · · · · · ·Do any of those formal guidelines say,
0693 Page 560 ·1· ·"Thou shalt not open if it's over 5 percent"? ·2· · · · A.· ·No, they -- none of them say that. ·3· · · · · · ·And in fact, quite the opposite.· What ·4· ·they -- what the formal guidelines say over and over ·5· ·again is that it's unsafe not to open schools, and ·6· ·you better have a really good reason not to do it, ·7· ·because -- ·8· · · · Q.· ·And -- well, what's your understanding of ·9· ·the concept why it would be unsafe not to open 10· ·schools? 11· · · · A.· ·School is a -- is -- obviously, it's a -- 12· ·it's necessary for your education.· That's -- we all 13· ·know that.· It's a great investment in our kids. 14· · · · · · ·But schools are also places that keep kids 15· ·safe.· Schools are places where kids get meals. 16· ·Many kids, their -- their main meals of the day 17· ·happen in schools.· The -- for poor families, it's 18· ·their main -- for poor kids, it's often their main 19· ·source of food. 20· · · · · · ·Schools are places of refuge where there's 21· ·counseling for mental health of kids.· It's -- 22· ·schools are quite important.· The -- yeah.· So 23· ·this -- this is the guidance that the CDC put 24· ·together. 25· · · · · · ·This is utterly uncontroversial.· Schools
0694 Page 561 ·1· ·are an enormously good investment.· Not just in the ·2· ·education of our kids, but in the health of our ·3· ·kids.· And preventing them from opening in person ·4· ·all together prevents kids from having those ·5· ·benefits. ·6· · · · · · ·MR. WELLS:· I'm sorry.· Just one second. ·7· · · · I'm trying to pull up another one. ·8· · · · · · ·THE WITNESS:· Yeah, the one you just ·9· · · · showed is actually a fantastic document that 10· · · · describes many of those benefits from going to 11· · · · school. 12· · · · · · ·Now, I don't think -- I don't think it 13· · · · should be controversial among any of us in this 14· · · · room that kids -- that schools are great 15· · · · investment for kids.· In the health of our 16· · · · kids, as well as the education of our kids. 17· · · · · · ·MR. WELLS:· Thank you. 18· · ·BY MR. WELLS 19· · · · Q.· ·Just move on here. 20· · · · · · ·You've considered the emergency order 21· ·which seems to cause the option of brick-and-mortar 22· ·education to students subject to appropriate health 23· ·concerns. 24· · · · · · ·Do you find any concern with that order in 25· ·terms of the spread of COVID in your view as an
0695 Page 562 ·1· ·epidemiologist? ·2· · · · A.· ·Well, I mean, I think it's the same kind ·3· ·of concern I would have with opening essential ·4· ·businesses, right? ·5· · · · · · ·The teachers can spread the disease to ·6· ·each other, and the teachers can spread the disease ·7· ·to kids.· That can happen if appropriate mitigation ·8· ·isn't taken. ·9· · · · Q.· ·And what are the types of mitigations that 10· ·one -- well, you're familiar with what the CDC talks 11· ·about in terms of good practices for schools 12· ·opening; what are some of those mitigating 13· ·practices? 14· · · · A.· ·Yeah, so, like, handwashing, social 15· ·distancing, when feasible.· If not feasible, then 16· ·masks and other -- other mechanisms to sort of 17· ·reduce the spread.· Stuff that we've all become all 18· ·too familiar with in the last few months. 19· · · · Q.· ·Do you believe that Florida schools are 20· ·prepared to resume in-person education? 21· · · · A.· ·I think probably most of them are. 22· · · · · · ·I mean, I think it's a local decision, and 23· ·locally, you got to decide do I have -- do I have 24· ·the resources to meet the CDC guidelines.· But I 25· ·don't see why Florida schools would be any different
0696 Page 563 ·1· ·than the schools around the world. ·2· · · · · · ·I mean, I think those kind of resources, ·3· ·from what I understand, have been made available ·4· ·inside Florida, as well as around the country, ·5· ·through the CARES Act and other distributions. ·6· · · · · · ·MR. WELLS:· Okay.· No further questions. ·7· · · · · · ·THE COURT:· Cross? ·8· · · · · · ·MR. MEYER:· You're muted, Jacob. ·9· · · · · · ·MR. STUART:· Thank you. 10· · · · · · · · · · CROSS EXAMINATION 11· · ·BY MR. STUART 12· · · · Q.· ·Doctor, hello.· I'm Jacob Stuart. I 13· ·represent some of the plaintiffs in this matter. 14· · · · · · ·First and foremost, your curriculum vitae, 15· ·going through it, I want to ask you:· After medical 16· ·school, did you ever complete an internship or 17· ·residency? 18· · · · A.· ·No, I don't -- I do research full-time. 19· · · · Q.· ·Okay.· So it's fair to say that in part of 20· ·your research, you've never treated any patient 21· ·formally in your entire career; is that right? 22· · · · A.· ·In medical school I did.· But, no, I do 23· ·research full-time. 24· · · · Q.· ·Have you ever treated anyone with 25· ·COVID-19?
0697 Page 564 ·1· · · · A.· ·I don't treat patients.· I treat -- I do ·2· ·research full-time. ·3· · · · Q.· ·Okay.· But before we get to some questions ·4· ·I have, your school that you teacher at, the ·5· ·freshmen class at Stanford University, they're not ·6· ·being allowed to come for in-person teaching, are ·7· ·they? ·8· · · · A.· ·No. ·9· · · · Q.· ·Okay.· And what about the sophomore class; 10· ·are they allowed to come back for in-person teaching 11· ·at Stanford University? 12· · · · A.· ·No.· I think that's a mistake, but, yeah 13· ·that's the policy. 14· · · · Q.· ·Okay.· I want to go back to some of these 15· ·issues you talked about that are pretty important. 16· · · · · · ·The first is this:· You mentioned before, 17· ·you have incredible different -- array of different 18· ·things of economics and stats, but the three papers 19· ·you mentioned that you have -- or two papers you 20· ·mention you've -- that are peer-reviewed you've done 21· ·of COVID-19; is that correct? 22· · · · A.· ·Yeah. 23· · · · Q.· ·And you had the "Wall Street Journal" 24· ·article back on March 24th, 2020; is that right? 25· · · · A.· ·Yeah.· I've had other op eds as well.
0698 Page 565 ·1· · · · Q.· ·Okay.· And you said you have four ·2· ·peer-review articles that are, you know, I guess -- ·3· · · · A.· ·Well, there are articles I've written that ·4· ·are in peer review right now. ·5· · · · Q.· ·All right.· Since March 9th, when ·6· ·Santa Clara went on lockdown as you mentioned, you ·7· ·said your sole focus has been the actual COVID-19 ·8· ·and the study of that; is that right? ·9· · · · A.· ·Yeah. 10· · · · Q.· ·And you said, in fact, when you were 11· ·speaking to Mr. Wells, that you've never seen this 12· ·type of shared effort by the scientific community 13· ·and research in regard to one pathogen or disease; 14· ·is that right? 15· · · · A.· ·That's right. 16· · · · Q.· ·And is that because the scientific 17· ·community, including yourself, are deeply concerned 18· ·about the effects of this pandemic resulted by 19· ·COVID-19? 20· · · · A.· ·Yeah, that's right.· That's why.· I don't 21· ·think I will ever work on more -- at least, I hope I 22· ·never work on a more deadly -- deadly epidemic in my 23· ·lifetime. 24· · · · Q.· ·Before we get into the science and the 25· ·different studies, and the 5 percents and all this,
0699 Page 566 ·1· ·I want to talk to you about something that you ·2· ·just -- you ended with, with Mr. Wells. ·3· · · · · · ·You mentioned before that presuming we ·4· ·have the right conditions, there has to be proper ·5· ·mitigation that occurs in each school for children ·6· ·to be safe there, and teachers to be safe there; is ·7· ·that correct? ·8· · · · A.· ·I think mitigation is absolutely ·9· ·necessary, yeah. 10· · · · Q.· ·When I was writing down what you were 11· ·saying, I mean, do you have, based upon your 12· ·research that you've done, do you believe that 13· ·children and teachers should be in masks while in 14· ·school? 15· · · · A.· ·So that varies around the world. 16· · · · · · ·So, for instance, in the U.K., they're not 17· ·requiring masks.· In many places they have masks and 18· ·many places they don't.· I think it depends on how 19· ·much physical distancing is possible.· The whole 20· ·range of things. 21· · · · · · ·Masks is one tool one might use alongside 22· ·other tools, depending on the context.· It's a -- 23· ·that's why I emphasized local.· That's what the CDC 24· ·guidelines say, too, you have to take into impact 25· ·the local context.
0700 Page 567 ·1· · · · Q.· ·What if the local government can't provide ·2· ·all the mitigation factors, should a school open? ·3· · · · A.· ·Again, you have to take into account ·4· ·the -- the harms from not opening, right? ·5· · · · · · ·So if in that area there's a lot of kids ·6· ·with school breakfasts and school lunch that are ·7· ·going to, you know, have trouble eating as a result ·8· ·of schools close, if there is the high suicide rates ·9· ·in those -- in those counties, or in those areas, I 10· ·mean, I -- I would argue you need to take into 11· ·context the -- account the entire context, not just 12· ·simply COVID. 13· · · · Q.· ·You mentioned before when you were 14· ·speaking to Mr. Wells about this 5 percent idea, 15· ·that there is no magic 5 percent. 16· · · · · · ·Do you remember saying something to that 17· ·effect? 18· · · · A.· ·Yes. 19· · · · Q.· ·But the American Academy of Pediatrics 20· ·says you should not open schools, brick-and-mortar 21· ·in-person, unless you get to 5 -- or actually below 22· ·5 percent; isn't that correct? 23· · · · A.· ·I -- I looked at that.· I don't think 24· ·it -- you're reading it the way I read it. 25· · · · Q.· ·Okay.· Also --
0701 Page 568 ·1· · · · · · ·MR. STUART:· And, Scott and Josie, if you ·2· · · · wouldn't mind bringing it up, Exhibit 4, would ·3· · · · you, please?· Plaintiffs' Exhibit 4. ·4· · · · · · ·MR. WELLS:· WHO, okay. ·5· · · · · · ·MR. STUART:· And, Your Honor, this is ·6· · · · Plaintiff's' Exhibit 4.· This is the World ·7· · · · Health Organization formal guidelines saying ·8· · · · 5 percent is the -- hold on a second.· Just ·9· · · · lost my notes. 10· · · · · · ·This is actually saying that there needs 11· · · · to be a 5 percent positivity rate for two 12· · · · weeks, the benchmark to determine if the 13· · · · epidemic is controlled. 14· · ·BY MR. STUART 15· · · · Q.· ·Doctor, are you familiar with this report? 16· · · · A.· ·I think this was early on.· They've 17· ·revised this, from what I understand. 18· · · · Q.· ·I am asking:· Are you familiar, though, 19· ·with this report? 20· · · · A.· ·Yeah, I've seen this. 21· · · · Q.· ·All right.· And are you aware of any 22· ·report by the World Health Organization that 23· ·undermines or contradicts this statement? 24· · · · A.· ·I mean, this is a statement not about 25· ·opening schools but about measuring the effect of
0702 Page 569 ·1· ·reproduction number and whether testing -- saying ·2· ·whether the area is -- is an area of concern or not ·3· ·concern. ·4· · · · Q.· ·Okay. ·5· · · · A.· ·It's one piece of data that you should ·6· ·account for, but it's not a -- it's not a ·7· ·definitive.· I don't read this document the way ·8· ·you're reading it. ·9· · · · Q.· ·Fair enough. 10· · · · · · ·MR. STUART:· We can take it off, Scott or 11· · · · Josie. 12· · ·BY MR. STUART 13· · · · Q.· ·Going back to your discussion about this 14· ·Iceland study, the study was conducted on a group of 15· ·people in Iceland on April 4th, 2020; is that 16· ·correct? 17· · · · A.· ·I don't remember the exact date, but that 18· ·sounds right. 19· · · · Q.· ·Okay.· And would you -- and you mentioned 20· ·before that studies -- and it was very humble of you 21· ·that you can be wrong in your thought process, like 22· ·any person in the scientific community, right?· You 23· ·may think something and it's proven by science to be 24· ·wrong or incorrect; is that right? 25· · · · A.· ·Yes.
0703 Page 570 ·1· · · · Q.· ·And part of what's important, especially ·2· ·in a pandemic where we have virtually the global ·3· ·scientific community working together, is that every ·4· ·week or every day, as you said, there can be a new ·5· ·study that comes out, or new data, that can change ·6· ·our perspective on what to do; is that right? ·7· · · · A.· ·Yeah, absolutely.· I would -- ·8· · · · Q.· ·So -- go ahead.· I didn't mean to ·9· ·interrupt -- 10· · · · A.· ·Yeah, I mean, I've learned a lot from -- 11· ·from my fellow scientists on this over the course of 12· ·the epidemic. 13· · · · Q.· ·So going back, would you say that the 14· ·status of the virus on April 4th in 2020 in Iceland 15· ·is different than what's going on in Florida today 16· ·in August of 2020? 17· · · · A.· ·Yeah, I mean, in -- in a -- in one sense. 18· ·I mean, obviously, Iceland is not Florida.· Those 19· ·are two different populations. 20· · · · · · ·Whether the biology of the disease and how 21· ·children react to the disease is different, that I'm 22· ·not sure about.· And it seems like it's -- it seems 23· ·like Iceland has pretty good evidence about whether 24· ·kids spread the disease or not. 25· · · · Q.· ·And we'll get to the spreading issue in a
0704 Page 571 ·1· ·second. ·2· · · · · · ·But the Iceland population, as you said, ·3· ·would you agree that the population and demographics ·4· ·of Iceland is different than that of Florida? ·5· · · · A.· ·I mean, in science, we have to generalize ·6· ·from what we have in front of us. ·7· · · · · · ·Yeah, the populations are different, but ·8· ·the biology of the disease and how kids react to the ·9· ·disease is not different. 10· · · · Q.· ·All right.· And let's presume for the sake 11· ·of argument that the Icelandic study is still 12· ·correct.· What was the definition of what a child 13· ·was in that study? 14· · · · A.· ·So they -- they had under ten, and then 15· ·also, I think they -- I don't remember if that study 16· ·but in a companion study they studied over ten. 17· · · · Q.· ·Right. 18· · · · · · ·So in this study particularly, when you're 19· ·saying that -- and we're presuming, for the sake of 20· ·argument, that this study is correct -- that when 21· ·you were defining what children are in this study, 22· ·it's actually ten and younger? 23· · · · A.· ·For that study, yeah. 24· · · · Q.· ·Right. 25· · · · A.· ·But this is a community study as well.
0705 Page 572 ·1· · · · Q.· ·All right.· So in this study that you ·2· ·opined about with Mr. Wells, if schools were to open ·3· ·based upon this study, children ten to 18 could ·4· ·transmit the virus causing COVID-19? ·5· · · · A.· ·I mean, there's a whole host of evidence, ·6· ·right?· Why would you just focus on just one piece ·7· ·of evidence and say, this is the only one. ·8· · · · · · ·But why stop at ten, right?· I think if I ·9· ·look at this study and say, "Look, now my -- now my 10· ·hypothesis is that it doesn't -- similar things are 11· ·true for over ten," we find lots of other evidence 12· ·to suggest that. 13· · · · Q.· ·Well, talking about new evidence, there's 14· ·a new evidence that came out from the American 15· ·Academy of Pediatrics' journal; have you seen that 16· ·this morning?· I know it's early where you are, 17· ·earlier than we are. 18· · · · A.· ·I told you, I didn't read -- I haven't 19· ·done -- reviewed the literature this morning. 20· · · · · · ·MR. STUART:· Scott and Josie, would you 21· · · · mind bringing up that report real quick I sent 22· · · · you, the article? 23· · · · · · ·This is a pre -- or I guess this is 24· · · · somewhere in the process of being reviewed, and 25· · · · it says something quite different than what
0706 Page 573 ·1· · · · you're talking about for transmission.· Or I ·2· · · · can bring it up, whatever's easiest.· I'm happy ·3· · · · to bring it up. ·4· · · · · · ·Hold on one second, sorry.· We're having ·5· · · · a -- technology is far from perfect.· Okay. ·6· · · · Hold on. ·7· · · · · · ·Judge, if you would allow me to share my ·8· · · · screen, that would be much appreciated. ·9· · · · · · ·THE COURT:· Can be shared. 10· · · · · · ·MR. STUART:· All right.· So does everyone 11· · · · see -- or, Doctor, do you see -- I lost you, 12· · · · Doctor -- but do you see what I have in front 13· · · · of me right now? 14· · · · · · ·THE WITNESS:· I do. 15· · ·BY MR. STUART 16· · · · Q.· ·And is it my understanding that you're not 17· ·familiar with this article that came out or is 18· ·accepted on August 13th and originally received by 19· ·the "Journal of Pediatrics" on July 29th -- 20· · · · A.· ·I -- I wouldn't be, because this is -- 21· ·this doesn't look like a preprint.· This was a 22· ·journal article, right? 23· · · · Q.· ·Yes. 24· · · · A.· ·I haven't seen this journal article. I 25· ·don't think it's been published yet.· Or if it has,
0707 Page 574 ·1· ·it's just very, very recent.· Like, within the last ·2· ·couple of days. ·3· · · · · · ·MR. STUART:· Judge, what I'd like to do, ·4· · · · if we could, because this article, I think, is ·5· · · · going to be critical, I'd ask if we could take ·6· · · · a -- you know, our lunch break now to allow him ·7· · · · to review this, and then we could come back and ·8· · · · begin testimony when you deem it appropriate, ·9· · · · Judge. 10· · · · · · ·THE COURT:· How long do you think we need 11· · · · to take, Mr. Stuart? 12· · · · · · ·MR. STUART:· I think 30 minutes like 13· · · · yesterday for a lunch break is appropriate, 14· · · · Judge. 15· · · · · · ·THE COURT:· All right.· All right.· Let's 16· · · · go ahead and take our lunch break.· It's now 17· · · · 11:44.· We'll reconvene at 12:15.· So Court 18· · · · will be in recess 'til 12:15. 19· · · · · · ·MR. WELLS:· Mr. Stuart, do I have this 20· · · · article?· Or if not, can you send it to me? 21· · · · · · ·MR. STUART:· I just got it.· I'm going to 22· · · · send it to you right now. 23· · · · · · ·MR. WELLS:· Yeah, because I have not seen 24· · · · it either.· Thank you. 25· · · · · · ·MR. STUART:· Yeah.
0708 Page 575 ·1· · · · · · ·THE COURT:· All right.· Court will be in ·2· · · · recess until 12:15. ·3· · · · · · ·(Recess from 11:44 a.m. to 12:18 p.m.) ·4· · · · · · ·THE COURT:· Okay.· We ready to start back ·5· · · · on the cross of Dr. Bhattacharya? ·6· · · · · · ·MR. STUART:· Yes, sir. ·7· · · · · · ·MR. WELLS:· Yes, Your Honor.· Let me just ·8· · · · figure my thing out here. ·9· · · · · · ·THE COURT:· Okay.· Mr. Stuart, you may 10· · · · presume. 11· · · · · · ·MR. STUART:· Thank you. 12· · · · · · ·Scott or Josie, would you mind bringing up 13· · · · Exhibit 66?· Plaintiffs' Exhibit 66, please, 14· · · · which is the -- the other one, please, if you 15· · · · wouldn't mind, first.· The Georgia one.· Thank 16· · · · you. 17· · · · · · ·(Thereupon, marked for identification is 18· · · · Plaintiff Exhibit 66.) 19· · ·BY MR. STUART 20· · · · Q.· ·So, Doctor, while we were on break, before 21· ·we get to the other study regarding -- that just 22· ·came out today, I want to go back to the Georgia 23· ·study that you mentioned in your direct examination. 24· · · · · · ·Are you still there?· I can't see you 25· ·anymore.
0709 Page 576 ·1· · · · A.· ·Yeah, I'm here. ·2· · · · Q.· ·Okay.· One second.· Just for some reason ·3· ·it reshuffled all my windows. ·4· · · · · · ·Okay.· So this study that you mentioned ·5· ·before, would you mind scrolling down for me, ·6· ·please, to the results section.· Little more up. ·7· · · · · · ·Okay.· Says right here -- and for the ·8· ·record I'm referring to, again, what is Plaintiff's ·9· ·Exhibit 66. 10· · · · · · ·My understanding was on direct examination 11· ·you said that even though you disagree with some of 12· ·the issues, that one of the things you said was, in 13· ·this study, the campers and staff didn't use 14· ·mitigation or proper mitigation. 15· · · · · · ·Was that what you testified to? 16· · · · A.· ·Yeah, that's what -- I don't know if it's 17· ·in this text, but the news reports around that 18· ·study -- around that situation suggested that was 19· ·the case, that they were singing and, yeah, that 20· ·sort of thing. 21· · · · Q.· ·Well, I'm reading here -- this is in the 22· ·Findings sections, and it says, "These findings 23· ·demonstrate that a" -- this is the top of the 24· ·paragraph right where the icon is. 25· · · · · · ·"These findings demonstrate that the
0710 Page 577 ·1· ·SARS-COVID 2 spread efficiently to youth-centered ·2· ·overnight setting resulting in attack rates among ·3· ·persons in all age groups" -- and I emphasize ·4· ·this -- "despite efforts by camp officials to ·5· ·implement most recommended strategies to prevent ·6· ·transmission." ·7· · · · A.· ·Yeah, what I understand, that actually ·8· ·didn't happen at the camp, that there was actually ·9· ·not a lot of -- especially in the places that 10· ·they've found the transmission, that there wasn't a 11· ·lot of compliance with those -- with those orders. 12· ·With those suggestions. 13· · · · Q.· ·So -- 14· · · · A.· ·The study -- if you scroll down, you'll 15· ·see the limitations of the study.· They don't -- 16· ·they say that they can't rule out that the people 17· ·came into the study with -- came into the camp with 18· ·the disease. 19· · · · Q.· ·And I remember you testifying to that, but 20· ·I want to be clear. 21· · · · · · ·I don't know what news articles you're 22· ·talking about, but here, actually, in the study it 23· ·says they followed most of the recommendations for 24· ·strategies to prevent transmission. 25· · · · · · ·So that's what the study actually says; is
0711 Page 578 ·1· ·that correct? ·2· · · · A.· ·Can you point out to where you're reading ·3· ·that?· I don't recall -- I don't have a recollection ·4· ·of it saying that. ·5· · · · Q.· ·I'm sorry.· It's the -- it's -- yeah, ·6· ·there you go.· It's the -- ·7· · · · · · ·MR. WELLS:· Scroll down and let him read ·8· · · · the entire paragraph, please. ·9· · · · · · ·MR. STUART:· Sure. 10· · · · · · ·Would you mind doing that for me?· There 11· · · · we go. 12· · · · A.· ·Yeah. 13· · · · · · ·So relatively large cohorts sleeping in 14· ·the same cabin, engaging in regular singing and 15· ·cheering -- that's where I got this bright idea 16· ·from, it says that right below where you 17· ·highlighted. 18· · · · · · ·MR. STUART:· I understand that. 19· · · · A.· ·I -- 20· · ·BY MR. STUART 21· · · · Q.· ·I -- 22· · · · A.· ·I mean, was not universal. 23· · · · · · ·This is consistent with what I said.· So 24· ·the use of cloth masks not universal.· They slept 25· ·together, slept close to each other.
0712 Page 579 ·1· · · · · · ·I mean, I just don't -- I'm not sure why ·2· ·you're saying this contradicts what I said.· It's ·3· ·completely consistent with what I said. ·4· · · · Q.· ·Well, you said before that they failed to ·5· ·follow most implemented recommended procedures, ·6· ·which is not -- ·7· · · · A.· ·Regular singing and cheering, not a ·8· ·recommended procedure.· I wouldn't recommend singing ·9· ·and cheering.· I mean, we know that those cause 10· ·spreading events. 11· · · · Q.· ·Okay. 12· · · · · · ·MR. STUART:· Let's go to the new -- if you 13· · · · wouldn't mind, Scott and Josie, to Exhibit 67. 14· · · · And can we scroll down to -- and can we scroll 15· · · · down to page 3 to the Conclusion and Results. 16· · · · It's actually the page 3 of the actual 17· · · · document, so it would be page 5 of this 18· · · · attachment. 19· · · · · · ·Thank you. 20· · ·BY MR. STUART 21· · · · Q.· ·Now, Doctor, we took a brief recess to 22· ·allow you to review this report.· This is a report 23· ·that came out today from the American -- excuse 24· ·me -- Academy of Pediatrics. 25· · · · · · ·Did you have an opportunity to review this
0713 Page 580 ·1· ·report during lunch? ·2· · · · A.· ·I did, yes. ·3· · · · Q.· ·All right.· And this report seems to -- ·4· ·not seems to -- this report, which is peer reviewed ·5· ·and has not been formally released, much like the ·6· ·report you mentioned about the mortality rate, this ·7· ·one actually says something very different. ·8· · · · · · ·It says that children can transmit the ·9· ·COVID-19 virus. 10· · · · A.· ·Well, it doesn't say that. 11· · · · Q.· ·It doesn't say that? 12· · · · A.· ·It does not.· What -- here's what it says. 13· · · · · · ·There's -- this is similar to a study that 14· ·was in JAMA Pediatrics two weeks ago, I think.· And 15· ·also in March, I think, there way a study out of 16· ·Germany that found something similar. 17· · · · · · ·What the study says is that if you look 18· ·in -- do a nasal swab of children, you can find 19· ·viral particles.· It doesn't say that the children 20· ·are infectious.· That's a different question. 21· · · · · · ·So when you have an immune response to a 22· ·virus like SARS-CoV-2, you often get -- after you've 23· ·had a successful immune response, you may still have 24· ·nonviable viral fragments still present.· The study 25· ·doesn't exclude that.
0714 Page 581 ·1· · · · · · ·In fact, none of the studies that are like ·2· ·this -- this isn't the newest one or the first ·3· ·one -- determine whether those viral particles are ·4· ·actually infectious.· In order to do that, you need ·5· ·to do studies like the contact tracing and the ·6· ·genetic analysis that we talked about in Iceland. ·7· · · · · · ·This study doesn't do anything like that. ·8· · · · Q.· ·Well, let's go down -- ·9· · · · A.· ·All -- 10· · · · · · ·MR. STUART:· Well, let's go down to page 4 11· · · · if we could, please, to the second complete 12· · · · paragraph. 13· · · · · · ·And would you highlight the first 14· · · · sentence, please? 15· · ·BY MR. STUART 16· · · · Q.· ·Doctor, I'm going to read this to you 17· ·because it seems to be slightly different. 18· · · · · · ·It says, "The manner in which children 19· ·contribute to the spread of the SARS-COVID-2 is 20· ·unclear.· Children are less likely to become 21· ·seriously ill from SARS-COVID-2.· However, 22· ·asymptomatic carriers, including children, can 23· ·spread infection and carry the virus into their 24· ·households." 25· · · · · · ·So, again, I want to ask you --
0715 Page 582 ·1· · · · A.· ·The article is -- is speculating at that ·2· ·point.· They're not talking about the results. ·3· ·They're saying, well, let's think about what this ·4· ·means.· They're saying this could mean that.· But we ·5· ·have evidence on whether it actually means that from ·6· ·Iceland and other places that I've cited. ·7· · · · · · ·This -- as I said, this is not -- this is ·8· ·not a new finding.· There's several other studies ·9· ·that have found viral fragments in the noses of kids 10· ·that have the disease. 11· · · · · · ·Several of the studies suggest that 12· ·they're less efficient at spreading those viral 13· ·fragments, and as I've cited those -- the Iceland 14· ·and other evidence, they don't cause -- I mean, it's 15· ·very, very difficult to find evidence of that spread 16· ·from kids to adults. 17· · · · · · ·It's possible that they spread it to kids. 18· ·That's actually possible.· I mean, I'm not saying 19· ·they play no role in the transmission, though. 20· ·That's not what the scientific evidence says.· It's 21· ·that they play a much smaller role than you would 22· ·expect, maybe even zero, in spreading the disease 23· ·from kids to adults. 24· · · · Q.· ·I -- 25· · · · A.· ·It's -- this could be nonviral fragments.
0716 Page 583 ·1· ·They say that here, in the study, in the Limitation ·2· ·section, and they're right to say it. ·3· · · · · · ·They don't know that it's infectious. ·4· ·They're speculating at this point -- at this point ·5· ·in the article.· This is an interesting article. I ·6· ·mean, it's -- and it confirms several other articles ·7· ·that find viral fragments in the noses of kids that ·8· ·have -- have some history of the -- ·9· · · · Q.· ·But -- 10· · · · A.· ·-- of the disease.· That's not saying its 11· ·infectiousness. 12· · · · Q.· ·Well, Doctor, I want to ask you this 13· ·because, you know, we're all entitled to our own 14· ·opinions. 15· · · · · · ·But your official position as a tenured 16· ·professor at Stanford is you're saying that this 17· ·article does not represent children can transmit the 18· ·COVID-19 virus? 19· · · · A.· ·I'm saying that if you want to conclude 20· ·that, you need more evidence than this article 21· ·presents. 22· · · · Q.· ·Okay. 23· · · · A.· ·That is my -- that is my opinion of this 24· ·article. 25· · · · Q.· ·Okay.
0717 Page 584 ·1· · · · A.· ·The authors agree with me.· They say that, ·2· ·essentially, in their limitations. ·3· · · · · · ·MR. STUART:· Okay.· You can take this ·4· · · · article off and then, Your Honor, at this time ·5· · · · I'd like to move that article -- Plaintiffs' ·6· · · · Exhibit 67 into evidence, please. ·7· · · · · · ·THE COURT:· You're moving 66 also? ·8· · · · · · ·MR. STUART:· Yes, Your Honor, the Georgia ·9· · · · article as well. 10· · · · · · ·THE COURT:· All right.· Any objection to 11· · · · Plaintiffs' 66 and 67? 12· · · · · · ·MR. WELLS:· No, Your Honor. 13· · · · · · ·THE COURT:· Okay.· Both 66 and 67 are 14· · · · admitted. 15· · · · · · ·(Thereupon, received in evidence as 16· · · · Plaintiffs' Exhibits 66 and 67.) 17· · ·BY MR. STUART 18· · · · Q.· ·I want to go back now. 19· · · · · · ·You mentioned before on direct examination 20· ·that you found that this type of decision about 21· ·reopening schools shouldn't be such a -- the 22· ·decision shouldn't be cast in such a wide net; is 23· ·that correct? 24· · · · A.· ·I don't understand the question. 25· · · · Q.· ·It shouldn't be made on a high level. I
0718 Page 585 ·1· ·think my notes actually said that you said we should ·2· ·be making these -- ·3· · · · A.· ·Yeah.· We should consider local ·4· ·conditions.· That's what the WHO and CDC guidance ·5· ·says. ·6· · · · Q.· ·And let me ask you this:· If a child does ·7· ·get COVID-19, are there potential long-lasting ·8· ·effects of the virus? ·9· · · · A.· ·It's possible. 10· · · · Q.· ·And what -- 11· · · · A.· ·Medical evidence is still emerging. 12· · · · Q.· ·The emerging evidence that we have at this 13· ·point, what are some of the long-lasting things that 14· ·children can get from COVID-19? 15· · · · A.· ·I mean, this is true of every virus. 16· ·Every common -- like, it's true with the flu -- 17· · · · Q.· ·That's not what I asked, Doctor.· I asked 18· ·if you think COVID-19 -- 19· · · · A.· ·Yeah.· I think that -- 20· · · · Q.· ·What -- 21· · · · A.· ·-- COVID-19, what I've seen, is that there 22· ·are -- there's some evidence of a -- an unknown 23· ·fraction of kids, probably very small, getting some 24· ·long-term -- some long-term consequences.· Like, for 25· ·instance, there was a paper in "Lancet" on
0719 Page 586 ·1· ·Kawasaki-like syndrome where -- in my calculations, ·2· ·I think it was, like, 40-some kids in Italy ·3· ·identified as having, potentially linked to ·4· ·SARS-COVID-2 infection, this autoimmune disorder. ·5· · · · · · ·There are other things like that that, in ·6· ·general, those -- the evidence is emerging and ·7· ·suggests it's a relatively small number of kids, ·8· ·and, as I said, mortality rate is very, very low. ·9· · · · · · ·This is the same danger the flu -- you see 10· ·with the flu, you see with a whole host of other 11· ·childhood viruses, a small fraction of kids.· It's a 12· ·deadly virus. 13· · · · Q.· ·Doctor, even if we disagree about how it 14· ·affects children, you would certainly agree that 15· ·this virus is very different from the flu for 16· ·adults, right? 17· · · · A.· ·I -- 18· · · · Q.· ·In terms -- 19· · · · A.· ·-- said that. 20· · · · Q.· ·-- mortality? 21· · · · A.· ·It's more deadly than the flu for adults 22· ·over 65.· Less deadly than the flu, then, for kids 23· ·under -- under 18. 24· · · · Q.· ·So if teachers were to go back to school, 25· ·like some teachers are already in school in Florida
0720 Page 587 ·1· ·and some have to go back tomorrow and next week, ·2· ·even if the teacher, you know, doesn't pass away or ·3· ·die, are there long-term effects they could suffer ·4· ·from COVID-19 as well? ·5· · · · A.· ·Yeah, that could happen.· Absolutely. ·6· · · · Q.· ·And what are some of those long-term ·7· ·effects?· Like, specifically, what are some of the ·8· ·conditions they could have long-term because of the ·9· ·COVID-19 virus? 10· · · · A.· ·I mean, I've seen some evidence of 11· ·myocarditis.· I've seen some evidence cited of -- of 12· ·neurologic symptoms.· I've seen some evidence cited 13· ·of strokes.· Those could happen as a consequence. 14· ·That's absolutely possible. 15· · · · Q.· ·What about issues with -- 16· · · · A.· ·Let me just say -- let me just finish. 17· · · · · · ·So the question on that literature, and 18· ·it's interesting, it's really important.· It's 19· ·certainly worth further investigation.· But the 20· ·literature up to now has no -- it makes no real good 21· ·numbers on what the rate we should expect those 22· ·long-term sequelae. 23· · · · Q.· ·Right. 24· · · · · · ·So if we don't know what the numbers are, 25· ·Doctor, shouldn't we err on the side of caution and
0721 Page 588 ·1· ·protect people from having long-term strokes, ·2· ·neurologic issues, cardiovascular issues, ·3· ·respiratory issues?· Shouldn't we want to protect ·4· ·citizens versus trying to open the economy too ·5· ·quickly if we don't know? ·6· · · · A.· ·Mr. Stuart, I think you have to -- you ·7· ·have to say -- you asked that question for grocery ·8· ·workers, for police workers, for firemen.· For all ·9· ·kinds of folks, you want to know that, that they 10· ·also face those risks.· These are essential 11· ·employees. 12· · · · · · ·The question is not do I just look at one 13· ·risk.· I consider the panoply of things that could 14· ·happen -- that happen when you close schools and ask 15· ·what are the whole range of risks.· It's a risk -- 16· ·and then you take mitigation steps to address those 17· ·risks as best probably.· There's no riskless option 18· ·here. 19· · · · Q.· ·Well, I agree with that, but you would 20· ·agree, since March, when you wrote your first "Wall 21· ·Street Journal" article and you first started on 22· ·March 9th in Santa Clara working nonstop fully on 23· ·the COVID-19 pandemic, that there are certain things 24· ·that have changed as we've gotten more knowledge 25· ·about what's going on, correct?
0722 Page 589 ·1· · · · A.· ·That's correct. ·2· · · · Q.· ·Right. ·3· · · · · · ·So we can get a new report tomorrow, just ·4· ·like we did today, that you may disagree on what it ·5· ·means, and that's for the judge to decide.· But, ·6· ·ultimately, they can show that there are a lot more ·7· ·long-term effects than we're thinking. ·8· · · · A.· ·I mean, you have to make decisions based ·9· ·on the evidence you have in front of you now. 10· · · · Q.· ·Right.· I -- 11· · · · A.· ·So I've summarized my view of that 12· ·evidence. 13· · · · Q.· ·So going back to that, there's 67 counties 14· ·in the state of Florida.· Have you had the 15· ·opportunity to review each of the 67 counties' plans 16· ·to reopen brick-and-mortar schools? 17· · · · A.· ·No.· I've reviewed a subset of them, but 18· ·not all 67. 19· · · · Q.· ·Which ones have you reviewed? 20· · · · A.· ·I'd have to look in my records.· I think 21· ·it was Broward, Orange, I saw some -- some report 22· ·there.· And then a few others, but I forget exactly. 23· · · · Q.· ·And were you consulted by the governor's 24· ·office before this lawsuit to aid Florida in its 25· ·reopening procedures?
0723 Page 590 ·1· · · · A.· ·No.· This was -- I was just reviewing ·2· ·after the fact. ·3· · · · Q.· ·So you were brought in after there was a ·4· ·lawsuit filed to help, essentially, provide evidence ·5· ·on behalf of the governor's office; is that correct? ·6· · · · A.· ·I mean, I was -- I was asked to provide ·7· ·evidence -- provide my view of the -- of the science ·8· ·of -- on children, yeah.· That's true. ·9· · · · Q.· ·But not just children, I mean, but is 10· ·your -- is your testimony that you're not here to 11· ·provide any advice on -- or any expert testimony 12· ·about teachers, bus drivers, administrative 13· ·assistants, anything like that? 14· · · · A.· ·I mean, I can talk on that. 15· · · · · · ·So is your question is it possible to have 16· ·those kinds of activities? 17· · · · Q.· ·No. 18· · · · · · ·(Simultaneous colloquy.) 19· · · · · · ·STENOGRAPHER:· I'm sorry.· I'm sorry. 20· · · · · · ·THE COURT:· Hang on just a second.· You 21· · · · can't both talk at the same time. 22· · · · · · ·MR. STUART:· Thank you, Judge.· I'll be 23· · · · better about it. 24· · ·BY MR. STUART 25· · · · Q.· ·I want to ask you precisely.· You were
0724 Page 591 ·1· ·brought on, as we talked about, after the lawsuit ·2· ·had been filed, the lawsuits, correct? ·3· · · · A.· ·I mean, I'm not sure of the timing.· But I ·4· ·mean that's possible, yeah. ·5· · · · Q.· ·Okay.· And you testified before and just, ·6· ·we were having the back and forth, that you can't ·7· ·testify about transmission of the virus between ·8· ·teachers at work or bus drivers or administrative ·9· ·assistants, correct? 10· · · · A.· ·Are you asking me if I can say something 11· ·about that transmission rate? 12· · · · Q.· ·Right, right.· Meaning that -- that adults 13· ·can transmit the virus to adults, correct? 14· · · · A.· ·That's correct.· I've said that, right. 15· · · · Q.· ·Right. 16· · · · · · ·Well, I'm not -- I want to be sure, 17· ·because there have been a lot.· Adults can transmit 18· ·the virus to children; is that correct? 19· · · · A.· ·Adults can transmit the virus to children 20· ·and adults transmit to adults.· That is correct. 21· · · · Q.· ·And your position is that children cannot 22· ·transmit the virus to adults? 23· · · · A.· ·They transmit the virus to adults at much 24· ·lower rates than you -- I mean, basically, 25· ·vanishingly low, yes.
0725 Page 592 ·1· · · · Q.· ·Going back to this idea of local ·2· ·decisions, you feel it's up to each local county, ·3· ·they should have the ability to decide when it's ·4· ·appropriate to open their schools, brick-and-mortar, ·5· ·right? ·6· · · · A.· ·No. ·7· · · · · · ·I think you have to account for local ·8· ·conditions, but who makes that decision is not up to ·9· ·me.· That's a -- that's a question of, you know, 10· ·sort of state and local county relationship between 11· ·governments, and that's a different question. 12· · · · · · ·The question of whether local conditions 13· ·should be taken into account?· Yeah, absolutely. I 14· ·think they should be taken into account. 15· · · · Q.· ·And can we agree, much like Stanford has 16· ·not had children come back for a certain period of 17· ·time, that -- would you agree that a local level 18· ·that teachers who suffer from very serious 19· ·preexisting conditions like quadriplegics or people 20· ·with serious heart conditions should be allowed not 21· ·to return to work and not suffer penalty for that? 22· · · · A.· ·I mean, my heart goes out to people who 23· ·are in that situation.· They're facing very, very 24· ·difficult choices and difficult decisions to make. 25· ·And I think if you're asking me, as -- if I were a
0726 Page 593 ·1· ·policy maker, or are you asking me as a scientist? ·2· · · · Q.· ·I'm asking you -- yeah.· If you were ·3· ·advising a policy maker, like you're doing in this ·4· ·case, providing expert testimony, what would be your ·5· ·recommendation? ·6· · · · A.· ·If you're asking as a policy maker, I ·7· ·would be in favor of making some kind of ·8· ·accommodation through training or some sort of ·9· ·mechanism to protect those folks. 10· · · · · · ·But that's my -- I mean, I'm not a policy 11· ·maker, right, so I'm -- I'm testifying as a 12· ·scientist. 13· · · · Q.· ·Right. 14· · · · · · ·And you're aware, though, that some of 15· ·Florida's schools that I'm sure are big and large, 16· ·like some of California's big schools, there can be 17· ·hundreds, if not, you know, four or five hundred 18· ·adult staff members at schools at any given time. 19· · · · · · ·Are you aware of that? 20· · · · A.· ·Yeah.· I'm aware of that. 21· · · · · · ·I mean, I think -- I think the -- this is 22· ·the same -- and, again, you're asking me as a policy 23· ·maker.· This is the same kind of dilemma that every 24· ·essential business has had to think about.· How 25· ·to -- how to continue to be able to perform the
0727 Page 594 ·1· ·activities that are absolutely essential to -- to ·2· ·society while also, to the best possibility, ·3· ·protecting employees that are -- that are performing ·4· ·those activities. ·5· · · · · · ·I don't think schools, in that sense, are ·6· ·fundamentally different, except in one sense:· the ·7· ·clientele they have, which is children, pose much ·8· ·less a risk to them than many other clientele that ·9· ·essential workers interact with. 10· · · · Q.· ·Do you -- 11· · · · A.· ·Because children don't pass the disease to 12· ·adults. 13· · · · Q.· ·You would certainly agree, though, like 14· ·Stanford University or Harvard's doing, even though 15· ·it's not as good as in-person learning, you can do 16· ·learning over the computer or over some 17· ·telecommunication device? 18· · · · A.· ·I mean, I taught two classes online last 19· ·spring at Stanford.· And, I mean, I've been teaching 20· ·here for 20 years.· I did my absolute best.· I think 21· ·I did a good job.· My students seemed to like me. 22· · · · · · ·But I'll tell you, I feel like I did them 23· ·a disservice.· I could not have the same kind of 24· ·education -- educational opportunity for them that I 25· ·wanted to offer them.· It's not a substitute.
0728 Page 595 ·1· · · · Q.· ·But -- ·2· · · · A.· ·It's not perfect, it's not close. ·3· · · · Q.· ·Right. ·4· · · · · · ·And I understand what you're saying, but ·5· ·unlike -- you know, theoretically, human being -- ·6· ·talking about essential services, theoretically, a ·7· ·human being can go a year without learning in school ·8· ·but they can't go a year without eating substance ·9· ·like from a grocery store. 10· · · · · · ·So you would agree there is a difference 11· ·between someone providing food -- 12· · · · A.· ·I think schools -- I think schools are 13· ·essential.· If you're asking me a question how 14· ·essential schools are, I think they're essential to 15· ·human functioning, human vitality.· The evidence in 16· ·health economics suggest that even missing one year 17· ·of school can have long-term negative health 18· ·consequences. 19· · · · · · ·So it's not -- it's not -- and including 20· ·mortality, lower life expectancy and other outcomes. 21· · · · · · ·I don't think that -- if you're asking me 22· ·do I think schools are less essential than food, I 23· ·mean, okay, you don't survive without food, but 24· ·what's life without the education that we're 25· ·provided?
0729 Page 596 ·1· · · · Q.· ·I mean, there's no question that you have ·2· ·a point, that in-person learning's better.· No one ·3· ·on the plaintiffs' side is debating that.· The ·4· ·question is, and what this whole lawsuit's about, as ·5· ·you know, is when we allow schools to be back in ·6· ·person. ·7· · · · · · ·So I wanted to clarify your testimony, and ·8· ·I'm going to ask it again because we got a narrative ·9· ·answer there.· I want to differentiate. 10· · · · · · ·You made a comment before that it -- it 11· ·seems like it bothers you that police officers, 12· ·doctors, nurses, grocery store workers, they have to 13· ·go to work, why shouldn't teachers have to go to 14· ·work? 15· · · · A.· ·Oh, no, it doesn't bother me at all in 16· ·that sense. 17· · · · · · ·I mean, I think they're doing -- they're 18· ·doing activities that -- that are consistent with 19· ·what -- their calling.· I mean, that's why they 20· ·chose those professions, they're serving the people 21· ·that they have dedicated their life to serve. 22· · · · · · ·I think that -- I mean, I don't -- it's 23· ·not a question of bothering me.· I wish you wouldn't 24· ·put my words in my mouth about that.· It's not true. 25· ·I'm not bothered by it.
0730 Page 597 ·1· · · · · · ·I think that we should consider all the ·2· ·costs and benefits of these -- if you're -- again, ·3· ·if you're asking me as a policy maker, which I'm ·4· ·not, we should consider all the costs and benefits ·5· ·comprehensively when we're making these decisions, ·6· ·not just looking at one risk at the exclusion of all ·7· ·the other costs -- costs taking in action. ·8· · · · Q.· ·I understand that, and I understand you're ·9· ·not a policy maker. 10· · · · · · ·But in your lengthy opening about your 11· ·curriculum vitae, everything you do, health 12· ·economics, from what I gather -- and correct me if 13· ·I'm wrong -- is a balancing act of presenting -- 14· ·preventing the spread of disease that can hurt or 15· ·kill the population; and, on the other side of the 16· ·equation, balancing a standard of living and all the 17· ·economic and standard of living questions that go 18· ·with that, right? 19· · · · A.· ·And health questions, right. 20· · · · · · ·So it's not -- so suicides are up.· You 21· ·know, there's -- it's not simply a question of 22· ·standard of living.· It's a question of life.· It's 23· ·lives versus lives -- 24· · · · Q.· ·Right. 25· · · · A.· ·-- on both sides of this equation.
0731 Page 598 ·1· · · · Q.· ·And I think that's where we differ, and ·2· ·that's why I want to end with this. ·3· · · · · · ·From what you're saying is, if we were to ·4· ·think about this, and this is from -- you've been at ·5· ·Stanford since 1990 studying, whether it's PhD, ·6· ·medical, and all this research, except for, like you ·7· ·said, the few years in some think tanks, it really ·8· ·comes down to this from your position and your ·9· ·advice to the governor and the defendants in this 10· ·case, that your opinion is, in the balancing act, if 11· ·the lives we may lose from opening schools is 12· ·outweighed by the need to open in-person learning? 13· · · · A.· ·I -- I don't think I would characterize it 14· ·simply that way.· I would say we want to take 15· ·careful action to protect the teachers. 16· · · · · · ·We want to take careful action to protect 17· ·the -- to protect the interests of the students and 18· ·to provide them with the best education possible. I 19· ·think all of that needs to be taken into account, 20· ·including local conditions in making these -- in 21· ·making these decisions. 22· · · · · · ·That's my -- that was what I would argue. 23· · · · Q.· ·And we can agree about making sure we 24· ·protect teachers. 25· · · · · · ·MR. STUART:· Your Honor, at this time, I
0732 Page 599 ·1· ·have no further questions for the doctor. ·2· · · · (Proceedings continued in Volume 5.) ·3 ·4 ·5 ·6 ·7 ·8 ·9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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·4· ·STATE OF FLORIDA
·5· ·COUNTY OF LEON
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·7· · · · · · ·I, MARYKAY HORVATH, RPR CRR, FPR, certify
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·9· · · · stenographically report the foregoing
10· · · · proceedings, and that the transcript is a true
11· · · · and complete record of my stenographic notes.
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13· · · · · · ·Dated this 28th day of August 2020.
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16· ·______· · · · · MARYKAY HORVATH, RPR, CRR, FPR 17
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· · · · · · · CASE NO.:· 2020 CA 1450
FLORIDA EDUCATION ASSOCIATION; STEFANIE BETH MILLER, LADARA ROYAL; MINDY FESTGE; VICTORIA DUBLINO-HENJES; and ANDRES HENJES,
· · · · · · · ·Plaintiffs, vs.
RON DESANTIS, in his official capacity as Governor of the State of Florida; RICHARD CORCORAN, in his official capacity as Florida Commissioner of Education; FLORIDA DEPARTMENT OF EDUCATION; and FLORIDA BOARD of EDUCATION,
· · · · · · · ·Defendants. ______/
· · · · · (Consolidated with:)
0788 Page 602 · · · · · · · ·CASE NO.:· 2020 CA 1467
MONIQUE BELLEFLEUR, individually and on behalf of D.B. Jr., M.B., and D.B. and KATHRYN HAMMOND, ASHLEY MONROE, and JAMES LIS, · · · · · · · ·Plaintiffs, vs. RON DESANTIS, Governor of Florida, in his official capacity as Chief Executive Officer of the State of Florida, ANDY TUCK, in his official capacity as the chair of the State Board of Education, STATE BOARD of EDUCATION, RICHARD CORCORAN, in his official capacity as Commissioner of the Florida Department of Education, FLORIDA DEPARTMENT OF EDUCATION, JACOB OLIVA, in his official capacity as Chancellor, Division of Public Schools, TERESA JACOBS, in her official capacity as the chair of the SCHOOL BOARD OF ORANGE COUNTY, BARBARA JENKINS, in her official capacity as the Superintendent of Orange County Public Schools, and ORANGE COUNTY PUBLIC SCHOOLS, · · · · · · · Defendants.
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· TRANSCRIPT OF WEB CONFERENCE HEARING PROCEEDINGS · · PLAINTIFFS' EXPEDITED MOTION FOR TEMPORARY · · · · · · · · · · ·INJUNCTION
· · · · · · ·VOLUME 5 (Pages 601 - 761)
· ·DATE TAKEN:· Thursday, August 20th, 2020 · ·TIME:· · · · 12:44 p.m. to 4:12 p.m. · ·PLACE:· · · ·Leon County Courthouse · · · · · · · · 301 South Monroe Street · · · · · · · · Tallahassee, Florida· 32301 · ·BEFORE:· · · Charles Dodson, Circuit Judge · · · · · · · · · · ·(via Zoom)
· · ·This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were stenographically reported via Zoom by:
· · · · · ·MaryKay Horvath, RPR, CRR, FPR · · · · · · Certified Realtime Reporter
Job No.: 151241
0789 Page 603 ·1· ·APPEARANCES: (all appearing via videoconference)
·2· ·On behalf of Plaintiffs Florida Education · · ·Association, Stefanie Beth Miller, Ladara Royal, ·3· ·Mindy Festge, Victoria Dublino-Henjes, and Andres · · ·Henjes: ·4 · · · · · MEYER, BROOKS, BLOHM & HEARN, P.A. ·5· · · · 131 North Gadsden Street · · · · · Post Office Box 1547 ·6· · · · Tallahassee, Florida 32301 · · · · · (850)878-5212 ·7· · · · BY:· RONALD G. MEYER, ESQ. · · · · · [email protected] ·8
·9· · · · COFFEY BURLINGTON, P.L. · · · · · 2601 South Bayshore Drive 10· · · · Penthouse · · · · · Miami, Florida 33133 11· · · · (305)858-2900 · · · · · BY:· KENDALL B. COFFEY, ESQ. 12· · · · [email protected] · · · · · · · ·JOSEFINA M. AGUILA, ESQ. 13· · · · [email protected] · · · · · · · ·SCOTT A. HIAASEN, ESQ. 14· · · · [email protected]
15· · · · PHILLIPS & RICHARD, P.A. · · · · · 9360 Southwest 72nd Street 16· · · · Suite 283 · · · · · Miami, Florida 33173 17· · · · (305)412-8322 · · · · · BY:· MARK H. RICHARD, ESQ. 18· · · · [email protected]
19· · · · FLORIDA EDUCATION ASSOCIATION · · · · · 213 South Adams Street 20· · · · Tallahassee, Florida 32301 · · · · · (850)201-3382 21· · · · BY:· KIMBERLY C. MENCHION, ESQ. · · · · · ·[email protected] 22
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0790 Page 604 ·1· ·APPEARANCES (Continued):
·2· ·On behalf of Defendants:
·3· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 225 Water Street ·4· · · · Suite 1750 · · · · · Jacksonville, Florida 32202 ·5· · · · (904)354-1980 · · · · · BY:· DAVID M. WELLS, ESQ. ·6· · · · [email protected]
·7· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 200 South Orange Avenue ·8· · · · Suite 1400 · · · · · Florida Orlando, Florida 32801 ·9· · · · (407)648-5077 · · · · · BY:· NATHAN W. HILL, ESQ. 10· · · · [email protected]
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0791 Page 605 ·1· · · · · · · · · · · · I N D E X
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·3· ·Proceedings· · · · · · · · · · · · · · · · ·Page
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·5· · · · · · · ·VOLUME 5 (Pages 601 - 761)
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·7· ·JAYANTA BHATTACHARYA, M.D.
·8· ·Cross· · · · · · · ·By Mr. Coffey· · · · · · 606 · · ·Redirect· · · · · · By Mr. Wells· · · · · · ·628 ·9
10· ·SCOTT HOPES
11· ·Direct· · · · · · · By Mr. Wells· · · · · · ·633 · · ·Cross· · · · · · · ·By Mr. Coffey· · · · · · 667 12· ·Redirect· · · · · · By Mr. Wells· · · · · · ·687 · · ·Recross· · · · · · ·By Mr. Coffey· · · · · · 690 13
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17· · · · DEFENSE EXHIBITS MARKED FOR IDENTIFICATION
18· · · · · · · · · · · · · · · · · · · · · · · ·Page · · ·Defense Exhibit 11· · · · · · · · · · · · · ·749 19· ·Defense Exhibit 7A· · · · · · · · · · · · · ·754
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0792 Page 606 ·1· ·The following proceedings via Zoom continued at ·2· ·12:44 p.m.: ·3· · · · · · ·THE COURT:· Redirect? ·4· · · · · · ·MR. WELLS:· Briefly, Your Honor. ·5· · · · · · ·MR. COFFEY:· Judge, if I may, I represent ·6· · · · several parties too, and I'd like to have an ·7· · · · opportunity to cross-examine this witness. ·8· · · · I'll do everything I can to avoid duplication. ·9· · · · · · ·THE COURT:· You may proceed, Mr. Coffey. 10· · · · · · ·MR. COFFEY:· Thank you. 11· · · · · · · · · · CROSS EXAMINATION 12· · ·BY MR. COFFEY 13· · · · Q.· ·Doctor, is it true that -- you know who 14· ·Dr. Deborah Birx is, don't you? 15· · · · A.· ·Yes.· And I don't know her personal, but 16· ·yeah. 17· · · · Q.· ·But you know who she is, and she is, in 18· ·fact, the head of the White House task force on 19· ·COVID; is that right? 20· · · · A.· ·I don't know if she's the head or what. I 21· ·didn't follow that, unfortunately. 22· · · · Q.· ·Okay.· And were you aware of the fact that 23· ·she said publicly, actually on CNN, that she was 24· ·asked about whether schools in areas with 5 percent 25· ·positivity rate or higher need to use distance
0793 Page 607 ·1· ·learning, and the questioner, Dana Bash, was ·2· ·referring to a statement that had been made by ·3· ·Robert Redfield, the CDC head.· And she said, "I ·4· ·certainly would endorse what Dr. Redfield is ·5· ·saying." ·6· · · · · · ·So are you aware that -- ·7· · · · A.· ·I haven't heard her say that.· I didn't ·8· ·see that CNN.· I don't tend to watch much TV. ·9· · · · Q.· ·Yeah. 10· · · · A.· ·I will say that we saw what Dr. Redfield 11· ·said, he didn't say 5 percent.· He said 5, 10, it's 12· ·a rough guide. 13· · · · · · ·I mean, he didn't say that. 14· · · · Q.· ·Well, Dr. Birx did say that, she 15· ·endorsed -- she was asked about 5 percent, and she 16· ·said she would endorse that.· I mean -- 17· · · · A.· ·You said -- it sounded like you said that 18· ·she endorsed what Dr. Redfield said.· He didn't say 19· ·5 percent.· He said 5, 10, which take into account 20· ·lots of things. 21· · · · Q.· ·Well, she asked about -- think she was 22· ·asked about the 5 percent. 23· · · · · · ·Have you heard of -- do you apply a 24· ·different metric than the 5-percent positivity, that 25· ·you think assures student safety?
0794 Page 608 ·1· · · · A.· ·I think that 5 percent number is an ·2· ·arbitrary standard that's not connected to student ·3· ·safety in one way or the other.· That 5 percent ·4· ·could or could not -- for reasons I gave in my ·5· ·testimony, may or may not indicate whether it's ·6· ·safe. ·7· · · · · · ·You have to look at a much broader set of ·8· ·facts before you decide something like that.· You ·9· ·can't just look at one number. 10· · · · Q.· ·Yeah. 11· · · · · · ·My question is:· Do you use a different 12· ·metric?· Do you have a different objective standard 13· ·that you use in determining school safety, or is it 14· ·your testimony there is none? 15· · · · A.· ·That's not my testimony.· I mean, I think 16· ·I just gave my testimony, right, Mr. Coffey?· So I 17· ·said that -- 18· · · · Q.· ·Yes -- 19· · · · A.· ·-- you have to look at a whole panoply of 20· ·things, not simply one number. 21· · · · · · ·I mean, I could get into what you want -- 22· ·what sorts of things one might look at, but, again, 23· ·it's going to depend on local conditions. 24· · · · Q.· ·Okay.· Well, is 10-percent positivity the 25· ·number you think that should --
0795 Page 609 ·1· · · · A.· ·It should -- I'm sorry.· Please go ahead, ·2· ·finish. ·3· · · · Q.· ·Well, that's my question, should it be 10 ·4· ·percent positivity? ·5· · · · A.· ·Yeah. ·6· · · · · · ·So I don't think looking at a single ·7· ·number is going to give you the answer to that ·8· ·question.· That was my testimony, that -- you're ·9· ·trying to get me to pin down to one single number is 10· ·not -- I think is a mistake. 11· · · · · · ·I think we should look at the whole set of 12· ·range of facts, including community spread, not 13· ·necessarily measured in this biased way, but as a 14· ·whole.· Like, are hospitals in the area at risk of 15· ·being overrun?· Are children really being infected 16· ·at high rates?· Are they dying at high rates? 17· · · · · · ·Those kinds of things are important to 18· ·look at, but it's within the context of a whole 19· ·range of things to decide safety epidemic, not 20· ·simply one number where you say one threshold.· Is 21· ·4.9 percent safe?· Is 5.1?· I mean, you can see the 22· ·problem with one single number, especially for the 23· ·biased metric where it doesn't actually measure 24· ·community spread. 25· · · · Q.· ·Well, let me ask you this.· You are
0796 Page 610 ·1· ·familiar with the submission by the Florida Chapter ·2· ·of the American Academy of Pediatrics.· You're ·3· ·familiar with that submission, correct? ·4· · · · A.· ·I think I've read that, yeah. ·5· · · · Q.· ·Okay.· It's Plaintiffs' Exhibit 8.· I'll ·6· ·ask you some questions from the document. ·7· · · · · · ·But would you agree that -- as you already ·8· ·acknowledged, you have never treated a patient in ·9· ·the state of Florida; is that correct? 10· · · · A.· ·That's correct. 11· · · · Q.· ·And you also know, because you've read 12· ·about it, that Florida has been described as -- as 13· ·Ground Zero; actually, one of the worst states with 14· ·respect to the COVID virus infection. 15· · · · · · ·You're aware of that, right? 16· · · · A.· ·Well, I've been tracking the rate of 17· ·infections and deaths, and you guys have done better 18· ·than New York and -- you know, New Jersey and 19· ·Massachusetts, for instance, in terms of deaths per 20· ·million. 21· · · · Q.· ·How many people are dying each day in 22· ·Florida, about? 23· · · · A.· ·I didn't check the numbers this morning. 24· ·I can go look. 25· · · · Q.· ·Usually at least 200, isn't it?
0797 Page 611 ·1· · · · A.· ·I'd have to go look this morning. ·2· · · · Q.· ·Okay. ·3· · · · A.· ·I mean, I can check while we're talking. ·4· · · · Q.· ·Yeah, check while we're talking. ·5· · · · · · ·And the number of total COVID rates -- ·6· ·cases, have we reached 600,000 yet? ·7· · · · A.· ·Let me take a look at the latest numbers. ·8· ·Yeah.· So 582,000 residents have had COVID in ·9· ·Florida as of today. 10· · · · Q.· ·Okay.· And I was a little confused. I 11· ·couldn't say if you were denying that the World 12· ·Health Organization had recommended a positivity 13· ·rate of 5 percent -- 14· · · · A.· ·Yeah, that -- I actually had a chance to 15· ·review that document during the break. 16· · · · · · ·That document doesn't say that you should 17· ·use 5 percent as a standard. 18· · · · Q.· ·Okay. 19· · · · A.· ·That document says is, if you want to 20· ·measure -- you should take into account the R0.· So 21· ·what is R0? 22· · · · · · ·R0 is the rate at which the epidemic is 23· ·growing, and it says that you may be able to use 24· ·that statistic, the test positivity statistic, as 25· ·evidence about R0 if you have a sample of people
0798 Page 612 ·1· ·that's representative of the population. ·2· · · · Q.· ·Okay.· Well, let me -- ·3· · · · A.· ·I've already testified I don't think that ·4· ·you have a sample of people representative of the ·5· ·population. ·6· · · · Q.· ·Okay.· You think that positivity rate is ·7· ·just not that valuable, correct? ·8· · · · A.· ·No, it's part -- a part of the set of ·9· ·things one looks at.· You have to think about what 10· ·that number actually means rather than just going 11· ·robotically with a 5 -- some standard. 12· · · · · · ·That number means among the set of people 13· ·that were tested who were positive, how many test 14· ·positive. 15· · · · Q.· ·Uh-huh. 16· · · · A.· ·That's different than how -- whether the 17· ·disease is spreading, increasing, or decreasing. 18· · · · Q.· ·Okay. 19· · · · A.· ·What the World Health Organization 20· ·document says is you should look at whether the 21· ·disease is increasing or decreasing to decide if you 22· ·control. 23· · · · · · ·By the way, that document is not about 24· ·school opening or closing. 25· · · · Q.· ·Okay.· Well, let me read you a document
0799 Page 613 ·1· ·that is.· This is the exhibit we were talking about, ·2· ·Exhibit 8.· It's the submission from the Florida ·3· ·Chapter of the Academy -- American Academy of ·4· ·Pediatrics, and I'll read it to you.· It's really ·5· ·found in the second paragraph. ·6· · · · · · ·"The World Health Organization has ·7· ·recommended that the new positive rate for ·8· ·SARS-COVID-2, which causes COVID-19, should be less ·9· ·than 5 percent averaged over a 14 day before states 10· ·and, hence, schools, can safely open." 11· · · · · · ·Do you see that? 12· · · · A.· ·I do see that. 13· · · · Q.· ·And, therefore, their recommendation, 14· ·which we read -- 15· · · · A.· ·Yeah, so -- 16· · · · Q.· ·Not -- 17· · · · A.· ·That document -- we read the document that 18· ·cited that, that they're citing. 19· · · · Q.· ·Doctor, you got to let me finish my 20· ·questions.· I won't interrupt your answers, but I 21· ·noticed -- 22· · · · A.· ·I apologize.· You're right. 23· · · · Q.· ·-- you were interrupting the prior 24· ·questioner's questions, so let me finish.· I'll try 25· ·to speak quickly and not take too much of your time.
0800 Page 614 ·1· · · · · · ·"Therefore, the FCAAP recommends that ·2· ·school districts in locale with higher positive test ·3· ·rates, more than 5 percent, that do not meet the ·4· ·14-day criteria delay the start date for school ·5· ·until positive testing rates are lowered." ·6· · · · · · ·Do you see that? ·7· · · · A.· ·I do see that, yes. ·8· · · · Q.· ·Okay.· And is it fair to say that these ·9· ·are pediatricians in Florida who actually treat 10· ·children, right? 11· · · · A.· ·I -- I don't know who wrote this document. 12· · · · Q.· ·Okay.· You don't have to take my word for 13· ·it when I say the Florida Chapter of American 14· ·Academy of Pediatrics are actually doctors who treat 15· ·children in Florida. 16· · · · A.· ·But that's different than who wrote this 17· ·document, right? 18· · · · Q.· ·Well, Doctor, maybe you want to take a 19· ·look at the -- I'm not trying to be -- hide 20· ·anything.· It says Florida Chapter of the American 21· ·Academy of Pediatrics. 22· · · · A.· ·Yeah.· I mean, you're asking me who wrote 23· ·the document.· I don't know who wrote the document. 24· · · · Q.· ·Okay.· It's -- then let's say it's 25· ·submitted on behalf of the doctors who treat
0801 Page 615 ·1· ·children in Florida, and would it be fair to say ·2· ·that you simply disagree with their recommendation ·3· ·based on the 5 percent positivity? ·4· · · · A.· ·I mean, that -- they cite the World Health ·5· ·Organization.· We read that document.· It doesn't ·6· ·say what they say it says.· Look at No. 3 right ·7· ·there in front of you. ·8· · · · Q.· ·I'm asking you, Doctor -- I'm really just ·9· ·trying to move on. 10· · · · · · ·Isn't it a fact that the Florida Chapter 11· ·of the American association of pediatricians, 12· ·relying on World Health criteria, says that you 13· ·should have a 5 percent or more positivity rate 14· ·before you reopen schools. 15· · · · · · ·I'm just trying to get a simple -- I think 16· ·it's a simple point. 17· · · · A.· ·I mean -- 18· · · · Q.· ·We can move on.· The document says what it 19· ·says, and you -- 20· · · · A.· ·I mean -- I mean, I think there's two 21· ·questions embedded in that, right? 22· · · · · · ·So one is:· What does the World Health 23· ·Organization say?· And it doesn't say what they say 24· ·it says.· And then the second question, they 25· ·recommend higher than 5 percent, but they don't
0802 Page 616 ·1· ·provide any reasoning behind that like the World ·2· ·Health Organization and the CDC does, right?· And ·3· ·the CDC doesn't come out and say 5 percent, and ·4· ·neither does the World Health Organization. ·5· · · · Q.· ·Well, I mean -- ·6· · · · A.· ·Yeah, these -- whoever wrote this document ·7· ·wants 5 percent, but there should be reasoning ·8· ·behind that. ·9· · · · Q.· ·Okay.· Well, there are a number of pages 10· ·in it, but we won't go through all those now. 11· · · · · · ·You have no reason to believe that there's 12· ·anything less than honorable about the motives of 13· ·the -- 14· · · · A.· ·No, no, I think they're honorable. 15· · · · Q.· ·Okay.· And you're also aware that -- you 16· ·were suggesting, I think, that -- and I was a little 17· ·confused about it, that children don't spread the 18· ·virus.· I think your testimony actually was that 19· ·children spread the virus to other children; is that 20· ·right? 21· · · · A.· ·Yeah, I didn't make testimony says that 22· ·they don't spread the virus at all.· I said the 23· ·evidence is consistent with they don't spread it to 24· ·adults. 25· · · · Q.· ·Okay.· And you are aware of the CDC's own
0803 Page 617 ·1· ·statements, on or about August 17th, where they say, ·2· ·"Recent evidence suggests that children likely had ·3· ·the same or higher viral loads in their nasopharynx ·4· ·compared with adults, and that children can spread ·5· ·the virus effectively in households and camp ·6· ·settings"? ·7· · · · · · ·You're aware of that, right? ·8· · · · A.· ·Okay.· So we discussed that with ·9· ·Mr. Stuart, right?· So that -- the viral load is not 10· ·indicative of infectiousness, necessarily, because 11· ·you have nonviable viral fragments.· That's the 12· ·debate going on in the medical literature right now 13· ·about that finding. 14· · · · · · ·And then can they spread to others?· Other 15· ·kids?· Yeah, there's evidence they can spread to 16· ·other kids. 17· · · · Q.· ·Okay.· And, in fact, when you were talking 18· ·about the situation in Israel and Georgia, you were 19· ·emphasizing that there -- you did not believe there 20· ·are adequate mitigation measures in effect, correct? 21· · · · A.· ·Yeah, I think that's -- 22· · · · · · ·MR. WELLS:· Can we just object with the 23· · · · whole concept Mr. Coffey wasn't going to go and 24· · · · ask the same questions that Mr. Stuart asked, 25· · · · and Mr. Stuart not only asked him that, he
0804 Page 618 ·1· · · · walked him through the -- the actual document, ·2· · · · and we're doing the same thing here. ·3· · · · · · ·MR. COFFEY:· Judge, I asked, like, one ·4· · · · question because I -- I didn't find that the ·5· · · · witness's answers were clear.· And maybe I ·6· · · · wasn't listening closely, but I don't think ·7· · · · I'll waste a lot of time -- ·8· · · · · · ·THE COURT:· Yeah, just go ahead with the ·9· · · · caveat of try not to duplicate anything that 10· · · · Mr. Stuart covered. 11· · · · · · ·MR. COFFEY:· Right. 12· · ·BY MR. COFFEY 13· · · · Q.· ·And by the way, Doctor, you don't actually 14· ·know what kind of mitigation measures are actually 15· ·being implemented in the schools of Florida, do you? 16· · · · A.· ·I mean, I've reviewed some of the 17· ·documents that -- that -- about the mitigation 18· ·measures in several of the counties.· So that's not 19· ·true. 20· · · · Q.· ·Okay.· Well, let's just ask about 21· ·Martin County, for example. 22· · · · · · ·Martin County has been open a while.· Do 23· ·you know what the specific mitigation measures are? 24· · · · A.· ·I don't remember reviewing Martin County's 25· ·particulars.
0805 Page 619 ·1· · · · Q.· ·Okay.· And you're aware of the fact that ·2· ·virus was reported at JD Parker Elementary.· That's ·3· ·in Martin County, right? ·4· · · · A.· ·I was not aware of that particular ·5· ·elementary school.· I know that it has been reported ·6· ·in Florida schools -- or Florida kids. ·7· · · · Q.· ·And I think it's South Fork High School in ·8· ·Martin County; were you aware of that? ·9· · · · A.· ·Again, I'm not familiar with particular 10· ·schools being infected and, particularly, in 11· ·Martin County.· I did not review Martin County's 12· ·data in particular. 13· · · · · · ·I've looked at several other counties, 14· ·though. 15· · · · Q.· ·Okay.· What about Hobe Sound Elementary 16· ·School? 17· · · · A.· ·Are you going to keep asking about 18· ·Martin County? 19· · · · Q.· ·No.· You win. 20· · · · · · ·Any of those?· You don't actually know, do 21· ·you? 22· · · · A.· ·I mean, I did not review Martin County's 23· ·particular data about which schools and which of the 24· ·local -- I looked at the -- the plans in several 25· ·other counties where, you know, there -- it looks
0806 Page 620 ·1· ·like they're taking steps that are consistent with ·2· ·what the -- what the CDC says. ·3· · · · Q.· ·Okay.· But, I mean, you really can't give ·4· ·an opinion about the state of Florida, can you, in ·5· ·terms of mitigation measures? ·6· · · · A.· ·I can give you opinion about what I've ·7· ·reviewed, which is, I think, like -- I think ·8· ·Miami-Dade.· I've looked at Broward.· I've looked at ·9· ·a couple other counties that -- the plans that they 10· ·have in place for some of the mitigation actually 11· ·that they're doing, which looked, to me, consistent 12· ·with what the CDC is suggesting. 13· · · · Q.· ·Okay.· So back to Orange County.· Do you 14· ·know what distances they're going to have between 15· ·the desks in Orange County? 16· · · · A.· ·It looks like they're going to have 17· ·trouble getting the 6 feet in Orange County. 18· · · · Q.· ·And, in general, do you think students are 19· ·going to be -- or have you done any studies to 20· ·indicate that students will be highly disciplined 21· ·with respect to observing hygiene protocols? 22· · · · A.· ·I mean, I have no information either way. 23· · · · Q.· ·Yeah. 24· · · · A.· ·I don't think anyone really does at this 25· ·point.
0807 Page 621 ·1· · · · Q.· ·Would it surprise you to know that at ·2· ·least one psychologist who studies the age of ·3· ·adolescents, Laurence Steinberg, a professor at ·4· ·Temple University, published in the ·5· ·"New York Times", says that "The plans" -- he's ·6· ·referring to college-age -- "are so unrealistically ·7· ·optimistic that they border on delusional"? ·8· · · · · · ·Did that surprise you, that -- the opinion ·9· ·that it's very unrealistic to expect kids to follow 10· ·strict protocols? 11· · · · A.· ·He's talking about college-age kids.· It's 12· ·really difficult -- I can tell you from first-hand 13· ·experience, it's difficult to control the behavior, 14· ·especially outside the classroom. 15· · · · · · ·This is a different question, right? 16· · · · Q.· ·Yeah.· These are kids even younger, less 17· ·mature, right? 18· · · · A.· ·Well, I mean, they're in a classroom 19· ·setting with teachers that they presumably respect, 20· ·and in a -- in a setting where they're -- it's being 21· ·reinforced to them that it's for their health and 22· ·for the health of others, it's very important that 23· ·they follow the mitigation. 24· · · · · · ·I mean, I -- you know, can I guarantee 25· ·that everyone's going to follow in line with
0808 Page 622 ·1· ·everything?· I mean, obviously not.· But that's -- ·2· ·that's different than should you expect there are ·3· ·going to be widespread disobedience. ·4· · · · Q.· ·You talked about a Santa Clara study that ·5· ·you did. ·6· · · · A.· ·Yes.· You mean the seroprevalence study? ·7· · · · Q.· ·Yes. ·8· · · · · · ·And were you aware that there was a ·9· ·controversy as to whether the recruitment of 10· ·subjects for the study falsely claimed that it was 11· ·used in FDA-approved tests and that it would grant 12· ·the participants peace of mind to know that they are 13· ·immune? 14· · · · · · ·Are you aware of that? 15· · · · A.· ·We did not do that.· That was an 16· ·unofficial release by -- actually, unfortunately, by 17· ·my wife to her friends.· But not -- that was not 18· ·part of the recruiting material for the study. 19· ·That's false. 20· · · · Q.· ·That was just -- that was sent out 21· ·mistakenly by your wife; is that right? 22· · · · A.· ·To her friends, yeah, but not part of the 23· ·study. 24· · · · Q.· ·And there's another allegation that -- 25· ·about funding for the study and that it was
0809 Page 623 ·1· ·partially funded by Jet Blue airways founder David ·2· ·Neeleman.· Are you aware of that allegation? ·3· · · · A.· ·Yeah.· He funded $5,000 to Stanford ·4· ·University after the study was completed. ·5· · · · Q.· ·Okay.· So -- and Jet Blue, obviously, is ·6· ·very much in favor of avoiding lockdowns, right? ·7· · · · A.· ·I don't know.· Just in general.· I think ·8· ·Mr. Neeleman is -- I don't know how that's relevant ·9· ·to the study.· I mean, the study, we completed it 10· ·after he donated. 11· · · · Q.· ·Okay. 12· · · · A.· ·The Los Angeles County study.· I mean, 13· ·it's $5,000 that didn't fund -- it didn't fund the 14· ·vast bulk of the study. 15· · · · Q.· ·You were talking, and I think I can avoid 16· ·any duplication, but you were talking about CDC 17· ·criteria, and I think you're aware of the gating 18· ·criteria used by the CDC for reopening in general; 19· ·is that right? 20· · · · · · ·You're aware of the gating criteria? 21· · · · A.· ·Can you -- can you refresh my -- I want to 22· ·see what you're referring -- 23· · · · Q.· ·I don't know what exhibit it is.· Let me 24· ·just -- Exhibit 3.· And I'm looking at page 5. I 25· ·think it's page 5.
0810 Page 624 ·1· · · · A.· ·I -- I think I read this document. ·2· · · · Q.· ·Yeah.· But -- but -- ·3· · · · A.· ·Very phase specific.· Okay. ·4· · · · Q.· ·Yeah. ·5· · · · · · ·But it refers to Phase 1, "Downward ·6· ·trajectory for near-zero incidence of documented ·7· ·cases over a 14-day period." ·8· · · · · · ·Do you see that? ·9· · · · A.· ·Yeah, for ILI. 10· · · · Q.· ·Yeah. 11· · · · A.· ·Florida's met that criteria.· The ILI 12· ·rate's been going down for 14 days in Florida. 13· · · · Q.· ·Yeah. 14· · · · · · ·And what were the -- the trajectories on 15· ·July 6th, 2020, do you know? 16· · · · A.· ·I have to go review the numbers. 17· · · · Q.· ·Actually, the virus was going steadily 18· ·upward at that time, was it not? 19· · · · A.· ·It's possible.· I should go review the 20· ·numbers.· July 6th is a month and a half ago. 21· · · · Q.· ·Right. 22· · · · A.· ·I think it's going down now over the 23· ·last -- the last I looked, which was -- 24· · · · Q.· ·It's going down in every county, or do you 25· ·know?
0811 Page 625 ·1· · · · A.· ·I didn't track in every single county, but ·2· ·the -- the set of counties I looked at, they were ·3· ·going down.· The ILI numbers, anyways. ·4· · · · Q.· ·Now, you -- you have -- I believe you said ·5· ·you have reviewed -- Mr. Wells asked you a couple ·6· ·times about you have reviewed the order, the ·7· ·emergency order. ·8· · · · A.· ·The -- the 06 order.· I forget the ·9· ·designation.· But, yeah, I did. 10· · · · Q.· ·Yeah. 11· · · · · · ·MR. COFFEY:· Can we put that in front of 12· · · · the witness? 13· · ·BY MR. COFFEY 14· · · · Q.· ·Okay.· I just want to go to the second 15· ·page, Doctor. 16· · · · · · ·And going down to reopening requirements, 17· ·we see the language, "Subject to advice and orders 18· ·of the Florida Health Department, local departments 19· ·of health, executive order, and subsequent executive 20· ·orders." 21· · · · · · ·Do you see that language? 22· · · · A.· ·I'm sorry.· Where are you -- where exactly 23· ·are you looking? 24· · · · · · ·"Very limited waiver of statutes --" 25· · · · Q.· ·It's 1A, down to the bottom.
0812 Page 626 ·1· · · · A.· ·Oh, the opening funds.· All school open. ·2· · · · · · ·"Upon opening in August, all school board ·3· ·and charter boards must open brick-and-mortar ·4· ·schools at least five days a week for all students. ·5· ·Subject to advice and orders for Florida Department ·6· ·of Health, local departments of health, Executive ·7· ·Order 20-149, and subsequent executive orders." ·8· · · · Q.· ·Okay. ·9· · · · A.· ·"Absent these directives, the day-to-day 10· ·decision to open or close schools must always rest 11· ·locally with the board executive most closely." 12· · · · · · ·Yeah. 13· · · · Q.· ·Okay.· And in reviewing this document in 14· ·its entirety, did you see any objective criteria for 15· ·student safety? 16· · · · A.· ·I mean, what I saw was an emphasis on 17· ·local -- taking into account local conditions, which 18· ·is exactly what the CDC guidance suggests. 19· · · · Q.· ·And -- 20· · · · A.· ·It says -- also says "cooperation with 21· ·Florida Department of Health."· I mean, I think 22· ·the -- the order itself is entirely consistent. I 23· ·don't think it's spelled out every single detail -- 24· · · · Q.· ·Right. 25· · · · A.· ·-- if that's what you're asking me.
0813 Page 627 ·1· · · · Q.· ·And would it be reasonable to read the ·2· ·order and conclude that the health departments were ·3· ·going to provide recommendations and opinions with ·4· ·respect to the safety of reopening? ·5· · · · A.· ·I mean, that's -- that, of course, is a ·6· ·question of local versus state governance.· That's ·7· ·different than whether local conditions should be ·8· ·taken into account. ·9· · · · Q.· ·Okay. 10· · · · A.· ·This order says, "Local conditions should 11· ·be taken into account." 12· · · · Q.· ·Okay.· My question is -- my question -- 13· ·I'm going to state it again to see if you can answer 14· ·it. 15· · · · · · ·Would you agree that it's reasonable to 16· ·read that language and construe that the Florida 17· ·Department of Health and/or local health departments 18· ·would be providing opinions and recommendations over 19· ·whether it was safe to reopen? 20· · · · A.· ·I mean, I think it's certainly reasonable 21· ·to expect that local public health authorities would 22· ·provide their perspective, absolutely. 23· · · · Q.· ·Okay. 24· · · · · · ·MR. COFFEY:· I've got no further 25· · · · questions, Judge.
0814 Page 628 ·1· · · · · · ·THE COURT:· Redirect? ·2· · · · · · ·MR. WELLS:· Just briefly, Your Honor, if I ·3· · · · may. ·4· · · · · · · · · ·REDIRECT EXAMINATION ·5· · ·BY MR. WELLS ·6· · · · Q.· ·Doctor, in your opinion, is a preference ·7· ·for in-person instruction consistent with your ·8· ·20 years of research in public health and with your ·9· ·work on COVID-19 since March 9th? 10· · · · A.· ·Yeah, in-person instruction is far better 11· ·for students than online instruction.· You can't -- 12· ·it's very, very difficult, I think, especially for 13· ·young kids, to get effective learning through online 14· ·learning. 15· · · · Q.· ·Is that consistent with the CDC guidance 16· ·as well? 17· · · · A.· ·No, the CDC very, very strongly emphasizes 18· ·the need to reopen schools, the benefits of 19· ·reopening schools.· Not just with educational 20· ·reasons but also for the health of students 21· ·themselves. 22· · · · · · ·And you showed the document in the 23· ·original conversation we had on the -- the 24· ·schools -- the CDC says that for, you know, serves 25· ·at places where social development happens, where
0815 Page 629 ·1· ·nutrition -- you know, school breakfast, school ·2· ·lunch happens for psychological reasons, for a whole ·3· ·host of reasons, it's better to have kids in school ·4· ·than to not. ·5· · · · Q.· ·Okay.· And it's also consistent with what ·6· ·the World Health Organization has given on guidance ·7· ·in terms of reopening schools; is that right? ·8· · · · A.· ·Yeah, I mean, if you read their guidance, ·9· ·their bias is very strongly toward reopening. 10· · · · Q.· ·And is it consistent with decisions around 11· ·the world to reopen schools? 12· · · · A.· ·Yeah, it is.· I mean, schools have 13· ·reopened everywhere. 14· · · · Q.· ·You were asked -- I'm sorry. 15· · · · A.· ·No, I'm saying yes. 16· · · · · · ·So, like, in places that have seen rising 17· ·of the epidemic and other places, schools have 18· ·reopened; in Denmark, in France, in Germany, in 19· ·Finland, in Spain where there was a massive 20· ·epidemic.· All through Asia, we've seen schools 21· ·open. 22· · · · Q.· ·And the CDC, are you familiar with their 23· ·K1 -- or K through 12 guidelines for reopening 24· ·schools? 25· · · · A.· ·Yes.
0816 Page 630 ·1· · · · Q.· ·Okay.· And they provide a menu of things ·2· ·including wearing face masks, social distancing ·3· ·where you can, sanitizing, and the like.· Are you ·4· ·familiar with that? ·5· · · · A.· ·Yeah, and they say -- that's exactly what ·6· ·they say, they say you should use mitigation ·7· ·measures to make sure that reopening as safely as ·8· ·possible, consistent with local conditions. ·9· · · · Q.· ·And the experts of the CDC that were 10· ·writing that understood that they were writing to 11· ·schools going from K to 12 and that those were not 12· ·unreasonable or heroic types of procedures to use 13· ·for safety? 14· · · · A.· ·Yeah.· I mean, in fact, if I remember that 15· ·document, they are specifically talk about how to do 16· ·it for younger kids versus for older kids.· They 17· ·encompassed all of that. 18· · · · Q.· ·And you think it's unreasonable to believe 19· ·that these school districts can follow the menu of 20· ·mitigation factors that are available to them from 21· ·the CDC? 22· · · · A.· ·I mean, it would take a lot of evidence to 23· ·convince me that any school district in the United 24· ·States of America is not -- doesn't have the 25· ·capacity at all to follow any mitigation in the same
0817 Page 631 ·1· ·sense that the -- ·2· · · · · · ·So, for instance, in the United States, as ·3· ·far as I know, there's not schools with, you know, ·4· ·38 to 40 kids in a classroom like in that Israeli ·5· ·classroom. ·6· · · · Q.· ·Okay. ·7· · · · A.· ·You'd have to -- you -- now, if you show ·8· ·me evidence that a particular school doesn't have ·9· ·the capacity or doesn't have the funds or something, 10· ·like, really doesn't have the funds to meet -- do 11· ·mitigation, then, yeah, okay, I mean, I'll change my 12· ·mind for that school. 13· · · · · · ·But I think you should do it on a 14· ·case-by-case basis. 15· · · · Q.· ·And the mitigation factors aren't 16· ·necessarily all inclusive, are they?· There a series 17· ·of different ones that you can use? 18· · · · A.· ·Yeah. 19· · · · · · ·So, for instance, the CDC explicitly 20· ·recognizes this.· So they say, for instance, if you 21· ·can't socially distance, then you should wear masks. 22· ·They trade off the mitigation factors to allow 23· ·flexibility within the school district -- schools 24· ·themselves to say, okay, what's possible. 25· · · · · · ·And they look at -- holistically at it as
0818 Page 632 ·1· ·opposed to one number or one particular mitigation ·2· ·activity. ·3· · · · Q.· ·And based on your years of providing ·4· ·guidance and advice on what you're doing now with ·5· ·COVID, fair to say that it's a risk-based decision ·6· ·whether to open schools and different policy makers ·7· ·are going to draw the line differently? ·8· · · · A.· ·Yeah, it's a risk -- it is.· It's a ·9· ·risk-based decision.· There's no other choice. 10· ·There's no safe option.· Keeping the schools closed 11· ·is not safe.· Keeping the schools open poses risks 12· ·that we can mitigate. 13· · · · · · ·MR. WELLS:· Thank you.· No further 14· · · · questions. 15· · · · · · ·THE COURT:· Thank you, Dr. Bhattacharya. 16· · · · You are welcome to leave the meeting -- the 17· · · · hearing at this time. 18· · · · · · ·THE WITNESS:· Thank you, Judge. 19· · · · · · ·THE COURT:· Call your next witness. 20· · · · · · ·MR. WELLS:· Dr. Hopes should be our next 21· · · · witness, if he is able to log on.· We had -- 22· · · · · · ·THE COURT:· I think he's in the waiting 23· · · · room. 24· · · · · · ·MR. WELLS:· Awesome. 25· · · · · · ·THE COURT:· Okay.· Dr. Hopes, if you'd
0819 Page 633 ·1· · · · raise your right hand, please. ·2· · · · · · ·THE WITNESS:· Yes, sir. ·3· ·Thereupon: ·4· · · · · · · · · · · ·SCOTT HOPES ·5· ·having been sworn by the Court testified as follows: ·6· · · · · · ·THE WITNESS:· I so affirm. ·7· · · · · · ·THE COURT:· Thank you, sir.· You can put ·8· · · · your hand down. ·9· · · · · · ·THE WITNESS:· Thanks. 10· · · · · · · · · · DIRECT EXAMINATION 11· · ·BY MR. WELLS 12· · · · Q.· ·Tell us your name, sir. 13· · · · A.· ·Dr. Scott L. Hopes. 14· · · · Q.· ·Okay.· Dr. Hopes, what affiliation do you 15· ·have with the Manatee County School Board? 16· · · · A.· ·I'm a current member of the school board 17· ·and former chairman of the board. 18· · · · Q.· ·Okay.· And where are you right now? 19· · · · A.· ·I'm in AdventHealth Hospital in Tampa, 20· ·unfortunately. 21· · · · Q.· ·Okay.· Do you, nevertheless, agree to 22· ·testify here today? 23· · · · A.· ·I do. 24· · · · Q.· ·Okay.· Let's see.· Give us your 25· ·educational --
0820 Page 634 ·1· · · · · · ·MR. WELLS:· My chair keeps collapsing. ·2· · · · Excuse me, Your Honor. ·3· · · · A.· ·I have graduated from Bay County High ·4· ·School in Panama City.· I have a associate of arts ·5· ·from Gulf Coast State College, a bachelor of arts in ·6· ·interdisciplinary natural sciences with ·7· ·concentration in biology. ·8· · · · · · ·I have a master's of public health in ·9· ·epidemiology and biostatistics from the University 10· ·of South Florida, and I have a doctorate in business 11· ·administration from the University of South Florida. 12· · ·BY MR. WELLS 13· · · · Q.· ·Okay.· And what is your business? 14· · · · A.· ·My primary business in health care 15· ·consulting.· Company that I cofounded over 30 years 16· ·ago, serving hospitals, pharmaceutical industries, 17· ·and internationally. 18· · · · Q.· ·And what is your experience as an 19· ·epidemiologist? 20· · · · A.· ·I -- I was actually the second graduate of 21· ·epidemiology at the College of Public Health in 1985 22· ·after the legislature gave it degree-granting 23· ·status, and have served as an epidemiologist on 24· ·assignments in the state of Florida and pretty much 25· ·around the world.
0821 Page 635 ·1· · · · · · ·My first actual, what I would say, my ·2· ·first big task independently as an epidemiologist is ·3· ·Governor Bob Martinez, in the -- the mid '80s ·4· ·appointed me to assess AIDS in the Florida prison ·5· ·system. ·6· · · · · · ·At that time, I had, and still do, ·7· ·considerable amount of experience in the ·8· ·epidemiology and control of the spread of viral ·9· ·diseases, and so really have about 30 -- 30-plus 10· ·years, 35 years, as an epidemiologist ranging from 11· ·chronic diseases, as well as infectious diseases, 12· ·including the SARS class of virus that I was 13· ·involved in, in 2002, 2003, with the China Ministry 14· ·of Health and the World Health Organization's China 15· ·office. 16· · · · Q.· ·Have you served in any capacities in the 17· ·state of Florida in the health field? 18· · · · A.· ·Yes, sir.· Numerous.· I. 19· · · · · · ·Worked as a researcher at Tampa General 20· ·Hospital.· And then because of, really, my data 21· ·skills back in the '80s, I was promoted to evening 22· ·and night administrator at the age of 26.· I served 23· ·for little over -- around a year in the Ernst & 24· ·Whinney, then Ernst & Young, consulting practice in 25· ·their health care and planning and operations
0822 Page 636 ·1· ·practice. ·2· · · · · · ·I served as the bureau chief of ·3· ·Certificate of Need and Financial Analysis under ·4· ·Governor Jeb Bush and was actually the director of ·5· ·health policy under Governor Bush. ·6· · · · · · ·I teach both health care operations, ·7· ·epidemiology, quantitative analysis at Lake Erie ·8· ·College of Osteopathic Medicine, as well as the ·9· ·College of Business at USF. 10· · · · · · ·I've acquired my first hospital in Destin, 11· ·Florida, in 1994.· I've owned, operated hospitals, 12· ·health care facilities, then in the nursing home 13· ·business pretty.· Much my entire career has been 14· ·spent in businesses around health care and health 15· ·policy and epidemiology. 16· · · · Q.· ·Tell us about your involvement with 17· ·Manatee County school board.· How did that come 18· ·about? 19· · · · A.· ·So I was currently on the board of 20· ·trustees at University of South Florida where I had 21· ·been appointed by the governor and confirmed by the 22· ·senate from 2013 to 2017.· School district of 23· ·Manatee County had had a number of issues over the 24· ·year -- years, including financial issues and some 25· ·operational issues.
0823 Page 637 ·1· · · · · · ·And the governor asked me if I would ·2· ·consider going on that board and filling a vacancy ·3· ·and bringing my experience in education, not only as ·4· ·a substitute teacher from kindergarten through 12th, ·5· ·but I had also taught 8th and 9th grade science when ·6· ·I was finishing my -- writing up my research at the ·7· ·USF College of Medicine and Public Health. ·8· · · · · · ·And so I brought to that the opportunity ·9· ·to have someone that understood the higher education 10· ·system in Florida, as well as the K through 12 11· ·systems, and also being a product of Florida's 12· ·public education system, high school through 13· ·doctorate degrees. 14· · · · · · ·And so I resigned from the board of 15· ·trustees, as the Constitution requires, and was 16· ·appointed to the school board of Manatee County in 17· ·July of 2017.· I was elected chair of the board 18· ·unanimously in November of 2017, and then ran for 19· ·election in 2018 and was elected by the -- a 20· ·county-wide vote to a four-year term ending in 2022. 21· · · · Q.· ·Let me stop you there. 22· · · · · · ·What have your duties been as a chairman 23· ·and then member of the Manatee County school board? 24· · · · A.· ·Well, it's been probably broader than most 25· ·would be in that situation.· Being the chairman at
0824 Page 638 ·1· ·the time, there was -- there were a number of ·2· ·financial areas of concern which required me to be a ·3· ·little bit more engaged with the superintendent.· We ·4· ·had a change in CFOs. ·5· · · · · · ·It was also widely known that we were on ·6· ·track to have somewhat of a disaster with a ·7· ·$27 million ERP project.· One of my areas of ·8· ·expertise is in health care IT, and so that kind ·9· ·of -- we had a superintendent resign. 10· · · · · · ·We only had 30 days to find a new 11· ·superintendent.· And so the interim superintendent 12· ·and I built a pretty strong relationship in 13· ·keeping -- keeping the ship afloat, so to speak. 14· · · · Q.· ·Let me -- 15· · · · A.· ·And I -- when the shooting in Marjory 16· ·Stoneman Douglas occurred, had to move in, negotiate 17· ·with sheriff's department to get officers in.· And 18· ·then, of course, once we had the first case in 19· ·Florida of COVID-19, which was right here in Manatee 20· ·and Sarasota County, with that background, I got 21· ·quite involved in -- in helping -- in setting 22· ·policies and operating procedures around that. 23· · · · Q.· ·Okay.· Let me break this down a bit and I 24· ·appreciate your laying that out for me. 25· · · · · · ·So you were on the school board, correct
0825 Page 639 ·1· ·me if I'm wrong, when the recommendation came from ·2· ·the commissioner of the Department of Education to ·3· ·close the schools? ·4· · · · A.· ·Yes, sir. ·5· · · · Q.· ·And were you involved as a member of the ·6· ·school board in trying to effectuate that? ·7· · · · A.· ·Yes, absolutely. ·8· · · · Q.· ·Did you have involvement in planning or ·9· ·working to try to figure out how one goes from 10· ·teaching in a classroom one day to teaching remotely 11· ·the next day? 12· · · · A.· ·Without a doubt.· I've been very involved 13· ·in the whole technology infrastructure growth of the 14· ·district, which has served us well. 15· · · · Q.· ·And did Manatee County public schools go 16· ·from in-person to remote in March? 17· · · · A.· ·We absolutely did.· We had probably one of 18· ·the quickest transitions in the state because we had 19· ·already been -- had implemented a pretty robust 20· ·electronic platform. 21· · · · Q.· ·Okay.· How long -- strike that. 22· · · · · · ·And you stayed closed 'til the end of the 23· ·school year; am I right? 24· · · · A.· ·That's correct. 25· · · · Q.· ·How long after the -- the closure in March
0826 Page 640 ·1· ·did your school begin planning for the next year? ·2· · · · A.· ·I would say almost immediately.· I'm -- ·3· ·I'm the superintendent, and I had meetings with the ·4· ·county health department director, you know, knowing ·5· ·that the day was going to come that we were going to ·6· ·have to eventually welcome students back. ·7· · · · · · ·My experience with this virus is that it ·8· ·was going to be with us for quite some time. ·9· · · · Q.· ·So what did you, superintendent of Manatee 10· ·school board, do to work towards this concept of 11· ·reopening? 12· · · · A.· ·Well, first and foremost, because of the 13· ·experience that we had in the fourth quarter, we 14· ·were able to identify areas where we had gaps. 15· · · · · · ·We -- during the fourth quarter period, we 16· ·identified areas throughout the county where 17· ·internet service was available but children's 18· ·families did not access it for whatever reason, so 19· ·we began purchasing hotspots with service devices 20· ·that could be delivered to homes. 21· · · · · · ·We retrofitted a number of school buses to 22· ·have mobile WiFi and, in addition to that, we 23· ·identified really technology that had to be 24· ·purchased to give to students.· We have many 25· ·students who just don't have the financial resources
0827 Page 641 ·1· ·to have notebook computers and internet access. ·2· · · · · · ·So, really, during the spring quarter, we ·3· ·were already beginning to both plan and test ·4· ·different functions that we were going to be needed ·5· ·to -- do sustain learning through -- you know, ·6· ·through at least the summer because normally we ·7· ·would offer summer school.· And so we did find the ·8· ·need to have summer school classes for our -- our ·9· ·students that needed classroom, brick-and-mortar. 10· · · · · · ·They needed to be in front of a instructor 11· ·because they were -- they were rapidly falling 12· ·behind with eLearning. 13· · · · Q.· ·Okay.· Maybe if you can flesh that out. I 14· ·mean, what's your experience, what your exposure 15· ·was, what you saw in terms of student regression as 16· ·a result of eLearning notwithstanding those best 17· ·efforts? 18· · · · A.· ·Well, and I think -- and the best example 19· ·is that critical period from kindergarten to 3rd 20· ·grade and 3rd grade reading level achievement.· And 21· ·I will tell you that's the one reason why I 22· ·determined that I absolutely would take the 23· ·governor's offer and go to the school district 24· ·because in Manatee County, at the time, we had, I 25· ·think, 53 or 54 percent of our 3rd graders before I
0828 Page 642 ·1· ·went on the board were not reading at grade level. ·2· · · · · · ·And so I had been involved in the Suncoast ·3· ·coalition for grade-level reading, and so the ·4· ·biggest problem that we found in the eLearning ·5· ·period during the last quarter is that it were those ·6· ·children that were most at risk of both the summer ·7· ·slide, which is where they're not in front of an ·8· ·instructor for nearly three months, and don't have ·9· ·the resources, do not have a college-educated parent 10· ·at home, and in many cases are living with 11· ·grandparents. 12· · · · · · ·And so we were already seeing that at 13· ·certain grade levels, especially at the elementary 14· ·level, the children were not logging in. 15· · · · · · ·When we first went to eLearning, we had 16· ·real high compliance rate with it and what we found 17· ·is -- that indeed what our assumption was held true, 18· ·is those children, you know, our migrant -- children 19· ·of migrant families, our Title I students that are 20· ·living under the federal poverty guideline, that we 21· ·have to ensure that they get nutrition, those were 22· ·the students that were not able to effectively 23· ·even -- even maintain their academic standing, more 24· ·or less progress under eLearning.· And so we really 25· ·needed to focus on that.
0829 Page 643 ·1· · · · · · ·So that's why, you know, I mentioned that ·2· ·we really started planning for how we could reopen ·3· ·schools, because we saw -- you know, we have worked ·4· ·very hard.· Our district, how we graded the district ·5· ·this year, we would have been an A district for the ·6· ·first time in the history of the district. ·7· · · · · · ·Our 3rd-grade reading level had come up ·8· ·and, quite frankly, that had been one of my goals ·9· ·and the superintendent's goals.· And so we had to 10· ·identify how, regardless of this pandemic, you know, 11· ·we were not going to lose the gains that we had 12· ·achieved for -- for -- 13· · · · Q.· ·Let me stop you -- stop your narrative now 14· ·and try to move a little bit. 15· · · · · · ·So during the period of time in March, 16· ·April when you're working on the remote learning, 17· ·were you also evaluating how you might ever go back 18· ·to in-person education? 19· · · · A.· ·Yes, absolutely.· Absolutely. 20· · · · · · ·As I mentioned, we've been working closely 21· ·with the health department in identifying how we 22· ·could minimize the risk of infection and get these 23· ·children in a classroom and we tried it out in the 24· ·summer. 25· · · · Q.· ·When did you -- when did you --
0830 Page 644 ·1· · · · A.· ·Pardon me? ·2· · · · Q.· ·When did you start that planning on, okay, ·3· ·what do we need to do to come back safely? ·4· · · · A.· ·I would say probably late March, mid ·5· ·April. ·6· · · · Q.· ·And then you talk about testing it some in ·7· ·the summer.· How did you do that? ·8· · · · A.· ·We did.· We actually identified, as I ·9· ·mentioned, students that were at the greatest risk 10· ·based on their prior performance, and based on, you 11· ·know, their status with regards to compliance and 12· ·logging in with eLearning. 13· · · · · · ·So we had a number of elementary schools 14· ·and some middle schools where we brought in small 15· ·cohort students of ten or less, a teacher.· We had a 16· ·mask policy and additional precautions.· Teachers 17· ·wore a mask and shields.· And this is long before, 18· ·you know, reopening the schools this past Monday. 19· · · · · · ·And -- and we had a plan coordinated with 20· ·the health department on how we would deal with 21· ·screening these students.· So we actually had -- I 22· ·want to say probably 400 students in small cohorts 23· ·in a number of schools in the district this summer 24· ·to get them in and get them evaluated and continue 25· ·their learning in brick-and-mortar, because those
0831 Page 645 ·1· ·students were not learning at the rate we thought ·2· ·they should be under eLearning in the prior quarter. ·3· · · · Q.· ·Did you leverage that any in terms of ·4· ·trying to look at opening up brick-and-mortar for a ·5· ·broader group of students? ·6· · · · A.· ·Oh, absolutely.· I mean, that's what it ·7· ·was for. ·8· · · · · · ·You know -- you know, in planning, you ·9· ·know, planning is great.· You put it on paper, but 10· ·you really don't know where you may have missed 11· ·something until you put it in action. 12· · · · · · ·And a perfect example are the parents who 13· ·said, "Oh, our child won't be able to wear a mask." 14· ·We've got videos out there.· In fact, it was on 15· ·"Good Morning, America" of young elementary children 16· ·that were able to wear a mask in a classroom the 17· ·entire day. 18· · · · Q.· ·Did you have a program or a project around 19· ·the mask education? 20· · · · A.· ·We absolutely did. 21· · · · · · ·We -- you know, as -- as -- and I can't 22· ·remember the date but it was around the time that 23· ·the commissioner issued the executive order, we had 24· ·a survey that we developed with the health 25· ·department and the school district to survey parents
0832 Page 646 ·1· ·to determine what did the community want.· Parents, ·2· ·businesses, with regards to opening schools.· And an ·3· ·overwhelming majority of respondents -- over 21,000 ·4· ·people responded to the survey with a number of ·5· ·questions but over 21,000 people responded and a ·6· ·majority wanted schools to open five days a week in ·7· ·the fall. ·8· · · · Q.· ·And how did you and the school board, the ·9· ·school superintendent, move forward to figure out if 10· ·you could do that in a way that would be safe for 11· ·your teachers, your staff, and your students? 12· · · · A.· ·As the CDC began to put out guidance for 13· ·schools and reopening schools and operating 14· ·schooling, we worked with the -- the director of the 15· ·health department and her team. 16· · · · · · ·Because of that response, and because of 17· ·the guidance at the time, we felt that we could 18· ·minimize the risk of spread of the disease and we 19· ·actually leveraged the -- the community's desire to 20· ·open schools to come together with a Mask-up Manatee 21· ·Coalition which included the health department, the 22· ·school district, and the county. 23· · · · · · ·The county passed a resolution on -- on 24· ·masks and social distancing, and we -- we laid out 25· ·that campaign, and so we got the community to
0833 Page 647 ·1· ·actually come into compliance with CDC guidelines in ·2· ·preparation for opening our schools on August 17th. ·3· · · · Q.· ·So you mentioned the emergency order, ·4· ·Emergency Order No. 6 that we're here about.· How ·5· ·did you receive that?· I don't mean how did you get ·6· ·it but what was your reaction to that order? ·7· · · · A.· ·Well, you know, the initial reaction when ·8· ·I read the first paragraph was a little bit of a ·9· ·shock.· Commissioner Corcoran's a great friend of 10· ·mine.· But then I stood back and I read the entire 11· ·document and I read it twice. 12· · · · · · ·And really I got to say I found it -- I 13· ·found it to be, you know, artistic and brilliant at 14· ·the same time because it made clear what we already 15· ·knew as a district in analyzing our -- our students' 16· ·performance that we really did need to be able to 17· ·offer five-day-a-week learning in -- in our schools 18· ·in front of an educator. 19· · · · · · ·And it also allowed for the localization 20· ·and to work with the health department to figure 21· ·what worked best for the community. 22· · · · · · ·So we saw it as guidance, and we also saw 23· ·it as being in alignment, you know, with our own 24· ·thinking of the needs of our students in 25· ·Manatee County.· It provided four options.· It
0834 Page 648 ·1· ·provided for a parent choice.· And so that's how we ·2· ·began to finalize the -- the planning that we had ·3· ·done for our -- our three modalities. ·4· · · · Q.· ·And when you say your "three modalities," ·5· ·what are you talking about in Manatee County? ·6· · · · A.· ·Well, Manatee -- the modalities that are ·7· ·lined with the CDC's guidance, the most recent ·8· ·guidance in August 11th, where the lowest risk, the ·9· ·lowest risk to the school population is eLearning. 10· ·Moderate risk is what we referred to as the hybrid 11· ·model that we developed where students would be in 12· ·class two days a week, three days online.· And the 13· ·highest risk are those students that are -- are in 14· ·the schools, brick-and-mortar, five days a week. 15· · · · · · ·And when you look, let's take the highest 16· ·risk.· You know, in creating health care policy -- 17· ·and this has a lot to do with health care policy 18· ·and, as I mentioned, you know, I was the director of 19· ·that for the entire state of Florida -- you have to 20· ·measure risk versus benefit. 21· · · · · · ·And with regards to the five-day-a-week 22· ·option, as I discussed, we identified a very 23· ·significant population of our students, our learners 24· ·in Manatee County, that the -- the benefits, the 25· ·benefits of being in a classroom, in front of an
0835 Page 649 ·1· ·educator, getting the nutrition they need because ·2· ·they rely on us for breakfast and lunch, and to have ·3· ·that -- that contact with the school for not only ·4· ·academic development, but also emotional and ·5· ·develop -- you know, emotional developments as well. ·6· · · · Q.· ·Okay. ·7· · · · A.· ·And so that's what we -- we found that ·8· ·indeed, the -- the July 6th order provided us with ·9· ·that level of flexibility.· And so that's how we 10· ·built the plan. 11· · · · Q.· ·Okay.· Did it provide any flexibility with 12· ·respect to funding? 13· · · · A.· ·Yeah, it did. 14· · · · · · ·I mean, you know, we -- we found with the 15· ·CARES funding and other funding that as expensive as 16· ·it has been in doing this, so far it looks like 17· ·between our reserves that we've been maintaining 18· ·because of our financial health and -- and the 19· ·offer -- I will tell you I don't know how many -- I 20· ·think hundreds of thousands of masks and other PPE 21· ·supplies that we've gotten from the state, as well 22· ·as the federal government, to help us implement our 23· ·plan with regards to adequate, you know, personal 24· ·protective equipment for both our educators as well 25· ·as our support personnel and students.
0836 Page 650 ·1· · · · · · ·Our schools ordered two masks for every ·2· ·student.· Ordered face shields for students.· We -- ·3· ·we used our technical college to help us build ·4· ·plexiglass and acrylic barriers so that we could ·5· ·create built-in splash guards for students to ·6· ·maintain a separation. ·7· · · · · · ·And so in actually putting to test the ·8· ·July 6th order, we discovered that we were able to ·9· ·build a very robust plan for reopening our schools. 10· ·I think we were one of the first to apply for 11· ·approval of our plan, based on our own board's 12· ·approval.· And we did receive approval by the 13· ·commissioner to move forward and implement our plan, 14· ·and, August 17th, we did just that and we welcomed 15· ·back over 50,000 students in Manatee County. 16· · · · Q.· ·Well, let me ask you this, before we get 17· ·to your actual plan going on: 18· · · · · · ·Did you do anything as you and the 19· ·superintendent, school board, were pulling these 20· ·ideas together to involve your -- your parents and 21· ·community and your teachers trying to understand 22· ·what might be the best thing to do? 23· · · · A.· ·Absolutely. 24· · · · · · ·As I mentioned, you know, we had the 25· ·survey.· We collected a tremendous amount of data
0837 Page 651 ·1· ·from that.· Our strategic planning committee, ·2· ·including the superintendent, went out and met with ·3· ·community leaders, community members, church ·4· ·leaders.· We have a pretty strong coalition of ·5· ·pastors that represent their communities. ·6· · · · · · ·And we really built this as a community, ·7· ·as I mentioned, and that was critical.· Because ·8· ·without the community coming together in support of ·9· ·that plan, and also in support of the Mask-up 10· ·Manatee, I did not feel we would have an adequate 11· ·chance of success. 12· · · · · · ·But we found that the community, when they 13· ·were engaged at all levels, including parent -- 14· ·parent-teacher organizations, and -- and educators 15· ·and retired educators, that wanted to help, we were 16· ·able to really bring things together, in my opinion. 17· · · · Q.· ·How did you involve your teachers in this 18· ·process and make sure you -- 19· · · · A.· ·At multiple levels. 20· · · · · · ·We obviously started with Pat Barber, who 21· ·is the director of the Manatee Education 22· ·Association, our local teachers union.· And she was 23· ·very much, including her board, were very much an 24· ·integral part from the beginning of developing our 25· ·reopening plans and we had their support.
0838 Page 652 ·1· · · · Q.· ·Okay.· Did you do anything in terms of ·2· ·live instruction plans to work with your school ·3· ·board members and help them understand what was ·4· ·going on? ·5· · · · A.· ·We did.· We had numerous, numerous ·6· ·workshops which, of course, you know, while being ·7· ·electronic, they were -- we were delivered through ·8· ·our numerous platforms to the community. ·9· · · · · · ·All of our workshop meetings were on two 10· ·different cable companies' delivery, live on the 11· ·internet.· And then we recorded all the meetings for 12· ·the community to -- to be educated at the same time 13· ·as the board was being educated. 14· · · · · · ·We had the director of the health 15· ·department and her team come to the board for a 16· ·workshop where we brainstormed a lot of this in 17· ·public. 18· · · · Q.· ·Did you avail yourself of any of the 19· ·resources from the Department of Education? 20· · · · A.· ·Yes, we did.· We did.· Throughout the 21· ·entire process, and the Department of Education had 22· ·a frequent, frequent calls with superintendents and 23· ·at times I participated in those calls.· We have a 24· ·board member that is assigned to the Florida School 25· ·Board Association.· The Florida School Board
0839 Page 653 ·1· ·Association had numerous workshops and conference ·2· ·calls with school board members. ·3· · · · · · ·So while the -- the Florida association of ·4· ·school superintendents was -- FADSS was having their ·5· ·workshops, the commissioner of education and his ·6· ·chancellor had workshops with superintendents.· And ·7· ·so it was at a multilevel approach to ensure that we ·8· ·were covering as many of the bases, the board, the ·9· ·policy makers, who were responsible for allocating 10· ·the resources to effectively implement these plans. 11· · · · · · ·So it was -- you know, as far as 12· ·Manatee County was concerned, I felt that we brought 13· ·together all of the partners and parties that were 14· ·needed to successfully open -- reopen schools but 15· ·more importantly to keep them open. 16· · · · Q.· ·Okay.· Did you do anything to manage your 17· ·response to the COVID-19 pandemic? 18· · · · A.· ·I'm sorry? 19· · · · Q.· ·Terrible question. 20· · · · A.· ·Rephrase it. 21· · · · Q.· ·I'll do it this way.· Did you establish a 22· ·district operations center? 23· · · · A.· ·Yes, we absolutely did. 24· · · · · · ·As part of this, and being an 25· ·epidemiologist, early on, early on, we had
0840 Page 654 ·1· ·non-health care individuals identifying our -- our ·2· ·quarantining and self-isolation.· And so we were ·3· ·fortunate with our relationship.· We opened a ·4· ·command center.· The Manatee County Health ·5· ·Department, part of the State's Department ·6· ·of Health, assigned a full-time epidemiologist to us ·7· ·that is housed and based at our school board office. ·8· · · · · · ·The health department gave us the director ·9· ·of the school nurses for the nurses in our county 10· ·part -- half of the nurses are employed by the 11· ·district, half by the health department. 12· · · · · · ·So we had an exceptional nursing 13· ·practitioner resource, as well as our attorney risk 14· ·manager and our health and safety directors are all 15· ·in -- in one location with social distancing, in the 16· ·district.· And that -- that command center receives 17· ·information from the health department, and they 18· ·give information to the health department. 19· · · · · · ·So when the health department, independent 20· ·of the district, through their contact tracing, 21· ·identifies a student that's part of the family, we 22· ·get that name immediately.· And we also implemented 23· ·electronic sign-on under our school buses. 24· · · · · · ·So when we get information from the health 25· ·department that these children of school-age are in
0841 Page 655 ·1· ·families that have a positive case, when that child ·2· ·scans their ID on the school bus, we know that that ·3· ·child should not be entering school. ·4· · · · · · ·And, in fact, we've already had the ·5· ·experience on Tuesday with being able to capture, in ·6· ·essence, and identify a student that is -- is ·7· ·at-risk because of contact based on the health ·8· ·department and we were able to contain that student. ·9· ·Each school has an isolation room for that purpose 10· ·and we're able to minimize that student case contact 11· ·with other students. 12· · · · · · ·Likewise, when we get notified from any 13· ·one of our schools that we have an employee or a 14· ·student that has symptoms, it get reported to the 15· ·command center.· The command center, having the 16· ·epidemiologist from the health department right 17· ·there, immediately does contact tracing and 18· ·determines the next course of action. 19· · · · Q.· ·Okay.· These measures that you've done in 20· ·terms of working with the community, working with 21· ·the Department of Health, the DOE, and your 22· ·teachers, is that something that only Manatee County 23· ·can do? 24· · · · · · ·I mean, in your opinion, is that something 25· ·that can be done by each of the school districts?
0842 Page 656 ·1· · · · A.· ·I think it can.· You know, with the ·2· ·resources. ·3· · · · · · ·I think Manatee County, you know, had a ·4· ·head start.· You know, I'm there, so I -- I knew to ·5· ·anticipate this, but never in my dreams did I ever ·6· ·think that I when I decided to focus on -- on ·7· ·education, did I think that this experience would -- ·8· ·would have the impact that it's had.· But, no, I do ·9· ·believe so. 10· · · · · · ·Now, each county's going to be different. 11· ·There will be different resource needs.· But -- but 12· ·absolutely.· What we have seen, because now we've 13· ·had the opportunity at numerous stages from spring 14· ·break all the way through summer school and -- in 15· ·testing our strategy, and -- and with the opening 16· ·week.· We're now in day four of -- of opening. 17· · · · · · ·I think we're probably one of the largest 18· ·districts in the state to reopen our schools, and I 19· ·have to admit, I've been surprised myself.· You 20· ·know, even from the hospital bed, I get reports and 21· ·the superintendent and I speak multiple times during 22· ·the day, and I just -- I can't be more proud of -- 23· ·of our district, our community, our parents, and our 24· ·students. 25· · · · Q.· ·What has been the reaction of your
0843 Page 657 ·1· ·teachers, parents, and students to the reopening? ·2· · · · A.· ·Well, based on the reduction of the emails ·3· ·that I've been getting, the board members were, of ·4· ·course, bombarded.· Of course, we had teachers that ·5· ·were concerned, I understand that.· We have teachers ·6· ·that are at risk.· The superintendent and I and ·7· ·other board members we all, we all, went and visited ·8· ·schools and talked with teachers and talked with ·9· ·principals well before this opening to -- to get a 10· ·better understanding of both the climate and the 11· ·culture and also for reassurances. 12· · · · · · ·And, especially, in some of our special 13· ·needs classrooms.· I personally worked with the 14· ·classroom educator in pairs to, number one, better 15· ·understand the virus, better understand how it 16· ·spreads, what their risks were, and how we could 17· ·minimize that risk just as if they were a worker in 18· ·a hospital. 19· · · · Q.· ·What have you done, if anything, to work 20· ·with in trying to accommodate teachers that this may 21· ·be a problem? 22· · · · A.· ·Well, I think I -- I would say the best 23· ·example I had received an email -- all the board 24· ·members received the same email from a teacher that 25· ·teachers in the I&D, you know, classroom for the,
0844 Page 658 ·1· ·you know, intellectually, you know, developmentally ·2· ·delayed.· And I immediately realized from my ·3· ·experience with cerebral palsy nursery that we ·4· ·needed to give this teacher some attention. ·5· · · · · · ·And so I went.· I had a conversation with ·6· ·her by phone and the superintendent and I went ·7· ·together.· And -- and we walked through her ·8· ·classroom.· We had a talk with her about her ·9· ·children. 10· · · · · · ·THE WITNESS:· And, Your Honor, just to put 11· · · · it in perspective, in this classroom this is a 12· · · · K through 5 -- K through 5th grade classroom, 13· · · · and the children in that classroom are 14· · · · functioning developmentally and intellectually 15· · · · at an 18-month-old to 24-month-old level. 16· · · · These children, you know, are pretty much still 17· · · · in diapers.· They need assistance in learning 18· · · · how to eat. 19· · · · · · ·And so that -- that time in that 20· · · · classroom, five days a week, is critical for 21· · · · these children to be able to reach their 22· · · · greatest potential.· And we came up with a plan 23· · · · that that teacher felt safer with, with regards 24· · · · to -- going all the way down to the level of 25· · · · clothing, to provide scrubs with laundry
0845 Page 659 ·1· · · · service, so that she had a fresh clothes to ·2· · · · wear when she's teaching that are comfortable, ·3· · · · that fit the -- the work that she and her ·4· · · · teacher's aide does and then she can take those ·5· · · · clothes off in a separate room, take those ·6· · · · shoes off, and when she leaves the school and ·7· · · · goes home, she knows she's not take anything ·8· · · · with her. ·9· · · · · · ·And that was important to her because her 10· · · · 66-year-old mother cares for her three and a 11· · · · half year old while she's at work and she has a 12· · · · father that just, you know, finished 13· · · · chemotherapy for cancer.· And that made all the 14· · · · difference in the world for that teacher to 15· · · · know that we've given it thought, that we've 16· · · · brought in some expertise, and that we're there 17· · · · to meet her needs because she really wants to 18· · · · be in that classroom for those children. 19· · ·BY MR. WELLS 20· · · · Q.· ·Did you do anything to provide additional 21· ·training or additional time for teachers to train to 22· ·get ready for this opening in this new world? 23· · · · A.· ·We did.· And that was -- and that was 24· ·based on the communication level that I think our 25· ·board has with our classroom educators.
0846 Page 660 ·1· · · · · · ·And our response was to -- to actually ·2· ·push the start of the school year from the 10th to ·3· ·the 17th and use that additional week for additional ·4· ·in-service, in training for our teachers and staff; ·5· ·but, as importantly, to do the -- the most that we ·6· ·could to -- to use that opportunity for teachers to ·7· ·identify potential problems, and work with the ·8· ·administration to develop solutions. ·9· · · · · · ·And -- and so a lot came out of it.· In 10· ·that extra time, we were able to also, you know, 11· ·share with all of the staff, more importantly the 12· ·teachers, you know what our disinfecting protocols 13· ·are, what materials we're using.· You know, what -- 14· ·what happens when their classroom is fogged at night 15· ·with regards to, you know, basically, you know, 16· ·decontamination, or -- or the like.· So it was -- it 17· ·was valuable. 18· · · · Q.· ·Thank you. 19· · · · · · ·In your view, as a board member, was a mid 20· ·August return important for your students? 21· · · · A.· ·It was.· And I'll tell you, I mean, 22· ·that's -- that's -- you know, that's one of the 23· ·reasons why I pushed back with regards to pushing 24· ·out any further. 25· · · · · · ·First of all, two or three weeks with a
0847 Page 661 ·1· ·disease like this, with a virus, was not going to ·2· ·make any difference.· And what was critical for us ·3· ·is remembering that these children had not been in ·4· ·front of a teacher, had not been in a school, for ·5· ·almost 180 days.· I think 177 days that they have ·6· ·not been in a school.· They have not had contact ·7· ·with a teacher.· The teachers did not even know what ·8· ·level they were at and what happened over the ·9· ·summer. 10· · · · · · ·So we felt it was important, and I 11· ·certainly strongly feel, that we needed to get as 12· ·many children into the schools as possible to -- to 13· ·evaluate where they were academically, emotionally, 14· ·and developmentally, and, as important, to identify 15· ·what are their needs at home with regards to 16· ·technology. 17· · · · · · ·We bought additional thousand hotspots. 18· ·Where do we need to deploy those hotspots so those 19· ·children have access to the internet and the 20· ·school's information systems? 21· · · · · · ·And, you know, take a family of four.· In 22· ·order for them to participate, even if they're in 23· ·eLearning or a hybrid, they all have to have devices 24· ·because they're all going to different classes at 25· ·the same time.· So I don't know how many tens of
0848 Page 662 ·1· ·thousands of Chromebooks and notebooks that we've ·2· ·purchased, inventoried, and had ready on the first ·3· ·day of school to issue to those students. ·4· · · · · · ·One of the biggest reasons is Labor Day ·5· ·weekend.· On Memorial weekend, we saw a surge in ·6· ·cases two weeks after Memorial weekend.· Fourth of ·7· ·July weekend, saw a huge surge of cases that went on ·8· ·and is still going on. ·9· · · · · · ·Labor Day weekend, if people let down 10· ·their guard and we have to intermittently transition 11· ·students to eLearning for a short period of time, we 12· ·will now be prepared because they spent these two or 13· ·three weeks before Labor Day weekend being assessed, 14· ·being put in the right classes, the right courses, 15· ·assigned to the right teachers, and we've sent them 16· ·home with the materials they need to continue their 17· ·learning in that environment. 18· · · · · · ·And I was convinced if we did not do that, 19· ·if we did not do that before Labor Day weekend, we 20· ·would be in a situation where we would be at the 21· ·level we were at during spring break, which was not 22· ·the best -- you know, that was an emergency 23· ·situation.· This is not an emergency.· We've had 24· ·time to plan. 25· · · · Q.· ·And do you have protocols in place to deal
0849 Page 663 ·1· ·with checking students out as they come back after ·2· ·Labor Day weekend, checking staff? ·3· · · · A.· ·Absolutely. ·4· · · · Q.· ·What -- ·5· · · · A.· ·Absolutely.· And we do that today.· All ·6· ·staff -- all staff have to go through a checklist in ·7· ·the morning, a series of questions that are from the ·8· ·CDC guidance to help assess, you know, whether they ·9· ·possibly could have been exposed, and they have to 10· ·make an attestation. 11· · · · · · ·In addition, we have an assessment tool, 12· ·screening tool, for students and it's already proven 13· ·to be helpful. 14· · · · · · ·And so every day, all students, all 15· ·employees in the district, go through this -- this, 16· ·basically, daily survey which is really an 17· ·evaluation of risk before they actually enter -- 18· ·enter their job site or their classroom.· And that 19· ·will be the process coming in after Labor Day as 20· ·well.· Everything from have you traveled, et cetera. 21· · · · · · ·So that -- so that we can -- as I said, 22· ·this is all about -- you know, nothing's risk free 23· ·but we can take a number of steps to help reduce 24· ·that risk so that our children can continue their 25· ·academic progress.
0850 Page 664 ·1· · · · · · ·MR. WELLS:· Let me put up -- can you put ·2· · · · up the plan, please. ·3· · ·BY MR. WELLS ·4· · · · Q.· ·Want to get you to identify the 2020-21 ·5· ·Florida Optional Innovative Reopening Plan for ·6· ·Manatee County.· Are you familiar with this? ·7· · · · A.· ·Yes, sir.· I think I voted to approve it. ·8· · · · Q.· ·And this was the plan that was the result ·9· ·of all the work that you've talked about? 10· · · · A.· ·Yes, sir. 11· · · · Q.· ·And it provided -- I think you told me 12· ·three separate options for education? 13· · · · A.· ·Yes, three different options, modalities. 14· · · · Q.· ·And have you had parents that have 15· ·selected each -- in other words, there are students 16· ·that are in each modality? 17· · · · A.· ·Yes, sir, there are. 18· · · · Q.· ·Okay. 19· · · · · · ·MR. WELLS:· Can you pull up Exhibit 25? 20· · · · You can put that down and pull up Exhibit 25. 21· · ·BY MR. WELLS 22· · · · Q.· ·And did you, in your group, prepare 23· ·information lists on your district operation centers 24· ·and in flow charts and checklists to be available 25· ·for the parents and for the teachers?
0851 Page 665 ·1· · · · A.· ·Yes, we did.· I think this is -- yeah, for ·2· ·the district operating center, absolutely. ·3· · · · Q.· ·We're going to scroll down.· This goes on ·4· ·for several pages of documents and just keep going. ·5· ·And I'm just going to ask you why all this was put ·6· ·together. ·7· · · · A.· ·Well, first of all, it was an important ·8· ·communication tool.· But, more importantly, you ·9· ·know, that is -- that's kind of like the heart and 10· ·the soul of our overall strategy and operating 11· ·guidelines to prepare for and safely open our 12· ·schools and, if we follow these guidelines, we're 13· ·going to be in the best position to continue 14· ·operations throughout this pandemic. 15· · · · Q.· ·And I put up Back-to-School Checklist For 16· ·Parents and Students. 17· · · · · · ·What is it and why did you go about doing 18· ·that? 19· · · · A.· ·It's a little bit different from years 20· ·past, I have to admit. 21· · · · · · ·Again, it's all communication.· And it's 22· ·also an education piece.· And so that in -- in 23· ·putting it in this kind of format, it already gets 24· ·our parents and our students thinking.· Each 25· ·principal was assigned the responsibility for
0852 Page 666 ·1· ·reaching out to every parent before school started, ·2· ·and to go through this information with them. ·3· · · · · · ·MR. WELLS:· You can take that down. ·4· · ·BY MR. WELLS ·5· · · · Q.· ·Let me conclude this way.· You told us a ·6· ·few minutes there's no risk-free way of dealing with ·7· ·going back to school in this COVID time, correct? ·8· · · · A.· ·Correct.· Yes, sir. ·9· · · · Q.· ·And do you believe that the plan that you 10· ·have put together and you're implementing is the 11· ·best compromise between in-person education and the 12· ·risks associated with COVID-19? 13· · · · A.· ·Yes, sir. 14· · · · Q.· ·Okay.· Let me ask you this:· Are you going 15· ·to be -- or have you -- are you set up to continue 16· ·to share your work on a webinar for all school 17· ·districts? 18· · · · A.· ·Yes, absolutely. 19· · · · Q.· ·Okay.· And so it would be sharing the same 20· ·information that's out there, okay. 21· · · · A.· ·It is.· I know a number of districts have 22· ·solicited from the superintendent and have been 23· ·talking with her about it, to use it as a model in 24· ·their district. 25· · · · · · ·MR. WELLS:· Thank you.
0853 Page 667 ·1· · · · · · ·No further questions, Your Honor. ·2· · · · · · ·THE COURT:· Let's take a ten-minute break ·3· · · · before we start with the cross on Dr. Hopes. ·4· · · · Be in recess for ten minutes. ·5· · · · · · ·(Recess from 1:51 p.m. to 2:03 p.m.) ·6· · · · · · ·THE COURT:· Everybody ready to start back ·7· · · · with cross of Dr. Hopes? ·8· · · · · · ·MR. COFFEY:· Yes, Your Honor.· Kendall ·9· · · · Coffey for the plaintiffs, including the 10· · · · teachers. 11· · · · · · ·THE COURT:· All right, sir.· You may 12· · · · proceed. 13· · · · · · ·MR. COFFEY:· Okay.· Thank you, Your Honor. 14· · · · · · · · · · CROSS EXAMINATION 15· · ·BY MR. COFFEY 16· · · · Q.· ·Good afternoon, Dr. Hopes.· I hope you're 17· ·feeling better.· You had a surgical procedure 18· ·yesterday morning; is that right? 19· · · · A.· ·Yes, I had a small procedure this morning 20· ·but it's a lot better than it was yesterday and 21· ·better than it was the day before. 22· · · · Q.· ·Okay.· Just curious, when were you first 23· ·contacted by the State defendants about being a 24· ·witness in this case? 25· · · · A.· ·I think it was either Sunday or Monday.
0854 Page 668 ·1· · · · Q.· ·Yeah.· You know, I spoke to you Sunday, ·2· ·right?· You remember that?· And I -- ·3· · · · A.· ·Yes, sir. ·4· · · · Q.· ·-- spoke to you Monday.· You didn't ·5· ·mention that you expected to be a witness for the ·6· ·State, right? ·7· · · · A.· ·I did not.· I let you know that the State ·8· ·had been in touch with me. ·9· · · · Q.· ·Yeah.· And in fact -- 10· · · · A.· ·When we had that conversation, I informed 11· ·you that I had conversations with their counsel and 12· ·that -- that I would not be able to discuss the case 13· ·with you because I had not -- I was going to read 14· ·the complaint.· That's correct. 15· · · · Q.· ·Yeah.· Well, let's go through it a little 16· ·bit. 17· · · · · · ·I spoke to you Sunday.· And you said you 18· ·had a lot of problems with what the State was doing. 19· ·And, in fact, in one of our conversations, you said 20· ·that you didn't think that the State was going about 21· ·it the right way and they really should spend the 22· ·next few months getting it right and then open for 23· ·in-class education by -- beginning of the new year. 24· ·Do you remember telling me that? 25· · · · A.· ·No, that -- that is absolutely not what I
0855 Page 669 ·1· ·said. ·2· · · · Q.· ·Okay.· Okay.· And do you remember telling ·3· ·Pat Barber, the head of the teachers, that you -- ·4· ·you didn't think that the schools around Florida ·5· ·were ready to open?· Do you remember that ·6· ·conversation? ·7· · · · A.· ·I do not think that's a characterization ·8· ·of that conversation. ·9· · · · Q.· ·Okay.· You describe yourself as an 10· ·extraordinary leader in education and health care, 11· ·right? 12· · · · A.· ·Yes, sir.· That's what other people think. 13· · · · Q.· ·And you've received appointments from, I 14· ·think, Governor Bob Martinez, Governor Jeb Bush, and 15· ·Governor Rick Scott; is that right? 16· · · · A.· ·That's correct. 17· · · · Q.· ·And you consider Commissioner Corcoran to 18· ·be, I think you said, a very good friend? 19· · · · A.· ·Yes. 20· · · · Q.· ·And just so I'm clear, you believe you 21· ·have been a leader in creating a community health 22· ·campaign for the Manatee school system; is that 23· ·right? 24· · · · A.· ·I think that's correct. 25· · · · Q.· ·Okay.· And just so I have some sense of
0856 Page 670 ·1· ·it, when did that campaign begin? ·2· · · · A.· ·The initiation of the process was at the ·3· ·board meeting where we had the county health ·4· ·department when the board voted to move forward with ·5· ·submitting our plans.· So it would have been ·6· ·sometime in -- I'd have to look at the board ·7· ·minutes. ·8· · · · Q.· ·Okay.· Well, let's go through some of the ·9· ·board minutes and some of your comments. 10· · · · · · ·So the community campaign began, really 11· ·just, I don't know, five, six weeks ago, right? 12· · · · A.· ·I think it went live -- we had a press 13· ·conference when it went live.· The development of it 14· ·started sooner than that. 15· · · · Q.· ·Uh-huh. 16· · · · · · ·And you follow the media, including the 17· ·media that talks about you; is that correct? 18· · · · A.· ·I -- depends on what you refer to as 19· ·following it. 20· · · · Q.· ·You read it, right?· Bradenton.com. 21· ·You've seen what they've said about your -- some of 22· ·your comments and your role as a -- managing school 23· ·board member? 24· · · · A.· ·I have read some of their comments -- 25· · · · Q.· ·Okay.
0857 Page 671 ·1· · · · A.· ·-- and some of their articles, yes. ·2· · · · Q.· ·Okay.· And let me just sort of go through ·3· ·a couple of these and see what we can remember. ·4· · · · · · ·You remember, in July 8th, saying that, ·5· ·"Make no mistake, we have community spread." ·6· · · · · · ·Do you remember saying that? ·7· · · · A.· ·Oh, absolutely, yes. ·8· · · · Q.· ·Okay.· So there was, in fact -- and I ·9· ·guess is, in fact, community spread in 10· ·Manatee County; is that right? 11· · · · A.· ·A lot less of it now after the campaign 12· ·has been in operation for more than two weeks. 13· · · · Q.· ·Okay.· And we'll talk about the campaign, 14· ·but do you remember also saying that -- 15· · · · A.· ·You're talking about campaign.· Can you 16· ·tell me specific -- which campaign? 17· · · · · · ·Because there have been -- there's more 18· ·than one.· There was one with the county commission 19· ·and Commissioner Servia.· There's the Mask-Up 20· ·Manatee.· So I'm not sure what campaign you're 21· ·referring to, Mr. Coffey. 22· · · · Q.· ·I'm just using a word from your -- the 23· ·various press stories about you, but we'll go 24· ·specifically question by question. 25· · · · · · ·Do you remember about July 8th saying that
0858 Page 672 ·1· ·"A plan should include in-person and online classes ·2· ·as originally planned until the number of infections ·3· ·dropped in Manatee County." ·4· · · · · · ·Do you remember saying that on or about ·5· ·July 8th? ·6· · · · · · ·MR. WELLS:· Your Honor, can we see -- ·7· · · · A.· ·I don't know what you're referring to. ·8· · · · · · ·MR. COFFEY:· I'm just asking what he ·9· · · · remembers.· I can certainly pull up articles, 10· · · · Judge if that will refresh the witness's 11· · · · recollection.· These are public comments.· See 12· · · · if I can get the July 8th article. 13· · · · · · ·But I -- 14· · · · A.· ·It -- 15· · ·BY MR. COFFEY 16· · · · Q.· ·This is -- 17· · · · A.· ·These statement -- you said public 18· ·statements.· Were these statements made at a board 19· ·meeting? 20· · · · Q.· ·Let's see.· Well, let me just ask you if 21· ·you ever made the statement in July -- on or around 22· ·July 8th, that "the plan should include, in terms of 23· ·the Corcoran order, in-person and online classes 24· ·until the number of infections dropped in 25· ·Manatee County."
0859 Page 673 ·1· · · · · · ·Do you recall making such a statement, and ·2· ·we'll try to pull up the article now.· I'm just ·3· ·asking if you recall. ·4· · · · A.· ·Mr. Coffey, I make numerous statements. ·5· · · · · · ·Most of my statements, because of my ·6· ·current health condition, have been made online in ·7· ·public board meetings.· I do not rely on the press ·8· ·as a -- a documentation of my exact comments, so I ·9· ·don't know what you're referring to. 10· · · · · · ·I'm a public official.· I'm on many news 11· ·stations.· So to pin it down to a date, I -- I don't 12· ·know. 13· · · · Q.· ·Okay.· Well, I'll, maybe, ask it a 14· ·different way. 15· · · · · · ·Isn't it a fact that as of July 8th, you 16· ·believe that the school opening plan should rely on 17· ·in-person and online classes until the number of 18· ·infections dropped in Manatee County?· I'm just 19· ·asking if you remember making such a statement. 20· · · · A.· ·Around July 8th?· Yeah, it wouldn't 21· ·surprise me if I made a statement towards that 22· ·effect. 23· · · · Q.· ·Okay.· And then let me ask you about 24· ·another statement referring to 50,000 students and 25· ·thousands of employees in the district, if you
0860 Page 674 ·1· ·recall saying, around that time, "If each one of ·2· ·those individuals only has contact with four people ·3· ·in the community, our school community, basically, ·4· ·has contact every day with over half the population ·5· ·of Manatee County." ·6· · · · · · ·Do you remember saying that? ·7· · · · A.· ·I -- I probably made that comment then. ·8· ·And I made that comment in early March with the ·9· ·director of the county health department. 10· · · · Q.· ·In fact, you made it to me a couple days 11· ·ago too, didn't you? 12· · · · A.· ·I may have. 13· · · · Q.· ·Okay.· And here's a comment that you might 14· ·remember.· "I love research but I'm not about to use 15· ·the Manatee County school district for a study of 16· ·how quickly you can spread the virus this fall." 17· · · · A.· ·Yes, I -- that was at a board meeting. 18· · · · Q.· ·Sure.· Sure. 19· · · · · · ·And do you remember trying to get a 20· ·recommendation -- meaningful recommendations from 21· ·the health department, including Dr. Bencie, and 22· ·them telling you they work for the governor and -- 23· · · · A.· ·I do recall that. 24· · · · Q.· ·Right. 25· · · · · · ·And, in fact, when you first tried to get
0861 Page 675 ·1· ·a recommendation from them, they weren't giving you ·2· ·a recommendation.· Isn't that a fact? ·3· · · · A.· ·I believe that that was probably the case. ·4· · · · Q.· ·Yeah. ·5· · · · · · ·But you -- you've got significant ·6· ·connections and you were able to access people in ·7· ·Tallahassee in order to get things moving for the ·8· ·good of Manatee County; is that right? ·9· · · · A.· ·I believe so. 10· · · · Q.· ·Okay.· And, in fact, your district -- 11· ·because of your experience as an epidemiologist and 12· ·the contacts and resources you would be able to 13· ·bring in and deploy, put Manatee County way ahead of 14· ·other districts in the state.· Isn't that a fact? 15· · · · A.· ·I believe that may be shown to be true. 16· · · · Q.· ·Okay.· And just, again, if you -- see if 17· ·this is a comment that you can remember making. 18· · · · · · ·Yeah.· We're trying to get me back on the 19· ·screen, Doctor. 20· · · · · · ·"The way this pandemic is behaving, we're 21· ·going to be dealing with it until the end of the 22· ·year at least." 23· · · · · · ·Fair enough?· You said that? 24· · · · A.· ·I believe I did. 25· · · · Q.· ·And it's still true, isn't it?
0862 Page 676 ·1· · · · A.· ·I think it's very true. ·2· · · · Q.· ·And there have been reported COVID ·3· ·exposures at, at least, three Manatee County public ·4· ·schools and a public charter school already; is that ·5· ·right? ·6· · · · A.· ·Sounds about right. ·7· · · · Q.· ·You believe that N95 masks are necessary ·8· ·for students and teachers, don't you? ·9· · · · A.· ·I believe an N95 is the best protection 10· ·for an individual if others are not wearing. 11· · · · · · ·It's definitely -- the N95 mask is the 12· ·best way to prevent the -- contracting the disease 13· ·through the air regardless of whether somebody else 14· ·is -- if somebody else is not wearing a mask. 15· · · · Q.· ·Okay.· I'm going to try to -- and this is 16· ·not to suggest that you're contradicting yourself. 17· ·It's just to help refresh your recollection. 18· · · · · · ·MR. COFFEY:· I'm going to put on the 19· · · · screen for the purpose, Your Honor, of 20· · · · refreshing the witness's recollection, an 21· · · · article. 22· · · · · · ·And if I -- can we identify the article? 23· · · · I'm speaking to my colleagues.· July 8th 24· · · · article.· Just skim down so we can put the 25· · · · referenced language.
0863 Page 677 ·1· · ·BY MR. COFFEY ·2· · · · Q.· ·Now, this is paraphrasing you.· It doesn't ·3· ·say -- it isn't quoting you word-for-word, but it ·4· ·says, "As of Tuesday afternoon, said a full and safe ·5· ·return to school would have to include N95 masks, ·6· ·along with eye and hand protection for employees and ·7· ·students." ·8· · · · · · ·Do you see that language, Dr. Hopes? ·9· · · · A.· ·I see the language. 10· · · · Q.· ·Does it refresh your recollection?· Did 11· ·you say words to that effect on -- 12· · · · A.· ·I -- I -- as you said, it's a paraphrase. 13· · · · Q.· ·Okay.· But it's an accurate paraphrase, 14· ·isn't it? 15· · · · A.· ·I don't know.· I would have to refer to -- 16· ·it had to have been taken from a board meeting. I 17· ·would have to refer to the board minutes. 18· · · · Q.· ·Okay.· Then -- and just kind of a similar 19· ·comment you made.· It's quoted on August 10th.· "I 20· ·expect COVID to be with us for the entire school 21· ·year." 22· · · · · · ·That's an accurate expression of your 23· ·opinion, correct, Doctor? 24· · · · A.· ·Yes, sir. 25· · · · Q.· ·And not to imply too much modesty, but it
0864 Page 678 ·1· ·says, "We probably have a little bit of a head ·2· ·start.· I believe our district is probably the only ·3· ·school district in Florida that has an experienced ·4· ·epidemiologist on the board and maybe in the ·5· ·country." ·6· · · · · · ·Do you recall saying words to that effect? ·7· · · · A.· ·Yes, sir, I do. ·8· · · · Q.· ·And would you agree that to wear masks, to ·9· ·protect each other, maintain social distancing, 10· ·that's going to be difficult, especially for our 11· ·children but more so for our adolescents? 12· · · · · · ·Would you agree with that statement, 13· ·Dr. Hopes? 14· · · · A.· ·No.· We in Manatee County have already 15· ·proven that not to be the case, that they are 16· ·capable of wearing masks and social distancing. 17· · · · Q.· ·Okay.· See if we can pull up the August 10 18· ·article. 19· · · · · · ·Well, you know, things evolve, so let's 20· ·see if -- let's pull up the quote and see if it 21· ·refreshes your recollection as to whether you made 22· ·this statement. 23· · · · · · ·Can you take a look at the statement -- 24· ·I'm going to ask it be -- I don't know if it's easy 25· ·to read or not.· I'll read it just so it's clear.
0865 Page 679 ·1· ·This is to refresh your recollection, Dr. Hopes. ·2· · · · · · ·"Because of not having, you know, a silver ·3· ·bullet to identify who is carrying the virus and is ·4· ·contagious, we all have to assume that everyone is." ·5· · · · · · ·Do you recall whether you made that ·6· ·statement, Doctor? ·7· · · · A.· ·Yes, I believe I did make that statement. ·8· · · · Q.· ·Okay.· "Therefore, wear masks, protect ·9· ·each other, maintain that social distancing, and 10· ·that's going to be difficult for especially our 11· ·children, but more so for our adolescents." 12· · · · · · ·Do you see that? 13· · · · A.· ·Exactly.· Just like learning to drive a 14· ·car is difficult at first. 15· · · · Q.· ·Right. 16· · · · · · ·But you did make that statement, correct? 17· · · · A.· ·I -- it appears that I probably did, 18· ·because it's probably a transcript from a news 19· ·recording. 20· · · · Q.· ·Okay.· And then, "They don't like being in 21· ·a bubble and now we have to put them in one, so it's 22· ·going to be interesting to see how they emotionally 23· ·handle it." 24· · · · · · ·Do you see that? 25· · · · A.· ·See what?· I -- unfortunately, I am
0866 Page 680 ·1· ·looking at a picture of me. ·2· · · · Q.· ·Okay. ·3· · · · A.· ·And we have an option for students that ·4· ·aren't able to wear a mask.· It's called eLearning. ·5· · · · Q.· ·The question was really about adolescents ·6· ·and the ability of that adolescent to maintain ·7· ·throughout a school year particular safety ·8· ·protocols. ·9· · · · · · ·And my understanding is you acknowledge 10· ·the difficulty in getting adolescents to maintain 11· ·safety protocols because they're kids, fair enough? 12· · · · A.· ·It's -- it's a difficult challenge but 13· ·it's overcome -- it's -- you can overcome it.· We do 14· ·it every day.· That's how adolescents learn. 15· · · · Q.· ·Would it be correct to say -- this is 16· ·another quote that's been attributed to you.· "I 17· ·don't care what the governor says, I don't care what 18· ·the head of the Senate says.· This is a problem and 19· ·we don't have a handle on it." 20· · · · · · ·Talking about the COVID virus and the 21· ·develop -- 22· · · · A.· ·I -- I suspect at some time during this 23· ·pandemic I certainly may have made that comment. 24· · · · Q.· ·And do you remember saying that, "The 25· ·Surgeon General of Florida doesn't have specific
0867 Page 681 ·1· ·metrics to guide the school district"? ·2· · · · · · ·Do you remember that?· Saying that? ·3· · · · A.· ·I have probably said that on more than one ·4· ·occasion. ·5· · · · Q.· ·"And so it falls on local districts to ·6· ·decide what will happen if an outbreak occurs." ·7· · · · · · ·Does that sound like -- is that something ·8· ·you can accept as a statement you made? ·9· · · · A.· ·Yes.· I think that's probably supported in 10· ·state statutes and the Constitution. 11· · · · Q.· ·Do you know whether or not 12· ·Commissioner Corcoran stated to school 13· ·superintendents that before any schools are closed, 14· ·they have to check with him first? 15· · · · A.· ·I was not party to that conversation. 16· · · · Q.· ·Okay.· You don't know one way or the 17· ·other; is that correct? 18· · · · A.· ·That's what I'm saying, that's correct. 19· · · · Q.· ·Okay.· Just a few more, Dr. Hopes.· Thanks 20· ·for bearing with me.· I know you've probably had an 21· ·uncomfortable couple of days due to the medical 22· ·issue. 23· · · · · · ·Do you know how many schools -- districts 24· ·in the state of Florida have the resources and 25· ·the -- actually the leadership that Manatee County
0868 Page 682 ·1· ·has with respect to addressing the pandemic?· And I ·2· ·said resources as well as the sophisticated ·3· ·leadership. ·4· · · · A.· ·No. ·5· · · · · · ·As I sit here, I would have to go county ·6· ·by county and think of who I know and what part of ·7· ·the state they're in and what their tax base is and ·8· ·what their reimbursement from the State is and -- ·9· · · · Q.· ·But I think you said in response to one of 10· ·Mr. Well's questions that you believe Manatee does 11· ·have the resources to get it done right, correct? 12· · · · A.· ·We do. 13· · · · · · ·And I think other -- other districts have 14· ·the same capacity to -- to develop a plan that -- 15· ·that meets their district's needs, and they have -- 16· ·we all have the same capacity to express our needs 17· ·to the federal government and the state, and the -- 18· ·the order from the commissioner spells out that we 19· ·have to have access to financial resources to 20· ·support our plan. 21· · · · Q.· ·I'm sorry.· The order of the commissioner 22· ·provides -- spells out what about financial 23· ·resources? 24· · · · A.· ·I think that -- that the -- the order 25· ·anticipates the -- that there are additional needs
0869 Page 683 ·1· ·that districts have, and those resources are ·2· ·available through the CARES Act and many other ·3· ·government programs to ensure that school districts ·4· ·have access to -- to resources, including human ·5· ·resources, as well as supplies, in order to open ·6· ·schools as safely as possible. ·7· · · · Q.· ·Just see if I've got any more questions ·8· ·for you. ·9· · · · · · ·Is it -- you talked about the 10· ·one-in-four -- or one could be four contacts in the 11· ·community as a realistic dynamic in terms of the -- 12· ·this necessary strategies for the COVID.· Do you 13· ·recall that, you know -- 14· · · · A.· ·I really don't understand your statement 15· ·or your question. 16· · · · Q.· ·Okay.· Let me go back to it. 17· · · · A.· ·Rephrase it, or -- 18· · · · Q.· ·Sure, sure. 19· · · · · · ·"If each one of those individuals only has 20· ·one contact with four people in the community, our 21· ·school community basically has contact every day 22· ·with over half the population of Manatee County." 23· · · · · · ·Do you recall that?· We talked about that 24· ·before. 25· · · · A.· ·Yes, that's correct.
0870 Page 684 ·1· · · · Q.· ·And -- ·2· · · · A.· ·And I had that discussion with the health ·3· ·department team -- ·4· · · · Q.· ·Right. ·5· · · · A.· ·-- in early March. ·6· · · · Q.· ·Okay. ·7· · · · A.· ·That's where that comment came from in ·8· ·early March. ·9· · · · Q.· ·Okay.· I think it's quoted in July 8th, 10· ·but that -- 11· · · · A.· ·Yeah, and those numbers still hold true. 12· · · · · · ·I've used that numerous times as one way 13· ·to motivate the community to understand why it's 14· ·important that we follow these -- these CDC 15· ·guidelines to reduce spread in Manatee County, which 16· ·we have done. 17· · · · Q.· ·And when you talk about the individuals 18· ·who can be spreading one-to-four, you're including 19· ·teachers as well as students; is that correct? 20· · · · A.· ·Yes, sir. 21· · · · Q.· ·Okay.· And we referred briefly to metrics, 22· ·the fact that the Surgeon General was not providing 23· ·metrics.· And you also mentioned -- I believe one of 24· ·the comments was about getting the infection rate 25· ·down.
0871 Page 685 ·1· · · · · · ·Was it your belief that the positivity ·2· ·rate is a meaningful metric in terms of assessing ·3· ·COVID spread and COVID presentation measures? ·4· · · · A.· ·Not independently, no. ·5· · · · Q.· ·Okay.· So, for example, you don't think ·6· ·it's relevant whether or not Manatee gets below a ·7· ·5 percent positivity rate; is that correct? ·8· · · · A.· ·Not -- not as a single measurement, no. ·9· · · · Q.· ·What are the other measurements that you 10· ·think are -- are important? 11· · · · A.· ·There are a number of them. 12· · · · · · ·Hospitalizations, incidence and 13· ·prevalence.· A positivity rate is just a number 14· ·based on the number of people tested in a given 15· ·period or in a given day, and the -- the number that 16· ·are -- are tested positive. 17· · · · · · ·We don't know how that population was 18· ·tested.· We don't know whether they were adversely 19· ·selected or self-selected.· That number -- that 20· ·number is a number that got put out there not for 21· ·opening schools. 22· · · · Q.· ·Yeah. 23· · · · A.· ·That has never been tested. 24· · · · Q.· ·Do you believe we have enough science to 25· ·know what the long-term implications are for
0872 Page 686 ·1· ·children who contract the coronavirus? ·2· · · · A.· ·Would you restate that, please? ·3· · · · Q.· ·Do we know long-term what the potential ·4· ·harm might be to children who contract the ·5· ·coronavirus? ·6· · · · A.· ·And -- and how are you using the term ·7· ·"long-term," what are we talking about in time? ·8· · · · Q.· ·Months, years, whatever long-term means to ·9· ·you as an epidemiologist. 10· · · · A.· ·But you're asking the question. 11· · · · Q.· ·What would be the impact on children today 12· ·who contract the coronavirus?· Does science really 13· ·have those answers yet, or are we still trying to 14· ·learn about it as information evolves? 15· · · · A.· ·I think -- I think as time evolves, 16· ·we're -- we're learning more and more about this 17· ·particular SARS string. 18· · · · Q.· ·And its impact on children? 19· · · · A.· ·Yeah, it's -- it's being studied.· Yes, it 20· ·is being studied. 21· · · · · · ·MR. COFFEY:· Okay.· Your Honor, I have no 22· · · · further questions. 23· · · · · · ·THE COURT:· Redirect? 24· · · · · · ·MR. WELLS:· Just making sure there was 25· · · · nobody else.
0873 Page 687 ·1· · · · · · · · · ·REDIRECT EXAMINATION ·2· · ·BY MR. WELLS ·3· · · · Q.· ·Yes.· So, Dr. Hopes, you believe that the ·4· ·coronavirus is a serious concern? ·5· · · · A.· ·I do.· It's a pandemic. ·6· · · · Q.· ·And as Mr. Coffey asked you, and I think ·7· ·you committed to, you think that the coronavirus is ·8· ·going to be around at least until the end of this ·9· ·school year; is that correct? 10· · · · A.· ·I believe that to be so. 11· · · · Q.· ·You're an epidemiologist, you're certainly 12· ·familiar with the consequences of things like 13· ·coronavirus? 14· · · · A.· ·Yes, sir, I am. 15· · · · Q.· ·Why did you feel -- why do you feel that 16· ·it is safe to offer bricks-and-mortar schools to the 17· ·students in Manatee County and to have teachers in 18· ·Manatee County, then, if you think coronavirus is 19· ·still going to be here? 20· · · · A.· ·As I mentioned before, that's -- that's 21· ·probably the No. 1 motivation in determining that 22· ·risk versus benefit to open the schools. 23· · · · · · ·The coronavirus is not going to be 24· ·extinguished next month in the United States, or the 25· ·world.· And -- and we have children whose -- whose
0874 Page 688 ·1· ·futures depend on education.· I spoke with -- about ·2· ·my involvement with SARS in 2002 and 2003, which ·3· ·started, again, in China in Asia.· And -- and we ·4· ·have to deal with the reality, and that's why, you ·5· ·know, you have options of how to deliver the ·6· ·critical education. ·7· · · · · · ·We -- we project the number of prison beds ·8· ·needed based on the number of third grade children ·9· ·that are not reading at grade level.· That's a scary 10· ·statistic. 11· · · · Q.· ·And -- 12· · · · A.· ·And -- 13· · · · Q.· ·I'm sorry. 14· · · · A.· ·And we have a way -- we have a way to 15· ·minimize the risk and ensure that those children 16· ·continue to get the education they need to succeed 17· ·in life. 18· · · · Q.· ·Let me ask you this:· Mr. Coffey asked you 19· ·about masks and concern about adolescents with 20· ·masks. 21· · · · · · ·Why did you go to the trouble of involving 22· ·the community in this concept of "Mask-Up Manatee"? 23· · · · A.· ·To use, as I mentioned, the leverage. 24· ·And -- and the statements that Mr. Coffey was 25· ·relaying, putting reality out there, in fact, has
0875 Page 689 ·1· ·motivated the community. ·2· · · · · · ·And our adolescents are wearing masks, and ·3· ·those that are wearing masks, when they see a friend ·4· ·that's not wearing masks, they ask them to wear a ·5· ·mask. ·6· · · · Q.· ·Okay.· You've been in Manatee County for ·7· ·some time now.· The school board for some time now. ·8· ·Do you have friends that are teachers? ·9· · · · A.· ·Absolutely. 10· · · · Q.· ·Do you have friends whose children are 11· ·going to your school? 12· · · · A.· ·Yes, many. 13· · · · Q.· ·Going to your school in person? 14· · · · A.· ·Yes. 15· · · · Q.· ·And do you believe it's safe enough for 16· ·them to be there to open up the school and go 17· ·forward? 18· · · · A.· ·I do. 19· · · · Q.· ·Are you putting up your friend teachers 20· ·and your friend's children to some kind of fancy 21· ·experiment for the governor of Florida? 22· · · · A.· ·No, sir. 23· · · · · · ·MR. WELLS:· Thank you.· No further 24· · · · questions. 25· · · · · · ·THE COURT:· Thank you, Dr. Hopes.· You are
0876 Page 690 ·1· · · · free to leave now. ·2· · · · · · ·MR. WELLS:· Could I have one question of ·3· · · · recross? ·4· · · · · · ·THE COURT:· Sure. ·5· · · · · · · · · ·RECROSS EXAMINATION ·6· · ·BY MR. COFFEY ·7· · · · Q.· ·Okay.· You agree with the following ·8· ·statement, Dr. Hopes?· And so that I'm not being -- ·9· ·holding anything back, it refers to a quote to you. 10· · · · · · ·"This is not your annual flu.· This is a 11· ·new bug in the human population.· We don't know how 12· ·long it stays in your body.· We don't know what kind 13· ·of problems it causes into the future." 14· · · · · · ·Do you agree with that statement, Doctor? 15· · · · A.· ·I believe I made that statement. 16· · · · Q.· ·Okay. 17· · · · · · ·MR. COFFEY:· Nothing -- thank you, Your 18· · · · Honor.· Nothing else. 19· · · · · · ·THE COURT:· Anything further, Mr. Wells, 20· · · · from your side? 21· · · · · · ·MR. WELLS:· No, Your Honor. 22· · · · · · ·THE COURT:· Thank you, Dr. Hopes.· You are 23· · · · free to leave.· Yes, sir. 24· · · · · · ·THE WITNESS:· Thank you, Your Honor. 25· · · · · · ·THE COURT:· Call your next witness.
0877 Page 691 ·1· · · · · · ·MR. WELLS:· Yes, Your Honor.· Are you ·2· · · · ready?· Okay. ·3· · · · · · ·THE COURT:· Who is the next witness from ·4· · · · the defense? ·5· · · · · · ·MR. WELLS:· Oh, it's Jacob Oliva.· Sorry, ·6· · · · Your Honor. ·7· · · · · · ·THE COURT:· Okay.· I see Mr. Oliva's name ·8· · · · but I don't see Mr. Oliva. ·9· · · · · · ·MR. WELLS:· If he's not on in a second 10· · · · we'll call, Your Honor.· Actually, we're doing 11· · · · that right now. 12· · · · · · ·There we go. 13· · · · · · ·THE COURT:· Okay, great.· Mr. Oliva, if 14· · · · you'd raise your right hand, please. 15· · · · Mr. Oliva, if you'd -- yeah, take yourself off 16· · · · mute, and raise your right hand, please. 17· · · · · · ·MR. WELLS:· Still on mute. 18· · · · · · ·THE COURT:· Still on mute, it looks like. 19· · · · · · ·MR. WELLS:· There you go. 20· · · · · · ·THE COURT:· There you go.· Okay. 21· ·Thereupon: 22· · · · · · · · · · · ·JACOB OLIVA 23· ·having been sworn by the Court testified as follows: 24· · · · · · ·THE WITNESS:· I do. 25· · · · · · ·THE COURT:· Thank you, sir.· You can put
0878 Page 692 ·1· · · · your hand down. ·2· · · · · · · · · · DIRECT EXAMINATION ·3· · ·BY MR. WELLS ·4· · · · Q.· ·Please tell us who you are. ·5· · · · A.· ·My name is Jacob Oliva, and I am the ·6· ·chancellor for the Division of Public Schools for ·7· ·the Florida Department of Education. ·8· · · · Q.· ·What do you do as the chancellor of the ·9· ·Division of Public Schools for the Florida 10· ·Department of Education? 11· · · · A.· ·Well, here in the department, I oversee 12 12· ·different bureaus that provide direct support for 13· ·not only the students in our schools, but for the 14· ·educators across the state of Florida, as well as 15· ·support state board priorities, implementing the 16· ·strategic plan, legislative issues, policy 17· ·discussions, and budgets. 18· · · · · · ·But primarily make sure that we have the 19· ·right conditions in place to set 2.8 million 20· ·students in public schools up for success across 21· ·about 4,000 different school campuses. 22· · · · Q.· ·How long have you been the chancellor, 23· ·Mr. Oliva? 24· · · · A.· ·This is my third year in the Department 25· ·of Education, and I've been serving in the capacity
0879 Page 693 ·1· ·as the chancellor for just over a year. ·2· · · · Q.· ·Tell us a bit about your education. ·3· · · · A.· ·So I'm a product of the Miami-Dade public ·4· ·school system, where I was a proud Killian Cougar, ·5· ·and transitioned up the coast and received an ·6· ·associate in arts degree in education from -- it was ·7· ·Daytona Beach Community College at the time.· It's ·8· ·now Daytona State College. ·9· · · · · · ·Continued on and further received a 10· ·bachelor's degree in elementary education and 11· ·exceptional student education, a dual major, from 12· ·Flagler College.· Began my teaching career at the 13· ·elementary level, primarily serving students with 14· ·disabilities in kindergarten through third grade in 15· ·different capacities. 16· · · · · · ·Went in to pursue higher education and 17· ·received a master's degree from Nova Southeastern 18· ·University, where I transitioned my professional 19· ·career into administration.· I've been lucky to 20· ·serve as an elementary school principal, a high 21· ·school principal, and while I was a high school 22· ·principal, I was working on some doctoral level 23· ·coursework and am considered the status of "all but 24· ·dissertation" through the University of North 25· ·Florida in educational leadership, and I was able to
0880 Page 694 ·1· ·join at the district level and serve as a ·2· ·district-level administrator, as well as a school ·3· ·superintendent before joining the Department. ·4· · · · · · ·Throughout my education career, it's ·5· ·expanded about 20 years in public schools. ·6· · · · Q.· ·What different counties have you served ·7· ·in? ·8· · · · A.· ·Primarily in Flagler schools.· That's ·9· ·where I began my student internship and was able to 10· ·get hired on in that school district as a teacher, 11· ·and moved up through the ranks there locally. 12· · · · Q.· ·What involvement did you have, sir, in the 13· ·recommendation in March of 2020 that the public 14· ·schools in Duval -- excuse me in, Duval County-- in 15· ·Florida be closed? 16· · · · A.· ·So early in March, we began having some 17· ·high-level conversations with senior leadership here 18· ·at the state level, which includes our chief of 19· ·staff, our commissioner, our senior chancellor, as 20· ·well as other state-level experts when we were 21· ·watching the spread of the COVID pandemic evolve 22· ·across the globe. 23· · · · · · ·And we started seeing cases here in 24· ·Florida, and we began direct conversations with 25· ·school districts almost on a daily basis.· Primarily
0881 Page 695 ·1· ·school superintendents, district-level leaders, to ·2· ·provide the most current updates and data that we ·3· ·received, and as we were moving forward with making ·4· ·planning decisions, I was serving in that capacity ·5· ·as an advisory person to senior leadership, as well ·6· ·as a direct contact with district-level school ·7· ·administrators and leaders to find out what was ·8· ·happening in the local school districts as well. ·9· · · · Q.· ·So you worked directly with the local 10· ·school superintendents as part of coming up with 11· ·that -- part of working on the team that came up 12· ·with that recommendation? 13· · · · A.· ·Yes, sir. 14· · · · Q.· ·Okay.· Now, at the time the recommendation 15· ·was made to close the schools down, what was the 16· ·anticipated timeline?· What was everybody, at least 17· ·on your side of the table, thinking would happen? 18· · · · A.· ·Well, as we were looking at the models and 19· ·the projections of the spread of the pandemic, and 20· ·the statewide impact that it could have, as well as 21· ·some executive orders which looked at different 22· ·phases of the state to be moved into, early in 23· ·March, probably about the second week of March, most 24· ·of our schools were either on spring break or 25· ·getting ready to go on spring break.
0882 Page 696 ·1· · · · · · ·And we knew that there was this term out ·2· ·there called "flattening the curve," and that we ·3· ·needed to do our part to slow down and mitigate the ·4· ·spread.· And the recommendation to kind of close ·5· ·Florida schools, or recommend turning and pivoting ·6· ·our schools to closure was immediately only thought ·7· ·that it was going to last a couple weeks. ·8· · · · · · ·We were very optimistic and hopeful that ·9· ·when schools were going to go on spring break, we 10· ·were going to ask them to extend that spring break. 11· ·And the thinking at that time was within two, three 12· ·weeks, we would have seen some of those models turn 13· ·a little bit better, the curve would have been 14· ·flattened.· We would have minimized people that 15· ·needed to go to the hospital, and take up the beds, 16· ·and do our part to mitigate the spread, and by May, 17· ·we'd be able to welcome our students back into our 18· ·classrooms and properly close out the school year. 19· · · · Q.· ·Did you -- 20· · · · · · ·MR. WELLS:· Is it just me hearing that 21· · · · feedback?· Sorry, Your Honor, I just was 22· · · · getting some bad feedback there. 23· · ·BY MR. WELLS 24· · · · Q.· ·During this period of time, Mr. Oliva, 25· ·were you in contact with the stool superintendents,
0883 Page 697 ·1· ·you know, following up on this concept of are we ·2· ·going to go back, when are we going to go back? ·3· · · · A.· ·Yeah. ·4· · · · · · ·So it was very early on when we were ·5· ·looking at the possible impact of COVID in Florida ·6· ·schools, and starting to have questions about ·7· ·whether or not we needed to close campuses, the ·8· ·Department of Education established an emergency ·9· ·response website. 10· · · · · · ·And we even pretty much put a placeholder 11· ·on superintendent calendars for every day at 4:00 to 12· ·do daily briefings and updates, and we were able to 13· ·continue through this process by providing updates 14· ·and webinar informations and topical calls, and 15· ·archiving every single one of the pieces of 16· ·technical assistance and conversations onto our 17· ·website that we still continue to update and 18· ·aggregate, and put best practices and resources on. 19· · · · · · ·And we encourage everybody, parents, 20· ·students, teachers, community members, to use that 21· ·website and find the latest information in where 22· ·we're at with Florida schools. 23· · · · Q.· ·Let me ask you this:· Whether it be just 24· ·before or just after or during spring break, you're 25· ·closing the schools down, children that were, you
0884 Page 698 ·1· ·know, showing up to school day in, day out are no ·2· ·longer going to be thought that way. ·3· · · · · · ·What was put into place to be able to ·4· ·continue education throughout the rest of the year ·5· ·for the students in Florida? ·6· · · · A.· ·So initially, when we were looking at ·7· ·extending spring break, we were very optimistic that ·8· ·this was a temporary ask of our districts and our ·9· ·educational families, and we would be able to 10· ·welcome back students in a short amount of time. 11· · · · · · ·When it looked like spring break was going 12· ·to be extended beyond that, we were -- we 13· ·immediately began engaging in deeper conversations 14· ·that really focused around if we had to pivot our 15· ·way of learning and implement a distance learning 16· ·option for our students so that we can keep our 17· ·teachers connected with our students, and mitigate 18· ·learning loss as much as possible, what would that 19· ·look like? 20· · · · · · ·And I distinctly remember early on when 21· ·Commissioner Corcoran was having that conversation 22· ·with school leaders, school superintendents across 23· ·the state, superintendent of Miami-Dade County was 24· ·one of the first that chimed up and shared with 25· ·everybody on the call that Miami-Dade had actually
0885 Page 699 ·1· ·been working on developing what they referred to as ·2· ·instructional continuity plans. ·3· · · · · · ·And the reason they were working on that ·4· ·is because they wanted to find ways to continue ·5· ·learning in case they had to shut down for natural ·6· ·disasters such as hurricanes, but felt like this ·7· ·template or model was applicable to what we're ·8· ·asking districts to develop and possibly implement, ·9· ·and immediately shared that resource across the 10· ·state of Florida to other districts. 11· · · · · · ·And that spirit of collaboration and 12· ·sharing best practices from peer to peer, I almost 13· ·feel like, began at that moment and has continued 14· ·through this very single day. 15· · · · Q.· ·So did you -- call it the instructional 16· ·continuity plan, that got rolled out across all of 17· ·the schools in Florida? 18· · · · A.· ·So when we realized that the state of 19· ·Florida was going into phase 1 through the swift, 20· ·bold action of Governor DeSantis to mitigate the 21· ·spread, part of that included closing school 22· ·campuses. 23· · · · · · ·And we asked districts, and they had about 24· ·five days to -- to really develop, be thoughtful, 25· ·and we exercised local control, and as much
0886 Page 700 ·1· ·flexibility and authority that we could give them to ·2· ·develop those plans and submit them to us, and then ·3· ·we ended up asking -- moving forward and asking ·4· ·districts to implement those plans. ·5· · · · · · ·And the analogy that we kind of look at ·6· ·is, we look the light switch on education as we knew ·7· ·it and just turned it off in our classrooms and ·8· ·completely asked our school districts, our teachers, ·9· ·our leaders, to pivot the way of learning with that 10· ·face-to-face option, and move into a distance 11· ·learning platform, which they were able to do. 12· · · · Q.· ·How did the distance -- well, let me ask 13· ·you this. 14· · · · · · ·Obviously, the year got finished out.· We 15· ·had graduations without any graduates there, and no 16· ·proms, and all of those things.· But the year got 17· ·finished, the academic year was over.· Has there 18· ·been a chance to understand whether distance 19· ·learning had any impact at all, good, bad, or 20· ·indifferent? 21· · · · A.· ·So I think that's -- that's a great 22· ·question. 23· · · · · · ·And leading up to this response, if I may, 24· ·give a -- fill in a little bit more of that 25· ·timeline, it became very clear when we were
0887 Page 701 ·1· ·extending distance learning that it was going to go ·2· ·for longer than two, three, or four weeks. ·3· · · · · · ·Well, during that time, our school leaders ·4· ·were asking Commissioner Corcoran some very, very ·5· ·good questions about if we have to stay in distance ·6· ·learning, what does that mean for our accountability ·7· ·system on how we measure student performance, to ·8· ·speak to your question, and how do we close out the ·9· ·school year with grades.· And how do we ensure that 10· ·the instructional hours and seat time requirements 11· ·and days in our calendar will be met? 12· · · · · · ·And I can tell you, in that conversation, 13· ·Commissioner Corcoran very clearly stated that 14· ·whatever obstacle, whatever challenge, whatever we 15· ·can do at the state level to make sure that we 16· ·protect students and hold them harmless we will do 17· ·with compassion and grace. 18· · · · · · ·And that mantra of compassion and grace 19· ·has been echoed throughout the emptiness of our 20· ·building and shared across all of our school 21· ·districts, and has been the mantra and the mindset 22· ·that we have navigated through this pandemic as 23· ·we've been moving forward with continuing education 24· ·here in the state of Florida. 25· · · · Q.· ·Has there been an opportunity to evaluate
0888 Page 702 ·1· ·how well distance learning worked out? ·2· · · · A.· ·So anecdotally, we've heard some really ·3· ·good feedback from school districts, from parents, ·4· ·from students. ·5· · · · · · ·And I can tell you as a parent of two ·6· ·children, I can tell you one of my children did ·7· ·pretty well in distance learning and one of them did ·8· ·not.· And everybody had a little bit different ·9· ·impact when we were in that learning environment. 10· · · · · · ·But very quickly when we asked districts 11· ·to implement the instructional continuity plans and 12· ·move to distance learning, it became very apparent 13· ·that access to devices and Internet was a challenge. 14· · · · · · ·We know that we have some vulnerable 15· ·populations of students that we support that are in 16· ·different programs, such as special education.· We 17· ·support homeless students, foster students, migrant 18· ·students, students that are learning language as a 19· ·second -- as a second language, our English language 20· ·learners. 21· · · · · · ·And through this process, we recognize 22· ·that there were some students that became 23· ·disconnected from schools when they weren't open, 24· ·and they were nonresponsive to teacher inquiries, to 25· ·administrator inquiries, and we have grave concerns
0889 Page 703 ·1· ·about the learning loss that many of these students ·2· ·may have had without being able to be in a ·3· ·successful learning environment while we were ·4· ·implementing distance learning. ·5· · · · Q.· ·And were you involved in discussions ·6· ·directly with the -- the superintendents trying to ·7· ·understand the depth and breadth of these issues? ·8· · · · A.· ·Each and every single day. ·9· · · · · · ·And when I tell you we established those 10· ·open lines of communications, whether it was through 11· ·webinars or personal phone calls and emails, we are 12· ·doing everything we can to stay abreast of each 13· ·school district and where they are with the -- with 14· ·the implementation of distance learning and then 15· ·summer recovery programs. 16· · · · · · ·And then now as we're reopening schools 17· ·and planning for the fall, as the State started 18· ·moving back from phase 1 to phase 2, our campuses 19· ·were resuming their normal operations as well, and 20· ·as we've been engaged with school districts about 21· ·mitigating loss, there's a term that is pretty 22· ·familiar in education that's called the summer 23· ·slide. 24· · · · · · ·And that's an annual challenge that many 25· ·educators face when students have been out of
0890 Page 704 ·1· ·schools for six, seven, eight weeks and they come ·2· ·back.· Well, that -- that summer slide is being ·3· ·compounded with a new term called the COVID slide, ·4· ·and the possibility of students being disconnected ·5· ·from a classroom or a classroom teacher for up to 12 ·6· ·weeks is concerning, especially for some of our most ·7· ·vulnerable populations. ·8· · · · · · ·And the conversations that we've been ·9· ·having with school district leaders is, at the very 10· ·first -- the very first, most vulnerable population 11· ·or most vulnerable student that we need to identify 12· ·and start engaging them with direct instruction are 13· ·students that we already knew were struggling in 14· ·school.· We had struggling learners in school that 15· ·had access to array of supports, but then throughout 16· ·distance learning and throughout the summer have not 17· ·had one connection to the school. 18· · · · · · ·And the research behind that's been very 19· ·clear that those students stand the most to lose, as 20· ·far as exacerbating achievement gaps, and we need to 21· ·do everything we can as soon as we can to bring 22· ·those students in and mitigate and minimize that 23· ·learning loss. 24· · · · Q.· ·When did you first start having any 25· ·discussions with superintendents about how, if at
0891 Page 705 ·1· ·all, to get open this fall for the students? ·2· · · · A.· ·Well, so in schools, most school campuses ·3· ·never really closed. ·4· · · · · · ·So when we were in phase 1 as a state, and ·5· ·that meant that our school campuses were closed, and ·6· ·that impacts other industries and other entities as ·7· ·well, the second the State moved to phase 2 -- minus ·8· ·three counties, there's three counties in south ·9· ·Florida that are still at phase 1 -- so while the 10· ·rest of the state moved to phase 2, those 11· ·conversations immediately began. 12· · · · · · ·Because schools typically don't close. 13· ·They have administrators working year round.· They 14· ·have summer athletic programs, summer camps, early 15· ·learning centers.· Many of our school districts run 16· ·technical centers and colleges.· They're partners 17· ·with our state college system. 18· · · · · · ·And the second we were able to move to 19· ·phase 2, we've been engaged in how can we safely 20· ·reopen these campuses for those students that need 21· ·access to services?· And many of our school 22· ·districts started summer learning programs for -- 23· ·whether it was summer reading camps, extended school 24· ·year opportunities, summer youth camps and 25· ·activities, and those practices have been ongoing as
0892 Page 706 ·1· ·we are reopening schools in the fall. ·2· · · · Q.· ·So these districts with -- went into phase ·3· ·2 in the summer actually were using their physical ·4· ·plans for education? ·5· · · · A.· ·Yes, sir. ·6· · · · Q.· ·And that was all the counties except for ·7· ·Dade, Palm Beach, and Broward? ·8· · · · A.· ·Well, all the districts in phase 2, their ·9· ·campuses are open.· Whether or not each and every 10· ·single school in a district has some sort of 11· ·program, I don't know the answer to that, but 12· ·collectively, overall, there are some sort of 13· ·activities happening on school campuses. 14· · · · · · ·And it could be maintenance that could be 15· ·happening.· It could be administrators preparing for 16· ·the next school year.· There are people that work in 17· ·schools year round. 18· · · · Q.· ·When do you recall first having 19· ·discussions with superintendents about the potential 20· ·for opening sticks-and-bricks in the beginning of 21· ·this year? 22· · · · A.· ·So conversations about resuming school 23· ·activities began at the end of May.· Even though 24· ·the -- the State moved for those 64 districts in the 25· ·middle of May, it was decided to keep schools closed
0893 Page 707 ·1· ·for the rest of the year because it would have been ·2· ·really disruptive to try to reopen for a week or two ·3· ·weeks and make sure that schools were trained and ·4· ·had the proper personal protective equipment, and ·5· ·most of our school districts typically end at the -- ·6· ·in the middle-end of May or the first week of June. ·7· · · · · · ·But those conversations about resuming ·8· ·school activities began in May.· Many of our schools ·9· ·were calling us and asking us questions about 10· ·whether or not they could have graduation. 11· · · · · · ·That was a big deal to a lot of our high 12· ·school seniors and to a lot of our school 13· ·administrators and to a lot of our educational 14· ·families, there are certain rites of passage that 15· ·our students look forward to, and districts were 16· ·creative in finding ways to -- whether they opened 17· ·their campuses outside in football stadiums, or 18· ·doing it through virtual presence, or finding online 19· ·platforms to resume those educational activities and 20· ·experiences. 21· · · · Q.· ·Thank you. 22· · · · · · ·How was it that -- well, you're familiar 23· ·with Emergency Order 06 that brings us here, aren't 24· ·you? 25· · · · A.· ·Yes, sir.
0894 Page 708 ·1· · · · Q.· ·How did that come about? ·2· · · · A.· ·So in -- in the summer, as school ·3· ·districts start planning and building out budgets ·4· ·and staffing for the upcoming year, we were doing ·5· ·some parent survey data in conjunction with many ·6· ·districts that were doing parent survey data.· And ·7· ·we started seeing some consistent trends for ·8· ·families in, let's say, the end of May, beginning of ·9· ·June.· The surveyor results were coming up almost in 10· ·those role of thirds when we were asking parents 11· ·what kind of learning option did they want for their 12· ·child. 13· · · · · · ·And early on, about a third of our parents 14· ·said that come fall, come August, we want to send 15· ·our children back to school, a traditional 16· ·brick-and-mortar, face-to-face experience.· They 17· ·want a classroom teacher and a seat on a roster for 18· ·their child. 19· · · · · · ·About a third of our families said that 20· ·they were not comfortable sending their children 21· ·back and desired, whether it was a virtual school 22· ·program or distance learning program, or maybe even 23· ·a home school program, they weren't ready to send 24· ·their children back when -- when it came back to 25· ·schools reopening in August.· And then about a third
0895 Page 709 ·1· ·of our families were undecided. ·2· · · · · · ·So as we began engaging in conversations ·3· ·with districts over the summer, and the legislature ·4· ·starts passing the -- passing budgets, and school ·5· ·districts start receiving their projected ·6· ·enrollment, it became very clear from school ·7· ·superintendents and school finance directors that ·8· ·the way our current statutes are written, and the ·9· ·way that seat time is captured in schools in 10· ·Florida, that if there wasn't some flexibility in 11· ·innovative opportunities, and 10, 20, 30 percent of 12· ·our families want an alternative option, if we 13· ·weren't able to provide that, that could have 14· ·significant impact on their revenue. 15· · · · Q.· ·And how so? 16· · · · A.· ·Well, in the state of Florida, students 17· ·are basically forecasted in enrollment.· And the 18· ·funding models, they get very complex.· It's called 19· ·the Florida Education Finance Program, but there's 20· ·two traditional ways that students get funded for in 21· ·the state of Florida. 22· · · · · · ·One is through a virtual school model, and 23· ·typically, that means a student withdraws from their 24· ·local school, or maybe even their local district, 25· ·and enrolls in a virtual program, like, say the
0896 Page 710 ·1· ·Florida virtual school, or many school districts ·2· ·have a virtual franchise. ·3· · · · · · ·Well, those students get funded based on ·4· ·court completion, and it's not a set amount of ·5· ·hours.· And that is a work-at-your-own-pace ·6· ·environment, and that is something that many ·7· ·students in the state of Florida have great success ·8· ·in, but there's also many students in the state of ·9· ·Florida that do not have great success in that 10· ·program as well. 11· · · · · · ·Well, the other way that students generate 12· ·funding and meet instructional hour requirements is 13· ·through seat time.· And basically, that's 14· ·face-to-face learning experience.· And those 15· ·students basically, twice a year, in something that 16· ·we call survey get captured.· And that happens in 17· ·October, and it happens in February.· And that is 18· ·based on the -- the students that are present in 19· ·class, and the different courses that they're 20· ·enrolled in is how the schools and school districts 21· ·would get funded for those students. 22· · · · · · ·Districts knew that if they weren't able 23· ·to open their schools and count students that wanted 24· ·that face-to-face seat time experience in learning 25· ·remotely or in a distant environment, they would not
0897 Page 711 ·1· ·get credit for those students unless we were able to ·2· ·provide some flexibility for them. ·3· · · · · · ·So that's really the early conversations ·4· ·around this emergency order, was a direct result ·5· ·from the request of finance directors and ·6· ·superintendents asking us to provide their families ·7· ·the flexible options that they are desiring in ways ·8· ·that we can help support and meet them. ·9· · · · · · ·MR. WELLS:· Let me have put up Exhibit 3, 10· · · · a June 29, 2020, letter from Miami-Dade County 11· · · · public schools to the Honorable Richard 12· · · · Corcoran. 13· · ·BY MR. WELLS 14· · · · Q.· ·Are you familiar with this letter? 15· · · · A.· ·Yes, sir. 16· · · · Q.· ·Okay.· And is this what you were talking 17· ·about, this request for help and consideration and 18· ·trying to make these options available to parents 19· ·that were not face-to-face, but rather, some form of 20· ·eLearning? 21· · · · A.· ·That's correct. 22· · · · · · ·There's an initialism in there called FTE, 23· ·which stands for full-time equivalent.· And the 24· ·consensus of that letter is -- is they wouldn't get 25· ·credit for a full-time student if they weren't able
0898 Page 712 ·1· ·to bring that student in the class during that ·2· ·survey window, even though the school and the ·3· ·teachers are working with the students, because that ·4· ·student is learning remotely, we needed to put into ·5· ·place some flexible options for those school ·6· ·districts.· And that's basically what this letter is ·7· ·referring to in asking for that flexibility. ·8· · · · Q.· ·I think if you look in the first paragraph ·9· ·it says that they've done a survey, and there are 10· ·some parents that want their children to come, but 11· ·there are many that are uncomfortable, so that there 12· ·would be a situation where you have some students 13· ·there, but many, perhaps, attending by eLearning? 14· · · · A.· ·Some refer to it as eLearning, or we call 15· ·it distance learning.· And that's when we put forth 16· ·the emergency order, and we developed what we're 17· ·referring to as an assurance template that districts 18· ·submitted on how they're going to meet the 19· ·assurances of the emergency order.· And in their 20· ·reopening plan, we asked them to identify how 21· ·they're going to provide this learning space. 22· · · · · · ·And when we did that, we 100 percent 23· ·wanted those decisions to be made locally with the 24· ·teachers and leaders and experts in their school 25· ·district, in determining whether that was going to
0899 Page 713 ·1· ·be done in a synchronous environment, an ·2· ·asynchronous environment, how are they going to ·3· ·curriculum map?· How are they going to make sure the ·4· ·students that want a seat on a teacher's roster held ·5· ·for them but don't want to take that seat until ·6· ·they're comfortable, make sure we can maintain ·7· ·instructional continuity with them in a remote ·8· ·setting. ·9· · · · Q.· ·So the concept of the emergency order was 10· ·to provide more flexibility for the parents and the 11· ·superintendents? 12· · · · A.· ·That's correct. 13· · · · · · ·And basically what the emergency order did 14· ·is, because what districts were really asking is: 15· ·We have a projected student count.· We don't know 16· ·how many students are going to come to school.· But 17· ·we need to build a system and staff that system as 18· ·if every student is going to come to school. 19· · · · · · ·They may not come in August, they may not 20· ·come in October, but they may come in January.· They 21· ·may come in February.· If we can't have some 22· ·assurances to protect our funding so that we can 23· ·staff to what we're projected of students to have, 24· ·that could be problematic. 25· · · · · · ·So this emergency order gave those
0900 Page 714 ·1· ·districts the assurance that they would get funded ·2· ·to the level that they were projected.· And the ·3· ·reason that's really important is because that ·4· ·survey data does get recalibrated, and ·5· ·superintendents and school districts are used to ·6· ·this. ·7· · · · · · ·We get a projection.· A projection is a ·8· ·projection.· We believe you're going to have this ·9· ·many students and we believe you're going to 10· ·generate this much money in FTE, that full-time 11· ·equivalency.· Well, after those snapshots of data, 12· ·those projections turn into actual deliverables. 13· · · · · · ·And districts we very worried that if 10, 14· ·20, 30, 40, 50 percent of families aren't 15· ·comfortable sending their students back, when they 16· ·would get recalibrated, say, in January of the 17· ·school year, it could be detrimental to their -- to 18· ·their budget and staffing formulas. 19· · · · · · ·And basically, in response to the requests 20· ·from districts, we were able to put some hold 21· ·harmless language in place so that districts can 22· ·plan accordingly and move forward with providing 23· ·that full school experience. 24· · · · Q.· ·Let me stop you there and talk about that 25· ·timing for a moment.
0901 Page 715 ·1· · · · · · ·You said that census is done in October ·2· ·and February, so for the 2019-2020 year, that would ·3· ·have been October of '19 and February of '20? ·4· · · · A.· ·That's correct. ·5· · · · Q.· ·So the censuses for the 2019-2020 year ·6· ·would have been in the books before the closure for ·7· ·coronavirus? ·8· · · · A.· ·That's correct. ·9· · · · · · ·And that was a big deal to -- to school 10· ·district leaders as well, and I go back to 11· ·Commissioners -- Corcoran's stance on compassion and 12· ·grace. 13· · · · · · ·When we were making distance learning 14· ·decisions in March, he put in and requested and got 15· ·the support of the governor some language to give 16· ·districts that flexibility with seat time 17· ·requirements, and assured them that their funding 18· ·would not be recalibrated, because that snapshot had 19· ·already happened.· The budget was already set forth 20· ·and allocated, and we were not going to 21· ·reappropriate that. 22· · · · Q.· ·Now, for the school year that we're in 23· ·now, the budgeting's going to be based on what 24· ·happens in October of this year and February of next 25· ·year?
0902 Page 716 ·1· · · · A.· ·Well, the districts receive a projected ·2· ·forecast.· Say I'm in school district A, it may say, ·3· ·we project, you know, 20,000 students, and according ·4· ·to your base student allocation, your budget will be ·5· ·$200 million.· I'm just using round numbers. ·6· · · · · · ·Well, without this emergency order, when ·7· ·we would get to that survey in October, that would ·8· ·have been recalibrated on the number of students ·9· ·that have completed courses in virtual, or the 10· ·number of students that actually showed up and 11· ·participated during -- in that student -- in that 12· ·teacher's class during that face-time instruction. 13· · · · · · ·Anybody that decided to do distance 14· ·learning or learn remotely would not have been 15· ·captured in that data. 16· · · · Q.· ·And that would have incented the 17· ·superintendents not to make these extra options 18· ·available? 19· · · · A.· ·Well, the superintendents were requesting 20· ·that these options be available, because we've got 21· ·many families -- and I talk to families every day 22· ·and stay engaged with school districts -- where they 23· ·want their child to be in their home's own school, 24· ·their neighborhood school, to be part of that 25· ·elementary school that they started kindergarten in,
0903 Page 717 ·1· ·they want to be in that fourth grade teacher -- they ·2· ·want a seat on that teacher's roster. ·3· · · · · · ·They don't want to withdraw from that ·4· ·school and enroll in Florida Virtual School or a ·5· ·virtual learning program of the sorts.· They want a ·6· ·teacher in that school, and they want to stay ·7· ·connected to that school, but they want to send ·8· ·their child to that school when they're comfortable ·9· ·and ready to do that. 10· · · · · · ·So a lot of families are saying, we want a 11· ·remote option.· We don't want to enroll in a virtual 12· ·program that's a learn-at-your-own-pace.· We want 13· ·directed instruction.· We want a connection to a 14· ·teacher in our school, and we want to be able to 15· ·provide that flexibility.· And this is what we were 16· ·unable to do throughout that emergency order. 17· · · · Q.· ·Let me put that up for a moment, and we'll 18· ·ask some questions.· I'm not going to leave it up 19· ·there too terribly long. 20· · · · · · ·Wow, okay.· So you're familiar with this 21· ·emergency order? 22· · · · A.· ·Yes, sir. 23· · · · Q.· ·And the whereas clauses to this emergency 24· ·order? 25· · · · A.· ·Yes, sir.
0904 Page 718 ·1· · · · Q.· ·Let me ask you about -- see if I can read ·2· ·this. ·3· · · · · · ·MR. WELLS:· Oh, thank you. ·4· · ·BY MR. WELLS ·5· · · · Q.· ·The fourth whereas clause, "Whereas ·6· ·there's a need to open schools fully to ensure the ·7· ·quality and the continuity of the educational ·8· ·process, the comprehensive well-being of students ·9· ·and families, and a return to Florida hitting its 10· ·full economic stride." 11· · · · · · ·What does that mean?· What's being said? 12· · · · A.· ·Well, schools do more than just educate 13· ·students, and schools are a place where we provide 14· ·educational supports, primarily, but it's also a 15· ·place where students get connected to their peer 16· ·groups and their social-emotional needs are being 17· ·met. 18· · · · · · ·But we also have many students that rely 19· ·on schools as a place to receive food, a place of 20· ·belonging, a place of safety.· And in fact, there 21· ·are some schools that are full comprehensive schools 22· ·that provide medical care for not just the students, 23· ·but for the family. 24· · · · · · ·And especially in our neighborhood 25· ·schools, they're a hub of that community, and where
0905 Page 719 ·1· ·parents and community members go to get latest ·2· ·information, and -- and stay connected. ·3· · · · · · ·And we know that schools are a big part of ·4· ·not just our children's life but the sustainability ·5· ·and growth of our communities.· And we meet ·6· ·high-quality educational systems that support the ·7· ·local business and industry needs to make sure that ·8· ·when our students leave us in K-12, they're ready to ·9· ·transition for success in postsecondary outcomes, or 10· ·have the credentials necessary for them to support 11· ·their local community industry. 12· · · · · · ·And if we're not able to open schools and 13· ·provide that safety network, it could have 14· ·devastating impacts on the local community and their 15· ·needs. 16· · · · · · ·MR. WELLS:· Mr. Hill, let's go to the next 17· · · · page.· Keep going.· All the way down to 18· · · · reopening.· Next -- keep going.· Keep going. 19· · · · Yeah, keep going.· I want to -- no, stop. 20· · ·BY MR. WELLS 21· · · · Q.· ·Look at Section D, students with 22· ·disabilities and English language. 23· · · · · · ·Why is this in the order? 24· · · · A.· ·Well, one of the things that we know as we 25· ·implemented distance learning, and we -- we're
0906 Page 720 ·1· ·hearing from families and schools and teachers and ·2· ·leaders, there was concerns that we may not be ·3· ·providing a full access and array of services, ·4· ·especially to some of our most vulnerable ·5· ·populations. ·6· · · · · · ·So a lot of times, our students with ·7· ·disabilities rely on related services that's ·8· ·identified in their individualized education plan. ·9· ·And those services could mean occupational therapy, 10· ·physical therapy, speech and language therapy.· Some 11· ·additional layers of support that may not transition 12· ·into a distance learning environment. 13· · · · · · ·And those students, both state and 14· ·federally, have a safety umbrella around making sure 15· ·their needs are being met, which is referred to as 16· ·FAPE, and that stands for a Free and Appropriate 17· ·Public Education. 18· · · · · · ·And we knew we were responding to -- to a 19· ·pandemic and a crisis, and put some short-term 20· ·conditions in place to support learning and 21· ·continuity the best that we can.· But moving 22· ·long-term, as we start planning for an entire school 23· ·year, we need to take those conversations on whether 24· ·or not students do have access to a free and 25· ·appropriate public education.
0907 Page 721 ·1· · · · · · ·And if we can't fully implement these ·2· ·individualized education plans and give the related ·3· ·services to our students who need them the most, ·4· ·regression may happen, and it may be significant. ·5· · · · · · ·Our English language learners, especially ·6· ·if English isn't being spoken at home, rely on a ·7· ·full language immersion program where they need ·8· ·access to educators and peer groups to help support ·9· ·their transition into learning English. 10· · · · · · ·And a lot of times, that may start with 11· ·listening and speaking, and the students may be able 12· ·to do that with some levels of support in a distant 13· ·environment, but as they transition to reading and 14· ·writing, typically, those students need more 15· ·interaction, more directed support, and need to be 16· ·around other speakers of English in order to help 17· ·support and make that transition. 18· · · · Q.· ·Let me move up to Section C.· You talked 19· ·about this concept of progress. 20· · · · · · ·Why was Section C on progress monitoring 21· ·put into this emergency order? 22· · · · A.· ·So as we implemented distance learning in 23· ·March, and knew that we were going to stay in that 24· ·model for the rest of the year, the decision was 25· ·made -- and it was the right decision -- to -- some
0908 Page 722 ·1· ·said what we refer to as our accountability program. ·2· · · · · · ·And in the state of Florida, students in ·3· ·three through eighth grade take various assessments ·4· ·in English, language arts, and math.· And we also ·5· ·have end-of-course exams, and algebra, and biology, ·6· ·and in ways that we kind of take an annual checkup ·7· ·or an annual snapshot on our students to make sure ·8· ·they're learning what we expect them to learn and ·9· ·achieving the level of growth that we want to see. 10· · · · · · ·Well, when we implemented distance 11· ·learning, and it transitioned to a long-time impact, 12· ·we were not able to administer those assessments. 13· ·And oftentimes, those assessments are tools that 14· ·become very valuable to school administrators, as 15· ·they're looking at placing students into coursework 16· ·for the following year, or even determining which 17· ·type of professional development their teachers and 18· ·leaders may need for support. 19· · · · · · ·So we know that the impact of that COVID 20· ·slide and summer slide that we're talking about 21· ·could be great.· And when students start 22· ·transitioning back to school, we want a robust 23· ·baseline progress monitoring system so we can get a 24· ·snapshot of how students are.· And it's like an 25· ·annual checkup.
0909 Page 723 ·1· · · · · · ·It's an evaluative piece of information ·2· ·that we can use to assess, diagnose, and prescribe ·3· ·where the students are, and meet them where their ·4· ·needs are, and make sure that we can mitigate ·5· ·learning loss and get them as up to grade level, if ·6· ·not accelerated and beyond as soon as possible. ·7· · · · Q.· ·Thank you. ·8· · · · · · ·MR. WELLS:· Let's go to page 2, please, ·9· · · · Mr. Hill. 10· · · · · · ·Okay.· Go to Section 1, "Reopening 11· · · · Requirements," Section A, "All Schools 12· · · · Opening."· Much is why we are here. 13· · ·BY MR. WELLS 14· · · · Q.· ·The document says, "Upon reopening in 15· ·August, all school boards and charter school 16· ·governing boards must open brick-and-mortar schools 17· ·at least five days per week for all students subject 18· ·to advice and orders to the Florida Department 19· ·of Health, local departments of health, Executive 20· ·Order 20-149, and subsequent executive orders." 21· · · · · · ·Why this requirement, why is this 22· ·statement about reopening in August 23· ·brick-and-mortar? 24· · · · A.· ·Well, Florida Statute has a date, a 25· ·calendar date, that says no schools or school
0910 Page 724 ·1· ·districts can start school before August 10th.· And ·2· ·let's say COVID or non-pandemic aside, the majority ·3· ·of school districts each year will start their ·4· ·school calendar around that time on August 10th. ·5· · · · · · ·The latest that we have typically seen was ·6· ·about August 24th.· Going into this year, there's ·7· ·districts that have delayed that, but the reason we ·8· ·start school in August is because we also have some ·9· ·requirements that say schools need to be open for 10· ·180 days or the equivalent of 900 instructional 11· ·hours for grades four through 12, which is how we 12· ·build out a school calendar. 13· · · · · · ·Ideally, you want your first semester, if 14· ·you break that down into weeks, you have two 15· ·nine-week periods, 18 weeks, and we call that a 16· ·term, to end a winter break.· And then the second 17· ·term would begin in January and end sometime in May 18· ·or June. 19· · · · · · ·If we don't set an instructional calendar 20· ·that meets that 180 days of instruction or the 21· ·equivalent of 900 hours, and keep pushing that back, 22· ·and push that back into September, October, then now 23· ·we're getting into June and July, which takes away 24· ·planning for the upcoming year.· And if we get past 25· ·July, we start crossing fiscal years.
0911 Page 725 ·1· · · · · · ·So we asked districts to continue with ·2· ·those plans, which they do each and every year, to ·3· ·develop a calendar that meets their needs best that ·4· ·starts in August so that we can get those ·5· ·instructional hours and requirements and ·6· ·opportunities for students to learn in those ·7· ·semester breaks. ·8· · · · · · ·That is what districts want and typically ·9· ·submit to us each and every single year. 10· · · · Q.· ·Thank you. 11· · · · · · ·That tells us all why August.· But why 12· ·does it say must, M-U-S-T, must, open 13· ·brick-and-mortar schools at least five days per week 14· ·for all students? 15· · · · A.· ·So, one, we've got parents that are asking 16· ·for this and almost demanding this of us. 17· · · · · · ·And, two, we know that distance learning 18· ·may not have worked for everyone.· And when we look 19· ·at vulnerable populations, and we look at schools 20· ·are pretty much open year-round, we want to look at 21· ·ways that we can start identifying groups of 22· ·students that need to be prioritized and brought 23· ·into campus, and given the high-quality instruction 24· ·that they -- that they need. 25· · · · · · ·And on top of that, we often talk about
0912 Page 726 ·1· ·mitigating learning loss.· But we also have students ·2· ·that need opportunities to excel.· And we have ·3· ·students that are in high-level engaging programs ·4· ·that it's really hard to replicate their learning ·5· ·environment and needs in -- in distance learning. ·6· ·We have students that need access to a chemistry ·7· ·lab.· It's really hard to reproduce some of our art ·8· ·programs or our career and technical education ·9· ·programs. 10· · · · · · ·And even in the summer, reopening schools 11· ·in the fall aside, there was a sense of urgency 12· ·around students that were in nursing programs, 13· ·construction programs, that needed to be in a 14· ·face-to-face environment to continue their 15· ·education, and we were able to do that. 16· · · · · · ·And we want to continue to do that and 17· ·make sure that our campuses are open and start 18· ·receiving students. 19· · · · Q.· ·Well, let me stop you there. 20· · · · · · ·You knew on July 6th when this went out 21· ·that, you know, COVID-19 had not disappeared in the 22· ·state of Florida, didn't you? 23· · · · A.· ·Yes. 24· · · · Q.· ·You knew it was still an issue and still a 25· ·concern around schools reopening, didn't you?
0913 Page 727 ·1· · · · A.· ·Yes. ·2· · · · Q.· ·Okay.· And in fact, here, it says, "Must ·3· ·be open," and goes on, "subject to advice and orders ·4· ·of the Florida Department of Health, local ·5· ·departments of health, executive order, and ·6· ·subsequent executive orders." ·7· · · · · · ·Put that aside for a moment.· I've read ·8· ·this more times than I care.· There's nothing in ·9· ·here that talks to the school superintendents about 10· ·safe ways to open schools; there's no checklist or 11· ·anything else in this document, is there? 12· · · · A.· ·In the emergency order? 13· · · · Q.· ·Correct. 14· · · · A.· ·No, that's not one of the assurances 15· ·outlined in the emergency order. 16· · · · Q.· ·And you don't provide that information in 17· ·the emergency order either, do you? 18· · · · A.· ·No. 19· · · · Q.· ·Let me -- we'll come back to the emergency 20· ·order. 21· · · · · · ·MR. WELLS:· Would you put up Exhibit 2, 22· · · · please. 23· · ·BY MR. WELLS 24· · · · Q.· ·Okay.· Mr. Oliva, are you familiar with 25· ·Exhibit 2 called "Reopening Florida's Schools and
0914 Page 728 ·1· ·the CARES Act"? ·2· · · · A.· ·Yes, sir. ·3· · · · Q.· ·What involvement did you have, if any, in ·4· ·the production of this document? ·5· · · · A.· ·So this is a collaborative project between ·6· ·several members of the Division of Public Schools, ·7· ·as well as our senior leadership team. ·8· · · · Q.· ·What other groups contributed to this? ·9· · · · A.· ·Well, internally, as far as the Department 10· ·of Education employees, or -- 11· · · · Q.· ·Total.· I mean, was there any external 12· ·groups that contributed to this and participated in 13· ·this? 14· · · · A.· ·Yes, but before we published this 15· ·document, we shared this document with what we refer 16· ·to as relevant stakeholder groups, commonly known as 17· ·school superintendents. 18· · · · · · ·We shared it with district leaders.· We 19· ·shared it with other state agencies.· We shared 20· ·it -- in fact, I believe there's a page at the end 21· ·that lists all the organizations that contributed to 22· ·the collaboration of this, but it would be multiple 23· ·different organizations across many different 24· ·platforms. 25· · · · Q.· ·Did it include the Florida Education
0915 Page 729 ·1· ·Association? ·2· · · · A.· ·Part of the review and the development of ·3· ·this document was direct input from the Florida ·4· ·Education Association's task force, yes. ·5· · · · Q.· ·Okay.· Thank you. ·6· · · · · · ·MR. WELLS:· Now, let's turn, Mr. Hill, if ·7· · · · you would, please, to page 35.· And I promise ·8· · · · ware not going through 175 pages. ·9· · ·BY MR. WELLS 10· · · · Q.· ·Page 35, part 2, "Guidance for reopening 11· ·Healthy Learning Environments." 12· · · · · · ·Are you familiar with this -- I don't 13· ·know -- it's another 35 or 40 pages in this section? 14· · · · A.· ·Yes, sir. 15· · · · Q.· ·What was the purpose of providing this? 16· · · · A.· ·So this document isn't a one-stop shop for 17· ·everything.· But it's a tool where we were able to 18· ·aggregate the latest best practices in research and 19· ·resources, and collect all that and put it into one 20· ·document, not to be in a prescriptive manner but to 21· ·be in a supportive manner for school districts to 22· ·start outlining the conversations that they needed 23· ·to have locally when developing their reopening 24· ·plan. 25· · · · · · ·So this is a supportive tool that
0916 Page 730 ·1· ·districts asked us for.· In fact, it was very well ·2· ·received, as well as in this tool it outlines the ·3· ·dollars that school districts would be receiving, ·4· ·and federal support, as they're developing those ·5· ·plans. ·6· · · · · · ·But there's some very clear statements in ·7· ·this document that school districts are able to use ·8· ·in developing their reopening plans that they ·9· ·eventually ended up submitting to us here at the 10· ·Department. 11· · · · Q.· ·So how does this work on this page?· Is 12· ·this supposed to be like going around a clock, or is 13· ·this just five different points? 14· · · · A.· ·Well, it -- they all intersect, so it's 15· ·really to set a vision that if we're able to achieve 16· ·all five of these talking points into one plan, then 17· ·we should be in a pretty comprehensive place when 18· ·we're looking at the implementation of that plan. 19· · · · Q.· ·There's a thing here, it says, "Dimmer 20· ·switch, step-by-step approach." 21· · · · · · ·You talked earlier when the schools were 22· ·closed in March about taking that light switch and 23· ·flipping it off; what are we talking about here with 24· ·the dimmer switch? 25· · · · A.· ·So that -- that's one of the analogies
0917 Page 731 ·1· ·that we've been using and we often refer to when ·2· ·we're providing support for our districts.· And in ·3· ·March, we basically flipped the switch off on our ·4· ·classrooms as we knew it. ·5· · · · · · ·And we -- we started engaging in ·6· ·conversations about reopening, we knew from day one ·7· ·we're not just going to flip the switch back on and ·8· ·everything's going to be back the way it was.· We ·9· ·knew we needed to change that switch and put in a 10· ·dimmer switch. 11· · · · · · ·And really, the mindset is, is how can we 12· ·start identifying, in a safe and efficient manner, 13· ·small pockets of students and gradually scale up 14· ·those services that we were able to provide to our 15· ·students before we -- we moved to distance learning 16· ·in March. 17· · · · · · ·It's -- it's a gradual and methodical 18· ·approach, which is why it states very clearly that 19· ·these decisions are going to be made at the local 20· ·level, working with the local administrators and 21· ·school leaders in their community, that know their 22· ·school buildings, that know their students, and 23· ·their local health experts, that know the same 24· ·amount of information for the development of these 25· ·plans as they do gradually turn the dimmer switch
0918 Page 732 ·1· ·back on into our classrooms. ·2· · · · Q.· ·Dr. Hopes from Manatee County was on ·3· ·before you, and talked about working with the ·4· ·Department of Health, working with the community ·5· ·teachers, his union. ·6· · · · · · ·Is that what you're talking about here, ·7· ·establishing supports and partnerships and ·8· ·communities to make local decisions? ·9· · · · A.· ·That's it.· And these decisions are not 10· ·easy to make sometimes.· And the more relevant input 11· ·that you can get in making decisions, the better or 12· ·more oftentimes you're going to come in a better 13· ·landing place. 14· · · · · · ·But what I can tell you was very clear 15· ·from our school districts, when they're asking us to 16· ·give them some documents and some talking points and 17· ·framework was:· They did not want a 18· ·one-size-fits-all approach or mandate from the 19· ·State. 20· · · · · · ·And that became an ongoing theme as we 21· ·were developing recommendations and best practices, 22· ·because they wanted to have local decision-making. 23· ·The needs of schools and students in Lafayette 24· ·County is very different than Collier County, which 25· ·is very different than Putnam County or even Palm
0919 Page 733 ·1· ·Beach County. ·2· · · · · · ·And we were very deliberate in that ·3· ·mindset to -- to make sure we didn't do a ·4· ·one-size-fits-all mandate and be very respective of ·5· ·local decision-making from day one. ·6· · · · Q.· ·And how does that relate to the -- I guess ·7· ·the 12:00 statement here, reopening is a locally ·8· ·driven decision? ·9· · · · A.· ·I think that just reinforces the fact. 10· · · · · · ·We've got elected officials, elected 11· ·school board members, school superintendents, and 12· ·district leaders.· And when it comes down to 13· ·developing and implementing their calendars, their 14· ·curriculum, their innovative learning models, their 15· ·scheduling and staffing for schools, we want to give 16· ·them the full authority and autonomy to make that 17· ·done at the local level. 18· · · · · · ·MR. WELLS:· Okay.· Let's go to, if you 19· · · · would, while we're still on this document, page 20· · · · 51. 21· · ·BY MR. WELLS 22· · · · Q.· ·I'm only going to do a couple of these, 23· ·just to get an idea. 24· · · · · · ·What are we seeing here, where it says, 25· ·"Recommendations to redesign the school day to
0920 Page 734 ·1· ·reduce risks," sir? ·2· · · · A.· ·So this goes back to just some best ·3· ·practices and ideas to share. ·4· · · · · · ·When we're asking schools to think about ·5· ·how schools were going to reopen in fall, we wanted ·6· ·to give them ideas of what we've seen on -- in other ·7· ·schools' plans, other states' plans, national best ·8· ·practices guidelines, but just things to consider as ·9· ·you're developing these plans. 10· · · · · · ·We're not going to put a one-size-fits-all 11· ·mandate that says every classroom must look at this, 12· ·but these are things that we've seen on the national 13· ·landscape that look promising and wanted to share 14· ·that and provide that as a resource for districts to 15· ·know that some of these best practices have been 16· ·implemented in other schools and in other districts, 17· ·and they may want to consider that as well. 18· · · · · · ·MR. WELLS:· If we can go to page 52 and 19· · · · then I think we'll be done with this. 20· · ·BY MR. WELLS 21· · · · Q.· ·"Recommendations communicate transparently 22· ·and frequently." 23· · · · · · ·What was the idea behind these suggestion 24· ·points? 25· · · · A.· ·Well, it -- it's about being transparent.
0921 Page 735 ·1· · · · · · ·And, you know, when you open up schools or ·2· ·you have possibility of exposure, we're encouraging ·3· ·districts to -- and they are -- working with their ·4· ·local department of health in contact tracing, but ·5· ·to be transparent and -- and share what's happening ·6· ·on school campuses.· Be up front and honest on the ·7· ·way they're going to keep their educational families ·8· ·safe. ·9· · · · · · ·And when we say educational family, we're 10· ·talking about teachers, leaders, bus drivers, 11· ·support staff, students, and engage them in the 12· ·process.· It shouldn't be done in isolation, and 13· ·when you're developing these plans to -- to listen 14· ·to all different perspectives and points of view, 15· ·and if we can do that in a collaborative manner, 16· ·we'll have a better product in the end. 17· · · · Q.· ·I'm not going to pull it out in this, but 18· ·does this -- you said the document also talked about 19· ·the CARES Act. 20· · · · · · ·What did that have to do and why were 21· ·you -- 22· · · · · · ·MR. WELLS:· You can take it down. 23· · ·BY MR. WELLS 24· · · · Q.· ·-- and why were you discussing the 25· ·CARES Act in connection with providing resources to
0922 Page 736 ·1· ·the superintendents and school districts around ·2· ·reopening? ·3· · · · A.· ·So the State of Florida received some -- ·4· ·and it's called the CARES dollars -- from the ·5· ·federal level.· And we were able to, through ·6· ·different programs, provide additional dollars to ·7· ·school districts for COVID-related expenses. ·8· · · · · · ·And part of that grant was -- we refer to ·9· ·it as an entitlement grant.· Basically, every 10· ·district gets a certain allotment based on the 11· ·number of students they have in that district, and 12· ·about $700 million throughout the state of Florida 13· ·was directly given to school districts. 14· · · · · · ·In fact, we were able to roll out those 15· ·assurances grants and deploy those dollars in a fast 16· ·and efficient manner, but those are dollars that 17· ·districts can use for a COVID-related expenses, 18· ·buying personal protective equipment, professional 19· ·development.· They had full -- they had pretty -- 20· ·pretty full flexibility, as long as it was a 21· ·COVID-related expense to use those dollars as they 22· ·saw fit. 23· · · · · · ·MR. WELLS:· Let me bring up, if you would, 24· · · · Mr. Hill, Exhibit No. 3. 25
0923 Page 737 ·1· · ·BY MR. WELLS ·2· · · · Q.· ·Are you familiar with this document? ·3· · · · A.· ·Yes, sir. ·4· · · · Q.· ·Okay.· And does this lay out the ·5· ·allocation -- ·6· · · · · · ·MR. WELLS:· Go to the bottom of the second ·7· · · · page, Mr. Hill, please. ·8· · ·BY MR. WELLS ·9· · · · Q.· ·693,223 -- 693 thousand -- million, I'm 10· ·sorry.· I got to go back to public school. 11· · · · · · ·$693,223,066 that were allocated.· And 12· ·those went out directly to the school districts? 13· · · · A.· ·Correct. 14· · · · Q.· ·So, for example, just scroll back up on 15· ·that page.· You should be able to find Orange 16· ·County.· Where is the "Os," right?· Orange County, 17· ·$55 million? 18· · · · A.· ·Correct. 19· · · · · · ·And I think it's important to note that 20· ·that would include dollars for their public charter 21· ·schools.· And then there's a term called equitable 22· ·services for the private schools as well, but for 23· ·the Orange County school district and associated 24· ·educational agencies within their district, their 25· ·allocation was about $55 million.
0924 Page 738 ·1· · · · Q.· ·And then you see Miami-Dade County ·2· ·119 million? ·3· · · · A.· ·Correct. ·4· · · · Q.· ·Okay.· Now, in addition, have materials ·5· ·like protective equipment been made available to the ·6· ·districts? ·7· · · · A.· ·So the emergency operation center had some ·8· ·dollars available, and I know they were responsible ·9· ·for providing to school districts masks. 10· · · · · · ·They had a formula that looked at -- I 11· ·think it was the number of teachers, the number of 12· ·students, but some sort -- there was a methodology 13· ·that they were able to allocate at the state level 14· ·and divvy up some resources to school districts as 15· ·well. 16· · · · · · ·MR. WELLS:· Now, let me go back, Mr. Hill, 17· · · · to the emergency order.· And go to page 6. 18· · ·BY MR. WELLS 19· · · · Q.· ·III is called "Reporting Flexibility and 20· ·Financial Continuity." 21· · · · · · ·And it says, "School districts and charter 22· ·school governing boards with an approved governing 23· ·plan will receive reporting flexibility that's 24· ·designed to provide financial continuity by the 2020 25· ·fall semester."
0925 Page 739 ·1· · · · · · ·How did that work? ·2· · · · A.· ·So this goes back to that conversation ·3· ·that school districts typically, after the ·4· ·legislature finishes and the governor signs the ·5· ·budget, get an allocation -- that happens in July -- ·6· ·that says that they're projected to have a certain ·7· ·number of students, and these are the dollars that ·8· ·are associated with the students for planning ·9· ·purposes. 10· · · · · · ·And that's how they build their staffing 11· ·formulas.· That's how they build their budget. 12· ·That's how they design programs and plan accordingly 13· ·for the upcoming school year.· Well, those dollars 14· ·include making sure those students come to school 15· ·and have access to the services that are outlined in 16· ·the budget that is appropriated. 17· · · · · · ·When we looked at this emergency order, 18· ·this is exactly referring to the protection that 19· ·districts wanted, because they knew in October there 20· ·may be 10, 20, 30, 40 percent of families not 21· ·sending their kid to school in the manner that they 22· ·typically would have. 23· · · · · · ·Without this protection, they would not 24· ·have been able to count -- to count those students 25· ·in their class.· So this -- this tells the districts
0926 Page 740 ·1· ·that if you submit a reopening plan and it's ·2· ·approved, and you implement it, we are going to hold ·3· ·you harmless and not recalibrate you based on the ·4· ·date that we receive in October, but give you the ·5· ·amount of funding that you are projecting based on ·6· ·the enrollment that was associated with your ·7· ·projection. ·8· · · · Q.· ·Okay.· Come back to that again in a ·9· ·minute. 10· · · · · · ·MR. WELLS:· If you'll just go back to the 11· · · · last sentence immediately above III, sir.· And 12· · · · highlight it for me. 13· · ·BY MR. WELLS 14· · · · Q.· ·Says, "Nothing herein requires a district 15· ·or charter school to submit a plan if the district 16· ·or charter school wishes to open in traditional 17· ·compliance statutory with requirements for 18· ·instructional days and hours." 19· · · · · · ·That's what it says, Mr. Oliva? 20· · · · A.· ·Yes, sir. 21· · · · Q.· ·Now -- so if I'm a school district, I 22· ·don't have to submit one of these plans, but correct 23· ·me if I'm wrong, if I don't get an approved plan, 24· ·then when I open, I'm going to get funding in 25· ·accordance with the statutes.
0927 Page 741 ·1· · · · · · ·So if I've got children in the seats, I ·2· ·get funded for that, but if I open up with a large ·3· ·number of eLearning, I will only be paid the way the ·4· ·eLearning people get paid. ·5· · · · A.· ·That's correct. ·6· · · · · · ·Districts could choose to not submit the ·7· ·assurances in the reopening plan.· In fact, some of ·8· ·our districts say that they feel pretty strongly ·9· ·that the majority of their families are going to 10· ·continue sending their children to school in the 11· ·manner that they've always sent, them so they're 12· ·going to move forward with the way they've always 13· ·counted their student count, and -- and meet the 14· ·instructional hour requirements and calendar 15· ·requirements that they would have done each and 16· ·every single year. 17· · · · Q.· ·Let me ask you this, though, let's just 18· ·get it right out on the table here:· Doesn't the 19· ·requirement to have an approved plan to get the 20· ·flexible funding, you need an awful lot of incentive 21· ·to get an approved plan? 22· · · · A.· ·Yes. 23· · · · Q.· ·So if I'm a school district, and I think 24· ·I'm going to have 60 or 70 percent of my students 25· ·showing up virtually, whether it be, you know,
0928 Page 742 ·1· ·virtual through the classroom or through the virtual ·2· ·high school, then my choice is either to submit one ·3· ·of these plans and get it approved, or take a very ·4· ·big haircut; isn't that true? ·5· · · · A.· ·Well, if you -- if you submit this plan ·6· ·and get it approved, you'll be held harmless to that ·7· ·October account.· So you would have a guarantee of ·8· ·funding, so, yes -- ·9· · · · Q.· ·Let's not -- 10· · · · A.· ·-- we would encourage districts to submit 11· ·a plan. 12· · · · Q.· ·Mr. Oliva, let's not use fancy terms like 13· ·"hold harmless." 14· · · · · · ·It's a bunch of money that you don't get 15· ·if you don't get the approved plan, isn't it? 16· · · · A.· ·Potentially, yes, based on who comes to 17· ·school in October. 18· · · · Q.· ·Okay.· And so if you really only have 19· ·30 percent of your people come to school in October, 20· ·then you're getting an awful lot less money? 21· · · · A.· ·Significant. 22· · · · Q.· ·So doesn't this force schools to open when 23· ·they don't really think they should when it's not 24· ·really safe? 25· · · · A.· ·Well, I think that's why in assurance one,
0929 Page 743 ·1· ·in the first bullet, it refers back to we have to ·2· ·have a plan to reopen our schools five days a week, ·3· ·but ultimately, there's local decisions by the ·4· ·school leaders, superintendent school boards, about ·5· ·welcoming those students, as long as it's done in ·6· ·consultation with local health experts. ·7· · · · Q.· ·Okay.· Well, let's talk about that.· We'll ·8· ·take the easy part first. ·9· · · · · · ·Has Dade County got an approved plan? 10· · · · A.· ·Yes. 11· · · · Q.· ·Have they opened up, or are they opening 12· ·it up in August, bricks-and-mortars? 13· · · · A.· ·No. 14· · · · · · ·In fact, they're -- they're starting 15· ·school, I believe -- I don't remember the dates of 16· ·every plan, but I want to say it's around 17· ·August 31st, with distance learning, and are 18· ·evaluating local conditions with the hope to bring 19· ·students back sooner. 20· · · · · · ·But they're projecting right now around a 21· ·mid October reopening date. 22· · · · Q.· ·And Broward County also is not going to be 23· ·opening bricks-and-mortar in August? 24· · · · A.· ·That's correct. 25· · · · Q.· ·And they have an approved plan?
0930 Page 744 ·1· · · · A.· ·That's correct. ·2· · · · · · ·Now, I will say that in collaboration and ·3· ·consultation with the leaders of both those ·4· ·districts mentioned, they are going to find ways, ·5· ·even though we consider it phase 1, find ways to see ·6· ·if they can identify classes for their most ·7· ·vulnerable students to be able to come in and ·8· ·receive services in their schools when -- when they ·9· ·can accommodate those requests. 10· · · · Q.· ·Then why, when Hillsborough County 11· ·requested to move its face-to-face opening three 12· ·weeks into September did the commissioner see fit to 13· ·write back a letter saying that that was not 14· ·appropriate under the plan? 15· · · · A.· ·So Hillsborough County had submitted a 16· ·reopening plan that met the five or seven 17· ·assurances, depending on the template that filled 18· ·out, that said that they were going to have their 19· ·schools open in a brick-and-mortar environment by 20· ·August, and be able to receive students. 21· · · · · · ·Well, that plan was approved, and it was 22· ·even posted on our website.· And then their board 23· ·took action to delay the implementation of that plan 24· ·by not receiving students for up to four weeks.· And 25· ·the concern was, is that you had drastically
0931 Page 745 ·1· ·deviated from your plan. ·2· · · · · · ·MR. WELLS:· Let's pull up Exhibit 10.· Can ·3· · · · you make that bigger, please, sir? ·4· · ·BY MR. WELLS ·5· · · · Q.· ·Okay.· This has been up a couple times ·6· ·already.· Are you familiar with this letter to ·7· ·Superintendent Davis and Chair Snively? ·8· · · · A.· ·Yes, sir. ·9· · · · · · ·MR. WELLS:· Can we go over to the -- the 10· · · · next page -- well, wait a minute.· Stop at the 11· · · · first page.· And highlight the first -- yeah, 12· · · · the first two sentences.· Or the whole 13· · · · paragraph.· No, the second paragraph, please. 14· · ·BY MR. WELLS 15· · · · Q.· ·Says, "This blanket districtwide decision 16· ·directly contradicts the district's reopening plan 17· ·which was approved because it was consistent with 18· ·the framework of emergency order 2020 and the order 19· ·seeks to empower parents with the ability to choose 20· ·the education modality best for their child's need." 21· · · · · · ·Why make the distinction that this was a 22· ·districtwide decision?· What's the significance to 23· ·you of that? 24· · · · A.· ·So when we look at the content of the 25· ·emergency order, it refers to schools and school
0932 Page 746 ·1· ·closures in a case-by-case singular event.· And when ·2· ·the decision was made to shutter every campus or ·3· ·quarantine every campus, I don't know exactly how ·4· ·many schools that Hillsborough has but I'm sure it's ·5· ·well over 200 or 250 campuses.· The questions that ·6· ·we have is what was the rationale or reasoning ·7· ·behind saying every one of these campuses now must ·8· ·close. ·9· · · · · · ·And we asked the district:· Based on that 10· ·districtwide decision to provide us some more 11· ·evidence or answer some questions.· And some of our 12· ·basic questions that we had with the district is, 13· ·well, are these schools open now? 14· · · · · · ·Do you have staff working in these 15· ·buildings and on these school campuses now and now 16· ·are you sending them home saying it's not safe to 17· ·come back to work, and continue with that planning? 18· · · · · · ·And when we have schools that -- many of 19· ·our schools in the state of Florida may cover five 20· ·to ten acres under roof on some of our big campuses. 21· ·We get that you might not be able to reopen a high 22· ·school to 2500 students but can you open it to 23· ·10 percent of your students and identify some of 24· ·those student populations and bring them out and 25· ·properly meet CDC recommendations and best practices
0933 Page 747 ·1· ·to keep them safe? ·2· · · · · · ·So that questions or the questions in this ·3· ·letter was if you're going to make a districtwide ·4· ·decision, can you provide us some more information ·5· ·and details on why every school campus must be shut ·6· ·and why none of them can be open at all, even if ·7· ·it's only to a handful of students. ·8· · · · Q.· ·Okay. ·9· · · · · · ·MR. WELLS:· Do you have that next -- okay. 10· · · · What's the number? 11· · · · · · ·MR. HILL:· Twenty-one. 12· · · · · · ·MR. WELLS:· That's the one we marked? 13· · · · · · ·MR. HILL:· Yes, sir. 14· · · · · · ·MR. WELLS:· Okay.· Well, pull up 15· · · · Exhibit 21, please.· Okay.· Scroll down. 16· · ·BY MR. WELLS 17· · · · Q.· ·We saw this exhibit yesterday, I believe, 18· ·with the -- one of the school board members from 19· ·Hillsborough County, Mr. Oliva. 20· · · · · · ·Are you familiar with these proposals that 21· ·came back from the superintendent in response to the 22· ·letter? 23· · · · A.· ·Yes, sir. 24· · · · Q.· ·Okay.· And as you can see, they have made 25· ·a proposal to -- I'm blank here, blind here -- in
0934 Page 748 ·1· ·both of these two to open up to some is very ·2· ·specialized groups.· For example, specialized ·3· ·learning centers, homeless students, migrant ·4· ·students, and the like.· And if we'll scroll back ·5· ·up, we'll see what the response was. ·6· · · · · · ·MR. WELLS:· Move it further down so I can ·7· · · · see who signed it. ·8· · ·BY MR. WELLS ·9· · · · Q.· ·Do you know who Eric Hall is? 10· · · · A.· ·Yes, sir.· He's our senior chancellor. 11· · · · Q.· ·Okay.· Are you all in the same group? 12· ·Does he report to you?· How does that work? 13· · · · A.· ·I report to him. 14· · · · Q.· ·Oh, okay.· Don't tell him I said the 15· ·other, then. 16· · · · · · ·As you can see, he's not, apparently, 17· ·happy with the letter coming back, and says, "It's 18· ·unclear whether Proposals 1 and 2 are consistent 19· ·with E06 based on the details.· If you wish to 20· ·proceed with either of these, they want a 21· ·school-by-school analysis along with an amended 22· ·plan." 23· · · · · · ·Why do you want that school-by-school 24· ·analysis on what they're able to get back?· Why not 25· ·just say, well, you told me you're going to do the
0935 Page 749 ·1· ·bottom 300 and migrant workers and I forget what the ·2· ·other one was.· Why isn't that enough? ·3· · · · A.· ·So this goes back to that dimmer switch ·4· ·approach and we know -- we want to support districts ·5· ·as they gradually reopen their campuses and, while ·6· ·Proposals 1 and 2 start to do that by identifying ·7· ·vulnerable populations, start to look at our ·8· ·struggling schools, in our special needs centers, ·9· ·our followup with questions was, okay, if that's, 10· ·say, 100 of your 250 schools is there anything -- 11· ·what are you doing at the other 150 schools? 12· · · · · · ·And if it's not safe to open them or it's 13· ·the conditions aren't right or maybe you can bring 14· ·in a small group of students, we want to know what 15· ·that plan is as well. 16· · · · · · ·MR. WELLS:· No. 11. 17· · · · · · ·(Thereupon, marked for identification is 18· · · · Defense Exhibit 11.) 19· · ·BY MR. WELLS 20· · · · Q.· ·Now, has the superintendent gotten back 21· ·with you yet on a breakdown as to how they might be 22· ·able to spread some students across the 230-some-odd 23· ·schools -- 260, I'm sorry, schools they have in 24· ·Hillsborough County? 25· · · · A.· ·He did not provide that breakdown, but he
0936 Page 750 ·1· ·made the decision to reopen their campuses as what ·2· ·was consistent with their previously approved plan. ·3· ·They did ask for flexibility in reopening dates to ·4· ·be able to start with distance learning, but they ·5· ·plan on opening their school campuses on ·6· ·August 31st, which is in line with the assurances ·7· ·that they had submitted previously. ·8· · · · · · ·MR. WELLS:· Exhibit No. 11, please. ·9· · ·BY MR. WELLS 10· · · · Q.· ·Now, did Monroe County also make a 11· ·decision -- let me -- isn't it true Monroe County 12· ·decided that they wanted to push into September 13· ·because, as anybody that's ever been down there 14· ·knows, August is lobster season and there's lots of 15· ·tourists down there and they were concerned about 16· ·being open? 17· · · · A.· ·Yeah.· So, in July -- Monroe County is 18· ·another school district that had submitted a 19· ·reopening plan and even in their reopening plan 20· ·identified conditions such as high community spread 21· ·and an according plan on how they would implement 22· ·distance learning if they were determined to be in 23· ·that area of -- of need. 24· · · · · · ·And I want to say it was in July, probably 25· ·about the second week of July, they've been -- their
0937 Page 751 ·1· ·school board, working with their local department ·2· ·of health, identified Monroe County as a high ·3· ·community spread and the data supported that. ·4· · · · · · ·They were definitely trending in the wrong ·5· ·direction.· Maybe it was summer tourism season.· I'm ·6· ·not really sure why that was relevant and the board ·7· ·decided at that time to implement distance learning ·8· ·for the first four weeks of school. ·9· · · · · · ·So we asked Monroe County, consistently, 10· ·with the way we asked Hillsborough County, says, 11· ·okay, well, you've done everything you said you were 12· ·going to do.· Is there any way that you could open 13· ·any part of your campus to any amount of students 14· ·prior to September 15th?· And we know you're going 15· ·to make these local decisions and look at data 16· ·collectively and provide back some of that similar 17· ·data.· We asked Monroe to submit that as well. 18· · · · Q.· ·Is Monroe County working with you on doing 19· ·that? 20· · · · A.· ·So I'm in contact with school 21· ·superintendents daily and talked with Monroe County 22· ·about their -- their reopening plans, and they have 23· ·continued to look at local data and look at the 24· ·advice of their local department of health, who has 25· ·informed them that the conditions actually improved
0938 Page 752 ·1· ·to what they were hoping to see before schools ·2· ·reopened, and they are going to go to their school ·3· ·board next week, I believe, on the 25th, on Tuesday, ·4· ·and submit a proposal to go ahead and reopen their ·5· ·campuses as they had previously planned because the ·6· ·community spread has diminished to very acceptable ·7· ·levels and will have their campuses open to ·8· ·students. ·9· · · · Q.· ·So have there been plans submitted, 10· ·reviewed, and accepted? 11· · · · A.· ·As far as district reopening plans? 12· · · · Q.· ·Yes, sir.· I'm sorry.· That wasn't a very 13· ·good question.· Yes. 14· · · · A.· ·Yes, we -- I believe the deadline was 15· ·July 31st for districts to submit a reopening plan 16· ·and we've reviewed each and every single reopening 17· ·plan.· And we actually prioritize them based on 18· ·reopening dates for how we went through the -- the 19· ·review process. 20· · · · · · ·And our mindset from day one and our 21· ·communication with districts is we're going to get 22· ·plan approvable or to an approvable level because 23· ·that's what we want to do, we want to protect our 24· ·schools and our school districts and give them the 25· ·resources that are allotted for them and to date I
0939 Page 753 ·1· ·believe we are at 65 approved plans and every one of ·2· ·our approved plans are on our website, which anybody ·3· ·can read and access.· And I actually haven't been ·4· ·down in my office for the last couple hours, but I ·5· ·believe we're going to have the rest of them ·6· ·reviewed today and finalized. ·7· · · · · · ·And I would like to note that every plan ·8· ·was approved well before their reopening date so ·9· ·that nobody was in limbo with implementing a 10· ·reopening plan without getting it to an approval 11· ·status. 12· · · · Q.· ·And do you have a team that reviews these 13· ·plans? 14· · · · A.· ·Yeah. 15· · · · · · ·If you look at the different assurances, 16· ·there are some kind of content area experts in some 17· ·of those lenses.· So when we look at the assurance 18· ·of how we're going to spread English language 19· ·learners, our bureau chief over the English language 20· ·bureau reviewed each and every single one of those 21· ·plans. 22· · · · · · ·When we looked at the special education 23· ·sections, our bureau chiefs for special educations 24· ·reviewed all those plans because we wanted to make 25· ·sure it was comprehensive and we weren't denying
0940 Page 754 ·1· ·anybody access to free and appropriate public ·2· ·education.· And there was a handful of us that ·3· ·looked at the different assurances and we ·4· ·collaborated together on the feedback that we saw ·5· ·and gave back to the districts and engaged in that ·6· ·dialogue and it's been a pretty seamless process. ·7· · · · · · ·MR. WELLS:· Your Honor, I'm close to being ·8· · · · done but would appreciate a break indulgence if ·9· · · · we can do that. 10· · · · · · ·THE COURT:· All right.· Let's take a 11· · · · ten-minute recess. 12· · · · · · ·MR. WELLS:· Thank you. 13· · · · · · ·THE COURT:· Just for ten minutes. 14· · · · · · ·(Recess from 3:53 p.m. to 4:06 p.m.) 15· · · · · · ·THE COURT:· Okay.· Mr. Wells, you may 16· · · · continue with the direct on Mr. Oliva. 17· · · · · · ·MR. WELLS:· Okay.· Welcome back. 18· · · · · · ·Can you put up for me, please, sir, 19· · · · Exhibit 7A, the Leon County school plan? 20· · · · · · ·(Thereupon, marked for identification is 21· · · · Defense Exhibit 7A.) 22· · ·BY MR. WELLS 23· · · · Q.· ·We're going to put up a document here in a 24· ·second. 25· · · · · · ·So, Mr. Oliva, you indicated that many of
0941 Page 755 ·1· ·these plans have been reviewed and approved.· Is ·2· ·Leon County's one of them? ·3· · · · A.· ·Yes, to my knowledge. ·4· · · · Q.· ·Okay. ·5· · · · · · ·MR. WELLS:· I'd like to go, if you would, ·6· · · · Mr. Hill, to the page Leon County 2021 ·7· · · · Reopening Plan.· And then we're going to go ·8· · · · over a couple pages from that. ·9· · ·BY MR. WELLS 10· · · · Q.· ·Bear with us.· This is not the most facile 11· ·one. 12· · · · · · ·So there's an attachment called Leon 13· ·County Schools 2021 Plan. 14· · · · · · ·MR. WELLS:· Go to page 9, please. 15· · ·BY MR. WELLS 16· · · · Q.· ·There's a section that goes on here 17· ·several pages which lays out the Leon County plan 18· ·for how to deal with the physical environment, 19· ·facility cleaning, furniture and supplies, social 20· ·distance practices, masks, what else, mail delivery, 21· ·campus visitors, what to do before school arrival 22· ·and dismissal, physical layout of the classrooms, 23· ·what to do for lunch and breakfast. 24· · · · · · ·Now, these safety plans that are submitted 25· ·when they're done as part of this, do you have folks
0942 Page 756 ·1· ·that look at them as well? ·2· · · · A.· ·Well, we review them.· It's not part of ·3· ·the assurances that we check off to make sure they ·4· ·have been met.· But we do have folks that are -- ·5· ·have reviewed them and, in some incidences, have ·6· ·offered some suggestions or a guidance.· But those ·7· ·sections of the plan are really for the school ·8· ·district to develop and implement on their own. ·9· · · · Q.· ·In terms of compliance with the Emergency 10· ·Order 6 and the submission of these reopening plans, 11· ·why do you see it as the responsibility of the 12· ·Department of Education to make sure they're done 13· ·and they're compliant? 14· · · · A.· ·Can you repeat what Assurance 6 is?· Did 15· ·you say for Assurance 6? 16· · · · Q.· ·Oh, no, no, no.· I'm sorry.· Let me 17· ·redo -- no, I did not. 18· · · · A.· ·Okay.· I misunderstood the question. 19· · · · Q.· ·Okay.· I said as the Department 20· ·of Education, why do you see it as your obligation 21· ·to ensure that the districts have complied with 22· ·Emergency Order 6 and submitted complying plans? 23· · · · A.· ·Well, if a district chooses to submit the 24· ·assurances associated with Emergency Order 6, then 25· ·we know that the conditions have been met to make
0943 Page 757 ·1· ·sure that students that are learning in a distant ·2· ·environment will receive a high-quality education, ·3· ·and that students that are afforded extra layers of ·4· ·support, that those layers are -- and safety nets ·5· ·are provided for those assurances and then we're ·6· ·able to meet the conditions around funding and ·7· ·waiver of seat time. ·8· · · · · · ·And as part of the State Board of ·9· ·Education and the educational system in the state of 10· ·Florida, part of our role and responsibility is 11· ·oversight and compliance. 12· · · · Q.· ·Supervising the school districts in their 13· ·compliance? 14· · · · A.· ·Yes, sir.· At first, state and federal 15· ·compliance. 16· · · · Q.· ·Thank you. 17· · · · · · ·Let me wrap up with this:· How many 18· ·schools have opened since August 10th when it first 19· ·got started? 20· · · · A.· ·Well, I don't know the exact number of 21· ·campuses, but I believe as of yesterday, it was 22· ·around 22.· And, today, I believe we're around 28 23· ·school districts have been opened across the state 24· ·of Florida. 25· · · · · · ·And I know there's several more slated to
0944 Page 758 ·1· ·open -- August 24th is a big day.· It seemed like ·2· ·August 10th, August 17th, and August 24th were the ·3· ·three primary dates that schools were reopening and ·4· ·then there are some school districts opening in ·5· ·between those and we do have a handful opening on ·6· ·the 31st. ·7· · · · Q.· ·Do you know how many students have ·8· ·returned? ·9· · · · A.· ·If I had to guess I'd say approximately 10· ·about 150,000 students in the state of Florida. 11· · · · Q.· ·And have some students chosen -- or 12· ·parents chosen to have their students come in 13· ·remotely as well? 14· · · · A.· ·Oh, yes.· Yes.· The 150,000 number I 15· ·referred to are students that have participated in 16· ·face-to-face on-site learning. 17· · · · · · ·There's several -- there are several 18· ·districts that have started school in a distant 19· ·environment and that is continuing.· I believe 20· ·Broward started yesterday.· I know Orange County 21· ·started on the 10th.· So those schools' calendar has 22· ·begun but the face-to-face experience of that school 23· ·calendar has not. 24· · · · · · ·The 28 or so districts that I'm referring 25· ·to are the ones that have been receiving students --
0945 Page 759 ·1· ·brick-and-mortar, face-to-face environment. ·2· · · · Q.· ·Okay.· Thank you. ·3· · · · · · ·MR. WELLS:· I don't have any further ·4· · · · questions, Your Honor. ·5· · · · · · ·STENOGRAPHER:· I'm sorry. ·6· · · · · · ·THE COURT:· Cross? ·7· · · · · · ·STENOGRAPHER:· I missed the last -- ·8· · · · · · ·MR. COFFEY:· Yes, Your Honor.· Kendall ·9· · · · Coffey -- 10· · · · · · ·THE COURT:· Hang on just one second, 11· · · · Mr. Coffey. 12· · · · · · ·MR. COFFEY:· Yes, sir. 13· · · · · · ·THE COURT:· Madam Court Reporter, yes, 14· · · · ma'am? 15· · · · · · ·STENOGRAPHER:· I'm sorry, Judge.· I missed 16· · · · the last part of his answer.· It cut out a 17· · · · little bit.· I have, "the 28 or so districts 18· · · · that I'm referring to are the ones that have 19· · · · been..." 20· · · · · · ·MR. WELLS:· Oh, I think he said opened to 21· · · · brick-and-mortar. 22· · · · · · ·Is that correct? 23· · · · · · ·THE WITNESS:· Yeah. 24· · · · · · ·Those are districts that have begun face 25· · · · to face -- or their campuses are reopened and
0946 Page 760 ·1· ·students are in the schools, in the ·2· ·brick-and-mortar setting. ·3· · · · MR. WELLS:· Thank you.· I still have no ·4· ·more questions. ·5· · · · (Proceedings continued in Volume 6.) ·6 ·7 ·8 ·9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
0947 Page 761 ·1· · · · · · · · · · COURT CERTIFICATE
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·4· ·STATE OF FLORIDA
·5· ·COUNTY OF LEON
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·7· · · · · · ·I, MARYKAY HORVATH, RPR CRR, FPR, certify
·8· · · · that I was authorized to and did
·9· · · · stenographically report the foregoing
10· · · · proceedings, and that the transcript is a true
11· · · · and complete record of my stenographic notes.
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13· · · · · · ·Dated this 28th day of August 2020.
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16· ·______· · · · · MARYKAY HORVATH, RPR, CRR, FPR 17
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· · · · · · · CASE NO.:· 2020 CA 1450
FLORIDA EDUCATION ASSOCIATION; STEFANIE BETH MILLER, LADARA ROYAL; MINDY FESTGE; VICTORIA DUBLINO-HENJES; and ANDRES HENJES,
· · · · · · · ·Plaintiffs, vs.
RON DESANTIS, in his official capacity as Governor of the State of Florida; RICHARD CORCORAN, in his official capacity as Florida Commissioner of Education; FLORIDA DEPARTMENT OF EDUCATION; and FLORIDA BOARD of EDUCATION,
· · · · · · · ·Defendants. ______/
· · · · · (Consolidated with:)
1000 Page 763 · · · · · · · ·CASE NO.:· 2020 CA 1467
MONIQUE BELLEFLEUR, individually and on behalf of D.B. Jr., M.B., and D.B. and KATHRYN HAMMOND, ASHLEY MONROE, and JAMES LIS, · · · · · · · ·Plaintiffs, vs. RON DESANTIS, Governor of Florida, in his official capacity as Chief Executive Officer of the State of Florida, ANDY TUCK, in his official capacity as the chair of the State Board of Education, STATE BOARD of EDUCATION, RICHARD CORCORAN, in his official capacity as Commissioner of the Florida Department of Education, FLORIDA DEPARTMENT OF EDUCATION, JACOB OLIVA, in his official capacity as Chancellor, Division of Public Schools, TERESA JACOBS, in her official capacity as the chair of the SCHOOL BOARD OF ORANGE COUNTY, BARBARA JENKINS, in her official capacity as the Superintendent of Orange County Public Schools, and ORANGE COUNTY PUBLIC SCHOOLS, · · · · · · · Defendants.
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· TRANSCRIPT OF WEB CONFERENCE HEARING PROCEEDINGS · · PLAINTIFFS' EXPEDITED MOTION FOR TEMPORARY · · · · · · · · · · ·INJUNCTION
· · · · · · ·VOLUME 6 (Pages 762 - 817)
· ·DATE TAKEN:· Thursday, August 20th, 2020 · ·TIME:· · · · 4:13 p.m. to 5:17 p.m. · ·PLACE:· · · ·Leon County Courthouse · · · · · · · · 301 South Monroe Street · · · · · · · · Tallahassee, Florida 32301 · ·BEFORE:· · · Charles Dodson, Circuit Judge · · · · · · · · · · ·(via Zoom)
· · ·This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were stenographically reported via Zoom by:
· · · · · ·MaryKay Horvath, RPR, CRR, FPR · · · · · · Certified Realtime Reporter
Job No.: 151242
1001 Page 764 ·1· ·APPEARANCES: (all appearing via videoconference)
·2· ·On behalf of Plaintiffs Florida Education · · ·Association, Stefanie Beth Miller, Ladara Royal, ·3· ·Mindy Festge, Victoria Dublino-Henjes, and Andres · · ·Henjes: ·4 · · · · · MEYER, BROOKS, BLOHM & HEARN, P.A. ·5· · · · 131 North Gadsden Street · · · · · Post Office Box 1547 ·6· · · · Tallahassee, Florida 32301 · · · · · (850)878-5212 ·7· · · · BY:· RONALD G. MEYER, ESQ. · · · · · [email protected] ·8
·9· · · · COFFEY BURLINGTON, P.L. · · · · · 2601 South Bayshore Drive 10· · · · Penthouse · · · · · Miami, Florida 33133 11· · · · (305)858-2900 · · · · · BY:· KENDALL B. COFFEY, ESQ. 12· · · · [email protected] · · · · · · · ·JOSEFINA M. AGUILA, ESQ. 13· · · · [email protected] · · · · · · · ·SCOTT A. HIAASEN, ESQ. 14· · · · [email protected]
15· · · · PHILLIPS & RICHARD, P.A. · · · · · 9360 Southwest 72nd Street 16· · · · Suite 283 · · · · · Miami, Florida 33173 17· · · · (305)412-8322 · · · · · BY:· MARK H. RICHARD, ESQ. 18· · · · [email protected]
19· · · · FLORIDA EDUCATION ASSOCIATION · · · · · 213 South Adams Street 20· · · · Tallahassee, Florida 32301 · · · · · (850)201-3382 21· · · · BY:· KIMBERLY C. MENCHION, ESQ. · · · · · [email protected] 22
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·2· ·On behalf of Defendants:
·3· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 225 Water Street ·4· · · · Suite 1750 · · · · · Jacksonville, Florida 32202 ·5· · · · (904)354-1980 · · · · · BY:· DAVID M. WELLS, ESQ. ·6· · · · [email protected]
·7· · · · GUNSTER YOAKLEY & STEWART, P.A. · · · · · 200 South Orange Avenue ·8· · · · Suite 1400 · · · · · Florida Orlando, Florida 32801 ·9· · · · (407)648-5077 · · · · · BY:· NATHAN W. HILL, ESQ. 10· · · · [email protected]
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1003 Page 766 ·1· · · · · · · · · · · · I N D E X
·2· ·Proceedings· · · · · · · · · · · · · · · · ·Page
·3· · · · · · · ·VOLUME 6 (Pages 762 - 817)
·4· ·JACOB OLIVA· · · · · · · · · · · · · · · · · 767
·5· ·Cross· · · · · · · ·By Mr. Coffey· · · · · · 767 · · ·Redirect· · · · · · By Mr. Wells· · · · · · ·806 ·6· ·Recross· · · · · · ·By Mr. Coffey· · · · · · 809
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1004 Page 767 ·1· ·The following proceedings via Zoom continued at 4:13 ·2· ·p.m.: ·3· · · · · · ·THE COURT:· Okay.· Mr. Coffey. ·4· · · · · · · · · · CROSS EXAMINATION ·5· · ·BY MR. COFFEY ·6· · · · Q.· ·Yeah.· Good afternoon, Mr. Oliva, and ·7· ·thank you for being here today. ·8· · · · · · ·I've got questions and I'll admit it may ·9· ·seem like it skips around a little bit, but we've -- 10· ·you've covered a fair bit with Mr. Wells and there's 11· ·some things I want to ask about. 12· · · · · · ·One of the things I wanted to be clear on 13· ·is with respect to certain district plans that have 14· ·been approved, that extend into, for example, 15· ·September.· We've got, what, three or four of those. 16· ·Is it Miami-Dade, Broward, Monroe?· And is 17· ·Palm Beach in that category? 18· · · · A.· ·Yes, sir. 19· · · · Q.· ·Okay.· And do those school districts also 20· ·have a school-by-school statistical analysis of 21· ·COVID risk, school by school? 22· · · · A.· ·So Monroe County was asked to submit that. 23· ·They have not submitted that report as of yet 24· ·because they are going back to their school board to 25· ·revisit the distance learning option that they have
1005 Page 768 ·1· ·notified us that they wanted to implement.· And ·2· ·we're still in collaboration with them, but -- ·3· · · · Q.· ·Right. ·4· · · · A.· ·-- for right now, they intend to reopen ·5· ·their campuses on August 31st. ·6· · · · · · ·But Palm Beach, Broward, and Dade have not ·7· ·submitted -- ·8· · · · Q.· ·Okay. ·9· · · · A.· ·-- the school-by-school report because 10· ·those districts are still under Phase 1 -- 11· · · · Q.· ·Yeah. 12· · · · A.· ·-- of the executive order which includes 13· ·closures of school campuses. 14· · · · Q.· ·Okay.· And have any of the districts gone 15· ·school by school, grade by grade, classroom by 16· ·classroom, to thoughtfully determine how parents 17· ·desire in-person instruction can be accomplished? 18· ·Have any schools gone into that kind of granular 19· ·detail, sir? 20· · · · A.· ·That's not data that we've collected but 21· ·in conversations that I've had with school 22· ·leaders -- I can tell you I know of a school 23· ·district where the principal called -- every 24· ·principal at every school called every single family 25· ·and had a personal conversation with them about what
1006 Page 769 ·1· ·they wanted for their child in the fall. ·2· · · · Q.· ·Okay.· I mean, that's anecdotal but in ·3· ·terms of planned submissions, none of the districts ·4· ·have done what you have basically told Hillsborough ·5· ·they had to do to get an extra four weeks to open ·6· ·safely, correct? ·7· · · · A.· ·Correct. ·8· · · · Q.· ·Okay.· And I want to go back to your ·9· ·testimony where you said, ultimately, it's a local 10· ·decision as long as it's done in consultation with 11· ·local health experts. 12· · · · · · ·I wrote those notes down.· You said that, 13· ·didn't you? 14· · · · A.· ·Yes. 15· · · · Q.· ·And what Hillsborough did, and I think 16· ·you're aware of this, is they convened a special 17· ·meeting and they consulted with local health 18· ·experts.· I think they had six or seven.· You're 19· ·aware of that, right? 20· · · · A.· ·Yes. 21· · · · Q.· ·And you know that five of them said it's 22· ·absolutely not safe; you're aware of that, correct? 23· · · · A.· ·Correct. 24· · · · Q.· ·And the six said it's not safe today but 25· ·it might be soon -- might be safe soon, right?· You
1007 Page 770 ·1· ·remember that? ·2· · · · A.· ·Yes. ·3· · · · Q.· ·And the local health department official ·4· ·refused to give an opinion or recommendation on ·5· ·whether it's safe to reopen.· You recall that? ·6· · · · A.· ·Sure.· Yes. ·7· · · · Q.· ·And was it intended in the structure of ·8· ·the order that local health departments would refuse ·9· ·to give opinions and -- or recommendations as to 10· ·whether it was safe to reopen?· Was that intended by 11· ·the emergency order? 12· · · · A.· ·I don't believe so. 13· · · · Q.· ·Okay.· But you're aware of the fact that 14· ·local health departments have categorically said 15· ·that they are not going to weigh in on the 16· ·determinations of whether it's safe or unsafe to 17· ·open?· You're aware of that? 18· · · · A.· ·I've heard that, yes. 19· · · · Q.· ·Okay.· Have you called them out?· Have you 20· ·or the -- the commissioner of education called them 21· ·out and said, You folks are missing in action. 22· ·These school districts need exactly that input from 23· ·you?· Have you called them out on it? 24· · · · A.· ·Well, I know Commissioner Corcoran has 25· ·been in consultation with the surgeon general.· Even
1008 Page 771 ·1· ·I know they were talking yesterday and probably ·2· ·today, so, yes. ·3· · · · Q.· ·Okay.· And, in fact, the surgeon general's ·4· ·office had talked about -- if I got this right -- ·5· ·coming up with specific guidance on when to close ·6· ·schools and classrooms.· Do you recall that the ·7· ·school -- that the surgeon general's department was ·8· ·working on that back in July 2020?· You may not ·9· ·recall.· I'm just asking if you do. 10· · · · A.· ·Yeah, I -- I don't remember the specific 11· ·document or timeframe, but I know these have been 12· ·collaborative and ongoing conversations. 13· · · · Q.· ·Okay.· And we still have no written 14· ·guidance on when to open and close classrooms; is 15· ·that correct? 16· · · · A.· ·To my knowledge, from the Department of 17· ·Health, I don't believe so. 18· · · · Q.· ·Okay.· I want to come back to talk a 19· ·little bit about -- and, again, with apologies for 20· ·skipping around.· With respect to the state of 21· ·Florida's order with respect to reopening schools, 22· ·at the time it was entered, on July 6th, were you 23· ·relying on school opening experiences in Denmark, 24· ·Finland, Iceland, or Germany? 25· · · · A.· ·Me personally, no.
1009 Page 772 ·1· · · · Q.· ·Or the commissioner?· You work -- you and ·2· ·your team work with the commissioner, correct? ·3· · · · A.· ·We had a team that was pulling, right, the ·4· ·latest data and information.· I was more in the ·5· ·technical side of what is reopening look like. ·6· ·There was other folks focused more on the research ·7· ·side. ·8· · · · Q.· ·But you're here representing the ·9· ·Department of Education today, and you would agree 10· ·that those countries and their school opening or 11· ·closure experiences were not relied on in entering 12· ·into the executive order?· I mean, the emergency 13· ·order, correct? 14· · · · A.· ·I can't speak on behalf of the other 15· ·senior leadership team -- 16· · · · Q.· ·Okay. 17· · · · A.· ·-- what they reviewed in determining the 18· ·language that they would recommend in the emergency 19· ·order. 20· · · · Q.· ·Okay. 21· · · · A.· ·So I can't answer that. 22· · · · Q.· ·Well, let me ask you:· If I were to tell 23· ·you that Denmark had a 1.1 positivity rate, would 24· ·you find that a persuasive reason as to why the 25· ·Florida schools should reopen?
1010 Page 773 ·1· · · · A.· ·I'm not an expert in infectious diseases. ·2· · · · Q.· ·Okay. ·3· · · · A.· ·So I -- ·4· · · · Q.· ·Fair enough. ·5· · · · A.· ·-- I'm more the technical side of running ·6· ·schools.· That's what I've done for the last two ·7· ·decades of my life. ·8· · · · Q.· ·Got it.· And thank you for being candid. ·9· · · · · · ·Now, I'm going to ask you to take a look 10· ·at Exhibit 2.· And I think you're familiar with this 11· ·document, Mr. Oliva.· And I think it's maybe a 12· ·defense exhibit but I know it's one we've referred 13· ·to as -- as well. 14· · · · · · ·And you're familiar with Exhibit 2, 15· ·correct? 16· · · · A.· ·Yes, sir. 17· · · · Q.· ·And it was created by the Department 18· ·of Education? 19· · · · A.· ·That is correct. 20· · · · Q.· ·And it was -- 21· · · · · · ·MR. COFFEY:· Let's go for just a minute, 22· · · · if we could, to page 35. 23· · ·BY MR. COFFEY 24· · · · Q.· ·And we talked about -- I think your 25· ·counsel mentioned this.
1011 Page 774 ·1· · · · A.· ·Yes. ·2· · · · Q.· ·And just to kind of confirm the point, ·3· ·"Reopening is a locally driven decision."· You see ·4· ·that? ·5· · · · A.· ·Correct. ·6· · · · Q.· ·And you agree with that, correct? ·7· · · · A.· ·I stand behind that a hundred percent. ·8· · · · Q.· ·Okay.· And local school districts, they ·9· ·have people who are elected by the voters in their 10· ·communities, right? 11· · · · A.· ·Correct. 12· · · · Q.· ·And school district board members, they 13· ·care every bit as much about students and education 14· ·and safety as you and your colleagues in Tallahassee 15· ·do; isn't that right? 16· · · · A.· ·I believe so, yes.· In the heart of 17· ·hearts, yes. 18· · · · Q.· ·Okay.· And they're kind of more on the 19· ·ground in the 67 counties in Florida than you and 20· ·your colleagues in Tallahassee; you'd agree with 21· ·that, wouldn't you? 22· · · · A.· ·Yes. 23· · · · Q.· ·Okay.· And so -- and by the way, the 24· ·COVID's impact, you know, varies I'm sure from 25· ·county to county but it can also vary from city to
1012 Page 775 ·1· ·city, doesn't it?· Neighborhood to neighborhood ·2· ·even? ·3· · · · A.· ·We've heard of districts doing analysis by ·4· ·ZIP code, yes. ·5· · · · Q.· ·Yeah. ·6· · · · · · ·And so you would have to agree that the ·7· ·folks on the ground in the local school districts ·8· ·know the needs and the risks and the educational ·9· ·benefits in their community as well or better as you 10· ·and your colleagues in Tallahassee, fair enough? 11· · · · A.· ·As far as the local conditions -- 12· · · · Q.· ·Yes, sir. 13· · · · A.· ·-- and knowing their buildings and the 14· ·clientele that they serve, yes. 15· · · · Q.· ·Okay.· And to go to page 36, same 16· ·document, sir. 17· · · · A.· ·Uh-huh. 18· · · · Q.· ·We see -- well, we see the part that says, 19· ·"Reopening will require locally driven strategies." 20· ·But I want you to go to the top of that document 21· ·where it says, "K12 schools, college campuses, and 22· ·childcare programs are inherently high-contact 23· ·settings.· Not built conveniently for social 24· ·distancing." 25· · · · · · ·Do you see that?
1013 Page 776 ·1· · · · A.· ·Yes, sir. ·2· · · · Q.· ·And they're high-contact settings with ·3· ·kids, right? ·4· · · · A.· ·Yes. ·5· · · · Q.· ·And forgive me for saying the obvious but ·6· ·kids are maybe a little less mature sometimes, a ·7· ·little less informed than some adults? ·8· · · · A.· ·Some may say impulsive.· I have a ·9· ·16-year-old daughter. 10· · · · Q.· ·Impulsive? 11· · · · A.· ·Yes. 12· · · · Q.· ·That's -- impulsive.· And kids go through 13· ·hallways and into bathrooms and in a lot of places 14· ·in a public school, don't they? 15· · · · A.· ·That's correct. 16· · · · Q.· ·And it's a high-contact setting wherever 17· ·they are in a public school, correct? 18· · · · A.· ·Yes. 19· · · · Q.· ·Okay.· And then I want to go to page 37. 20· ·And, again, the words "reopening is a locally driven 21· ·decision."· And you'll see it goes down to say, 22· ·"Reopening ultimately must be driven by local data 23· ·and the goal of restoring optimal conditions for 24· ·learning." 25· · · · · · ·Do you see that?
1014 Page 777 ·1· · · · A.· ·Yes. ·2· · · · Q.· ·And you agree with that, don't you, ·3· ·Mr. Oliva? ·4· · · · A.· ·Yes. ·5· · · · Q.· ·Okay.· And the local data that you're ·6· ·referring to certainly includes positivity, ·7· ·positivity percentages, right? ·8· · · · A.· ·I would imagine that would be an ·9· ·indicator, yes. 10· · · · Q.· ·Okay.· And I don't know if you had a 11· ·chance to review or become familiar with the -- what 12· ·we'll call the -- it was internal documentations, I 13· ·admit, so you may not have seen it, from the Florida 14· ·surgeon general's conference notes. 15· · · · · · ·But I may just ask you:· To the extent 16· ·that you're aware of what the surgeon general was 17· ·looking at, are there -- are you aware of any 18· ·metrics other than positivity rate and RT value, 19· ·that the surgeon general was reviewing? 20· · · · A.· ·Those are the two that I've often heard 21· ·of.· And I believe that RT value is that 22· ·reproduction rate. 23· · · · Q.· ·Right. 24· · · · A.· ·But, yes, I'm familiar with those. I 25· ·would not call myself an expert on data analysis or
1015 Page 778 ·1· ·determining regression lines.· But I am -- ·2· · · · Q.· ·Right. ·3· · · · A.· ·-- familiar with it. ·4· · · · Q.· ·But when we talk about local data are we ·5· ·aware of objective criteria other than those metrics ·6· ·that would be relied on by the local health ·7· ·officials? ·8· · · · A.· ·I would imagine parent voice would be a ·9· ·big part of that metric. 10· · · · Q.· ·Parent voice. 11· · · · · · ·And would you agree that a lot of parents 12· ·want to have their kids back in school? 13· · · · A.· ·Yes. 14· · · · Q.· ·You'd agree with that? 15· · · · A.· ·It's something. 16· · · · Q.· ·Yeah. 17· · · · · · ·A lot of parents.· And probably no one 18· ·who's been in this virtual courtroom would deny the 19· ·fact that the education experience inside a 20· ·classroom is better if it's safe.· We'd all agree 21· ·with that? 22· · · · A.· ·Sure, yes. 23· · · · Q.· ·And I've heard your extremely able lawyer 24· ·mention that it seems like a majority of parents 25· ·want their kids back in the classroom, and I don't
1016 Page 779 ·1· ·know if that's true or not.· But assuming that's ·2· ·correct, has the surgeon general of Florida or local ·3· ·health department officials told the public and ·4· ·their community, and given an opinion -- let's take ·5· ·Miami -- let's take back to Hillsborough. ·6· · · · · · ·Has -- the local health departments ·7· ·haven't given them an opinion as to whether it's ·8· ·safe or not to go to school, right? ·9· · · · A.· ·I'm not familiar with the Department 10· ·of Health, I wasn't in the meeting, but that's what 11· ·I've been told, yes. 12· · · · Q.· ·Do you think the voice of parents and the 13· ·views of parents could be influenced if, in fact, a 14· ·local health department official said I don't think 15· ·it's safe yet?· Could that affect what parents 16· ·think? 17· · · · A.· ·I think that would be a factor they would 18· ·consider, sure.· Absolutely. 19· · · · Q.· ·And, so far, the health department 20· ·officials aren't weighing in on that, right?· As far 21· ·as you know?· As far as you know? 22· · · · A.· ·In Hillsborough, yeah. 23· · · · Q.· ·Yeah.· Okay. 24· · · · · · ·Now, none of us are here to deny that 25· ·there's going to be more COVID as schools reopen.
1017 Page 780 ·1· ·You agree with that, don't you? ·2· · · · A.· ·I -- I don't have any data that suggests ·3· ·that that would be a true or false statement. ·4· · · · Q.· ·Okay.· Are you aware of reported outbreaks ·5· ·in Manatee County? ·6· · · · A.· ·We've got over 22 to 28 school districts ·7· ·that have returned to in-person experiences.· Every ·8· ·district superintendent that I've spoken to in the ·9· ·cases that they are monitoring or asking students or 10· ·staff to self-isolate is all been from an adult that 11· ·had tested positive out in the community. 12· · · · · · ·It was not a direct result of somebody 13· ·being in a school setting. 14· · · · Q.· ·Okay.· But you agree that students can be, 15· ·in fact, carriers of the virus?· You agree with 16· ·that, don't you? 17· · · · A.· ·There was plenty of other medical experts 18· ·I think -- 19· · · · Q.· ·Okay. 20· · · · A.· ·-- that weighed in on those opinions.· I'm 21· ·a practitioner of running schools. 22· · · · Q.· ·Okay.· I understand.· You're an education 23· ·official. 24· · · · · · ·Well, just to talk about adults for a 25· ·minute, you care about the teachers too, don't you?
1018 Page 781 ·1· · · · A.· ·Absolutely. ·2· · · · · · ·We consider that -- when we refer to our ·3· ·educational family, it's well beyond the scope of ·4· ·students.· It takes a team, a village, to raise ·5· ·those schools and make sure the conditions are ·6· ·right. ·7· · · · Q.· ·Okay.· And a lot of the members of the ·8· ·family are reporting positive for COVID, like 192 in ·9· ·Orange since June 1st.· Are you aware of that? 10· · · · A.· ·I haven't received that data.· I believe 11· ·the contract tracing is aggregated at the Department 12· ·of Health and I don't receive those reports -- 13· · · · Q.· ·Okay. 14· · · · A.· ·-- by county. 15· · · · Q.· ·What about Miami-Dade publicly reporting 16· ·578 cases from March to July during the period when 17· ·schools were mostly closed.· That's something that 18· ·would concern you, wouldn't it?· They're part of the 19· ·family? 20· · · · A.· ·Yes. 21· · · · Q.· ·Now, I'm going to -- again, I told you I 22· ·might be, you know, kind of flipping around a little 23· ·bit, because there's some things to cover. 24· · · · · · ·So we're going to come back a little bit 25· ·to Hillsborough because I think it will help all of
1019 Page 782 ·1· ·us to understand what happened, because, you know, ·2· ·they consulted with health care officials, they made ·3· ·the difficult decision, and they got a letter ·4· ·that -- that said what it said. ·5· · · · · · ·So let me go to that. ·6· · · · · · ·MR. COFFEY:· Can we get Defendants' ·7· · · · No. 21? ·8· · ·BY MR. COFFEY ·9· · · · Q.· ·So I want to go ask you what your 10· ·familiarity is with -- and perhaps you're not aware 11· ·of this exchange.· But Hillsborough made 12· ·proposals -- 13· · · · · · ·MR. COFFEY:· Okay.· If we could go -- 14· · · · let's go three pages in to what's -- okay. 15· · ·BY MR. COFFEY 16· · · · Q.· ·Hillsborough made proposals that 17· ·included -- and I want to direct your attention to 18· ·September 7th.· Phase 2 -- well, let's go to 19· ·October -- August 31st, specialized learning 20· ·centers, and if I can ask you, Mr. Oliva, what kind 21· ·of students would be typically accommodated in a 22· ·specialized learning center? 23· · · · A.· ·I'm sorry.· Did I miss something? 24· · · · Q.· ·Yeah, yeah.· Mr. Oliva, I may not have 25· ·spoken clearly.
1020 Page 783 ·1· · · · A.· ·Oh, I'm sorry.· I thought somebody -- I ·2· ·thought somebody else was speaking for a second. ·3· ·I'm sorry. ·4· · · · Q.· ·The audio is not perfect but it's been -- ·5· ·hopefully you can hear me now. ·6· · · · A.· ·I can. ·7· · · · Q.· ·Do you see where it refers to a Phase 2 ·8· ·and it refers to specialized learning centers?· Do ·9· ·you see that? 10· · · · A.· ·Yes, sir. 11· · · · Q.· ·And what kind of students would be 12· ·accommodated in a specialized learning center? 13· · · · A.· ·Typically, a specialized learning center 14· ·is also referred to -- is what we call an ESC center 15· ·school, an exceptional student education school and 16· ·all the students that attend a specialized center 17· ·school like that would be students of very special 18· ·need and perhaps students that need the most layers 19· ·of support or interventions in order to be 20· ·successful. 21· · · · Q.· ·Okay.· And so Hillsborough was -- was 22· ·actually prepared to accelerate their in-class 23· ·learning experience quite a bit and get it started 24· ·on August 31; you see that, right? 25· · · · A.· ·Yes, sir.
1021 Page 784 ·1· · · · Q.· ·And this was, of course, part of the ·2· ·proposals that were rejected, right? ·3· · · · A.· ·I -- I don't know if "rejected" is the ·4· ·right word. ·5· · · · Q.· ·Okay. ·6· · · · A.· ·But that we invited further conversation ·7· ·around -- when we ask schools or when schools ask us ·8· ·to close, let's say non COVID aside, it's really ·9· ·engaging in a dialogue.· We engage with closures of 10· ·school campuses with districts often especially in 11· ·Florida. 12· · · · · · ·When we're dealing with hurricanes, we 13· ·deal with schools that might have water pipe bursts. 14· ·We might deal with schools that get hit by a 15· ·tornado.· And when we look at not providing access 16· ·to education on any campus, we immediately engage 17· ·and open a dialogue with districts of what do we 18· ·need to do to help support you in getting this 19· ·school to reopen. 20· · · · Q.· ·Okay.· Well, so is it fair to say you 21· ·don't know whether or not this proposal was actually 22· ·rejected by Commissioner Corcoran? 23· · · · A.· ·I don't believe that proposal was ever 24· ·really formally submitted to us for a review.· That 25· ·proposal was provided to us to have a conversation
1022 Page 785 ·1· ·around whether or not this meets the approved plan ·2· ·that Hillsborough submitted to us, and the guidance ·3· ·that they received is that this is a little bit ·4· ·different than what you submitted and if you want to ·5· ·submit this plan, we're going to ask for some ·6· ·further clarifications, guidance, and evidence. ·7· ·We're not going to say no. ·8· · · · · · ·We're going to support you with this ·9· ·opening plan, but if this only opens 25 schools, 10· ·we're going to ask questions about the other 175 11· ·schools to say can you bring in these vulnerable 12· ·students at those other campuses as well. 13· · · · · · ·And, furthermore, the very first question 14· ·that I would ask Hillsborough is how did they come 15· ·up with a four-week decision and say that we're not 16· ·going to open facilities to our students for 120, up 17· ·to, or more instructional hours.· And I think we 18· ·should, as an agency, put guardrails and ask 19· ·clarifying questions. 20· · · · · · ·It's about opening up a dialogue and 21· ·engaging with the district leadership. 22· · · · Q.· ·Okay.· Well, let's go to, if we can, 23· ·Exhibit 52, and see what happened to this. 24· · · · A.· ·Uh-huh. 25· · · · Q.· ·Okay.· And I'm going to read you because
1023 Page 786 ·1· ·the print's a little bit small. ·2· · · · · · ·"Below are the two proposals I presented ·3· ·to FLDOE for a safe return to school.· Both ·4· ·proposals were not accepted due to the fact that ·5· ·they were not aligned to FLDOE's direction." ·6· · · · · · ·So, I mean, this seems to pretty well ·7· ·indicate that it was not accepted, right? ·8· · · · A.· ·I -- I don't know if that is a document ·9· ·produced by department.· I believe that is the 10· ·leader of Hillsborough school's interpretation of 11· ·the dialogue with the department. 12· · · · Q.· ·Okay.· But you believe that maybe it 13· ·wasn't really accepted because the commissioner of 14· ·education asked for school-by-school, grade-by-grade 15· ·details in order to justify this revised plan, 16· ·correct? 17· · · · A.· ·The options in those proposals from 1 and 18· ·2 are very different than the plan that Hillsborough 19· ·submitted and was approved. 20· · · · Q.· ·Right. 21· · · · A.· ·If they were going to move forward with 22· ·one or two of those proposals, the commissioner and 23· ·the team has asked for additional data to support 24· ·those proposals and recommendation. 25· · · · Q.· ·Okay.· Well, we've discussed the
1024 Page 787 ·1· ·additional data as requested in the letter.· But ·2· ·assuming that there were at least five doctors that ·3· ·told Hillsborough it wasn't safe yet to reopen ·4· ·schools, how many doctors (indiscernible) Department ·5· ·of Education?· Seven?· Eight?· Ten?· How many do you ·6· ·think was needed to make the point? ·7· · · · · · ·STENOGRAPHER:· I'm sorry. ·8· · · · · · ·MR. WELLS:· Objection.· Argumentative. ·9· · · · · · ·THE COURT:· Overruled. 10· · · · · · ·STENOGRAPHER:· I'm sorry.· Mr. Coffey, 11· · · · your question cut out for me. 12· · · · · · ·MR. WELLS:· No, I'm sorry.· I was trying 13· · · · to say objection, argumentative, but maybe I'm 14· · · · not coming through. 15· · · · · · ·THE COURT:· Overruled. 16· · ·BY MR. COFFEY 17· · · · Q.· ·How many doctors if five or six wasn't 18· ·enough, Mr. Oliva?· Six?· Ten? 19· · · · A.· ·This question goes back to we're 20· ·supporting local decision-making.· And the school 21· ·boards and the superintendents, as long as their 22· ·health advisory that makes those recommendations, 23· ·we're going to support. 24· · · · · · ·When we say that none of our campuses are 25· ·allowed to be open to school, we're going to ask
1025 Page 788 ·1· ·further questions, not around how many doctors it ·2· ·says to approve but can you see five students in a ·3· ·school, 5 percent of your students, 10 percent? I ·4· ·get you may not feel it's safe to reopen a high ·5· ·school to 2500 students and I respect that. ·6· · · · · · ·Can we open that school to a hundred ·7· ·students?· Those are the questions that we want to ·8· ·know and ask as we move forward with determining ·9· ·whether or not we're implementing that dimmer switch 10· ·and meeting those assurances in the emergency order 11· ·by opening our campuses for our students that need a 12· ·place to go. 13· · · · Q.· ·Well, you know, we see that they're 14· ·proposing three, I guess, significant categories by 15· ·August 31st and more significant categories by 16· ·September 7th and then the rest of it by 17· ·September 14th.· They're not telling you to wait 18· ·'til November, are they? 19· · · · A.· ·But what they're not telling us is how 20· ·many schools and how many students does that serve. 21· · · · · · ·If I'm in a district with 230,000 students 22· ·and 300 schools, our question, our wonder, is, okay, 23· ·if you open these three to these three populations 24· ·is that all of your campuses, five of your campuses, 25· ·50 of your campuses?· What percentage of the student
1026 Page 789 ·1· ·population does that make up?· We need -- we ask ·2· ·clarifying questions and ask for additional ·3· ·documentation and support. ·4· · · · Q.· ·Okay.· Well, your attorney doesn't want me ·5· ·to argue with you too much, so I'll -- I'll hold ·6· ·back somewhat but just this question: ·7· · · · · · ·With respect to what's best for the ·8· ·students in Hillsborough, including these categories ·9· ·of students, I think you've already agreed with me 10· ·that the school board members and the superintendent 11· ·on the ground really know these dynamics better than 12· ·you in Tallahassee do, correct? 13· · · · A.· ·Correct. 14· · · · Q.· ·And you don't have any reason to believe 15· ·that the superintendent in Hillsborough was trying 16· ·to sell out parents, do you? 17· · · · A.· ·No. 18· · · · Q.· ·Let me move on to some other things. 19· · · · · · ·And by the way, all of this -- well, the 20· ·original declaration of a condition of emergency, 21· ·that sort of the precursor to the different orders 22· ·that we're talking about was originally, I think, 23· ·signed by Governor DeSantis on the 9th day of March 24· ·2020. 25· · · · · · ·Does that sound consistent with your
1027 Page 790 ·1· ·recollection? ·2· · · · A.· ·Is that the state of emergency, I ·3· ·believe -- ·4· · · · Q.· ·I think so. ·5· · · · A.· ·I believe -- ·6· · · · Q.· ·And maybe I'm missing something. ·7· · · · A.· ·Yeah. ·8· · · · Q.· ·And he cited, as a foundation for it, ·9· ·"Whereas, the World Health Organization previously 10· ·declared COVID-19 a public health emergency of 11· ·international concern." 12· · · · · · ·Does it surprise you that he was relying 13· ·on the World Health Organization? 14· · · · A.· ·No. 15· · · · Q.· ·Okay.· And are you aware of the fact that 16· ·the World Health Organization has, with respect to 17· ·public places in general, has criteria positivity 18· ·rates?· Are you aware of that? 19· · · · A.· ·I've read some.· I believe that number has 20· ·changed, as they made recommendations. 21· · · · · · ·So, yes. 22· · · · Q.· ·Okay.· Are you aware of the 23· ·recommendations that were made by the Florida 24· ·Chapter of the American Association of Pediatrics? 25· ·Are you aware of that?
1028 Page 791 ·1· · · · A.· ·I've seen different reiterations.· Yes. ·2· · · · · · ·MR. COFFEY:· Well, let's put up ·3· · · · Plaintiffs' 8.· And let's go to the second ·4· · · · page. ·5· · ·BY MR. COFFEY ·6· · · · Q.· ·And they say -- again, these are -- ·7· ·pediatrics are what?· Doctors who treat children in ·8· ·the state of Florida?· Is that a correct explanation ·9· ·for who they are, Mr. Oliva? 10· · · · A.· ·Yes. 11· · · · Q.· ·Okay.· And if we go to second paragraph, 12· ·we can see the -- the objective criteria on it that 13· ·they recommend; you see that, don't you? 14· · · · A.· ·Yes. 15· · · · Q.· ·And they say that if it's a higher 16· ·positivity rate than 5 percent in the average in the 17· ·previous 14 days, it's not ready for school 18· ·reopening; that is the position they take, correct? 19· · · · A.· ·Well, yeah.· It says, basically, before it 20· ·starts, states can safely reopen.· It doesn't say 21· ·anything about specific schools. 22· · · · Q.· ·Right.· Do you know how many counties in 23· ·Florida, even -- well, things in July 6th were 24· ·pretty bad and the positivity rates were increasing, 25· ·weren't they, at the time the emergency order was
1029 Page 792 ·1· ·entered?· You're aware of that generally? ·2· · · · A.· ·I believe so yes. ·3· · · · Q.· ·Okay.· And hopefully they've leveled off ·4· ·now, maybe gone down a little bit. ·5· · · · · · ·But my question to you is:· Do you know ·6· ·how many counties in Florida have a positivity rate ·7· ·in the last 14 days that is 5 percent or less? ·8· · · · A.· ·Not off the top of my head. ·9· · · · Q.· ·Okay.· Is it your understanding that -- 10· ·that if a child in -- let's just take, 11· ·hypothetically, Hillsborough.· Hillsborough has 12· ·apparently come into line. 13· · · · · · ·But if a child in one county, if the local 14· ·school district's plan was not approved, then there 15· ·would -- under your formulation, there would be less 16· ·funding for that child; is that correct? 17· · · · A.· ·Potentially. 18· · · · Q.· ·And, potentially, that same -- that 19· ·another child in a different county where your plan 20· ·was approved would get more funding; is that 21· ·correct? 22· · · · A.· ·Well, they would get their projected 23· ·student enrollment and funding -- 24· · · · Q.· ·Correct. 25· · · · A.· ·-- that was forecast.
1030 Page 793 ·1· · · · Q.· ·And just so I understand what that ·2· ·projected student enrollment is. ·3· · · · · · ·The money that is sort of, for better or ·4· ·for worse, that is a core issue in this case, that's ·5· ·money that had already been appropriated by the ·6· ·Florida legislature during the 2020 session? ·7· · · · A.· ·Correct.· Typically districts receive that ·8· ·in July. ·9· · · · Q.· ·Okay.· So when we talk about -- and I 10· ·don't mean to use these words in a way that seems 11· ·skeptical, but you talked about compassion and 12· ·grace. 13· · · · A.· ·Uh-huh. 14· · · · Q.· ·And compassion and grace meaning that 15· ·money's -- well, you're talking about the fact that 16· ·the commissioner of education was going to make 17· ·money available that might otherwise not be 18· ·available to school districts, as long as the plan 19· ·was approved; is that correct? 20· · · · A.· ·The emergency order was a response from a 21· ·request from the districts to protect or guarantee a 22· ·level of projection and funding in student 23· ·enrollment so that districts can plan appropriately. 24· · · · Q.· ·Right. 25· · · · · · ·But you would have to agree that as the
1031 Page 794 ·1· ·commissioner of education chose to waive the ·2· ·financial limitation for compliant districts, ·3· ·certainly had the authority to waive the financial ·4· ·restrictions for all districts in Florida, allowing ·5· ·the individual school districts to do what they ·6· ·thought best to accommodate the safety needs of the ·7· ·students, right, could have done that? ·8· · · · A.· ·Well, this is where it -- it's a little ·9· ·bit different conversation because I know a lot of 10· ·times we talk about the funding.· But the Florida 11· ·statute requires a certain amount of face-to-face 12· ·instructional seat time, especially for awarding 13· ·credit to seniors. 14· · · · · · ·Students have to have 135 hours of 15· ·instruction in a course in a class.· And if that is 16· ·not happening in a class and is happening in a 17· ·distant environment without approved curriculum or 18· ·any parameters around ensuring that that has 19· ·experiences of quality, that can be problematic for 20· ·a student what it comes to earning a credit and 21· ·being able to transfer to a higher education 22· ·institution and other limitations. 23· · · · Q.· ·But just to talk about the money and 24· ·forgive me with so many important things here to 25· ·talk about money.· But in Miami-Dade and Broward,
1032 Page 795 ·1· ·that in-the-seat requirement for funding purposes ·2· ·has been waived, correct? ·3· · · · A.· ·They have submitted an approved plan that ·4· ·they're going to implement that outlines how they're ·5· ·going to do that distance learning option for ·6· ·families, that meets those expectations for that ·7· ·seat time and instructional hour requirement with a ·8· ·sense of urgency.· They want to open schools and ·9· ·return students as soon and efficiently and as 10· ·safely as they can. 11· · · · Q.· ·Right. 12· · · · · · ·Well, every district wants to return to -- 13· ·to in-class education? 14· · · · A.· ·Right. 15· · · · Q.· ·We agree with that. 16· · · · · · ·But the point being that you waived it for 17· ·Miami and Broward.· You could have waived it for 18· ·Hillsborough as well, correct, and allow them to 19· ·return to classes, basically, four weeks later than 20· ·the -- the projected time, right? 21· · · · A.· ·So I want to go back to the notion, and 22· ·remind everybody that that Broward, Palm Beach, and 23· ·Dade are still in Phase 1, which recommends school 24· ·closures.· Hillsborough is in Phase 2, which 25· ·recommends reopening schools.
1033 Page 796 ·1· · · · · · ·If Hillsborough would submit the data and ·2· ·the evidence that supports that they effectively ·3· ·have to quarantine every single campus, then we ·4· ·would accept that, but they have chosen not to move ·5· ·that route and we're still going to continue to work ·6· ·forward with them. ·7· · · · · · ·I can tell you right now, right now, even ·8· ·when schools aren't open in Hillsborough County, ·9· ·there are students on every single one of those 10· ·campuses and they have been opening for summer 11· ·workouts and conditions for their athletes. 12· · · · · · ·Our question is if you can be open for 13· ·summer workout, can you also do reading and math 14· ·intervention as well? 15· · · · Q.· ·But you're now saying they have to 16· ·demonstrate a need to quarantine every school 17· ·building in Hillsborough.· Is that what you're 18· ·saying? 19· · · · A.· ·That's what they're doing when they're 20· ·saying that not one campus in their district is safe 21· ·to bring students back on. 22· · · · Q.· ·And, again -- 23· · · · A.· ·So I want to know -- our questions and I 24· ·ask for clarification is does that mean the staff 25· ·that's painting the buildings and working in the
1034 Page 797 ·1· ·buildings, the administrators, are they not safe to ·2· ·be there either? ·3· · · · · · ·And if they're safe to be there, can we ·4· ·bring ten students onto that campus?· Can we bring ·5· ·20 students?· I get it, you might not be able to ·6· ·bring a thousand of them, but can we do anything on ·7· ·any one of these campuses?· That's -- we're asking ·8· ·for clarification. ·9· · · · Q.· ·Right. 10· · · · · · ·You want data, school by school, grade by 11· ·grade from Hillsborough County, right?· Correct? 12· · · · A.· ·That was the request, yes. 13· · · · Q.· ·Okay.· And I want to just talk for a 14· ·minute about the phases you referred to. 15· · · · · · ·In this emergency order, and you've 16· ·probably read it maybe as many times as me and 17· ·Mr. Wells have, can you point me to the paragraph 18· ·that refers to these phases? 19· · · · A.· ·I don't believe that's explicit in the 20· ·emergency order, but it's in the executive order. A 21· ·different one. 22· · · · Q.· ·The executive order's for -- it's not a 23· ·school-based order.· It's for buildings across 24· ·the -- it's for a broad range of public activities, 25· ·right?
1035 Page 798 ·1· · · · A.· ·Right. ·2· · · · Q.· ·Okay. ·3· · · · A.· ·That's my -- best of my knowledge, yes. ·4· · · · Q.· ·Okay.· And -- and maybe I didn't get ·5· ·the -- the clarity I want, so I'll go back through ·6· ·these questions about the authority to waive the ·7· ·financial limitations. ·8· · · · · · ·And I'm going to go through the questions ·9· ·maybe a little bit methodically, but what is the 10· ·source of the education commissioner's authority to 11· ·waive those requirements? 12· · · · A.· ·So my understanding is when the original 13· ·emergency order came out that declared a state of 14· ·emergency, state agency heads were given the 15· ·authority to make temporary conditions to put in 16· ·place as -- as it relates to deadlines and certain 17· ·statutes for short-term solutions to maintain daily 18· ·operations. 19· · · · · · ·This is Emergency Order No. 6, which means 20· ·there was a 1 through 5, and Commissioner Corcoran 21· ·executed previous emergency orders as it relates to 22· ·early learning, to Bright Futures, and some other 23· ·conditions as well. 24· · · · Q.· ·And that original authority from the 25· ·governor, that still exists, doesn't it?
1036 Page 799 ·1· · · · A.· ·I'm not the lawyer on this panel.· There's ·2· ·probably way better experts to speak to that, but I ·3· ·believe so, yes. ·4· · · · Q.· ·Okay.· And isn't it true that the order ·5· ·granting the waiver allowed the commissioner to, ·6· ·quote, "waive the restrictive funding requirements" ·7· ·for Miami-Dade and Broward and other counties, ·8· ·correct? ·9· · · · A.· ·I don't -- I don't know if I follow the 10· ·question. 11· · · · Q.· ·Okay.· I'll try a little bit differently. 12· · · · · · ·The commissioner, in fact, granted a -- a 13· ·waiver of the statute -- the statutory funding 14· ·limitations with respect to at least three or four 15· ·counties in the state of Florida, correct? 16· · · · A.· ·Yes.· So those districts submitted a 17· ·reopening plan that the department approved. 18· · · · Q.· ·And the commissioner could have granted 19· ·the -- the waiver for other counties if the 20· ·commissioner had chosen to, correct? 21· · · · A.· ·That's what we're doing with the approval 22· ·of the reopening plans, yes. 23· · · · Q.· ·Okay.· So you've -- you've given 24· ·Tallahassee, rather than the school board districts, 25· ·the ultimate say on how reopening should be done
1037 Page 800 ·1· ·safely, right? ·2· · · · A.· ·Can you -- you broke out a little bit. ·3· ·I'm sorry. ·4· · · · Q.· ·If the school district such as ·5· ·Hillsborough had a difference of opinion with ·6· ·Tallahassee on whether it's safe to reopening (sic), ·7· ·they are threatened with a large financial penalty ·8· ·if they don't do it your way; is that correct? ·9· · · · A.· ·Our -- my response is we are going to 10· ·support the local decisions.· When Hillsborough made 11· ·those requests to put a four-week abeyance on 12· ·in-person instruction, we asked for further 13· ·clarification and detail.· If the district was able 14· ·to provide that support, we would accept it. 15· · · · Q.· ·Well, in March, the commission was able to 16· ·grant an across the board waiver that was available 17· ·to all 67 districts, correct? 18· · · · A.· ·In March? 19· · · · Q.· ·Yeah, in March of 2020.· There was a -- in 20· ·effect, an order from the commissioner which waived 21· ·the certain requirements in order to obtain funding, 22· ·right? 23· · · · A.· ·So in March, if we're talking about in 24· ·March of 2020, in the spring, that calibration for 25· ·funding already happened in February and was not
1038 Page 801 ·1· ·impacted with the implementation of distance ·2· ·learning.· That snapshot in time had already ·3· ·happened. ·4· · · · Q.· ·Well, let's -- ·5· · · · A.· ·This -- ·6· · · · Q.· ·Go ahead. ·7· · · · A.· ·I was going to say this emergency order is ·8· ·a result of school leaders and finance directors ·9· ·looking on the horizon for the snapshot that's going 10· ·to happen in October. 11· · · · · · ·MR. COFFEY:· Okay.· Let me just ask if we 12· · · · have the emergency order dated March 23rd 13· · · · available. 14· · · · · · ·Defendants' 1.· And go to page 3.· Yeah, 15· · · · there's a few of these orders. 16· · · · · · ·MR. WELLS:· Which one is this? 17· · · · · · ·MR. COFFEY:· Page 3. 18· · ·BY MR. COFFEY 19· · · · Q.· ·Yeah, let's just go to Section 3, 20· ·Mr. Oliva.· Do you see Section 3? 21· · · · A.· ·Yes. 22· · · · Q.· ·Okay.· And you see that it effectuates a 23· ·waiver? 24· · · · A.· ·Yes. 25· · · · Q.· ·And isn't it true that, just in terms of
1039 Page 802 ·1· ·his authority, that the commissioner could have ·2· ·extended this waiver through the rest of 2020 ·3· ·because the funds for local school districts had ·4· ·already been appropriated. ·5· · · · · · ·Isn't it true? ·6· · · · A.· ·When you say "for 2020," are you talking ·7· ·about the '19-'20 fiscal year or the 2020-'21 fiscal ·8· ·year? ·9· · · · Q.· ·I'm talking about -- it would be 10· ·sufficient to allow schools to reopen on the same 11· ·schedule as Miami-Dade and Broward. 12· · · · · · ·That authority could have been -- this 13· ·order could have been extended to allow schools to 14· ·reopen as late as Miami-Dade and Broward without 15· ·financial penalty; isn't that true? 16· · · · A.· ·Well, this order -- and this is my 17· ·understanding, is the one that we're looking at in 18· ·March was really in reference to the '19-'20 -- or 19· ·the 2019-2020 school year. 20· · · · · · ·Emergency Order 6 is focused on the 21· ·2020-2021 school year.· And those assurances that 22· ·were in that order were that we're going to open 23· ·schools in August five days a week.· We have 24· ·families, who also have a voice in this reopening 25· ·plan, that know that distance learning was not the
1040 Page 803 ·1· ·best fit for their child, and we have an obligation ·2· ·to provide a conducive learning environment to ·3· ·support those students and families. ·4· · · · · · ·MR. COFFEY:· Your Honor, I'm almost ·5· · · · concluded.· I'd like to take just about five ·6· · · · minutes so I can speak with a couple of my ·7· · · · colleagues in case there's any additional ·8· · · · questions. ·9· · · · · · ·THE COURT:· Okay.· Let's take a 10· · · · five-minute break. 11· · · · · · ·(Recess from 4:58 p.m. to 5:03 p.m.) 12· · · · · · ·THE COURT:· Okay.· Mr. Coffey, you ready 13· · · · to start back on the cross? 14· · · · · · ·MR. COFFEY:· Yes, I am, Judge, and I think 15· · · · I am pretty close. 16· · ·BY MR. COFFEY 17· · · · Q.· ·Mr. Oliva, thanks for bearing witness 18· ·here. 19· · · · A.· ·My pleasure. 20· · · · Q.· ·When -- now there's a count in terms of 21· ·when students are to be seated in a classroom for 22· ·funding purposes; is that right? 23· · · · A.· ·Yes.· We -- we typically call that a 24· ·survey. 25· · · · Q.· ·Yeah.
1041 Page 804 ·1· · · · A.· ·And there's two surveys done a year, and ·2· ·that's in October and February. ·3· · · · Q.· ·And when is the -- more or less, when is ·4· ·the October count going to be taken? ·5· · · · A.· ·I don't know the exact date but, ·6· ·historically, it's the second week of October and ·7· ·the second week of February. ·8· · · · Q.· ·Okay.· So -- ·9· · · · A.· ·It's -- it's 11-day window. 10· · · · Q.· ·Okay.· But, I mean, in terms of how to 11· ·deal with school districts that are concerned about 12· ·safety, they could without -- should be able to -- 13· ·without any financial punishment be able to continue 14· ·with distance learning until at least the end of 15· ·September, right, before the count comes in and 16· ·students are going to be counted inside the 17· ·classroom, correct? 18· · · · A.· ·If they come back. 19· · · · Q.· ·Okay.· And maybe I've got this wrong or 20· ·the press has this wrong, but did the commissioner 21· ·say to superintendents, like, pretty recently, 22· ·"Before you get to the point of closing a classroom, 23· ·we want to have that conversation with you." 24· · · · · · ·Did he say that? 25· · · · A.· ·Yeah.
1042 Page 805 ·1· · · · · · ·Any time we have a school that's looking ·2· ·at closing, we want to be part of that collaborative ·3· ·conversation.· We're not going to necessarily ·4· ·intervene, but if there's a reason that we have to ·5· ·completely deny access of free and appropriate ·6· ·public education for all those students and ·7· ·families, we'd like to be informed and understand a ·8· ·little bit why that decision was made. ·9· · · · Q.· ·Okay.· But, I mean, the emergency order 10· ·did say, "Absent these directives."· Who knows 11· ·what -- I'm not going to speculate about what the 12· ·directives are. 13· · · · · · ·"The day-to-day decision to open or close 14· ·the school must always rest locally with the board 15· ·or executive most associated with the school, the 16· ·superintendent or a school board." 17· · · · · · ·Is that correct? 18· · · · A.· ·That's correct. 19· · · · Q.· ·Okay.· And, by the way, did -- did 20· ·Commissioner Corcoran also make a number of comments 21· ·about an emergency order giving them -- the school 22· ·districts complete flexibility and say things like, 23· ·absolutely, it's at their discretion; do you 24· ·remember hearing comments like that? 25· · · · A.· ·When you say "flexibility," are you
1043 Page 806 ·1· ·talking about in designing curriculums or developing ·2· ·reopening plans? ·3· · · · Q.· ·Well, I think it was in the context of ·4· ·reopening plans, but -- ·5· · · · A.· ·Yes. ·6· · · · Q.· ·Okay.· But it's absolute -- I mean, I'll ·7· ·use the terms "complete flexibility," it's at their ·8· ·discretion, right? ·9· · · · A.· ·When we implemented the assurance 10· ·template, let's just say for how districts are going 11· ·to meet the conditions outlined in the emergency 12· ·order, they had full flexibility to design whatever 13· ·distance innovative learning model worked best for 14· ·them. 15· · · · · · ·MR. COFFEY:· Okay.· Mr. Oliva, thank you 16· · · · for bearing with me, and best of luck to you 17· · · · and your colleagues. 18· · · · · · ·THE WITNESS:· I appreciate that.· Thank 19· · · · you. 20· · · · · · ·THE COURT:· Redirect? 21· · · · · · ·MR. WELLS:· Just a very little bit, Your 22· · · · Honor. 23· · · · · · · · · ·REDIRECT EXAMINATION 24· · ·BY MR. WELLS 25· · · · Q.· ·Talking about your concern with
1044 Page 807 ·1· ·Hillsborough County closing all, whatever, is it 240 ·2· ·campuses and wanting information about whether ·3· ·students could be at any of them, Mr. Coffey asked ·4· ·you whether the COVID issue could vary from ·5· ·neighborhood to neighborhood. ·6· · · · · · ·Do you recall that? ·7· · · · A.· ·Yes. ·8· · · · Q.· ·And is that one of the reasons why you ·9· ·want more information, to understand these schools 10· ·which are in different neighborhoods, the 11· ·neighborhoods may very well be ones that can open, 12· ·if not completely, at least to some students? 13· · · · A.· ·Yeah.· And that's in line with the dimmer 14· ·switch approach, the analogy we've used, and the 15· ·guidance for reopening campuses. 16· · · · · · ·If we can't fully open the campuses or 17· ·flip the light switch on, can we slowly start 18· ·bringing students, especially our students of the 19· ·greatest needs back onto our campuses?· And if the 20· ·answer is no, we just want some of -- to understand 21· ·why.· And if we can, we want to support you in doing 22· ·that. 23· · · · Q.· ·Okay.· Now, one last question:· Have you 24· ·had any feedback from the superintendents in the 28 25· ·districts that have opened up?
1045 Page 808 ·1· · · · A.· ·So I've personally, at least to the first ·2· ·22 of them, I know we've had some open in the last ·3· ·couple of days and I haven't had a chance to follow ·4· ·up on them. ·5· · · · · · ·But I've personally spoken to every ·6· ·superintendent that's been reopened.· And every ·7· ·superintendent that I've talked about, first, who ·8· ·have remarked about how this is the smoothest ·9· ·reopening to a school year that they've ever 10· ·imagined; second, that the parents, the students, 11· ·and teachers are so appreciative that the schools 12· ·are reopened and they say it was the best decision 13· ·that they could make in reopening those schools, 14· ·and, overwhelmingly, it's been positive and 15· ·receptive. 16· · · · · · ·And every single superintendent has told 17· ·me by the second day of being reopened they have 18· ·dozens of parents that said, "I signed up for 19· ·distance learning but I've changed my mind and I 20· ·want to know what do I do to be able to bring my 21· ·child back now." 22· · · · · · ·MR. WELLS:· Thank you, Mr. Oliva.· No more 23· · · · questions. 24· · · · · · ·MR. COFFEY:· One on recross, if it's okay, 25· · · · but --
1046 Page 809 ·1· · · · · · ·THE COURT:· Oh, yes, sir.· Sure. ·2· · · · · · · · · ·RECROSS EXAMINATION ·3· · ·BY MR. COFFEY ·4· · · · Q.· ·What, by the way, Mr. Oliva, is the ·5· ·incubation period so that you know how many days it ·6· ·takes to see if somebody could test positive after a ·7· ·potential infection? ·8· · · · A.· ·If somebody has direct exposure to an ·9· ·individual that has tested positive? 10· · · · Q.· ·Yeah.· What's the quarantine or the 11· ·incubation period? 12· · · · A.· ·It's 14 days. 13· · · · · · ·MR. COFFEY:· Thank you, sir. 14· · · · · · ·THE COURT:· Thank you, Mr. Oliva.· You may 15· · · · leave the hearing.· Thank you very much.· Yes, 16· · · · sir. 17· · · · · · ·THE WITNESS:· Thank you, Your Honor. 18· · · · · · ·THE COURT:· Call your next witness. 19· · · · · · ·MR. WELLS:· Your Honor, we had one more, 20· · · · but in the sense of good sense, we are going to 21· · · · be done.· We need to put some evidence in. 22· · · · · · ·THE COURT:· All right.· So no further -- 23· · · · excuse me -- no further witnesses. 24· · · · · · ·MR. WELLS:· That's correct. 25· · · · · · ·THE COURT:· All right.· Tell me what else
1047 Page 810 ·1· ·we need to do. ·2· · · · And just, Mr. Wells, according to my ·3· ·notes, when you were examining ·4· ·Dr. Bhattacharya -- ·5· · · · MR. WELLS:· Yes, Your Honor. ·6· · · · THE COURT:· -- you discussed Exhibit 26, ·7· ·Exhibit 5, but they were never moved into ·8· ·evidence.· Did you wish to do that? ·9· · · · MR. WELLS:· I do wish.· We were just 10· ·trying to do as the plaintiffs did and wait and 11· ·move them at the end of the case.· So we have 12· ·several to move in that we have discussed. 13· · · · THE COURT:· I have a system and I always 14· ·like following my system. 15· · · · MR. WELLS:· I'm so sorry. 16· · · · THE COURT:· No.· Go ahead.· Yes, sir. 17· · · · MR. WELLS:· All right.· I'm going to ask 18· ·Mr. Hill to -- you're going to walk through 19· ·what you put in, right?· Well, just go through 20· ·one at a time, just go through each one because 21· ·they're going to have to say something if 22· ·there's a problem. 23· · · · MR. HILL:· All right.· So we'll start with 24· ·Exhibit 1, Your Honor.· And that is -- 25· · · · THE COURT:· Go ahead and go through --
1048 Page 811 ·1· ·just state all the numbers that you're moving ·2· ·in and I'll have the plaintiffs tell me if ·3· ·there's any they object to. ·4· · · · MR. HILL:· Okay.· Certainly, Your Honor. ·5· · · · Exhibit No. 1. ·6· · · · MS. AGUILA:· No objection. ·7· · · · MR. MEYER:· No objection. ·8· · · · MS. AGUILA:· Oh, at the end? ·9· · · · THE COURT:· Just do them at the end. 10· ·Yeah, just go ahead and go through the moving 11· ·in. 12· · · · MS. AGUILA:· Oh, sorry. 13· · · · MR. HILL:· Okay. 14· · · · THE COURT:· So Defendants' 1 is admitted. 15· · · · MR. HILL:· Two and 3, Exhibit 4, 5, and 6, 16· ·and then 7A through 7G.· Let's see.· Exhibit 8, 17· ·through -- 18· · · · MR. WELLS:· Go ahead. 19· · · · MR. HILL:· -- through Exhibit 19, then 20· ·Exhibit 20 through 28. 21· · · · So that's all of them, Your Honor, I 22· ·believe. 23· · · · THE COURT:· Any objection, Ms. Aguila? 24· · · · MS. AGUILA:· No.· I just have one 25· ·question.· Exhibit 7, the composite, is that
1049 Page 812 ·1· ·just all of the reopening plans that have been ·2· ·approved? ·3· · · · MR. HILL:· Yes, that's -- ·4· · · · MR. WELLS:· Is it really?· Oh, yeah, it ·5· ·is. ·6· · · · MR. HILL:· Yeah. ·7· · · · MR. WELLS:· My bad. ·8· · · · MR. HILL:· It's voluminous.· Your Honor, ·9· ·we didn't want to print it out or have to -- 10· ·it's easily available on a link, if the 11· ·Court -- if the Court wishes to view any of the 12· ·plans specifically. 13· · · · THE COURT:· Well, that raises something 14· ·and I need y'all to put your heads together to 15· ·figure this out. 16· · · · I do not have a clerk with me for this 17· ·trial.· Thank goodness I have Ms. Goodman 18· ·Taylor sitting with me, who is taking care of 19· ·the technology. 20· · · · But what you all need to do is to make 21· ·sure you get all these exhibits that have been 22· ·admitted into evidence and get those to the 23· ·clerk so that they are filed with the Court. 24· ·Just the ones that are admitted. 25· · · · MR. WELLS:· Yes, Your Honor.
1050 Page 813 ·1· · · · MR. HILL:· We'll do that, Your Honor. ·2· · · · MS. AGUILA:· Yes. ·3· · · · THE COURT:· All right.· So, Ms. Aguila, ·4· ·any objections to those listed by -- ·5· · · · MS. AGUILA:· No. ·6· · · · THE COURT:· -- Mr. Hill there? ·7· · · · MS. AGUILA:· No.· What are 23 to 28?· The ·8· ·list I have cuts off at 22. ·9· · · · MR. HILL:· So Exhibit No. 24 is the 10· ·curriculum vitae of Dr. Hopes. 11· · · · MS. AGUILA:· Okay. 12· · · · MR. HILL:· Twenty-five is a composite of 13· ·the Manatee County reopening guidance that 14· ·Dr. Hopes talked about. 15· · · · And then 26, 27, and 28 are the three 16· ·studies that Dr. Bhattacharya talked about. 17· · · · MS. AGUILA:· Okay.· No objection. 18· · · · THE COURT:· Okay.· So Defendants' 1 19· ·through 28 are all admitted. 20· · · · (Thereupon, received in evidence as 21· ·Defense Exhibits 1 through 28.) 22· · · · MR. WELLS:· And, in that case, Your Honor, 23· ·the defense rests. 24· · · · THE COURT:· Okay.· Can y'all come back -- 25· ·I've got another emergency hearing scheduled
1051 Page 814 ·1· ·tomorrow morning from 9:30 to noon.· Can you ·2· ·all come back tomorrow at noon and do closing ·3· ·arguments? ·4· · · · MR. WELLS:· Yes, Your Honor. ·5· · · · MR. COFFEY:· Of course, Your Honor. ·6· · · · THE COURT:· Let's do that, then.· But I ·7· ·still need your proposed orders by 5:00 p.m. ·8· ·tomorrow, no more than 15 pages, so that I can ·9· ·get to work on those. 10· · · · But we'll reconvene tomorrow.· Can you all 11· ·do your closings in an hour apiece? 12· · · · MR. WELLS:· Oh, easily. 13· · · · MR. WEILAND:· Your Honor, ours will be 14· ·20 minutes, if not shorter. 15· · · · MR. COFFEY:· Judge, we'll try to more or 16· ·less divide so that it's not unfair to 17· ·Mr. Wells, give me a little flexibility, but 18· ·we'll try to make sure that the plaintiffs' 19· ·side is more or less equal to the defense side 20· ·in terms of time. 21· · · · THE COURT:· Okay.· Sounds great, and I'll 22· ·see you all back -- 23· · · · MR. STUART:· Your Honor, pardon the 24· ·interruption, but before we go, I would just be 25· ·amiss if I did not ask you again to reconsider
1052 Page 815 ·1· ·a temporary stay from opening the schools. ·2· · · · I understand your position yesterday. I ·3· ·do not mean to be disrespectful. ·4· · · · THE COURT:· I understand, and I'm going to ·5· ·have to deny the request on the same grounds. ·6· · · · MR. STUART:· Yes, sir. ·7· · · · MR. WIELAND:· And, Your Honor, one last ·8· ·matter.· We'd just like to move something into ·9· ·evidence.· We can do that tomorrow if you like. 10· ·It's just a rebuttal declaration.· It will be 11· ·Plaintiffs' Exhibit No. 68. 12· · · · THE COURT:· All right.· And I guess I 13· ·should have asked:· Is there any rebuttal 14· ·testimony? 15· · · · MR. COFFEY:· Well, Your Honor, Mr. Meyer 16· ·can speak to that.· I'm not aware of any. 17· · · · MR. MEYER:· We are not going to have any 18· ·rebuttal witnesses.· We may have some rebuttal 19· ·declarants, declarations. 20· · · · THE COURT:· Can we do those today, or -- 21· · · · MR. MEYER:· No, Your Honor.· If we could 22· ·put them in tomorrow.· We just don't have them 23· ·finalized yet. 24· · · · THE COURT:· Mr. Weiland, are you ready for 25· ·yours today?
1053 Page 816 ·1· · · · MR. WEILAND:· Yes, Your Honor.· We can ·2· ·move that into evidence, it's No. 68.· We'll ·3· ·make sure the clerk and defense get it. ·4· · · · MR. WELLS:· Your Honor, I think we'd like ·5· ·to see it before we have to say whether we ·6· ·object or not. ·7· · · · THE COURT:· What is Plaintiffs' 68 again? ·8· · · · MR. WEILAND:· Just a declaration from a ·9· ·parent in Manatee County. 10· · · · THE COURT:· Okay.· We'll take that up 11· ·tomorrow, then, after Mr. Wells has a chance to 12· ·review that. 13· · · · MR. WELLS:· Yeah.· If you all will just 14· ·send them to me tonight, we'll be ready to talk 15· ·about them. 16· · · · MR. WEILAND:· Absolutely. 17· · · · MR. WELLS:· Okay. 18· · · · THE COURT:· Okay.· So that wraps up today. 19· ·I'll see you back at noon tomorrow. 20· · · · MR. WELLS:· Thank you, Your Honor. 21· · · · THE COURT:· Thank you.· Yep. 22· · · · (Proceedings adjourned at 5:17 p.m. and 23· ·continued in Volume 6.) 24 25
1054 Page 817 ·1· · · · · · · · · · COURT CERTIFICATE
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·4· ·STATE OF FLORIDA
·5· ·COUNTY OF LEON
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·7· · · · · · ·I, MARYKAY HORVATH, RPR CRR, FPR, certify
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·9· · · · stenographically report the foregoing
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11· · · · and complete record of my stenographic notes.
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13· · · · · · ·Dated this 28th day of August 2020.
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16· ·______· · · · · MARYKAY HORVATH, RPR, CRR, FPR 17
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