1 1 NO. 90-CI-06033 JEFFERSON CIRCUIT COURT DIVISION ONE 2 3 4 JOYCE FENTRESS, et al PLAINTIFFS 5 6 VS TRANSCRIPT_OF_THE_PROCEEDINGS __________ __ ___ ___________ 7 8 9 SHEA COMMUNICATIONS, et al DEFENDANTS 10 11 * * * 12 13 14 WEDNESDAY, OCTOBER 26, 1994 15 VOLUME XXIII 16 17 * * * 18 19 20 21 _____________________________________________________________ REPORTER: JULIA K. McBRIDE 22 Coulter, Shay, McBride & Rice 1221 Starks Building 23 455 South Fourth Avenue Louisville, Kentucky 40202 24 (502) 582-1627 FAX: (502) 587-6299 25 2 1 2 I_N_D_E_X _ _ _ _ _ 3 4 Hearing in Chambers regarding Heiligenstein testimony.... 4 5 Hearing in Chambers regarding Coleman testimony.......... 14 6 Voir Dire Examination of Lee A. Coleman, M.D............. 19 7 Continued Hearing in Chambers regarding Coleman testimony........................................ 42 8 * * * 9 WITNESS: DOCTOR_LEE_A._COLEMAN _______ ______ ___ __ _______ 10 By Mr. Smith............................................. 69 11 By Mr. Stopher...........................................153 12 * * * 13 Hearing in Chambers......................................169 14 Reporter's Certificate...................................187 15 * * * 16 17 18 19 20 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 4 FOR THE PLAINTIFFS: 5 PAUL L. SMITH Suite 745 6 Campbell Center II 8150 North Central Expressway 7 Dallas, Texas 75206 8 NANCY ZETTLER 1405 West Norwell Lane 9 Schaumburg, Illinois 60193 10 IRVIN D. FOLEY Rubin, Hays & Foley 11 300 South, First Trust Centre Louisville, Kentucky 40202 12 13 FOR THE DEFENDANT: 14 EDWARD H. STOPHER Boehl, Stopher & Graves 15 2300 Providian Center Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. 17 LAWRENCE J. MYERS Freeman & Hawkins 18 4000 One Peachtree Center 303 Peachtree Street, N.E. 19 Atlanta, Georgia 30308 20 * * * 21 22 23 24 25 4 1 The Transcript of the Proceedings, taken before 2 The Honorable John Potter in the Multipurpose Courtroom, Old 3 Jail Office Building, Louisville, Kentucky, commencing on 4 Wednesday, October 26, 1994, at approximately 7:33 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS WITH MS. ZETTLER AND 10 MR. MYERS PRESENT) 11 MS. ZETTLER: Okay. We got up to Page 152. 12 MR. MYERS: Yeah. The next one is on 153. 13 MS. ZETTLER: Here's the list, Judge. 14 JUDGE POTTER: How far did we get yesterday, 15 Ms. Zettler? 16 MS. ZETTLER: 146 is where we left off. 17 JUDGE POTTER: I don't keep track -- up with 18 them so when I sent you the note I didn't know whether he had 19 an hour left or what. 20 MS. ZETTLER: I told Marsha in the note we're 21 just about there, and then he saw that something was going on. 22 JUDGE POTTER: Okay. 23 MR. MYERS: We start on 146? 24 MS. ZETTLER: These are the pages we pulled to 25 read. 5 1 JUDGE POTTER: These other pages you -- 2 MS. ZETTLER: Right. I didn't want to lose the 3 originals. 4 JUDGE POTTER: I wanted to see the sentence 5 before 153. 6 MS. ZETTLER: This is just something out of the 7 blue, Judge. If they want to read it, that's fine, but I'm 8 not going to read it. 9 JUDGE POTTER: Mr. Myers, tell me how this fits 10 in on 153, because I really can't tell where they're even 11 talking about the same thing. 12 MR. MYERS: Yes, sir. They're reading up 13 through the beginning of 151 and then picking up on 154, and 14 this is within the context of the entire discussion of what 15 was the method you used to do this paper, which is what he's 16 been testifying about since we started yesterday. In fact, 17 almost the entire first day or a great deal of it was on this 18 paper, and it's just part of what did you look at, what was 19 the sequence, and it's part of that situation. 20 MS. ZETTLER: But he already talks about -- this 21 is just, you know, gratuitous thing that comes out of nowhere 22 and it's already included in the discussion that's already, 23 you know... 24 JUDGE POTTER: All right. But it's not 25 misleading; it's the same thing. Is that right, Ms. Zettler, 6 1 that he's just saying again something he said? Because I'll 2 be honest with you, I didn't follow yesterday too closely. 3 MS. ZETTLER: Yes. Unfortunately, it's going to 4 take awhile to get to the point on this. 5 JUDGE POTTER: Sustain 153. 154. So this 6 should not be there. 7 MS. ZETTLER: The stuff about blinding, Larry, 8 we don't talk about. I mean, I took all that stuff out 9 because it gets confusing. 10 JUDGE POTTER: All right. I'm going to overrule 11 154 simply because it doesn't make sense. 12 Did you talk about Doctor -- 13 MS. ZETTLER: Coccoro. 14 JUDGE POTTER: -- again? 15 MS. ZETTLER: No. And then we jump to another 16 whole area. 17 Your Honor, we'll agree to read that last 18 question and answer about Doctor Coccoro, but if they want 19 that other part in, they should read it. 20 JUDGE POTTER: That's what I was thinking. All 21 right. What I'm going to do is sustain it as to 162 and 163 22 through Line 3, and then the rest of it, if you want to come 23 back and read it. And, obviously, if you want to read through 24 your-all's part, you can read additional stuff, but you 25 obviously can read this as part of, like, cross-examination. 7 1 MS. ZETTLER: Well, if they're going to read 2 additional stuff they should let us know what it is, shouldn't 3 they? 4 MR. MYERS: Well, to the extent that the Court 5 is overruling and is suggesting we read it, we certainly 6 reserve the right to read what the Court says to read. 7 MS. ZETTLER: Right. But if you're going to 8 read additional stuff we'd like to see it. 9 JUDGE POTTER: What I'm saying is if because you 10 have to put something in context or have a lead-in or 11 something else, what I'm saying is you could read more than 12 this if you wanted to read it as part of cross-examination. 13 MR. MYERS: Yes, sir. I understand. 14 JUDGE POTTER: But we go through the normal 15 things; they give you notice ahead of time. 16 MR. MYERS: And this takes it down -- 17 JUDGE POTTER: Through 166. 18 MR. MYERS: All right. 19 JUDGE POTTER: 172. 20 MS. ZETTLER: And that's an objection. 21 JUDGE POTTER: Where are we now? Is this the 22 thing that -- the paper that -- 23 MR. MYERS: Same paper that he's been talking 24 about. 25 MS. ZETTLER: Same paper. 8 1 MR. MYERS: We don't get off the paper for a 2 while. 3 JUDGE POTTER: And I take it this paper was 4 submitted to the -- this is the reanalysis that the ad hoc 5 committee did and saw in 1991? 6 MR. MYERS: Well, this is the violent-aggression 7 part of it. 8 MS. ZETTLER: Right. And the advisory committee 9 did review what became the paper that was published, but, you 10 know, they've gone on and on and on about papers and how this 11 is a great paper. 12 JUDGE POTTER: Okay. I'm going to overrule 172. 13 I mean, if it had been published we'd hear about it, so I 14 think we should get out that it was not published. 15 All right. What does 198 through 200 mean? 16 Does that mean -- 17 MS. ZETTLER: That's all together, and I'm 18 trying to... 19 JUDGE POTTER: All right. So you're not giving 20 it to them. This is just him coming on and saying I would use 21 it? 22 MS. ZETTLER: Yeah, physicians. 23 JUDGE POTTER: Okay. I'm going to overrule the 24 objection to 198 through 200. Obviously, it can be read as 25 part of your case if you want. 9 1 MR. MYERS: Yes, sir. 2 JUDGE POTTER: This is the same drill on 205; 3 right? 4 MS. ZETTLER: Uh-huh. 5 MR. MYERS: But 205 to 206, they pick up again 6 at 206, 207. 7 JUDGE POTTER: All right. I'm going to leave 8 205 in, I'm going to sustain, because that's a lead-in. 9 Okay. Mr. Myers, on 207, 208, you're just going 10 to have to tell me. I didn't read the lead-in or anything. 11 MR. MYERS: Well, the lead-in is 206, 8 to 24 12 and then 207, 1 to 4, and this is a continuation. 13 JUDGE POTTER: This is just getting in that 14 normal doctors prescribe it a lot; is that right? 15 MS. ZETTLER: Yes. And then the next part, 16 Judge, is they're talking about this new condition called 17 subsyndromal syndrome, and basically what it is is a less 18 severe form of depression. It doesn't have anything to do 19 with what happened before. 20 JUDGE POTTER: Let Mr. Myers tell me, what's the 21 definition of a subsyndromal... 22 MR. MYERS: The previous parts that are read on 23 206 and 207 have to do with primary-care doctors prescribing 24 the drug and then the subject matter of prescribing it in a 25 depressed condition that may not be a depressed condition, so 10 1 that does go together. 2 MS. ZETTLER: Absolutely not. What that is is a 3 shift in subject. Now, what the blue is, is if you're going 4 to let him read this part, we want this other part in to fully 5 describe what we're talking about here. 6 JUDGE POTTER: I'm going to overrule 207 and 208 7 because I can't figure out how it fits in. 215. 8 MS. ZETTLER: You don't mind if I stand over 9 your shoulder, do you? 10 JUDGE POTTER: No. 11 MS. ZETTLER: Again, the blue is what we want in 12 if you let them read that. 13 JUDGE POTTER: Oh, so you were not going to read 14 this otherwise? 15 MS. ZETTLER: No. 16 JUDGE POTTER: Because it looked like a good 17 lead-in to what you were going to read. 18 MR. MYERS: This goes back to something earlier 19 discussed, and the reason we want it read is to put it into 20 context whether it was an IND or NDA study, which further 21 identifies what it was. 22 JUDGE POTTER: See, my problem is like you were 23 talking about, how earlier? Where is the agitation study? 24 MS. ZETTLER: Way, way back. 25 MR. MYERS: Hang on for just a second. I think 11 1 in Page 35 to 50, in that range? 2 JUDGE POTTER: Oh, something that's already 3 passed? 4 MR. MYERS: Yes, sir. 5 JUDGE POTTER: I'm going to overrule 215. 227. 6 MR. MYERS: We ask for that, Judge, because it's 7 a lead-in to what did you consider, what did you think about 8 doing. 9 JUDGE POTTER: All right. 227 is sustained 10 and -- is 228, -29, -30, all those run together? 11 MR. MYERS: Through 236 are all together. 12 JUDGE POTTER: And all this comes because 13 they've asked one little thing? 14 MR. MYERS: Well, I don't know that it's one 15 little thing. It's been asked in a lot of other depositions. 16 JUDGE POTTER: How about this, Ms. Zettler. 17 Apparently, if you will give up 227 and 228, we get -- that's 18 just where you ask them have they done anything where the 19 primary study is -- 20 MR. MYERS: They're reading parts of 233 through 21 235. 22 JUDGE POTTER: All right. Let me take a quick 23 look at it. 24 MS. ZETTLER: Judge, we'll give that up if 25 they'll give up the rest of it, because you're right. It's 12 1 been... 2 MR. MYERS: You'll give up 233 to 236? 3 MS. ZETTLER: I was talking 227 to 229. 4 MR. MYERS: Isn't the start 228, Line 16? 5 JUDGE POTTER: Well, actually, if you want to 6 cut the whole thing, what you could do is start with 227 -- 7 he's got a lead-in to that one and then he's got a lead-in to 8 this one. 9 MS. ZETTLER: Right. But if I could see what 10 the rest of it is. 11 MR. MYERS: I'll withdraw from 227, including 12 what you sustained, to 236, if they'll withdraw everything 13 that they've designated on those pages. 14 MS. ZETTLER: Well, let me see. Yeah. We'll 15 take it out. 16 JUDGE POTTER: All right. 17 MS. ZETTLER: How far are we going? 18 JUDGE POTTER: To 236. 19 MR. MYERS: So we're taking everything out to 20 236 that anybody designated? 21 JUDGE POTTER: Right. 242. Who is Doctor 22 Geller? 23 MR. MYERS: I'll withdraw that. 24 MS. ZETTLER: Thank you. 25 JUDGE POTTER: Okay. So now we're at 252. 13 1 MS. ZETTLER: This sort of strings in with that 2 last group we just agreed on, I think. 3 JUDGE POTTER: We're going back to zero, aren't 4 we? 5 MS. ZETTLER: Uh-huh. 6 MR. MYERS: I'll withdraw 252 through Line 7 on 7 258. 8 MS. ZETTLER: Line 7 on 258? 9 MR. MYERS: Through Line 7 on 258. 10 JUDGE POTTER: What on earth is the Rocky 11 Mountain -- 12 MS. ZETTLER: The Rocky Mountain Poison Control 13 Center Study is an overdose study -- it's like a cost- 14 effectiveness study as to how to treat people overdosed on 15 Prozac as opposed to other antidepressants. 16 (PROCEEDINGS INTERRUPTED BY A KNOCK ON THE DOOR) 17 MR. SMITH: Excuse me. Doctor Coleman and his 18 lawyer are here. 19 JUDGE POTTER: I'm going to overrule all of 252 20 through 259, and some of it was withdrawn, but the parts that 21 weren't. 22 Let's deal with Doctor Coleman because we don't 23 know how much longer -- 24 MS. ZETTLER: And then if we have to, I guess we 25 can do the rest of this at lunch. Doctor Coleman may take 14 1 awhile. 2 JUDGE POTTER: I don't anticipate him taking 3 awhile. 4 (AT 8:05 A.M., ALL ATTORNEYS ON TODAY'S 5 APPEARANCE PAGE AND MS. TRACY PREWITT 6 ENTER CHAMBERS) 7 JUDGE POTTER: Let me review why I think we're 8 here. The Plaintiffs intend to call Doctor Coleman today and 9 intend to ask him some questions, and the one question that 10 came up yesterday that I assume the Defendants objected to, 11 and maybe did object to, but it occurred to me that it's the 12 kind of question that ought to be asked beforehand so that if 13 he gets a negative answer or an "I don't know" or something, 14 the question hasn't been asked in front of a jury. And that 15 was -- particular question was, "Isn't it true, Doctor 16 Coleman -- and I'm not trying to tell you how to phrase it -- 17 that Lilly has agreed to hold you harmless from any exposure 18 you've got in this lawsuit," or you've had discussions with 19 them about that or touching on that topic in some way. And I 20 take it, Mr. Stopher, you-all object to him being asked those 21 type of questions, is that right, or is this Mr. Freeman's 22 witness? 23 MR. FREEMAN: No, sir. Mr. Stopher's. 24 JUDGE POTTER: It's a Louisville person. 25 Mr. Stopher? 15 1 MR. STOPHER: Right. We object. 2 JUDGE POTTER: Okay. And I take it, Mr. Smith, 3 you do intend in your -- if it becomes advantageous to you 4 during your direct examination to ask him those questions, is 5 that right, or at least have that option available to you? 6 MR. SMITH: That's correct, Your Honor; at least 7 to have that option. I haven't decided that's indeed what I'm 8 going to do. Additionally, I intend to examine the Witness, 9 and I think this is the appropriate time to do it, on the 10 Daubert theory. As you recall, we are of the opinion that 11 Doctor Coleman cannot express an opinion concerning causation 12 with respect to the events of September 14th, 1989, and I want 13 to inquire of him what knowledge he has concerning matters 14 that would be appropriate for Daubert. 15 JUDGE POTTER: Okay. The other thing that came 16 up yesterday is that Doctor Coleman was a party, is a party as 17 to Wesbecker and has been dismissed as to the plaintiffs, the 18 current plaintiffs. I take it, Mr. Smith, you intend to get 19 that in, is that right, or at least you want that option 20 available to you? 21 MR. SMITH: The option available. 22 JUDGE POTTER: How would you intend to describe 23 that? 24 And, Mr. Stopher, let me ask you this, do you 25 have any objection to it getting in that he was -- he is a 16 1 party and has been dismissed out? 2 MR. STOPHER: Right. We object, Judge. 3 JUDGE POTTER: I think all of this comes in, 4 because I think it goes to his bias and his, you know, 5 potential bias and whatnot. My only concern about the third 6 issue, which is that he's been dismissed, is how it is 7 described to the jury. And so, Mr. Smith, how would you 8 intend to go about that? And let me just tell you what my 9 concern is; part of it is personal and part of it is accuracy. 10 Judges tend to forget that when a judge says, "Do you mind 11 coming in," it's not a request; lawyers think they've been 12 ordered to come in. And jurors take everything that anybody 13 says, a judge says, even more seriously than lawyers take it. 14 So I don't want anybody to come away with some impression that 15 I've said he's an honest man, he's a good psychiatrist, he 16 didn't do anything that he shouldn't be criticized for or that 17 the Plaintiffs have got a frivolous case because they sued 18 somebody that's been put out. Those are my concerns. Mr. 19 Smith, how do you intend to approach that issue? 20 MR. SMITH: If I approach it at all, Your Honor, 21 it would be, "Doctor Coleman, you were named as a defendant by 22 the Plaintiffs in this case, and you are no longer a defendant 23 by virtue of a court ruling in connection with a statute in 24 this state that insulates psychiatrists from claims of third 25 parties in matters of this nature and, in fact, that issue is 17 1 still on appeal concerning whether or not you had any duty to 2 the Plaintiffs and whether or not you breached a duty to the 3 Plaintiffs, and there's still a potential that you might be an 4 active defendant in this case." 5 JUDGE POTTER: All right. Perhaps with the 6 exception of the word "insulate" I think that accurately 7 describes what's taken place. Mr. Stopher, if I'm going to 8 let it in, do you have any problems with it going along those 9 lines? 10 MR. STOPHER: Well, I think that if it's going 11 to come in, Judge, that there needs to be an explanation by 12 this Court with the order explaining. Rather than having the 13 Witness, who is not a lawyer, and Mr. Smith characterizing the 14 order, I think it's up to the Court, if this is going to come 15 in, to advise the jury as to what the conditions were to the 16 dismissal of Doctor Coleman. And I object to it coming in at 17 all for all these reasons. I think it gets us into an area 18 where there's -- where we're trying another case that's not 19 even in front of the jury, in front of the jury. 20 JUDGE POTTER: Right. First of all, what's 21 important is not what actually took place; it's what Doctor 22 Coleman believes his status is, because it's how it would 23 impinge on his testimony. So I'm not real excited about me 24 instructing the jury because I think we run into the jury even 25 more so glopping onto a phrase or a turn I use -- term I use 18 1 and reading much more into it than is there; whereas, if Mr. 2 Smith asks him a question and the guy answers it, they're 3 going to say those are two people. If I use the word 4 "insulate" or if I say -- what did you call it yesterday, 5 Mr. Stopher, a technicality or not on the merits? 6 MS. ZETTLER: Procedural. 7 JUDGE POTTER: Procedural, whatever it was, it 8 takes on a much greater thing. So I think the proper way to 9 do it is through the examination of the Doctor. And, you 10 know, I guess the bottom line is that if, you know, it gets to 11 be too big a wrangle, somebody just introduces the opinion and 12 there it is why he's out. And if I have to speak, that's the 13 way I would speak is through the opinion that I wrote. 14 Yesterday I confessed I had not read his 15 deposition very carefully, or if I did I had forgotten it, but 16 I do write all my own opinions and don't use clerks to write 17 them. And so I don't know if anybody wants to look at it and 18 see if there's any gratuitous side effects in there. It was 19 mostly, I remember, a discussion of cases from other 20 jurisdictions and had very little to do with the facts of this 21 case. 22 Okay. So, Mr. Smith, as long as you approach it 23 that way, I'm going to overrule the Defendant's objections to 24 asking him that he was a party, he's been dismissed out, that 25 is still subject to appeal, and he's still got a pending claim 19 1 against Wesbecker, because it's all factually true. Let's ask 2 him to come in and take some testimony about what the expected 3 answers will be about indemnity. And if you want to ask him 4 questions about his qualifications to express an expert 5 opinion, you can do that, also. 6 (MS. PREWITT LEAVES AND REENTERS CHAMBERS 7 WITH LEE A. COLEMAN, M.D.) 8 JUDGE POTTER: Have a seat, sir. Thank you for 9 coming in. I know you've been asked numerous questions 10 numerous times, but there are a few points that before we 11 start today we kind of need a more detailed idea of what your 12 testimony is going to be so I can make some rulings. 13 Will you raise your right hand, sir. 14 15 LEE A. COLEMAN, M.D., after first being duly 16 sworn, was examined and testified as follows: 17 18 JUDGE POTTER: You want to answer Mr. Smith's 19 questions. 20 21 VOIR_DIRE_EXAMINATION ____ ____ ___________ 22 23 BY_MR._SMITH: __ ___ _____ 24 Q. Doctor Coleman, you and I met day before 25 yesterday, did we not? 20 1 A. That's correct. 2 Q. And we met in your attorney's office here in 3 Louisville, Kentucky? 4 A. Yes, sir. 5 Q. At that time you advised me that you had spoken 6 with the lawyers from Lilly previous to our conversation; is 7 that correct? 8 A. I don't recall saying that, but I have. 9 Q. All right. And when was the last time that you 10 spoke with lawyers from Lilly? 11 A. I met with Mr. Stopher approximately -- I can't 12 remember the exact date -- two or three weeks ago. 13 Q. All right. And before that, had you met with 14 any of the Lilly lawyers? 15 A. I had met with Mr. Stopher, I think, right -- a 16 few days prior to the start of the trial. 17 JUDGE POTTER: That was two or three weeks ago, 18 wasn't it? 19 Q. In this meeting that you had two or three weeks 20 ago, who was present at the meeting? 21 A. Well, there's been two meetings. 22 Q. I'm talking about the one two or three weeks 23 ago, the most recent one. 24 A. The most recent one was my attorney Greg Bubalo, 25 myself, Mr. Stopher and one of his associates I can't 21 1 remember. 2 Q. All right. And who was present at the earlier 3 meeting a few days prior to the start of trial? 4 A. It was the same people, except there was one 5 meeting that Mr. Freeman -- I think Mr. Freeman was at the 6 very first one, as well. 7 Q. But Mr. Freeman wasn't in the first two 8 meetings; is that right? 9 A. Yeah. He was in one of them. I think he was -- 10 I can't remember. I think he was in the first one, if I'm not 11 mistaken. 12 Q. That would be the one a few days prior to the 13 start of trial; is that right? 14 A. Correct. The first meeting, as I recall, was at 15 my attorney's office; the second meeting, to the best of my 16 recollection, was at Mr. Stopher's office, unless I'm getting 17 them backwards, but that's... 18 Q. The meeting two or three weeks ago while the 19 trial was going on, where was that meeting? Was that meeting 20 at Mr. Stopher's office or in Mr. Bubalo's office? 21 A. As I recall, the most recent meeting was at Mr. 22 Stopher's office. 23 Q. All right. And that was the one two or three 24 weeks ago? 25 A. Probably a couple weeks ago. 22 1 Q. And the first meeting or the meeting -- the 2 first meeting you had with Mr. Stopher was at Bubalo's office; 3 is that right? 4 A. I think I've got those -- I'm trying to remember 5 exactly what the context of each meeting was. I think really 6 the first meeting was in Mr. Stopher's office and the second 7 one was at Mr. Bubalo's office. 8 Q. Well, you've described two meetings; correct? 9 A. Correct. Yes, sir. 10 Q. Now, were there any other meetings that you had 11 with any lawyers from Eli Lilly and Company? 12 A. No, sir. 13 Q. Were there any -- have you had any meetings with 14 anyone from Eli Lilly and Company, any officer, any employee 15 of Eli Lilly and Company? 16 A. You mean, other than detail people? 17 Q. Yes. 18 A. No. 19 Q. When did you last meet with any detail people 20 from Lilly? 21 A. Oh, they come by my office approximately once a 22 month. I'd say a month ago. 23 Q. All right. In any of those meetings have you 24 ever discussed the Wesbecker case in any particulars? 25 MS. PREWITT: I want to enter an objection that 23 1 will prevent any discussion of attorney-client confidences 2 between Doctor Coleman and Mr. Bubalo or anybody else from our 3 firm, but if you're referring to conversations between Eli 4 Lilly employees and Doctor Coleman, I'll allow him to answer. 5 MR. STOPHER: I also object, Judge, on the 6 ground that what was discussed in these meetings about the 7 case is not the point of being here; the point of being here 8 is whether or not there was an indemnity agreement. 9 JUDGE POTTER: That's right. He's leading into 10 it, and his question is -- I really think he was trying to 11 eliminate detail people. 12 Reask your question, Mr. Smith. It's a lead-in. 13 MR. SMITH: Yes. Were any -- in any of the 14 meetings with the detail people that you've described -- and I 15 understand they come around once a month to describe their 16 products and answer any questions that you and they might 17 have. My question is, in any of those meetings with the Lilly 18 detail people, was there ever the subject of Joseph Wesbecker, 19 this lawsuit ever brought up? 20 A. Well, I think, as you recall from reading my 21 depositions, I had said that there was one detail person that 22 knew I was involved in the case and would ask me how it was 23 going and, you know, mostly in a superficial manner. I would 24 not really discuss any particulars of the case. 25 Q. Did those detail people give you any substantive 24 1 information concerning Prozac and whether or not it caused 2 violent-aggressive behavior? 3 A. Well, I think, as I testified earlier, I had 4 gotten a couple of articles that they had given me. I think 5 the ones that I could find I did supply that you-all have 6 copies of. 7 Q. Any other meetings with any employees of Eli 8 Lilly and Company? 9 A. No, sir. 10 Q. Or any attorneys with Eli Lilly and Company? 11 A. No, sir. 12 Q. Telephone conversations? Have you had any 13 telephone conversations with any lawyers from Eli Lilly and 14 Company? 15 A. No, sir. 16 Q. Have you had any telephone conversations with 17 any employees of Eli Lilly and Company? 18 A. No, sir. 19 Q. Has your attorney had any discussions with any 20 of the Eli Lilly lawyers that he's told you about? 21 MS. PREWITT: I'm going to object to that. I 22 think that's covered by the attorney-client privilege, and I 23 instruct the Witness not to answer. 24 MR. SMITH: We have a judge here. 25 MS. PREWITT: That's my objection, Your Honor. 25 1 JUDGE POTTER: Okay. I'm going to sustain the 2 objection. 3 MR. SMITH: Your Honor, my purpose in this is to 4 know what agreements there might be. 5 Well, let me ask you this: Has your lawyer 6 advised you of any conversations he's had or she's had with 7 any of the Lilly lawyers or any Lilly employees? 8 MS. PREWITT: Same objection, Your Honor. 9 JUDGE POTTER: There's a way to get to this. I 10 mean... 11 Q. Do you know -- 12 JUDGE POTTER: I'm going to overrule the 13 objection to him stating whether or not you have or Mr. Bubalo 14 have told him whether or not you've talked to Eli Lilly. Go 15 ahead. 16 A. Okay. What was the question again? 17 Q. The question was, have your lawyers advised you 18 whether or not they talked with any Lilly lawyers or Lilly 19 employees? 20 A. About anything? 21 Q. Right now, yes. 22 A. Well, I know at times my attorney has said that 23 he may have had conversations with Mr. Stopher. 24 Q. Concerning what? 25 A. Concerning the case. 26 1 Q. Concerning what aspects of the case? 2 A. Well, probably were multiple times that he might 3 have -- I know particularly recently, asking how long I would 4 be in the case. 5 Q. How long you would be in the case? 6 A. Well, like, how long would I be here today, 7 would I be here more than today. I know after our meeting the 8 other day he had talked with Mr. Stopher about the content of 9 that meeting. 10 Q. Your lawyer -- did he do this in your presence, 11 call Mr. Stopher and advise you of our meeting? 12 A. Advise me? 13 Q. Advise Mr. Stopher of our meeting and the 14 content of the meeting? 15 A. He discussed some of the meeting with Mr. 16 Stopher in my presence. 17 Q. What did he tell Mr. Stopher in your presence? 18 A. As I recall, in substance -- 19 Q. Exact words that you can remember. 20 A. I can't recall his exact words. 21 Q. Then tell me what you can recall about that 22 conversation. 23 A. Well, what I recall in some substance was 24 talking about the questions that you had asked me, had 25 informed Mr. Stopher of my opinion about the cause and 27 1 informed Mr. Stopher that I felt like this was an act of 2 premeditated murder. And that was pretty much a brief 3 conversation, I would say about five minutes. And also part 4 of that conversation was to ask how long Mr. Stopher might 5 expect to need me today, so I could determine whether I had to 6 cancel any appointments for tomorrow or not. 7 Q. You heard Mr. Bubalo advise Mr. Stopher that you 8 had told me that it was your opinion that Mr. Wesbecker's 9 conduct was the act of a premeditated murder on September 10 14th, 1989; is that right? 11 A. Correct. 12 Q. What else did he say in connection with that? 13 JUDGE POTTER: We're kind of wandering around. 14 We were here on the indemnity topic. I'm not saying you can't 15 ask that when you get to a jury; I just... 16 Q. The conversation that I'm interested in, Doctor 17 Coleman, is has anyone, either your lawyer or anybody from Eli 18 Lilly or any of the people there in any of these two meetings 19 that you've had with Lilly lawyers advised you that they would 20 take care of you with respect to the claims made by the 21 Plaintiffs against you that are still pending on appeal? 22 MS. PREWITT: Same objection as to the 23 attorney-client conversations. 24 JUDGE POTTER: It's overruled. 25 A. No. 28 1 Q. The answer was no? 2 A. No. 3 Q. Has your lawyer advised you of any gentleman's 4 agreement or any type of arrangement that has been made -- 5 MS. PREWITT: Same objection. Sorry. 6 Q. -- with Eli Lilly and Company by and through 7 their lawyers? 8 MS. PREWITT: Same objection. 9 JUDGE POTTER: Overruled. 10 A. You're specifically talking about 11 indemnification? 12 Q. Any kind of arrangement. 13 A. Well, Mr. Stopher had asked me to review his 14 materials, and there was never any kind of formal arrangement, 15 but my hope is that I will be reimbursed for my time. But 16 that's not been formally agreed to. 17 Q. You've done that as a gratuity up to this point? 18 A. I've not been paid anything. It's just my hope 19 that I will be reimbursed for my time. 20 Q. Have you sent Mr. Stopher a bill? 21 A. No, sir. 22 Q. How much time did you spend reviewing that 23 material? 24 A. I haven't added it up. I would say probably 20 25 or 30 hours. 29 1 Q. Did you ask Mr. Stopher why he wanted you to do 2 that? 3 A. Mr. Stopher informed me why he wanted me to do 4 that. 5 Q. That was going to be my next question. What did 6 he tell you as to why he wanted you to do that? 7 A. I think it was my last deposition when I was 8 asked the question was it my opinion that Prozac had caused 9 this incident. I said I didn't think I could give an informed 10 opinion because I didn't have all the information. Mr. 11 Stopher wanted to supply me with the information so I could 12 make an informed opinion. 13 Q. So he asked you to look further into this issue 14 to render an opinion into that connection? 15 MR. STOPHER: Judge, we are so far away from 16 indemnity and everything else. 17 MR. SMITH: This goes to Daubert. This goes to 18 whether or not he's designated. 19 JUDGE POTTER: Let's get the indemnity out of 20 the way. 21 MR. SMITH: Okay. Did Mr. Stopher advise you 22 that this would be of your benefit to review this material and 23 render an opinion? 24 A. No, sir. 25 Q. Did he advise you that this would in any way 30 1 affect whether or not Lilly would consider indemnifying you in 2 any claims that might be made as a result of this lawsuit? 3 A. No, sir. 4 Q. Did he give you any indication or any promise or 5 any hope that cooperation with Lilly would result in some 6 future agreement with Lilly concerning indemnification? 7 A. No, sir. 8 Q. Did you talk with Mr. Stopher last night? 9 A. Did I talk with Mr. Stopher last night; no, sir. 10 Q. Did you talk with anybody representing Lilly 11 last night? 12 A. No, sir. 13 Q. Did you talk with Mr. Stopher yesterday? 14 A. No, sir. 15 Q. Did you talk to anybody representing Lilly 16 yesterday? 17 A. No, sir. 18 Q. Did you talk to Mr. Bubalo yesterday? 19 MS. PREWITT: Objection, Your Honor. 20 Attorney-client privilege. 21 MR. STOPHER: I also object. This thing is way 22 beyond anything that it was called for. 23 JUDGE POTTER: Mr. Smith, we were just trying to 24 nail down the indemnity. You said yesterday you thought 25 because of some letter or something he said in your interview 31 1 that he would answer these questions differently. 2 Q. So Lilly has offered to indemnify you, have they 3 not? 4 A. No, sir. 5 Q. It's your testimony they have not offered to 6 indemnify you in any way? 7 A. No, sir. To my knowledge, they have not offered 8 to indemnify me. 9 Q. Have you discussed this with your lawyer as to 10 whether Lilly has offered to indemnify you? 11 MS. PREWITT: Objection, Your Honor. 12 JUDGE POTTER: Overruled. 13 A. My attorney has not informed me of that. 14 Q. Have you asked your lawyer whether there's any 15 offer to indemnify you? 16 MR. STOPHER: I think it's clearly inappropriate 17 as to his discussions with his lawyer what may or may not 18 happen. It's now been asked about 100 times, and there is no 19 such agreement and there never has been. 20 MS. PREWITT: Join in the objection, Your Honor. 21 JUDGE POTTER: I'm going to overrule the 22 objection to the extent whether -- the question goes to 23 whether he's asked his lawyer to get in touch with Lilly about 24 one. 25 MS. PREWITT: I'm not sure that was the 32 1 question, Your Honor. 2 JUDGE POTTER: Go ahead, Mr. Smith. Reask your 3 question. 4 MR. SMITH: Have you asked your lawyer about any 5 conversations he's had with Lilly lawyers or Lilly employees 6 concerning indemnification? 7 A. No, sir. 8 Q. When was it that you reviewed this material that 9 was provided to you by Mr. Stopher? 10 A. Over the last month. 11 Q. Did you receive the Dear Doctor letter that 12 Lilly sent out to all -- 13 A. In regards to? 14 Q. Indemnification. If you get sued for 15 prescribing Prozac we'll defend you if you prescribed it 16 appropriately? 17 A. As I recall, there was a general mailing letter, 18 something to that effect that I did receive. 19 Q. All right. What did you do with that letter, 20 Doctor Coleman? 21 A. Threw it away. 22 Q. Did you discuss it with your lawyer at any time? 23 24 MS. PREWITT: Objection, Your Honor. Attorney- 25 client privilege. 33 1 JUDGE POTTER: Sustained. 2 Q. Is it your testimony here, Doctor Coleman, that 3 you have no knowledge of any agreement or potential agreement 4 concerning Lilly indemnifying you in any way as per any 5 potential claims arising out of claims either by Mr. Wesbecker 6 or the plaintiffs in this case? 7 A. Correct. And let me clarify that. I mean, I 8 had one -- and I'm not waiving attorney-client privilege, but 9 I had talked with my attorney that I did not want Eli Lilly to 10 indemnify me even if they had ever made an offer -- which to 11 my knowledge they never made an offer -- because I did not 12 feel like that I wanted to, as I would say, be in bed with Eli 13 Lilly. I would not have accepted an indemnification agreement 14 because I didn't feel like I did anything wrong, but none was 15 ever made, to my knowledge. 16 Q. Okay. Regardless, you spent 20 or 30 hours 17 within the last month reviewing material supplied to you by 18 Mr. Stopher? 19 A. Approximately that, if not more. 20 Q. Did you write an opinion to Mr. Stopher 21 concerning your review of this material? 22 A. No, sir. 23 Q. Did you discuss your opinion with Mr. Stopher 24 concerning your review of this material? 25 A. No, sir. I don't think Mr. Stopher has any idea 34 1 what I'm going to say, other than what my attorney had told 2 him the other day. 3 Q. Did you discuss your opinion with your attorney 4 Mr. Bubalo? 5 MS. PREWITT: Objection, Your Honor. 6 Attorney-client privilege. 7 JUDGE POTTER: Overruled. 8 A. None other than what we talked about two days 9 ago. 10 Q. And you first formed this opinion that you 11 didn't feel Prozac was the cause of Mr. Wesbecker's violent 12 attack on September 14th, 1989, until after you had reviewed 13 this material supplied to you by Mr. Stopher; is that right? 14 A. Well, I think as you recall from my testimony at 15 the coroner's inquest that was my sense at that time, that 16 Prozac had nothing to do with it; after reviewing the 17 materials that Mr. Stopher has given me, that's confirmed my 18 opinion. 19 Q. But as I understand it, you didn't have any 20 basis for any opinion, and I think you said, "I'm not sure 21 because I don't know at this time. I don't think it had 22 anything to do with it, but I can't give a professional 23 opinion;" is that correct? 24 A. That's correct. 25 Q. But after you've reviewed this material that was 35 1 supplied to you by Mr. Stopher, you now feel that you can give 2 a professional opinion? 3 A. That's correct. 4 Q. And you told me about that day before yesterday; 5 right? 6 A. Yes, sir. 7 Q. And you did not provide me with the information 8 that Mr. Stopher had provided you? 9 A. No. You didn't ask for it, either. 10 Q. I didn't ask you that and you didn't provide it 11 to me, did you? 12 A. No, sir. 13 Q. You didn't tell me at that time that Mr. Stopher 14 had provided you any material, did you? 15 A. No, sir; and you didn't ask. As you recall, we 16 made the same offer to you, did you have any materials you 17 would like for me to review. 18 Q. Did you -- what material did you review that was 19 provided to you by Mr. Stopher? 20 A. Mr. Stopher provided me with chronology that 21 they had come up with based on excerpts from various people's 22 depositions. One chronology started from when I first started 23 seeing Mr. Wesbecker in 1987, the second chronology dating 24 back to when Mr. Wesbecker was first born. He had a list of 25 weapons purchases and dates and materials. They had a 36 1 chronology of threats made by Mr. Wesbecker. I was supplied 2 with a videotape that they had prepared that they were going 3 to possibly present at trial. Mr. Stopher had a schematic of 4 the Standard Gravure plant where he went through the course 5 that Mr. Wesbecker took and who he shot and what his opinion 6 was why those shootings took place in that order. 7 Q. You mean, what Mr. Stopher's opinion was or -- 8 A. Correct. What Mr. Stopher's opinion was. 9 Q. All right. 10 A. I was given I think four articles concerning 11 Prozac in relation to suicidality. 12 Q. What four articles were those, sir? 13 A. I have them with me. Three of them were done by 14 Eli Lilly. 15 Q. All right. 16 A. And then I did some -- I reviewed my own notes, 17 my own chart, my previous depositions. But as far as the 18 materials Mr. Stopher -- now, since then I have received but 19 not reviewed transcripts of proceedings in the trial, but I 20 did not review those. 21 Q. Anything else? 22 A. To the best of my knowledge, that's all that 23 he's supplied me. 24 Q. All right. And it was after you reviewed that 25 that you came to your final opinion in this matter? 37 1 A. Yes, sir. 2 Q. And when did you complete reviewing that 3 material? 4 A. Probably by this weekend. 5 Q. All right. 6 JUDGE POTTER: Anything else, Mr. Smith? 7 MR. SMITH: Can I confer with Ms. Zettler for a 8 second? 9 JUDGE POTTER: Yes. Sure. 10 MS. ZETTLER: Can we go outside for a second, 11 Judge? 12 (RECESS) 13 JUDGE POTTER: Anything else, Mr. Smith? 14 MR. SMITH: Yes. Just a couple other questions, 15 Your Honor. 16 JUDGE POTTER: Doctor, I remind you, you're 17 still under oath. 18 Q. How much per hour do you intend to charge for 19 your review of this material? 20 A. Two hundred. 21 Q. So you've spent 20 hours; that would be $4,000? 22 A. If 20 hours is -- 23 Q. You said 20 to 30 hours; $4,000 or $5,000, I 24 assume? 25 A. If that's a fair estimate. I've written down 38 1 every day how much time I've spent but I've not totaled that. 2 Q. Did you bring that with you? 3 A. No, sir; I did not. 4 Q. But you maintain that at some location? 5 A. Yes, sir. 6 Q. Do you have any particular experience in 7 violent-aggressive behavior, the study of why people become 8 violent or aggressive, other than your general psychiatric 9 training? 10 A. I've not done any specific individual research 11 on that; no, sir. 12 Q. Attended any seminars or any presentations? 13 A. Specific to violent-aggressive behavior? 14 Q. Yes. 15 A. No, sir. 16 Q. And its connection with psychopharmacological 17 drugs? 18 A. No, sir. 19 Q. Have you asked for any more information on 20 Prozac, any more scientific information on Prozac? 21 A. From? 22 Q. From Lilly. 23 A. I did an independent database search myself. 24 Q. MedLine search? 25 A. Yes, sir. 39 1 Q. And did you do that from the medical school 2 library or do you have MedLine at your office? 3 A. I can access it from home. 4 Q. And how much time did -- did you do that in 5 connection with looking into this issue? 6 A. Yes, sir. 7 Q. And when did you do that, sir? 8 A. I don't recall. It was after I had met with 9 Mr. Stopher. Once I realized that three of the articles he 10 had given me were either sponsored or done by people from Eli 11 Lilly, I did a database search myself. 12 Q. And did you get other articles? Is that where 13 you got the one other article? 14 A. No. That was one article that Mr. Stopher had 15 given me that was not Eli Lilly. Basically, I just read the 16 abstracts of the articles that I obtained. 17 Q. All right. Have you looked at any other medical 18 records other than those medical records that you had at the 19 time you gave your deposition concerning Mr. Wesbecker? 20 MS. PREWITT: Which deposition are you referring 21 to? 22 Q. Any of the depositions. 23 A. Nothing other than that might have been shown me 24 during the course of a deposition. 25 Q. Did Mr. Stopher provide you medical records 40 1 concerning Mr. Wesbecker? 2 A. Yes, sir; he did. One of the things he did 3 supply me was a medical chronology of Mr. Wesbecker. 4 Q. But it was arranged as they had prepared it; is 5 that right? 6 A. Yes, sir. In chronological fashion. 7 Q. Did that have more medical chronological 8 information than you had when you were treating Mr. Wesbecker? 9 A. Yes, sir. 10 Q. Much more detail? 11 A. Yes, sir. 12 Q. Have you talked with any of Lilly's other 13 experts in this case? 14 A. I don't even know who their other experts are, 15 so, no, sir. 16 Q. Doctor Greist, Doctor Schwab, Doctor Granacher 17 or Doctor Leigh Thompson? 18 A. About this case? 19 Q. Or about issues of Prozac in any form. 20 A. No, sir. 21 Q. Do you know any of those gentlemen? 22 A. Yes, sir. I know Doctor Schwab. 23 Q. Have you talked to Doctor Schwab about this 24 case? 25 A. No, sir. 41 1 Q. Doctor Schwab I believe is here, isn't he? 2 A. He's here locally; yes, sir. 3 Q. You know him just by virtue of being 4 psychiatrists in the same city? 5 A. He was my supervisor also when I was in 6 training. 7 Q. We would like to get copies of those articles 8 that Mr. Stopher provided you so we'll know exactly what 9 you've seen. 10 MS. ZETTLER: Which videotape? 11 Q. Which videotape did you see, or did you see two 12 videotapes? 13 A. I only saw one. 14 Q. Which one was it? One has to do with Mr. 15 Wesbecker's life and another is an interesting story about 16 Prozac. 17 A. This one was on Mr. Wesbecker's life. 18 Q. All right. 19 JUDGE POTTER: Does anybody else have any 20 questions they want to ask? 21 MR. STOPHER: No, Judge. 22 JUDGE POTTER: Thank you very much, Doctor. If 23 you would just wait outside. You don't have to wait outside; 24 you can go out to the foyer and have a cigarette and walk 25 around. 42 1 DOCTOR COLEMAN: I won't have a cigarette but... 2 (DOCTOR COLEMAN AND MS. PREWITT LEAVE CHAMBERS) 3 JUDGE POTTER: Mr. Smith, he's going to be your 4 first witness today? 5 MR. SMITH: Yes, sir. 6 JUDGE POTTER: So it will be right around 9:00, 7 we hope. Is there anything else, Mr. Smith? 8 MR. SMITH: Absolutely. This is the most 9 patently, manifestly unfair thing I've had -- 10 JUDGE POTTER: Let's take them up one at a time. 11 The first thing is do you get to ask the question: "Isn't it 12 true that Eli Lilly has agreed to hold you harmless." On what 13 I've heard today, if you want to ask him about his Dear Doctor 14 letter I think you maybe can, but other than that, why do you 15 have a basis to ask him about anything else? 16 MR. SMITH: His answer I guess is going to be 17 no; that's what I gleaned from that, so I probably wouldn't 18 ask him that. 19 JUDGE POTTER: Well, you wouldn't be the first 20 lawyer and even the first lawyer in this case to ask a 21 question to get the question in rather than the answer, so I'm 22 going to sustain asking him about whether Eli Lilly has agreed 23 to indemnify him in this case. 24 Now we're down to I guess revisiting whether 25 he's an expert that can't be called because he wasn't 43 1 identified or whether he can't testify on that topic because 2 he's not qualified or his science is junk or whatever. What 3 do you want to say on those? Let me get -- the background is 4 you are going to call him and ask him why he thinks Mr. 5 Wesbecker was -- went off the edge when he saw him on the 6 11th; right? 7 MR. SMITH: I'm going to ask him basically what 8 he based his statements in his medical records on concerning 9 his observations. He said in his medical records, 10 "Deterioration, question Prozac, cause." I am not going to 11 ask him why Joseph Wesbecker did what he did on September 12 14th, 1989, and whether or not that was related to Prozac. 13 JUDGE POTTER: But you are going to ask him 14 whether or not the deterioration he saw was in some way 15 related to Prozac? 16 MR. SMITH: Was it his impression at the time 17 that his condition that he observed on September 11th was 18 related to the Prozac. 19 JUDGE POTTER: And I take it at some point he 20 has testified that he believes it is; is that right? 21 MR. SMITH: Yes. Yes. 22 JUDGE POTTER: I mean, that's not something that 23 happened at an office, that's something that we'll hear, 24 "Doctor, do you remember giving your deposition," if he 25 changes his testimony? 44 1 MR. SMITH: Right. 2 JUDGE POTTER: Okay. Go ahead. 3 MR. SMITH: Now, we have sent out Rule 26 4 interrogatories to Lilly to designate the experts and to 5 provide expert opinions that they might have and to provide 6 the substance of their opinion even if they haven't written a 7 report. The Court has entered orders requiring the parties to 8 provide to the other parties any experts that they have -- the 9 identity of any experts, the substance of their opinions and 10 things of that nature. Lilly has not -- Lilly has obviously 11 hired this man, provided this man material and asked him 12 specifically to render an opinion on the question of whether 13 or not Wesbecker's conduct on September 14th, 1989, was 14 related to the use of Prozac. 15 By all rules of procedure, by all rules of the 16 Court, by all rules of fairness and common sense, a party 17 cannot hire an expert except an independent expert during the 18 trial, provide him material that he's never seen, both 19 scientific data as well as factual data, and ask him to render 20 an opinion on that without disclosing it to us, without 21 advising us that he's going to render that opinion and the 22 basis of that opinion. Had I not asked him that this morning, 23 I would have never known the material that he had reviewed. I 24 was never advised by the Defendants that we have provided 25 Doctor Coleman this information. 45 1 JUDGE POTTER: Okay. Mr. Stopher, let me ask 2 you this: We'll all agree, will we not, that if this guy 3 lived in Chicago and had never seen Mr. Wesbecker he wouldn't 4 be allowed to testify today? 5 MR. STOPHER: Oh, I would agree to that, Judge. 6 But if I may respond to some of the things that he said, 7 Number One, on July the 26th when we filed the one and only 8 expert witness disclosure, we identified treating physicians. 9 We said, "Although they may not technically be considered 10 Lilly expert witnesses and therefore not subject to the 11 Court's order, Lilly reserves the right to call any or all of 12 Joseph T. Wesbecker's treating physicians as witnesses and, 13 additionally, it may inquire of them as to any opinions that 14 they may have concerning Joseph T. Wesbecker's mental 15 conditions and actions." 16 Now, we did list, therefore, Doctor Coleman as a 17 technical expert witness. I'm not sure which category he fits 18 in because he's a party in the other case, he's not been 19 dismissed in this case. But to be absolutely certain that Mr. 20 Smith was on notice that we did intend to ask Mr. -- Doctor 21 Coleman opinions about Joseph T. Wesbecker's mental conditions 22 and his actions, we filed this pleading as part of the expert 23 witness disclosure. 24 The second thing is, Judge, that Mr. Smith has 25 met with Doctor Coleman along with Mr. Foley. They could have 46 1 scheduled that meeting at any time that they wanted to. They 2 met with him day before yesterday, and Doctor Coleman has said 3 very candidly that they would have taken any material that 4 they wanted to supply to him and review it. He has also 5 testified before you that he did not tell me what his opinions 6 are and that I will hear them for the first time on the stand 7 from him. 8 The only information I had was that Mr. Smith 9 had met with him; that he was going to testify about the 10 things that he had already testified about in three 11 depositions; that he was going to be here on Wednesday all 12 day; and that his opinions concerning Mr. Wesbecker would be 13 available for everybody at that time. He is independent, he 14 is not under my control; I cannot make this man say or do 15 anything, and it is grossly unfair to the Defendant to have 16 Mr. Smith from his opening statement until right now contend 17 that Doctor Coleman is going to say that Mr. Wesbecker did 18 this because he took Prozac; that the record in Doctor 19 Coleman's records clearly indicates that and that there's a 20 question mark there, and that this Witness should be precluded 21 from giving his opinion as to whether or not there's a causal 22 connection. 23 He is a board-certified psychiatrist; he has 24 reviewed materials that are in Mr. Smith's repertoire of 25 things that he's seen; it is critical to the case; and this is 47 1 not any sort of surprise to anybody. He's been listed and 2 identified as a matter of precaution. I can't do it any 3 better than that. 4 JUDGE POTTER: Well, he is maybe somewhat of a 5 surprise. But let me just tell you where I am, Mr. Smith. It 6 strikes me that you are calling this witness as a witness to 7 say either on the stand or through a prior deposition or 8 through his records that Prozac caused the deterioration that 9 he observed on September 11th. And without more, to my way of 10 thinking, that is a very strong testimony that Mr. Wesbecker 11 did what he did on the 14th because of Prozac. I mean, just a 12 layman thinking hmm, hmm, hmm, with their own common sense 13 would try and bridge that gap and bridge it in your favor. 14 And so I guess I have a problem with not letting them say, 15 "But if you knew this and this and this and this and this and 16 this, what would your opinion be." 17 MR. SMITH: The problem is, is that -- well, 18 Number One, I was never advised by them that they were hiring 19 him as an expert on this issue. You see, this is what we have 20 lawsuits about. This is why we hire experts is because 21 witnesses can be witnesses and witnesses can be expert 22 witnesses. And when you go from one spot to another spot, you 23 better comply with the rules of civil procedure, which 24 requires specific things which this Court ordered in this 25 case. And by virtue of me simply calling him as a witness 48 1 doesn't mean I open him up to being an expert witness on any 2 other issue, especially causation. I'm not going to ask 3 him -- 4 JUDGE POTTER: Well, you already have, Mr. 5 Smith, when you put in his record that said -- 6 MR. SMITH: No. No. 7 JUDGE POTTER: -- Prozac cause, question mark. 8 MR. SMITH: His record talks about what his 9 mental state was on September 11th, 1989; it does not speak to 10 why he did what he did on September 14th, 1989. That requires 11 expert testimony. And to do that, to say he can bridge that 12 gap simply by virtue of what he said on September 11th, 1989, 13 doesn't make sense, especially when they have taken him after 14 we have taken three depositions of him in this case and 15 provided him additional information, which is work-product 16 information that they designed; when this man says I intend to 17 bill him for the 20 or 30 hours; when he goes back and does 18 additional research, does a MedLine search to inquire into 19 these matters. It's manifestly unfair that he can get up and 20 testify about this, which is a totally -- Judge, it is -- 21 there is no relationship. 22 It is evidentiary what Doctor Coleman put in his 23 record on September 11th, 1989, but their entire defense in 24 this case is not what he put in his records on September 11th, 25 1989, is inaccurate, but that that type of action doesn't 49 1 cause somebody to commit a murder of this nature. And that 2 requires somebody who is an expert to say, "I can look at 3 this, I can look at the factual circumstances of his entire 4 life -- which they have done -- and I can draw on this 5 conclusion. Plus, I have experience as one who studies 6 violent-aggressive behavior. I have experience as one who is 7 knowledgeable concerning serotonin, who is knowledgeable 8 concerning the effects of Prozac and what its actions are." 9 It is absolutely two separate questions. What 10 his observations were on September 11th, 1989, is totally 11 different from crossing that bridge to what caused him to do 12 what he did on September 14th, 1989. If -- I mean, if he's 13 qualified as an expert to render an opinion on causation, then 14 he has to be designated. We have to know what he's basing his 15 opinion on. We have to know what he's done. I mean, 16 otherwise -- I mean, that's the entire purpose of the rules of 17 procedure and this Court's order, is to give us some notice of 18 what kind of evidence we're going to have. We had the notice 19 of what his opinions were on September 11th, 1989. But 20 here -- 21 JUDGE POTTER: Well, if I understand it 22 correctly, you asked him in his deposition did he have an 23 opinion about whether Prozac caused it on the 14th. 24 MR. SMITH: And he said he didn't think it was, 25 but he didn't know. He doesn't have this information. He 50 1 admits freely, "I didn't have information available to make a 2 decision on that." Somebody, if they give him more 3 information and they're going to make him a causation on the 4 ultimate issue, we've got to know about it. We have to know 5 about it. 6 I'm not prepared to cross-examine him on all of 7 this material that he's been supplied. I haven't even seen 8 it. I haven't had an opportunity to review the literature 9 he's had; I haven't had an opportunity to know what research 10 he's looked at. There may have been research he looked at 11 that supports our position, but I haven't had an opportunity 12 to question him about that at all. 13 JUDGE POTTER: Mr. Stopher, is there anything 14 you want to say before I rule on that? 15 MR. STOPHER: No, Your Honor. I think you know 16 all the facts. 17 MR. SMITH: I'll remind the Court that they -- 18 and I hate to keep after this -- they've designated three 19 separate causation experts. 20 JUDGE POTTER: We all agree that if the guy came 21 from Chicago he wouldn't be here. The problem is, as I see 22 it, is he's still -- he was a party in this lawsuit, still a 23 party in part of this lawsuit, and was the treating physician 24 at the time this happened, and that you're going to call him 25 to express an opinion on something that, at least to me, is 51 1 very indicative of a jury believing he has an opinion that 2 Prozac caused him -- caused this man to do it on the 14th as 3 well as the 11th. Okay? And what they have done, as I see 4 it, is taken what is potentially an adverse witness and tried 5 to woodshed him. 6 MR. SMITH: And hasn't told us about it. Hasn't 7 given us any information about that. 8 JUDGE POTTER: That's very true. 9 MR. SMITH: And made this man expect to be paid 10 for 20 or 30 hours of work that he's done. There is no 11 distinction in this man and any other expert they have -- 12 JUDGE POTTER: No. No. 13 MR. SMITH: I'm sorry. It's a surprise. 14 JUDGE POTTER: What do you say about this, Mr. 15 Stopher, that if he had gone out -- it would be one set of 16 circumstances if he had gone out and done this research on his 17 own and rummaged around, or even Ms. Prewitt or Mr. Bubalo had 18 said, "Doctor Coleman, they're going to make you look foolish; 19 you'd better get out and come up with an opinion," but didn't 20 you cross some kind of line when you sent him all this stuff 21 and met with him and showed him videos? Weren't you under 22 some obligation maybe to say, "Mr. Smith, you ought to know 23 that we've been dealing with Doctor Coleman and this is what 24 he's been shown and we think he's going to express this 25 opinion"? 52 1 MR. STOPHER: Judge, first of all, I did 2 identify him as an expert. 3 MS. ZETTLER: That's different. 4 MR. STOPHER: Can I not -- 5 JUDGE POTTER: Yes, Ms. Zettler, let him finish. 6 MR. STOPHER: Which it's been represented to you 7 on several occasions that we didn't do that, and we did. The 8 second thing is, Your Honor, that at the deposition Doctor 9 Coleman said that he had opinions about causation that he had 10 expressed at the coroner's inquest, and Ms. Zettler 11 cross-examined him at great length about that, and then he 12 said that in order to render a definitive opinion that he 13 would need factual information. In response to that request, 14 on the record in this case I supplied him some factual 15 information. 16 Now, the other side met with him. Mr. Smith and 17 Mr. Foley went and met with him, and they could have scheduled 18 that meeting and did schedule it for their convenience. As a 19 matter of fact, Your Honor, at that time Doctor Coleman says, 20 "I'll review anything that you want me to review." 21 Now, the final thing that I want to point out to 22 the Court is I never asked Doctor Coleman to do any research, 23 and I'm sure that he will testify to that; if he did a MedLine 24 search, he did that as an adverse party or a potentially 25 adverse party on his own. I have not agreed to indemnify 53 1 Doctor Coleman. If he is representing to this Court that I am 2 bound to pay him, I don't think that's true. 3 JUDGE POTTER: I don't know whether you are or 4 not, but he did testify that he's hopeful that he'll get paid. 5 MR. STOPHER: The final thing that I want to 6 remind the Court of, this is a treating physician. And in 7 every case that I'm aware of, Your Honor, a doctor is entitled 8 who is the treating physician to not just testify about his 9 treatment of the patient that is under consideration; that 10 doctor is also permitted to give opinions about the future and 11 about the prognosis, and in this case this is no different. 12 It would be very, very misleading to this jury to allow him to 13 express his opinions on the 11th and not allow him to express 14 his opinions on the 14th. It would just be devastating. 15 MR. FOLEY: Judge, I want to say one thing here. 16 At no time were we ever offered any material to review. I 17 arranged the meeting and Mr. Bubalo told me -- we tried to 18 even reschedule the meeting. I was told to be there at 5:30 19 and we had no more than an hour. He was not made available to 20 us. 21 JUDGE POTTER: Maybe I can't get past the 22 inference I would be tempted to make if I were a juror or the 23 inference that I feel would be argued if I were a juror, which 24 is that if Prozac caused him on the 11th, Prozac caused him on 25 the 14th. And so I think it's unfair not to let them take him 54 1 the second step. 2 Mr. Smith, if at any time you want to say, 3 "Doctor Coleman, have I ever seen that? 4 "No. 5 "Can you produce it? 6 "Judge, can we take a recess to look at it," you 7 know, you'll be free to do that. We'll take as long a recess 8 as you want to get it. 9 You know, on a simplistic basis, I mean, this is 10 no different -- it is different but it's not a lot different 11 from mailing copies of the accident reports to various 12 witnesses you hope to call, hoping they'll read the accident 13 report and that will kind of buck them up a little bit, 14 assuming you've got a favorable accident report. 15 MR. SMITH: This is just -- I mean, this is a 16 complex -- 17 JUDGE POTTER: It is. 18 MR. SMITH: We have spent hundreds and thousands 19 of dollars preparing this case for trial. We have gone from 20 Seattle to Houston to Maine to Boston, everywhere in this 21 country to develop the facts and the expertise in this area. 22 They have designated and are bringing in three different 23 expert witnesses. They have the entire, entire resources of 24 Eli Lilly and Company to supply them information. We had a 25 right to rely on what they told us about who their experts 55 1 were. We had a right to rely on it. If I hadn't asked to see 2 Doctor Coleman, I wouldn't know it today. They never told me 3 any of this. 4 They have, in effect, circumvented the rules of 5 procedure; they've circumvented the rules of this Court in 6 supplying him this information, and now he's their expert 7 as -- I mean, it is just so unfair. I mean, I have probably 8 10,000 questions I could direct to this guy about what his 9 qualifications are to render this, how much he did, what he 10 looked at, what he didn't look at. I mean, we've been 11 spending days and weeks, from nine A.M. to five P.M., deposing 12 their experts and deposing their scientists on this. 13 JUDGE POTTER: It is not a ruling I am pleased 14 with, Mr. Smith, but it's one that I'm not going to change. 15 I will tell you this: If you want to -- I mean, quite 16 frankly, if you want to take a day's recess in the trial, go 17 take his deposition today and then put him on tomorrow, I'll 18 order that, because it's not a ruling I'm happy with but 19 it's -- there's no question but what the better practice would 20 have been for them to give you some notice of what they were 21 doing. 22 MR. SMITH: Isn't that the requirement? It's 23 not a question of better practice; isn't that a requirement of 24 the rules, Your Honor, to supply another party with facts upon 25 which their expert is going to testify, to require them to 56 1 identify their expert? 2 JUDGE POTTER: Well, Mr. Smith, in my opinion, 3 you are calling him somewhat as an expert witness because 4 he's -- 5 MR. SMITH: Let me ask you this: What if I 6 called him and simply said, "Did you treat Joseph Wesbecker 7 and are those your medical records in connection with that 8 care and treatment?" 9 JUDGE POTTER: When you put in the medical 10 record that said Prozac the cause, you put his views in issue 11 on that. If you want to meet with Ms. Zettler -- 12 MS. ZETTLER: Yes. 13 MR. FOLEY: We have a right to know before he 14 made that move and put those records in what that was going to 15 create. 16 JUDGE POTTER: Folks, I may be right; I may be 17 wrong, I know. You know, obviously you're unhappy and I'm not 18 particularly excited about the way this came up. But I have 19 to rule; I've ruled; I'm not going to change it. And, you 20 know, you'll have to decide yourself if you would like to take 21 a recess for a half day or a day and take his deposition or, 22 you know, put on -- who is it, Heiligenstein, and quit early 23 today and call him tomorrow. You-all are free to do that; I 24 will do that. You want to take some time and talk about how 25 you want to proceed from here? 57 1 MS. ZETTLER: Yes. 2 MR. SMITH: I need to take some time and compose 3 myself. 4 JUDGE POTTER: We'll take a half-hour recess. 5 MS. ZETTLER: Can I ask one question, Judge? 6 Should we just assume now that we need to go out and take the 7 deposition of every single treating physician of Joseph 8 Wesbecker's in the off chance that they may call them and 9 spring this on this? 10 JUDGE POTTER: Mr. Stopher, have you-all 11 supplied any other information to any other treating 12 physician? 13 MR. STOPHER: No, sir, Your Honor. 14 MS. ZETTLER: I believe the rule here in 15 Kentucky is the same as in Illinois, and that is that you can 16 ask a treating physician an opinion within the context of his 17 treatment of that patient until you designate them to give 18 further opinions outside his treatment. Am I correct in that 19 understanding? 20 JUDGE POTTER: To me, this is part of his 21 treatment. I mean, as I said, I've ruled. You-all -- we'll 22 take a half-an-hour recess. 23 (RECESS) 24 JUDGE POTTER: Mr. Smith, are there any motions 25 or anything else you want to say before we go back out? 58 1 MR. SMITH: We would again request the Court to 2 reconsider its previous ruling concerning allowing Doctor 3 Coleman to testify with respect to his opinion on what caused 4 Joseph Wesbecker to do what he did on September 14th, 1989, 5 for the reasons expressed earlier this morning. 6 JUDGE POTTER: I thought about it on the break, 7 and I'm not going to change my ruling. 8 MR. SMITH: The Court had advised that he would 9 allow us to take some time with this matter. We feel like 10 there's probably nothing that can really be done to cure the 11 tragic and unjust surprise that has been visited on us at this 12 time. 13 JUDGE POTTER: Okay. 14 MR. SMITH: We would, however, like at least an 15 opportunity to know what specifically Doctor Coleman has 16 reviewed, to have the opportunity to look at that briefly to 17 see what it is that he's reviewed. We would like the 18 opportunity to do that this morning and to reconvene with 19 Doctor Coleman this afternoon at one or two. 20 We would like also that all counsel be 21 admonished not to discuss this case with Doctor Coleman in any 22 way, form or fashion, either directly or indirectly, and at 23 least have the opportunity to see what this man has reviewed 24 in order to express his opinion that's going to be obviously 25 favorable -- it was provided by Lilly and is going to be 59 1 obviously favorable to Lilly. 2 JUDGE POTTER: Mr. Stopher, do you have 3 available everything that you gave to Doctor Coleman? 4 MR. STOPHER: Yes, Judge. I think all of it has 5 been given to Paul, but I'll be glad to try to reassemble it. 6 I think the best place to get it would be from him, to be 7 absolutely -- 8 JUDGE POTTER: Did he keep the video? 9 MR. STOPHER: No, sir. 10 JUDGE POTTER: Did he keep copies of the time 11 line and that kind of stuff? 12 MR. STOPHER: Correct. 13 JUDGE POTTER: Let's take a break while I go and 14 talk to Mr. Coleman. 15 (JUDGE POTTER LEAVES THE ROOM AND REENTERS, 16 ALONG WITH MS. PREWITT AND DOCTOR COLEMAN) 17 JUDGE POTTER: Doctor Coleman, do you have with 18 you absolutely everything that Mr. Stopher left with you after 19 he gave you the material that you've reviewed? 20 DOCTOR COLEMAN: No, sir. 21 JUDGE POTTER: You don't? 22 DOCTOR COLEMAN: No, sir. 23 JUDGE POTTER: What don't you have? 24 DOCTOR COLEMAN: Probably most of it. 25 JUDGE POTTER: Where is it? 60 1 DOCTOR COLEMAN: It's at my home. 2 JUDGE POTTER: Not personal, but where do you 3 live? 4 DOCTOR COLEMAN: In the east end, about 15 5 minutes away. 6 JUDGE POTTER: Okay. Doctor Coleman, this is 7 the current plan. If this material had been given to you, you 8 know, before you gave your deposition, the Plaintiffs would 9 have asked you what you had reviewed and what you saw and you 10 would have told them and they would have had an opportunity to 11 look at it before you took the stand. Because all of this 12 happened fairly quickly, they have not had an opportunity to 13 look at it, and they have asked me could they have an 14 opportunity to go over, see what you had in your possession, 15 you know, that you used in forming your opinion, and I've told 16 them I would give that opportunity. Would it be -- and I 17 think as far as your planning goes, you might -- you might as 18 well plan on canceling your appointments for today. I don't 19 know whether you already had done that or not. 20 DOCTOR COLEMAN: For today I had, yes. 21 JUDGE POTTER: I'm going to recess the trial 22 till 1:00 and give them an opportunity to go over what you 23 have done, and you can tell me if it will be a great effort 24 for you to go home and get the stuff and bring it back here; 25 if not, Mr. Stopher can try and reassemble it from his records 61 1 but, quite frankly, it will be just neater and cleaner if you 2 did it. Is that a problem for you? 3 DOCTOR COLEMAN: I don't think so. I should be 4 able to put my hands on it. Some of it I may not be sure 5 whether it was something that I had or that he had given to 6 me. 7 JUDGE POTTER: The other thing I was going to 8 ask you that will probably save a lot of time once you get on 9 the stand is if you would collect up anything else that you've 10 got that you've looked at, that you've considered, that has 11 anything to do with this, and put it in a stack called "other 12 stuff" and bring that with you, too. Okay? Because the 13 question -- after you go through what Mr. Stopher has shown 14 you, the next question is going to be is what other stuff have 15 you looked at, all right, or considered or whatever. And it 16 will just save a lot of time if Mr. Smith knows what the X-Y-Z 17 article is, all right, rather than you and him kind of 18 figuring it out on the stand. 19 It's 10:00. Could I ask you to, you think, 20 what, quarter of 11; why don't we do it till 1:30, and if you 21 could say -- where would you like -- where are you parking 22 your car? 23 MS. PREWITT: Can't he just pick it up from our 24 office? 25 JUDGE POTTER: If you could have it in Ms. 62 1 Prewitt's office by 11:00, they'll pick it up there, and if 2 you could plan to be here at 1:30 to start your testimony. 3 MS. PREWITT: Should we make some type of a 4 listing of what we've provided? 5 JUDGE POTTER: You can if you want to. 6 MS. PREWITT: I mean, it won't be a copy; it 7 will be the original. 8 JUDGE POTTER: Right. You can make a list of 9 it; you can make a copy of it and keep it for your own file; 10 you can number it, whatever you want to feel comfortable, but 11 they'll be over at your office. 12 And the only thing, Mr. Stopher, that you showed 13 him that you took back was the video; is that right? 14 MR. STOPHER: I think that's right. 15 MR. SMITH: Which video was it? 16 DOCTOR COLEMAN: I still have the video. This 17 is the video on Mr. Wesbecker's life. 18 JUDGE POTTER: Oh, okay. The other video is on 19 Prozac, I guess, or I don't know. They were described to me 20 and I've forgotten what the two of them were. 21 MR. SMITH: You have some material with you now, 22 Doctor. I see a book, I see a number of legal pads. 23 JUDGE POTTER: Can you leave that with Mr. Smith 24 now? 25 MS. PREWITT: These are his original medical 63 1 records. 2 DOCTOR COLEMAN: These were all records from 3 previous depositions; these are what was termed my 4 contemporaneous notes. They've had copies of this. 5 JUDGE POTTER: That's stuff you had when you 6 took your previous depositions? 7 DOCTOR COLEMAN: This was my record and the 8 other notes. 9 JUDGE POTTER: Leave the other stuff with them. 10 MS. PREWITT: This is original records, as well. 11 MR. SMITH: This is what? 12 MS. PREWITT: His original records. They've 13 already been produced. 14 MR. SMITH: And you've got the DSM-III-R and 15 what is in this? I just want to know what you have, Doctor, 16 is what I want. I want to know what you have. 17 DOCTOR COLEMAN: This is the typed version of my 18 chart notes that I've written, when my prescriptions and 19 things were, that I would use as a reference. These are typed 20 versions of the contemporaneous notes. This was a copy from 21 the -- I guess the autopsy on the toxicology report on Mr. 22 Wesbecker. 23 MR. SMITH: When did you get that and who 24 supplied that to you, sir? 25 DOCTOR COLEMAN: This was sent to me by the 64 1 coroner at some point, I mean, early on. But you're welcome 2 to keep all this. This is one thing Mr. Stopher -- these are 3 two things Mr. Stopher had supplied to me and there are 4 several articles. 5 MR. SMITH: We want to get that now. 6 JUDGE POTTER: He's going to leave that here 7 now. 8 MS. ZETTLER: Can we get a definition of exactly 9 what he's been provided by Mr. Stopher? 10 JUDGE POTTER: He's going to give you a stack 11 called "Other" and "What Mr. Stopher gave me" and two things 12 out of there go in the Mr. Stopher stack. 13 MS. ZETTLER: But as far as if he's actually 14 looked at deposition testimony outside of what -- frankly, Mr. 15 Stopher was talking with Doctor Coleman at the break, and we'd 16 like to know at this point exactly what he has seen. 17 JUDGE POTTER: Doctor Coleman, will you pull out 18 the two articles that Mr. Stopher gave you or everything out 19 of that stack that Mr. Stopher gave you? 20 DOCTOR COLEMAN: I know these were two articles 21 Mr. Stopher had given me and these were two of the things that 22 he had supplied. I think the other two articles are ones 23 that -- was one that I had. I don't think Mr. Stopher gave me 24 that one. 25 JUDGE POTTER: If you'll have the other two 65 1 stacks at your attorney's office by 11:00 and be back here at 2 1:30, hopefully you will make your patients tomorrow. 3 MR. SMITH: Can we get an admonition? 4 JUDGE POTTER: Doctor, just to keep things from 5 getting even more complicated, I'm going to ask that neither 6 you nor your attorney have any communications with anybody 7 involved in this case other than to say, "Here are the 8 documents I promised you," or, you know, just give them the 9 documents because we'll be... It will just keep things from 10 getting more complicated. 11 MS. PREWITT: We will certainly abide by that, 12 but we would just ask if somebody would let us know if there's 13 a delay because this is -- that's the only communication 14 there's been, "We're going to start at 10:00" because nobody 15 told us why we weren't in there at 9:00. 16 MR. STOPHER: And Mr. Smith and Mr. Foley 17 suggested that I go do that after I asked if they had done 18 that. 19 MR. FOLEY: No problem. 20 MR. SMITH: As I understand it, there's also 21 been trial testimony that's been provided to Doctor Coleman. 22 JUDGE POTTER: As I understand it, it was a time 23 line. 24 DOCTOR COLEMAN: There has been some trial 25 testimony that has been supplied that I have not reviewed. 66 1 MR. SMITH: I want to see that, too, whether he 2 looked at it or not. 3 MS. ZETTLER: Have you actually been given 4 depositions, Doctor, from witnesses, not the trial testimony 5 but actual depositions from other witnesses? 6 DOCTOR COLEMAN: No. 7 MS. ZETTLER: Okay. 8 JUDGE POTTER: All right. I will see you-all 9 at -- why don't you-all plan to meet here at 1:15. 10 Doctor, be here at 1:30. Okay. 11 MR. SMITH: Let me put something else on the 12 record. 13 (MS. PREWITT AND DOCTOR COLEMAN LEAVE CHAMBERS) 14 MR. SMITH: I want to make the record clear that 15 we're not waiving our objection and that we're doing this 16 under -- 17 JUDGE POTTER: Duress. 18 MR. SMITH: -- duress, protest, and it's all we 19 can do under the situation after we've spent this much time 20 and money on this case. Again, if they didn't have any 21 causation experts it would be different, but they've got three 22 causation experts that they've already identified. 23 JUDGE POTTER: No, Mr. Smith. If they didn't 24 have any causation experts it would be even more important. 25 Okay. Is anybody uncomfortable with my sheriff 67 1 telling the jury that it's 1:30 or do you want me to call them 2 back? We'll call them all in the courtroom and admonish them 3 before we send them out. 4 (THE FOLLOWING PROCEEDINGS OCCURRED 5 IN OPEN COURT) 6 SHERIFF CECIL: The jury is now entering. All 7 rise. All jurors are present. Court is now in session. 8 JUDGE POTTER: Please be seated. Ladies and 9 gentlemen of the jury, the reason I called you in is because I 10 wanted to explain to you that we're going to take a recess 11 till 1:30. And we'll not hear any testimony this morning, but 12 when we come back at 1:30, obviously we won't then take a 13 lunch break. All right. Just -- it's nobody's fault. It's 14 not a problem, just some things don't get scheduled in quite 15 the way you anticipate and, also, sometimes issues come up 16 that have to be dealt with that you hadn't anticipated. 17 So I'm going to give you the same admonition 18 I've given you before. Do not permit anybody to speak to or 19 communicate with you on any topic connected with this case and 20 any attempt to do so should be reported to me. Do not discuss 21 the case among yourselves or form or express opinions about 22 it. We'll stand in recess till 1:30. 23 (RECESS;BENCH DISCUSSION) 24 MR. SMITH: I guess it goes without saying that 25 Doctor Coleman is a hostile, adverse witness, as far as I'm 68 1 concerned. 2 JUDGE POTTER: I've never really -- that has 3 always been like a -- I present the witness as an expert 4 witness. I think what happens is, is Mr. Stopher, if he 5 thinks you're leading will object and I will then make a 6 ruling. Right now I don't have a reason to say that. I 7 suspect at the time if it gets to the point to where that 8 issue would ever come up I would rule in your favor, but I 9 don't know that I can make that ruling. 10 MR. SMITH: Even based on what he said this 11 morning, that he has spent 30 hours on this project with them 12 and expects to be paid by them and he's had meetings with 13 them? 14 JUDGE POTTER: Well, let's wait till Mr. 15 Stopher -- this is your witness, Mr. Stopher. 16 MR. STOPHER: Right, sir. 17 JUDGE POTTER: If he makes an objection, I 18 suspect he's not going to. If I were going to do it now I 19 would do it on the basis that he was an adverse party in this 20 thing and I think that makes him adverse, but I'm going to 21 just take it up as it comes. 22 (BENCH DISCUSSION CONCLUDED) 23 SHERIFF CECIL: The jury is now entering. All 24 jurors are present. Court is now in session. 25 JUDGE POTTER: Please be seated. I guess we 69 1 missed this morning's questions. Did anybody have any trouble 2 following my admonition about not getting information from the 3 newspaper or talking to anybody? Okay. 4 Mr. Smith, do you want to call your next 5 witness? 6 MR. SMITH: Yes, Your Honor. We'd call Doctor 7 Lee Coleman. 8 JUDGE POTTER: Sir, would you step down here and 9 raise your right hand, please. 10 11 LEE COLEMAN, after first being duly sworn, was 12 examined and testified as follows: 13 14 JUDGE POTTER: Would you please have a seat 15 right there, keep your voice up, and would you spell your 16 first and last names and then state your full name for the 17 jury, please. 18 DOCTOR COLEMAN: First name is Lee, L-E-E; last 19 name Coleman, C-O-L-E-M-A-N. 20 JUDGE POTTER: Answer Mr. Smith's questions. 21 22 EXAMINATION ___________ 23 24 BY_MR._SMITH: __ ___ _____ 25 Q. Doctor Coleman, you were Joseph Wesbecker's 70 1 psychiatrist from July 8, 1987 until September 11th, 1989; is 2 that correct? 3 A. Yes, sir. That's correct. 4 Q. Would it be accurate to say that you treated Mr. 5 Joseph Wesbecker on a regular basis during that two-year, 6 two-month period of time? 7 A. Yes, sir. That would be accurate. 8 Q. Did you in connection with the care and 9 treatment of Mr. Joseph Wesbecker make notes? 10 A. Yes, sir. 11 Q. And did you later have those notes typed up? 12 A. Excuse me? 13 Q. Did you later cause those notes to be typed up? 14 A. Yes, sir. 15 MR. SMITH: Is my microphone working? 16 JUDGE POTTER: You're hearing Mr. Smith all 17 right. It's the Doctor. 18 JUDGE POTTER: Will you look out there and make 19 sure his is turned on? 20 SHERIFF CECIL: Sure. Yeah. 21 JUDGE POTTER: And, Doctor, there are two 22 systems in here and the one that counts is the little brown 23 thing, so if you'll just kind of keep that close to you and go 24 ahead and answer Mr. Smith's questions. 25 Mr. Smith. 71 1 Q. The notes that you had typed up, I believe, 2 Doctor Coleman, have been introduced into evidence as 3 Plaintiffs' Exhibit 160. Let me show you a copy of those 4 notes. I think you may have those in front of you. 5 A. Yes, sir. This looks like a typed copy of my 6 chart, the notes that are in my chart; yes, sir. 7 Q. Do you have your chart with you, sir? Please 8 feel free to get those out, and I'm probably going to be 9 primarily referring to the typewritten notes. 10 A. Do you have the materials I gave you this 11 morning, sir? 12 Q. Yes. 13 A. I had a separate copy this morning that I had 14 some handwritten notation on. 15 Q. Yeah. That's what I was looking for. Why don't 16 you look through there. 17 A. No. It was separate from this. 18 MS. ZETTLER: Check in the manila folder. 19 Q. Oh, yes. I think if you'll check in here, 20 Doctor Coleman, you'll find them. Are they there? 21 A. Yes, sir. Yes, sir. I have them. 22 Q. You have in these notes, as I understand it, 23 sir, recorded your observations of Mr. Wesbecker each time he 24 would visit you in your office? 25 A. Well, what I would put in the notes would be 72 1 usually the -- what I felt were the significant facts or 2 things that happened during a particular session. 3 Q. Would it be fair to say that there might have 4 been some things that were discussed concerning collateral 5 matters, but from a psychiatric standpoint, these notes are 6 what you need to refresh your recollection concerning Mr. 7 Wesbecker's mental status during that period of time? 8 A. Yes, sir. There may have been certain little -- 9 some things that were discussed. The note isn't all inclusive 10 of everything that was discussed in the session, so there 11 certainly may have been things discussed that are not 12 specifically in the note. 13 Q. But anything of significance, you caused to be 14 written down in these notes that we have as Exhibit 160; is 15 that correct, sir? 16 A. Well, I try to . I can't say that 100 percent 17 that I would. There may be some possible significant things 18 that I would omit on occasion, but I try to put down in my 19 note the significant things that I feel like are important 20 from that session. 21 Q. And you've had an opportunity to look over these 22 notes on several occasions since this tragedy on September 23 14th, 1989, have you not, Doctor Coleman? 24 A. Yes, sir. That is correct. 25 Q. And you have not seen anything that you recall 73 1 now that should have been put in these notes, have you? 2 A. No, sir. I can't recall at this time anything 3 that I felt should have been in there that wasn't in there. 4 Q. As far as a psychiatric observation of Mr. 5 Wesbecker, we can rely on your notes, can we not? 6 A. Well, and my recollection as well as my notes. 7 I mean, I know that during my previous deposition sometimes as 8 things were looked at they weren't as clear as I would have 9 liked for them to have been, but my recollection and my notes, 10 yes, sir, I think we can rely on that. 11 Q. Obviously your notes were written within a day 12 or so from the time the actual office visit occurred, were 13 they not? 14 A. Either on that day or usually within one or two 15 days; yes, sir. 16 Q. And your recollection, as we humans have a 17 tendency to do sometimes, is not as fresh after what's now 18 been a five-year period of time? 19 A. I would say that's correct; yes, sir. 20 Q. So the point I'm making is, your notes were made 21 at a time when these office visits were fresh in your mind? 22 A. Yes, sir. 23 Q. And those notes would be more likely to contain 24 the accurate recollections and accurate facts concerning what 25 occurred at your office; correct? 74 1 A. Well, I'm not -- could you repeat the question, 2 please, sir? 3 Q. Your notes are probably going to be more 4 reliable than your recollection because you wrote your notes 5 at the time these office visits occurred; correct? 6 A. Well, certainly what's in my notes is correct. 7 You know, if my recollection of something that I said in my 8 notes is different, the note would be more accurate; yes, sir. 9 Q. All right. I see that when you first examined 10 or visited with Mr. Wesbecker in July of 1987, you made the 11 notation "no suicidal or homicidal ideation." Correct? 12 A. Yes, sir. That's correct. That notation is 13 made. 14 Q. Was that an accurate observation as far as 15 you're concerned, Doctor Coleman, concerning whether or not in 16 June of -- July of 1987, Mr. Wesbecker was suicidal or 17 homicidal? 18 A. Yes, sir. I feel that was an accurate 19 representation of him at the time of the initial evaluation; 20 yes, sir. 21 Q. I don't see the word homicidal written in your 22 office notes on any other occasions, Doctor Coleman. Have you 23 seen any other occasion in your notes where you made notations 24 concerning homicide? 25 A. No, sir. To the best of my recollection there's