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 THURSDAY, NOVEMBER 17, 1994 15 VOLUME XXXVIII 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 WITNESS: DANIEL_HUGH_MATTINGLY _______ ______ ____ _________ 5 By Mr. Stopher........................................... 25 6 By Mr. Smith............................................. 49 By Mr. Stopher........................................... 60 7 By Mr. Smith............................................. 62 8 WITNESS: ANN_DETLEFS_MINCH,_L.C.S.W. _______ ___ _______ ______ ________ 9 By Mr. Stopher........................................... 66 By Mr. Smith............................................. 83 10 WITNESS: MICHAEL_DOUGLAS_SHEA (By Video Deposition) _______ _______ _______ ____ 11 By Mr. Stopher........................................... 93 12 WITNESS: REBECCA_WADE _______ _______ ____ 13 By Mr. Stopher........................................... 98 14 By Ms. Zettler...........................................100 15 WITNESS: JOHN_HENRY _______ ____ _____ 16 By Mr. Stopher...........................................102 By Mr. Smith.............................................108 17 By Mr. Stopher...........................................114 By Mr. Smith.............................................115 18 * * * 19 Reporter's Certificate...................................117 20 * * * 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 4 FOR THE PLAINTIFFS: 5 PAUL L. SMITH Suite 745 6 Campbell Center II 8150 North Central Expressway 7 Dallas, Texas 75206 8 NANCY ZETTLER 1405 West Norwell Lane 9 Schaumburg, Illinois 60193 10 IRVIN D. FOLEY Rubin, Hays & Foley 11 300 North, First Trust Centre Louisville, Kentucky 40202 12 FOR THE DEFENDANT: 13 EDWARD H. STOPHER 14 Boehl, Stopher & Graves 2300 Providian Center 15 Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. LAWRENCE J. MYERS 17 Freeman & Hawkins 4000 One Peachtree Center 18 303 Peachtree Street, N.E. Atlanta, Georgia 30308 19 20 * * * 21 22 23 24 25 4 1 The Transcript of the Proceedings, taken before 2 The Honorable John Potter in the Multipurpose Courtroom, Old 3 Jail Office Building, Louisville, Kentucky, commencing on 4 Thursday, November 17, 1994, at approximately 7:38 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 MS. ZETTLER: Let me say I don't know how much 11 this will cut through this, but this man has not been 12 designated as an expert in this case. He renders all kinds of 13 opinions that are done in retrospect, and second of all, I 14 don't think he can be qualified to render the opinions that he 15 has in several of these instances. 16 JUDGE POTTER: All right. He is one of the 17 people that treated Mr. Wesbecker or he just tested Mr. 18 Wesbecker? 19 MS. ZETTLER: He just tested him, Judge. 20 MR. MYERS: He administered certain 21 psychological tests to him, which is what he does. 22 MS. ZETTLER: And he spent a total of two hours 23 with him. Most of it was the testing, ten minutes of 24 interview. 25 JUDGE POTTER: All right. Where's the first 5 1 objection? 2 MS. ZETTLER: Page 7. It starts at Page 7 on 3 Line 17, and goes through Page 8 at Line 4. 4 MR. MYERS: Four? 5 MS. ZETTLER: Yeah. Well, I guess it would be 6 Line 7. I'm sorry. 7 JUDGE POTTER: Okay. 8 MS. ZETTLER: Well, actually it does go through 9 Line 4 because really basically what I was saying here is just 10 that, you know, why are you in town on this particular 11 occasion and the lawyers all appreciate you being there and... 12 JUDGE POTTER: I'll leave it in if he wants to 13 brag about being a past president and stuff. Next page. 14 MS. ZETTLER: Okay. The next one is Page 17, 15 starting at Line 18, going through Line 7 on Page 18. Our 16 objection there is it's nonresponsive and it's speculative. 17 This man is not qualified to render the opinion that he's 18 giving here. He has not been disclosed as an expert in this 19 case. 20 JUDGE POTTER: This guy's a Ph.D. clinical 21 psychologist; right? 22 MR. MYERS: Yes, sir. 23 MS. ZETTLER: He's a doctor of philosophy and 24 psychology, Judge. And I'll find you a cite where he says 25 that he talked to the guy for ten minutes. 6 1 JUDGE POTTER: Well, okay. But this -- go 2 ahead. 3 MR. MYERS: In answer to the question, "I have a 4 doctorate in clinical psychology," that's the answer to the 5 Court's question. 6 MS. ZETTLER: And then later on in the 7 deposition he says -- 8 JUDGE POTTER: All right. But that goes to his 9 weight. If he wants to define dependent and paranoid people, 10 he can. 11 MS. ZETTLER: That's not the problem here, 12 Judge. The problem is he's talking about Mr. Wesbecker as if 13 these are diagnoses that he made of Mr. Wesbecker. 14 JUDGE POTTER: All right. Let me see. 15 Paranoid, very dependent man who's extremely angry, that's 16 his... 17 MR. MYERS: That's what he says up at Line 6. 18 JUDGE POTTER: Right. 19 MR. MYERS: And he says, "What does it mean?" 20 JUDGE POTTER: I assume this note is something 21 that doctor -- the consultation note that you filed in 22 hospital records and placed -- all right. He's explaining his 23 own note. Overruled. 24 MS. ZETTLER: Starting on Page 20 -- I'm sorry, 25 Page 20, Line 14, going through 21, Line 12. Again, this man 7 1 is not qualified. He's speculating. 2 JUDGE POTTER: Wait just a second. Okay. This 3 is the same thing. He's explaining a note that he read, this 4 long-standing perceptual handicap. He reads it on 19, 5 explains it, so that's overruled, too. 6 MS. ZETTLER: But, Judge, on 21 he says they're 7 easily distractible, they're not effective in certain areas, 8 and I could speculate that this could have been a factor in 9 his developing his mistrust of other people because kids laugh 10 at other kids who can't do things skillfully, and he's just 11 going on and on, and it's speculation and admitting it. 12 MR. MYERS: That goes to the weight of it. 13 JUDGE POTTER: Well, he's explaining what his 14 evaluation is. The next one. 15 MS. ZETTLER: Page 22, Line 9 through 22. 16 MR. MYERS: I'm sorry? 17 MS. ZETTLER: Page 22, Line 9 through 22. 18 Again, he's speculating. 19 JUDGE POTTER: Wait. Wait. I have to read. 20 This is schizoid. Okay. I'm tempted to sustain that one 21 simply that on the grounds that when it's read it won't make 22 any sense, but if he's trying to explain something, he can, by 23 example. 24 MS. ZETTLER: Page 24, Line 11 through 15. 25 Again, that's in the middle of an answer, but he's speculating 8 1 and he's nonresponsive. 2 JUDGE POTTER: Okay. Overruled. 3 MS. ZETTLER: Page 25, Line 7 through 18. It's 4 nonresponsive. He's starting to talk about organic deficits 5 now. He admits he's not a medical doctor. Also, this is 20 6 points, not 30 points, if you look at his errata sheet. It 7 had better be changed in the reading. 8 JUDGE POTTER: Yeah. She's right. The math is 9 off. Is there an errata sheet? 10 MS. ZETTLER: Yeah. He changes it in his errata 11 sheet, Judge. 12 JUDGE POTTER: Okay. So be sure and mark the 13 copy because I'm going to allow him to read that. So it's a 14 20-point differential? 15 MR. MYERS: Yes, sir. 16 MS. ZETTLER: Actually, the objection extends 17 from Line 19 through 25. 18 JUDGE POTTER: Well, he's just giving examples 19 and explaining what he said. I don't think he's gone outside 20 of what he said. 21 MS. ZETTLER: Judge, I know you haven't had the 22 opportunity to read this deposition completely, but to put it 23 into context, this man is speculating retrospectively. These 24 are not things that he was talking about when he originally 25 did this. Now he's coming up with reasons why this stuff 9 1 could happen, and it is speculating like crazy. He admits 2 throughout this thing that he's speculating. He admits that 3 he saw the guy for ten minutes. He admits he wasn't treating 4 him. His sole purpose was to administer these tests. And 5 instead of reading into the record and authenticating and 6 establishing what the tests were, what the scores were, 7 they've got this guy speculating all over the place. He never 8 once says that any of these opinions are connected up to this 9 event as a substantial factor. It's just highly prejudicial 10 and highly improper. 11 JUDGE POTTER: Well, he may be ad-libbing or 12 something that he really can't remember him, but he's taking 13 his report, he's fleshing it out. Everything he says is an 14 example of what schizoid means, an example of what paranoid 15 is. He clearly says that's an example, it's not this man. 16 The other times he's saying, "In this particular man I found 17 that I couldn't establish rapport. His was a very significant 18 20-point differential, which makes you wonder because he was 19 in a field where he was working with his hands, and I can see 20 where that would be very stressful to him." That is a 21 perfectly legitimate explanation of what he found. 22 Obviously when he wrote this report, he was not 23 trying to explain his findings in relation to some other 24 things he knew. He was just giving them and other people were 25 supposed to be able to interpret them, whoever his -- what was 10 1 he, a treating psychiatrist, would have been able to say a 2 20-point deficit for a person that works with their hands, et 3 cetera, is stressful. But he is qualified to say it, and if 4 he wants to explain it, he can. 5 MS. ZETTLER: This man is being treated like an 6 expert; he was not disclosed as an expert. 7 JUDGE POTTER: Well, he's a treating physician 8 and he is telling what his observations were. 9 MS. ZETTLER: Then on Page 27, Line 23 through 10 25, going on to 28, Lines 1 and 2. 11 MR. MYERS: 23 or 22? 12 MS. ZETTLER: In the middle of 23, "This is my 13 view." 14 MR. MYERS: To where? 15 MS. ZETTLER: To Line 2 on Page 28. 16 JUDGE POTTER: Wait. I don't know where we are. 17 MR. MYERS: One more page, Judge. 18 JUDGE POTTER: Oh, we start at 27? 19 MS. ZETTLER: 27, yeah. 20 MR. MYERS: Yes, sir. 21 MS. ZETTLER: Down at the bottom where it says 22 this is -- 23 MR. MYERS: This is my... 24 MS. ZETTLER: Larry. 25 JUDGE POTTER: All right. I got it. I got it. 11 1 I got it: What do you mean by total immobilization. Okay. 2 He's still explaining his reports. 3 MS. ZETTLER: Well, he's gone beyond his report. 4 He's saying, "I think occasionally he would reach this point 5 and say 'I can't do anything.'" This is not part of his 6 testing; he didn't even take a history on this man. He's 7 completely speculating at this point. 8 JUDGE POTTER: All right. 9 MS. ZETTLER: Page 29, Line 12, through Page 30, 10 Line 9. 11 JUDGE POTTER: I mean, it's the same thing. 12 They ask him, "You said he had a borderline personality with 13 paranoid features. What is a borderline personality as it 14 relates to Mr. Wesbecker?" You know, he explains exactly what 15 he means. He even says, "I don't know what the books mean, 16 but the way I was seeing it..." Overruled. 17 MS. ZETTLER: Page 30, Line 24, starting with 18 "I'm talking about" -- 23, I guess: "I'm talking now about 19 psychotherapy," going through Page 31, Line 20. 20 JUDGE POTTER: It's still the same. Overruled. 21 MS. ZETTLER: Our objection to that is it's 22 irrelevant and he's not qualified to render an opinion. He's 23 speculating completely. Page 34, Lines 13 through 17. 24 JUDGE POTTER: Okay. I'll sustain 34. It's 25 sort of a gratuitous aside. 12 1 MS. ZETTLER: Page 35, Lines 1 through 11. 2 JUDGE POTTER: Wait. 34, that leaves us without 3 a question. 4 MS. ZETTLER: I'll withdraw that one, Judge. 5 JUDGE POTTER: You have one winner and you 6 withdraw it? 7 MS. ZETTLER: Well, hopefully there will be 8 others later on. It gets a lot worse, Judge. 9 JUDGE POTTER: All right. 10 MS. ZETTLER: Page 35, Lines 1 through 11. It's 11 irrelevant. 12 JUDGE POTTER: Okay. I'm sustaining it for the 13 same reason I sustained the one before. 14 MS. ZETTLER: Okay. Page 39, starting at 15 Line 11, where it says, "Now his memory was very bad," going 16 through Line 18. He's not qualified to render an opinion. 17 MR. MYERS: I think this goes back to the direct 18 exam. The question was, "What is it," and he explained what 19 it was and how it applied. 20 JUDGE POTTER: Yeah. That's what that test 21 tests is your... So that's overruled. 22 MS. ZETTLER: All right. On Page 40 at Line 18, 23 on his errata sheet he changed "no" to "not." 24 MR. MYERS: I'm sorry? 25 MS. ZETTLER: It said "no psychotic" on 13 1 Page 40; he changed that to "not psychotic." 2 JUDGE POTTER: He was not schizophrenic, 3 schizoid -- 4 MS. ZETTLER: And then he says, "Schizoid, not 5 psychotic," that's right, instead of "no psychotic." 6 MR. MYERS: Do you have his errata with you? 7 MS. ZETTLER: It's attached to his deposition. 8 MR. MYERS: Okay. 9 MS. ZETTLER: 43, Line 6 through 20. 10 MR. MYERS: What is the objection, just so I 11 understand? 12 MS. ZETTLER: It's irrelevant what other doctors 13 would or wouldn't do with his method. 14 JUDGE POTTER: That's overruled. 15 MS. ZETTLER: Okay. Page 45, Line 10, through 16 47, Line 15. 17 MR. MYERS: What is the objection? 18 MS. ZETTLER: That he's gone beyond his report 19 now. Now he's saying, "I should have done this, I should have 20 done that." He's speculating. What he now thinks is 21 irrelevant. 22 JUDGE POTTER: Take me to the end with your 23 objections, Ms. Zettler, because I may want to look at it all 24 as kind of a continuum. 25 MS. ZETTLER: Okay. I mean, generally, this 14 1 whole thing. I'm getting picky about lines and stuff, but... 2 JUDGE POTTER: Give me your lines and stuff. 3 MS. ZETTLER: Oh, okay. 47 starting at the 4 bottom where it says "law" in the corner, going through all of 5 Page 48, all of Page 49, all of Page 50 -- let's see -- all of 6 Page 51, all of Page 52 to the top of Page 53. 7 MR. MYERS: Which line? 8 MS. ZETTLER: Line 6. 9 MR. MYERS: So I can just read it, what is the 10 objection? 11 MS. ZETTLER: He's gone way beyond the scope of 12 his notes. He admits in here repeatedly he's speculating. 13 JUDGE POTTER: He does start a lot of his 14 sentences. Let me read it and see what we've got. 15 Okay. I'm going to sustain Page 45, Line 10, 16 through Page 47, Line 15. That's her first objection in its 17 entirety. 18 The second objection, I'm going to sustain the 19 part at Page 52 -- let me see where I have to break it to make 20 sense. Start at Page 51, Line 25, through Page 53, the end of 21 Mr. Stein's examination. I haven't had a lot of judge 22 training, but when a person starts off his answer with, 23 "That's pure speculation on my part," it gives me a clue. So 24 what I've tried to do is cut out his philosophizing or 25 speculating that, you know, because he didn't get picked on 15 1 the baseball team that carried through his whole life and led 2 to homicidal acts. 3 MS. ZETTLER: There'd be a lot of mass murderers 4 out there. 5 JUDGE POTTER: Well, you know, I'm dealing with 6 what he said now. I mean, if he came in live, you know, he 7 might be able to dress it up and say I see it, and he might 8 have been permitted to testify, but the way it's presented 9 there, he says twice that it's... 10 MR. MYERS: Is that all on this one? 11 JUDGE POTTER: Yeah. 12 MS. ZETTLER: I think so, but let me 13 double-check. 14 JUDGE POTTER: He might have even gotten away 15 with it when he said, "I probably should have put it in my 16 report," but then he comes back later and says "pure 17 speculation." 18 MS. ZETTLER: Let's see. Page 57, Line 10, 19 through 58, Line 14, again, he's speculating. 20 JUDGE POTTER: All right. 21 MR. MYERS: Does he say that? 22 MS. ZETTLER: Uh-huh. 23 MR. MYERS: Where? 24 MS. ZETTLER: "Just so I understand, you did not 25 speculate at the time." 16 1 JUDGE POTTER: Okay. That one has to come back, 2 that objection has to come back and start with the question on 3 Page 56. 4 MS. ZETTLER: Okay. 5 JUDGE POTTER: Because that's the lead-in to it. 6 So I'm going to sustain Page 56, Line 25, through Page 58, 7 Line 14. 8 MS. ZETTLER: One last one on this guy. This 9 thing at the end, Page 59, starting at Line 5 through 14. 10 JUDGE POTTER: I tell you what. I'm going to 11 take out all of Mr. King's examination because it's just too 12 wound up with what he testified to before. So 56, Line 25, 13 through Page 59 -- 14 MR. MYERS: Through the end? 15 JUDGE POTTER: Through the end; right. Who is 16 Mr. King. 17 MR. MYERS: Mr. Bubalo's partner. 18 MS. ZETTLER: The other two outstanding besides 19 the doctor depositions that I got the day before yesterday are 20 Mr. Rothenburger, who we need to establish is really 21 unavailable because he's here in Louisville, and Mr. Rakow 22 because we need to get some sort of a ruling. 23 JUDGE POTTER: We've got everything done through 24 Friday, is that right, that we went over yesterday? 25 MS. ZETTLER: Yeah. 17 1 MR. MYERS: That's right. 2 JUDGE POTTER: All right. Let's knock out a 3 quick one. 4 MR. MYERS: Mr. Jackson is short. 5 JUDGE POTTER: All right. Let's do Mr. Jackson. 6 Who is Mr. Jackson? 7 MR. MYERS: He's a gentleman who used to work at 8 Fawcett. 9 MS. ZETTLER: Yet another pressman ex-friend, 10 Judge. 11 JUDGE POTTER: But this is someone that knew him 12 way back? 13 MR. MYERS: Way back; yes, sir. 14 MS. ZETTLER: Right. Just like the two guys 15 that were with him on yesterday. 16 JUDGE POTTER: Page 5. 17 MR. MYERS: That's fine. We'll take that out. 18 JUDGE POTTER: Page 16, 23 and 24. 19 MS. ZETTLER: Yes. 20 MR. MYERS: Judge, the next series of objections 21 has to do with leading questions, and our position is that 22 they should have been cured at the time. 23 JUDGE POTTER: Okay. How can you object to a 24 leading question when the answer is opposite to the way you 25 were leading him? 16 and 17 are overruled. 19. Let's see 18 1 what we've got on 19, 11 through 16. Overruled on 19. 2 20, 1 through 5. Okay. I'll sustain that simply because -- 3 is there going to be any other evidence that he was ever 4 called Pinky? 5 MR. MYERS: I think there's enough pressmen left 6 that I wouldn't rule that out, Judge. 7 JUDGE POTTER: Well, we'll let them talk about 8 it. 9 MR. MYERS: We'll read the designations on 20, 10 21 and 22. 11 JUDGE POTTER: Okay. 23. Overruled 23. 12 25. 25 is overruled. 13 MS. ZETTLER: Can we make a record of this? 14 JUDGE POTTER: Uh-huh. 15 MS. ZETTLER: 23, Line 6 through 8, our 16 objection was leading. 25, Lines 8 through 17, our objection 17 is calls for speculation and leading. 18 JUDGE POTTER: 28. Mr. Myers, what do you say 19 about the gratuitous thing? 20 MR. MYERS: Judge, I don't know how gratuitous 21 or not it is. This guy knew him way back and they were 22 friends, and I don't really know that it is a gratuitous 23 comment. 24 JUDGE POTTER: I think that's more of a layman's 25 way of explaining something, rather than a... 19 1 MS. ZETTLER: Okay. Our objection to that one 2 is it was nonresponsive. I mean, gratuitous isn't the thing. 3 JUDGE POTTER: Well, okay. We come up at the 4 end of 28. 5 MS. ZETTLER: And it spills over to 29. It 6 should spill over to 29. I'm sorry. It should go from 28, 7 Line 23, through 29, Line 1. 8 JUDGE POTTER: I'm overruling that. 9 MS. ZETTLER: Okay. And our objection was it 10 was leading. 11 JUDGE POTTER: 31. 12 MS. ZETTLER: It's 31, Lines 4 through 8. 13 MR. MYERS: Okay. Where it starts, "But when I 14 saw him"? 15 MS. ZETTLER: Yeah. 16 MR. MYERS: This all goes to his observation of 17 Mr. Wesbecker. 18 MS. ZETTLER: Well, our objection is it's 19 nonresponsive. The question is, "Sometime after 1976, I take 20 it," and then he goes on to this diatribe. 21 JUDGE POTTER: Well, I kind of have the same 22 problem with nonresponsive that I do with leading. I mean, 23 it's the kind of thing that if you brought it up at the time, 24 whoever is examining this fellow, I guess it's Mr. Stopher or 25 Mr. Foley, would say, "Did you see him after that?" 20 1 "Yes, I saw him in 1976," or whatever and would 2 get it out another way. 3 MS. ZETTLER: But he's asking him here about 4 stocks and investing, Judge, and all of a sudden he launches 5 into this thing about "was he on Prozac; I don't know." And, 6 you know, I mean, it's just completely off the subject. 7 JUDGE POTTER: But then he picks up on the 8 thing. So will you read the in-between stuff for 9 completeness? Overrule 31 and you're giving them the rest of 10 31? 11 MR. MYERS: Yes, sir. And we'll read the other 12 designation on 31. So we're going to read 31. 13 JUDGE POTTER: And how about 32, 3 through 19? 14 MR. MYERS: We'll read that. 15 JUDGE POTTER: All right. 38, 23 and 24. 16 MR. MYERS: Yeah. That's just an answer. 17 MS. ZETTLER: Wait a second. There's something 18 wrong here. 19 MR. MYERS: Yeah. Because you can't spill over 20 into 39 here. 21 MS. ZETTLER: Yeah. Something's wrong. 22 JUDGE POTTER: Well, I tell you what. I think 23 what she means is she wants to take out, "I think after he got 24 down to Standard he just worked all the time." So if he 25 didn't -- 21 1 MR. MYERS: So you're sustaining the second 2 sentence? 3 JUDGE POTTER: Sentence, yeah. 39. 39 is 4 overruled. 48. 5 MR. MYERS: I'll read that. 6 JUDGE POTTER: Okay. 54, 9 through 23. 7 MR. MYERS: Judge, 54 is kind of a historical 8 thing, getting him from Fawcett over to Standard. 9 JUDGE POTTER: Well, let me read the lead-in to 10 it. Okay. I'm going to overrule 54, the first 54, and will 11 you read the rest of it? 12 MR. MYERS: Yes, sir. 13 JUDGE POTTER: 54 and 55 will be read? 14 MR. MYERS: Yes, sir. 15 JUDGE POTTER: 57. When do you stop reading, 16 Mr. Myers? 17 MR. MYERS: At Page 59, Line 1. 18 JUDGE POTTER: Okay. Let's see what we've got, 19 57, 14 through 21. 20 MR. MYERS: We'll read 57, 14 to 21. That's in 21 the middle of an answer. 22 JUDGE POTTER: Okay. How about 58? 23 MR. MYERS: We'll read that. The rest, though, 24 are after we quit. 25 JUDGE POTTER: Okay. Ms. Zettler, after he 22 1 quits, If you want to stand up and -- 2 MS. ZETTLER: Well, Judge, the problem is, is 3 this stuff all tied in to what they've already -- 4 JUDGE POTTER: That's right. So when he sits 5 down at Page 59, you can stand up and read the rest of it and 6 the same witness will be on the stand and answer. 7 MS. ZETTLER: All right. Can you have your 8 witness prepared to read that? 9 MR. MYERS: Uh-huh. 10 JUDGE POTTER: Uh-huh. And what I need you to 11 do, Mr. Myers, look and see if there's anything you want to 12 add. 13 MR. MYERS: Beyond that? 14 JUDGE POTTER: Uh-huh. 15 MR. MYERS: There's not. 16 JUDGE POTTER: Okay. I mean, to make hers 17 complete. 18 MR. MYERS: No. That's fine. 19 JUDGE POTTER: Okay. Well, is the other one 20 real short or not? 21 MR. MYERS: It's longer. 22 JUDGE POTTER: Well, it isn't really how long 23 the deposition is, the issue is how long this page is. 24 MR. MYERS: There's quite a list on those. 25 JUDGE POTTER: Why don't we do that one tomorrow 23 1 morning? 2 MS. ZETTLER: Tomorrow morning? Oh. Can we do 3 some of these later in the day to accommodate my sleeping 4 schedule for a change? Because, you know, I've got to stay up 5 until 2:00 reading this stuff. 6 JUDGE POTTER: No. As they say in the shop, 7 I've got the pencil. 8 MS. ZETTLER: Power of the pencil. Okay, Judge. 9 (HEARING IN CHAMBERS CONCLUDED; THE FOLLOWING 10 PROCEEDINGS OCCURRED IN OPEN COURT) 11 SHERIFF CECIL: All rise. The Honorable Judge 12 John Potter is now presiding. All jurors are present. Court 13 is now in session. 14 JUDGE POTTER: Please be seated. 15 Good morning, ladies and gentlemen of the jury. 16 Did anybody have any problems with my admonition? Is there 17 anybody I haven't called on? Is there anybody that feels 18 neglected? 19 How about you, Ms. Jones? 20 JUROR JONES: No. No problems. 21 JUDGE POTTER: Let me suggest -- offer one thing 22 to you. First of all, the documents that you give my sheriff 23 at the end of the day and she puts on that cart are locked 24 away where nobody has any access to them. And as far as the 25 box you have, no one sees that. And I don't want to suggest 24 1 that any documents you have anyone will look at them, but what 2 I will like to offer you is that on the Thanksgiving break, if 3 you would like, the documents that are in your cardboard box, 4 I would have my secretary come over and organize them for you. 5 And the simple thing that you -- maybe you put the Plaintiffs 6 in one folder or the Defendants in another folder and put them 7 in order. I would let her look at it, you know, to decide how 8 she'd do it. And she'd do it the same for everybody. I'll 9 give you that to think about. And I don't know, some of you 10 may have taken a lot of notes on your exhibits. You know what 11 I mean. You just have to decide how you feel. If you want 12 your box looked at and pull some things out and put them on 13 the cart that Sheriff Cecil has, then she will organize what's 14 left in the box. 15 I'll offer that to you and don't let me forget 16 tomorrow to bring it up again so if anybody wants to take 17 advantage of that offer you can. Okay? I know with pieces of 18 paper, 10 pieces of paper is one problem, 20 isn't necessarily 19 twice, it's about four times as bad, and 40 is four times as 20 bad. It seems to go up very quickly as you get more pieces of 21 paper, trying to keep track of them. 22 Mr. Stopher, do you want to call your next 23 witness? 24 MR. STOPHER: Yes, Your Honor. Dan Mattingly. 25 JUDGE POTTER: Mr. Mattingly, if you want to 25 1 hand your coat to my sheriff she can set it there on the 2 chair. Do you want to raise your right hand, please, sir. 3 4 DANIEL MATTINGLY, after first being duly sworn, 5 was examined and testified as follows: 6 7 JUDGE POTTER: Okay. Would you walk around, 8 have a seat in the witness box, state your name loudly and 9 then spell it for me, please. 10 MR. MATTINGLY: My name is Daniel Hugh 11 Mattingly. D-A-N-I-E-L, H-U-G-H, M-A-T-T-I-N-G-L-Y. 12 JUDGE POTTER: Okay. And if you'll keep your 13 voice up like you've been doing and answer Mr. Stopher's 14 questions. 15 16 EXAMINATION ___________ 17 18 BY_MR._STOPHER: __ ___ ________ 19 Q. Mr. Mattingly, where do you live, sir? 20 A. I live at 2138 Trevilian Way, here in 21 Louisville. 22 Q. And how old are you, sir? 23 A. Fifty-two. 24 Q. And by whom are you presently employed? 25 A. I work for the Louisville and Jefferson County 26 1 Human Relations Commission. 2 Q. And what is your title with the Louisville and 3 Jefferson County Human Relations Commission? 4 A. I am a compliance officer; that's also referred 5 to as an investigator. 6 Q. Briefly, what is a compliance officer with the 7 Louisville and Jefferson County Human Relations Commission? 8 A. It is our job to investigate charges of 9 discrimination in the workplace, in housing and in public 10 accommodations. In my case, mostly it's in employment. 11 Q. Mostly in the workplace then? 12 A. Yes, sir. 13 Q. Mr. Mattingly, would you tell us about your 14 background, beginning first of all, sir, with your education, 15 college and from that point forward, if you would, please. 16 A. I have a Bachelor's Degree in philosophy and a 17 Bachelor's Degree in theology, both of those are from St. 18 Mary's Seminary in Baltimore. The philosophy degree was in 19 1964, theology in 1966. 20 Q. And after you got your degree in theology in 21 1966, how generally were you employed or occupied, sir? 22 A. Well, there was two more years of formal 23 education after that, working toward a Master's Degree which I 24 did not complete, but then in 1968, I was ordained a Catholic 25 priest and served in the active ministry for about five years. 27 1 Have not been in the active ministry for a long time. 2 Q. Mr. Mattingly, since that time, have you been 3 employed in the private sector, that is, not related to the 4 church? 5 A. Yes, sir; I have. I've had several jobs. I've 6 run businesses. I've owned -- my wife and I have owned a 7 business. I have worked as a milkman and I have run a dairy. 8 Q. Mr. Mattingly, about when did you become 9 employed by the Louisville and Jefferson County Human 10 Relations Commission? 11 A. I started there in March of 1987. 12 Q. And did you start there as a compliance officer? 13 A. Yes, sir. 14 Q. And that's the capacity in which you're still 15 employed? 16 A. Yes, sir. 17 Q. Mr. Mattingly, let me ask you if you would very 18 briefly describe for us the general procedure that's involved 19 when a person makes a complaint to the Jefferson County -- 20 Louisville and Jefferson County Human Relations Commission and 21 generally how it progresses from the time it first starts 22 until the time of completion or resolution, sir. 23 A. An individual will call our office or walk into 24 our office alleging a complaint that they have been 25 discriminated against. And we take -- at that first contact 28 1 we take a lot of information. We get statistical data. We 2 also take information on the company. We try to find out why 3 they think they've been discriminated against. 4 In most cases, we turn them away. We say, in 5 effect, "Well, perhaps what happened to you was unfair, but it 6 was not illegal." But assuming that a person does have or at 7 least is alleging an illegal act by a company, we will then 8 send them on their way, we will -- the complaint will be 9 assigned to an investigator who will write up the complaint, 10 call that person, make sure everything is true and correct, 11 have them come in, sign it. 12 We then send a copy of that complaint to the 13 respondent, the company. They have time in which to respond, 14 normally two weeks, and we begin investigating. It is our job 15 to be as objective, as neutral as possible. It is not our 16 job, at least before there is any kind of finding, to be on 17 anybody's side, but just to try to determine whether or not an 18 illegal discrimination has occurred in a particular case. 19 Q. Now, Mr. Mattingly, if the complaint is found to 20 justify -- or if the allegations are found to justify a 21 complaint, the complaint is signed and filed, then there's a 22 response. What generally are the procedural steps from that 23 point on? 24 A. We will get usually a written response from the 25 company. Then normally -- let's assume it's my case. I would 29 1 send a thing we call a data request letter looking for such 2 things as workforce breakdown and looking for comparable 3 employees. Then at some point after I get a response from the 4 company answering those questions I might go on site, go to 5 the job and interview people. I might interview management 6 people or co-workers or call people at home to interview them. 7 Then when we think we have gathered enough evidence to decide 8 whether or not there is probable cause to believe that 9 discrimination occurred, we write up a recommendation, send it 10 to a panel of commissioners. The commissioners are laypeople 11 appointed by the mayor and the Judge. There is a panel -- a 12 monthly panel who sits down to decide each case, to decide 13 whether or not there is probable cause to believe that 14 discrimination has occurred. 15 Q. And then if there is a finding of probable cause 16 by that commission, what -- what happens next? 17 A. If they find probable cause, then it comes back 18 to my desk and it becomes my job to write a thing we call a 19 probable cause letter in which we spell out to the company the 20 finding and why we found probable cause. It is then my job -- 21 the reason it comes back to my desk is not just to write this 22 letter, but it then becomes my job to try to conciliate some 23 sort of agreement between the two parties to try to get them 24 together. Many times, this would be a financial settlement, 25 but not necessarily financial. If I cannot get the two 30 1 parties together in some kind of agreement, then, and only 2 then, would one of our cases go to public hearing. The last 3 figure I saw on that was that only about five percent of our 4 cases ever go to public hearing. 5 Q. Now, sir, with regard to Joseph Wesbecker, was 6 he ever a complainant with the Louisville and Jefferson County 7 Human Relations Commission? 8 A. Yes, sir. 9 Q. And were you involved with him, sir? 10 A. Yes, sir. 11 Q. Let me show you a document that you produced for 12 me and I have marked as Defendant's Exhibit 369, sir. Do you 13 recognize this document, sir? 14 A. Yes, sir. This is a log, my log, on the Joseph 15 Wesbecker case. 16 MR. STOPHER: Your Honor, we move the admission 17 of Defendant's Exhibit 369 and ask that it be published to the 18 jury. 19 JUDGE POTTER: Be admitted. 20 SHERIFF CECIL: (Hands document to jurors). 21 Q. Mr. Mattingly, this is headed up at the top, Log 22 of Investigative Settlement Actions; Respondent, Standard 23 Gravure; Charging Party, Joseph T. Wesbecker. Correct? 24 A. Yes, sir. 25 Q. It begins, sir, with incident date and sworn 31 1 date and then I see out to the right "entered by J. Paten" on 2 both dates. 3 A. Yes, sir. 4 Q. What does that refer to, sir? 5 A. Mr. Wesbecker came into our office on the 14th 6 of May to lodge a complaint. So once we lodge that complaint, 7 we settle on the day before that as the date of incident. He 8 was alleging that there was an ongoing -- that there was 9 ongoing discrimination being employed against him at work, so 10 we took the date prior to the day he walked in as the date of 11 the incident. 12 He came back a week later to read that 13 complaint, to be sworn in and to sign it, and so that's why 14 you see the reference to May the 21st. J. Paten is one of our 15 secretaries, and in all our cases these first two incidents, 16 the incident date and the sworn date are logged in by the 17 secretary. 18 Q. Now, sir, when, then, did you first meet with 19 Joe Wesbecker? 20 A. On May the 14th, 1987. 21 Q. And can you tell us, sir, what you recall about 22 that meeting with him on May 14th, 1987? 23 A. Well, he came in complaining that he was being 24 discriminated against on the job by the company that he worked 25 for. His complaint revolved around his assertion that his 32 1 supervisors were forcing him to work on a machine at work 2 called the folder, and that when they did not force him to 3 work on that machine they were threatening to make him work on 4 that machine and that he was a person with an emotional 5 illness. He told me he had been diagnosed as being manic 6 depressive, three, three and a half years before this, and 7 that he had a statement from the company psychologist saying 8 that he should not be made to work on this folder, which was a 9 stressful machine, unless absolutely necessary. But that even 10 though he had this statement from the psychologist, the 11 company officials were making him work the folder and, more 12 than that, threatening to make him work the folder. And he 13 saw that as discrimination because he was being treated 14 differently from employees who had physical ailments. 15 He was maintaining that the company would make 16 exceptions for people with physical ailments and not make them 17 work the folder, but they would not make an exception for him, 18 who had an emotional problem, and therefore discrimination. 19 And that was his basic argument. 20 Q. With regard to his statements on that date, sir, 21 did he give you any names of people at work or discuss any 22 specifics of foremen or supervisors? 23 A. Yes. He mentioned that Donald Cox was his 24 general foreman and there were two immediate supervisors, 25 Popham and McKeown. He gave examples. I think he said that 33 1 Mr. Popham kept insisting that there was really nothing wrong 2 with him and that, "If we need to put you on the folder, we 3 will." And that Mr. McKeown said things like, "All you need 4 to do is just tough it out and do your job." 5 You see, he maintained that they were using his 6 handicap against him, because if they threatened him he would 7 go home and worry about that and stew and fret over it. And 8 so it became a problem even when he was away from the job 9 because he was afraid when he went back in they were going to 10 make him do that. 11 Q. Did he discuss the work environment at Standard 12 Gravure with you, sir? 13 A. Well, he had a theory about what caused his -- 14 his problem, and that was related to the work environment at 15 Standard Gravure. 16 Q. How so? 17 A. He told me that for the last 15, 17 years, 18 whatever it is he had worked there, that he had been exposed 19 to a chemical called toluene, and he brought with him copies 20 of pages from a magazine that discussed the effects of being 21 exposed to toluene, and they indicated that extended exposure 22 can destroy the central nervous system, and his theory was 23 this is why I am the way I am and he handed me this article 24 for me to read. Toluene, as I understand, is a solvent. I'm 25 not sure what they used it for and I don't think that it had 34 1 anything to do with the folder, it was just if you worked at 2 Standard Gravure you were exposed to this. 3 Q. What was it, sir, that he wanted when he came to 4 your office, sir? 5 A. He wanted not to have to work on the folder. He 6 wanted, as he saw it, to be treated like several of his 7 co-workers who were exempt from working on the folder. He 8 said, "This man doesn't have to work on the folder because 9 he's color blind; this one doesn't have to work because he's 10 had brain surgery; this one doesn't have to work because he's 11 had heart surgery; and I don't want to have to work on that 12 folder because I am" -- he described himself as a safety 13 hazard in a stressful situation because he was on a lot of 14 heavy medication. He told me that day that he was taking four 15 doses of lithium and four antidepressants a day, and he said, 16 "If I have to work that folder, I'm a safety hazard. And 17 these other people are exempt from the folder because of 18 physical reasons; I should be exempt because of emotional 19 reasons." 20 Q. Did he want a temporary exemption or -- 21 A. No. He wanted it for life. He wanted the 22 company to say in writing we will never ask you again to work 23 on the folder. 24 Q. Mr. Mattingly, do you recall him in that first 25 meeting on May 14, 1987, as far as his appearance and the way 35 1 he acted or behaved, sir? 2 A. Yes. He was -- he was nervous. I might 3 describe him as high strung. Seemed intelligent and 4 articulate and believable. Seemed credible enough. 5 Q. About how long, sir, do you think that meeting 6 with him lasted on that date? 7 A. We do not keep a log. We do not clock people in 8 or out, so it's a guess, but I would guess close to an hour. 9 Q. Did he make any statements to you or did you 10 make any observations about him as to what his attitude 11 generally was towards his employer in that first meeting? 12 A. He had a lot of hostility toward his supervisors 13 and toward the company. Because of what I described earlier, 14 he thought the supervisors were using his handicap against 15 him, and he saw the company as they are -- these supervisors 16 are representatives of the company. The company is doing 17 nothing to stop them from harassing me and, therefore, the 18 company, too, is at fault. That was his attitude. 19 Q. Mr. Mattingly, let me show you next a copy of 20 Plaintiffs' Exhibit No. 1. The jury already has a copy of 21 this, sir. Let me ask you to take a look at it and tell us 22 what it is, sir. 23 A. Well, the first page is basically a form where 24 we just filled in the blanks. You know, we put Joseph 25 Wesbecker's name and his address, Standard Gravure's address 36 1 and phone number. But the second page is the complaint that I 2 wrote that I would call -- that I'm sure I called Mr. 3 Wesbecker and read it to him over the phone and said, "Now, is 4 everything in this true and correct, because when we have you 5 sign it it has to be that way." And so he would verify, yes, 6 this is true and correct and then I would say, "Okay. At your 7 earliest convenience come on in, look it over, sign it and 8 then we'll start the process." But this is the complaint that 9 we had him sign on May the 21st and is the basis for our case. 10 Q. This is, if I understand you correctly, sir, a 11 complaint that you wrote and then he signed it at the bottom 12 stating, "I swear or affirm that I have read the above charge 13 of alleged discrimination and that it is true to the best of 14 my knowledge, information and belief"? 15 A. Yes, sir. We swear them in and then we notarize 16 the complaint afterwards. 17 Q. Now, sir, let me next show you a copy of a 18 document that has been marked as Plaintiffs' Exhibit No. 4. 19 And after you've had a chance to look at it, sir, would you 20 tell us what it is? 21 A. (Reviews document) I mentioned earlier that we 22 send the complaint to the company and then they have -- we 23 give them two weeks in which to respond. A lot of times 24 they'll ask for an extension. But what we have here is this 25 is the initial response from the company. We sent them this 37 1 complaint that Mr. Wesbecker signed. This is their response, 2 and they're basically arguing that he's a journeyman and that 3 as a journeyman this is part of his job. They give the job 4 description and prerequisites for the job. 5 Q. Now, sir, did you -- I believe this is addressed 6 to you, so this became then the response of the company to the 7 complaint of discrimination? 8 A. That is correct. 9 Q. Mr. Mattingly, let me refer you now back to the 10 log which has been marked as Defendant's Exhibit 369. And 11 would you look at the entry dated June 16, 1987? 12 A. Yes, sir. 13 Q. Would you read that for us, please, sir? 14 A. It says, "Meeting with Warman. She is to get 15 back to me with company answer." This response on June the 16 9th is from Paula Warman, and so after I received this, I got 17 on the phone and called her and we set up a meeting between 18 the two of us for June the 16th at her place of business at 19 Standard Gravure. 20 Q. And this meeting on June the 16th was attended 21 by who, sir? 22 A. Just she and I. 23 Q. Do you recall that meeting, sir? 24 A. Yes, I do. 25 Q. Can you tell us to the best of your recollection 38 1 what occurred at that meeting and particularly what was said? 2 A. Well, the clearest memory that I have of that 3 meeting is something I said and then something that she 4 responded. In the course of the meeting I told her that, "I'm 5 sure you're not going to want to hear what I'm about to say 6 and I know the company is not going to want to hear it, but in 7 my opinion, before you put Mr. Wesbecker on the folder you 8 ought to shut it down, because putting him on the folder is 9 endangering -- could be endangering his life and the lives of 10 the people around him." Her response was she agreed with the 11 first part. She said, you know, "The company is not going to 12 want to hear that, and we cannot make an exception for Mr. 13 Wesbecker because his job -- because we have a union contract, 14 and the union contract says this is his job description, and 15 we cannot make an exception. Not only -- even if we wanted 16 to, the union would not let us make an exception for this 17 man." 18 Q. When you said, "I'm sure you're not going to 19 want to hear this or the company is not going to want to hear 20 this," and then said, "Before you put Mr. Wesbecker on the 21 folder you ought to shut it down," did I state that correctly 22 as you just did, sir? 23 A. Yes, sir. 24 Q. Shut what down, sir? 25 A. Well, the folder, and if the folder meant 39 1 shutting the plant down, shut the plant down, too. But in my 2 opinion, it would have been -- it was -- it would be creating 3 a dangerous situation to put him in that stress, in that 4 stressful condition. 5 Q. Why so, sir? 6 A. Well, two things. Physically, he had told me, 7 "I am a safety hazard in a stressful situation because I'm on 8 all this medication." You know, he had told me he was on four 9 doses of lithium and four antidepressants a day. And just 10 from a physical point of view, if -- I should tell you I've 11 never seen the folder, okay, but his description was of a 12 machine that apparently things happened pretty quickly and 13 that's why there was so much stress involved. It took a lot 14 of concentration, and I thought that physically it would 15 create a safety hazard. And also emotionally, he had told me 16 he was manic depressive. The company psychologist had said he 17 shouldn't be on this job unless absolutely necessary. I 18 agreed with the psychologist, that in these circumstances, he 19 could -- he could snap. Anything could happen. 20 Q. Mr. Mattingly, did Ms. Warman disagree with your 21 statements or the accuracy of your statements to her? 22 A. I do not remember her disagreeing with the 23 accuracy of the statement. She -- from her point of view, she 24 saw it as an impossibility -- the request as an impossibility, 25 that the company, first of all, didn't want to make this 40 1 exception and, secondly, because of the union contract wasn't 2 able to make this exception. We did not get into a 3 discussion -- she did not specifically address whether or not 4 it would be a danger to put him in that situation. All she 5 addressed was this is the boundaries I've got to work within, 6 and with the union contract and with company policy I cannot 7 make -- we cannot make this exception. 8 Q. Now, sir, going back to the log which is 9 Defendant's Exhibit 369, I see on the next date, 6-29-87. 10 What is that about, sir? 11 A. Well, C means complainant, and complainant, 12 that's Joe Wesbecker. "Complainant called asking about 13 status," the status of his case. So on that day Mr. Wesbecker 14 called me and said, "What's happening on my case," and I'm 15 sure at that point because this was two weeks after my meeting 16 with Ms. Warman, I said, "Well, I had a meeting with Paula 17 Warman a couple weeks ago and this is what we talked about. 18 And she's supposed to send me some data and I'm waiting for 19 that data now, and when I get it I'll get back to you." 20 Q. Then if I understand correctly, in a document 21 that is Plaintiffs' Exhibit No. 5, let me show you a copy of 22 that, sir. This is apparently a letter dated July 23, 1987, 23 from you to Paula Warman. Can you briefly describe what this 24 is, sir? 25 A. This is what is referred to in the log as data 41 1 request. This is what we call a data request letter. She had 2 not gotten back to me with the information that we had 3 discussed in June, and so the end of July I sat down and wrote 4 her this letter. The important points here are light duty. 5 She and I had discussed -- I had told her that Mr. Wesbecker 6 was alleging that there were other employees who were granted 7 light duties, other employees who were exempted from the 8 folder, and had asked her to look into that and to get back to 9 me with a list. And since I had not received it, I sent this 10 letter. And if you'll notice, Number Two is asking for all 11 employees given light duty for any reason and then a copy -- 12 Number Three is a copy of the company's personnel policy 13 governing assignment of light duty. 14 Q. Let me next show you a copy of Plaintiffs' 15 Exhibit No. 6. And this is a letter to you from Paula Warman 16 on August 7, 1987, sir? 17 A. That is correct. 18 Q. Take a look at the second paragraph, sir, and 19 would you read it out loud for us, please, sir? 20 A. "It is the company's contention that manic 21 depression is a condition rather than a handicap; therefore, 22 your request for a workforce breakdown indicating those who 23 are handicapped is irrelevant." 24 Q. Take a look, sir, at the second page and the 25 next-to-the-last sentence. Would you read it out loud for us, 42 1 please, sir? 2 A. The beginning of that paragraph? 3 Q. The last sentence in that -- 4 A. "But we cannot"? 5 Q. Yes, sir. 6 A. "But we cannot in good conscience exempt him 7 from this duty permanently." 8 Q. Was this in response to your request for data 9 that was just discussed as Plaintiffs' Exhibit 5, sir? 10 A. Yes, it was. 11 Q. Let me show you Plaintiffs' Exhibit No. 7, sir. 12 This is a letter from you to Standard Gravure, attention Paula 13 Warman, dated August 24, 1987; correct, sir? 14 A. That is correct. 15 Q. Would you read the first two paragraphs of that 16 letter, sir? 17 A. "Pursuant to your letter of August the 7th, 18 1987, I think I should point out that Mr. Wesbecker's, quote, 19 condition, unquote, as you call it, is not the issue here. 20 The local ordinance forbidding discrimination in the workplace 21 clearly applies to handicaps, both physical and mental." 22 Mental is underlined. "The only question at issue is to what 23 extent, if any, does Standard Gravure make accommodations for 24 its handicapped employees. The commission is not in the habit 25 of letting complainants or respondents decide what information 43 1 in an investigation is relevant or irrelevant. The respondent 2 who refuses to cooperate in an investigation leaves us only 3 two resources to draw an adverse inference as directed by EEOC 4 and to require needed documentation through court-ordered 5 subpoena. In an effort to avoid both these extreme actions, 6 we once again request the following information and items." 7 Q. And then let me next show you, sir, Plaintiffs' 8 Exhibit No. 9, which is a letter to you dated October 16, 9 1987, from Paula Warman; correct, sir? 10 A. That is correct. 11 Q. Would you please read the last paragraph, sir? 12 A. "We have never exempted employees from working a 13 particular function on a permanent basis. We will continue to 14 accommodate Doctor David Moore's request to, quote, if 15 possible, unquote, allow Mr. Wesbecker to work at places other 16 than the folder, but we cannot totally exempt him from this 17 duty permanently." 18 Q. Let me next show you, sir, Plaintiffs' Exhibit 19 No. 10. This is a letter dated December 8, 1987? 20 A. That is correct. 21 Q. From you to Standard Gravure, care of Paula 22 Warman; correct? 23 A. That is correct. 24 Q. Take a look, sir, and if you would, please, read 25 the fourth paragraph. 44 1 A. The one that begins, "The commission"? 2 Q. Yes, sir. 3 A. "The commission considers disparity of treatment 4 toward someone with an emotional handicap to be discriminatory 5 and illegal. My supervisor has therefore directed me to 6 recommend a finding of probable cause to the January 7 antidiscrimination panel." 8 Q. Now, Mr. Mattingly, is there some background 9 behind this letter and that recommendation or that direction 10 with regard to probable cause? 11 A. Yes, there is. 12 Q. Would you explain that to us, please, sir? 13 A. Well, this letter is dated December the 8th. 14 Three days prior to that on December the 5th, I had had what 15 turned out to be a very important telephone call, telephone 16 conversation with Don Frazier, who was the union president at 17 the time. And in the course of that conversation, I had been 18 able to confirm two very important things. One, first of all, 19 Mr. Frazier verified Joseph Wesbecker's credibility. And, 20 secondly, Mr. Frazier was -- in the course of the conversation 21 verified at least three employees who had been given permanent 22 accommodation by the company, employees that Mr. Wesbecker -- 23 I had received at an earlier date a list of employees from Mr. 24 Wesbecker whom he said were never asked to work on the folder, 25 and in the course of my conversation with Mr. Frazier he 45 1 mentioned at least three of them, or I asked him about at 2 least three of them, and he confirmed that, yes, those three 3 employees are never asked to work on the folder. And so in 4 this letter, that's why it says, "Our investigation has 5 already produced three employees who for physical reasons are 6 never asked to work the folder," at the beginning there of 7 Paragraph 2. 8 Q. Now, sir, let me next show you a document that's 9 been marked as Plaintiffs' Exhibit No. 14. Can you tell us 10 what this is, sir? 11 A. Yes. This is what we call a probable cause 12 letter. If you remember earlier, I said that if the panel 13 finds probable cause, then it comes back to my desk, and it 14 becomes my job to write a probable cause letter. In the last 15 exhibit, I had told Ms. Warman we're going to recommend 16 probable cause for the January panel. The January panel found 17 probable cause, they sent it back to my desk. I am now 18 writing this -- I have now written this probable cause letter 19 and sent it to her. And what it does is it spells out what we 20 found in our investigation and why we have concluded that 21 discrimination occurred. 22 Q. And what was the conclusion with regard to 23 discrimination? 24 A. That it in fact had occurred. 25 Q. Now, sir, let me show you a copy of Plaintiffs' 46 1 Exhibit No. 16. And this is apparently dated, sir, July 20, 2 1988; correct? 3 A. That is correct. 4 Q. And written to Ms. Warman by Elizabeth M. 5 Shipley? 6 A. That is correct. 7 Q. Now, in looking back at the log, sir, this is a 8 year and three months after the time that he first walked into 9 your office; am I right? 10 A. He first walked into our office in May. A year 11 and two months. 12 Q. A year and two months, sir. And it refers here 13 to apparently in the very first line where it says, "Re: 14 Hearing on Wesbecker case"? 15 A. Yes. 16 Q. Can you tell us what the status of this was at 17 that time, sir? 18 A. Well, I was unable to negotiate or to conciliate 19 any kind of agreement between the two parties. And so when 20 negotiations break down I take that case to my supervisor, Ms. 21 Shipley, who wrote this letter, and she -- Ms. Shipley, by the 22 way, is an attorney, and she schedules hearings -- cases for 23 hearing and that's what she had done. She had begun making 24 contacts with attorneys for Standard Gravure and was working 25 toward a hearing. 47 1 Q. At this stage, sir, are you as the compliance 2 officer directly involved after you couldn't get it settled? 3 A. No, I am not. 4 Q. I noticed on the log, again referring to 5 Defendant's Exhibit 369, there's an entry 4-26-88, which is 6 about three months before this letter. And can you read that, 7 sir? 8 A. It says, "I called attorney and explained to him 9 our position. He's going to get back to me." That's not what 10 it says; I'm reading what it means. There are some words left 11 out there. Okay. 12 Q. And according to this log, sir, that's the last 13 date that you had any direct contact with this matter? 14 A. According to this log, yes. 15 Q. All right. Do you have any recollection of 16 having any involvement after April 26, 1988, with Joseph 17 Wesbecker or with this complaint, sir? 18 A. No official contact. I mean, there were 19 times -- there were some occasions, and I cannot tell you 20 when, but there were some occasions when Joe might stop in the 21 office or he might call me, but officially my duty was over, 22 and for the most part from here on, Ms. Shipley worked -- as 23 they moved toward a hearing, she saw the possibility of 24 perhaps conciliating an agreement after all, and so she began 25 to work on that and did so. But I did not have any official 48 1 contact after that date, no. 2 Q. Mr. Mattingly, did you negotiate or participate 3 in any discussions with regard to Joe Wesbecker and long-term 4 disability or LTD at Standard Gravure? 5 A. No. 6 Q. Did you negotiate the conciliation agreement 7 between Mr. Wesbecker and Standard Gravure concerning this 8 complaint of discrimination? 9 A. No, I did not. 10 Q. Did you talk directly with him about that 11 conciliation agreement or about his LTD or long-term 12 disability situation at Standard Gravure? 13 A. No. I remember one day meeting him in the hall. 14 I think he was in the office to see Ms. Shipley who was 15 working toward this agreement, and I met him in the hall, and 16 I had heard that he was disabled and I just stopped for a 17 moment just to say, you know, "I'm sorry to hear you're not 18 able to work anymore," and we just chatted for a minute or 19 two, but, no, nothing official. 20 Q. Mr. Mattingly, after the conciliation agreement 21 was signed, and just to be clear on that, that's Plaintiffs' 22 Exhibit No. 21, and I'll show you a copy of that so that we do 23 have the date. Do you see this document, sir, that's 24 Plaintiffs' Exhibit No. 21? 25 A. Yes, sir. 49 1 Q. And apparently you signed it on the second page 2 as the compliance officer on January 27, 1989? 3 A. That is correct. 4 Q. And then you apparently notarized Mr. 5 Wesbecker's signature on the same date on the -- what I guess 6 is the fourth page of this exhibit, sir. Do you see that? 7 A. Yes, sir. Yes. 8 Q. Did you specifically discuss with Mr. Wesbecker 9 the terms and the specifics of this agreement before he signed 10 it? 11 A. No, I did not. 12 Q. That was someone else that dealt with it? 13 A. Ms. Shipley would have done that. 14 Q. Ms. Shipley? All right, sir. I believe those 15 are all the questions I have, sir. Thank you. 16 JUDGE POTTER: Mr. Smith. 17 18 EXAMINATION ___________ 19 20 BY_MR._SMITH: __ ___ ______ 21 Q. Mr. Mattingly, I'm Paul Smith, and I represent 22 the Plaintiffs in this case. Okay, sir? 23 A. (Nods head affirmatively). 24 Q. I have just a few questions for you. As I 25 understand it, you had how many separate meetings with Mr. 50 1 Wesbecker? Have you got your log there? Here it is. I've 2 got it. 3 A. My log would not be complete. 4 Q. All right. Can you give us an approximation of 5 how many meetings you had with Mr. Wesbecker? 6 A. Well, I worked with Mr. Wesbecker over a period 7 of about 18 months, and are we talking about personal contact 8 or also by telephone? 9 Q. Either one. 10 A. I would probably talk to him on the phone on 11 average once or twice a month and probably met with him much 12 less than that, maybe once every other month. I may have had 13 six or eight meetings face to face with him. 14 Q. Maybe eight face-to-face meetings? 15 A. Something like that. 16 Q. And then you talked to him twice a month over a 17 year-and-a-half period? 18 A. I may have talked to him 25, 30 times over the 19 phone. 20 Q. Say 30 times you talked to him over the phone 21 and that's over a year-and-a-half period? 22 A. Approximately, yes, sir. 23 Q. At no times in those 38 occasions over that 24 year-and-a-half period of time did Mr. Wesbecker threaten to 25 do anything against Standard Gravure, did he? 51 1 A. No, he did not. 2 Q. At no time did he make any violent outbursts in 3 your presence, did he? 4 A. No, he did not. Mr. Wesbecker would call me 5 when he was agitated but not violent, no. 6 Q. And he was certainly concerned about the 7 situation and bothered by the -- to his perception of the 8 treatment he had received at Standard Gravure? 9 A. Yes, sir. 10 Q. And yet over that year-and-a-half period of time 11 during those 38 separate occasions when you talked with him, 12 he never threatened anybody, did he? 13 A. No, he did not. 14 Q. On those occasions that you talked with Mr. 15 Wesbecker, generally, as I understand it, you found him 16 intelligent and articulate? 17 A. Yes, sir. 18 Q. Forthcoming with you? 19 A. Yes, sir. 20 Q. To give you the information that you needed? 21 A. Yes, sir. 22 Q. And on those occasions, as I understand it, you 23 said he would be upset about his situation and yet he would 24 generally laugh and joke and sort of keep a cheerful attitude 25 about it? 52 1 A. Joe Wesbecker had a wonderful sense of humor, 2 and he would come into my office oftentimes agitated or even 3 angry, but invariably before he left he would be laughing or 4 he would have me laughing. 5 Q. It sounded like you actually liked Mr. 6 Wesbecker. 7 A. I did. 8 Q. Found him personable? 9 A. I did. 10 Q. Found him an individual who wasn't a threat to 11 you at all? 12 A. I didn't think so. 13 Q. And he treated you with courtesy? 14 A. Yes, he did. 15 Q. And I'm sure you did with him, sir. 16 A. Yes, sir. 17 Q. At no time did you see him kicking anybody or 18 kicking the walls or things of that nature? 19 A. No violent outbursts; no, sir. 20 Q. And no hostile statements, either? 21 A. Well, he had some pretty nasty things to say 22 about his supervisors. 23 Q. But he didn't say, "I'm going to go kick their 24 butt," or I'm going to go do anything that would harm them, 25 did he? 53 1 A. Not that I recall. If he did, it was not 2 anything I would have taken seriously -- that I took 3 seriously. If he did, it would have been in a joking manner. 4 I can't swear, you know, that he never made any kind of even 5 subtle threat, but nothing that I took seriously. 6 Q. Even if he did make a -- in hindsight -- looking 7 back on it with 20/20 hindsight have been a subtle threat, you 8 never took that as being a legitimate threat? 9 A. No. 10 Q. Joe Wesbecker just didn't seem like that type of 11 guy to hurt somebody, did he? 12 A. Joe Wesbecker was a very disturbed man and I 13 worried about him, but he did not seem to be someone -- 14 Q. Who would hurt somebody, frankly; right? 15 A. Except I wasn't surprised when it happened. 16 Q. I understand that. I understand it. In 17 hindsight. 18 A. So there are some reservations there. 19 Q. But you didn't ever when you were dealing with 20 him, talking with him over those 38 times over that period of 21 time, you didn't ever take anything that he said as being any 22 indicator that he was going to go out and hurt anybody, did 23 you, Mr. Mattingly? 24 A. No. 25 Q. In your dealings with the company, did it appear 54 1 to you that the company was out to get Joe Wesbecker as an 2 individual, really? 3 A. I think I have to answer that with more than a 4 yes or a no. 5 Q. Okay. 6 A. When I talked to Mr. Frazier, the union 7 representative, one of the things that he told me was the 8 reason that you're having trouble getting this accommodation 9 for Joe is because he's so good at his job. The company does 10 not want to make an exception for him, they make exceptions 11 for others, but they do not want to make an exception for him 12 because he's one of the best folder people they've got, and 13 they do not want to eliminate that possibility. 14 Q. Did he explain to you that the folder job was a 15 job that required some expertise? 16 A. I do not remember if he did or not. 17 Q. Or experience or did you take it that that -- 18 A. I got the impression experience was a plus. 19 Q. Did you get the impression that that was sort of 20 a critical job? 21 A. Yes. 22 Q. And so Mr. Frazier was expressing to you that 23 from a company position, the company felt that Mr. Wesbecker 24 was a valuable employee and to put him on the folder was 25 something that was possibly going to be necessary to get the 55 1 best people to do the best job; correct, sir? 2 A. Correct. 3 Q. Now, your investigation, did it conclude that in 4 fact Mr. Wesbecker hadn't actually been put on the folder as 5 the man in charge since September 1986? 6 A. That is approximately correct. The dates that 7 stick in my mind are something like October or November of 8 '86, that he had not actually been the leadman on the folder, 9 he had been called on to be the second man and the second 10 man -- being second man on the folder did not bother him; it 11 was the leadman on the folder that bothered him. But, you 12 see, it's more than what they did; it's what he saw them 13 threatening to do, and so that became a reality in his mind. 14 If they're threatening to do it, then it's the same as putting 15 him on it. 16 Q. I understand that. But as far as him actually 17 having to work the folder, you would confirm that the company 18 had pretty well been able to keep him off the folder; correct, 19 sir? 20 A. Right. That is correct. 21 Q. And that the company was saying we're going to 22 accommodate him as much as we can, but we can't give him a 23 permanent exemption; is that right, sir? 24 A. That's correct. That's correct. 25 Q. And the matter finally was resolved? 56 1 A. Yes, it was. 2 Q. And it was finally resolved in a manner that 3 apparently was satisfactory to all parties, or do you know? 4 A. I think it was really an agreement that was 5 dissatisfactory to all parties. 6 Q. Okay. Sometimes -- 7 A. The company had given in on something they 8 didn't want to give in on and Mr. Wesbecker, at this point, 9 was disabled, was unable to work. From our point of view, we 10 were not accomplishing what we had hoped to accomplish, and 11 that is to get him an accommodation and make him once again a 12 good employee, because that was no longer possible, he was 13 disabled for life. 14 Q. But in the conciliation agreement, Exhibit 21, 15 Paragraph 7 says, "Respondent agrees" -- you got it in front 16 of you? 17 A. I do. 18 Q. Paragraph 7, "Respondent agrees that in the 19 event Mr. Wesbecker is able to return to work, the company 20 will make reasonable accommodations for any mental handicap he 21 may continue to suffer in accordance with his prior practice 22 applicable to all employees. Specifically, Mr. Wesbecker 23 would be employed with neither more nor less security than his 24 fellow journeymen." That's what he wanted, wasn't it? 25 A. No, sir. No. He wanted them to say, "You will 57 1 never have to work on the folder," and they really don't say 2 that. 3 Q. Yeah. But didn't you say earlier that he said, 4 "I'm being treated differently than my fellow employees who 5 have physical handicaps"? 6 A. That is correct. 7 Q. And isn't that what this gives him, to be 8 treated equally with his fellow employees who have physical 9 handicaps? And he says specifically that he's not going to 10 have a problem by virtue of a mental handicap; isn't that what 11 that paragraph says, sir? 12 A. The company would never -- the company had not 13 turned to any of these people who had physical problems and 14 said, "You're never going to have to work the folder." And 15 this is what he's asking for. See, he's asking for something 16 they really don't have, but the reason he's asking for it is 17 his is an emotional problem, he worries. 18 Q. I understand that, Mr. Mattingly, but didn't he 19 in fact -- didn't the company say we agree that we're not 20 going to hold his mental status against him and we're not 21 going to treat him any differently? Isn't that what 22 Paragraph 7 says? 23 A. That's what Paragraph 7 says. They're not going 24 to treat him either -- that's what they said all along. 25 Q. That's what the discrimination laws are about, 58 1 aren't they? That we're not going to treat people differently 2 by virtue of their race, sex, color, or physical or mental 3 handicap; right, sir? 4 A. That is correct. 5 Q. That's what your job is, to ensure that this 6 practice is enforced in this city? 7 A. But except that in handicap cases -- 8 Q. Can I have my answer? Isn't that what your job 9 is, Mr. Mattingly? 10 A. Yes, it is. Yes, it is. 11 Q. Now, the last sentence there says that it will 12 not place him in a job which he cannot perform and then use 13 nonperformance as an excuse for dismissal; correct, sir? 14 A. That is correct. 15 Q. Just one other thing about this conversation 16 that you had with Ms. Warman about it would be dangerous to 17 put Mr. Wesbecker back on the folder? 18 A. Yes, sir. 19 Q. As I understand it, you were primarily concerned 20 about the danger to Mr. Wesbecker by virtue of physical injury 21 to Mr. Wesbecker because of the medications he was taking; 22 right, sir? 23 A. That was one of my concerns. 24 Q. And your other concern was what, sir? 25 A. My other concern was that this man who had deep 59 1 emotional problems might snap under the pressure and harm 2 himself or others. 3 Q. But you didn't express that to Ms. Warman, did 4 you, sir? 5 A. What I expressed to her was that it might well 6 endanger his life or the lives of people around him. 7 Q. But you didn't tell Ms. Warman that he could 8 snap by virtue of his emotional situation? 9 A. I did not use those words, no. In fact, the 10 words that I just used are almost -- I can't after five years 11 swear that that's a quote, but it's pretty close. But we did 12 not go into any detail and I didn't say, "He's got these great 13 emotional problems and he might snap and go do things to 14 people;" no, I did not. 15 Q. Because you never perceived Mr. Wesbecker as -- 16 Mr. Wesbecker on those 38 occasions had never threatened 17 anybody; right, sir? 18 A. Mr. Wesbecker had attempted suicide and -- 19 Q. Please, can you tell us whether he threatened 20 anybody, Mr. Mattingly? 21 A. He did not. 22 Q. And you never saw him commit a violent act? 23 A. No. 24 Q. But you did not -- this is very important, 25 Mr. Mattingly. You did not tell Paula Warman that Joe 60 1 Wesbecker had deep emotional problems and that he could snap 2 and do something to somebody, did you, sir? 3 A. I did not. 4 Q. That's all I have. Thank you, sir. 5 JUDGE POTTER: Anything else, Mr. Stopher? 6 MR. STOPHER: Just a couple of questions, Your 7 Honor. 8 9 FURTHER_EXAMINATION _______ ___________ 10 11 BY_MR._STOPHER: __ ___ _______ 12 Q. Mr. Mattingly, with regard to that conversation 13 with Ms. Warman, which I believe you testified earlier 14 occurred on a date in May of -- excuse me, June of 1987, sir? 15 A. June 16, 1987. 16 Q. And you worked with him over the next 18 months? 17 A. Approximately, yes. 18 Q. Approximately? Did your opinion about him that 19 you had stated in June of 1987 ever change, sir? 20 A. No. 21 Q. You mentioned two other items, sir, and I'd like 22 for you to explain these if you can and if you recall. You 23 mentioned that on some occasions he would come into your 24 office and would be agitated and angry. Did I understand your 25 testimony correctly, sir? 61 1 A. Yes, sir. 2 Q. Can you describe for us what you recall about 3 those instances? 4 A. It was common for him to work a shift from one 5 in the morning to nine in the morning, and then it would not 6 be uncommon when he left work at 9:00 to come to my office, 7 which is just a few blocks away, and he would be agitated over 8 what a supervisor had said or done. And he liked to refer to 9 them as the -- as the shop attorneys and the shop doctors who 10 were diagnosing him and telling him what his rights were and 11 weren't. You know, he might come in very agitated at what had 12 happened at work. There was an incident in which a -- someone 13 put something up on the bulletin board and it said, "If you 14 need help in this regard, call Joe Wesbecker at 585-NUTS." He 15 was not only upset, his feelings were hurt. And it wasn't 16 just that this was on the bulletin board, but that no one in 17 authority had taken it down. 18 So I said, "Can you get a picture of that?" He 19 said, "I'll bring a camera in tomorrow." And so he called me 20 the next day and he said, "I took a camera in but they had 21 taken it down." So I don't know if it ever appeared or not. 22 But it was things like that that got him agitated and got his 23 feelings hurt. 24 Q. You mentioned, sir, that you knew that he had 25 attempted suicide? 62 1 A. Yes. 2 Q. What was your source of that information and 3 what do you recall about it, sir? 4 A. He told me that. I do not remember when he told 5 me that. I don't think it was at that initial -- when a 6 person calls the first time or walks in the first day, we call 7 that the intake; that session at which I spent about an hour 8 with him at the very beginning. I don't think it was then, 9 but I think it was before I talked to Ms. Warman. Sometime in 10 that first month I talked to him and he told me that he had 11 attempted suicide more than once. 12 Q. Thank you, sir. That's all I have. 13 MR. SMITH: Your Honor, I just have one other 14 question. 15 16 17 FURTHER_EXAMINATION _______ ___________ 18 19 BY_MR._SMITH: __ ___ _____ 20 Q. In Exhibit 369, your log, Mr. Mattingly? 21 A. Yes, sir. 22 Q. The entry of 3-29-88, looks to me like it says, 23 "C came in with info. Will ask Bill Ganote to contact"? 24 A. You're very good at reading my handwriting. 25 Q. You write very legibly, sir. Is that correct? 63 1 A. That is correct. 2 Q. Can you give us some details on what that 3 conversation was? 4 A. I think this is the day in which Mr. Wesbecker 5 came in and he brought me a list of people -- of employees, 6 what shift they worked, what area they worked. And what he 7 was trying to show was that there were people who are never 8 asked to work the folder. And he said, you know, you will see 9 that this person always works Area One, this person always 10 works Area Two. This person -- and also in the course of the 11 conversation this was not the first time I had heard the name 12 Bill Ganote. Mr. Ganote had been involved in an accident at 13 work and had had to have reconstructive surgery on his hand or 14 his arm, and the company had exempted him from going back on 15 the folder until he thought he was ready. And Mr. Wesbecker 16 saw that as someone that he could compare himself to a 17 comparable. You know, "They did it for Bill Ganote, they can 18 do it for me." At some point I said, "Why don't you have Mr. 19 Ganote give me a call so that I can get from the horse's mouth 20 exactly what happened to him and what the company agreed to 21 do." So he agreed to ask Mr. Ganote to call me, but that 22 telephone call never occurred. 23 Q. Did you take it that Mr. Wesbecker and Mr. 24 Ganote were friends or on a friendly basis or that Mr. Ganote 25 was going to cooperate with him in that regard? 64 1 A. Yes. 2 Q. That they were friends? 3 A. Yes. 4 Q. Did you know that Bill Ganote was one of the 5 people that Joe Wesbecker shot and killed? 6 A. Yes. 7 Q. That's all I have. 8 JUDGE POTTER: Thank you very much, sir. You 9 may step down; you're excused. 10 I tell you what, ladies and gentlemen, we'll go 11 ahead and take the morning recess at this time. As I've 12 mentioned to you-all before, do not permit anybody to talk to 13 you about this case. Don't discuss it or form or express 14 opinions about it. We'll take a 15-minute recess. 15 (RECESS; BENCH DISCUSSION) 16 MR. SMITH: The next witness is Ms. Minch, who 17 was the caseworker for Jimmy Wesbecker's exposure condition. 18 She was assigned by the Court to do investigations in '82 and 19 '84, somewhere in that range. We would object to any of her 20 observations concerning Jimmy as being immaterial to any issue 21 in this trial. 22 JUDGE POTTER: What type of observations do you 23 object to, Mr. Smith? 24 I mean, what are you going to get out of Ms. 25 Minch, Mr. Stopher? 65 1 MR. STOPHER: Very, very little about Jimmy, 2 Your Honor. That's not the purpose of calling her. I'm not 3 interested in -- Jimmy was interviewed by her, her opinions 4 were particularly of Jimmy. I'm really interested in her 5 contacts with Joe Wesbecker. 6 JUDGE POTTER: Okay. I take it he went to some 7 of these conferences? 8 MR. STOPHER: He did. And it's in the context 9 of her treating Jimmy and just in terms of that kind of 10 background, but as far as going into the specifics of how many 11 times he exhibited himself and what conditions about beating 12 up a little girl or hurting a little girl or whatever, I'm not 13 going to go into that or whatever. 14 MR. SMITH: I think certainly it would be 15 appropriate for any -- one particular observation she made is 16 in 1984, he seemed a lot more calm and a lot more cooperative 17 and she attributed it to the medication he was taking. Now, 18 she has no nursing background, no medical background. That's 19 not an opinion that she's qualified to give. 20 JUDGE POTTER: I agree. 21 MR. STOPHER: I agree. And I'm not going to ask 22 her for it. 23 JUDGE POTTER: I mean, she can't express he's 24 more calm and the reasons for that. 25 MR. STOPHER: Right. I agree. 66 1 (BENCH DISCUSSION CONCLUDED) 2 SHERIFF CECIL: All rise. The jury is entering. 3 All jurors are present. Court is back in session. 4 JUDGE POTTER: Please be seated. 5 Mr. Stopher, do you want to call your next 6 witness? 7 MR. STOPHER: Ann Minch. 8 JUDGE POTTER: Ma'am, could I get you to step 9 around here and raise your right hand, please. 10 11 ANN MINCH, after first being duly sworn, was 12 examined and testified as follows: 13 14 JUDGE POTTER: Okay. Would you have a step 15 around into the witness box, state your name loudly and then 16 spell it for me, please. 17 MS. MINCH: Ann Detlefs Minch. The maiden name 18 is D-E-T-L-E-F-S. And the married is M-I-N-C-H. 19 JUDGE POTTER: If you'll keep your voice up good 20 and loud and answer Mr. Stopher's questions. 21 22 EXAMINATION ___________ 23 24 BY_MR._STOPHER: __ ___ _______ 25 Q. Ms. Minch, obviously the microphones there in 67 1 front of you are what pick up your voice, so if you would try 2 to direct volume in that direction and I think that will help 3 everybody. 4 Would you give us your address, please. 5 A. 209 South Madison Avenue, Middletown, Kentucky. 6 Q. And, Ms. Minch, I apologize, but would you give 7 us your age, please? 8 A. Thirty-seven years old. No problem. 9 Q. I can understand. There is no problem; that's 10 exactly right. Ms. Minch, are you presently employed? 11 A. Yes, I am. 12 Q. And where do you presently work? 13 A. Actually, since the time I gave deposition, I am 14 now self-employed in private practice as a mental health 15 therapist. 16 Q. And you mentioned that at the time you gave your 17 deposition you were employed someplace else. Would you tell 18 the jury where that was? 19 A. That's correct. At that time I was employed 20 with ClearSprings Health Partnership. 21 Q. And prior to that by whom were you employed? 22 A. Prior to that, I was doing some private practice 23 work and some contractual work at several agencies, Our Lady 24 of Peace Hospital and The Morton Center. 25 Q. All right. Ms. Minch, let me go back and ask 68 1 you, then, if you would, please, to give us a brief 2 description of your educational background and your training 3 and generally what you do. If you'd start at college and 4 progress forward chronologically, that will suffice. 5 A. Okay. I graduated in 1979 from Hanover College 6 with a B.A. in sociology. Then I attended the University of 7 Louisville Kent School of Social Work from approximately 1980 8 to '84, and graduated in December 1984 with a Master's Degree 9 in social work. 10 Q. And does that qualify you by training as a 11 social worker? 12 A. Yes. I am a licensed clinical social worker 13 licensed by the state of Kentucky for independent practice. 14 Q. And about when were you licensed, Ms. Minch? 15 A. I obtained my L.C.S.W. in -- let me think a 16 minute -- November 1988. 17 Q. And L.C.S.W. stands for licensed clinical social 18 worker? 19 A. That's correct. 20 Q. All right. And is that a state license that is 21 issued by the state? 22 A. Yes, it is. 23 Q. Ms. Minch, maybe this is obvious to everybody 24 except me, but would you tell us briefly what a social worker 25 is or what a licensed clinical social worker is in brief 69 1 terms, if you would? 2 A. We are mental health therapist practitioners, 3 can perform basically the same functions, provide 4 psychotherapy, evaluate, assess, treat psychological or 5 psychiatric type of problems similarly to a psychologist and 6 even similarly to an M.D. psychiatrist. The difference being 7 that social workers cannot prescribe medication. 8 Q. Now, Ms. Minch, in connection with your work as 9 a licensed clinical social worker, have you ever been 10 connected with the juvenile court and the Jefferson County 11 Department for Human Services? 12 A. Well, Mr. Stopher, I need to clarify, that, yes, 13 I was employed by the Department for Human Services; however, 14 at that time of my employment I was not licensed by the state 15 of Kentucky as a social worker. 16 Q. All right. Subject to that qualification the 17 answer is yes? 18 A. Yes. I was a social worker for Department for 19 Human Services. 20 Q. And as a social worker for that department, 21 generally what did you do, particularly with regard to matters 22 in juvenile court? 23 A. I was what's known as a predispositional 24 caseworker. Basically, we were involved with juveniles who 25 were arrested for delinquent offenses; not status dependent, 70 1 delinquent offenses. Once a case was assigned by virtue of 2 the juvenile having been arrested, we would contact the 3 parents, notify them the date of arraignment. Then we would 4 be present for each court hearing from arraignment forward, 5 and basically we served as a liaison between the juvenile 6 court and the family to explain the court process, what they 7 could expect, answer questions. 8 And the most important duty was that we made 9 predispositional recommendations to the juvenile court judge 10 involved with the case as to how these legal charges might be 11 disposed of, what treatment recommendations we thought were 12 appropriate for the juvenile, et cetera. 13 Q. Ms. Minch, approximately how long a period of 14 time did you do that work? 15 A. I was employed in that capacity from August '81 16 to end of August '84. 17 Q. Ms. Minch, during that period of time when you 18 were -- I think I've got the right term here, a 19 predispositional caseworker in connection with juvenile court, 20 did you ever have an occasion to serve as a liaison between 21 the Wesbecker family and juvenile court? 22 A. Yes, I did. 23 Q. Can you tell us generally how that came about 24 and why? 25 A. I'll do this not citing exact dates but just by 71 1 memory of what my contact was. The son, Jimmy Wesbecker, had 2 come before the juvenile court numerous times on charges 3 involving indecent exposure or exhibitionism, whichever term 4 you want to use. This was from about spring of '82 to August 5 of 1984, and I was assigned as a caseworker during that entire 6 period. Finally, his charges kept continuing despite the 7 courts' attempts to intervene, and eventually in August of 8 1984, there was an adjudication made and a disposition related 9 to these charges that Jimmy kept incurring. 10 Q. During the period of time then from 11 approximately I think you said in the spring of '82 until 12 August of 1984, is that the time period when you had contact 13 with that family? 14 A. Yes, it is. 15 Q. Ms. Minch, would you give us some idea, and I 16 know you probably didn't keep a running log, but can you give 17 us some idea of the number of contacts that you would have 18 with the family or how often it might occur, something that 19 would give us some background about frequency and amount of 20 contact? 21 A. To be honest, Mr. Stopher, without reviewing the 22 actual court record of how many times Jimmy was in court and 23 what the dates were, I would give a ballpark estimate that I 24 probably had at least a dozen contacts, most of them face to 25 face with Joe Wesbecker or the Wesbecker family, Jimmy, 72 1 however you want to say that. 2 Q. Now, Ms. Minch, let me direct your attention 3 specifically to one member of that family, and that is 4 particularly Joseph Wesbecker. Did you have contact with him 5 during that period of time? 6 A. Yes. I certainly did. 7 Q. And, first of all, would you tell the jury what 8 the purpose would be of the contacts with Joe Wesbecker as 9 opposed to Jimmy Wesbecker? 10 A. As part of gathering information for the report 11 that would be submitted to the Judge, we did what's known as a 12 home study where we would go into the child's home, interview 13 the parents, obtain a lot of background information about 14 psychosocial stressors, physical environment, school 15 functioning, marital history of the parents, I mean, you name 16 it; it was a very comprehensive home study and evaluation. So 17 I did visit with Joseph Wesbecker in his home on one occasion, 18 it was sometime in early August of '84, but I also had a lot 19 of telephone contact and a lot of personal face-to-face 20 contact in the waiting area of the juvenile courtroom. 21 Q. Ms. Minch, did you -- do you have a specific 22 recollection of each of these contacts with Joe Wesbecker or 23 do they tend to blur together? 24 A. I can't be specific as to dates or times, but I 25 certainly have a lot of recollections about Joseph Wesbecker. 73 1 Q. All right. Well, let me begin at that point, 2 then. Would you tell us what you do recall about Joe 3 Wesbecker and your contacts with him as you've described them 4 over that period of time? 5 A. Well, I call him Joe, only because when you've 6 worked with someone for two and a half years and you're trying 7 to make them comfortable, you get on a first-name basis. Joe 8 was a very difficult person to work with, communicate with, 9 reason with. He was very angry towards me and expressed that 10 quite openly. He was hostile. He was aggressive. His anger 11 was because I was pushing for Joseph Wesbecker and his ex-wife 12 Sue Chesser to engage themselves in some conjoint therapy, 13 counseling, for the benefit of their son. And the reason I 14 was recommending that so strongly, and others involved with 15 the case also recommended it, is because we all felt -- the 16 professionals involved -- that Jimmy's behavior was in large 17 part a result of the ongoing conflicts and antagonism between 18 these two adults, these two parents that were no longer 19 married. 20 And so I continuously brought this up over this 21 two or whatever year period that I worked with the family: 22 "Joe, I think you and Sue really need to get into some 23 counseling. I think Jimmy's problems are in large part 24 because of this stuff going on in the family, and if you care 25 about your son, for God's sake, get yourself into some 74 1 counseling." He was so hostile and angry toward