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 TUESDAY, NOVEMBER 15, 1994 15 VOLUME XXXVI 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 Hearing in Chambers on Deposition Objections............. 4 4 * * * 5 WITNESS: JOHN_GREIST,_M.D. _______ ____ _______ ____ 6 By Mr. McGoldrick........................................ 29 7 By Mr. Smith............................................. 86 By Mr. McGoldrick........................................180 8 WITNESS: GARY_D._TOLLEFSON,_M.D.,_Ph.D. _______ ____ __ __________ _____ _____ 9 By Mr. McGoldrick........................................185 10 * * * 11 Reporter's Certificate...................................241 12 13 * * * 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 3 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 4 FOR THE PLAINTIFFS: 5 PAUL L. SMITH 6 Suite 745 Campbell Center II 7 8150 North Central Expressway Dallas, Texas 75206 8 NANCY ZETTLER 9 1405 West Norwell Lane Schaumburg, Illinois 60193 10 IRVIN D. FOLEY 11 Rubin, Hays & Foley 300 North, First Trust Centre 12 Louisville, Kentucky 40202 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 JOHN L. McGOLDRICK JOHN F. BRENNER 21 McCarter & English Four Gateway Center 22 100 Mulberry Street Newark, New Jersey 07102 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 Tuesday, November 15, 1994, at approximately 7:35 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 JUDGE POTTER: All right. We are looking at -- 11 MS. ZETTLER: David Fewell. F-E-W-E-L-L. 12 JUDGE POTTER: Have you got them marked? Good 13 morning, Mr. Stopher. Have you gone over these, Mr. Myers? 14 MR. MYERS: I have. 15 JUDGE POTTER: Are there any you're willing to 16 give her off the bat? 17 MR. MYERS: Yes. Down through Page 21, the read 18 for completeness. 19 JUDGE POTTER: All right. 24. 20 MR. MYERS: The only question I have -- I don't 21 agree to the objection and I'm confused because the line cut 22 is in the middle of an answer on this one. That answer goes 23 over to the next page. 24 MS. ZETTLER: Well, the way it was designated 25 that's where it came to, to 13. See, 8 through 13 on the 5 1 designation. 2 JUDGE POTTER: Oh, I see, and then if you're 3 going to do it she wants the rest of it for completeness. 4 MS. ZETTLER: Right. If you're going to 5 overrule my objection as to hearsay then we want the whole 6 thing in. 7 JUDGE POTTER: The "he" here is Mr. Wesbecker, I 8 assume. 9 MS. ZETTLER: Uh-huh. 10 MR. MYERS: Yes, sir. 11 MS. ZETTLER: Again, Your Honor, at this point, 12 too, this testimony is cumulative. 13 JUDGE POTTER: All right. So hearsay is 14 overruled, the read for completeness is sustained. 15 MS. ZETTLER: And that's through 25; right? 16 JUDGE POTTER: Okay. 17 MR. MYERS: 1 through 10? 18 JUDGE POTTER: Uh-huh. To the end of the 19 answer. 20 MR. MYERS: All right, sir. 21 JUDGE POTTER: 26, 1 through 25. 22 MS. ZETTLER: That should be 12 through 25, 23 Judge. I'm sorry. 24 MR. MYERS: Yeah. That's what I thought. 25 Actually, Lines 24 and 25 are just a question. 6 1 MS. ZETTLER: So you're taking out 24 and 25? 2 MR. MYERS: Well, there's no designation on 27; 3 that's why I think it ends. 4 JUDGE POTTER: Okay. So let me see. (Examining 5 document) Okay. 26 is overruled and the 28 and 29 are 6 sustained, the first 29. 7 MS. ZETTLER: Uh-huh. 8 JUDGE POTTER: Okay. I'm going to sustain the 9 objections on the second 29 and 30. 10 MS. ZETTLER: The first 30, right, because 11 there's -- oh, no, I'm sorry. I take that back. 12 MR. MYERS: There's only one. 13 MS. ZETTLER: Yeah. There's only one. 14 JUDGE POTTER: 32 is overruled. 15 MS. ZETTLER: Judge, just for the record, both 16 Martha and Kevin Wesbecker were at this trial and could have 17 been asked these questions and they weren't. They simply 18 weren't. 19 MR. MYERS: That's not an evidentiary objection. 20 MS. ZETTLER: Well, it's hearsay. 21 JUDGE POTTER: This guy was there, he can 22 testify about who was -- 23 MS. ZETTLER: Well, he also says he doesn't 24 remember whether or not Kevin was there. 25 JUDGE POTTER: He also says I don't remember 7 1 them being there, which some people are going to interpret 2 that as saying they weren't there. 33 is overruled, the first 3 33. The second 33 is overruled. And the third 33 and the 4 first 34, because that's the same, are overruled. 5 MS. ZETTLER: You got to the good-looking-blonds 6 part, I take it, Judge. 7 JUDGE POTTER: The single people on this jury 8 are all going to head out to Parents Without Partners and 9 patrol. 10 MS. ZETTLER: I don't know. We live not too far 11 away from this chapter that they're talking about here and a 12 couple times driven by there on a Saturday. I don't think so. 13 It's pretty scary. 14 JUDGE POTTER: Let the record reflect that Ms. 15 Zettler has referred to Louisville, Kentucky, as where she 16 lives. 17 MS. ZETTLER: Oh, God, you're right. I'm going 18 to have to register to vote here soon. 19 JUDGE POTTER: All right. Mr. Myers, she has an 20 objection on Page 38, 7 through 15. Is there anything you 21 want to say about that one in particular? That's where he 22 says a friend of his, Joe Passanisi. 23 MS. ZETTLER: Where are you at, Judge? 24 JUDGE POTTER: Page 38, Line 17 through 15. 25 MS. ZETTLER: 7 through 15? 8 1 JUDGE POTTER: 7 through 15. 2 MS. ZETTLER: Okay. 3 JUDGE POTTER: Do you want to tell me the 4 significance of that other than what she said, it's hearsay, 5 et cetera, et cetera? 6 MR. MYERS: Well, Judge, it is a hearsay 7 statement; however, the fellow goes on to say that he 8 undertook to look into it and checked with Mr. Passanisi. And 9 it certainly goes to the question of the knowledge -- this 10 fellow was a pressman -- of the people at Standard Gravure 11 about these threats and efforts to confirm those threats. 12 MS. ZETTLER: Well, it looks like at least 13 triple hearsay from this, and I don't think the fact that the 14 guy went and tried to check up on this Passanisi guy carries 15 it -- 16 JUDGE POTTER: See, I read it that he went to 17 try and call Joe Wesbecker. 18 MS. ZETTLER: See, I kind of read it that way, 19 too. 20 JUDGE POTTER: (Reviews document) Okay. I'm 21 going to sustain the objection. 22 MR. MYERS: 7 to 15? 23 JUDGE POTTER: 7 to 15. 24 MR. MYERS: And the ones from 34 down to the 25 first 38 are overruled? 9 1 JUDGE POTTER: Yeah. Overruled. 2 MS. ZETTLER: And, again, in addition to these 3 objections we've set out here, this is all cumulative at this 4 point, Judge. 5 JUDGE POTTER: It's getting pretty close to it. 6 Okay. 38. The two remaining 38s and 39s are overruled. 7 MS. ZETTLER: Do you understand what I want to 8 do here? Instead of this whole answer that's nonresponsive 9 just limit it to "no," which is responsive to his answer? 10 MR. MYERS: Well, that kind of objection, Judge, 11 should be made at the time. 12 JUDGE POTTER: Well, yeah, I really do, because 13 a lot of times, Ms. Zettler, you know, people give a 14 nonresponsive answer and no one goes back and corrects it 15 because there's been no objection. 40 is overruled. Okay. 16 46 and 47 is overruled. Mr. Myers, have you looked at the 17 rest of read for completeness? 18 MR. MYERS: Yes, sir; Judge. I think we can 19 agree to the 54 and the 55, but the other parts I think they 20 should read. 21 JUDGE POTTER: Okay. Have you-all stopped 22 reading by this point? 23 MR. MYERS: Yes, sir. I think our last 24 designation was Page 55. 25 MS. ZETTLER: But all of these things have to do 10 1 with questions that are asked earlier, Judge. It goes back to 2 what you said if somebody comes in and cures. 3 JUDGE POTTER: Right. But they've stopped 4 reading by this point; right? 5 MS. ZETTLER: Uh-huh. Uh-huh. Yes. 6 JUDGE POTTER: Okay. Well, we'll let you-all 7 stand up and read it. I might have made them read it if they 8 were still interspersing it, but if they quit... 9 All right. Let's do the next one. 10 MR. MYERS: I guess the next one is -- 11 MS. ZETTLER: The next one I have is Michael 12 Shea, Judge. 13 JUDGE POTTER: Okay. 14 MS. ZETTLER: Also, it does appear now, then, 15 from the list that Mr. Stopher has given us, the first 16 deposition he is reading is Mr. Croft, and we haven't figured 17 out what we're going to do with him yet. 18 MR. STOPHER: Yeah. That's the guy with the 19 medical letter. 20 JUDGE POTTER: Yeah. Well, Mr. Croft -- 21 MR. STOPHER: I think you were going to call or 22 have your secretary call. 23 JUDGE POTTER: Right. And as near as I can 24 tell, Doctor whatever-his-name-is that used a stamp to stamp 25 it is no longer practicing, because she got a recording that 11 1 says for medical treatment call this place, for billing 2 numbers call this place. Is this something Mr. Croft produced 3 for you-all? 4 MR. STOPHER: Oh, right. 5 JUDGE POTTER: Okay. At this time I would not, 6 for planning purposes, count on using Mr. Croft's deposition. 7 I mean, I may call one of these numbers and he's just out of 8 town for the day and he's a practicing cardiologist and saw 9 the guy last month and says, yes, he's on death door. It 10 strikes me maybe he's some retired guy with a stamp. 11 MR. STOPHER: I don't know. 12 JUDGE POTTER: I don't know, either, but I just 13 know his telephone doesn't answer like an operating doctor. 14 MR. MYERS: I gave you a copy of Mr. Shea last 15 week when we did Mr. McCall. 16 JUDGE POTTER: Yeah. It's out on the bench. 17 MS. ZETTLER: Judge, I have an extra copy of the 18 objections. 19 (JUDGE POTTER LEAVES AND REENTERS) 20 MS. ZETTLER: You can go ahead and use this, 21 Judge. 22 JUDGE POTTER: Mr. Fewell was a video or a 23 reader? 24 MR. STOPHER: Just a read. 25 JUDGE POTTER: This is a video; right? 12 1 MR. STOPHER: Yes, sir. 2 JUDGE POTTER: Just as an aside, I was someplace 3 Saturday night and I talked to somebody that used to work for 4 Standard Gravure, and one of the things that's interested me 5 in this case is how decisions made whether to come to work 6 early or get a dental appointment affected people. And he 7 said he thought the decision that affected this whole thing 8 was made in 1955, when they made a decision to build the plant 9 downtown instead of out in an industrial park with a rail 10 siding and a flat plant. Apparently, to run one of these 11 things competitively you have to have a rail siding and it has 12 to be a flat plant where the paper doesn't travel to the third 13 floor and down and all this; you just roll it in one end of 14 the plant off a railcar and pick it up off the other end. 15 MR. STOPHER: That makes sense. 16 JUDGE POTTER: I mean, you know, his -- 17 MS. ZETTLER: Judge, don't give Mr. Stopher any 18 ideas for another defense in this case, Judge. 19 JUDGE POTTER: No. His theory is he's tracing 20 it back another 20 years, a decision that was made that 21 created a lot of the unrest down there. Okay. 22 MS. ZETTLER: You're overruling 3 and 4? 23 JUDGE POTTER: Yes. It's relevant who Mr. 24 Stopher is, and I guess if he wants to do his introduction he 25 can. 13 1 MS. ZETTLER: You know, our objection to the 2 first section is that it's not relevant that he's being 3 represented by two attorneys here. It suggests that he's a 4 defendant in this case, Judge, and it's not -- 5 JUDGE POTTER: It also suggests that any errors 6 he makes will not be inadvertent. 7 MS. ZETTLER: His lawyers are going to tell him 8 to screw up? 9 JUDGE POTTER: Uh-huh. Okay. I started to read 10 some of this; that's why it was out on the bench. The 28 11 through 35 is the fact that he took money out of the pension 12 plan and used that to fund his purchase; is that right? 13 MR. STOPHER: Correct. 14 MS. ZETTLER: Yes. 15 JUDGE POTTER: That has come in. I do think 16 it's relevant. And he makes another correct observation that 17 really it was the Binghams that got the money, not him, 18 because he tacked -- you know, they structured the purchase 19 price X million dollars high with everybody knowing that's 20 where the money was going to come from. So if there's 21 anything in it other than the general topic, point it out, Ms. 22 Zettler. 23 MS. ZETTLER: Right. I was going to say 24 because, like, on Page 30, Judge, Lines 11 through 25, it's 25 leading and argumentative. 14 1 JUDGE POTTER: Okay. It is a general 2 description of what went on so I'm going to allow it. 3 MS. ZETTLER: Okay. 4 JUDGE POTTER: Anything else? 5 MS. ZETTLER: Yeah. 31, 12 through 20, the 6 same, it's argumentative and leading. 7 JUDGE POTTER: Okay. That's where he says the 8 Binghams got it. Okay. It's his rambling explanation and 9 it's something everybody knows about, and I'm just going to 10 let him tell it his way. 11 MS. ZETTLER: Another point I'd like to make 12 about this whole line, Judge, is that they've never and they 13 will not be able to connect this up causally. I mean, nobody 14 has ever testified that, Number One, that Mr. Wesbecker knew 15 about this issue and, Number Two, whether or not it had 16 anything to do with what, you know, he did on September 14th. 17 This is just a red herring that's thrown in by the Defendants 18 to try to dirty up Shea and to try to make the company in 19 general look bad. Not one person is going to testify in this 20 case that this had anything to do whatsoever even in the most 21 remotest sense with what happened on the 14th of September, 22 1989. 23 JUDGE POTTER: Maybe I've missed it, but I think 24 they've put on enough evidence that this was something that 25 everybody down there knew about; they may have had it garbled 15 1 but they knew about it. And he was down there, and it 2 obviously fueled some discontent with management. And part of 3 their theory is that this fellow went in there to hunt 4 management rather than a random shooting spree. 5 MS. ZETTLER: Okay. I just want to make the 6 point that everybody in the whole stinking plant can know 7 about this. It doesn't prove that Mr. Wesbecker knew about it 8 and it doesn't prove that it's something that fueled his 9 so-called hatred for the place, if you want to believe that 10 theory. 11 On 34, 7 through I guess 25, the question calls 12 for speculation on his part. 13 JUDGE POTTER: I'm going to just let the whole 14 thing come in. And 35 and 36 is the same topic. 15 MS. ZETTLER: Actually, 35 and 36 is about 16 Shea's suit against the Bingham family with regards to the 17 sale. 18 JUDGE POTTER: Okay. That's right. That's the 19 extra money he picked up. Why is that relevant, Mr. Myers or 20 Mr. Stopher? 21 MR. STOPHER: Judge, it's relevant because what 22 he did here was make a handsome profit off of the facility by 23 taking money from every conceivable source and not benefiting 24 the employees one iota, which fueled hostility toward him. 25 JUDGE POTTER: I haven't -- unlike the pension 16 1 swap or buyout, whatever, I haven't heard any testimony about 2 the employees even knowing about or being concerned about the 3 Bingham suit. 4 MR. STOPHER: Well, I think the important point 5 is not whether or not they necessarily knew about this 6 particular transaction but his attitude toward them and toward 7 the company. He got paid to take this company is the whole 8 point, and then he continued to freeze their wages, deny them 9 pension benefits and cut back on their health insurance. 10 JUDGE POTTER: Okay. I'm going to sustain the 11 35 and 36. 12 MS. ZETTLER: And that starts at 22 through 25 13 on 35? 14 JUDGE POTTER: Uh-huh. And 1 through 20 on 36. 15 MS. ZETTLER: Okay, Judge. 16 JUDGE POTTER: Now we go back and start over. 17 Is that what we're doing, 30 and 31? 18 MR. MYERS: We've been through those. 19 MS. ZETTLER: These are the specific ones we 20 just talked about. 21 MR. MYERS: We're on 37 through 39. 22 JUDGE POTTER: Okay. I'm going to sustain the 23 objection. It's sort of the same thing. I haven't heard any 24 testimony that the employees are upset with him except for the 25 money that he got out of their pension plan. 17 1 MR. STOPHER: Judge, this closing of this area 2 caused massive layoffs, which caused a lot of hostility. 3 JUDGE POTTER: Right. Right. And that's all in 4 there, but not the fact that he got 12 million dollars in his 5 insurance settlement. 6 MR. STOPHER: Well, the fact that they didn't 7 know that I don't think is particularly again the reason that 8 it was asked. This is indicative of his management style. He 9 had the money to replace those jobs and to replace those 10 presses and he didn't do it. 11 MS. ZETTLER: On top of it, Mr. Wesbecker was 12 long gone by the time this happened, Judge. The fire itself 13 happened in November of '88. He's talking about insurance 14 claims that happened subsequent to that. 15 JUDGE POTTER: I don't even know when he got his 16 insurance settlement. 17 MS. ZETTLER: So you're sustaining that? 18 JUDGE POTTER: Uh-huh. 19 MS. ZETTLER: Okay. 20 JUDGE POTTER: Page 40 is correct. 21 MS. ZETTLER: You're sustaining 40? 22 JUDGE POTTER: Yeah. 23 MS. ZETTLER: It's just colloquy. 24 JUDGE POTTER: Okay. Tell me what's 25 objectionable in 45 through 48, Ms. Zettler. 18 1 MS. ZETTLER: Well, first of all, this man 2 testifies he doesn't know what this is. Mr. Stopher 3 represents to him that it's something that Mr. Throneberry 4 gave up and he just kind of takes his word for it. The only 5 thing that Defendants have gotten in at this point are 6 selected pages of I believe a -- and I'm not even sure it's 7 the same one -- personnel policy manual, but this just says 8 The Bingham Companies up here, so I'm not -- you know, this 9 guy doesn't know what this is. It's not something that was 10 created during his tenure. If you're going to allow this in, 11 Judge, my only other thing would be that he should put in the 12 entire personnel manual as opposed to just a... 13 JUDGE POTTER: I'm going to sustain it. You 14 show him something, you tell him what it is, you tell him what 15 it says and he agrees with you. 16 MR. STOPHER: Grady Throneberry has already 17 testified that it was the personnel policy manual that was in 18 effect during Shea's administration and so did Mr. McCall. 19 And I'm showing him what was the personnel policy manual. 20 JUDGE POTTER: Okay. Then it will come in 21 through the other people and the jury can read it, because all 22 he does is -- 23 MR. STOPHER: Well, I go on to ask him questions 24 about the various provisions in it, Judge, particularly the 25 conflict of interest. 19 1 MS. ZETTLER: And that I've also objected to, 2 Judge. 3 MR. STOPHER: There was no objection to this not 4 being authentic or relevant or the policy that was in effect 5 at the time of this deposition, Judge. 6 JUDGE POTTER: Well, let me see Exhibit 2. Is 7 that the whole manual? 8 MS. ZETTLER: Yes. And it wasn't objectionable 9 at the time because Mr. Throneberry identified it as The 10 Bingham Companies' policy manual. 11 MR. STOPHER: No. It was in effect under Shea. 12 JUDGE POTTER: Right. Right. Is this the one 13 where Mr. Throneberry has taken his pages out that say SG 14 Throneberry, got that number on them and all that? 15 MR. STOPHER: Right. Right. I just didn't file 16 the whole thing because the other provisions are not relevant 17 to the testimony. I just gave to the jury and filed as an 18 exhibit the cover page, the index and the same sections that 19 I'm going to talk to Mr. Shea about. 20 MS. ZETTLER: The Throneberry stamp at the 21 bottom is something that was put on there by Mr. Stopher, 22 Judge. 23 JUDGE POTTER: Right. Right. 24 MS. ZETTLER: The problem is that you have this 25 whole manual -- he shows Mr. Shea the whole manual and now he 20 1 wants to take portions that he's gotten in through Throneberry 2 that -- I mean, if you're going to overrule my objection, I'm 3 asking that this whole thing come in because there are things 4 that are relevant in here. 5 MR. STOPHER: Judge, he admits on Page 46 that 6 this was in effect. He says, "I think we adopted The Bingham 7 Companies' personnel policy manual." 8 MS. ZETTLER: But he also says he cannot 9 authenticate or identify this particular manual. 10 MR. MYERS: Lines 2 to 6. 11 JUDGE POTTER: Wait. Wait. One at a time, Mr. 12 Myers. This is Mr. Stopher's. 13 MR. MYERS: I'm sorry. I apologize. 14 MR. STOPHER: I mean, he's identifying -- 15 JUDGE POTTER: Let me read on what happens to it 16 later. 17 MR. STOPHER: All right. 18 MS. ZETTLER: He switches topics, Judge. 19 JUDGE POTTER: Does he get back to the thing 20 later? 21 MS. ZETTLER: Yeah. On Page 79. Judge, can we 22 have one -- 23 MR. MYERS: I was talking to Mr. Stopher. I'm 24 sorry. I... 25 MS. ZETTLER: I think Ed can handle his own 21 1 objections, Larry. 2 JUDGE POTTER: 8 to 25 on Page 79. 3 MS. ZETTLER: It goes all the way through 87, 4 Judge, or 88. 5 MR. STOPHER: I'm confused here, Judge. Are you 6 reading on Page 78, 79 and 80? 7 JUDGE POTTER: Yeah. Because that's where they 8 told me the -- 9 MR. STOPHER: Well, I don't think that relates 10 to the policy manual at all. 11 MS. ZETTLER: What happens here, Judge, is he's 12 trying to take him back and forth through the policy manual 13 and the risk thing throughout this entire... 14 MR. STOPHER: That does not relate, Judge, to 15 the policy manual. 16 JUDGE POTTER: All right. Let me read it. I'm 17 going to go not in order. I'm going to overrule the 18 objections to 48 through 51. 53 through 62 is overruled. 19 62 and 63 we previously sustained. 66. 20 MS. ZETTLER: Judge, just so you understand, 21 that this whole line, 53 through 62, is predicated on that 22 Exhibit No. 2, which is the Binghams' manual. 23 JUDGE POTTER: Well, it's also -- he reads to 24 him and shows him contracts that are already in evidence, I 25 mean, through Mr. Throneberry. I mean, I haven't read it 22 1 exactly, but I assume he's reading from those same contracts 2 and the same part of the manual that came in previously. 3 MR. STOPHER: Right. 4 JUDGE POTTER: So I still haven't decided about 5 the whole thing back in 45 through 48. I'm waiting for that. 6 MS. ZETTLER: Can I just make a quick record on 7 that, Judge? This whole issue of whether or not Mr. 8 Throneberry had a conflict of interest, quite frankly, doesn't 9 make sense. If this man really had a conflict of interest 10 where he was going to make a profit off of this, you would 11 think he would have all kinds of extraneous security that 12 nobody needed. Again, there is no causal connection between 13 this alleged conflict of interest and what happened on 14 September 14th, 1989. And, again, it's cumulative at this 15 point. I'm sorry. Did you say sustained? 16 MR. STOPHER: 66, Judge, there's no problem 17 about that. 18 JUDGE POTTER: Yes, sustained. 19 MS. ZETTLER: And you sustained 62, 63? 20 JUDGE POTTER: Uh-huh. Okay. On the 72, 73, 21 I'm going to sustain -- overrule 72 and sustain the first part 22 of his question, which is Line 2 through 7 on 73 is sustained. 23 MR. STOPHER: I'm sorry. 73, Line 2 through 24 what, sir? 25 JUDGE POTTER: 7. That's just where you ask him 23 1 to produce something if he ever finds it. Then you start your 2 question, "Let me show you a document." 3 MR. STOPHER: All right. Judge, are you on 4 Page 77 and 78? 5 JUDGE POTTER: Yeah. 6 MR. STOPHER: I can agree to take out the 7 reference to Jack Uhl. It's on Page 77, Line 20. 8 MS. ZETTLER: Well, that whole block of 9 testimony needs to go. 10 JUDGE POTTER: Well, wait. Wait. Wait. I'm 11 going to sustain the whole thing because, near as I can 12 understand -- that's why I was looking back, Mr. Stopher -- 13 he's committed himself and asking about a lot of people, has 14 he read people's depositions, no, no, no. Now, we get down to 15 79 through 88. 16 (SHERIFF CECIL ENTERS CHAMBERS) 17 SHERIFF CECIL: Excuse me one moment. The 18 jurors were wondering if they could have some idea of what 19 they could take out of their files. They said it's getting 20 pretty heavy again and if there are some things they're not 21 going to need today, they just wanted to take it out this 22 morning before they get started. 23 MS. ZETTLER: I don't think any of the exhibits 24 that we had them pull yesterday are going to be used today 25 again. 24 1 MR. MYERS: Not for Doctor Greist. At the 2 break, when we put on our next witness, if there's anything 3 I'll let you know. 4 JUDGE POTTER: We don't know of anything they 5 will need other than their tablets to take notes. 6 SHERIFF CECIL: Great. Okay. Thank you. 7 (SHERIFF CECIL LEAVES CHAMBERS) 8 JUDGE POTTER: Okay. All right. 79 through 88, 9 I read that a few minutes ago and, as I remember it, it is 10 asking them about a Hartford survey, right, done in -- 11 MR. STOPHER: Correct. 12 JUDGE POTTER: What is the relevance of that? 13 MR. STOPHER: Judge, the relevance is that the 14 survey says that they need an evacuation route. 15 JUDGE POTTER: Where does it say that? 16 MR. STOPHER: In the document itself. 17 JUDGE POTTER: No, I mean in this testimony 18 here. 19 MR. STOPHER: Where does it say that? 20 JUDGE POTTER: Where do you ask him about an 21 evacuation route? The survey says something in general. You 22 argue about whether he is a responsive employer. 23 MS. ZETTLER: Judge, I'd like to point out that 24 the majority of this document talks about workers' 25 compensation issues as far as working on the presses. 25 1 JUDGE POTTER: Uh-huh. Uh-huh. Mr. Stopher, I 2 really don't see it as having much to do with this. If you 3 can show me something in here where they said you need to 4 improve your escape plan and he says I didn't do it or I did 5 do it, I'll reconsider, but as I see this, this is just sort 6 of a general argument about whether his accident 7 prevention-type programs are adequate. 8 MR. STOPHER: Take a look, Judge, on Page 87, 9 beginning at Line 7. 10 JUDGE POTTER: They haven't objected to that. 11 MR. STOPHER: Okay. Well, then maybe I'm 12 misreading what we're talking about. It looks to me like she 13 objects to 87, Lines 1 through 6 and 18 through 25? 14 JUDGE POTTER: So she skips Lines 7 through -- 15 MS. ZETTLER: 17 on that page. Our objection is 16 that it is a workers' comp issue. 17 JUDGE POTTER: All right. Maybe there is a 18 break here. Let me look at 19 through 25. I'll overrule the 19 objection to Page 87, Line 18, through 88, 15. 20 MS. ZETTLER: Judge, just for the record, I 21 understand why you're doing this, but he refers back to the 22 letter which is talking again about workers' compensation 23 issues; he's trying to bootstrap the entire thing together. 24 One does not relate to the other. 25 JUDGE POTTER: But in that little bit of 26 1 testimony the jury will not get very much information. 93. 2 MR. STOPHER: I think that can come out, Judge. 3 I don't have any problem with that. 4 JUDGE POTTER: Okay. I'm going to sustain 95 5 and 96. I take it never know where the $5,474 -- 6 MR. STOPHER: It's with an exhibit already in 7 evidence. This is the capital proposal. 8 JUDGE POTTER: But you say October, I thought 9 that was dated before this. I thought that capital thing was 10 pending in September 1989. 11 MR. STOPHER: It was. Where does it say 12 October, Judge? 13 JUDGE POTTER: In part of 95. 14 MR. STOPHER: Oh, I see what you mean. Yeah. I 15 don't have any problem. All right. 16 JUDGE POTTER: So I assume that's a new... 17 MR. STOPHER: Yeah. There was another one after 18 it, too. 19 JUDGE POTTER: Ms. Zettler, there's perhaps -- 20 where do you want to stop after you get to 102, the bottom of 21 102? 22 MS. ZETTLER: Are you talking about this 98 23 through 102? 24 JUDGE POTTER: Well, you've objected to the 25 bottom. 27 1 MS. ZETTLER: Oh, okay. That must be a mistake, 2 Judge. I'm thinking through 19 on 102. 3 JUDGE POTTER: Okay. 102. I'm going to sustain 4 the objection to the report again. He's just -- 5 MR. STOPHER: Well, Judge, in this line of 6 questioning he admits that he was aware of the concerns. He 7 says on Page 101, for example, at Line 13, "So I think in 8 generalities, yes, this report was brought -- or maybe not 9 this report, but the gist of this report was within my 10 awareness anyway." And then he goes on to say that, "We 11 needed to do better in the safety and perhaps even the 12 security areas of our plant." That is relevant. 13 JUDGE POTTER: All right. I've become convinced 14 that the Hartford thing, if you had some Hartford man down 15 here to testify... 16 MR. STOPHER: Well, I have a deposition from the 17 guy, Judge. I mean, I can read it and he'll produce the 18 document. 19 JUDGE POTTER: Okay. Then we'll have to take up 20 that deposition. That will be what that guy found and what he 21 said. But this just gets too confusing and he hasn't seen it, 22 and you're arguing with him and you're putting in the comp 23 part with the security part. 24 MS. ZETTLER: Judge, can I make a suggestion? 25 We've got quite a ways to go at this point and it's quarter 28 1 till nine. Can I make a suggestion to break at this point so 2 we can get prepared? 3 JUDGE POTTER: We'll get to some more at lunch. 4 MR. STOPHER: What is this last group? 5 MS. ZETTLER: Up to 103. 6 JUDGE POTTER: I'm sustaining 98, Line 3, 7 through Page 102, Line 19. 8 MS. ZETTLER: One other thing, Judge. Vernon 9 Rothenburger, who they've designated deposition testimony 10 from, has a residence in Louisville, so I'm not sure 11 whether -- 12 MR. STOPHER: He's in the hospital with 13 leukemia. 14 MS. ZETTLER: Again, we're going to need some 15 sort of proof of that. 16 JUDGE POTTER: That one should be easier than 17 the other fellow to get evidence of his inability. 18 (HEARING IN CHAMBERS CONCLUDED; THE FOLLOWING 19 PROCEEDINGS OCCURRED IN OPEN COURT) 20 SHERIFF CECIL: All rise. The Honorable Judge 21 John Potter is now presiding. All jurors are present. Court 22 is in session. 23 JUDGE POTTER: Please be seated. 24 Ladies and gentlemen of the jury, did any of you 25 have any difficulty with the admonition about letting people 29 1 communicate with you? 2 Ms. Duncan, did you have any problems? 3 JUROR DUNCAN: No, sir. 4 JUDGE POTTER: Doctor, I'll remind you you're 5 still under oath. 6 Mr. McGoldrick. 7 MR. McGOLDRICK: Thank you, Your Honor. 8 9 EXAMINATION ___________ 10 11 BY_MR._McGOLDRICK: __ ___ __________ 12 Q. Good morning, Doctor Greist. 13 A. Good morning. 14 Q. Doctor, as we finished the afternoon yesterday, 15 I think you were explaining to the jury various things about 16 the disease depression and we'd almost finished that. Let me 17 ask you this: Could you explain to the jury how, in general, 18 treatment for depression has changed over the years? First of 19 all, I guess in real old days there really wasn't much of a 20 treatment? 21 A. Treatment for depression has changed 22 dramatically through the years. I can reflect best on the 23 experience over the past 60 years. My father was a 24 psychiatrist/internist, as well, began his practice in 1935, 25 almost 60 years ago, and he told me about the things that they 30 1 could do back then. Main thing they did was wait for the 2 depression to go away on its own, trying to support people 3 through that process. If it got very severe, individuals were 4 taken to the hospital and they were either sedated or 5 sometimes they were wrapped in cold sheets that had a calming 6 effect on those who were agitated. Basically it was a wait 7 until the disorder ran its course or the episode ran its 8 course. 9 In the late '30s and into the '40s and '50s, 10 electroconvulsives or shock therapy came along. Difficult as 11 that therapy was and has its problems, it was still a godsend 12 for many people because it interrupted episodes of depression, 13 let them get back to their lives. Problems with it, of 14 course, in addition to the technical aspects of how you do 15 ECT, was that people with depression tend to have relapses. 16 And so those who had a lot of depression had to have a lot of 17 ECT, and it's just a cumbersome way to treat depression. 18 Since then, it started in the '50s, we had first 19 a class called the monoamine oxidase inhibitor 20 antidepressants, then we had the tricyclic antidepressants, 21 and the first of those was imipramine, or Tofranil, in '58. A 22 whole bunch of other ones have been approved and are in use 23 since then. And they were very helpful in that we could not 24 only treat depression often on an outpatient basis without 25 having to bring people in the hospital for shock therapy, -- 31 1 and shock therapy really wasn't needed for a lot of people 2 with depression, it was the only thing there -- but those 3 medicines had substantial amounts of side effects. And 4 there's been a dramatic change over the past almost 7 years 5 here in this country. It actually goes back about 12 years. 6 The first of the selective serotonin reuptake inhibitors or 7 SSRIs was released in Europe 12 years ago, but we had our 8 first one, it was Prozac, or fluoxetine, in January of '88, 9 and that has made a dramatic difference in the way depression 10 is treated in our country. And I can give you an example of 11 that from the experience in Madison, Wisconsin, in the group 12 that I'm with, Dean Care. We looked at all the patients 13 treated in 1992 with antidepressants, so this is a couple of 14 years back. 15 MR. SMITH: Your Honor, could we approach, 16 please? 17 (BENCH DISCUSSION) 18 MR. SMITH: Two objections. This is narrative, 19 and I think he's going into comparing Prozac with other 20 antidepressants, which is beyond materiality or relevance in 21 this case. 22 MR. McGOLDRICK: I'm happy to break it up a 23 little more if that's a problem, but I think his comparison is 24 actually relevant; indeed, it goes to the value of the 25 medicine. 32 1 MR. SMITH: Well, this is not a lawsuit about 2 the value of the medicine; this is whether or not this 3 medicine caused Wesbecker to do what he did. 4 JUDGE POTTER: What are the elements as to the 5 value of the medicine? 6 MR. SMITH: I really frankly don't know where 7 he's going. 8 JUDGE POTTER: Where is he going, 9 Mr. McGoldrick? 10 MR. McGOLDRICK: I think he is about to explain 11 one of the -- an example of why SSRIs are better than the 12 tricyclics, and he's going to show that they -- because of the 13 lower side-effect profile they have better compliance in his 14 patients. 15 JUDGE POTTER: Are we getting an anecdotal thing 16 from him? 17 MR. McGOLDRICK: No. I think it's a study. 18 MR. SMITH: If it's a study it's not been 19 produced to us and not been disclosed to us. 20 MR. McGOLDRICK: I think it's the Dean study, 21 which I think he's referred to. 22 MR. SMITH: Absolutely not. We've never heard 23 of the Dean study. 24 MR. McGOLDRICK: Well, I think you have. 25 What I can do, Judge, if there is a problem, but 33 1 I do think that it has been disclosed here, I can have him not 2 talk about it now and come back to it later when I believe I 3 can support it. 4 JUDGE POTTER: As I understand it, this guy was 5 designated as an expert to give an opinion about 6 Mr. Wesbecker; right? 7 MR. McGOLDRICK: And other opinions, as well. 8 There are a number of them and they're all set forth, and it 9 includes opinions about the medicine, and I've got the 10 disclosure here if you would like to see it. 11 JUDGE POTTER: What is your objection, 12 Mr. Smith? 13 MR. SMITH: My objection, that a comparison that 14 was run at the Dean Foundation between Prozac and other 15 antidepressants has not been disclosed to us. Has there been 16 any study? I don't have any problem with him saying my 17 experience is there's better compliance with Prozac than other 18 types of antidepressants. He's stated that, but he's never 19 supported that through any study. 20 JUDGE POTTER: All right. I'm going to sustain 21 the objection about getting into the Dean study unless you 22 produce it and we sort out whether or not he's produced it as 23 part of his -- previously produced it as part of his expert 24 disclosure. 25 (BENCH DISCUSSION CONCLUDED) 34 1 Q. All right. Doctor, why don't we go forward. 2 And you can tell the jury what it is about the SSRIs that are 3 a significant advance, but at this time don't go into that 4 Dean thing that you were starting to talk about. 5 A. All right. The significant advance has been 6 that these medications are better tolerated than the older 7 tricyclics or the monoamine oxidase inhibitors because they 8 have fewer side effects. And the effect of that has been 9 quite rapid in terms of the conservative nature of medical 10 practice where things change pretty slowly. Already in this 11 year, over half of all the antidepressants, not in Dean, in 12 the United States that get prescribed first time for an 13 episode of depression are from this class of SSRIs, and that's 14 a very rapid change. So these medicines are taken once a day, 15 which makes it easy for patients to remember them, easy for 16 doctors to prescribe them; usually the starting dose, one a 17 day, is the ending dose. People are still taking one a day at 18 the end of treatment. A few people need more, occasionally 19 people need less, but they've been remarkably useful in that 20 regard. 21 Side effects are better, and in those people who 22 do try to kill themselves, suicide attempt by taking an 23 overdose, these new SSRIs are much safer than the old 24 tricyclics. If people took a one-week supply of a tricyclic, 25 they were at risk of dying; if they took a two-weeks' supply 35 1 of a tricyclic, there was a very severe risk of death from 2 that overdose. By contrast, people could take a month, two 3 months, three months supply of the SSRIs and usually nothing 4 bad happens. 5 Q. Thank you, Doctor. Doctor, I think you've used 6 the term malignant depressive disorder. Can you tell the jury 7 what you mean by that? 8 A. Yes. As I was saying yesterday, the usual 9 course of depression is to have an episode, to get better, to 10 have another episode, to get better, but these episodes tend 11 to get closer together as time goes on, and there is a 12 tendency for them to worsen both in the sense of how severe 13 they are at the time and how resistant they become to 14 treatment. Now, most courses of depression go along all right 15 at a slow level of increase, but some unfortunate individuals 16 have what I call malignant depression, just as some people who 17 get cancer have a malignant form that goes on and gets 18 severely worse very rapidly. And rapidly in this particular 19 case is over a period of 9 to 10 years. Many people with 20 cancer these days are successfully treated; my father-in-law 21 had one 12 years ago and is still doing very well, but he 22 could have died from it; it could have been malignant. And 23 malignant depression, just like that, is not the usual one 24 that gets gradually worse over decades but in a span of a few 25 short years gets very severely worse. 36 1 Q. Doctor, let's turn to your own -- well, let me 2 first ask you, you talked about the SSRIs, we've heard this, I 3 think, but Prozac is one of those? 4 A. That's right. There are three available now. 5 There's Prozac, and there's Zoloft that came out in '92, and 6 then there's Paxil that came out in '93, and we're just about 7 to get a fourth one late this year, early next year, but it 8 won't be for depression, it will have a different indication. 9 Q. Zoloft and Paxil, the other SSRIs, are made by 10 other companies? 11 A. That's correct. 12 Q. How many patients in your own practice, Doctor, 13 have you prescribed Prozac for, roughly, if you can tell us? 14 A. It's always hard to give you a firm figure, but 15 it's been a few hundred is the best that I can do. 16 Q. When did you begin using the medicine? 17 A. When it became available in January of 1988. 18 Q. What are the most common events reported by your 19 patients taking the SSRIs? 20 MR. SMITH: Your Honor, we're going to object to 21 that. This is a lawsuit about Prozac, the question is adverse 22 events in connection with Prozac versus any other SSRIs. The 23 other SSRIs are not chemically the same as Prozac and 24 different drugs. 25 JUDGE POTTER: Well, I'll sustain the objection. 37 1 Q. Doctor Greist, are there similar side-effect 2 profiles for Prozac and the other SSRIs? 3 MR. SMITH: Same objection as to what other -- 4 JUDGE POTTER: Sustained. Sustained. 5 Q. With respect to Prozac, what kinds of side- 6 effect profiles are you apt to see. 7 A. Well, side-effect profiles, there are basically 8 two and there's a third that's a close runner. We see a 9 gastrointestinal profile. Patients will say not as interested 10 in food, got gas, goes up or down. If it gets more pronounced 11 they'll say, you know, my stool is getting loose and I feel a 12 little nauseous. And very rarely folks will complain of 13 diarrhea, and I can't remember when I last saw someone that 14 vomited but that does happen. 15 The other main category is activation or 16 stimulation, and patients will say, you know, I'm really edgy, 17 if it's minor, or I feel wired. "It seems like I've had 18 several cups of coffee. I'm caffeinated." If it gets more 19 pronounced, they'll say, "I've got a tremor, I'm spilling 20 coffee over the lip of my cup." If it gets very extreme 21 they'll say, "I'm having trouble sleeping. Can't get to 22 sleep, don't stay sleep." So that's GI and activation. 23 The third lesser category, and the people don't 24 notify us or complain about it is a fair number of people get 25 sedated or feel a little fatigued while they're taking Prozac. 38 1 Q. Doctor Greist, we've heard in this trial about 2 activation and sedation. Please tell the jury what your 3 experience has been on those lines. 4 A. My experience is that patients notify us more 5 and complain more about the activation, the stimulation, than 6 they do the sedation, but in controlled trials when we ask 7 carefully after it, it's about the same number who say that 8 they're feeling really jazzed up or that they're feeling 9 sedated. 10 Q. In those patients who do have activation of any 11 sort, what treatment, if any, do you administer? 12 A. Well, we ask them how severe this is. If 13 they're just feeling a bit edgy or as though they've got a 14 little too much caffeine I ask is it something that you can 15 tolerate until it goes away, because it will in a week or two, 16 and they tell me whether they think they can or not. If they 17 can't, then I may give them a short-acting benzodiazepine or, 18 rather, a benzodiazepine for a few days during the daytime 19 hours, or if it's just insomnia, then I'm more likely to give 20 them a medication such as Trazodone, which is a very good 21 sleeping medicine, hypnotic medication. 22 Q. Doctor Greist, is Prozac effective in all 23 patients who take it? 24 A. No. 25 Q. Can you describe to the jury how effective it 39 1 is? 2 A. Well, when we do the controlled trials we find 3 that Prozac is equally effective. You know, if you look at 4 100 studies there will be some where it's more effective and 5 some where it's less effective, but when you take them all as 6 a group, Prozac is equally effective with the comparitor 7 compounds, usually it's imipramine that we compare against. 8 That's in control trials and that's different than the real 9 world experience where I think the SSRIs as a group, Prozac 10 amongst them, have an advantage over the tricyclics because 11 they cause fewer side effects, because they're easier to take, 12 more patients take them long enough to get better, and there 13 are data supporting exactly what I'm saying from several sites 14 now. 15 Q. Doctor Greist, you've mentioned clinical trials. 16 Can you generally describe for the jury the purpose of a 17 clinical trial? 18 A. Clinic, as we were saying yesterday, involves 19 the bedside or the clinic, patients. And we want to find out 20 whether these medicines work, first, and whether they're safe, 21 second. And there's really no weighting of that; we've got to 22 have both. They've got to be safe and they've got to work or 23 the Food and Drug Administration isn't going to let them out. 24 That's what the clinical trials are designed to determine and 25 that's what we do in studying them. 40 1 Q. How many clinical trials have you performed in 2 your research career? 3 A. About 40 for medication. 4 Q. And what kinds of things have you studied? 5 A. My areas have been mood disorders, so we've 6 studied depression a fair number of times and we've also 7 studied manic depression. I've also been very interested in 8 anxiety disorders, so we've studied medications for the 9 treatment of panic disorder, where people have these spikes of 10 anxiety that come on suddenly out of the blue; generalized 11 anxiety disorder which rumbles along at a lower level, it's 12 not panic but it's very annoying to people. It's there most 13 of the time in worrying about stuff. 14 We've studied obsessive-compulsive disorder, 15 people who have these unwanted ideas that come in about 16 contamination or they've left things undone that might lead to 17 danger. That's the obsession and the compulsion; they have to 18 do something to lessen that worry. They're worried about 19 contamination so they wash a lot; they're worried about 20 leaving the locks undone or the appliances turned off, go and 21 check them all the time. 22 We've studied post-traumatic stress disorder; 23 that's another of the anxiety disorders in which people had a 24 terrible trauma and they have reexperiencing of that trauma. 25 So those are the anxiety disorders that we've studied with 41 1 medications. 2 Q. Doctor, have you performed clinical trials with 3 Prozac? 4 A. I have. 5 Q. Which types? 6 A. Two trials altogether with Prozac. 7 Q. What did they involve? 8 A. They involved patients who had a subcategory of 9 depression called agitated depression, and I went over 10 agitation yesterday. It's when people are restless, they 11 can't sit still, they just really can't slow down, they pace, 12 they wring their hands, that sort of thing. That was one 13 study, agitated depression. We compared Prozac with 14 imipramine, a tricyclic antidepressant. The other study was 15 in an elderly population of individuals, and again we compared 16 Prozac with imipramine, and these were individuals who were 17 depressed. 18 Q. Staying with the agitated depression for a 19 minute, is that a category of persons? Is that part of the 20 disease depression? 21 A. Yes. It's one of the nine criteria, psychomotor 22 activity for depression. Some have psychomotor retardation, 23 some have psychomotor agitation, and we were studying that 24 subcategory of psychomotor agitation. 25 Q. All right. We'll go back to that. Doctor, in 42 1 connection with these clinical trials that you ran for Lilly, 2 did Lilly ever tell you to disregard or downplay adverse 3 events? 4 A. No. In fact, it's -- all of the drug companies 5 are very concerned about adverse events throughout the 6 studies. The vigilance is a bit annoying at times early in 7 the studies because they're harping on it all the time. But I 8 think Lilly is in the forefront of the pharmaceutical industry 9 in wanting everything reported. And they don't want us to 10 make decisions about it, they just want us to report it, whole 11 cloth, and then later on they'll submit those data and they'll 12 make some determinations about causation. 13 Q. Doctor, in the Prozac trials that you're 14 familiar with, was there an exclusion which would have 15 prevented patients at serious risk of suicide from 16 participating? 17 A. Yes. To the extent that we were able to 18 identify serious risk at the beginning of the study; that's 19 correct. 20 Q. And why is there such an exclusion in clinical 21 trials? 22 A. Well, we wouldn't want to put someone at obvious 23 suicide -- serious suicide risk in danger. We didn't want to 24 treat them in a controlled trial. We would probably 25 hospitalize someone who has a serious suicide risk. These are 43 1 outpatient studies. Now, as often happens, people get into 2 studies and their suicide risk increases, and that happened in 3 our agitated depression study, too. 4 Q. What happened there? 5 A. One of the patients in that study actually did 6 make a suicide attempt, and another patient who had a 7 reasonably high level of suicidal ideation, it got so much 8 worse that we took them out of the study. 9 Q. Is suicidality part of the disease depression? 10 A. It certainly is. And that's not unexpected that 11 this happens in controlled trials and we're on guard for it, 12 but we try to screen out those who have really serious suicide 13 risk. The other side of the coin, though, is that about 80 14 percent of the people coming into these trials have suicide 15 thoughts, they have ideas about it, but they tell us, "We're 16 not going to act on it. It would be too devastating for our 17 family. I hope that I'll get better. My religion is against 18 it." So those kinds of people with thoughts of suicide still 19 get into the studies. 20 Q. Doctor, you mentioned that in one of your 21 clinical trials you had a patient who had an attempt of 22 suicide. Was that patient on the Prozac or the comparitor 23 medicine? 24 A. That patient was on imipramine. 25 Q. Now, we may hear more about the 44 1 agitated-depression study, but could you tell the jury a 2 little bit more about what you did and what you found in that 3 agitated-depression clinical trial? 4 A. Certainly. We again double-blind. We didn't 5 know and the patients didn't know what they were getting. 6 Randomly assigned them to be treated either with imipramine or 7 with Prozac. May I say why we do double-blind? 8 Q. Surely. Why don't you tell the jury that. 9 A. Because you would think why not know -- why 10 shouldn't the doctor know. Because if I know in a study where 11 there's a placebo, an inert treatment, sugar pill, and I know 12 the patient's on that, I might say to them when I see them 13 later on, "You're not feeling better yet, are you," and if I 14 know they're on the active drug, I might say, "How much better 15 are you feeling now?" 16 Q. Would you do that on purpose? 17 A. No. I wouldn't do that on purpose. It's awful 18 hard, though, when you know, not to give subtle communications 19 to people, and that's the reason it's done double-blind, as 20 much as we're able to double-blind it. 21 At any rate, we randomly assigned these 22 patients, we were double blind, and we treated them for eight 23 weeks either with imipramine or with Prozac. And when the 24 study was done, both of the drugs were equally effective in 25 reducing symptoms of depression, in reducing thoughts of 45 1 suicide and the other symptoms of depression, but there was a 2 significant difference in terms of dropouts. And in that 3 study, 44 percent of the patients dropped out that were 4 assigned to the imipramine because of side effects, and only 5 10 percent dropped out because of side effects with Prozac. 6 It's that kind of difference that we see in our use of SSRIs, 7 Prozac among them, versus the tricyclics, and that's why it's 8 changing practice in treating depression across the country. 9 Q. Doctor, why was it that you decided to do this 10 study? What was the purpose of the study? 11 A. Well, the drug had an approval for depression 12 broadly and as time goes on, other subcategories can be 13 studied. And the agitated depression is a well-recognized 14 category, as is another one called melancholia. And there was 15 some thought here and abroad, more abroad than here I think 16 it's fair to say, that people who have agitation, restless, 17 can't sit still, would do better on an antidepressant that has 18 some sedative effects, such as imipramine, and that they might 19 do less well on an antidepressant that has more activation, 20 more stimulation, such as Prozac. So that was one of the 21 basic issues that we wanted to address. 22 Q. And what was the answer to that? Did you feel 23 that you answered that question in your study? 24 A. We did. Based on our study, which had 124 25 patients in it, half of whom were on each of the compounds, 46 1 there was no significant difference in terms of antidepressant 2 effect. They both worked well, the patients did not get more 3 activated, more stimulated when they were receiving Prozac. 4 Q. Doctor, did you also look in that study at the 5 question of whether Prozac use leads to increased suicidality? 6 A. We did. 7 Q. And what did you find? 8 A. In this study we not only looked at the Hamilton 9 Depression Rating Scale item on suicide, Item No. 3, but we 10 also used a suicide ideation questionnaire that had 25 11 questions about suicidality, thoughts of suicide, that sort of 12 thing. And there we found again both treatments were 13 effective in reducing thoughts of suicide. We also looked to 14 see whether new suicidal ideas came up during treatment with 15 either imipramine or with Prozac, and they did in a few 16 patients; 5 of the patients on Prozac had a worsening of their 17 score on that measure, but 12 of the patients on imipramine 18 had a worsening of their score on that measure. 19 Q. Did these results of this study partly answer 20 the question of whether Prozac leads to suicidality in 21 agitated-depressed patients? 22 A. It's a part of the answer. 23 Q. What's the rest of the answer? 24 A. Well, let me make that clear. For example, 25 although there were five Prozac patients who had some 47 1 elevation of their scores, none of those elevations were 2 severe enough that they were taken out of the study. With the 3 imipramine, had not only one the patients who had made a 4 suicide attempt and another one whose ideas were so severe 5 that we stopped their participation in the study, there were 6 four others who had rises that were great enough that we got 7 concerned about it and took them out of the study. 8 Q. In which group was that? 9 A. In the imipramine. And it's a partial answer to 10 that question. No single study is going to answer that 11 question conclusively, but this is an important study. 12 Q. Based upon that study and any other evidence you 13 know, what is your conclusion about the relationship between 14 suicidality and Prozac? 15 A. It's my opinion that there is no credible 16 evidence that Prozac causes suicidality or suicidal ideas. 17 Suicidality and suicidal ideas are part of depression, and in 18 our study and in other studies that have been looked at, the 19 thoughts of suicide go down in general. It's not to say that 20 there are never people who have new thoughts of suicide or 21 those who came into the study didn't have some worsening at 22 times, but the general pattern is for thoughts of suicide to 23 go down. And when they looked at the large populations of 24 patients treated across many studies, the emergence of new 25 ideas is no greater, in fact, it may be less with Prozac than 48 1 it is with the tricyclic antidepressants, and worsening is no 2 greater. 3 Q. Were there any patients in the study that you 4 ran who became aggressive or violent or homicidal? 5 A. No. 6 Q. In general, having done that study, what were 7 your conclusions from it about the treatment of agitated 8 depression with Prozac? 9 A. That it made no difference in terms of 10 effectiveness whether we treated a patient who was agitated 11 depressed with Prozac or with imipramine, but it probably in 12 the real world does make a difference in that more patients 13 would continue taking Prozac than would continue taking 14 imipramine, so that more patients with agitated depression 15 were likely to be helped with Prozac. That's the real-world 16 take-home answer and that's why doctors -- more patients who 17 get depression and come in to see their doctor across this 18 country for the first time are getting an SSRI, Prozac or 19 Paxil or Zoloft, than are getting the older drugs, and that's 20 a dramatic change in less than seven years to change the 21 prescribing practices of the medical profession. 22 Q. Doctor, let me turn to another subject now. 23 Tell the jury what a book called the PDR is. 24 A. Well, those initials PDR stand for Physicians 25 Desk Reference, and it's a book that's published every year to 49 1 reflect the changes in the medications that are available for 2 prescription. We get updates at several points during the 3 year when they have a few new drugs that that have come out or 4 a bunch of changes in the descriptions of drugs and then we 5 get some updates. It contains a whole bunch of information; 6 chemistry of the compound, the metabolism of the compound, the 7 indications for the compound, how you dose people with the 8 compound, the precautions in using it, any contraindications, 9 meaning it should never be used in this situation, adverse 10 events or side effects that people have. It's a source -- a 11 ready source up on the shelf of a lot of information. Very 12 importantly from the clinician's point of view, has pictures 13 on glossy pages of a lot of the medications that are in common 14 use, so when a patient comes in with a pill we've got a 15 fighting chance of finding out exactly what it is and can work 16 backward to figure out what to do with that medication. Most 17 of the pills have numbers on them, letters that identify them. 18 We can find some of them that way but pictures still help. A 19 PDR is not a be all and end all, but it's something that is on 20 the shelf and gets pulled off from time to time. 21 Q. Is it typically found in a psychiatrist's or 22 physician's office? 23 A. Yes. I think as a physician I've been getting 24 them every year since I was licensed in '65, and I think I'd 25 have to do something to get them to stop sending them. I 50 1 don't pay for it; it just comes. 2 Q. Does it contain the same package literature as 3 the package literature that comes with the product? 4 A. That's my understanding. 5 Q. What does it look like? 6 A. Well, it's gotten bigger from '65 till now. 7 It's a book about this size. 8 Q. Is this it, Doctor? 9 A. That's one of them. They tend year to year to 10 change the color from red to blue to kind of help orient you 11 to which one you've got. 12 Q. All right. Now, I'm going to show you a 13 document, Defendant's Exhibit 411. I'm going to ask you if 14 this is the part of that PDR that refers to Prozac plus the 15 cover sheet. 16 A. Yeah. Well, I mean, I haven't linked it up and 17 looked at it myself, but it says 43rd edition, 1989, and then 18 it certainly does describe Prozac, and I assume that it's the 19 '89 version. 20 Q. And would you look at the -- I guess the second, 21 third, fourth and fifth pages, and ask you if that appears to 22 be the package literature with respect to Prozac? 23 A. Yes, it does. 24 Q. Now, Doctor, there's been some testimony in this 25 case by Plaintiffs' witnesses or a witness that the package 51 1 insert I believe the phrase was "contained too much noise," 2 was the word that was used, and therefore physicians would not 3 be alerted to activation events with respect to Prozac by this 4 package literature. Do you agree on that point? 5 A. No. I disagree. 6 Q. Could you explain to the jury why? 7 A. Well, several reasons. First, the layout of the 8 PDR is the same for every drug, so whenever we go in there we 9 know where we're looking for things. Specifically to the 10 issue of activation, stimulation, agitation, that sort of 11 thing, as you look at precautions, the very first thing it 12 says under general -- and precautions is a -- 13 Q. Before you do that, Doctor, if I may interrupt, 14 I think we may have the section in the PDR blown up so we can 15 read it. All right. Now, you're referring to which section 16 at this point? 17 A. Precautions. It's a black all upper case 18 section here in the PDR. And the first thing that comes up in 19 the Precautions section is general anxiety and insomnia. It 20 says, "Anxiety, nervousness and insomnia were reported by 10 21 to 15 percent of patients treated with Prozac. These symptoms 22 led to drug discontinuation in 5 percent of patients treated 23 with Prozac." The first thing you do when you look at 24 precautions is you see this. I don't see that as buried or 25 hidden or that there's noise confusing anybody reading that. 52 1 The second area, when we come over to adverse 2 reactions; that's side effects, and the very first thing you 3 see under that is commonly observed. "The most commonly 4 observed adverse events -- side effects -- associated with the 5 use of Prozac and not seen at an equivalent incidence among 6 placebo-treated patients -- the ones getting sugar pill -- 7 were nervous system complaints, including anxiety, nervousness 8 and insomnia, drowsiness and fatigue or asthenia -- feelings 9 of weakness or feeling punk -- tremor, sweating, 10 gastrointestinal complaints, including anorexia, nausea and 11 diarrhea and dizziness or light-headedness." So, again, under 12 adverse reactions commonly observed there are the activation, 13 stimulation things. And then there's a table in here -- 14 Q. That's a table maybe the jury has seen before in 15 a blowup. 16 A. Well, it's Table One meaning treatment emergent, 17 patients that are getting these in controlled studies, 18 adverse-experience incidents or side-effect incidents in 19 placebo-controlled trials. And it talks about body system, 20 adverse event and the first category is nervousness -- the 21 nervous system, excuse me. Nervous system. And of the first 22 six items there, headache, nervousness, insomnia, drowsiness, 23 anxiety and tremor, all except headache and drowsiness refer 24 to activation or stimulation. So I just don't understand what 25 it means that there's noise here that hides that from the 53 1 doctor's recognition. 2 MR. McGOLDRICK: Your Honor, I'd like to offer 3 those and have them published to the jury. 4 JUDGE POTTER: Be admitted. 5 MR. SMITH: Is he offering the entire PDR as 6 opposed to the posters? 7 MR. McGOLDRICK: Yes. 8 MR. SMITH: No objection. 9 SHERIFF CECIL: (Hands document to jurors). 10 Q. All right. Doctor, now that the jury has the 11 PDR section, would you just explain to them on which page the 12 first one you spoke about, Precautions, appears? 13 A. Yes. It's actually the fourth page -- excuse me 14 --- the third page of what you have at the top, it's Page 895, 15 and it's the middle column right near the bottom where it says 16 Precautions. 17 Q. And is it the very first thing listed under 18 Precautions? 19 A. It is. Under General Anxiety and Insomnia. 20 Q. All right. Now, turn over to the next page. Is 21 that where we find adverse reaction? 22 A. That's correct. So that would be 896. And, 23 again, it's the middle column, and a third of the way down you 24 see Adverse Reactions and then commonly observed, that first 25 paragraph was what I read to you. 54 1 Q. And that's the first paragraph under Adverse 2 Reactions? 3 A. That's correct. 4 Q. And it also appears elsewhere in the PDR; is 5 that right, sir? 6 A. Yes. 7 Q. Again, you referred to the table on Page 896? 8 A. That's correct. 9 Q. The first items up on the left under Nervous 10 System, and it appears under Adverse Reactions down in the 11 category of Nervous System; is that right, sir? 12 A. Yes. And I was pointing out that four of those 13 first six refer in one way or another to activation or 14 stimulation. 15 Q. Now, Doctor, in general, do you have an opinion 16 as to whether -- from your clinical practice and your 17 experience as to whether Lilly's package insert was reasonable 18 and adequate to describe the risks and benefits of the 19 medicine? 20 A. I do have an opinion. 21 Q. And what is your opinion, sir? 22 A. It was quite adequate to explain the benefits, 23 the risks of using this medication. Doctors have had no 24 difficulty knowing that activation stimulation is one of the 25 two major -- 55 1 MR. SMITH: We'd object to that, Your Honor, as 2 to what doctors would know. 3 JUDGE POTTER: Sustained. Sustained. 4 Sustained. 5 Q. Your opinion, Doctor, or did you already say? 6 A. Well, it is clearly my opinion. 7 Q. I'm sorry. Is the question clear? My question 8 to you is: Was this package insert adequate, reasonable, to 9 alert doctors to the risks and benefits of the medicine? 10 A. Yes. And I can't -- I do continuing medical 11 education, I talk to doctors all the time. That's what I'm 12 reflecting on. 13 Q. Okay. Now, are there other sources of 14 information for doctors in how to practice their medicine than 15 just the PDR? 16 A. Yes. There are. 17 Q. And what are they? 18 A. Well, doctors read journals and they have 19 textbooks of pharmacology, Goodman and Gilman being the 20 standard one. They attend continuing medical education 21 lectures and they see patients. And patients instruct and 22 inform us about experiences that they're having with 23 medications, and all of that put together is what doctors 24 depend upon to know how to use these medications safely and 25 effectively. 56 1 Q. Let's turn to a different subject, Doctor. 2 There's been some testimony in this trial that Mr. Wesbecker 3 took Prozac twice; once in 1988 and another occasion in 1989. 4 In 1988, one of the Plaintiffs' witnesses suggested that Mr. 5 Wesbecker became fatigued while on Prozac because he had toxic 6 levels of lithium. I'd like you to tell us first, do you 7 agree that at that time he had toxic levels of lithium? 8 A. I disagree. 9 Q. And could you explain to the jury why? 10 A. Yes. He took Prozac in June of '88, from the 11 9th through -- the best data now are the 27th, period of 18 12 days. Also had been taking lithium, continued taking lithium 13 and he had a blood level at that time of 1.5. The label is 14 less important, milliequivalents per liter is what we're 15 talking about. And that is not a toxic level of lithium, by 16 definition. The usual laboratory range that is given is .5, 17 half a milliequivalent, to 1.5, but that's usual. And we 18 treat a number of individuals at levels of 1.5 or greater, and 19 they are not toxic. Individual could be toxic at 1.5, but 20 it's interesting that we often treat children at higher 21 levels, 2, 2.2, they are not toxic when we do that. Every 22 patient on lithium usually reaches levels greater than 1.5, 23 even if we're maintaining them at a level of 1.0, because when 24 they take their medicine in the morning and in the evening, 25 usual way they take it, twice a day, the blood level goes up 57 1 above 1.5. They are not toxic at that time. It goes up twice 2 a day. Sometimes usually in people who are having lots of 3 urine because they're on lithium, we give it all at once at 4 night, and those people routinely go above two 5 milliequivalents per liter and they're not toxic with it. So 6 that is just not an accurate statement. 7 The other thing that's critically important here 8 in reviewing Doctor Coleman's records and in common clinical 9 experience for those of us who use lithium, is that when you 10 get a value that's jumped 50 percent, he was running about 1.0 11 and shows up with a level of 1.5, the most common explanation 12 is the person forgot and took the medicine in the morning 13 shortly before the blood test was drawn. So then when they 14 take the medicine, the blood level goes up, 1.5, it may have 15 been higher, but that was what was measured, 1.5. And Mr. 16 Wesbecker, according to Doctor Coleman's notes, wasn't sure 17 whether he had not taken his medicine, he might have forgotten 18 and taken it, and that was what Doctor Coleman thought. But 19 as a precaution he dropped his dose from 1200 milligrams a day 20 to 900 milligrams a day. There are 300-milligram capsules or 21 tablets or various forms of them. So he cut it down by 25 22 percent. And on that reduction when they did do the blood 23 level for sure right, his blood level was .6, and they had 24 been running at 1.0. So that is just clinically clear as can 25 be that he had taken his medicine that morning before that 1.5 58 1 blood level had been obtained in lab test and then went back 2 to 1200 milligrams a day and he went back toward one 3 milliequivalent per liter. I don't understand the other 4 interpretation. 5 Q. So that if it was said here that the one point 6 level -- the 1.5 level was toxic and that that caused him to 7 be fatigued, you disagree with that? 8 A. I do. That's naive. 9 Q. Doctor, do you know anything special about 10 lithium? 11 A. I've been interested in lithium, I think I said 12 yesterday, since the '60s before it was approved. It was 13 first approved in 1970 for the treatment of mania, the acute 14 episodes of mania, and then in 1974 it got a second indication 15 and that was to help maintain people who had manic depressive 16 illness in a more stable mood. So those are the two 17 indications. But I began using it in the '60s because I had 18 been reading the literature. and manic depressive disorder is 19 really tough for patients, for families and for the doctors 20 who treat these individuals. Lithium had really 21 revolutionized the treatment of that disorder, but we didn't 22 have it here for a variety of historical reasons. But I had 23 been interested in it so I started using it. 24 Q. And, Doctor, did you have actually something to 25 do with some medical writing on it? 59 1 A. I've written substantial writings about it. My 2 colleague and I at the Dean Foundation, Doctor Jefferson and I 3 have had interest in Lithium going back many years. In 1974 4 or '75, we started the Lithium Information Center, and we have 5 worked very hard to collect absolutely all the literature in 6 all the languages that's been published on lithium as a 7 treatment for mood disorder, bipolar disorder and for other 8 uses. And we now have over 24,000 articles on lithium and we 9 have two Master's-level medical librarians who work with us on 10 the lithium literature and also on the literature on 11 obsessive-compulsive disorder, and we have every one of those 12 articles under copyright law. As we're permitted, we send 13 those articles out to doctors and even patients who request 14 them. We get about 800 requests a month now. And out of that 15 interest, the clinical use of it and this growing literature 16 that we were collecting we've done a substantial amount of 17 writing over the years about lithium. 18 Q. Doctor, what is this? 19 A. That's the second edition of the Lithium 20 Encyclopedia for Clinical Practice. 21 Q. Are you one of the authors of that? 22 A. I am. 23 Q. Doctor, does Prozac in any way affect the 24 metabolism of lithium? 25 A. No. 60 1 Q. Why not? 2 A. Lithium is a basic element. It's like sodium or 3 potassium, like sodium or sodium chloride. When sodium goes 4 into our body as sodium it comes out as sodium, it doesn't get 5 broken down. Lithium is the same way. Unlike medicines like 6 Prozac or imipramine, which go into the body, get metabolized, 7 broken down by the liver and then usually come out as 8 something else, lithium goes in as lithium and it comes out as 9 lithium, and it virtually all comes out in the urine. A 10 little bit comes out in feces and a little bit comes out in 11 sweat. So the mechanism by which Prozac and all the other 12 antidepressants can have effects on other medicines can either 13 interfere with their metabolism, slow down their metabolism or 14 in some cases speed it up in the liver. But lithium is not 15 metabolized so Prozac has no effect on lithium levels in 16 humans. 17 Q. Doctor, I'd like to turn now to another subject, 18 and I'm going to ask you a series of questions about your 19 opinions in this case. And I'm going to ask you to answer 20 these questions in light of your expertise and work as a 21 professor of medicine, as a clinician, a doctor treating 22 patients and as a researcher from your entire experience. I'm 23 also going to ask you to answer them in light of your 24 knowledge of the scientific literature and medical literature 25 and medicine and science altogether. I'm also going to ask 61 1 you to answer these questions to a reasonable degree of 2 medical certainty. Before we begin, can you tell the jury how 3 confidently you hold an opinion if you hold it to a reasonable 4 degree of medical certainty? 5 A. With a very high level of confidence. 6 Reasonable degree of medical certainty means to me that we've 7 looked at data impinging on that question, that we've looked 8 at clinical experience broadly as defined in literature and 9 that we've looked at our own experience. We hold that to a 10 very high level of confidence. It's not casual; it's not 11 hypothetical or theoretical; this is something very solid. 12 Q. Doctor, do you have an opinion, to a reasonable 13 degree of medical certainty, as to whether Prozac can cause a 14 person to think about suicide or attempt suicide? 15 A. I do. 16 Q. What is that opinion, sir? 17 A. Prozac does not to a reasonable degree of 18 medical certainty cause patients to think about or commit 19 suicide. 20 Q. Second, do you have an opinion to a reasonable 21 degree of medical certainty as to whether Prozac causes a 22 person to become aggressive? 23 A. I do. 24 Q. And what is that opinion, sir? 25 A. Prozac does not cause people to become 62 1 aggressive. 2 Q. Doctor, Three, do you have an opinion to a 3 reasonable degree of medical certainty as to whether Prozac 4 can cause violent behavior? 5 A. I have an opinion. 6 Q. And what is your opinion, sir? 7 A. My opinion is that Prozac does not cause people 8 to create or do violent behavior. 9 Q. Fourth, do you have an opinion to a reasonable 10 degree of medical certainty whether Prozac causes a person to 11 commit homicides or murders? 12 A. I do have an opinion. 13 Q. And what is your opinion, sir? 14 A. Prozac does not cause people to commit homicides 15 or murders. 16 Q. Now, Doctor, is it ever possible to prove a 17 negative? 18 A. Alas, no. We wish we could, but we cannot. 19 Q. What does it mean to prove a negative? 20 A. I can't prove the sun isn't out there for 21 visibility today, and I can't prove to you that tomorrow the 22 sun will not come up, but we'd bet our lives on its coming up. 23 Reasonable scientific probability it's going to come up. We 24 pay our mortgages, we show up for work or jury duty or 25 whatever it is. 63 1 MR. SMITH: Your Honor, we're going to object to 2 this as being collateral and immaterial to any issue this jury 3 is going to decide. 4 JUDGE POTTER: Overruled. 5 Q. Go ahead, Doctor. 6 A. There are things in a scientific sense you can 7 never quite say never; it is improbable to the vanishing 8 point, but things are possible scientifically, you can't prove 9 a negative. It gets into hypothetical, theoretical, 10 speculation, guessing. I wish we could, but we can't. 11 Q. All right. Now I'd like to turn to another set 12 of opinions and ask if you hold these and whether you think 13 it's possible that these things could have occurred. First, 14 Doctor, do you have an opinion as to whether Prozac either 15 caused or contributed to the acts of Joseph Wesbecker on 16 September 14, 1989? 17 A. I do have an opinion. 18 Q. What is that opinion? 19 A. Prozac did not contribute to nor cause the 20 terrible things that Joseph Wesbecker did on that day. 21 Q. Doctor, in considering that question, did you 22 take into account -- into consideration a possibility that 23 Prozac may have somehow caused or contributed to his actions? 24 A. I did, and I rejected it after I reviewed all 25 the materials in this case. After I had looked at the 64 1 information about Prozac that was available, I considered it 2 but I rejected it. 3 Q. If Prozac did not cause Mr. Wesbecker to injure 4 and kill employees of Standard Gravure, what in your opinion 5 did cause him to do that? 6 A. His malignant depressive disorder that just got 7 worse and worse and ended in this tragedy. 8 Q. Was that a substantial cause of what he did? 9 A. It was, in my mind, the only cause of what he 10 did. It was very substantial. It was the cause. 11 Q. Of making him do that? 12 A. Correct. 13 Q. Now, Doctor, I'd like you to take some time and 14 explain to the jury your basis for these opinions about Joseph 15 Wesbecker. 16 A. Fine. And I should say that the amount of 17 material, the amount of records that are available in this 18 matter are enormous, and I'm sure that the jury has heard some 19 of what I'll be saying and will hear other things, as well. 20 MR. SMITH: Excuse me, Your Honor. I don't want 21 to interrupt, but I think it would be more appropriate if we 22 get this in a question-and-answer form as opposed to a 23 narrative so that I might know what's coming. 24 MR. McGOLDRICK: If Your Honor please, may I 25 approach the bench? 65 1 (BENCH DISCUSSION) 2 MR. McGOLDRICK: I am just asking, Judge, the 3 bases for his opinions. I think he should be allowed to 4 testify to that in a narrative form, just the way Doctor 5 Breggin testified in a narrative form. 6 JUDGE POTTER: Isn't he right? It's a question; 7 it may have a long answer, but it's a question. 8 MR. SMITH: He starts off by talking about what 9 material the jury did and didn't have. It's going way beyond 10 what the Witness was asked. I think it would be better "What 11 material did you review; what did you find significant in 12 terms of this nature." I don't have any control of what he's 13 saying when you've got potentially a 30-minute answer. I'm 14 not trying to interrupt him giving his opinion, even though I 15 have, but I just would prefer it so I might have some control 16 over it. 17 JUDGE POTTER: Well, I'm going to overrule the 18 objection. 19 (BENCH DISCUSSION CONCLUDED) 20 Q. Doctor, please continue and describe to the jury 21 the reasons for your opinions about Joseph Wesbecker which you 22 just gave. 23 A. Yes. I want to point out the main things I'm 24 relying on are the things of Joseph Wesbecker, and I've also 25 been reading the trial testimony, the substantial parts of it, 66 1 not all of it, as it has come out, the same things that you've 2 heard, and those are the main things that I'm relying on. 3 Q. And tell us why it is you hold these opinions 4 about Joseph Wesbecker and why he did what he did. 5 A. Mr. Wesbecker had major depression and he had a 6 first clear episode of major depression in 1980. Before that, 7 his life had gone on as many people's lives went on. 8 Everybody's life is different and special, but there was 9 nothing in a psychiatric sense that really stigmatized him. 10 Wanted to have his kids have a better start than he did, 11 worked very hard, got a house, married 17 years to Sue. And 12 I'll use first names because the last names I'm having trouble 13 keeping up with, if that's all right. 14 They divorced in January of '80, and in May of 15 '80, Mr. Wesbecker appeared at the emergency room of a 16 hospital here in Louisville, and he was so agitated and 17 pacing -- those were the words in the emergency room -- they 18 couldn't even take his vital signs. They couldn't take his 19 blood pressure, his pulse, his temperature. Three days later, 20 Doctor Hayes admitted him to a psychiatric ward and diagnosed 21 him as having depression. The description was depression, 22 agitation, despondent, anxious, and he treated this first 23 clear episode of depression with a tricyclic antidepressant 24 called Elavil or amitriptyline. Also used anti-anxiety, 25 antipsychotic medication, Navane. 67 1 Mr. Wesbecker, as most people do after their 2 first episode, recovered to all intents and purposes, got back 3 on his feet, went back to work, started up a new family with 4 Brenda, his second wife. Stopped seeing Doctor Hayes, stopped 5 taking medication, but life's stressors go on and he was 6 having some in this second marriage. There was some 7 difficulty integrating the two sets of children from Sue and 8 from Joe. There were some troubles with Brenda's -- excuse 9 me, I -- yeah -- I said Sue, I meant to say Brenda's children 10 and Joe's children. I apologize. There were some troubles 11 with Brenda's ex-husband, Doctor Beasley. At some point along 12 here, and I realize I can't get it fixed in time, Jimmy, his 13 younger son, began to expose himself and that, of course, 14 would have been a stressor for any parent. Whether it was 15 before this or shortly after I don't know, but I think it does 16 feature as time goes on, and what I'm trying to do is take 17 this in a chronologic sense. There were the ongoing squabbles 18 with Sue as they ended their marital relationship and some of 19 that trailed out into lawsuits into 1983, two years after the 20 divorce occurred. 21 By January of '83, Mr. Wesbecker had gone back 22 to Doctor Hayes seeking treatment again, and Doctor Hayes 23 treated him with a different tricyclic called desipramine, or 24 Norpramin, and by December of '83 continued treating him, had 25 a Minnesota Multiphasic Personality Inventory, the MMPI. 68 1 Q. What's that? 2 A. Well, that's a 546-question, true-false test 3 that probably some of the rest of us have taken, and gets sent 4 in. And actually Doctor Butcher up in Minnesota is the one 5 who is responsible for that and his name is on the report. 6 And Doctor Butcher recognizes that this is just -- it says in 7 the cautions in the report, useful source of hypotheses. So 8 they aren't saying this is necessarily the person; has to be 9 verified by other sources of clinical information since 10 individual clients or patients may not fully match the 11 prototype. Went on to say that had a depressed mood, feels 12 nervous, tense, unhappy, quite worried at this time. Also 13 appears to be quite indifferent to many of the things he once 14 enjoyed and believes he's no longer able to function well in 15 life. This is depression. 16 Treatment Considerations is a heading in this 17 report. Quite depressed, may need symptom relief, perhaps the 18 most frequent treatment being antidepressants, and he points 19 out that individuals with this profile may respond poorly to 20 traditional psychotherapy. 21 Then as a part of this report there are all 22 kinds of graphs and things, but there's something called the 23 critical item listing, and they talk about headings such as 24 acute anxiety state, depressed suicidal ideation, threatened 25 assault, mental confusion, persecutory ideas and something 69 1 called characterological adjustment or antisocial attitude. 2 And there are a bunch of these that describe Joe as he was in 3 December of '83, and that in my opinion continued and got 4 worse right up till September 14th of '89. 5 Now, when I say continued, I don't mean there's 6 a straight line. People with depression tend to get better 7 and worse, but his line was saw-toothed down and it 8 accelerated down as he got toward the end. 9 Some of the items he said false, "I wake up 10 fresh and rested most mornings; false, I'm about as able to 11 work as I ever was; true, my sleep is fitful and disturbed; 12 true, I have periods of days, weeks or months when I couldn't 13 take care of things because I couldn't, quote, get going, 14 closed quote. I have more trouble concentrating than others 15 seem to have. I certainly feel useless at times. When 16 someone does me wrong I feel I should pay them back if I can, 17 just for the principle of the thing, true." 18 Q. So this is what year, Doctor? 19 A. This is December of '83. This is a picture of 20 Mr. Wesbecker that was discernible from psychological testing, 21 which was done in Minnesota. This is looking at profiles of 22 people; it's not somebody seeing him face to face. 23 Though he was in this marriage with Brenda, 24 shortly after they married and because of the stressors he was 25 having, he made a suicide attempt. She described shortly 70 1 after their marriage finding him lying in the hallway of their 2 house at two A.M. with the car running outside with duct tape 3 all around him and with cuts bleeding around his mouth, and he 4 had been trying to carbon-monoxide himself. Nothing was done 5 at that time about that. Moving forward in time, but that's I 6 think a clear second episode he was having, going back to 7 Doctor Hayes for treatment, having a suicide attempt. 8 By April of '84, he was again in enough distress 9 that he made two suicide attempts in very close succession. 10 And Brenda in her testimony here described coming home and 11 seeing him running in the street, and he had taken an overdose 12 of medication he had been prescribed, the desipramine. And 13 after the next day he tried to carbon-monoxide himself again. 14 At this point, Doctor Hayes, as I understand it, had retired 15 and Doctor Senler had taken over his practice, and when she 16 saw him the day after the carbon-monoxide attempt he went in 17 the hospital again and was treated with a combination of 18 Elavil and another strong anti-anxiety or antipsychotic 19 medication called perphenazine. 20 While in the hospital he had a second set of 21 psychological testing five months later by Doctor Leventhal, 22 and Doctor Leventhal described him quite interestingly. This 23 says -- Morton Leventhal, Ph.D., April 28, 1984 -- "There's 24 nothing strikingly bizarre or peculiar about him, yet one 25 feels a strangeness which is hard to define. He spoke rather 71 1 bitterly about the stressors in his life, his first wife, his 2 current wife's first husband -- that's Doctor Beasley -- her 3 children, et al. Despite this, his reasons for attempting 4 suicide are rather nebulous. Quote, I had enough, close 5 quote, and his solution is certainly vague and poorly defined. 6 I suppose I could sum it up by saying he struck me as quite, 7 quote, odd duck, close quote, although I have difficulty 8 really putting my finger on what gave me that impression." 9 That's April of '84. 10 Brenda had been very concerned by this coming 11 home finding him, he had torn up the house some. And in May, 12 a month after this, she moved out, and by November of that 13 year had divorced him. Interestingly, after the first 14 hospitalization -- I'm sorry, to back up a little, after the 15 first divorce, excuse me, Mr. Lucas, whom I'm sure you heard 16 testify, and knew him pretty well, said that he changed. He 17 was never quite the same. And Mr. Lucas said after this 18 second divorce he became a recluse on the job, were his words, 19 he before engaged with people, shared coffee and small talk 20 with them, but after that he tended to stay more by himself. 21 He continued to have stressors in his life. 22 Q. Excuse me, Doctor. Just to interrupt for a 23 minute. By this time from a clinician's and an expert's point 24 of view, are you starting to see a pattern? 25 A. Absolutely. 72 1 Q. And what is that? 2 A. This man has recurrent depression. We've had at 3 least three episodes that are identifiable at this point in 4 time. This recovery is less now as time goes on. The 5 increasing interference with his functioning is apparent and 6 gets worse as time goes on, so that is the picutre that is 7 emerging here that clinicians would perceive. And it isn't 8 that he was necessarily preordained to have this. Probably a 9 lot of us carry around some risk of depression. We've all 10 been sad or blue for a day or two. We know what it's a little 11 bit like, but things happen to certain people that overwhelm 12 them, and he got overwhelmed by that divorce. And once this 13 thing starts