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 to run, it begins to have a life of its own 14 unless it's responsive to treatment. His was not very 15 responsive to treatment. 16 Stressors continued: Kevin, he became estranged 17 from; James was certainly having troubles by then with the 18 exhibitionism; and at work he was beginning to complain more 19 about the nervousness that he felt when particularly working 20 on the folder, which as I understand it, is a stressful job in 21 that people work for half an hour and then they're off for 22 half an hour and then they're on for half an hour. And it may 23 have been that the illness -- he had been by all accounts I 24 read, quite a good worker and able, but the illness made it 25 harder for him to do this hard job, this fine job, stressful 73 1 job, so the two are interacting, the illness and the job. The 2 job makes the illness worse, the illness makes it harder for 3 him to do the job. 4 Moving forward in time, by the end of '85, he 5 was telling Doctor Senler about worries regarding toluene, 6 which is a chemical used in many chemical situations. In 7 printing they put a lot of toluene if they want the print to 8 dry very fast, and they were trying to run the presses faster 9 and dry the print faster. And she referred him to Doctor 10 Beanblossom, who did tests and did not find any toluene in 11 him. 12 Moving forward in time, he saw Doctor Moore, who 13 the -- I believe Mr. Lampton had referred him to Doctor Moore. 14 This was in November of '86. Doctor Moore thought that the 15 agitation that he was seeing, the pressure of speech, things 16 of that nature suggested hypomania, a low grade of mania, so 17 he diagnosed atypical bipolar disorder, and when people have 18 manic depressive disorder, lithium is excellent treatment, and 19 prescribed lithium. Because he also had depressive symptoms 20 he prescribed imipramine, an antidepressant, and Mr. Wesbecker 21 continued to receive these medications off and on for quite a 22 time. 23 In early '87 -- and let me go back to Doctor 24 Moore just for a second to pick up one thing that runs through 25 here. This again is his medical record. Doctor Moore's 74 1 report on November 18th of '86, said that Mr. Wesbecker had 2 described the following: depressed mood, irritability, crying 3 spells, agitation, pacing, racing thoughts, fatigue, insomnia, 4 poor memory and poor concentration. He also notes attacks 5 characterized by greatly increased agitation and tearfulness, 6 lasting several hours. All of this, of course, is long before 7 Prozac was available, even approved in the country. It wasn't 8 available. But he had some trouble with Doctor Moore. In his 9 mind, Doctor Moore and Mr. Lampton had somehow disclosed parts 10 of his medical history, broken confidentiality. That was Mr. 11 Wesbecker's view, as I understand it. 12 Also, in late '86, -- and I'm trying to put 13 together elements that are very important, I know I'm not 14 getting them all -- he told Mr. Lucas, showed Mr. Lucas a gun, 15 either late '86 or early '87, that he had brought to Standard 16 Gravure for the purpose of shooting Mr. Popham if Mr. Popham 17 came around and bothered him, possibly another individual or 18 two. Brenda testified in about this time that his sleep 19 problems occurred from '87 on, and she also said that his 20 severe deterioration began in '87. This again is progression 21 of this depression. It's getting worse; it's not getting 22 better; it's getting malignant. He had asked her one morning, 23 "How would you like to die today?" I don't know what it 24 meant, she didn't know, but it was, in retrospect, chilling. 25 Moving forward to April of '87, he was 75 1 hospitalized again, this time for almost a month under Doctor 2 Schramm. He didn't like the care he got from Doctor Moore, 3 called Doctor Schramm, he wondered if he needed adjustment of 4 his medications, he was worried about toluene. Doctor Schramm 5 continued imipramine and lithium and Doctor Buchholz, a 6 psychologist, again repeated psychological testing and 7 basically said in his note that Mr. Wesbecker complained about 8 work, the folder was too stressful, and he found chronic 9 anxiety and depression. The records, again, which I know 10 you'll have, have that report in them. 11 In the testimony that was given here, I found 12 certain things that I thought were important. A man named 13 Senters testified, "I'll get even with them if they don't let 14 me out of here," and Mr. Senters said that could occur three 15 or four times a week. 16 Q. Excuse me, Doctor. Just so we have that 17 straight, was that what Mr. Senters was saying or what Joe 18 Wesbecker was saying? 19 A. Joe Wesbecker was saying to Mr. Senters that he 20 would get even, three or four times a week. And Mr. Senters 21 described Joe Wesbecker as real anxious and pacing. A man 22 named Coffey said that Joe was preoccupied with guns, and he 23 talked about how many foot pounds of force a bullet would have 24 in striking someone. Mr. Coffey said that Joe thought that 25 everyone was against him. He changed into a negative person. 76 1 This ran across testimony of several individuals, that he had 2 been a reasonably agreeable person who became negative, and he 3 had also talked with Mr. Coffey about how to tape clips of 4 ammunition together. 5 Mr. Cox testified that he knew that Joe 6 Wesbecker had threatened him either in late '86 or early '87, 7 in all of this -- there had been threats against Doctor 8 Beasley earlier, but these were starting to focus on people at 9 Standard Gravure. December 31st of '87, but it wasn't 10 restricted to Standard Gravure, Joe threatened Melissa, 11 Brenda's daughter. His judgment is getting very poor. And it 12 was bad enough in her mind she got out of the car at that 13 point on New Year's Eve. 14 February of '88, he bought a Smith & Wesson 15 revolver from Ray's Pawn Shop, before Prozac. June 9th 16 through the 27th of '88, he was receiving Prozac, 20 17 milligrams a day. 18 Q. Before we get to that point, Doctor, you told us 19 earlier in 19 -- by '83, '84, that you were seeing a pattern 20 from the point of view of an expert clinician in this field. 21 At this point, by late '87, early '88, what is happening to 22 that pattern; is it changing, is it developing, is it 23 evolving, what's going on? 24 A. The pattern is progressing downward. Work was 25 very important to this man. It's important to a lot of us. 77 1 It's an inertial system, sort of a flywheel that we keep 2 going -- it takes a lot to keep us from going to work. But he 3 was having more and more trouble with work, getting worse. I 4 think that was very significant for this man. He was having 5 lots of trouble with his relationships. He didn't talk to 6 Melissa for the last five years of his life. When they would 7 have the Thanksgiving meal, they would have Melissa in one 8 room and Joe in the room. It was strange, to say the least. 9 Q. But by this time you're seeing a pattern 10 intensifying, and this was before he ever gets any Prozac? 11 A. Yes. And at this time he gets estranged from 12 Kevin. There was a period of, his mother said, three to four 13 years toward the end where he didn't talk with her because she 14 wouldn't rupture her relationship with Kevin, her grandson. 15 He's having lots of trouble back in '86, '87, and it's getting 16 worse. He's having trouble at work. He's feeling they aren't 17 supporting him enough at the union in trying to get him off 18 the folder. 19 Q. So when we get to mid '88, how does it continue? 20 A. He was on Prozac from the 9th to the 27th of 21 '88, 18 days, and Doctor Coleman's note described his appetite 22 is better, sleep is better, but Mr. Wesbecker stopped taking 23 Prozac because he felt fatigued. And this is that same time 24 we had the earlier issue about lithium. He was having lithium 25 at the same time but, in my opinion, lithium had nothing to do 78 1 with the fatigue; it was a Prozac side effect. 2 August the 26th of '88, he bought the Sig Sauer 3 pistol and, again, Prozac is long gone from his body. 4 Moving to September of '88, he arranged for his 5 cremation. He's thinking about death, he's planning toward 6 death. Also in September he deeded the house at Nottoway -- I 7 hope I'm saying that right -- over to Brenda, and Brenda had 8 said that he was worried that he would end up like his 9 relatives, in an institution. He had at least two relatives 10 that died in mental institutions. I think Central State was 11 the specific institution. So he deeded the house over to her 12 so that if he ended up in an institution and she was still -- 13 if it was in his name they would get the money, but if it was 14 in her name they wouldn't, to pay for his hospitalization. 15 In November of '88, Brenda moved out of Nottoway 16 to go take care of her father who was dying, and this meant a 17 reduction in the support and the social contact that Joe had 18 with somebody, because as of August of '88, he had a medical 19 disability provided by Doctor Coleman, so he was off work by 20 this time, and that was a very significant event for him. He 21 couldn't stand to go to work, couldn't stand the folder, but 22 to have to quit working was important for this man. 23 January the 17th, it -- excuse me. In December 24 he prepared his will. January the 17th of '89, there were the 25 murders in the Stockton school yard with an AK-47, and it's my 79 1 understanding that that was first reported in the Louisville 2 newspaper the next day, the 18th, and it was on the 19th that 3 Mr. Wesbecker bought his AK-47, the first one, the Norinco, I 4 guess it's called. 5 By February of '89, Brenda had asked him to turn 6 off some of the utilities that she had been paying for since 7 she wasn't living in the house. He turned the water off and 8 he turned the phone off. I think the water got turned on 9 later again, but the phone never was. 10 On February the 9th, Time Magazine published a 11 major article, major emphasis on assault weapons and murders, 12 broad-scale murders, and on February the 10th, Mr. Wesbecker 13 bought two nine-millimeter pistols, and it was that magazine 14 that was found in the house after he murdered and shot people. 15 In February, he received a letter from Paula 16 Warman which was, in my mind, a clear signal that he was 17 moving from capacity to maybe get back to work to long-term 18 disability. Part of this progression of depression, real 19 downward slide. 20 In moving forward in time, around Derbytime, so 21 it was early May '89, Brenda testified that he stopped telling 22 her about what he was thinking and planning: "You're Goody 23 Two-shoes and you'll tell the police on me." So that was a 24 little after he had bought or traded the AK-47 on May the 1st. 25 Here's a man who had -- they had had a pistol here or there or 80 1 an air pistol, but they had never had an accumulation of 2 weapons beginning to approach this. He wasn't telling other 3 people or showing them to other people. 4 In June of '87 -- excuse me, June of '89, he had 5 a reconciliation of sorts with Kevin. 6 In July, Brenda's father died. She doesn't plan 7 to move back to Nottoway. 8 August the 5th, Nancy Montgomery died, and that 9 was his maternal grandmother who had raised him and whom he 10 viewed as his mother, very important person in his life, and 11 she was buried on the 9th. 12 On the 10th, he returned to Doctor Coleman and 13 again resumed treatment with Prozac, getting 20 milligrams a 14 day. 15 On the Saturday, and I believe it was the Labor 16 Day weekend before -- the Saturday before the Labor Day 17 weekend, it's possible it was after, I can't remember, he was 18 at the Lucases' and they offered to give him back the 19 paperwork for long-term disability. He said, "I won't be 20 needing that, maybe it will help you." 21 On September the 6th, he took his jammed AK-47 22 to the gun shop and either then or when he picked it up on the 23 12th of September had a discussion with them about ammunition, 24 said words to the effect, "I have all the ammunition I'll 25 need." 81 1 On the 11th of September, went to see Doctor 2 Coleman and Doctor Coleman saw him as quite different, as 3 being agitated and tearful and unlike the way he had seen him, 4 and he wondered whether Prozac was responsible for this, and 5 so he stopped the Prozac on the 11th. 6 On the 12th, Mr. Wesbecker picked up the AK-47. 7 On the 12th, he set up the trust for Jimmy, taking the $70,000 8 out of the bank. 9 On the 13th, he went over to Brenda's father's 10 house, slept there, Brenda slept in the basement, and she 11 testified on the 14th, the morning this all happened, 12 uncharacteristically he said good-bye to her and he said, 13 "Thanks for being a good friend." 14 Nancy was gone. She would -- the person he 15 probably cared the most about, certainly amongst those who've 16 nurtured him, wouldn't have wanted to have embarrassed her. 17 Knowing she had Alzheimer's, knowing she was in a nursing 18 home, still. Work was gone. He wasn't going to get back to 19 work, that was important to him. He had put his affairs in 20 order. He was afraid of ending up in an institution as some 21 of his relatives had, and he went to Standard Gravure that 22 morning and did the terrible deeds that he did. 23 Q. Doctor -- 24 A. Now, there are other things that I think are 25 important -- I'm sorry. May I? 82 1 Q. Surely. 2 A. Thank you. -- that fit into this. Mr. Frazier 3 was the union president and in his testimony here he said 4 that, "Mr. Wesbecker went from being an easygoing man to being 5 confrontational. He just changed completely, became moody, 6 and he had this exotic interest in guns. He seemed to 7 threaten people, talked about the radio-controlled airplane, 8 maybe that person should be blowed away, and the list of 9 people seemed to grow," this is Mr. Frazier's testimony. 10 Described Mr. Wesbecker as getting increasingly worse. He 11 became very strange, seemed to lose his grip on reality. 12 Where initially Mr. Wesbecker had understood that the union 13 really didn't have grounds for a grievance about them still 14 pushing him to work on the folder, later on Mr. Wesbecker 15 didn't even understand that. Lost his grip on reality. 16 He blamed all sorts of people for not helping. 17 He had applied for long-term disability but Mr. Frazier said 18 he didn't want to be off; he wanted to be a pressman at 19 Standard Gravure but he didn't want to work the folder. We 20 know that money was very important to Mr. Wesbecker, he had 21 accumulated a substantial amount, working hard when he could, 22 was able to. And clearly even if he got Social Security added 23 to his long-term disability, his ten or twelve thousand a year 24 was very far short of what he had been earning as a pressman 25 at Standard Gravure. 83 1 Hated being away from work, became more 2 disagreeable, Mr. Frazier said, every time he came in from 3 February of '89 on. Again, he's not on Prozac then. 4 Mr. Lucas again, had known him through the years 5 and Mr. Lucas testified here that he wouldn't talk for long 6 periods, including to Mr. Lucas, his friend. 7 After the fire, it was November of '88, I 8 believe, there was a very severe fire at Standard Gravure and 9 Mr. Lucas was injured and he went to see him in the hospital, 10 and Mr. Wesbecker said, "It's a shame the whole thing didn't 11 go up," meaning the Standard Gravure plant, go up in flames. 12 He also testified that in February of '89, he 13 had no Prozac around, Mr. Wesbecker's conversations jumped 14 around, he talked about people out to get him, described his 15 meticulousness gone. He used to be careful about his dress, 16 his grooming, his hygiene, was no longer. Another part of his 17 testimony, the company was out to get him, felt the union 18 didn't give him good representation. Another part of his 19 testimony, Mr. Wesbecker was very much discontented with the 20 way Jimmy was going, that Jimmy had been the only good thing 21 that had come out -- that he had managed to salvage out of a 22 terrible situation and that turned sour, too. Another part of 23 his testimony, Mr. Wesbecker was talking about Plan A and 24 Plan B, just rambling. Talked about Standard Gravure every 25 other time I saw him. Then Mr. Griffin testified that Mr. 84 1 Wesbecker had said, "One of these days I'll be back. I'm 2 going to get those SBs." I think that meant sons of bitches. 3 Mr. Metten testified that Mr. Wesbecker had 4 pretty well stalked Doctor Beasley for a long time. That's 5 not related to Standard Gravure, but it's talking about him 6 going out and pursuing somebody that he has a grudge against. 7 Mr. Bryan gave a feeling for his view of what Standard Gravure 8 was like, said after Shea a good job became a hell hole. Mr. 9 Sowders said that Mr. Wesbecker had said they all ought to be 10 stood up and mowed down. 11 Mr. Scherer said that he could see a progression 12 of his illness. It had gone from one or two days a week to 13 every day. He became sloppy and ragged, he isolated himself. 14 He was acting strange. Mr. Scherer also said that in his 15 opinion the foremen had made it hard on Mr. Wesbecker and that 16 he had observed Mr. Wesbecker upset after talking with Mr. 17 McCall and Ms. Warman, and in Mr. Scherer's opinion, that the 18 deteriorating -- deterioration had lasted two -- in the last 19 two years is when he had seen it. His clothes looked like 20 something out of a rag bag. And, again, this started before 21 Prozac. 22 So those are among the things and, as the jury 23 knows, there are many more. But those are the things that -- 24 among the things that I think are helpful in understanding 25 what happened with Mr. Wesbecker, why he did these things. 85 1 Q. Now, Doctor, you're a trained doctor, you see 2 patients, you're trained to observe these kinds of histories 3 and things. Having reviewed all of that and more that you 4 haven't taken the time to tell us about, did you believe that 5 these terrible events were some sudden change or was this part 6 of a long pattern of disease and planning on this man's part? 7 A. It's my opinion that this is very clear for 8 clinicians to review and see this progression, this downward 9 course. The data are just there from so many vantage points, 10 and when you put it together, this man had malignant 11 depression, the episodes got closer, his disorder got more 12 severe, it became less responsive to treatment and in the end 13 that's what led him to do these things. 14 Q. In your opinion, your expert opinion, did Prozac 15 have anything whatsoever to do with this man's actions on 16 September 14, 1989? 17 A. In my opinion, Prozac had absolutely nothing to 18 do with Mr. Wesbecker's actions on September 14, 1989. 19 MR. McGOLDRICK: Cross-examine, Your Honor. 20 JUDGE POTTER: Ladies and gentlemen, we'll take 21 the morning recess at this time. As I've mentioned to you-all 22 before, do not permit anybody to talk to you about this case. 23 Do not discuss it among yourselves and do not form or express 24 opinions about it. We'll take a 15-minute recess. 25 (RECESS) 86 1 SHERIFF CECIL: All rise. The Honorable Judge 2 John Potter is now presiding. All jurors are present. Court 3 is now in session. 4 JUDGE POTTER: Please be seated. 5 Doctor, I'll remind you you're still under oath. 6 Mr. Smith. 7 8 EXAMINATION ___________ 9 10 BY_MR._SMITH: __ ___ ______ 11 Q. Doctor Greist, in order to clear up exactly what 12 your background is, you are currently on the Eli Lilly and 13 Company psychiatric advisory board, are you not, sir? 14 A. That's correct. 15 Q. And you go to Eli Lilly and Company and advise 16 them on their psychiatric medications? 17 A. Yes. 18 Q. You speak at Eli-Lilly-sponsored symposiums and 19 functions, do you not? 20 A. I do. 21 Q. You are paid for each of those -- 22 A. Yes. 23 Q. -- instances where you devote your time for Eli 24 Lilly and Company; right, sir? 25 A. That's correct. 87 1 Q. You are currently being paid by Eli Lilly and 2 Company to do clinical trial work for them, aren't you? 3 A. That's correct. 4 Q. And, in fact, you are currently being paid by 5 Eli Lilly and Company to examine a new antidepressant, are you 6 not? 7 A. Yes. We've about completed our work on that, 8 but I think we are still getting some pay for the work we're 9 still doing. 10 Q. And that work that you're doing for Eli Lilly 11 and Company, that new antidepressant, is an antidepressant 12 that combines properties of specific serotonin reuptake 13 inhibition and norepinephrine inhibition; is that right? 14 A. Norepinephrine reuptake inhibition, yes. 15 Q. And that is a different product than Prozac, 16 isn't it? 17 A. That's correct. 18 Q. And the hope is that that new product that is 19 under investigation will eliminate some of the side effects, 20 the activating-stimulating side effects that Prozac presents, 21 isn't it, sir? 22 A. We certainly hope that it will have an even more 23 favorable side-effect profile than Prozac. There are other 24 reasons, of course, to develop a new compound. 25 Q. Including eliminating these activating- 88 1 stimulating side effects that Prozac has? 2 A. Well, eliminating? You know, in the best of all 3 possible worlds. Certainly if we could reduce the frequency 4 of them that would be a boon. 5 Q. The hope is to reduce the frequency of these 6 side effects that Prozac presents that Lilly is now 7 investigating; correct, sir? 8 A. Yes. That's one of the reasons for developing a 9 new compound, make it easier to take. 10 Q. And that's obviously one of the reasons that 11 Lilly is developing this new compound, to reduce the 12 activating-stimulating effects of Prozac? 13 A. I don't know all the reasons that Lilly has for 14 developing it, but I'm sure that they would like to have a 15 compound with fewer side effects. I mean, I know why I like 16 to have new compounds come along, but I don't know all of 17 Lilly's reasons. 18 Q. Well, that was one of the reasons that you 19 suspect, that you told me about in your deposition, wasn't it, 20 that it was hoped that this activating-stimulating side effect 21 possessed by Prozac would be reduced, sir? 22 A. Any new compound, you hope, and that's not just 23 this one but, yes, this one, you would hope it would have 24 fewer side effects. It would be one of the reasons to develop 25 it. 89 1 Q. You are also employed by the Dean Foundation, 2 are you not, sir? 3 A. Yes. 4 Q. And the Dean Foundation receives grants from 5 Eli Lilly and Company, doesn't it, and funding from Eli Lilly 6 and Company? 7 A. The only funding I know that the Dean Foundation 8 receives is through the pharmaceutical grants. I don't know 9 of any separate ones. If there are some I stand corrected, 10 but I believe the only grants are the pharmaceutical grants, 11 grants for pharmaceutical studies. 12 Q. That Lilly is providing; right, sir? 13 A. Oh, yes. 14 Q. Now, is it your opinion here, Doctor Greist, 15 that -- and my notes say that the cause of Joseph Wesbecker's 16 conduct on September 14th, 1989, was malignant depressive 17 disorder; is that right, sir? 18 A. Yes. 19 Q. My notes say that you expressed the opinion in 20 this case that that was the only cause of his actions on 21 September 14th, 1989; is that right, sir? 22 A. The only cause that I can identify; that is 23 correct. 24 Q. So anything that would have been done by 25 Standard Gravure itself would have not been a cause for 90 1 Mr. Wesbecker's conduct on September 14th; right, sir? 2 A. That would be my opinion. 3 Q. Anything that Hall Security might have done or 4 not done would have not been a cause for Mr. Wesbecker's 5 actions on September 14, 1989; correct, sir? 6 A. I'm struggling because, you know, I mean, they 7 might have done something that would have prevented it, but is 8 that what we're talking about or -- 9 Q. Yes, sir. We're talking about what caused 10 Joseph Wesbecker to do what he did on September 14th, 1989. 11 It's my understanding that you testified on direct examination 12 that the only cause of his actions was the disorder that 13 Mr. Wesbecker suffered from, which was a malignant depressive 14 disorder; is that right, sir? 15 A. That's correct. But let me back up then, if I 16 may, and say that -- 17 Q. Are you backing up or backing off that opinion? 18 Let's get that clear, first. 19 MR. McGOLDRICK: I think he ought to be able to 20 finish his answer and state it again. 21 JUDGE POTTER: Overruled. 22 A. Backing off of which opinion, could you state it 23 again? 24 Q. That malignant depressive disorder was the only 25 cause of Mr. Wesbecker's conduct on September 14, 1989. 91 1 A. I'm not backing off of that. But in light of 2 your questions, I'm wanting to clarify the issue whether 3 anything done at Standard Gravure might have had a part in 4 that malignant depression. That's what I want to clarify. 5 Q. Okay. You think that Standard Gravure causes 6 mental disorders? 7 A. Not intentionally, but in the creation of 8 stress, some individuals will have mental disorders as a 9 consequence in part of that distress, in part related to their 10 genetic predisposition, their makeup, in part to other things 11 going on in their family life. There are many things that 12 contributed to the end-up with Mr. Wesbecker doing what he 13 did. 14 Q. I understand that, sir. What I'm trying to get 15 clear here is you say that these -- the only cause of his 16 conduct was his malignant depressive disorder; is that right, 17 sir? 18 A. That is my opinion. 19 Q. I take it from that, that obviously stressors 20 are something we're all exposed to; is that right? 21 A. Stressors are something we're all exposed to, 22 that's true. 23 Q. In varying degrees, varying amounts and varying 24 times, aren't we? 25 A. That's right. 92 1 Q. That's part of life? 2 A. That's correct. 3 Q. All of us on some occasions have had to do 4 things in our jobs that we didn't like that well? 5 A. That's correct. 6 Q. All of us have had days where we thought that 7 our employment was not as satisfactory as we wanted it; right, 8 sir? 9 A. I certainly have. Yes. 10 Q. You've had days where you felt that you were 11 doing a job that was causing you stress and that you would 12 want to avoid that; right, sir? 13 A. Or get through it. 14 Q. That's part of human experience? 15 A. That's correct. 16 Q. So, if Standard Gravure had anything to do with 17 this, it would only be that it happened to be where he was 18 employed in connection with the stressors that he was dealing 19 with; right, sir? 20 A. Yes. In the sense that had he been at another 21 place that was less stressful, his depressive disorder might 22 not have progressed as rapidly, or more stressful, more 23 rapidly. 24 Q. For instance, Mr. Wesbecker had been on 25 long-term disability and out of these stressors for a year, 93 1 hadn't he? 2 A. That's correct. 3 Q. So to that extent, the stressors had been 4 relieved? 5 A. Those specific stressors of working the folder 6 had, but it introduced another stressor, in my opinion. 7 Q. The stressor of being off work? 8 A. That's right, and giving up what was very 9 important to him, work. 10 Q. Well, let me ask you what factual information 11 you really have, Doctor Greist. You talked about the trial 12 testimony that has been presented here that the jury's heard. 13 Have you read the entirety of the trial testimony? 14 A. No. As I said, Mr. Smith, I read parts of it. 15 Q. All right. Have you read the entirety of any 16 witness's trial testimony? 17 A. Yes. I read Brenda Camp's -- Brenda Wesbecker 18 Camp's testimony. That's the one I've read completely. I've 19 read I think all of Mr. Frazier's testimony. I may have 20 fallen a little short there. I read -- there was the terribly 21 short piece by the woman from the telephone company and that 22 was obviously quickly read. 23 Q. Pretty easy to read, wasn't it? 24 A. Correct. 25 Q. But these other people that you've mentioned, 94 1 and I wrote them down, Lucas, did you read Mr. Lucas's entire 2 trial testimony? 3 A. I did not. I read all his depositions. 4 Q. Did you read Mr. Griffin's entire trial 5 testimony? 6 A. No. No. 7 Q. Did you read Mr. Metten's entire trial 8 testimony? 9 A. No. 10 Q. Mr. Metten didn't testify 30 minutes. 11 A. I can't remember how long these were. There 12 were some that were short and some much longer. 13 Q. Did you read Mr. Bryan's entire trial testimony? 14 A. No. I think the only ones I read were 15 Ms. Brenda Camp Wesbecker -- Brenda Wesbecker Camp and most of 16 Mr. Frazier's. 17 Q. Not all of Mr. Frazier's? 18 A. I don't think I did. 19 Q. How about Mr. Sanders? You mentioned Mr. 20 Sanders. Did you read all of his testimony? 21 A. No. 22 Q. How about Mr. Scherer, did you read all of his 23 testimony? 24 A. No. 25 Q. Now, did you actually get the testimony bound in 95 1 books? Do you have a copy of any of the court transcript? 2 We're getting daily copy here. Did you get actually the bound 3 testimony? 4 A. Well, the copies I had were not bound, but I had 5 the testimony in the kind where it appears four pages on one 6 page. I had the exact testimony and I had all of it. 7 Q. All right. Was some of that marked for you to 8 read? 9 A. Some of it was marked. 10 Q. And that was sent to you by Mr. Stopher, wasn't 11 it, or Mr. Freeman or somebody from their office? 12 A. Yes. 13 Q. And they had highlighted the testimony for you 14 to look at, hadn't they? 15 A. Yes. 16 Q. Now, did you read, for instance, Mr. Gosling's 17 testimony, where he said that when Joseph Wesbecker was put on 18 long-term disability that he felt that justice had been done, 19 that he was much happier and that his stress had been 20 relieved, in his opinion? 21 A. I believe I did read that. 22 Q. Why didn't you mention that in your direct 23 testimony then, sir? Wouldn't that be something to consider 24 in determining whether or not this employment was a factor in 25 his actions and whether or not he was relieved or became less 96 1 stressful as a result of leaving the employment? 2 A. That is a factor. It is one among many, and the 3 great preponderance of the testimony went very much in the 4 other direction. 5 Q. Well, you've mentioned only portions of 6 testimony of two, four, six witnesses; right? 7 A. That's right. 8 Q. And only one complete witness, Ms. Camp; right, 9 sir? 10 A. Yes. Yes. 11 Q. Do you understand that there probably have been 12 40 people that have been employed -- maybe 60 people that have 13 been employed by Standard Gravure that have testified here and 14 talked about the circumstances of Joseph Wesbecker? 15 A. I do. 16 Q. But you didn't read those or even have summaries 17 of those? 18 A. No, Mr. Smith, that's not true. I had the 19 actual testimony, not the summaries, of all of these and I 20 have at least gone through them, looking at them in a direct 21 testimony. I certainly didn't want to go through every single 22 thing, and there are others that headed in the same direction 23 that I did talk about that I didn't take the time to go 24 through. 25 Q. But what you've mentioned on your direct 97 1 examination was stuff that had been highlighted by 2 Mr. Stopher's office? 3 A. In general. 4 Q. Did you read the testimony of the plaintiffs? 5 A. Of whom? 6 Q. The plaintiffs in this case. We've had probably 7 10 or 12 plaintiffs who have testified in this case. 8 A. I don't think so. Actually, one of the men was 9 -- one of the men I believe that was wounded, that I read, and 10 I may have read others. 11 Q. Well, did you read those portions of the 12 testimony or was that portion of the testimony highlighted 13 where these witnesses talked about the distorted appearance on 14 Mr. Wesbecker's face when this occurred, the way he was 15 looking through people, did you read that testimony? 16 A. I didn't see much of that. There was some 17 testimony highlighted for me that I didn't report on of people 18 seeing him in a different way, that he was not looking 19 particularly agitated, that he was walking calmly with his 20 gun. 21 Q. Mr. Stopher highlighted testimony that he was 22 walking calmly with his gun; is that right, sir? 23 A. I saw that but didn't think that that was 24 relevant to the conclusion of this matter, where he committed 25 all these crimes. 98 1 Q. Wouldn't you be interested, sir, in knowing what 2 the perceptions of the people that saw him that morning were 3 as to his appearance? 4 A. Well, Mr. Smith, given the ten-year history or 5 nearly ten-year history, nine-year history of the progression 6 of his disorder that I described, I think his appearance at 7 that moment is not particularly important. I think what is 8 important is that his disorder took over and led to this 9 event. 10 Q. You don't feel it's important how he appeared to 11 people observing him as this is occurring, sir? 12 A. Obviously the jury will make decisions about 13 that. You know, there's testimony that I didn't choose to 14 give about people who saw him as being calm, and I certainly 15 know that there's testimony about people who saw him red-faced 16 and as though he had been running, and that may have been 17 exactly true. 18 Q. Did you get -- did you read those portions of 19 Ms. Angela Bowman, for instance, that said his face was so 20 distorted it appeared he had a sock over his face? 21 A. Appeared he had what? I couldn't hear you, sir. 22 Q. A sock. A piece of hose. 23 A. Yes. A nylon hose. 24 Q. Did you read that? 25 A. I did not. 99 1 Q. Did you read the accounts of the men that were 2 sitting in the pressroom that saw his appearance as he walked 3 in? 4 A. No. 5 Q. You didn't feel what he looked like as he was 6 doing this act was important to you? 7 A. Mr. Smith, in the weight of things, it certainly 8 does not weigh as heavily as a careful understanding of the 9 progression of this man's illness. There may be some who will 10 make a lot of it, but I did not think at that point that 11 whether he looked calm or excited or frightened or angry... 12 He was killing people, right, left and center. 13 Q. Malignant depressive disorder; right, sir? 14 A. Yes, sir. 15 Q. Have there been any reports of individuals who 16 have had malignant depressive disorder becoming mass killers? 17 A. I don't know that that term in particular has 18 been applied. 19 Q. Has the term malignant depressive disorder been 20 applied to anyone that you know of that has committed a 21 horribly violent act? 22 A. I don't specifically, no. 23 Q. Depressed individuals are normally not 24 individuals that commit violent acts; is that correct, 25 Doctor Greist? 100 1 A. No. I don't think that's correct. Fifteen 2 percent of them kill themselves. That's a violent act. 3 That's a big proportion. 4 Q. Then let's talk about outward-directed violence, 5 intentional injury, homicide toward others. Depressed 6 individuals are normally not individuals that you as a 7 psychiatrist commonly see as individuals who go out and commit 8 violent criminal acts against their fellowman; correct, sir? 9 A. Depressed people don't go out and kill people 10 frequently, but they are, I expect, more likely to do that 11 than people who are not depressed. They kill a spouse and 12 then they kill themselves, the murder/suicide. Most of those 13 people, not all of them, are depressed at the time they do it. 14 Some are just angry and don't want to face the consequences of 15 what they've done in killing someone else. 16 Q. Do you know of any studies, Doctor Greist, that 17 have been done where it's been examined by going into prisons 18 or something of that nature, to analyze whether or not those 19 perpetrators of violent acts who have been incarcerated were 20 indeed suffering from malignant depressive disorder when they 21 committed this violent act? 22 A. I don't. 23 Q. Would that be significant, sir? 24 A. In what way? 25 Q. In support of your opinion that you're rendering 101 1 here today. 2 A. I'm basing my opinion not on something that I 3 don't know about, but on what I do know a lot about, which is 4 the clinical experience I've had and the studies that I've 5 made in the past of suicide and lots of other things but -- 6 Q. Okay. Have you treated individuals with 7 malignant depressive disorders who have gone out and committed 8 violent, hostile acts against other individuals? 9 A. No, sir. 10 Q. You've never treated a depressed individual 11 who's committed a violent, hostile act against another? 12 A. Not as far as I know. 13 Q. And yet it's your opinion that the only cause of 14 Mr. Wesbecker's conduct on September 14th, 1989, was by virtue 15 of his mental condition, his disorder you characterize as 16 malignant depressive disorder; is that right, sir? 17 A. That is my opinion. 18 Q. But you've never seen a case where an individual 19 with that diagnosis committed a violent act against another 20 human being; right, sir? 21 A. Not seen one in person. 22 Q. There is no literature that describes those 23 individuals as being at higher risk to commit violent acts 24 against other individuals, is there, sir? 25 A. I don't know the answer. I don't know there is, 102 1 I don't know there isn't. 2 Q. Did you not look for some literature to support 3 your opinion in that connection, sir? 4 A. I did not look for that literature. 5 Q. As I understand it, Prozac, fluoxetine 6 hydrochloride, is a drug that's a psychoactive drug that can 7 cause changes in behavior in humans; isn't that right, sir? 8 A. Yes. 9 Q. Prozac, fluoxetine hydrochloride, works directly 10 on serotonin, does it not? 11 A. That's correct. 12 Q. But it doesn't act exclusively on serotonin in 13 its effects, does it, sir? 14 A. Well, if I could explain just a little, its only 15 main effect is on serotonin. It inhibits the reuptake, that's 16 why it's called a reuptake inhibitor. 17 Q. We've heard that ad nauseum here. 18 A. I'm sorry. 19 Q. I didn't mean to cut you off and I didn't mean 20 to be denigrating in that. I'm just saying we understand how 21 it works in that, in that it's selective. But you're of the 22 opinion that Prozac causes a cascade effect on other 23 neurotransmitters, aren't you? 24 A. I am. 25 Q. In fact, you agree with Doctor Peter Breggin in 103 1 that opinion, don't you? 2 A. I agree with Doctor Peter Breggin if he holds 3 that opinion, and I agree with I think the entire scientific 4 community in that opinion. 5 Q. If somebody expressed the opinion that Prozac 6 didn't affect other neurotransmitters, that would be 7 incorrect, wouldn't it? 8 A. I'd want to be very careful in making sure that 9 we're saying the effect of Prozac is on serotonin reuptake. 10 Q. We know that. 11 A. Once the serotonin levels have changed, that 12 that does cause a cascade of effects across other 13 neurotransmitters. 14 Q. Okay. 15 A. But it's the serotonin level change that is 16 causing these other changes; Prozac is not causing them 17 directly. 18 Q. Prozac directly causes, though, serotonin 19 changes, doesn't it? 20 A. Yes. 21 Q. And by virtue of it directly causing changes in 22 serotonin, that causes changes in other neurotransmitters, 23 doesn't it? 24 A. Yes. 25 Q. That's what you've described as this cascade 104 1 effect; right, sir? 2 A. Yes. 3 Q. So, behavior that's governed by other 4 neurotransmitters may be indirectly affected by the 5 administration of Prozac; right, sir? 6 A. That is correct. 7 Q. You've seen that in your experience, in fact, or 8 read that in the literature? 9 A. Well, the -- if I may, the difficulty with this 10 is that we don't know exactly what the effects are on other 11 neurotransmitters. So when you say I see it, I hypothesize 12 that it's happening, but I can't be sure that that's directly 13 what's causing it. 14 Q. But you think that's a reasonable hypothesis 15 held by the medical community in general? 16 A. Yes, I do. 17 Q. That indirectly, by affecting serotonin, Prozac 18 affects other neurotransmitters in a cascade-type effect? 19 A. Yes, cascade will be my word, but something akin 20 to that I think others would use to describe the phenomenon. 21 Q. And you read Doctor Peter Breggin's deposition 22 testimony concerning his opinion on that and you agreed with 23 him on that opinion; is that right, sir? 24 A. I do -- I'm sorry. I keep interrupting you. I 25 do agree with him on that opinion. 105 1 Q. Did you testify that Prozac does not cause 2 violent-aggressive behavior in humans? 3 A. I think there's no credible evidence that it 4 does, yes. 5 Q. Well, haven't you, and didn't you in fact 6 testify in your deposition, sir, that Prozac does in fact 7 cause violent-aggressive behavior in humans? 8 A. I'd like to have the exact wording. 9 Q. Okay. Do you have your deposition? 10 A. I don't. I'm sorry. 11 Q. I was trying to avoid having to come over and 12 scream in your ear, but I'll try not to. 13 A. That's all right. 14 Q. I'm going to put my notes right here, but don't 15 you look at my notes. 16 A. I can't see them without my glasses anyway. 17 Q. Put your glasses on because I want you to look 18 at this. This is your deposition that I took in your -- in 19 Mr. Stopher's office on September 20th, 1994. You remember 20 that, do you not? 21 A. I do. Yes. 22 Q. This was shortly before the trial started; 23 right? 24 A. I think it started end of September, yes. 25 Q. And you had flown down here to give your 106 1 deposition? 2 A. That's correct. 3 Q. And I was already here preparing for trial and I 4 took your deposition; right? 5 A. Yes, sir. 6 Q. On Page 90, beginning at Line 1, I asked you: 7 "Is it your opinion that Prozac can cause violent-aggressive 8 behavior in some individuals." Your answer was yes. 9 A. Yes. 10 Q. I then asked you: "And why is that? What about 11 this medication would cause somebody to become violent and 12 aggressive?" 13 Your answer was: "Probably their underlying 14 disorder, which in some way that we don't understand, Prozac, 15 in those cases where it would occur, interacts with their 16 neurochemistry and their disorder to produce a violent 17 behavior." Correct, sir? 18 A. Yes. 19 Q. I wasn't sure about that, so I questioned you 20 further. I said, "Let me see if I understand this. That in 21 those individuals who have become violent or aggressive as a 22 result of ingestion of Prozac, your opinion is that these 23 individuals have become violent or aggressive while on Prozac 24 because Prozac interacts with their neurochemistry and 25 disorder -- underlying disorder to produce violent behavior in 107 1 that particular individual; is that right?" And your answer 2 was yes. 3 A. Yes. 4 Q. I went on to say, obviously -- my question was: 5 "Obviously in those instances, Prozac is causing this reaction 6 by virtue of its neurochemical action; is that right?" 7 Your answer was: "Yes, if we -- in the case 8 where we conclude that it's the Prozac that did it, yes. 9 "Question: Yes. 10 "Answer: Correct." 11 Then I asked you very specifically, I said, 12 "Question: By virtue of" -- look here. 13 A. I'm sorry. I have been watching up until now. 14 I'm sorry. 15 Q. I asked you specifically, "By virtue of its 16 serotonin specific reuptake inhibiting property or direct or 17 indirect result of this inhibition of serotonin?" 18 Your answer was: "Correct." Is that right? 19 A. Yes, sir. Yes. You sure read it right. 20 Q. Now, are you changing your opinion, Doctor 21 Greist, or is that still your opinion? 22 A. It's still my opinion, but I sure need to 23 explain it to you because I don't think you understood it. 24 Q. Well, I understood it well enough to get down 25 into neurochemistry with you, didn't I, and talk about that it 108 1 was producing this violent-aggressive behavior by virtue of 2 its specific serotonin reuptake inhibiting property, didn't I? 3 A. Yeah. But what you didn't understand is that 4 it's absolutely impossible for a scientist to prove the 5 negative, and, you know, I can't absolutely say that it's 6 impossible for Prozac to cause suicidal/homicidal ideation or 7 suicide or homicide. 8 Q. But that's not what I was asking you, Doctor 9 Greist. 10 A. May I finish, sir? 11 Q. I wasn't asking you about whether it was 12 possible. 13 JUDGE POTTER: Mr. Smith, let him finish. 14 Go ahead, Doctor. 15 A. It's in the same vein as I can't tell you 16 scientifically that it's absolutely impossible that the sun 17 will come up tomorrow, but what I can testify to and what I 18 have testified to as a physician to a reasonable degree of 19 medical certainty is that there's no credible evidence that 20 Prozac causes suicide or homicidal ideas, that it causes 21 suicide or homicide, and specifically I testified that Prozac 22 had nothing to do with what Mr. Wesbecker did on September the 23 14th of '89. That terrible depression that he had is what 24 caused him to do that. 25 Q. But I didn't ask you -- again, I go through it 109 1 again, Doctor Greist. I didn't ask you whether it was 2 possible or impossible or whether or not you could prove a 3 negative. I asked you a straightforward question. I said, 4 "Is it your opinion that Prozac can cause violent-aggressive 5 behavior in some individuals?" Your answer was yes, wasn't 6 it? 7 A. It's possible. 8 Q. You didn't say yes, it's possible. You said 9 yes. 10 A. Well, that's certainly what I meant and that's 11 what I'm trying to clear up with you now because you didn't 12 understand it. 13 Q. Well, see, if it had just been left at that, 14 Doctor Greist, you know, I think maybe we could draw that 15 maybe you didn't fully explain it, but we went on for a page. 16 After you said yes, I asked you why it was, what about this 17 medication would cause somebody to become violent and 18 aggressive, didn't I? 19 A. In those where you hypothesize, theorize this 20 might happen, "It would probably be their underlying disorder, 21 which in some way that we don't understand, Prozac, in those 22 cases where it would occur, interacts with their 23 neurochemistry and their disorder to produce violent 24 behavior." But we're talking, in my opinion, about 25 possibilities, theories, hypotheses. There's no credible 110 1 evidence that's true. 2 Q. You said here the word is, "Probably their 3 underlying disorder, which in some way that we don't 4 understand, Prozac, in those cases where it would occur, 5 interacts with their neurochemistry and their disorder to 6 produce a violent behavior." Right, sir? The word you used 7 was probably, was it not? 8 A. Yes. When you hypothesize a possibility, then 9 you can speculate, anybody can, that probably this is true. 10 Q. I didn't hypothesize squat, Doctor Greist. I 11 said clearly here -- isn't it clear to you what I said? "Is 12 it your opinion that Prozac can cause violent-aggressive 13 behavior in some individuals." Your answer was simply yes, 14 wasn't it? 15 A. Yes, Mr. Smith. The answer I've given is the 16 best that I can. 17 Q. Well, are you changing your opinion, are you 18 backing off your opinion or what? 19 A. I'm not changing my opinion. I hope I've 20 explained it as fully as to help the jury understand. 21 Q. Did you discuss this portion of your deposition 22 testimony with Mr. Stopher or any of the lawyers with Lilly? 23 A. I did. 24 Q. After you gave your deposition, you and the 25 Lilly lawyers discussed these specific questions and answers I 111 1 asked you in your deposition, didn't you? 2 A. That's correct. And a whole bunch more of them, 3 among many. 4 Q. Is it not correct, Doctor Greist, that you've 5 expressed the opinion -- the opinion in your deposition that 6 on September 14th, 1989, Prozac was having a physiological 7 effect on Joseph Wesbecker when he committed this act? 8 A. Yes. That's true. 9 Q. And that it was in his blood and his brain? 10 A. That's true. 11 Q. And that Prozac at the time was chemically 12 interfering with the reuptake of serotonin in his brain? 13 A. That's correct. 14 Q. Are you still of that opinion? 15 A. I am. 16 Q. Now, there's been some dispute among the 17 scientists that have appeared here, Doctor Greist, but is it 18 your opinion that Prozac is in fact an activating and 19 stimulating medication in some individuals? 20 A. It can have activation effects. I want to be 21 careful and not say that, you know, it's activating medication 22 or certainly it's not a stimulant in the class of stimulants 23 but, yes, patients can get activated, they can get edgy, they 24 can get restless, they feel like they're wired, like they have 25 too much caffeine, they can have tremors, they can have 112 1 insomnia, and I've seen all of those. 2 Q. And you did describe this I think even in your 3 direct testimony as an activating and stimulating property of 4 this medication? 5 A. That's correct. 6 Q. Is that right, sir? 7 A. Yes. Uh-huh. That's right. 8 Q. And I think you theorized that it is activating 9 and stimulating in some individuals by virtue of its specific 10 serotonin reuptake inhibiting properties; is that right, sir? 11 A. Well, that's certainly what starts the process. 12 I don't know that we know exactly what causes it in those few 13 individuals who have it. It might be something related to 14 other neurotransmitters changing, as well. 15 Q. But it would be by virtue of other 16 neurotransmitters changing by virtue of the effect that Prozac 17 has had on the serotonin levels; correct, sir? 18 A. That's correct. 19 Q. Now, you do agree, sir, that you cannot 20 determine what an individual's serotonin level is when a 21 patient comes in to you and says, "I'm depressed, I want 22 Prozac"? 23 A. You can get some indirect measures but they are 24 not clinically useful. 25 Q. You can't know what the serotonin level is at 113 1 the synaptic cleft? 2 A. That's correct. They're very indirect if you 3 get any indication. 4 Q. And there's no test that's done by you or other 5 psychiatrists in connection with ascertaining what we might 6 call a baseline serotonin level, is there? 7 A. Well, just to be specific and complete, 8 sometimes in studies, not in routine clinical practice, we do 9 get cerebrospinal fluid and that's way down here, and look at 10 the serotonin levels or the metabolite levels. And it's very 11 indirect, but it provides a preliminary or a crude indication 12 of what's going on in the brain. And, as I say, it's not 13 something we do clinically in any way, so I think I'm agreeing 14 with you. 15 Q. Are you making these serotonin level tests in 16 your Lilly clinical trials now? 17 A. Cerebrospinal fluid? 18 Q. Yes. 19 A. No, we're not. 20 Q. Have you done that -- has Lilly asked you to do 21 that in any of the trials that you conducted for them? 22 A. No. 23 Q. Now, I want to get back with you to this 24 activating-stimulating propensity of the drug; all right? 25 A. Fine. 114 1 Q. It's my understanding that this constellation of 2 activating-stimulating side effects that you see in your 3 practice is nervousness, anxiety, irritability, tremors and 4 insomnia; right, sir? 5 A. Yes. 6 Q. Those are, in fact, Doctor Greist, symptoms or 7 effects that you see from amphetamines, also, aren't they? 8 A. They can occur with amphetamines. 9 Q. Do you remember when we took your deposition, 10 Doctor Greist, that we had the issue of whether or not Prozac 11 was activating or sedating? Remember? 12 A. I do. 13 Q. And we just did us a little mathematical 14 exercise, and if you look at Exhibit 411. 15 A. I have lost mine. I had it here. 16 MR. McGOLDRICK: Oh, 411, the PDR? 17 A. Yes. I'm sorry. I did have it, I don't know 18 where it's gone. Oh, thank you. Sorry. 19 Q. And I'm not sure really whether we were doing 20 this with the PDR that was in effect that's Exhibit 411 or we 21 were doing it with a more recent PDR. It was a PDR that we 22 had in your deposition; right? 23 A. I think it was actually a package insert, but 24 it's the same data. 25 Q. Exact same data. What I asked you to do in this 115 1 little exercise was, I said, "Doctor Greist, why don't you 2 take the chart and add up on the chart as was reported in the 3 Lilly clinical trials and determine what percentage of 4 stimulating side effects there were that were reported in this 5 and what percentage were sedating." Right, sir? 6 A. Yes. That's what we did. 7 Q. And after you did that, you came up -- after you 8 add up all the stimulating side effects, it was 46 percent, 9 wasn't it? 10 A. That's right. 11 Q. And when you added the sedating side effects it 12 was 17.7 percent, wasn't it? 13 A. I don't remember the number, but that sounds 14 right to me. 15 Q. So Prozac is overwhelmingly stimulating versus 16 sedating, isn't it? 17 A. Well, I was surprised by that. As you remember, 18 we got into that exercise because I said I thought they were 19 about equal. So I've gone back and thought about that quite a 20 bit, but at that time that was the conclusion that we came up 21 with; that's right. I agree. 22 Q. It surprised you when you just sat down and 23 added those up? 24 A. That's right. 25 Q. You know what's curious to me, Doctor Greist, is 116 1 three months ago when you gave your deposition you had the 2 package insert but you had never sat down and looked at this 3 chart to say, "I wonder if this drug is activating and 4 stimulating, so what I'll do is I'll do the exercise of 5 comparing those side effects listed in the chart that are 6 sedating versus those that are stimulating." Right? Correct? 7 A. Yeah. And what surprised me was when the result 8 came out that way, because I had done exercises like that with 9 patients in my office and what I've subsequently realized 10 happened then, if you subtract any one of these, anxiety for 11 Prozac was 9.4 percent; for placebo, 5.5, so you've got a 12 difference of roughly 4, 3.9. And then if you look at 13 something like drowsiness, then you've got 11.6 and you 14 subtract the placebo and you end up with 5.3. And the 15 problem, Mr. Smith, that I've realized now is that these are 16 not unduplicated. A patient who is feeling stimulated may 17 report I feel nervous and I feel anxious or I feel nervous and 18 I've got a tremor. So when we just added those up, that was 19 not a proper way to do the exercise. 20 Q. Okay. So really what you're saying is this 21 chart here doesn't really give the physician really good, 22 accurate information about the true side-effect profile of 23 this drug, if you look at the chart? 24 A. No. That wasn't what I was saying. It gives 25 good information. 117 1 Q. Well, that's a reasonable inference, isn't it? 2 A. Well, it gives good information but physicians, 3 including myself, can misinterpret it and I did. But I hadn't 4 when I was sitting down with a patient saying, "Doc, is this 5 going to make me sleepy or is this going to make me where I 6 can't sleep," so you take those insomnia and drowsiness and 7 you subtract those out and you get 6.7 for insomnia and for 8 drowsiness you get 5.3, and that's a small difference. And 9 that's the exercise I've done which led me to say before we 10 did this other exercise that they're virtually equivalent in 11 terms of activation or sedation. 12 Q. So this chart is really not very accurate in 13 telling you what the true profile of the other drug is? 14 A. No. I think it very accurately reports what the 15 differences between Prozac and placebo in these controlled 16 trials. What it didn't make clear to me or I forgot was that 17 these are not unduplicated. A patient can have more than one 18 of these and when they get reported they end up on these 19 lists. 20 Q. Okay. All right. But you had never even done 21 the exercise to make the determination until we took your 22 deposition, had you? 23 A. No. I had done the exercise a number of times 24 with patients comparing specific complaints from this list -- 25 comparing specific complaints that they were worried about or 118 1 side effects they were worried about, and it was always 2 reassuring, which was why when we did the deposition you asked 3 me, and I said I think they're about equal. And then we did 4 this exercise and you're slightly right. The numbers that you 5 gave -- I mean, I remember 46, I didn't remember 17.7, I know 6 it was substantially less. It was less than half as much, for 7 sure. And so I -- the thing we did is exactly as you said. 8 Q. Okay. But you do hold the opinion that Prozac 9 is an activating-stimulating drug? 10 A. It's activating-stimulating. As I said this 11 morning, again, that it can also in some patients, as it shows 12 in the table and as clinically I see people, be sedating, 13 cause them to feel sedated or sleepy. 14 Q. Now, this Precautions section of the package 15 insert doesn't say that Prozac is activating and stimulating, 16 does it? 17 A. Doesn't use those words, but anxiety and 18 nervousness and insomnia are -- doctors understand that. 19 Q. Do they? 20 A. In my opinion, they do. 21 Q. Well, we'll go through it in a minute, but you 22 make a lot of distinction between those as a psychiatrist. 23 A. Okay. We'll go through it in a minute. 24 Q. But under the precautions it doesn't say that 25 Prozac is not a generally sedating antidepressant, does it? 119 1 A. Well, not under the precautions under General 2 there. 3 Q. Is it under Adverse Reactions? 4 A. No. It's not there in that one but it is in 5 other parts there, and it's certainly in this table. 6 Q. Where does it say anywhere in that package 7 insert that Prozac is not generally a sedating antidepressant? 8 A. Not generally a sedating antidepressant? 9 Q. Right. Where is the practitioner given the 10 information that Prozac is not generally a sedating 11 antidepressant? And you've got it right there, look at it. 12 A. Not generally -- it's two negatives. Not 13 generally sedating; I'm having trouble with it. Can you say 14 it again another way? 15 Q. That Prozac is not generally sedating or is not 16 a sedating antidepressant, either way. 17 A. I'm so caught up in the common knowledge that it 18 is generally, as part of that class, less sedating than the 19 tricyclics, though there are some exceptions, the whole 20 Prozac, Zoloft, Paxil, I don't know that they say sedating or 21 causing stimulation activation. 22 Q. Where does it say that it's less sedating than 23 the tricyclics in the package insert? 24 A. Do you want me to read through this and answer 25 that question, sir? I will. 120 1 Q. Well, since it was introduced through you I 2 thought -- and since you said you're familiar with it, I 3 thought you would know. 4 A. I'll give you my clinical knowledge and then if 5 you -- 6 Q. No. We're talking about -- 7 A. All right. 8 Q. You've expressed the opinion that that package 9 insert, that PDR information is adequate to inform the 10 practitioner of the risk and dangers inherent in this drug? 11 A. Yes. 12 Q. Can you tell us that that insert says this drug 13 is not as sedating as is the tricyclic antidepressants on the 14 whole? 15 A. I can't point to that, and I wouldn't expect it 16 to be in there because there are some patients who are sedated 17 by it and doctors know that, need to know that. That's why I 18 said there's gastrointestinal, activation, stimulation and for 19 some sedation because that does happen to people, five 20 percent. 21 Q. It's not there, is it, though, that this -- 22 written in English, that this is a generally sedating -- not a 23 generally sedating antidepressant? 24 A. I think I'm confused, Mr. Smith. And I'm sorry 25 I'm confounded by -- it's so clear in the profession that this 121 1 drug can cause GI, activation, stimulation or sedation. Those 2 are reflected in the PDR, in the table, in the wording that 3 describes the reactions to the drug. 4 Q. It doesn't use activating or stimulating in the 5 entirety of the package insert, does it? 6 A. I agree with that, okay. 7 Q. It doesn't use the word sedating in the entirety 8 of the package insert, does it? 9 A. That's right. I assume you're right. 10 Q. You know -- 11 A. I would have to read it carefully to testify to 12 that, but I'm accepting the truth of what you've said. 13 Q. I would assume you've read it carefully. 14 A. I have read it carefully but if anxiety, 15 insomnia, tremor, nervousness doesn't mean activation, 16 stimulation to clinicians, then we've got a problem. 17 Q. Did Mr. Stopher or any of the Lilly lawyers send 18 you a lot of testimony from Lilly experts that said this is 19 not an activating-stimulating antidepressant? 20 A. Well, it is not, you know, activating 21 stimulating, 10, 15 percent, have these symptoms. In those 22 10, 15 percent I think it's reasonable to say they were 23 activated or stimulated, but as I said just a minute ago, 24 there are tricyclics that cause at least as much protriptyline 25 or Vivactil as this. Is that an activating-stimulating 122 1 antidepressant? I don't think of it that way. 2 Q. But generally the tricyclics don't cause the 3 activation stimulation that Prozac does, do they, Doctor? 4 A. In general, that is true. There is more 5 activation stimulation with Prozac than with most of the 6 tricyclics. 7 Q. This package insert does not advise that 8 benzo -- it talks about the placebo-controlled clinical trials 9 here, doesn't it? 10 A. Which page are you on, sir? Is this the table 11 page? 12 Q. Yeah. 896. 13 A. Thank you. 14 Q. It doesn't say in describing the controlled 15 clinical trial that individuals that participated in the 16 controlled clinical trials were given benzodiazepines to 17 control their agitation, does it? 18 A. It doesn't. And that didn't happen often. It 19 did happen some, but not often. 20 Q. When did you first learn, Doctor Greist, that 21 benzodiazepines were used by Eli Lilly in the Prozac 22 depression trials to control agitation? When did you first 23 learn it? 24 A. I'm not sure. 25 Q. Wasn't it in discussions with Mr. Stopher and 123 1 the Lilly lawyers? 2 A. I don't know. As I know how controlled trials 3 have been done over the last decade since I've been doing 4 them, there's been an evolution. We used more benzodiazepines 5 ten years ago than we do now. I don't know when I learned it 6 specifically. 7 Q. You didn't know it in connection with Prozac at 8 all, did you, till you talked to the Lilly lawyers and they 9 told you that? 10 A. I don't know. It's possible. I don't know. 11 Q. You did talk with the Lilly lawyers about the 12 fact that they used benzodiazepines in the Lilly depression 13 trials, didn't you? 14 A. I can't remember if I did, Mr. Smith. It's 15 certainly possible, but I don't know. 16 Q. As I understand it, in your practice on those 17 patients that are on Prozac, you're seeing this activating- 18 stimulating profile in approximately 20 percent of your 19 patients? 20 A. I think that's fair. Some part of it, at least. 21 Q. And in those patients, in about half of them, 22 you reduced the dosage of Prozac? 23 A. Well, or give them something to help them, tide 24 them over. 25 Q. Let's talk about the reduction in dosage that 124 1 you use in your practice, Doctor Greist. 2 A. All right. Sure. 3 Q. In your practice, when patients on Prozac -- and 4 I believe you said you start them off on 20 milligrams? 5 A. Yes. 6 Q. When they experience this activation stimulating 7 syndrome, you will reduce the dosage? 8 A. Certainly do that sometimes, yes. 9 Q. Below 20 milligrams? 10 A. Certainly do, if it's very bad. 11 Q. What you do is you tell your patients not to 12 take Prozac 20 milligrams every day, but you tell them to take 13 it every other day, every third day or in some people every 14 fourth day; is that correct, sir? 15 A. That's correct. When I think it's appropriate 16 to reduce dose, rather than having them take the 10-milligram 17 formulation I tell them to take it every other day, that would 18 be ten milligrams, or every third day would be six and 19 two-thirds milligrams, or every fourth day would be five 20 milligrams. 21 Q. And in those patients, frankly, Doctor Greist, 22 you have seen that many of them get the same antidepressant 23 effect that Prozac 20 milligrams gets, don't you? 24 A. Don't know that that's true. I know a bunch of 25 them do well. 125 1 Q. You wouldn't do it if you didn't expect them to 2 do well, would you? 3 A. No. That's not true, Mr. Smith. The reason I 4 lower it right after I start them on it and they get 5 activated-stimulated is to tide them over that time until 6 those side effects will fade. And then if they're doing well 7 on 10 milligrams a day, fine, we'll keep them there. But a 8 number of them need to get back up to 20 and they can do it 9 quite well once the side effects have faded. 10 Q. But there's a number of people that don't do 11 well and some people you have to prescribe concomitant 12 sedatives and tranquilizers, don't you? 13 A. Very few people can't go back up on the dose. 14 In fact, that's been one of the interesting things about this 15 class, how high you can go on the dose and people will still 16 tolerate it. It's a very small portion that end up taking a 17 benzodiazepine at all, then it's for a few days, two weeks or 18 so, or get -- I usually give them trazodone because it's a 19 powerful hypnotic to help them if they need to sleep, and 20 usually after two weeks they don't need that anymore. 21 Q. When you give trazodone you give it for sleep, 22 don't you? 23 A. That's correct. 24 Q. You don't give it to control anxiety or 25 agitation; right? 126 1 A. That's correct. It does have a little of that 2 effect, but the main thing I'm giving it to them for is to get 3 them to sleep. 4 Q. Is trazodone Restoril? 5 A. No, trazodone is Desyrel. Yes. It's an 6 antidepressant. 7 Q. And when you prescribe an anti-anxiety agent for 8 daytime anxiety, what do you prescribe? 9 A. It would depend. If someone's had something in 10 the past that they have done well with, of course I would go 11 back to that, but I typically would use either lorazepam, 12 which is called Ativan, or sometimes I use clonazepam, which 13 is called Klonopin. I'm not fixed and rigid about it. There 14 would be a variety of factors that would go into that 15 decision. The benzodiazepines are more similar than they are 16 different. 17 Q. You don't prescribe, though, Restoril for 18 daytime anxiety? 19 A. I wouldn't ordinarily because the patients all 20 think of Restoril as a sleeper, but really it's a fairly short 21 half-life benzodiazepine. But you could prescribe Restoril in 22 very small doses for daytime, but it just doesn't make sense. 23 And the patients would say, "Why are you giving me this 24 sleeper during the daytime," and you've got to go through 25 explaining it. 127 1 Q. You think Prozac was appropriate for Joseph 2 Wesbecker? 3 A. I do. 4 Q. Do you think Prozac is appropriate for 5 individuals who are bipolar? 6 A. I certainly use it in a lot of them. 7 Q. Do you think Prozac is appropriate in 8 individuals suffering from schizoaffective disorder? 9 A. I do use it -- yes, I do. 10 Q. So you don't have any criticism of Joseph 11 Wesbecker getting Prozac or in Doctor Coleman and his care of 12 Joseph Wesbecker? 13 A. That's correct. I don't. 14 Q. Is agitation something that can lead to greater 15 degrees of hostility or violent behavior? 16 A. It can. I think we need to explore or describe 17 more what we're talking about. 18 Q. Okay. If an individual is agitated, they are 19 more likely to become angry? 20 A. Well, I mean, I'd wonder if somebody came in 21 here very agitated if they were angry or were they anxious and 22 what was going on. 23 Q. I'm talking about generally. 24 A. I'm talking about generally, too, if somebody is 25 agitated you wonder, you know, is this person dangerous or 128 1 just in distress. Dangerous may be a little strong, but, you 2 know, what's up. 3 Q. If a person is agitated they're in a state that 4 needs to be examined, are they not, for further consequences? 5 A. Yes. By -- in a general sense, yes. 6 Q. So if benzodiazepines were being given to 7 control agitation in the Prozac clinical trials, it would be a 8 situation where you would limit other displays beyond 9 agitation? Am I making myself clear? 10 A. I think I understand what you're saying. If the 11 target symptom were agitation and you gave a benzodiazepine, 12 that might keep agitation from becoming anger or hostility or 13 violence. 14 Q. Okay. So if you control the agitation you're 15 going to, potentially, less likely see anger, hostility or 16 violence; is that what you're saying? 17 A. Assuming that the individual follows that 18 progression. We know that benzodiazepines can disinhibit 19 people. It's a paradoxical reaction. We don't see it often, 20 thankfully, but we know about it in which people, given it to 21 sedate them, actually become more aroused and stimulated. 22 Q. That's what you call the paradoxical reaction, 23 which means it's the opposite reaction that is generally 24 expected; correct, sir? 25 A. That's correct. You see it in roughly five 129 1 percent of the times you use benzodiazepines. 2 Q. You have expressed that if an individual is 3 irritable he's likely to be angry; is that right? 4 A. Irritability can lead to anger, it sure can. 5 Yeah. 6 Q. If an individual is angry, it can lead to or an 7 individual can likely be hostile? 8 A. Anger -- people who are angry are more likely to 9 be hostile than those who aren't angry. 10 Q. If an individual is hostile they're more likely 11 to become aggressive toward another? 12 A. I think that that's a general observation that's 13 correct. 14 Q. If an individual is aggressive they're more 15 likely to become violent; correct, sir? 16 A. Physically aggressive; verbally aggressive? I 17 think physically aggressive, yeah, probably that's true. 18 Verbally, lawyers do that all the time. I hope they don't. 19 Q. Is it correct, Doctor Greist, that predictors of 20 violence are almost worthless? 21 A. It's close to correct. It's a tough, very tough 22 prediction problem. 23 Q. When you're predicting an individual -- that an 24 individual might become violent, you're seldom right; correct, 25 sir? 130 1 A. We overpredict violence. We have what we call 2 false positives, and that's true of violence to themselves and 3 also probably violence to others, yes. 4 Q. In that, you could add up a lot of risk factors, 5 say, this person meets every risk factor for violence, 6 correct, and then have a situation where the possibility of 7 that person being violent is relatively small? 8 A. That's correct. 9 Q. So if anybody is going to come in and predict 10 violence, they're going to be confronted with a high 11 false-positive factor? 12 A. That's right. They're going to predict a whole 13 bunch of people as having that who don't actually end up doing 14 it. I know more about suicide than I do violence to others, 15 where the data are clearer in suicide. 16 Q. The data is clearer on suicide, but it's still 17 tough to predict a particular suicide for a particular 18 individual? 19 A. That is correct. 20 Q. Now, to be clear, I think it's implicit in what 21 you've said, Joseph Wesbecker was not a sociopath, was he? 22 A. No, not in the sense of the word that we usually 23 give it. He worked, he took care of his family, he had good 24 values in many directions. The acts he did were antisocial, 25 for sure. 131 1 Q. Certainly. But as far as him fitting into that 2 category of an individual who's a sociopath, who has no 3 regard, generally speaking, for the law or for the rights of 4 others, he doesn't fit that category, does he? 5 A. No, not in general. Certainly what he did on 6 the 14th showed a flagrant disregard for the rights of others, 7 their lives. 8 Q. Absolutely. But up to that point, he had 9 apparently been, generally speaking, a law-abiding citizen? 10 A. I think that's true. 11 Q. He had been an individual who the day before 12 this occurred was interested in the welfare of his son Jimmy? 13 A. Yes. 14 Q. He was an individual who was making a 15 reconciliation with Kevin to some extent? 16 A. Yes. 17 Q. An individual who had been in outs with -- are 18 you all right? 19 A. No. I just -- something. I'm getting feedback 20 here, I thought. I don't know what I'm doing. 21 Q. You grimaced. 22 MS. ZETTLER: Pull the brown microphone away 23 from the other one. 24 A. Pull this one away? Is it all right if I set 25 this one up here? 132 1 Q. He was an individual who was making some 2 reconciliation with Kevin during the last few months of his 3 life? 4 A. Yes. That's my understanding. 5 Q. Did you read those portions of Brenda's 6 testimony where she said he was a good individual even up to 7 September 14th, 1989? 8 A. I did. 9 Q. And did he give her throughout the years 10 support? 11 A. Yes, he had. Financial and emotional and -- 12 yes. 13 Q. Did you read those portions of Mr. Lucas's 14 deposition where he advised that Mr. Wesbecker had come over 15 in those last days after he had been to change the tires on 16 his stepdaughter's automobile? 17 A. Yes. 18 Q. Now, his stepdaughter was Melissa? 19 A. That's correct. 20 Q. Who apparently he had not been involved with for 21 five years; right? 22 A. That's right. 23 Q. But he had her automobile and was getting her 24 tires changed, wasn't he? 25 A. That's correct. 133 1 Q. That doesn't really fit with some of the stuff 2 that Mr. Stopher had underlined for you, does it? 3 A. Well, I did read all of Mr. Lucas's depositions, 4 which is what you said, and it's quite clear not only from his 5 but more from Brenda's, it just didn't fit together with him 6 not talking to her for five years, and that's Brenda's clear 7 testimony. 8 Q. Well, I don't know that there's any dispute 9 about that, other than the fact that obviously he must not 10 have harbored, you know, just an unfathomable ill will toward 11 the lady if he was getting her tires replaced shortly before 12 this happened. 13 A. No. I agree with that. There are acts of 14 kindness that he did toward those he cared about. 15 Q. Did you also, in connection with Brenda's 16 testimony, get clear the fact that he didn't transfer the 17 house to Brenda because he was afraid of ending up in a mental 18 institution, but he transferred the house on Nottoway Circle 19 to Brenda because she had felt that she was owed money for the 20 household bills that she had paid for a period of time, and 21 that she had suggested selling the house and paying her 22 something like $15,000, but instead what he did was just deed 23 over the entire house to her? 24 A. I thought there were two factors; one of them 25 being Brenda wanting to get a stake so that she could get a 134 1 house and suggesting selling the house. Mr. Wesbecker 2 thinking that if in fact it was in his estate after he died, 3 he knew, I think he said three or four people would squabble 4 about it. So he gave her the house in appreciation for what 5 she had been to him and for him, it was my understanding, over 6 the years, and he wanted to avoid this fight after his death. 7 Q. Well, this was in I believe November, and I may 8 be wrong, of '88 when the house transfer was? 9 A. Yes, sir. That's right. September, I believe, 10 sir. 11 Q. That was almost over a year before this 12 occurred; correct, sir? 13 A. It was either the 10th or the 27th, I don't 14 remember. One day he did his cremation and the other day he 15 did the house deed. I don't remember which was which. 16 Q. In connection -- so there's no evidence that 17 Mr. Wesbecker transferred his house to Brenda because he 18 thought he was fixing to die or had a plan to commit suicide, 19 is there? 20 A. I think there's a lot of evidence that he was 21 doing that. 22 Q. Well, Brenda testified otherwise, though, didn't 23 she, that the reason he did it was that she was insisting that 24 he sell the house and give her some money? 25 A. Brenda was not privy to Mr. Wesbecker's plans, 135 1 didn't know about his guns. There were a lot of things that 2 he was not telling her because he was afraid she'd turn him 3 in. 4 Q. I understand that. But Brenda's testimony was, 5 was that she had told him she wanted him to sell the house 6 because -- and pay her $15,000 because of the money that she 7 put in the house; right? 8 A. Yes. 9 Q. And that Wesbecker went to a lawyer's office and 10 deeded the entire house over to her to satisfy her interest in 11 getting some financial stake in that house by virtue of her 12 expenditures to date; right? 13 A. That's right. But as important as money was to 14 Mr. Wesbecker, if he were planning to go on in life, he would 15 have settled the $15,000 with her one way or another and kept 16 the rest for himself or given it to someone else. I do view 17 that as an act of appreciation to Brenda for the things that 18 she had done for him, and I think it was in anticipation of 19 his death. 20 Q. That's your opinion? 21 A. That's correct. 22 Q. Brenda Wesbecker, though, you read her testimony 23 as to why the transaction occurred? 24 A. I did. I did. 25 Q. Did you read the testimony of the funeral 136 1 director that made plans for the prearrangements? 2 A. I read his deposition before and I did not read 3 his testimony here at trial. 4 Q. That wasn't provided to you? 5 A. Oh, it was. 6 Q. It wasn't outlined, underlined? 7 A. Mr. Smith, it wasn't that. I had masses of 8 material to read, and I thought since I had read his 9 deposition fully that probably that matter wasn't going to 10 change much. And now that you mention it, I think I did read 11 his trial testimony, too. 12 Q. His trial testimony was, at least in part, that 13 Mr. Wesbecker -- or that it's common for individuals to make 14 prearrangements for their funerals to lock in the price of the 15 funeral and to take care of these arrangements where there's 16 no grief or sensitivity where people theoretically can make a 17 better economic decision concerning their affairs; correct, 18 sir? 19 A. Yes. 20 Q. You remember that now? 21 A. I do. Also that he seemed nervous. So I did 22 read that. 23 Q. Do I understand it that you're not of the 24 opinion that Joseph Wesbecker should have been by Doctor 25 Coleman involuntarily committed to the hospital? 137 1 A. "Should" doesn't enter into it. I didn't think 2 there were -- as I practice in Wisconsin and as I know about 3 the statutes in other places, I don't think he could have been 4 committed, given the data that Doctor Coleman had. So I think 5 if he would have tried to institute a proceeding for civil 6 commitment, that it would have failed. I don't think it would 7 have done any good and I think it would have interfered with 8 the relationship that Doctor Coleman had with Mr. Wesbecker. 9 Q. I asked you the question do you have a -- on 10 Page 36, Line 21, "Do you have an opinion whether or not there 11 should have been some type of involuntary commitment of Joseph 12 Wesbecker on September 11th, 1989?" You said you had an 13 opinion, and I asked you what is that opinion and you said, 14 no, that there should not have been some type of commitment 15 proceeding? 16 A. There were not grounds for it, as I understand 17 civil commitment procedures. 18 Q. And as you look at the medical records? 19 A. That's correct. 20 MR. SMITH: Your Honor, it's 12:30. This is 21 sort of a breaking place. 22 JUDGE POTTER: But not the end? 23 MR. SMITH: But not the end. 24 JUDGE POTTER: Ladies and gentlemen, I'll take 25 the lunch recess at this time. As I've mentioned to you-all 138 1 before, do not permit anybody to talk to you about this case; 2 do not discuss it among yourselves, do not form or express 3 opinions about it. We'll stand in recess till 2:00. 4 (LUNCH RECESS) 5 SHERIFF CECIL: The jury is now entering. All 6 jurors are present. Court is back in session. 7 JUDGE POTTER: Please be seated. Doctor, I'll 8 remind you you're still under oath. 9 DOCTOR GREIST: Thank you. 10 JUDGE POTTER: Mr. Smith. 11 Q. Doctor Greist, I went back at the lunch hour and 12 looked into the DSM-III-R and -IV, and I could not find the 13 term malignant depressive disorder listed. Is it not in that 14 publication? 15 A. That's correct; it's not. 16 Q. I did not see the term malignant depressive 17 disorder mentioned in any of the Eli Lilly depression clinical 18 trial protocols, either, sir. Have you had an opportunity to 19 review those? 20 A. I certainly haven't reviewed all the Eli Lilly 21 clinical trial protocols, but I would not expect to find the 22 term there. 23 Q. Malignant depressive disorder you would not 24 expect to see in the Lilly protocol? 25 A. That's correct. 139 1 Q. When you gave your deposition, I believe that 2 you testified that Mr. Wesbecker was depressed and had 3 longstanding elements of mood disorder and what was variously 4 characterized as schizoid tendencies, paranoid ideation, way, 5 way back; is that right? 6 A. Yes. 7 Q. Is that still consistent with your diagnosis of 8 malignant depressive disorder, sir? 9 A. Yes. He had those described in the 10 psychological testing of Doctor Leventhal back in '84, for 11 example; that's what I meant by way back. It's consistent 12 with the diagnosis of malignant depression; yes, sir. 13 Q. All right. As I understand it, did you testify 14 this morning that in your opinion Mr. Wesbecker was normal and 15 healthy up to 1980? 16 A. Well, yes, basically that's a good point at 17 which to begin his depressive episodes. I expect as his 18 marriage was giving him difficulty or he was having difficulty 19 in the marriage, late '70s, he was certainly feeling 20 distressed but it came to clinical attention in May of '80, so 21 that was the point at which I think it starts. 22 Q. But you have had documents sent to you by 23 Mr. Stopher and other Lilly lawyers describing Mr. Wesbecker's 24 childhood and the circumstances and how he grew up and things 25 of that nature? 140 1 A. Yes. I read a large amount of material. 2 Q. But you didn't find that relevant as to 3 Mr. Wesbecker's conduct; what you found relevant is what 4 occurred within the last, say, ten-year span of his life? 5 A. Yes. You know, it's impossible to say that it's 6 not of some relevance. I think his genetic family picture of 7 having had family members on both sides that had psychiatric 8 disorders of some severity is relevant, but even that didn't 9 mean he was going to end up getting depressed or having a 10 malignant course of illness. 11 Q. Apparently you discounted that stuff about 12 his -- as far as rendering an opinion with respect to his 13 mental disorder in September of 1989? 14 A. Let me try to answer it this way, if I may, Mr. 15 Smith. The presence of that family history helps us 16 understand and explain why he got depressed in 1980, but there 17 are individuals without a family history like that who could 18 have gotten depressed in 1980, too. 19 Q. And certainly there are individuals who have 20 even had more horrible, much more horrible family 21 circumstances that get depressed in later years; correct, sir? 22 A. And there are individuals who have family 23 histories worse than his who do not get depressed. 24 Q. That never have any depression or mental illness 25 whatsoever; correct? 141 1 A. Yes, sir. 2 Q. So in this case you can't tie Joseph Wesbecker's 3 background before 1979 as having any causative relation to 4 what occurred on September 14th, 1989, other than some 5 explanation? 6 A. Yeah. That's correct. 7 Q. All right. 8 A. It's -- when people have a family history it is 9 more likely that they will have a disorder, but as we've been 10 through, those who have that family history don't have to have 11 the disorder. Some people that don't have the family history 12 do have the disorder, but it's more likely, given his history. 13 Q. But there's no question in your mind that he had 14 this malignant depressive disorder? 15 A. None. No, sir. 16 Q. And that that is not caused by any particular 17 childhood experience, is it? 18 A. No. That I do feel strongly about. There's no 19 single childhood experience. He had a span of years where 20 things were going in quite reasonable directions as anybody 21 could assess it. Most of the years of his marriage -- first 22 marriage, excuse me, the 17-year first marriage, some point 23 along there it began to get difficult, but I would have 24 trouble picking a specific time. 25 Q. As I understand it, it's your judgment that this 142 1 malignant depressive disorder became severe and there was a 2 deterioration after 1980, including 1987; is that right? 3 A. Yes. His wife dated it -- Brenda, excuse me, 4 his second ex-wife dated it then. He was certainly 5 complaining to Doctor Coleman. He was not responding to the 6 treatments. By August of '88, he was off work. I mean, it's 7 getting worse. 8 Q. Let's look at the records of Doctor Coleman. Do 9 you have a copy of Doctor Coleman's typewritten notes? We 10 have them marked here as Exhibit 160. 11 A. I have Mr. Wesbecker's records so I may very 12 well here. Let me see if I can do that. 13 Q. Tell you what. Why don't I just give you a copy 14 that we've got so we know we're on the same page. 15 A. All right. Fine. Thank you, sir. 16 Q. If we look at the bottom of the first page of 17 Mr. Wesbecker's records from Doctor Coleman, we'll see the 18 September 11th, 1989 notation; correct? 19 A. Yes. Yes. 20 Q. And that notation says, "Patient seems to have 21 deteriorated, tangential thought, weeping in session. 22 Increased level of agitation and anger." Correct, sir? 23 A. Yes. 24 Q. The word deterioration had never been used in 25 Doctor Coleman's medical records at all up until 143 1 September 11th, 1989, had it? 2 A. I've read this several times. I don't remember 3 it. I'm sure you wouldn't be asking me the question if it 4 had, so I don't think it is in there. 5 Q. There is a notation of tangential thought? 6 A. Yes. 7 Q. Is there -- did you see any notations of 8 tangential thought other than maybe on the -- I think there 9 may have been one other notation maybe in the first notation 10 or maybe in these -- maybe it's in the first notation. Do you 11 recall if there had ever been a notation of tangential 12 thought? 13 A. I don't recall. I've just looked at the first 14 notation in the mental status examination and I don't see it 15 there. I don't recall. 16 Q. All right. Weeping in session, correct, is the 17 next notation? 18 A. Back in September 11th of '89, yes. 19 Q. Now, do you know -- it's clear that Mr. 20 Wesbecker is under the influence of Prozac at this time; 21 right? 22 A. He has Prozac in his body and his brain, yes; 23 it's affecting him. 24 Q. And it at this time, as you said in your 25 deposition, inhibited the reuptake of serotonin in his brain? 144 1 A. Yes, it is. 2 Q. And it is at this time having a physiological 3 effect on him? 4 A. Correct. 5 Q. When we say physiological effect, you doctors 6 mean it's acting on his body in a chemical active matter; 7 correct, sir? 8 A. Yes. 9 Q. Weeping in session. Never any notations that he 10 had been weeping before in any sessions, was there? 11 A. None that I have found. 12 Q. It says "increased level of agitation." 13 Correct? 14 A. Yes. 15 Q. There are mentions of agitation in the first 16 office notes; correct? 17 A. Yes. 18 Q. But this refers to increased level of agitation, 19 doesn't it? 20 A. That's right. 21 Q. And there had not been any agitation expressed 22 prior to this, had there? 23 A. I don't specifically recall where the agitation 24 is within this, if there is any. I don't know that there is 25 any, sir. 145 1 Q. The next notation of September 11th is increased 2 level of agitation and anger; correct, sir? 3 A. Yes, sir. 4 Q. No mention of anger, either, in Doctor Coleman's 5 notes, which span from June 1987 -- July '87, over two years; 6 right, sir? 7 A. That I don't think is correct, sir. I think 8 there are some points at which anger was mentioned. 9 Q. All right. Let's go back in time, then. Look 10 at the August 10th notation, 1989, when Mr. Wesbecker was 11 first put on Prozac before he was under the influence of 12 Prozac. Is there any notation of anger in that visit? 13 A. No. 14 Q. How about 6-26-89? 15 A. No. 16 Q. How about 5-31-89, any mention of anger in that 17 notation? 18 A. No. 19 Q. How about March 27th, 1989? 20 A. No. 21 Q. How about February 20th, '89? 22 A. Well, that was just a phone call. No. 23 Q. Was it reported in the phone call of anger? 24 A. There is no mention of anger; correct. 25 Q. How about February 6, '89? 146 1 A. He's mentioning arguments. That's not anger. 2 That's correct. There's no mention of anger. 3 Q. How about January 9th, 1989? Any mention of 4 anger in that notation? 5 A. No. 6 Q. How about December 12th, 1988? We're going back 7 into 1988 now. Any mention of anger on December 12th? 8 A. Let me back up just for a second, Mr. Smith, to 9 January 9. There's no mention of anger but it says, "Quite 10 animated and talkative about problems with lawsuit." And I 11 don't know, Doctor Coleman would have to say whether that was 12 animated in a "Gee, things are going well" way or "I'm really 13 disappointed." I don't know. 14 Q. It's as equally possible that he was animated in 15 talking about the problems with his lawsuit in that it had 16 been resolved in December of 1988? 17 A. It certainly could be. 18 Q. Could have been happy about it at that time; 19 right? 20 A. Yep, or it could have been it wasn't resolved in 21 the way or he didn't get as much as he wanted or hoped for 22 more. I just don't know. I'm sorry. 23 Q. All right. Go back to '88, I think we were on 24 December 12th. See if there was any mention of anger on those 25 notations. 147 1 A. No. I see none. 2 Q. How about November 3rd, 1988? Any mention of 3 anger on those occasions? 4 A. None there, sir. 5 Q. How about the phone call of November 2nd, 1988? 6 A. Nope. 7 Q. How about the office visit of December -- I 8 mean, of October the 19th, 1988, the phone call there? 9 A. No mention of anger. 10 Q. How about the office visit of October 5th, 1988, 11 any mention of anger there? 12 A. No, sir. 13 Q. How about the notation of September 7th, 1988, 14 any mention of anger? 15 A. Yeah. It says, "Focused on anger at work." 16 Q. Okay. So it had been a year since Doctor 17 Coleman had noted any anger in Mr. Wesbecker; correct, sir? 18 A. That he had made a notation in his chart of 19 anger. 20 Q. That's what I said. It had been a year since he 21 had mentioned anything about anger? 22 A. That's correct. 23 Q. Now let's look at that September '88 notation 24 and go back even forward in time and see if there's any other 25 places where anger is mentioned. Any mention in the 148 1 August 10th, 1988 notation of anger? 2 A. No. I see none. 3 Q. How about August -- how about August 8th phone 4 call, any mention of anger there? 5 A. No, sir. 6 Q. How about the phone call of July 21st, 1988, any 7 mention of anger there? 8 A. Wait a minute. We went from August -- did we 9 skip August 8th? I find none in the August 8th, either. 10 There was another we just skipped over. I find no mention of 11 anger there. 12 Q. All right. Let's go to the July 21st, '88 phone 13 call. 14 A. Yes. 15 Q. Any mention of anger there? 16 A. No, sir; I don't see any. 17 Q. Any mention of anger in the June 29, 1988? 18 A. No. 19 Q. How about June 20th phone call? Was he angry at 20 that time, or is there a notation of anger? 21 A. No notation of anger. 22 Q. And June 9th, 1988, there's some mention of 23 irritability at work and home, but there's no mention of anger 24 there, is there? 25 A. That's correct. 149 1 Q. On April 6, 1988, there's no mention of anger, 2 is there? 3 A. That's correct. 4 Q. On June -- I'm sorry. January 24th, 1988, 5 there's no mention of anger, is there? 6 A. Well, he was talking with his attorney; it had 7 nothing to do with Mr. Wesbecker, as far as I can tell. 8 Q. Mr. Wesbecker's attorney didn't tell Doctor 9 Coleman that Mr. Wesbecker was angry, did he, or there's no 10 notation there that he told him that, is there? 11 A. There's no notation there that he talked about 12 that. 13 Q. How about January 6th, 1988, when there was an 14 office visit? 15 A. Excuse me. There's no notation of anger in that 16 note. 17 Q. November 11th, 1987, there's a complaint about 18 anger at work, is there not? 19 A. Yes, there is. One episode. 20 Q. Now we've got before Prozac two notations of 21 anger; right? 22 A. Yes. 23 Q. The last one before he started Prozac was a year 24 before, wasn't it? 25 A. Yes. 150 1 Q. And the other one was nine months before the 2 last one before that; right? 3 A. Yes. September to November; correct. 4 Q. In June of '87, he was fine. No mention of 5 anger; right? 6 A. Well, I don't know if he was -- are you saying 7 fine altogether or fine with regard to anger? 8 Q. Well, it says -- July 29th, 1987 notation says: 9 "Patient states mood more even since back on meds. Things a 10 lot better at work. No side effects of meds." Right? 11 A. It's certainly an improvement over the previous 12 note, but I would not think that Mr. Wesbecker was back to his 13 baseline, his good level. Improved, but not well. 14 Q. If you were Mr. Wesbecker's psychiatrist, if you 15 compare his original office visit, you would be satisfied that 16 the man is making some progress, wouldn't you? 17 A. I would. 18 Q. Not deteriorating at that point, was he? 19 A. That's correct. 20 Q. And, in fact, if you -- that's a lot different 21 from the notation two years later after Mr. Wesbecker gets 22 Prozac and there's this notation of deterioration; right, sir? 23 A. Yes. 24 Q. And then the only other visit is July the 8th, 25 1987, right, which was the initial office visit? 151 1 A. Yes, sir. 2 Q. And the word anger is not used there, but he's 3 expressing some pretty strong feelings about being jerked 4 around at work? 5 A. Yes. Primary stresses, job and employers 6 jerking him around. 7 Q. Of course, he's off work and had been off work 8 for a year when he got the Prozac? 9 A. I'm sorry. Would you say it again, sir? 10 Q. When he gets the Prozac in August of 1989, now 11 we're two years after his initial visit, he's off work, that 12 stressor has been removed; right? 13 A. Creating another kind of stressor but, yes, he's 14 not at the folder being bothered by that. 15 Q. Look at the notation of 8-10-1989. 16 A. Oh, I see it. I'm sorry. Thank you. 17 Q. It says, "Patient relates change of meds no 18 specific benefit. Still has morning lethargy. Trouble 19 initiating sleep and trouble with memory. Talked about 20 whether to accept present level or try something different. 21 Talked about possibility of benefits of Prozac and patient 22 agreeable to trial of this. Most risk-free method seems to be 23 start this and gradually taper trazodone." Correct, sir? 24 A. Yes. 25 Q. If you saw that notation would you make a 152 1 diagnosis of malignant depressive disorder based on that 2 notation? 3 A. I think you'd have to take it in context of the 4 course of this man and know that, for example, he's off work. 5 Does he want to accept the present level or try something 6 different. I think it's very difficult to take this one note 7 out of context and to put a lot of weight on it. 8 Q. All right. Look at the note in front of it, 9 June 26, '89: "Patient's mood seems to have improved but 10 feeling drugged and lethargic. Still complains of memory 11 problem. Explained dilemma of needs for medication to balance 12 moods versus side effects. Can try to increase meds 13 slightly." 14 A. Decrease meds slightly. 15 Q. Decrease meds slightly. 16 A. He was having side effects so that would be 17 the -- yeah. 18 Q. Would you make a diagnosis of malignant 19 depressive disorder based on these two notations? 20 A. I would, given everything else I know, for sure. 21 Q. I'm talking about Doctor Coleman's notes. 22 A. In the abstract his two notes, I think you 23 probably wouldn't make much of a diagnosis. You would want to 24 have a lot more information before you came up with a 25 diagnosis. The diagnosis isn't even here, Mr. Smith; it's 153 1 just talking about management of some sort of disorder. I 2 don't know from these notes whether he's got depression or 3 whether he's got what. Now, if I look at the medications, I 4 can start making some assumptions, but I think you're asking 5 me to assume an awful lot. 6 Q. Okay. Let's look at the records from Doctor 7 Coleman in toto. 8 A. Yes. 9 Q. Here's a man that is regular in his visits with 10 Doctor Coleman. 11 A. That's correct. 12 Q. Here's a man that appears to be compliant with 13 Doctor Coleman's recommendations concerning his mental health; 14 right? 15 A. Yes, he does. 16 Q. Here's a man that appears to be taking the 17 medicines as directed. 18 A. Yes. 19 Q. Here's a man that he is continuing to come in 20 and make his office visits with his psychiatrist; right? 21 A. Yes, sir. 22 Q. You as a psychiatrist can't help anybody unless 23 they'll come to you and present themselves in your office; 24 right? 25 A. That's correct. That's correct. 154 1 Q. And Doctor Greist, frankly, Mr. Wesbecker is a 2 compliant patient up to three days before this tragedy occurs, 3 isn't he? 4 A. Yes. And in spite of the good efforts of 5 Mr. Wesbecker to get help and Doctor Coleman to give it to 6 him, something interfered with his getting better. 7 Q. Absolutely something interfered with his getting 8 better. We are 100 percent in agreement. 9 A. May I finish what I'm saying, sir? 10 JUDGE POTTER: Let him finish, Mr. Smith. 11 A. And that process began almost a decade before 12 and was identified by people long before Prozac was on the 13 scene in this man's life, some of it even before it was 14 available in this country. 15 Q. What did you say, something intervened in him 16 getting better? 17 A. His illness intervened. It prevented him from 18 getting better in spite of all of the different medications 19 that are appropriate and that were tried, and he continued on 20 a sawtooth downhill course to destruction. 21 Q. That doesn't make sense to me, Doctor Greist, 22 when you look at the September 11th, 1989 notation. Whereas, 23 after a month of Prozac that Doctor Coleman first makes a 24 diagnosis that, "The patient seems to have deteriorated, 25 tangential thoughts, weeping in session, increased level of 155 1 agitation and anger. Question" -- he right there questions 2 whether this is from Prozac, that is, Doctor Coleman questions 3 that; right? 4 A. Yes. 5 Q. He was the one sitting across the table from 6 him, wasn't he? 7 A. That's correct. 8 Q. He's had the opportunity -- he had the 9 opportunity to see him and treat him for two years; right? 10 A. Yes. Yes. That's right. 11 Q. You've not had that opportunity? 12 A. I have not. 13 Q. It says, "Patient states that he now remembers 14 sexual abuse by co-workers and has called sex crimes division 15 of police." Right? 16 A. Yes. 17 Q. You read Doctor Coleman's deposition and 18 probably Doctor Coleman's trial testimony? 19 A. I did. 20 Q. Where he stated that Mr. Wesbecker related to 21 him that this recollection of this sexual abuse was because 22 Prozac had helped him remember it; remember? 23 A. I do. 24 Q. Prozac is not a memory drug, is it? 25 A. In the sense that people who are depressed, as I 156 1 said yesterday, have trouble concentrating because of their 2 depression. When their depression gets better their 3 concentration improves. Things they're paying attention to 4 get in and can be stored in memory. 5 Q. Is this guy getting better? 6 A. No. He is not getting better. 7 Q. Okay. So the Prozac didn't make him better to 8 make him remember this, did it? 9 A. I'm sorry. I was responding to your question is 10 Prozac a memory drug. No, it's not intended for memory, it's 11 not for Alzheimer's, but in clinical medicine in depressed 12 people we see them coming back and saying, "My memory's 13 better, I can concentrate better." That's what I meant. 14 Q. But memory is not one of its indications, is it? 15 A. No, it's not. 16 Q. And we're not passing them out to college 17 students to help them on their studying, are we? 18 A. Only if they're depressed. 19 Q. And we're not passing them out to people in 20 prison and people that are being charged with crimes to try to 21 get them to be better citizens, either, are we? 22 A. No, we're not. If they had a major depression 23 then we would want to use Prozac or another antidepressant to 24 treat their depression. 25 Q. The best thing that you can say about Prozac in 157 1 its treatment for Joseph Wesbecker in September 1989 is it 2 didn't help him, did it? 3 A. It didn't interrupt the downhill course that Mr. 4 Wesbecker was on; that's correct. 5 Q. The downhill course; is that what you said? 6 A. That's correct. 7 Q. It doesn't look like a downhill course when you 8 look at these medical records, does it? 9 A. But when I read Doctor Coleman's testimony, he 10 felt it was a downhill course. 11 Q. No. His testimony was that he had periods where 12 he was getting better, that his records reflect he had periods 13 where he was getting better, that he was compliant, that he 14 was trying. We know he was continuing to interact with 15 people, don't we? 16 A. Let me be more specific. His course was 17 generally downhill; it was not straight downhill, it was a 18 sawtooth. There were times when he got better, times he got 19 worse, which led to changes in medication to try to help him 20 get better. That didn't work. Tried another medicine, that 21 didn't work. They kept trying. That is not suggesting things 22 are going swimmingly for Mr. Wesbecker. You stay with what's 23 working; you only change when things aren't working. 24 Q. It looks like he's going straight downhill 25 between August 10th and September 11th, 1989, doesn't it? 158 1 Isn't it true, Doctor Greist, that is a vast, vast difference 2 in office notations there between August 10th -- August 3rd 3 and September 11th, 1989, isn't it? 4 A. There is a significant difference there, but to 5 take that as the only point of information in this record or 6 in Doctor Coleman's testimony and to ignore everything else is 7 not fair to the facts. 8 Q. Well, this certainly -- of course -- did you 9 read Doctor Coleman's testimony? 10 A. Yes, I did. 11 Q. At the trial? 12 A. I did at the trial; yes, sir. 13 Q. And did you read where he had been given some 14 additional information even during the trial? 15 A. Yes. 16 Q. And that he was going to be paid -- intends to 17 be paid by Lilly for reviewing that? 18 A. I read that he was hoping to be paid by Lilly. 19 Q. All right. Did you read or did you note, 20 though, that Doctor Coleman did in fact admit that when he 21 made these notations these were his best efforts to record 22 what he was seeing with respect to this patient? 23 A. I do. 24 Q. And you will admit, will you not, sir, that 25 these notations are made by someone who is a trained 159 1 psychiatric observer? 2 A. I do. 3 Q. And you will admit, will you not, sir, that 4 these are notations that were made before the events occurred? 5 A. That's correct. 6 Q. In other words, when Doctor Coleman made the 7 notation of September 11th, 1989, he didn't have anything to 8 gain or lose, did he? 9 A. That's correct. 10 Q. He didn't have any reflection or anything else, 11 he just put it down like he saw it, didn't he? 12 A. I'm sure as best he could reflect the 13 observations that he made and the decisions that were taken, 14 yes. 15 Q. And you've got to assume, he's a trained 16 psychiatrist and that his choice of words are words that would 17 be appropriate that you psychiatrists would use in describing 18 mental states; right, sir? 19 A. Yes. 20 Q. And describing effects of medication, also? 21 A. Yes. I'm sure that had he known this was coming 22 his note would have been more extensive and he would have, of 23 course, taken action, but he did not know this was coming. 24 Q. He didn't know whether it was coming, so all he 25 could do was write down his best judgment of what he saw and 160 1 what the effects of the medications were when he was there on 2 September 11th, 1989; right, Doctor Greist? 3 A. My understanding is that he wrote "nervous" and 4 then he went back and dictated from that one word this note -- 5 Q. Right. 6 A. -- the best he could do. 7 Q. As a trained psychiatrist in observing human 8 behavior and the effects of psychotropic medication; right, 9 sir? 10 A. Yes. Yes. 11 Q. Well, you had mentioned that certainly you don't 12 feel that you should look at Doctor Coleman's records in a 13 vacuum and you looked at all the medical records, did you not? 14 A. Yes, sir. 15 Q. I believe you placed some significance on Doctor 16 Morton Leventhal's MMPI questionnaire? 17 A. I read a paragraph from his report, which was 18 about the MMPI. I have not gone back and looked at the 19 protocol itself. 20 Q. And then you mentioned Doctor Butcher's analysis 21 of that? 22 A. Yes. And Doctor Butcher's, of course, is 23 printed out by a computer. In other words, the form with all 24 those marks on it gets fed into the computer and then it 25 prints out all these materials that I was referring to. 161 1 Q. Can I see what you've got there so that we'll 2 know we're on the same page? 3 A. Sure. Sure. Absolutely. Here's Butcher 4 December 1, 1983, MMPI, and I have -- well, let's see. Here, 5 the critical items come further on here. 6 Q. Are these the critical items, the critical item 7 listing? 8 A. That I was reading from; that's correct. 9 Q. It looks like you've marked some critical items 10 here. 11 A. I have. 12 Q. Okay. Go ahead and put that there, and then I'm 13 going to give you a copy of this. 14 A. All right, sir. 15 Q. I'm going to give the Judge a copy of this and 16 I'm going to give defense counsel a copy of this, and I'm 17 going to ask the Judge if we can offer this into evidence and 18 give the jury a copy of it. 19 Does that comport with your copy of the medical 20 records? 21 A. It sure does. Just checking to be sure. 22 Q. Do you have the Answer section with that? 23 A. I do. You mean the ones where he marked the 24 form? 25 Q. Yeah. 162 1 A. Yes, I do. That's correct. 2 Q. Check that and make sure that these are the 3 same, and I think there's a patient I.D. number on the second 4 page that you can confirm that. 5 A. Okay. Thanks. 6 MR. SMITH: Offer Plaintiffs' Exhibit 256, Your 7 Honor. 8 MR. McGOLDRICK: As just a part of the medical 9 record? 10 MR. SMITH: Yeah. And we haven't gotten all the 11 medical records straight yet. 12 MR. McGOLDRICK: No problem. 13 JUDGE POTTER: Be admitted. 14 A. Yes. It's the same. 15 Q. It's the same? 16 A. Same ones I've been referring to; that's 17 correct. 18 SHERIFF CECIL: (Hands document to jurors). 19 A. It doesn't contain the first bit of the record, 20 but I guess they have the whole medical record anyway. 21 Q. Right. 22 A. Good. 23 Q. This is something that you thought -- it says 24 it's a critical item listing. I assume you felt it was 25 critical? 163 1 A. Yes. And I also read to the jury parts from the 2 report starting on Page 1. 3 Q. Which is what -- and Butcher's referring back to 4 these answers, is he not? 5 A. Well, not exactly, but he refers to them in a 6 small part of this. But this is an overview -- I mean, these 7 are the actual responses that Mr. Wesbecker said true or false 8 to. This is the interpretation and these are, as I look at 9 this, you know, probably 25, maybe 30 of the 546. The report 10 is based on all of them, the critical items are, I'm just 11 guessing 30, it may be -- it's 20 to 40 items here. 12 Q. All right. Okay. Now, and you checked in red 13 there, apparently, some that you feel are critical, 14 particularly critical in rendering your opinion here; is that 15 right? 16 A. These are among the ones, yes. Sure. Yes. 17 Correct. 18 Q. And here's the answers; right? 19 A. Yes. 20 Q. How did you get these records? 21 A. This is my set -- actually, I brought my set but 22 they said that you folks were doing all kinds of things trying 23 to get the right set, so this is a set that they gave me that 24 they think is as right as it can be according to the 25 discussions you folks are having about records. 164 1 Q. And this is the set that was provided to you by 2 Lilly? 3 A. Right. 4 Q. Today? 5 A. Well, actually yesterday. 6 Q. All right. Let's see. You have checked Item 43 7 as being particularly appropriate? 8 A. Well, it's one of the items that I checked; 9 correct. 10 Q. It says, "My sleep is fitful and disturbed." 11 A. Yes. 12 Q. It says true there; right? 13 A. Uh-huh. Yes. 14 Q. Go back, Doctor, and look at the actual answer 15 on the answer sheet. 16 A. Yes. It's different. It says false. 17 Q. It's false? 18 A. Yep. 19 Q. Okay. Mistake there, huh? 20 A. That's correct. Something is wrong here, that 21 is for sure. 22 Q. All right. Go to Item 33 -- Question 337. "I 23 feel anxiety about something or someone almost all of the 24 time." It's marked true there, isn't it? 25 A. Sorry. Hold on, please. It's marked -- on this 165 1 sheet it's marked -- where is 337? Sorry. Yeah. That's 2 marked true and it's marked false on the answer sheet, so 3 there's another discrepancy. 4 Q. All right. 5 A. Correct. 6 Q. Go into the question of -- 7 A. Excuse me. That was not one that I had singled 8 out as being particularly noteworthy. 9 Q. But it's important, isn't it? 10 A. It's an error, yeah, and I think what it does is 11 throw a lot of doubt upon the whole interpretation. 12 Q. We're going to go through and we're going to 13 have a lot of doubt here. There's been something seriously 14 mistaken about this, Doctor Greist. 15 A. Already we can see that. 16 Q. All right. Item 41, "I have had periods of 17 days, weeks or months when I couldn't take care of things 18 because I couldn't get going." It's marked true there; right? 19 A. Yes. And it's marked false in the answer sheet. 20 Q. That's significant to you, isn't it, Doctor 21 Greist? 22 A. It is. 23 Q. All right. "Go to Item 381, it's under 24 Threatened Assault. "I am said to -- often said to be a 25 hothead." It's marked true on the report but what's the 166 1 actual answer? 2 A. False. 3 Q. Significant? 4 A. Yeah. I think this whole interpretation is very 5 suspect and would require further evaluation to determine 6 whether it's of any value. 7 Q. Okay. Go to Item 33. "I've had very peculiar 8 and strange experiences." It's marked true, that he has had 9 peculiar and strange experiences. What was Mr. Wesbecker's 10 actual answer? 11 A. False. 12 Q. False? 13 A. False. Correct. 14 Q. Hmm. Item 328, under Mental Confusion: "I find 15 it hard to keep my mind on a task or a job." It's marked 16 true, isn't it? 17 A. It's marked true on the critical item sheet and 18 false on the answer sheet. 19 Q. So Mr. Wesbecker is saying something different 20 than what this answer sheet is saying? 21 A. Well, you know, the thing that one of course 22 wants to know is did Doctor Senler match up the answer sheet 23 correctly with this. I don't know. 24 Q. The numbers match up, don't they, as far as the 25 patient number? 167 1 A. I'm sorry. Hold on just a second. Yes, they 2 certainly do. You're correct. 3 Q. All right. Let's continue then. Mental 4 confusion -- have we done mental confusion, "I've had very 5 peculiar and strange experiences"? Did you mark that as 6 significant? 7 A. No, I did not. I marked No. 356. 8 Q. All right. "I have trouble concentrating -- I 9 have more trouble concentrating than others seem to have." He 10 says it's true. What's the actual answer of Mr. Wesbecker? 11 A. False. 12 Q. That's what the persecutory idea. "I am sure I 13 get a raw deal from life." This says it's true. What 14 actually is it? 15 A. False. 16 Q. Next one, "I believe I am being plotted 17 against." This says it's true. What did Mr. Wesbecker 18 actually say? 19 A. False. 20 Q. Did you mark either one of those as significant? 21 A. I'm sorry. I've forgotten which one. 22 Q. 16 and 121 under Persecutory Ideas. 23 A. 16, I did. 24 Q. 136: "I commonly wonder what hidden reasons 25 another person may have for doing something nice to me." He 168 1 marked it true. What's the actual answer? 2 A. False. 3 Q. 157: "I feel that I have often been punished 4 without cause." He marks it true or the form here says true; 5 what's the actual answer of Mr. Wesbecker? 6 A. False. 7 Q. Next 384: "I am sure I am being talked about." 8 The form says true; what's Mr. Wesbecker's actual answer? 9 A. 284, it's on the other page. Sorry. 284 is 10 answered false. 11 Q. 347: "I have no enemies who really wish to harm 12 me." The form says false on the printout. What does 13 Mr. Wesbecker actually say? 14 A. True. 15 Q. This is a serious, serious mistake here, isn't 16 it, Doctor Greist? 17 A. On this single document it certainly is. I 18 mean, I can't understand it, I can't explain it, and it would 19 cause me to discount until it were understood and explained, 20 any meaning attributed to this document. 21 Q. Now let's look at something that you marked 22 really critical. It's 28 under characterological adjustment. 23 It's No. 26. Did I say 28? I meant 26. "When someone does 24 me wrong I feel I should pay him back if I can, just for the 25 principle of the thing." He marked true, right, or the form 169 1 is true; right? 2 A. Yep. 3 Q. What's the actual answer that Joseph T. 4 Wesbecker gave? 5 A. False. That's what the form says. 6 Q. But his actual answer was false? 7 A. That's correct. 8 Q. In that he didn't feel like when someone did him 9 wrong he should pay them back? 10 A. That would be correct. 11 Q. There are some more in here that are wrong? 12 A. I trust we'll learn that. 13 Q. The whole thing is worthless, isn't it? 14 A. This particular instrument, unless it is 15 explained, I would throw out any interpretation based on it at 16 this point. 17 Q. Obviously, you know, you've got a computer and 18 you don't know whose answer sheet it really is, but it appears 19 that it's Mr. Wesbecker's answer sheet and it appears his 20 critical item list, doesn't it? 21 A. It sure does. There's something really wrong 22 here. There's no question about that. 23 Q. Something really wrong here, isn't there? 24 A. That's right. 25 Q. There's been some talk in this case about 170 1 Exhibit 161, it's already in evidence, but let me give you a 2 copy of it. I'm sure you've got it in your notes, but let me 3 give you a copy of it so you can look at it with me. 4 A. Thank you. 5 Q. This is the SmithKline Bioscience Laboratory 6 toxicology report. You've looked at that, haven't you, 7 Doctor? 8 A. Well, the first part says, "Cabinet for Human 9 Resources Toxicology Laboratory." Have we got the same 10 document? Am I on the wrong -- it doesn't say SmithKline, I'm 11 sorry. 12 Q. I may just have a more complete copy. 13 A. It says the same thing. I'm sorry. I just 14 didn't see SmithKline. I see. 15 Q. It's on the next-to-the-last page, third page? 16 A. I'm sorry. Yep. 17 Q. SmithKline Bioscience Laboratory up on the top 18 of the third page of Plaintiffs' Exhibit 161? 19 A. Yes. 20 Q. Now, this document indicates that there were 21 indeed therapeutic levels of Prozac in Mr. Wesbecker's system, 22 does it not? 23 A. There were levels that if it was going to be 24 therapeutic it would have been high enough to have done that. 25 It was not therapeutic, in my opinion, for Mr. Wesbecker. 171 1 Q. But you've given the opinion already that on 2 September 14th, 1989, Prozac was indeed having a physiological 3 reaction on Joseph Wesbecker? 4 A. Yes. 5 Q. And it was preventing the reuptake of serotonin 6 in his brain; right? 7 A. That's the third or fourth time I've given that 8 opinion. 9 Q. All right. Now, the next listing we have there 10 is Restoril; right? 11 A. Yes, sir. 12 Q. Then there's trazodone, imipramine, desipramine 13 and nortriptyline; right, sir? 14 A. Yes. 15 Q. Now, do you have an opinion on whether or not 16 the Restoril was having any action or had any part to play in 17 Mr. Wesbecker's conduct on September 14th, 1989? 18 A. I do have an opinion. 19 Q. And what is that opinion, sir? 20 A. I don't think it was making him worse. If 21 anything, it might have helped a smidge. 22 Q. But there wasn't some combination of other 23 medications that was contributing to his actions, was there? 24 A. No. And while benzodiazepines can -- have been 25 reported to be associated with this kind of behavior, if he 172 1 were going to have a paradoxical reaction, in my opinion, he 2 would have had it long before. He had been on other 3 benzodiazepines before and he had been on this one for some 4 time. I don't think it contributed to what happened. 5 Q. All right. And you read Doctor Breggin's 6 testimony where he stated that that did not contribute to his 7 actions and you agree with that, I assume? 8 A. If that's what Doctor Breggin said, I do agree 9 with that. 10 Q. All right. Now, these other medications, the 11 trazodone, imipramine, desipramine and nortriptyline? 12 A. Yes. 13 Q. They didn't have anything to do with this, 14 either, do they? 15 A. No. I don't even know that he had any in his 16 body, because what this means to me is that it was below 25 17 micrograms per liter, and that is usually the sensitivity 18 level of the test. Now, it's possible that there were very 19 tiny amounts there, but more often than not, it means there's 20 nothing there. 21 Q. More often than not, this notation of less than 22 25, less than 25, less than 25, means there's nothing there? 23 A. Yes. Certainly if there's any, it is very, very 24 little. 25 Q. Certainly even if it were 25, it couldn't have 173 1 had anything to do with his actions, either, could it, because 2 these were such low levels? 3 A. Not in my opinion. 4 Q. All right. So this trazodone, imipramine, 5 desipramine, nortriptyline didn't play any part in Mr. 6 Wesbecker's conduct? 7 A. That's my opinion. 8 Q. The only thing he had on board was Prozac, 9 Restoril, which you say didn't have anything to do with it; 10 right? 11 A. Yes. That's correct. 12 Q. And lithium, which also didn't have anything to 13 do with it, either, did it? 14 A. No, in my opinion it did not. 15 Q. So this is not a case where this man had a 16 combination of eight or ten drugs on board and they all 17 combined and caused this to happen on September 14th, did it? 18 A. Not in my opinion. 19 Q. And the only thing in your opinion that had 20 anything to do with this -- and, of course, I understand that 21 you dispute that Prozac was any causative factor, but the only 22 medications that he had were Prozac and lithium. Lithium 23 couldn't have had any effect and the Restoril, if it had any 24 effect would have been the most minimal of any effects. 25 A. That's correct. 174 1 Q. Because the Restoril was in very small 2 quantities, he had been taking it for a long time and it has a 3 very, very short half-life; right? 4 A. That's true. But it was at a level that would 5 have some effect. But it would have been a minimal effect. I 6 don't think the Restoril had anything to do with this. I 7 don't know how to say it better. 8 Q. All right. That's as good as... Can lithium, 9 if it's at a high level above what is appropriate for a 10 particular individual, cause fatigue? 11 A. It can. 12 Q. All right. So if Doctor Breggin testified -- 13 maybe it was a poor choice of words or I'm not sure exactly 14 what words he said, but he said toxic levels. What Mr. -- or, 15 Doctor Breggin was saying was that he could have been fatigued 16 because his lithium level was high, that could be possible if 17 his lithium level was high, could cause fatigue? 18 A. It's possible. It's possible. 19 Q. All right. In this Lilly trial that you did 20 recently, did you use benzodiazepines in that trial? 21 A. No. 22 Q. You were examining agitated-depressed people but 23 you didn't use benzodiazepines? 24 A. No. I don't think we ever had a need. We would 25 have taken the patient out of the trial if we felt -- in fact, 175 1 we did take some patients out of the trial. 2 Q. Did the protocol in that trial actually in fact 3 prohibit the use of other psychoactive medications? 4 A. Well, I finished that trial two and a half years 5 ago, but my memory is that it did. 6 Q. It did prohibit it? 7 A. It prohibited. It permitted sleeping medication 8 for those who were having too much insomnia, and virtually all 9 the protocols we do now permit the use of chloral hydrate as a 10 sleeping medication for those who are having too much 11 insomnia, but many of the protocols prohibit the use of 12 benzodiazepines or other sedatives to deal with anxiety during 13 the daytime hours. 14 Q. The reason for that, isn't it, Doctor Greist, 15 that if you were examining a psychoactive medication for its 16 effect on a patient's mood or behavior, you don't want that 17 effect masked by concomitant use of other psychoactive 18 medications, such as benzodiazepines that would also affect 19 the mood of the patient? 20 A. In a pure design, that is certainly admirable, 21 desirable and a good thing to try for. 22 Q. And it will indeed mask -- you're not going to 23 know what you're looking at, will you? 24 A. Well, but in a controlled design as what often 25 happens, benzodiazepines get used used with drug and 176 1 comparitor and it may sort of even out. It's an acceptable 2 design, not to FDA anymore, but it used to be. 3 Q. Even if you use other psychoactive medications 4 across placebo and comparitor, you will mask the effects of 5 the placebo and you're going to be administering an active 6 drug that somebody's supposed to be on the placebo, aren't 7 you? 8 A. And we do our best not to do that. We take 9 patients out of the trial if they need it, is what happens. 10 Q. So, actually, the best practice would be not to 11 administer any psychoactive medications, wouldn't it? 12 A. That's correct. Not to even give them a 13 sleeping medication. 14 Q. And if you administer psychoactive medications 15 across the board to study drug, comparitor drug and placebo, 16 you're going to get a mixed reaction through all three groups, 17 aren't you? 18 A. Yes. But, Mr. Smith, lets look historically at 19 what's happened. In the early days, a decade ago when I 20 started this, it was permitted to give patients who were very 21 anxious a benzodiazepine during the daytime hours. And a few 22 of them got it, a quarter, maybe a third of the patients in a 23 trial, got it. And the very argument that you've raised has 24 led to the elimination of that. What it means is there are a 25 bunch of people who can't be in the trial anymore. We get 177 1 cross roughed. Then we're told me don't do studies that match 2 the real-world problems; we're only dealing with patients who 3 can be in a trial without having a benzodiazepine, and there 4 are a few of them that need it. 5 But the FDA has continued to let us use a 6 psychoactive medication, chloral hydrate, at night for sleep 7 because they say we're not going to put humans through that 8 much distress to be in a controlled trial. And that 9 psychoactive medication can have that effect. We try very 10 hard to have them not take it the day before we do the 11 evaluations when they come to the clinic, but sometimes they 12 do and then it gets evened out. As you do studies with 13 several hundred patients involved, a number of patients on 14 placebo don't get better and have trouble sleeping so they get 15 it. Patients on imipramine, patients on Prozac if that's what 16 you're studying, and usually it works out about the same 17 number on chloral hydrate or more in the placebo group. 18 Q. Whatever. Even if you concede that it would be 19 appropriate to give benzodiazepines to patients in clinical 20 trials, shouldn't you advise the physicians in this country 21 that what you're seeing in the clinical trials, there were 22 patients who did get benzodiazepines, concomitant psychoactive 23 medications during these trials? Shouldn't the physicians in 24 this country be made aware of it? 25 A. Well, the physicians in this country were giving 178 1 benzodiazepines to a lot of patients that were having 2 depression, and antidepressants. And I don't know if it made 3 that much difference to them, but the Food and Drug 4 Administration and Lilly I'm sure went back and forth about 5 that and negotiated and agreed on what the package insert 6 would say, and they must have decided that that was not 7 necessary to inform the physicians of that. 8 Q. Do you think that the fact that the use of 9 benzodiazepines in the clinical trials was not identified was 10 something that was negotiated between Lilly and the FDA? 11 A. I expect that that was the way it was worked 12 out. 13 Q. Have you seen any documents for and between 14 Lilly and the FDA negotiating this thing? 15 A. I'm not reading all the documents between Lilly 16 and FDA. I don't think I've read very many, if any. 17 Q. Did anybody at Lilly or did Lilly lawyers tell 18 you that this was something that was negotiated, where Lilly 19 got to eliminate advising that benzodiazepines were used in 20 clinical trials? 21 A. No. That's my surmise. 22 MR. SMITH: All right. Could I have two 23 seconds, Your Honor? 24 JUDGE POTTER: Uh-huh. 25 Q. Did you say the FDA now said it was unacceptable 179 1 to use benzodiazepines in clinical trials of psychoactive 2 medications like Prozac? 3 A. I'm sure that varies from trial to trial. 4 Again, each protocol with a new drug, Investigational New 5 Drug, an IND, each protocol is reviewed by FDA before it's put 6 into place. They have 30 days to comment, and if they don't 7 comment, then that protocol will go forward. 8 Q. I understand that. But did you say that now 9 it's unacceptable to use benzodiazepines in clinical trials? 10 A. No. What I would like to say is I'm sure there 11 are variations across protocols, because we're doing a bipolar 12 disorder, manic depressive disorder trial, and we have what we 13 call rescue medication and it is a benzodiazepine. If the 14 patient is getting too manic, we can give them a 15 benzodiazepine. So it's absolutely not true that FDA excludes 16 the use of benzodiazepines in all psychiatric trials. 17 Q. They don't exclude it across the board? 18 A. That's right. Not across -- 19 Q. But are you saying there may be some instances 20 where the FDA is not going to allow concomitant medications 21 when you're testing psychoactive medications? 22 A. Well, there may be, but, again, as I've said, 23 the ones we do now we have chloral hydrate. Ten years ago we 24 used to have benzodiazepines and chloral hydrate; it's 25 negotiated study by study. 180 1 Q. Thank you, Doctor Greist. 2 A. Thank you, Mr. Smith. 3 JUDGE POTTER: Mr. McGoldrick? 4 MR. McGOLDRICK: Yes, Your Honor. 5 6 FURTHER_EXAMINATION _______ ___________ 7 8 BY_MR._McGOLDRICK: __ ___ __________ 9 Q. Doctor Greist, let's first turn to this MMPI, 10 Minnesota Multiphasic Inventory? 11 A. Personality inventory. 12 Q. Personality inventory. Now, clearly, the 13 cross-examination has pointed out that those answers on the 14 answer sheet don't appear to match the answers recorded on the 15 front page there. 16 A. On the critical item sheet. 17 Q. On the critical item sheet. And it's your view 18 that, in light of that, we should discount that in addressing 19 this case; is that right? 20 A. I certainly would, until and unless that gross 21 discrepancy can be explained and understood, I would discount 22 it. 23 Q. And unless and until we can figure out whether 24 it was a mistake, as indeed it appears, or whether there was 25 some explanation? 181 1 A. Correct. 2 Q. All right. You spoke of a great range of 3 factors that went into your opinion, and I think you addressed 4 some from that MMPI. My question to you now is this: Tell 5 the jury whether, discounting that, throwing that out, giving 6 it no effect, it changes your view as to your opinions in this 7 case. 8 A. It does not change my opinions or my view in 9 this case. Other psychological testing, unless it turns out 10 to be as flawed as this particular first one, goes in the same 11 directions that I thought that one went. Independent of the 12 psychological testing, leave it out altogether, all of it, 13 it's my opinion that the rest of the materials I've reviewed, 14 the medical record, the testimony that you folks have heard, 15 makes the picture very clear as to what's happened here. 16 Q. Once again, that picture is very clearly what? 17 A. Mr. Wesbecker had a depressive disorder. We 18 call it major depression. It started in 1980. The course of 19 his disorder could have been, as many people's are, benign, go 20 along, episode, back to normal, episode, back to normal. It 21 could have been intermediate, a gradual downhill course with 22 episodes along the way, or it could have been, as his was, a 23 malignant course. And for several years before he committed 24 these crimes, he was having terrible trouble because of this 25 depression, which is why I call it a malignant course. It 182 1 interfered with his relationships, had to stop working, began 2 to make him feel very nervous. He wasn't responding to 3 treatment. And so that's the disorder that he suffered. Some 4 folks have benign ones, some folks have terrible ones; he had 5 a malignant, terrible one. And that disorder, in time, led to 6 the things that he did. 7 Q. All right. Doctor, Mr. Smith asked you some 8 questions about this term that you used, malignant depressive 9 disorder or malignant depressive syndrome. Is that any 10 different from depression or major depression itself as a 11 disease? 12 A. No. He had major depression. I was trying with 13 that term to describe the course. Some people have benign 14 cancer, some people have malignant cancer, and I think we all 15 know what those terms mean. Benign cancers people do very 16 well with, and the malignant ones can kill them; it sometimes 17 kills them quickly, it sometimes takes several years, but it 18 is a malignancy, is what the word is. 19 Q. His depression continues to get worse; is that 20 right? 21 A. I'm sorry? 22 Q. His depression continued to get worse? 23 A. It did. 24 Q. That's what you meant by that? 25 A. There's no question in my mind, after what I've 183 1 reviewed, that Mr. Wesbecker's depression started in '80, 2 could have gone benignly but it went very badly, and it got 3 worse. You know, it is not a straight line. He got better 4 after that first episode. He was able to get off medication. 5 He stopped seeing the psychiatrist; that usually happens. So 6 we don't know at that point. But then he attempted suicide in 7 '81 -- '81, right after his marriage. He attempted suicide 8 twice again in '84, was in the hospital; he attempted suicide 9 or was in the hospital again in '87. This disorder is 10 progressing. He's off work in '88. So, yes, the disorder 11 progressed. 12 Q. Now, Doctor, is this in any way inconsistent 13 with planning or premeditation on his part of these acts? 14 A. No. 15 Q. What is your view as a clinician from having 16 looked at the records with respect to those subjects? 17 A. He was planning these acts in a general sense, 18 violence, destructiveness, some time before. And as his 19 threats focused more and more on Standard Gravure and the 20 people there, it got more and more focused and his acquisition 21 of weapons got more and more, intended to assault rather than 22 to argue with someone or to do a lawsuit as he had been doing 23 before about his problems, lawsuit with Sue, lawsuit with 24 Standard Gravure. It got to the point where the disorder was 25 so bad that he was going to take action directly. 184 1 Q. And this is not inconsistent with planning or 2 premeditation? 3 MR. SMITH: Objection. Leading, Your Honor. 4 JUDGE POTTER: Sustained. 5 Q. Mr. Smith has raised a number of subjects in his 6 examination. Do any of those affect your opinion as to the 7 cause of the events on September 14, 1989? 8 A. No, they do not. 9 Q. What caused him to do those shootings? 10 A. His depression. His major depressive disorder 11 and the malignant course it had. 12 Q. And did Prozac have anything to do with that? 13 A. Nothing whatsoever. 14 Q. Thank you, Doctor. 15 JUDGE POTTER: Thank you very much, sir. You 16 may step down; you're excused. 17 Ladies and gentlemen, we'll take the afternoon 18 recess. As I mentioned to you, don't get any information 19 about this case; do not discuss it among yourselves and form 20 or express opinions about it. We'll take a 15-minute recess. 21 (RECESS) 22 SHERIFF CECIL: The jury is now entering. All 23 jurors are present. Court is back in session. 24 JUDGE POTTER: Please be seated. 25 Mr. McGoldrick, do you want to call your next 185 1 witness? 2 MR. McGOLDRICK: Yes. Doctor Gary Tollefson. 3 Doctor Tollefson, just go on up to the witness 4 box there. 5 JUDGE POTTER: Sir, can I get you to raise your 6 right hand, please. 7 8 GARY D. TOLLEFSON, M.D., Ph.D., after first 9 being duly sworn, was examined and testified as follows: 10 11 JUDGE POTTER: Okay. Would you walk around, 12 have a seat in the witness box, keep your voice up good and 13 loud, state your full name and then spell it for us, please. 14 DOCTOR TOLLEFSON: My name is Gary Dennis 15 Tollefson. Last name, T-O-L-L-E-F-S-O-N. 16 JUDGE POTTER: Answer Mr. McGoldrick's 17 questions. 18 19 EXAMINATION ___________ 20 21 BY_MR._McGOLDRICK: __ ___ __________ 22 Q. Doctor Tollefson, I think the microphones have 23 been reconfigured a little bit. The brown microphone in front 24 of you is not working; the other one does. From the sound of 25 things, I think you'll be able to be heard. 186 1 Doctor, first of all, tell the jury a little bit 2 about who you are. Where do you come from? 3 A. I'm a native of Minnesota. I was born in a 4 small, rural town in Minnesota called Faribault. I lived 5 there for 18 years, played sports and participated in band and 6 graduated from the local high school. From there I went on to 7 the University of Minnesota, and that campus is in 8 Minneapolis, Minnesota, and I pursued an undergraduate degree 9 in psychology, and I graduated in 1973, summa cum laude, from 10 the University of Minnesota with a psychology degree. Then 11 stayed at the University of Minnesota and entered the medical 12 school and was in the medical school program until graduating 13 in 1976. 14 From there I made a big move of about five miles 15 across the Mississippi River to St. Paul, Minnesota, where I 16 was an intern at St. Paul Ramsey Medical Center, which is a 17 county hospital, providing care for a full range of patients. 18 Then, thereafter, I went back to the University of Minnesota 19 Hospital for the next three years to complete a residency in 20 psychiatry. And during my residency, I also was taking 21 additional academic work, which I completed after my residency 22 to obtain a Ph.D., or a doctorate, in psychopharmacology. So 23 that would be a summary, I guess, of the educational 24 background, Mr. McGoldrick. 25 Q. Where do you live today? 187 1 A. Presently, I'm living in Indianapolis, Indiana. 2 Q. And are you married? 3 A. Yes, I am. 4 Q. Children? 5 A. I have three daughters. 6 Q. And how long have you been living in Indiana? 7 A. I have been in Indiana slightly over three years 8 now. 9 Q. And can you tell the jury what your job is, by 10 whom you're employed and what your job is? 11 A. At present, I am employed by Eli Lilly and 12 Company. I am an executive director within the scientific arm 13 of the company called Lilly Research Laboratories, and my 14 primary responsibility is the charge of the medical division 15 that is responsible for the research and development for new 16 drug therapies and services in three areas: the central 17 nervous system, which would be psychiatric and neurological 18 products; gastrointestinal, or the intestinal system; and then 19 what's call the genitourinary or GU system, where our focus is 20 more on disorders with the bladder. So it's CNS, GI and GU 21 areas of medicine. 22 Q. And how long have you been with Lilly? 23 A. I've been with Lilly just over three years. 24 Q. Let's go back a little bit to your training. 25 You have both an M.D. degree, which you told us about, and 188 1 associated residencies, and you also have a Ph.D. degree in 2 psychopharmacology? 3 A. That's correct, sir. 4 Q. Could you tell the jury just a little bit about 5 the Ph.D. in psychopharmacology, what that means, how long it 6 took you to get it and so forth. 7 A. The Ph.D. or a doctoral program at Minnesota is 8 an advanced degree beyond a Master's level. It is a program 9 that typically would require anywhere from two to four years 10 of additional study, depending on the discipline. The 11 particular program that I chose was drawn from three different 12 departments at the University of Minnesota: the Department of 13 Psychiatry within the medical school; the Department of 14 Biochemistry, which is part of the graduate school and health 15 sciences; and then also had a little bit of work in another 16 program, the Department of Pharmacology at the University of 17 Minnesota, so each of those three departments, it was a 18 combined program. 19 I had some mentoring or guidance from senior 20 people in each of those three fields, and it involved both 21 class work and then clinical investigation, and ultimately 22 before receiving a Ph.D., one has to write a doctoral thesis, 23 and that thesis is then defended in front of a group of 24 academic experts; and if they approve of the thesis and your 25 defense of the thesis, they will then approve graduation with 189 1 that degree, the Ph.D. degree. 2 Q. So you have two doctorates? 3 A. That's correct. 4 Q. One M.D. and one Ph.D.? 5 A. Correct. 6 Q. Why did you get both? 7 A. Well, at the time that I was -- early in my 8 medical school training, I had always been interested in 9 clinical research as a way to expand our knowledge so that a 10 physician might do a better job in caring for the patients 11 that he or she is seeing in their practice. One of the ways 12 to try to advance that state of knowledge, though, is through 13 clinical research. And I felt that at that time a way that I 14 could be a more effective clinical researcher would be to 15 combine what I learned in medical school with what I might 16 also learn in the area of basic sciences, that being the Ph.D. 17 program. And because much of what a physician does in 18 treating diseases is centered around drug therapy or 19 pharmacology, it made sense to look at a Ph.D. in the area of 20 pharmacology and, further, my interest was in the central 21 nervous system, neurological illness, psychiatric illness. So 22 that subspecialty which we call psychopharmacology was really 23 a way to blend the clinical knowledge of those disorders with 24 the underlying basic science of drug therapy or pharmacology. 25 And so it made sense to really provide a better background, I 190 1 think, for the kind of research and clinical career that I 2 wanted to pursue. 3 Q. Okay. I'd like to take just a minute and give 4 the jury a little sense of the components of your career. 5 Let's take the period first before you came to Lilly. Did you 6 have any -- did you do any teaching? 7 A. Yes, I did. 8 Q. And just give us an idea of what that was. 9 A. Well, actually, even going back into my 10 training, when I was in my last year of psychiatric residency 11 at The University of Minnesota Hospitals, there are two 12 residents, each has this honor for six months of being a chief 13 resident. I was a chief resident in psychiatry at the 14 University of Minnesota Hospitals, and that involves doing a 15 lot of teaching and mentoring of the younger residents, first- 16 and second-year residents in the program. 17 I enjoyed the experience of teaching, so one of 18 the things I considered when I finished my residency, rather 19 than going into private practice of medicine, I decided I 20 would like to pursue the academic career. So I then went to 21 the principal teaching hospital of the University of Minnesota 22 system. That hospital was located in St. Paul, called 23 St. Paul Ramsey Medical Center, and I joined the faculty of 24 St. Paul Ramsey in the department of psychiatry and, really 25 for the first five or six years at Ramsey, worked in a service 191 1 called Consultation Liaison Psychiatry, which involved 2 teaching both specialist physicians and primary care 3 physicians how to better recognize and evaluate psychological 4 and neurological illnesses in a patient that they were taking 5 care of. So there was both very formal lecturing, as well as 6 more formal clinical discussions on rounds throughout the 7 medical center. 8 Q. Let's turn to another aspect of your career, any 9 research you have done. Have you done research? 10 A. Yes, I have. 11 Q. And could you give the jury just an overview of 12 what your career in that area has been? 13 A. Well, I think most of my clinical research has 14 really centered around things that I feel were areas of 15 investigation to benefit patient care. So a lot of my 16 research was not perhaps the most traditional research that 17 you might see at a Harvard or a Yale on a very esoteric area; 18 it really centered around patient care, because in the medical 19 center where I was located, our primary responsibility for 20 being there was taking care of patients. But because we were 21 still in a teaching system we did have an opportunity to do 22 clinical research. So I was fairly actively involved in doing 23 a variety of clinical studies, both to better understand 24 diseases that we saw in that type of setting, as well as 25 looking at treatment interventions for those diseases, and 192 1 really have been fortunate to publish over 100 articles in 2 peer-reviewed journals on psychiatry and psychopharmacology. 3 Q. All right. Doctor, let's turn to another aspect 4 for a minute, and that is, at Minnesota, your direct patient 5 care, your work with patients. Again, could you tell the jury 6 a little bit about that. 7 A. Sure. Probably easiest to look at it in two 8 phases. The first five or six years that I was at St. Paul 9 Ramsey, I was on a service which is called Consultation 10 Liaison Psychiatry. What that service does is that if any 11 other area of the hospital -- could be the surgical unit, the 12 OB-GYN unit, the neurology unit -- if they had a patient where 13 they had a question whether or not there might be a 14 psychiatric problem, a neurological problem, an issue around 15 evaluating their drug treatment, they would send a request to 16 our service asking for a consultation. And it would be our 17 job to go and review the patient's chart, talk if available 18 with family members, and then interview the patient and get a 19 sense of what might be going on with that particular patient 20 and try to advise his or her physician of the best way to 21 manage the case. And we might see that patient one or two 22 times in consultation, depending on the case, though we might 23 continue to follow that patient during their entire 24 hospitalization. And in some cases if the surgeon or the 25 internist were to ask us, we might continue to follow that 193 1 patient in their clinic once they were discharged home. So it 2 wouldn't be unusual, for example, in our burn unit to continue 3 to follow a victim of a serious burn in the burn surgery 4 clinic, continuing to try to provide some services for some of 5 the mental health complications associated with that injury. 6 So that was a lot of what I did in the first 7 five or six years. After that period of time, I was offered a 8 position to be chairman of the entire department of psychiatry 9 at the medical center, which was a position I accepted. 10 Q. Excuse me for interrupting you just for one 11 second. 12 A. Yes, sir. 13 Q. How old were you then when they offered you that 14 chairmanship? 15 A. Thirty-six. 16 Q. Go ahead. Tell the jury a little bit about 17 that. 18 A. Okay. At that point then, because of some of 19 the administrative commitments that came with running a 20 department, it was difficult to continue on the consult 21 service because of the day-in-and-day-out demands, so I 22 shifted my focus more to outpatient psychiatry and about two, 23 two and a half days a week, was in charge of running a 24 psychopharmacology clinic at the medical center, seeing some 25 patients that really were self referred coming into the 194 1 clinic, other patients were often referred from other 2 physicians in the community for evaluation and treatment. So 3 it was more of a traditional outpatient program at that stage. 4 Q. Let me just ask you a question or two about this 5 St. Paul Ramsey Hospital. Is that what's called a referral or 6 tertiary or something like that center? 7 A. Well, it is. It really spanned, though, the 8 entire spectrum of patients in that we did provide primary 9 care. And one of my teaching services was in the residency 10 program for family practice. We'd go over to a 11 community-based clinic, work with the family practice 12 residents on a day-by-day basis in the community. But on the 13 other token, besides those primary care patients, we often 14 would see patients that had not responded to treatment with 15 specialists in the community, who were now referring them in 16 for sort of a third opinion at the medical center, and that's 17 where that tertiary care level comes in, so really a full 18 spectrum of patients. 19 Q. So you would see patients that specialists, 20 psychiatrists in the area wanted to send in because they 21 either were having difficulty or for some reason to get 22 another opinion or another idea about treatment? 23 A. That's correct, sir. 24 Q. Was St. Paul Ramsey Hospital one of many or was 25 it a principal psychiatric facility in that area? 195 1 A. It really was in Ramsey County, which is where 2 St. Paul, Minnesota, is located, it was the principal 3 psychiatric referral and evaluation center within the overall 4 area. Its sister hospital was in Minneapolis, Minnesota, also 5 a county hospital, Hennepin County Medical Center. Those two 6 in tandem were really the principal teaching and evaluation 7 centers for psychiatric practice, though, in the University of 8 Minnesota educational system. 9 Q. Most of us aren't familiar with Ramsey County. 10 Would you tell the jury how big an area that is? 11 A. I'm not sure that I know the exact square miles 12 of Ramsey County, but I would say that approximately -- it 13 would probably extend about maybe 25 miles by 20 miles, if one 14 were thinking the length and width of the county. 15 Q. What kind of population? 16 A. The principal population center is St. Paul, 17 which is the state capital of Minnesota. And St. Paul has a 18 population of approximately 400,000; and I think for the 19 county as a whole, we're probably in the range of 500,000, 20 550,000 individuals. 21 Q. Okay. Now, Doctor, have you in your career had 22 a special interest in mood disorders? 23 A. That's been my principal area of clinical 24 research, yes. 25 Q. And what did that entail? 196 1 A. Well, as far as mood disorders interest, I think 2 certainly the majority of the patients that I was treating and 3 evaluating in clinical practice either suffered from a primary 4 diagnosis of depression or at least had depression as a 5 complicating feature of another medical illness. Maybe it was 6 a substance abuse problem or some other psychiatric illness, 7 for that matter. But the common denominator, there was a 8 thread of depression or mood disruption running through those 9 kind of clinical evaluations, and I would say probably 10 two-thirds of the lectures and the published articles that I 11 have written really center around either the diagnosis of 12 depression or something to do with better management of the 13 disorder. 14 Q. You said you've spent at least a certain part of 15 your career, two and a half days in the clinic in a private 16 care facility. What sorts of patients did you see? 17 A. Well, actually, the medical center really had 18 its doors open to all patients. We would have patients that 19 clearly were indigent within the community, a very diverse 20 population that we would provide services to, all the way up 21 to commercial insurance. It was not unusual to have 22 Prudential or Blue Cross/Blue Shield patients to -- we were 23 actually one of the leaders in Minnesota to this movement in 24 health care reform to the concept of the health maintenance 25 organizations or the HMOs, and we had a number of contracts to 197 1 provide both substance abuse and mental health services on a 2 contract basis with a number of HMOs throughout the state. 3 Q. Are you board certified in any field? 4 A. Board certified in psychiatry. 5 Q. And when you were seeing the people at the 6 clinic, what kinds of psychiatric conditions would they be 7 presenting with? 8 A. Well, I mean, the easy answer would be to say 9 pretty much everything that's in the diagnostic textbook. We 10 really did see a significant diversity. I would say that, 11 again, as I've mentioned earlier, the majority of the patients 12 that I would consult and work with were individuals that 13 either had a primary depression or anxiety disorder or, 14 alternatively, might have a major medical problem; maybe they 15 had had a heart attack or they had a seizure disorder, and now 16 were having some emotional problems dealing with their medical 17 illnesses. 18 And I would say that probably made up literally 19 two-thirds of the kinds of patient work I did, although in our 20 clinic, because we did tend to take a very broad spectrum of 21 patients, it was not unusual for us to be dealing with 22 patients with chronic schizophrenia, with manic depression, 23 with a variety of post-traumatic stress disorders, panic 24 disorders. And, in fact, we did a fair amount of clinical 25 work and were one of the community leaders in establishing an 198 1 Alzheimer's clinic for the diagnosis and evaluation of 2 Alzheimer's and memory disorders. 3 Q. Doctor, let's turn to a different subject for a 4 minute. During that period when you were a clinician treating 5 patients, could you tell the jury in general I guess in your 6 career, what's your clinical experience with Prozac? 7 A. Prozac really for us at St. Paul Ramsey Medical 8 Center became one of our first-line therapeutic interventions 9 in the treatment of major depression. One of the things that 10 we became aware of through the literature, then in turn from 11 our own experience from working with patients was that one of 12 the major advantages with that class of medications was that 13 we found that there was an overall lower incidence of side 14 effects that led patients to feel that they needed to stop 15 treatment. And one of the major issues for all clinicians 16 treating depression is patient compliance. Unfortunately, 17 with all of the stigma that exists around having depression, 18 many patients actually don't come in for treatment. In fact, 19 it's been said in the literature that maybe three out of four 20 patients with depression never get recognized, never come in 21 to get help. But even amongst those one in four that come 22 through the door to see their physician in asking for help, 23 they don't have a good track record, necessarily, staying on 24 their medications; there are two primary reasons, one is lack 25 of education about the disease, the other one is noncompliance 199 1 with their medication related to side effects. 2 So one of the experiences that we have had with 3 the newer second generation antidepressants is that overall, 4 the severity and the frequency of side effects was much lower 5 and, in turn, we could have our patients stay on medication 6 longer, which meant that the odds were they'd have a better 7 outcome of that class of therapy. So we had a positive 8 experience. 9 Q. Very roughly, if you can tell the jury, 10 approximately how many patients might you have treated and 11 used Prozac? 12 A. I would say certainly in the order of several 13 hundred or more with Prozac. 14 Q. And in your clinical experience, what did you 15 find with respect to efficacy and side effects? 16 MS. ZETTLER: Your Honor, may we be heard? 17 (BENCH DISCUSSION) 18 MS. ZETTLER: We're going to object if he's 19 going to start getting into "all my patients did wonderful on 20 these drugs." We don't have access to any of these patients' 21 records. 22 JUDGE POTTER: What's he going to testify to, 23 Mr. McGoldrick? 24 MR. McGOLDRICK: A range of subjects, Your 25 Honor, relating to studies he's done and work he's done at 200 1 Lilly and his -- a fairly wide range of subjects. 2 JUDGE POTTER: I'm going to sustain the 3 objection to his anecdotal discussion of his practice. 4 Sustain the objection. 5 MR. McGOLDRICK: Judge, I apologize for 6 persisting, but if I may be heard, the -- with the Plaintiffs' 7 witness, Doctor Breggin, I believe -- I was here -- he was 8 permitted to testify with respect to his own practice, his own 9 experience and his own anecdotal experience. It strikes me 10 that it would be even-handed to let us do the same. 11 JUDGE POTTER: Didn't I overrule objections to 12 that? 13 MS. ZETTLER: The difference here, Your Honor, 14 is he's going to try to get him to say that he's had literally 15 hundreds of patients on the drug and hasn't had a problem. 16 That's vastly different than getting into his general 17 practice, which is what Doctor Breggin did, talked about in 18 his general practice. 19 JUDGE POTTER: The information is that millions 20 of people are out there taking it, and the fact that 6 or 20 21 or 100 of them happened to be in this guy's office I don't 22 think has really much to do with it, so I'm going to sustain 23 the objection. 24 (BENCH DISCUSSION CONCLUDED) 25 Q. Now, Doctor Tollefson, as you were giving I 201 1 think your last answer, you were referring to depression. And 2 I'm not going to have you take this jury through depression 3 again, which they've heard more probably than they ever 4 thought they would, but I do want to ask just a couple of 5 specific questions that maybe haven't been heard. At any 6 given time in the United States, approximately how many 7 Americans suffer from this disease? 8 A. The disease is very prevalent, and estimates are 9 approximately 11 million Americans at any one time would have 10 a diagnosis compatible with depression. 11 Q. And another one along that line, how many 12 depressed patients actually think about committing suicide, 13 what proportion? 14 A. Well, to have periods where one thinks about 15 suicide is extremely common, and the literature would say that 16 it's not unusual for 80 percent or 4 out of every 5 depressed 17 patients sometime during the course of their illness would 18 have a period where they might have suicidal ideation. 19 Q. That means thoughts? 20 A. Thoughts. That's correct. 21 Q. All right. Now, let's turn to the next 22 category, Attempts. Approximately how many depressed patients 23 will actually attempt suicide? 24 A. Again, there is somewhat of a range in the 25 literature, but 20 to 40 percent is a pretty fair estimate 202 1 over the lifetime course of this disease for a suicide attempt 2 to occur. It is unfortunately a serious outcome of this 3 disease. 4 Q. And, lastly, approximately how many depressed 5 patients will ultimately commit suicide sometime in their 6 life? 7 A. The classical studies that have looked at people 8 with a history of depression who have died say that about 15 9 percent of those individuals have died related to a suicide 10 attempt. 11 Q. All right. And one other question along that 12 line: Approximately how many suicides are committed in the 13 United States each year? 14 A. Well, those estimates are very conservative, but 15 the kind of figures one typically would see in the literature 16 are approximately 30,000 suicides a year. It is unfortunately 17 the eighth leading cause of death in the United States. 18 Q. All right, Doctor. Let's turn for a minute to 19 the positions you hold and have held at Lilly. I think you've 20 told us what your title was. What do you do? 21 A. Well, I am responsible for the designing and the 22 implementation of our clinical drug development program, and 23 that is that we have a number of medications that are 24 discovered by our basic science colleagues, and it is our job 25 to figure out, first of all, which ones might have an 203 1 application to try to help better treat patients with certain 2 disorders. So, for example, areas we are particularly 3 involved in right now include Alzheimer's dementia, 4 schizophrenia, urinary incontinence. And I work with a team 5 of research physicians, statisticians, systems analysts, 6 regulatory scientists -- it's a very large crossfunctional 7 group -- in trying to oversee that planning process for the 8 clinical trials to demonstrate safety and efficacy, then, in 9 turn, to assist in our registration efforts to have a 10 medication ultimately approved, and then, in turn, I do work 11 somewhat with our marketing colleagues in continuing to 12 provide information that would be useful for physicians or 13 other health care providers in using that product once it's 14 available in the marketplace. 15 Q. There you were at some point up in Minnesota 16 with your practice at Ramsey. What were your reasons for 17 coming down to Indiana to go to work in this job? 18 A. It wasn't as cold. No. Seriously, the -- I 19 think the main reason was that I had been in medical practice 20 at St. Paul Ramsey for 11 years, and I had moved up from a 21 junior physician the first year, to chairman of the 22 department. I sat on the board of directors for the clinic; I 23 had been doing that for about four or five years. And looking 24 down the road I was kind of saying, well, what's next. I 25 mean, I can continue to do more of the same, but, you know, is 204 1 this a time where I might like to really try to take a next 2 step to further test myself and, in turn, I think contribute 3 more in the area of health care. And one of the opportunities 4 that I was looking at at the time then was this position with 5 Eli Lilly and Company. And one of the main attractions was, 6 in talking with some of the Lilly scientists, they had really 7 a very, very active research program in what we call the 8 central nervous system and a number of promising compounds. 9 So I thought that this really would be an opportunity to make 10 a much more significant contribution to health care if I could 11 participate in the development and the marketing of drugs that 12 really could improve the state of health care. And I could do 13 a lot more for a lot more people in that capacity than I could 14 doing direct care in St. Paul. 15 Q. As you looked at that opportunity, what was your 16 judgment and the information in the scientific community with 17 respect to the reputation of the researchers at Lilly and the 18 quality of the research there? 19 A. It was, without a doubt, top notch. 20 Q. All right. Doctor, I want to turn now to 21 another subject, again, a subject that the jury has heard 22 something about already, so we won't necessarily need to go 23 into every topic fully, but, nonetheless, let's start down the 24 road of talking about clinical investigations. First of all, 25 very simply, what is a clinical investigator? 205 1 A. Well, a clinical investigator would be a health 2 care provider, most typically a physician, that is interested 3 in pursuing ways to improve health care. And one of the ways 4 to make those kind of incremental advantages is to conduct 5 clinical studies to learn more about a disease or the 6 treatment of its disease. For example, if one thinks back to 7 polio epidemics and individuals who were ridden in an iron 8 lung and think about how did we make progress from that point 9 to having a vaccine to prevent that terrible disease, it was 10 really through the work of clinical research investigators 11 doing clinical studies, learning more about the disease and 12 about treatment interventions that hopefully ultimately is 13 going to improve care. 14 Q. Have you ever served as a clinical investigator? 15 A. Yes, I have. 16 Q. On about how many occasions? 17 A. Oh, I would say certainly the range of 100 18 times. 19 Q. All right. And for whom have you conducted 20 clinical trials as a clinical investigator? 21 A. I've been involved with clinical trials that 22 have been sponsored by the National Institutes of Health, 23 agency of the federal government, foundations that are 24 committed to health care research, and I've also done trials 25 that were sponsored by pharmaceutical companies in the course 206 1 of product assessment and development. 2 Q. What sorts of conditions or medicines were you 3 looking at if there was a -- if there was a portion of those 4 that fit into the category? 5 A. I would say probably about 40 to 50 percent 6 would be categorized as treatments as far as medication 7 clinical trials; treatments for mood disorders, principally 8 depression; probably about, oh, 20 percent of the effort or so 9 in the area of anxiety; another 20 percent in Alzheimer's or 10 related memory disorders; and maybe about 10 percent in the 11 area of psychoses such as schizophrenia. 12 Q. Do you sometimes do clinical trials not 13 involving medicine? 14 A. Certainly. 15 Q. Again, not at any great length, but tell the 16 jury what kind of clinical trial is that? 17 A. Well, a lot of -- before we really get into a 18 treatment study, it's often helpful to try to know more about 19 the disease that one wants to treat. So a lot of research, 20 using depression as an example, might be looking at patients 21 who have the illness and trying to better understand the 22 illness, how it affects patients, how it might present in 23 different ways for different people, different segments of the 24 society, maybe ethnic differences in the presentation of the 25 disease, a variety of features like this that would help 207 1 better understand the disease which, hopefully, in turn, could 2 lead them to better applications of our treatments. 3 Q. Have you done clinical investigations for 4 Eli Lilly and Company? 5 A. I have. 6 Q. How many? 7 A. One clinical trial for Lilly. 8 Q. All right. We'll come back to that. Why do 9 physicians choose to do clinical investigations? Why would 10 they do that? 11 A. Well, I think, you know, if you think about the 12 educational process that a physician goes through, part of 13 their training is in the area of science, and so a lot of 14 physicians still retain that scientific curiosity. And one 15 way that they find when they're taking care of patients and 16 questions arise in the care of patients, one way to try to 17 answer those questions is to design clinical trials in a 18 scientific and sophisticated manner to try to address and 19 resolve some of those questions. So it's an intellectual 20 curiosity, but it also has a very practical side, and that is 21 to try to improve patient care. 22 Q. When you did clinical investigations yourself, 23 was the funding for those clinical investigations in any way 24 tied to the result of the study? 25 A. No. Never. 208 1 Q. Would that have been characteristic in any way? 2 A. It was characteristic that it never was an 3 expected relationship to an outcome of a trial. 4 Q. When you performed clinical investigations did 5 any sponsor ever attempt to interfere with your independent 6 judgment? 7 A. No. 8 Q. Did you have a right in those clinical studies 9 to publish your research? 10 A. Yes, we did. I mean, one of the major 11 motivators for doing clinical research, besides the immediate 12 benefit of care to the patients you're seeing, is, of course, 13 to try to publish that information in peer-reviewed journals 14 so that other people, other physicians maybe that aren't 15 involved in clinical research have an opportunity to read that 16 information and learn from it. So it was always for us a 17 prerequisite that we had the ability to publish any of the 18 data that we were generating. 19 Q. When you did the studies you did, I guess they 20 were mostly in Minnesota, were they? 21 A. That's correct. 22 Q. All right. Where did the patients come from, 23 what part of the state or community or sectors? How did you 24 find the patients to do the work? 25 A. Well, the vast majority of our patients came 209 1 from the five-county area around the twin cities of Minnesota 2 and St. Paul. Certainly the majority I would say came 3 directly from Ramsey County. We'll really have patients come 4 in several different ways. We would have some of our patients 5 that volunteered for clinical trials that were already in our 6 clinic and saw this as an opportunity to perhaps find a more 7 effective intervention to treat their illness. 8 We would often make our colleagues in other 9 areas of the medical center aware of clinical trials, so if it 10 was an internist, for example, working in a geriatric clinic, 11 we might indicate that we are investigating the treatment of 12 depression in those 65 years of age and older. And they would 13 then refer patients from their clinic that were interested in 14 participating in the trial, so there was a referral process. 15 And in some studies where we were trying to look 16 at larger number of patients for less common disorders, we 17 sometimes would advertise, and that could be in the form of an 18 article in a newspaper. Once in a while, if one of the local 19 TV stations was interested in talking about a disease, for 20 example, Alzheimer's, they might come in and do a small 21 segment on the disease and the clinical trial options 22 available, and they might provide a phone number if family 23 members or patients wanted to call in and get more 24 information. 25 Q. Before you can undertake -- or you can undertake 210 1 in your situation, clinical investigation, do you have to 2 receive permission from anybody? 3 A. Yes. It is typical that each medical center or 4 hospital would have what's called an institutional review 5 board or committee, and that's a group of really 6 crossfunctional people; typically, you'd see physicians, 7 nurses, somebody from pastoral counseling -- a priest or a 8 minister -- somebody from the community that would sit on this 9 committee. They would always review or look at a protocol to 10 make sure that they were protecting the basic interests of 11 that patient or patients in the hospital; was this study 12 ethical; was it indeed not exposing the patient to unnecessary 13 risks. Once that group approved the protocol, then we could 14 commence with the clinical research. 15 Q. Again, I think the jury's heard a lot about this 16 already, but, very briefly, what's a protocol? 17 A. Well, a protocol -- 18 MS. ZETTLER: Your Honor, can we be heard? 19 (BENCH DISCUSSION) 20 MS. ZETTLER: We've gone and gone through this 21 ad nauseum. It's wasting a heck of a lot of time. 22 JUDGE POTTER: His key word was "briefly." I do 23 think some of this, even though it's repetitive for us, is not 24 repetitive for the jury. I mean, it takes a long time to 25 translate the word "investigator" to be "doctor." So as long 211 1 as we're not going to dwell on it, I'm going to overrule the 2 objection. 3 (BENCH DISCUSSION CONCLUDED) 4 Q. Doctor, again, briefly, the protocol? 5 A. A protocol is a general outline of how a 6 clinical study should be conducted, and it has the benefit 7 within a research center that each patient that one sees in 8 the clinical trial is essentially evaluated in a similar 9 manner and, more importantly, if the study's involving 10 multiple centers, maybe there's a center in Minnesota and a 11 center in California and another one here at the university, 12 to make sure that investigators across the country are 13 generally approaching the conduct of the trial in a similar 14 manner. So it's kind of an outline or a template for how to 15 go about conducting the trial. 16 Q. Have you ever been involved in creating or 17 drafting a protocol? 18 A. Yes. 19 Q. Are you familiar with the terms inclusion 20 criteria and exclusion criteria in connection with a clinical 21 study, and what are they? 22 A. Yes. I am familiar with them. Inclusion and 23 exclusion criteria are efforts to try to better define 24 patients who would be acceptable candidates to participate in 25 a study or those who might not. And there could be a variety 212 1 of reasons that inclusion or exclusion criteria are present. 2 One of the historical problems with studies in psychiatric 3 patients is that the diagnoses weren't always crystal clear. 4 And so in an effort to have well-defined inclusion criteria, 5 you were able to get similar patients that are enrolled in the 6 study. And it's important to have that homogeneity or that 7 sense of being somewhat similar based on their diagnosis, for 8 example, in order to best determine the results of the study. 9 In other cases, there might be patients that 10 wouldn't be good patients to be in a study. It might be 11 medically contraindicated for them to participate in that type 12 of study. That falls over into what we call the exclusion 13 criteria. 14 Q. Now, Doctor, there has been some testimony in 15 this case about an exclusion criterion in Prozac clinical 16 trials for patients at serious risk of suicide. Are you 17 familiar with that? 18 A. Yes. 19 Q. What is the reason for excluding such patients, 20 very briefly? 21 A. In my experience, that is not unusual. In most 22 clinical depression trials where a potential new 23 antidepressant and a placebo are being compared, there are 24 significant ethical concerns about a patient with serious 25 suicidal thinking being exposed to an inactive medication, a 213 1 sugar pill or a placebo, or for that matter a new 2 antidepressant that has not yet been proven to be effective. 3 So typically from the ethical viewpoint of that research, it's 4 felt that that is too high of a risk patient to expose them to 5 an inactive treatment or a sugar pill. 6 Q. Does that mean that patients who have 7 suicidality in any way are excluded from the Prozac clinical 8 trials? 9 A. No. Really quite the opposite. First of all, 10 it probably is useful to know that if a patient were excluded 11 from a protocol, it was done by the physician evaluating that 12 patient and determining, he or she, that that patient 13 represented a serious and an imminent risk of suicide. But, 14 in fact, in looking at the Prozac database in the U. S. 15 depression trials, there were approximately a third of all of 16 those patients who had suicidal ideation at the time that they 17 entered the trial. And in the studies conducted overseas, 18 there in fact were something like 40 percent, or two out of 19 every five, that had suicidal ideation at baseline or at the 20 time that they first entered the trial, which is about 21 consistent with what one sees in the literature. 22 Investigators like Overall have suggested that 23 at any one point in time if you were to interview 100 24 depressed patients, 20 of them would likely have suicidal 25 ideation. So it's fairly consistent, I think, with what's 214 1 been reported in community samples. 2 Q. How is this presence of suicidality measured? 3 You talked about people with suicidality being in the trials. 4 How is it measured? 5 A. Well, coming from a clinical background, I have 6 a little bit of a bias, and I think that the best way -- in 7 fact, one of the ways that it is measured and in my opinion 8 the best way, is through an interview of the patient; that 9 would be that the physician would sit down and ask a series of 10 questions about suicidal ideation or suicide attempts and try 11 to put together that history to make the assessment whether or 12 not that patient did represent a serious risk or not. So I 13 think the clinical interview, which is part of all of these 14 trial evaluations, is really the cornerstone because it 15 involves a dialogue between the patient and the doctor. 16 Now, there are other instruments used. There 17 are depression rating scales, such as the Hamilton Depression 18 Rating Scale, that has a very specific item, the third item on 19 that scale, that runs the physician through in an objective 20 manner several questions to characterize suicidality. And 21 there are other skills that sometimes are used that are given 22 to the patient to sit down and fill out, which are another way 23 potentially to look at that question. 24 Q. Doctor, we've heard a certain amount about the 25 Hamilton Depression Scale, but I'm not sure the jury has seen 215 1 it specifically, and I'd like to take just a minute to show 2 that item. I think you mentioned the item on the Hamilton 3 Depression Scale, Item 3? 4 A. Yes, sir. 5 Q. Now, in highly specific terms, in the doctor's 6 office, how does that -- how does that work? Does the patient 7 fill that out himself or herself? 8 A. No. It's really on the contrary. One of the 9 strengths of the Hamilton as an entire scale, and specifically 10 Item 3, is that it's called a semi-structured interview. It's 11 the physician having a discussion with the patient about 12 what's going on in his or her life. And I think in general, 13 at least in my experience, that is preferable to giving the 14 patient a form to go sit down and fill out and then bring 15 back. I like the ability to interact with the person, and 16 that really is the cornerstone here. 17 Q. All right. Now, I'm going to show here the 18 particular item -- Hamilton Rating Scale for Depression, 19 Item 3, sometimes called the HAMD-3, which I think you've 20 heard about in this trial, and I'd ask you to take the jury 21 through that and tell the jury what happens when the doctor 22 gets to that point in this Hamilton. 23 A. Well, these items typically, the physician 24 wouldn't specifically ask the patient, you know, these 25 questions point-blank, One through Four or Zero through Four. 216 1 What they do is that they basically are collecting a clinical 2 history. If you've ever been in and talked to a physician 3 about if you're having problems with your stomach or your 4 back, a physician collects a clinical history. This history 5 would be directed towards items around depression as an 6 illness. 7 What the physician would do is really focus on 8 how has this patient been feeling over the last seven days, 9 because that's how these items are set up, what's been going 10 on over the last week. And once the patient had completed the 11 interview with the physician, the physician would look through 12 these 17 items, for example, and in this case Item 3, and 13 figure out which one of those scores, zero, one, two, three or 14 four, would best characterize his or her clinical assessment 15 of where that patient is at right now or where they've been at 16 in the past seven days. 17 Q. When you have a clinical trial where a patient 18 is rated over a period of weeks, does the doctor talk to the 19 patient each time and go through this? 20 A. Yes. 21 Q. And you sometimes measure changes over time? 22 A. That is really the precise reason that a scale 23 like this is part of the clinical trials. It's a primary tool 24 to assess change in severity of depression. 25 Q. Thank you. I think we can probably just put 217 1 this down. (To the Jury) Do you want me to leave it up? 2 Now, Doctor, in a clinical trial, does the 3 clinical doctor try to record all things that might happen 4 adversely, not just those that are related to the drug, or is 5 it only those related to the drug that he tries to record, or 6 she? 7 A. All events. 8 Q. So that if I were taking a drug and a car ran 9 over me, that would be reported? 10 A. Yes, it would. 11 Q. Or I got some other different disease, that 12 would be reported? 13 A. That's correct. 14 Q. All right. Now, in your experience as a 15 clinical investigator, did Eli Lilly or the National 16 Institutes of Health, or anybody who was a sponsor for your 17 clinical study, ever suggest that you should ignore or 18 downplay the adverse events? 19 A. No, they did not. 20 Q. All right. Now, I'd like to come back to what 21 you mentioned a minute ago, the time when you served as a 22 clinical investigator in a trial sponsored by Eli Lilly. 23 Would you tell the jury about that occasion. 24 A. Well, that was -- if I could, I'd like to give a 25 brief background on the study or where the idea came from. 218 1 Q. I think that's a good idea. 2 A. In clinical practice in the treatment of 3 depression, it's been well recognized that about a third of 4 patients, as part of their depression, will have some features 5 of what are called agitation. And, in fact, one of the nine 6 symptoms for a diagnosis of depression is does this patient 7 have psychomotor agitation or psychomotor retardation, so it's 8 a symptom or a sign of the disease, and typically about a 9 third will have agitation. 10 Now, over the years in the medical literature 11 it's been an area that hasn't been extensively studied, 12 agitation in depression, and some people have said, gee, you 13 really need to give those patients the most sedating of 14 antidepressants, things that were really going to put them to 15 sleep. And one of the problems, from my viewpoint as a 16 clinician, was that people didn't like medications that made 17 them feel real tired and groggy. Yes, they might have slept a 18 little better during the night; they have to get up and they 19 have to do things during the daytime, and no one likes to feel 20 groggy and slowed down. 21 So we were interested in looking at this concept 22 of what would happen if you were to take a serotonin-based 23 antidepressant like Prozac, for example, and we know that 24 those agents have been shown to be effective in treating 25 anxiety that accompanies depression; let's do a comparison 219 1 between a drug from this new serotonin family and an older 2 tricyclic antidepressant, one of these more sedating drugs. 3 And the one we chose in this case is really the first one in 4 the market or second one in the marketplace calmed imipramine, 5 and we did a study, we proposed to do a study of comparing 6 those two medications in the treatment of a very carefully 7 diagnosed group of depressed patients who also had agitation 8 as part of their disease. And that was the proposal that I 9 forwarded to Eli Lilly and Company, to see if they might be 10 interested in sponsoring that trial. 11 Q. Was that your idea or Lilly's idea? 12 A. That was my idea, sir. 13 Q. And what was Lilly's response? 14 A. They were very interested in the concept, and 15 they in fact offered to provide support for that study to be 16 conducted. 17 Q. And there was a protocol for that; who prepared 18 that protocol? 19 A. That was a protocol -- part of making the 20 proposal to Eli Lilly and Company for this study I had put 21 together a draft of a protocol and forwarded it to them and 22 said this is the type of study that I'd like to conduct. 23 Q. Did you -- strike that. 24 Did Lilly try to dictate what you would do in 25 that trial? 220 1 A. No. They had some constructive suggestions, but 2 it essentially was my protocol and that's what we went with. 3 Q. Was this a multicenter protocol or was it just 4 done up there in Minnesota? 5 A. Well, initially we had wanted to do this as a 6 single site, but when we talked with a statistical group, in 7 order to have enough patients to be able to demonstrate if 8 there was any meaningful difference between the two treatment 9 arms, we felt we were going to need about 124 patients in the 10 study, and the amount of time it might take us to recruit that 11 many patients just in Minnesota was probably going to stretch 12 out for quite a while. So we felt it would be useful to have 13 a second site, so we did invite a second investigator -- I 14 invited a second investigator to participate. 15 Q. Who was that? 16 A. That actually was a tandem of two investigators 17 located at the University of Wisconsin Medical School, Doctor 18 James Jefferson, and a colleague of his, Doctor John Greist. 19 Q. The jury knows Doctor Greist. Why were you 20 interested in working with Jefferson and Greist? 21 A. Well, they were clearly leaders in the field of 22 depression research, and they were also people that I had 23 worked with in the past. And sometimes it's easier to do 24 these kind of collaborative studies when you're working with 25 someone who you know and you can pick up the telephone and 221 1 talk to and feel that you're on the same wavelength. Also, 2 they had done a lot of work with these type of rating scales 3 and had a lot of expertise in their use and improving the 4 reliability in how these kinds of scales are administered, and 5 they were in our geographic area, so it was just a nice mix 6 for this type of study. 7 Q. Now, I'm trying to move you along through some 8 of this which the jury has heard, but I want you to tell the 9 jury now with some care, what did you do in that study? 10 A. Well, this study, first of all, attempted to 11 carefully diagnose patients, first of all, with major 12 depression. There is a psychiatric textbook for diagnosis 13 that's put out by the American Psychiatric Association. It's 14 called -- at the time it was the DSM-III-R, Diagnostic and 15 Statistical Manual, and they had to meet the criteria set up 16 by the American Psychiatric Association for a major 17 depression. Because we were interested then in the agitated 18 subtype of this, we needed to find a way to also better 19 characterize that group of patients, we went back to really 20 one of the standard tools called the Research Diagnostic 21 Criteria, which had been around for over 20 years as a 22 standard diagnostic instrument. And in the RDC criteria there 23 is actually a very nice description of the criteria for 24 agitation in depression. 25 So then the second hurdle that patients had to 222 1 exceed was did they meet these criteria from RDC for agitation 2 as part of their depression. Once we got to that point, we 3 then looked at the depression's severity. They had to at 4 least have a moderate degree of severity of depression as 5 measured by this Hamilton Depression Rating Scale. Then if 6 they were interested in participating in the study and gave 7 their permission, they were then randomized, which means they 8 could go, unbeknownst to the patient or to us as 9 investigators, to one of two treatments either in this case 10 fluoxetine, or Prozac, or the tricyclic I mentioned, 11 imipramine. And they were then followed weekly for the next 12 eight weeks and assessed on a variety of both safety and 13 efficacy measures. 14 Q. Was this study blinded? 15 A. Yes, it was. 16 Q. How much? Was it a single blind? 17 A. It was a double blind, which means that the -- 18 as I was just saying, the patient was unaware which medication 19 he or she was taking, and the physician doing the rating or 20 the evaluation was also blinded to which medications they were 21 on. So when you hear the term the patient and the physician 22 being blinded to the study, that's where the concept of double 23 blind comes from. 24 Q. Doctor, let me just stop you here for a minute. 25 These patients were to be depressed, the agitated subtype? 223 1 A. Correct. 2 Q. Could you describe for the jury what a doctor 3 sees when a person walks into that doctor's office and he or 4 she sees a person who is agitated depressed? 5 A. Sure. Agitated depression refers to things that 6 a physician or for that matter a family member, a loved one, 7 could observe. And they typically involve what we call motor 8 manifestations; that means physical or muscle-related 9 activities. So what one can see would be an inability to sit 10 still, restlessness, maybe the need once in a while to get up 11 and walk around the room. It could be somebody who has 12 some -- we call it pressure to their speech; they're talking 13 fast; they may even at times raise their voice. And they may 14 as part of a nervous habit pick at things. They might pick at 15 their skin or pull at their hair. In some of the more severe 16 cases, you might find that actually they could pull out a 17 clump of hair or something if they were really agitated. But 18 these are physical manifestations that the physician can 19 evaluate and then score or record regarding their severity. 20 Q. Is agitation the same or different from anxiety, 21 nervousness and insomnia? 22 A. In the pure psychiatric definition, they really 23 are quite different phenomena. Sometimes you may see a bit of 24 an overlap, but agitation we think of -- and the RDC criteria 25 are quite clear on this -- rely again to this motor 224 1 manifestation or the muscle movement motion kinds of features; 2 whereas, anxiety and nervousness -- I think that probably most 3 of us have had that experience -- is more of a psychological 4 feeling of sort of being on edge or being a little bit 5 apprehensive or a little bit worrisome. So really quite 6 different, I think. 7 Q. All right. Have you treated a number of 8 agitated depressed patients? 9 A. Yes, sir. 10 Q. And is agitation recognized as a part of the 11 disease of depression? 12 A. Very definitely. Again, I just emphasize it is 13 one of the nine principal diagnostic criteria for major 14 depressive disorder. 15 Q. Now, we've also heard in this trial, and 16 sometimes these terms may get used differently, the term 17 activation. Is that the same as agitation or different? 18 A. Again, different. Activation is, at best, I 19 would say a category of experiences. You put kind of a 20 heading over a category or a list. I would think of 21 activation somewhat akin to, oh, if you've had half a dozen 22 cups of coffee in the morning or so, feeling a little bit, you 23 know, on edge, perhaps. And within activation then there are 24 these two families; there would be motor features, which we 25 just discussed, which is agitation, and there would be 225 1 psychological features that one might see if you were 2 activated, which get more into the nervousness or the anxiety. 3 Q. Now, Doctor, could you take us through what the 4 findings of your study were? Maybe I'll put some of these up. 5 Go ahead while I put this down. Wait one second, Doctor. All 6 right. So you were you looking in this agitated depressed 7 group of patients, and you were trying them half on 8 fluoxetine, half on imipramine, in a double-blinded study? 9 A. That's correct. 10 Q. What did you find? 11 A. Well, the first thing that we looked at was 12 overall efficacy of the medication, and that was based again 13 on principally the Hamilton Depression Rating Scale for 14 depression severity. What we observed was for those patients 15 who could continue on a medication, both imipramine and 16 fluoxetine were equally effective treatments for agitated 17 depression. That was sort of step one for the data. 18 Q. All right. Let me just make a note of that. So 19 we're looking at agitated depressed. I'm going to abbreviate 20 this for time. We're looking at agitated depressed people. 21 And so far as efficacy, whether the medicine worked in those 22 who stayed on the medicine, it was about the same. 23 A. That is correct. Now, the next step or next cut 24 would be to look at overall study completion rates. In other 25 words, this was -- 226 1 Q. Wait one second, Doctor. Let me just try and 2 put this up here so we can see. So we had Prozac and we had 3 imipramine, which is one of the tricyclics. 4 A. There were 62 patients in each of those arms 5 that started. 6 Q. Okay. And for efficacy they were about the 7 same? 8 A. That's correct. 9 Q. All right. What else did you find? 10 A. All right. Well, next cut of the data was since 11 this was an eight-week study we were interested in how many 12 patients were able to continue on their medication for the 13 entire eight weeks of treatment. What we saw there was that 14 75 percent of the Prozac patients completed the entire eight 15 weeks of treatment, versus approximately 50 percent, 49 16 percent, of those on imipramine. And that was a statistically 17 significant difference. There were fewer patients who 18 completed the trial that had been assigned to imipramine when 19 compared to Prozac. 20 Q. All right. So what would I call that, 21 completed? 22 A. Completion rate. 23 Q. And give me those numbers again, please. 24 A. 75 percent for Prozac were completed and 25 approximately 50 percent imipramine. 227 1 Q. All right. What else did you look at? 2 A. Well, then, one of the key questions that comes 3 out of this is, okay, why did these patients not complete who 4 didn't complete the study. And the most prevalent group there 5 were patients who dropped out due to a drug side effect. In 6 other words, they had a side effect, it was severe enough that 7 they said, "I really don't want to continue taking this 8 medication," and so that was a discontinuation rate attributed 9 to a drug side effect or a potential drug side effect. 10 Q. And what did you find about that? 11 A. What we saw was that the number of patients who 12 dropped out for a drug side effect was approximately 44 13 percent of the imipramine patients, and that contrasted with 14 in the range of about 20 percent or so for the fluoxetine 15 patients, actually in the high teens. 16 Q. All right. Now, again, we're looking at just 17 this agitated depressed group, and now we're going to -- what 18 should I put here, this is dropout for drug side effects? 19 A. Right. Specifically on the dropouts for drug 20 side effects, 44 percent for imipramine. 21 Q. Yeah. 22 A. And in the range -- I don't remember the exact 23 number, but approximately 15 percent, maybe even a little bit 24 less, for Prozac. 25 Q. Okay. Now, these numbers, these percentages are 228 1 of the people who dropped out for drug side effects? 2 A. Correct. Right. And those were very 3 statistically significant differences between the two 4 treatment agents. 5 Q. Anything else you looked at, Doctor? 6 A. Well, because this was a patient group that had 7 agitation as part of their disease at baseline, we took this 8 analysis one step further, and that is, well, what class of 9 side effects did they have that led to their dropping out. 10 The class we were mostly interested in are called psychiatric 11 or central nervous system side effects. So we then looked at 12 how many dropped out due to a CNS, or central nervous system, 13 side effect. There the data was 24 percent imipramine, 14 7 percent for Prozac, which again was statistically 15 significantly different and in favor of fluoxetine. 16 Q. So what's the right way to write that one down? 17 A. We could just say dropout for CNS side effect, 18 CNS meaning central nervous system. 19 Q. And what kinds of things are in a CNS side 20 effect? 21 A. Well, they could include some of the terms that 22 we were speaking about a few moments ago, the nervousness, 23 anxiety, could include agitation, insomnias, be a classic 24 example. 25 Q. And, I'm sorry, the numbers again? 229 1 A. For Prozac it was 7 percent, and 24 percent, I 2 believe, with the imipramine group. 3 Q. Is imipramine sometimes referred to as a 4 sedating antidepressant? 5 A. Definitely. 6 Q. Okay. Anything else you looked at there, 7 Doctor? 8 A. Well, those were sort of the basic safety and 9 efficacy analyses that we did with this particular patient 10 population. We were interested in several other questions 11 that I could go over very quickly for you. 12 Q. All right. What were those? 13 A. One was because we were looking at a group with 14 agitation, we were interested in assessing what was the effect 15 of the drug therapy on agitation. What we observed -- and we 16 had two ways actually to look at this, one way was this RDC 17 criteria I mentioned earlier or this agitation rating scale; 18 the other way we used is Item 9 from this Hamilton Depression 19 Rating Scale. Item 9, which is similar to what you saw for 20 Item 3 here, is set up around agitation, from the absence of 21 agitation to a fairly significant amount of clinical 22 agitation. So we looked at that scale, as well, and what we 23 saw relative to therapeutic effects was that if patients were 24 staying on medication, either of these medications, their 25 agitation scores from baseline to completion of the trial went 230 1 down as a group. 2 We then also were interested, well, how about 3 agitation as a side effect; in other words, in a patient where 4 maybe it got worse during the course of treatment to the point 5 they had to stop taking their drug. And we saw there were 6 zero patients with Prozac who had agitation serious enough to 7 drop from the trial, and there were three patients with 8 imipramine it was serious enough they said, "I'm going to stop 9 taking the medication." So we did those agitation analyses, 10 and the other major analyses were done in the area of -- 11 Q. Before you go to the next one, let me just stop 12 you there. For -- you were looking in this next part to see 13 if the medicine made -- what, made the agitation depressed 14 people better or made their agitation better? 15 A. Correct. Again, the -- if I can give you 16 background on the thought here, because agitation is one of 17 the symptoms of the disease, one would hope that if the 18 medication is actually helping the depression, that all the 19 symptoms and signs should improve. So one would hope then, 20 based on that logic, that agitation would improve, and that 21 was one of the things we wanted to test in this study, was 22 that indeed the case. 23 Q. You were trying to see if these medicines made 24 the agitation part better? 25 A. Yes. 231 1 Q. And what did you find there? 2 A. Again, we found in the vast majority of patients 3 there was a reduction in their agitation rating scale scores 4 from when they entered the study to when they left the study 5 at completion. 6 Q. On both Prozac and imipramine? 7 A. That's correct. 8 Q. So that's what you looked at on the agitation 9 side? 10 A. Yes, sir. 11 Q. Now, you were about to say you looked at 12 something else. 13 A. Well, one of the other principal analyses in 14 this study was an analysis for suicidality. And, again, we 15 had two different ways that we were looking at it; one was the 16 Item 3 from the Hamilton rating scale that you just saw that 17 graphic on, which was the physician-administered evaluation of 18 the patient. But to take another look at this and because it 19 had been an interest of the group at Wisconsin that was our 20 co-investigators, we used another instrument called the ASIQ, 21 or the Adult Suicide Ideation Questionnaire, which is a 22 paper-and-pencil evaluation of some 25 items that the patient 23 fills out. So we did both a physician evaluation and a 24 patient report evaluation. 25 Q. And what did you find with respect to 232 1 suicidality? 2 A. Well, again, in patients who were on active 3 therapy of either of these medications, they experienced a 4 reduction in baseline to end-point suicidality. They had less 5 suicidality. We had -- we were interested also in whether or 6 not any patients might have a very significant increase in 7 suicidal thinking during the course of the trial. We analyzed 8 specifically for that. We didn't see any of it with either 9 drug. None of the patients had a very dramatic crescendo to 10 real serious suicidal ideation. 11 So the majority had an improvement. There was, 12 as I recall, one patient in the imipramine arm who entered the 13 study with a fair amount of suicidality at baseline, who did 14 have a nonfatal attempt during the course of the study. That 15 was the only attempt that we saw. 16 Q. In either group? 17 A. In either group; that's correct. 18 Q. All right. Well, with the agitation and the 19 suicidality that you looked at, it went down in both Prozac 20 and imipramine, and the Prozac and imipramine were not 21 different? 22 A. Numerically, Prozac looked a little bit better, 23 but from a statistical analysis, we would say they were 24 comparable in their efficacy. 25 Q. The agitation went down in both cases. What 233 1 about suicidality? 2 A. Suicidality improved. 3 Q. In both of them? 4 A. Yes, for the majority of patients. 5 Q. Was there a significant difference between the 6 two medicines so far as the suicidality is concerned? 7 A. Not that I recall. 8 Q. Does the fact that one of the imipramine 9 patients made an attempt at suicide during this study mean the 10 imipramine caused that? 11 A. No. My interpretation, based on my experience 12 and reading of the literature, is that, again, suicidality is 13 part, one of the symptoms of this disease. Unfortunately, 14 it's part of the morbidity and mortality of the illness and 15 that does sometimes happen in patients being treated for the 16 disease, that before their disease might improve with 17 treatment, the natural course of the illness might progress, 18 and that might be one of the unfortunate outcomes of the 19 disease. 20 Q. Doctor, have you presented these findings 21 anywhere for review by the medical community? 22 A. They were presented in 1993 at the annual 23 meeting of the American Psychiatric Association. 24 Q. And have they been offered for publication? 25 A. Yeah. We did submit this to a peer-reviewed 234 1 journal, one of the leading journals in the field called the 2 Journal of Clinical Psychopharmacology. And the article has 3 been accepted for publication, and it's my understanding that 4 it should appear in the December issue of that journal. 5 Q. All right. Doctor, I'd like to turn to another 6 subject now. Do depressed patients exhibit signs of 7 activation? I'm asking about activation now. 8 A. Well, my -- the answer is yes, and when you had 9 me define activation earlier, I would just point out that some 10 depressed patients, in fact, perhaps as high as 60 percent, 11 will present with anxiety as part of their depression, and 12 that's often referred to as a mixed anxiety depression or a 13 co-morbid state. And as we said earlier, about a third of the 14 depressed patients may have this motor activation, and there 15 is some degree of overlap between the two. 16 Q. Do patients receiving antidepressant medicines 17 ever suffer from activation? 18 A. Activation can be a side effect of any of the 19 antidepressants that I'm aware of. 20 Q. Do some patients who receive the antidepressant 21 Prozac ever report activation? 22 A. The patient probably wouldn't report activation. 23 They would be more likely to indicate a specific symptom, as 24 they're not sleeping well, they're feeling more nervous, 25 they're feeling a little bit anxious. And then it might be 235 1 categorized under this heading that I mentioned earlier that 2 we call activation. 3 Q. If a depressed patient who is receiving an 4 antidepressant such as Prozac, reports symptoms of activation, 5 what is it reasonable to conclude about whether it's the 6 disease or the medicine that caused the activation? 7 A. Well, typically one has to -- I mean, it's a 8 very important issue that is best determined I think between 9 the physician who's taking care of that patient and the 10 patient to determine because it's not a simple yes/no kind of 11 thing. The clinical history is very important here in 12 assessing were these features that were part of the depression 13 when the patient first came in for treatment; how have they 14 changed with the introduction of the treatment; are there any 15 other factors that could explain why the clinical picture has 16 changed. 17 In my own experience, one of the pitfalls is 18 you're treating someone for depression. They've been on the 19 medication for, let's say, a week; they come into your office 20 and they look worse. And, you know, one explanation, you 21 know, you run through your mind is, well, could this be that 22 the medication hasn't started to work or it's somehow 23 triggering this, and then you sit down and you do what I think 24 a physician should do; you sit and talk with the patient to 25 understand, "Well, what's been going on in your life this past 236 1 week," and you find out that maybe a spouse has left them or 2 maybe they've lost their job or something. There's been a 3 significant change in their psychosocial well-being, and all 4 of a sudden you can understand why there's been a change in 5 how they're feeling. So one needs to get in to weigh what has 6 changed from the patient's clinical history and then put that 7 in the context of what one knows about the medication to make 8 the most informed decision. 9 Q. Events with respect to anxiety, insomnia, other 10 events, are reported by Lilly in the package literature for 11 Prozac? 12 A. That's correct. 13 MS. ZETTLER: Objection, Your Honor, leading. 14 JUDGE POTTER: Sustained. 15 Q. What does the package literature do with respect 16 to events of that sort? 17 A. If I understood you correctly, things such as 18 anxiety and nervousness as an example? 19 Q. Yes. 20 A. Those are prominently displayed in four areas in 21 the Prozac package insert. They actually are the lead section 22 under Precautions. They also are the lead section under 23 Adverse Events, and then immediately below that are discussed 24 as far as adverse events that could lead for a patient to 25 discontinue treatment. And then, as I recall, in the upper 237 1 left-hand corner of a very large table called Table 1 in the 2 package insert, there is a section called Nervous System that 3 runs through specific nervous-system-like side effects and 4 what was the incidence of those; how often were they seen in 5 clinical trials. So if I'm not forgetting it, I believe there 6 are four definitive areas where it's mentioned in the package 7 insert. 8 Q. Doctor, turning to a slightly different subject 9 in the same area, and that is do patients on Prozac ever 10 report experiencing sedation? 11 A. Yes. Indeed they do. Sedation is a side effect 12 that in the Prozac literature, as one goes up with the dose, 13 there is a higher percent of patients that might complain of 14 sedation. So, for example, the rate at 20 milligrams is going 15 to be lower than it might be if a patient were on 60 16 milligrams. We'd call that a dose-dependent side effect, but 17 it is definitely seen in clinical trials. 18 Q. Doctor, in your opinion is it correct to call 19 Prozac an activating or a stimulating drug? 20 A. No. I don't think so, because the majority of 21 patients experience neither an activation or a sedation. From 22 the viewpoint of a clinician, when we're talking about these 23 features of the disease, like do you have psychomotor 24 retardation or psychomotor agitation, what we're looking at in 25 effective therapy is to try to normalize those behaviors, 238 1 bringing them back more towards what is normal for that 2 individual before the onset of depression. So there are some 3 folks that might have either event out on the continuum, but 4 for the majority it should have more of a normalizing effect. 5 Q. All right. Now, at this point I want to turn to 6 another study. Are you aware of any research to attempt to 7 determine whether patients who experience activation while 8 taking Prozac are or are not more likely to become suicidal or 9 violent? 10 A. Well, that -- there certainly was a very, I 11 think, extensive study that I was involved publishing and was 12 the lead author, where we were interested in exploring whether 13 any number of adverse events -- in fact, we had nine different 14 categories of adverse events extending from activation, as you 15 mentioned, through a number of other psychiatric side effects 16 to on the other end -- 17 MS. ZETTLER: Your Honor, could we be heard on 18 this? 19 (BENCH DISCUSSION) 20 MS. ZETTLER: This study has never been 21 mentioned to us before, Your Honor. We took this man's 22 deposition; he never mentioned this study. This is something 23 that has just begun recently; we took his deposition within 24 the past six months. This has never been disclosed to us 25 before. 239 1 JUDGE POTTER: Well, why don't we take the 2 evening recess. 3 (BENCH DISCUSSION CONCLUDED) 4 JUDGE POTTER: Ladies and gentlemen, I'm going 5 to take the evening recess. As I've mentioned to you-all 6 before, do not permit anybody to talk to you about this case 7 or communicate with you about this case, and, obviously, that 8 includes newspapers or friends or television or whatever. Do 9 not discuss it among yourselves, do not form or express 10 opinions about it. We'll stand in recess till 9:00 tomorrow 11 morning. 12 (JURORS EXCUSED AT 4:40 P.M.) 13 JUDGE POTTER: Mr. Myers, you're probably a good 14 expert on what's been produced and hasn't been produced. Do 15 you know what they're talking about in the study, Mr. Myers, 16 or show it to Ms. Zettler; maybe she'll recognize it. 17 MR. MYERS: I don't have the paper with me, 18 Judge. 19 JUDGE POTTER: Do you know what they're talking 20 about -- Mr. McGoldrick, what is it involving? 21 MR. McGOLDRICK: This is the study often called 22 the cluster study, at least by me, and I -- 23 MR. SMITH: Judge, that door is open back there. 24 (MR. THURSTON CRADY CLOSES THE JURY-BOX DOOR) 25 JUDGE POTTER: Have you got a copy of it? 240 1 Doctor, do you have a copy of it with you? 2 MR. McGOLDRICK: I hear from Mr. Myers here that 3 it is a study in the sense of their going back and looking at 4 the data; perhaps the Doctor can tell us more. Is it 5 published? 6 DOCTOR TOLLEFSON: No, it isn't published. 7 JUDGE POTTER: Do you have a copy of it? 8 DOCTOR TOLLEFSON: I have a copy in Louisville 9 but not here at the courtroom, Your Honor. 10 MS. ZETTLER: When was it published? 11 MR. BRENNER: June '90. 12 MS. ZETTLER: We took his deposition in July, 13 and it never did -- 14 JUDGE POTTER: Why don't we recess till the 15 morning, and if he wants to talk about it, somebody's going to 16 have to show me that it was either in his deposition or 17 somehow he was made aware of it. He's just a Lilly employee 18 that was listed as a person that was going to talk about his 19 job; is that right? That gives both of you time to -- 20 MR. McGOLDRICK: We'll address it tonight and 21 come back tomorrow morning. 22 JUDGE POTTER: And I'll see Mr. Myers and them 23 at 7:30, and the rest of you at 9:00. 24 (PROCEEDINGS TERMINATED THIS DATE AT 4:50 P.M.) 25 * * * 241 1 STATE OF KENTUCKY )( )( Sct. 2 COUNTY OF JEFFERSON )( 3 I, JULIA K. McBRIDE, Notary Public, State of 4 Kentucky at Large, hereby certify that the foregoing 5 Transcript of the Proceedings was taken at the time and place 6 stated in the caption; that the appearances were as set forth 7 in the caption; that prior to giving testimony the witnesses 8 were first duly sworn; that said testimony was taken down by 9 me in stenographic notes and thereafter reduced under my 10 supervision to the foregoing typewritten pages and that said 11 typewritten transcript is a true, accurate and complete record 12 of my stenographic notes so taken. 13 I further certify that I am not related by blood 14 or marriage to any of the parties hereto and that I have no 15 interest in the outcome of captioned case. 16 My commission as Notary Public expires 17 December 21, 1996. 18 Given under my hand this the__________day of 19 ______________________, 1994, at Louisville, Kentucky. 20 21 22 23 24 _____________________________ 25 NOTARY PUBLIC 242 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25