1 1 NO. 90-CI-06033 JEFFERSON CIRCUIT COURT DIVISION ONE 2 3 4 JOYCE FENTRESS, et al PLAINTIFFS 5 6 VS TRANSCRIPT_OF_THE_PROCEEDINGS __________ __ ___ ___________ 7 8 9 SHEA COMMUNICATIONS, et al DEFENDANTS 10 11 * * * 12 13 14 WEDNESDAY, NOVEMBER 30, 1994 15 VOLUME XLII 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 Buchholz Voir Dire................ 4 4 * * * 5 WITNESS: DR._THEODORE_SCHRAMM (By Deposition) - Cont'd. _______ ___ ________ _______ 6 By Mr. Stopher........................................... 28 7 WITNESS: DENNIS_BUCCHOLZ,_Ph.D. _______ ______ _________ _____ 8 By Mr. Stopher........................................... 44 9 By Mr. Smith............................................. 86 10 WITNESS: LIEUTENANT_DONALD_BURBRINK _______ __________ ______ ________ 11 By Mr. Stopher...........................................111 By Mr. Smith.............................................201 12 * * * 13 Reporter's Certificate...................................217 14 * * * 15 16 17 18 19 20 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 FOR THE PLAINTIFFS: 4 PAUL L. SMITH 5 Suite 745 Campbell Center II 6 8150 North Central Expressway Dallas, Texas 75206 7 NANCY ZETTLER 8 1405 West Norwell Lane Schaumburg, Illinois 60193 9 IRVIN D. FOLEY 10 Rubin, Hays & Foley 300 North, First Trust Centre 11 Louisville, Kentucky 40202 12 FOR THE DEFENDANT: 13 EDWARD H. STOPHER Boehl, Stopher & Graves 14 2300 Providian Center Louisville, Kentucky 40202 15 JOE C. FREEMAN, JR. 16 LAWRENCE J. MYERS Freeman & Hawkins 17 4000 One Peachtree Center 303 Peachtree Street, N.E. 18 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 Wednesday, November 30, 1994, at approximately 8:56 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 MR. SMITH: What we want to talk to you about 11 is -- and why don't you talk to him about it, Nancy, and see 12 if we can't get it straight what these documents are. 13 MS. ZETTLER: Okay. 14 DOCTOR BUCHHOLZ: Would you like me to tell you 15 the story? 16 MS. ZETTLER: Why don't we do this first. Why 17 don't you put him under oath. 18 19 DENNIS BUCHHOLZ, after first being duly sworn, 20 was examined and testified as follows: 21 22 VOIR_DIRE_EXAMINATION ____ ____ ___________ 23 24 MS. ZETTLER: Why don't we just start with a 25 general question. If you could tell us how you got involved 5 1 in this issue of this MMPI and what you did in relation to 2 your involvement. 3 DOCTOR BUCHHOLZ: Sure. I didn't think I was 4 going to be testifying and then I got a call from one of Mr. 5 Stopher's assistants. It was either Robin Fisher or Ann 6 Piper, saying that they thought they might want me to testify 7 because there was some problem with this MMPI that had been 8 admitted before. And at that point I asked her what was 9 wrong. And she described the situation to me, and it didn't 10 seem like that much of a problem to me, so I asked her to send 11 me the materials. And so she sent me the answer sheet and 12 this report, the NCS report that was done in 1980, I think it 13 is. And I looked at this, and this is a -- this answer sheet 14 is from the Roche Psychiatric Institute and it's a step-down 15 test book. This is an obsolete form of the MMPI that isn't 16 used anymore. I haven't seen one in years, but it's one of 17 several forms of the MMPI that used to be used. And the 18 questions are all the same, they're just mixed up. And we can 19 get into the reasons for why that is, but it doesn't really 20 matter, I think, for this purpose. That's the way they used 21 to do that. The company is out of business. They don't do 22 that anymore. So I don't know how to score this. Nobody has 23 the materials to score this anymore. 24 So what I did was I called up NCS, who is the 25 company in Minnesota who does all the MMPI stuff ever wrote. 6 1 And they're the ones that did this orginal report and I sent 2 them the answer sheet and they sent me a new report based on 3 this answer sheet, and that's this one here. It's identical 4 to the old report. So they were able to translate this -- 5 they had a key in their computer that translated this into 6 their form so the numbers here -- particularly you're 7 concerned about these critical items -- these numbers here in 8 the new report are identical to the numbers in the old report, 9 these numbers here. 10 And on this new one here it says -- it explains 11 exactly this problem. We're not the first people to have this 12 problem. It explains it here. "Corresponding item numbers 13 for the Roche Test Book can be found in the Clinical Use of 14 the Automated MMPI." This is a book that's written by the guy 15 that's president of the American Psychological Association, 16 and I couldn't find a copy of this book anywhere. 17 So I called NCS and they sent me the pages out 18 of the book that are relevant. So this is right out of this 19 book, Clinical Use of the Automated MMPI, by Ray Fowler, and 20 this is conversion from standard MMPI booklet to the Roche 21 Test Book. So this is the translation key from one test set 22 of numbers to the other test set of numbers, and then we have 23 here how to convert it back. This comes from the RPSI test 24 book to the standard. And also with this is a letter that 25 explains this whole thing better than I can do it. It says 7 1 here, "Enclosed you will find the MMPI you recently returned 2 to us believing it had been scored incorrectly. In fact, the 3 scoring was accurate. The critical item listing appears to be 4 incorrect because the Roche Psychiatric Service Institute 5 chose not to use the standard Group Form MMPI item order. I 6 have enclosed a table that shows the relationship between the 7 unique item order employed in the Roche Test Book and the 8 standard test item employed in the Minnesota report. That 9 table will permit you to verify that the Roche answer sheets 10 that you submitted are in fact properly scored." And it goes 11 on to explain why they didn't use these numbers, and basically 12 it's because nobody uses these forms anymore. 13 So that's the whole story. It was my idea. I 14 don't know whether I should have done it or not, but, I mean, 15 I asked to see the materials. 16 MR. SMITH: This test was done in -- 17 DOCTOR BUCHHOLZ: 1980. 18 MR. SMITH: I thought it was '83. 19 DOCTOR BUCHHOLZ: Well, I don't know. 20 MS. ZETTLER: It's hard to read on here. It 21 kind of looks like '80 and -- 22 DOCTOR BUCHHOLZ: To be perfectly honest, I 23 haven't even read this report. I don't have any opinion about 24 the report. I just know what the scoring is. I don't know 25 anything about the report. 8 1 MR. SMITH: Obviously, you didn't administer 2 this test. 3 DOCTOR BUCHHOLZ: No. I had nothing to do with 4 it except being the intermediary here. 5 MR. SMITH: But you did do a test in -- but you 6 did a test in '87 -- 7 DOCTOR BUCHHOLZ: My own test. Yes. 8 MR. SMITH: -- when you examined Mr. Wesbecker? 9 DOCTOR BUCHHOLZ: That's right. And I used a 10 different answer sheet. So I would suspect -- I think what 11 you're most interested in would be this key that, you know, if 12 you want to look up any one of these items, you can translate 13 it into where it would be on there. 14 MS. ZETTLER: I guess I'm a little confused. 15 Why is it reported on here that this is, say, Question 16, 16 when on the other test it's Question 11? 17 DOCTOR BUCHHOLZ: Well, because the questions 18 are mixed up. They're put in a different order on here. You 19 want to know why they did that? 20 MS. ZETTLER: Okay. Sure. 21 DOCTOR BUCHHOLZ: They were in business. They 22 had their own business for, you know, marketing the MMPI. 23 People aren't allowed to do that anymore. NCS holds the 24 copyright and they don't let anybody do that. But in the past 25 these people had their own business, they had their own tests, 9 1 their own books and they sold this material. And they're the 2 only people that could score it. It was a way of protecting 3 their own business. 4 MS. ZETTLER: All right. But let's talk about 5 from a practical standpoint. When Mr. Wesbecker was taking 6 this test -- 7 DOCTOR BUCHHOLZ: He used a different test book. 8 He didn't use the test book that we have available. It was a 9 special test book. 10 MS. ZETTLER: Okay. But if you look at the 11 normal test book and you look up Question 33, Question 33 in 12 the normal book is, "I have had very peculiar and strange 13 experiences." 14 DOCTOR BUCHHOLZ: Okay. In theory, then, if we 15 look at Item 33 here, that would be Item 21 on the test book 16 that he looked at. 17 MS. ZETTLER: But my question is, is why is it 18 printed out as Question 33 if it's really another question? 19 DOCTOR BUCHHOLZ: Okay. That question is 20 addressed better than I can state it, in this letter. "We 21 have not programmed the item numbers used by Roche for two 22 reasons." And this is directly answering the question why 23 didn't they just print the Roche numbers here, the one with 24 those questions. "First, as mentioned by Doctor Jolosky and 25 myself in our letter detailing the change from Roche to NCS 10 1 Interpreting Scoring Systems, Roche materials are no longer 2 being sold. Thus, the Roche item order is rapidly becoming 3 obsolete. Furthermore, as noted above, we print the item 4 numbers that are considered standard. The Group Form item 5 numbers are employed in all MMPI textbooks and in most journal 6 articles dealing with the test. Therefore, the numbers we 7 employ are likely to be most helpful to you. We regret any 8 inconvenience this has caused you." 9 MS. ZETTLER: Where is the other letter that 10 they mentioned in here? 11 DOCTOR BUCHHOLZ: I don't know. That was 12 probably one that was sent out many years ago. 13 MR. SMITH: Are you saying this is just a form 14 letter here? 15 DOCTOR BUCHHOLZ: Yeah. This is not a personal 16 letter to me. This is what they send out. Because whenever 17 anybody has this problem, they send out this stuff. 18 MS. ZETTLER: Another question I had about this 19 is if you look at the front of this you have two different 20 fax -- not on your copy, but on my copy, it's got a fax it 21 looks like to you. 22 DOCTOR BUCHHOLZ: That's my number, that's my 23 phone number. 24 MS. ZETTLER: Is that a fax coming to you? 25 DOCTOR BUCHHOLZ: Yeah. This was faxed to me. 11 1 MS. ZETTLER: Okay. Where's the first page? 2 DOCTOR BUCHHOLZ: Page 2. Page 2. 3 MS. ZETTLER: I mean, is there something missing 4 from this, Doctor, that you can note, if you know? And when 5 I'm saying "this," I mean Defendant's Exhibit 472. 6 DOCTOR BUCHHOLZ: Yeah. I understand. I'm 7 thinking. 8 MS. ZETTLER: Do you mind if I take a look at 9 this? 10 DOCTOR BUCHHOLZ: No. Wait a minute. No. No. 11 Yeah. This was -- okay. Where's my copy? See, my copy -- I 12 faxed this to Mr. Stopher's office, so that's why my phone 13 number is printed on here. And when I sent this to Mr. 14 Stopher I had a cover sheet -- I had my cover sheet on it -- I 15 may or may not still have. This is the page there. That's 16 Page 1. Because my secretary faxed this whole thing like this 17 to Mr. Stopher and that's how it got entered as an exhibit. 18 But this is what I got from NCS, this endless range of faxes 19 in here. 20 MS. ZETTLER: Who did you talk to at NCS? 21 DOCTOR BUCHHOLZ: I talked to several people. 22 The first person I talked to was this Sallie Duncan, she was 23 the person who scored -- who did the actual scoring of this 24 for me, and then I called up and said I wanted the items and 25 they sent me to another department, and then Julie Godfrey was 12 1 the one who took it from there. I didn't actually speak with 2 her, somebody else in my office did. One of my assistants did 3 that. 4 MR. SMITH: Well, let me ask you this -- 5 DOCTOR BUCHHOLZ: Again, I have no opinion about 6 the content of these things. It's just kind of a routine kind 7 of a scoring problem. 8 MR. SMITH: In connection with the test you did, 9 there is a question -- 10 DOCTOR BUCHHOLZ: The numbers should match up 11 for what I did. 12 MR. SMITH: But there is no critical item 13 listing on this one that was sent back? 14 DOCTOR BUCHHOLZ: Well, when I did the test I 15 didn't have it computer scored. I did it personally myself. 16 I did this in my office. I took this answer sheet which you 17 can see is different from his and, you know, those numbers 18 should correspond to these. And I made up my own profile, and 19 this is all that exists for my evaluation. So I take the 20 place of the computer in this process. So this was not sent 21 to NCS for scoring. And you could do that if you wanted and 22 see if they agree with me. I'm not familiar with -- see, 23 that's yet another answer sheet. So you can see there are 24 different kinds of answer sheets. 25 MS. ZETTLER: I think that's just an example. 13 1 DOCTOR BUCHHOLZ: I mean, this is one, and this 2 was mine, this was a different type, and then there was this 3 one here, which is yet a third type of an answer sheet. 4 MR. SMITH: Let's see. I thought we had the 5 actual answers. 6 DOCTOR BUCHHOLZ: Well, this is my actual answer 7 sheet. 8 MR. SMITH: Yeah. Like here. 9 DOCTOR BUCHHOLZ: Somebody else may have written 10 them out or something. Those are my materials there. 11 MR. STOPHER: Yeah. Let's don't get this mixed 12 up. 13 MR. SMITH: This is what you did, this was 14 attached as a copy to your deposition? 15 DOCTOR BUCHHOLZ: That's mine. I did that 16 personally. 17 MR. SMITH: And this is the answer sheet -- 18 DOCTOR BUCHHOLZ: When he took it in '87. 19 MR. SMITH: When he took it in '87 for this 20 booklet; is that right? 21 DOCTOR BUCHHOLZ: Yes. 22 MR. SMITH: So we know about what you did in 23 '87, that's not a problem; right? I mean, you're not 24 concerned about the validity or the -- not necessarily the 25 validity, but the accuracy of the answers to your test? 14 1 DOCTOR BUCHHOLZ: No. 2 MR. SMITH: The question is whether or not the 3 answers to the '83 test are valid; correct? 4 DOCTOR BUCHHOLZ: Yes. And again, I didn't even 5 look at the critical items. I don't know what they say. I'm 6 just kind of being the messenger here conveying this 7 information about this kind of scoring problem. 8 MS. ZETTLER: Do you have a copy of the other 9 booklet? 10 DOCTOR BUCHHOLZ: No. I couldn't find one. I 11 don't think they exist. NCS didn't have one. I asked them. 12 MS. ZETTLER: How about this booklet that they 13 cite here, Fowler, R. D., The Clinical Use of the Automated 14 MMPI? 15 DOCTOR BUCHHOLZ: That book exists. I couldn't 16 find one. I ordered one, it will be probably two weeks before 17 it gets here in the library alone. Unless you want to call 18 this -- he is president of the NPA, you can call and get it. 19 MS. ZETTLER: When it says automated MMPI, is 20 that some sort of computer? 21 DOCTOR BUCHHOLZ: Yeah. That's the computer 22 thing, and that's what we're dealing with here is these 23 computer-generated reports. These are computer-generated 24 reports. 25 MS. ZETTLER: Do you have any other documents in 15 1 your file, Doctor, regarding this issue besides what you 2 showed us? 3 DOCTOR BUCHHOLZ: This issue? No. That's it. 4 MS. ZETTLER: Do you have any correspondence 5 between Mr. Stopher and yourself? 6 DOCTOR BUCHHOLZ: About this issue, that's the 7 only correspondence. I asked her to send me the stuff, she 8 sent it. 9 MS. ZETTLER: Did you speak with Mr. Stopher or 10 any other attorney for Lilly on this issue? 11 DOCTOR BUCHHOLZ: After this, you know, I got 12 this information, I met with Mr. Stopher and explained it to 13 him just the way I've explained it to you. 14 MR. SMITH: Did he understand it? 15 MS. ZETTLER: When did you meet with him? 16 DOCTOR BUCHHOLZ: It was last Friday. 17 MS. ZETTLER: The client number that's on this 18 new report is 14181, and the client number on the old report 19 is 0477 something, I believe. 477735. 20 DOCTOR BUCHHOLZ: I think that number refers to 21 the doctor because the client -- this number here refers to me 22 because I'm the one that has to pay for this. 23 MS. ZETTLER: Okay. Do you have the same client 24 number as whoever it was that administered this original test 25 because it's the same? 16 1 DOCTOR BUCHHOLZ: No. See that's where they got 2 that number. 3 MS. ZETTLER: Are you connected in any way to 4 Our Lady of Peace? 5 DOCTOR BUCHHOLZ: Yes. 6 MS. ZETTLER: Okay. Could that be their number? 7 DOCTOR BUCHHOLZ: I don't think so, no. See, 8 all I did was I sent them this sheet and there's no name on it 9 or anything. Well, there is a name. It says Doctor Senler, 10 but that's not on the report. So I don't know. I don't know 11 where they got the number. But, I mean, if you want to send 12 this to NCS, they'll send you back the same -- you'll just get 13 the identical report. 14 MR. SMITH: But you had them rerun it? 15 DOCTOR BUCHHOLZ: They reran it and they 16 rescored it again. And it's kind of amazing you got the 17 identical report 14 years later or 10 years later or however 18 many years it is. I was surprised. I thought they would have 19 changed the software or something. It's just identical. So 20 it verifies the validity of this in a couple of ways. For one 21 thing, you know, you score this and you get the same report, 22 or you can do it -- and now we have the key and you can do it 23 manually and match up the critical items; either way the thing 24 is validated. 25 MS. ZETTLER: But it's your understanding that 17 1 this report, even the new one was run through a computer, 2 also, correct? 3 DOCTOR BUCHHOLZ: Yes. And that's this report 4 right here. 5 MS. ZETTLER: Did they tell you that they still 6 have the software to do the conversions with this? 7 DOCTOR BUCHHOLZ: Yes. And they're apparently 8 the only people in the world that can do it, as far as I know. 9 MS. ZETTLER: Are there any other forms of the 10 MMPI that you're aware of between this form -- 11 DOCTOR BUCHHOLZ: There's only one other form, 12 and actually you have that answer sheet. There's the Form R. 13 There's the Group Form, which you have. That's the Group Form 14 booklet. But the answer sheet that you had on there was a 15 Form R answer sheet. So this answer sheet really isn't for 16 this booklet. 17 MS. ZETTLER: And when you say "this," you're 18 talking about the answer sheet that's connected to the actual 19 MMPI booklet that you have? 20 DOCTOR BUCHHOLZ: Yes. I dont know where -- 21 MR. SMITH: This is the answer sheet for that 22 booklet, which is the answer sheet that you administered? 23 DOCTOR BUCHHOLZ: Yes. That was the one I 24 administered. This answer sheet has different numbers than 25 the numbers in this booklet. So this does not go with this 18 1 booklet. I dont know where they got it, but... 2 MR. SMITH: But this one does? 3 DOCTOR BUCHHOLZ: Yeah. That one does. You'd 4 have the same problem if you used this answer sheet as if you 5 used this one. They wouldn't match up with this test booklet. 6 MR. SMITH: Okay. 7 DOCTOR BUCHHOLZ: They don't do that anymore 8 because just of this problem. Now they're all the same, but 9 it took some time for them to realize that it wasn't such a 10 good idea to have so many different forms floating around. 11 MS. ZETTLER: Besides Sallie Duncan and Julie 12 Godfrey, did you talk to anybody else at NCS? 13 DOCTOR BUCHHOLZ: I talked to the phone 14 operator. No. Nobody in particular. 15 MS. ZETTLER: Are these women, if you know, 16 psychologists? 17 DOCTOR BUCHHOLZ: I don't know their training. 18 They work for NCS and they're probably not psychologists. 19 They're probably trained -- Julie Godrey works in scoring -- 20 no. Sallie Duncan works in the scoring department and they're 21 each familiar with one specific issue of this aspect of this 22 but not... 23 MS. ZETTLER: You never talked to Kevin Moreland 24 or Doctor Joloski? 25 DOCTOR BUCHHOLZ: My assistant in the office 19 1 talked with somebody that was a male about this, and I suspect 2 it was Doctor Moreland, but I don't know. They had one copy 3 of this book in their file and they weren't likely to -- 4 willing to send it to us, but they sent us the Xerox. 5 Personally I did not speak to anyone else. 6 MR. SMITH: Okay. 7 MS. ZETTLER: Anything else? No. Okay. 8 Thanks, Doctor. 9 (VOIR DIRE EXAMINATION CONCLUDED; DOCTOR 10 BUCCHOLZ LEAVES CHAMBERS AND JUDGE POTTER 11 ENTERS CHAMBERS) 12 JUDGE POTTER: Okay. You've had an opportunity 13 to, I guess in effect, take a brief deposition of Doctor 14 Buchholz. Is there any motions you want to make before we 15 continue the case and he takes the stand in a half an hour or 16 so? 17 MR. SMITH: Yes, Your Honor. Apparently what 18 Doctor Buchholz did was have the 1983 MMPI rerun and tried to 19 explain how the critical item inventory came out exactly the 20 same as it was. This is new material with a new number and 21 was -- than was originally run. It is not authenticated. 22 There is nobody that can identify these documents as being 23 accurate. 24 JUDGE POTTER: Mr. Stopher. 25 MR. STOPHER: Judge, as Doctor Buchholz just 20 1 explained to them, the test in 1983 was done on a document 2 that's called the Roche. 3 JUDGE POTTER: And it says on the top of it 4 Roche? 5 MR. STOPHER: Yes, it does. 6 JUDGE POTTER: Okay. 7 MR. STOPHER: And what the Roche test did, as he 8 just explained, is they took, for example, Question No. 28 on 9 the standard MMPI and they renumbered it and gave it as 10 Question No. 240. Then when they did the report back to the 11 referring physician, they changed the number from 240 back to 12 the standard number 28. He has verified the validity of that 13 1983 report in two ways. Number One, he has produced for 14 them, which they have and which I have as well, the conversion 15 table that shows what the standard question or what the number 16 was on the standard test and what it is on the Roche test. 17 And the conversion table -- 18 JUDGE POTTER: I guess RSPI test book is Roche 19 Personality something Inventory? 20 MR. STOPHER: Yes, sir. Psychiatric or Public 21 Institute or something like that. So you can verify it 22 manually. In other words, you can go to the questions and 23 convert it and come up with the same answers that are 24 identical to those on the critical item listing. The second 25 thing he did was send them Mr. Wesbecker's test score answers 21 1 from 1983 and asked them to rescore it, and they sent the same 2 critical item listing that was generated in 1983. It's 3 identical word for word. So it verifies the fact that the 4 answer sheet does match up in 1983 with the critical item 5 listing. And it can be checked manually. 6 JUDGE POTTER: All right. How did he obtain 7 these two documents? I assume he wrote somebody or called 8 somebody? 9 MR. STOPHER: Your Honor, there's only -- as he 10 just testified, there's only one institute in the world that 11 does these anymore. This was a company -- this Roche 12 Institute, as he just explained, was in business for a short 13 period of time, and they wanted to have a testing numbering 14 system that would be kind of proprietary and unique to them, 15 as is explained in that letter that he's produced. So what he 16 did was send the raw data to the only recognized and competent 17 scoring service in the world that still does these and that's 18 NCS at Madison, Wisconsin. So he sent the raw data to them 19 and got this information from them. They are the reliable 20 source. 21 JUDGE POTTER: And where did he get -- and I 22 assume he talked to them on the telephone or he -- 23 MR. STOPHER: Yes, sir. As he just explained, 24 he talked to them on the phone, telefaxed them Mr. Wesbecker's 25 questions. He got back the scoring sheet, which is there as 22 1 an exhibit, and these are his fax transmittals that are part 2 of this exhibit, Judge. 3 JUDGE POTTER: All right. Mr. Smith, what do 4 you want to say? 5 MR. SMITH: Well, the letter here is not dated. 6 It's not authenticated in any way. Obviously, for him to 7 explain this would require him to testify concerning what he 8 was told, what he's seen, which would all be hearsay. He did 9 not administer this test. He, before he made this inquiry, 10 had no personal knowledge concerning how these matters were 11 scored. 12 JUDGE POTTER: I'm sorry. I thought he did 13 administer the test back in 1980 -- 14 MR. SMITH: No. He administered a test in '87, 15 but he did not administer the test that is incorrect in 1983. 16 That was done by Doctor Leventhal. 17 MR. STOPHER: No. It was not done by Doctor 18 Leventhal. 19 MR. SMITH: Well, whoever, it was done by some 20 other doctor. 21 MR. STOPHER: We don't know who and -- 22 JUDGE POTTER: Wait. Wait. Continue. I 23 thought he had done this test himself. 24 MR. SMITH: No. What happened was when this 25 question arose at trial with Doctor Greist, Mr. Stopher sent 23 1 this old test that was administered to doctor -- in 1983, to 2 Doctor Buchholz and asked Doctor Buchholz to investigate why 3 there was this irregularity, correct, in the answers and the 4 questions. 5 MR. STOPHER: That's not what he just testified 6 to. 7 MR. SMITH: But Doctor Buchholz did not 8 administer the test in '83. 9 JUDGE POTTER: All right. 10 MR. STOPHER: He's just verified it by rescoring 11 it, and it can be checked manually if there's any doubt in 12 anybody's mind. 13 JUDGE POTTER: All right. Just for my own 14 information, how did this thing creep in the file in the first 15 place, it just showed up in the hospital record? 16 MR. STOPHER: Yes, sir. It is in the exhibits 17 that were produced yesterday as part of Dr. Senler's records 18 on Mr. Wesbecker. 19 JUDGE POTTER: And in 1981 nobody asked Doctor 20 Senler -- or 1991 or whenever his deposition was taken nobody 21 really -- 22 MR. STOPHER: It was not an issue then. It only 23 became an issue in the trial and it came as a surprise 24 obviously to me, as I've explained to you and everybody else. 25 And the presumption is now that there's something wrong and 24 1 that somehow this has been misrepresented by me and other 2 people, including Doctor Greist. In fact, what he has done is 3 rescore this and have it rescored, and it can be checked 4 manually to prove that it is in fact accurate and that they do 5 match up. 6 JUDGE POTTER: Mr. Smith's objection, if I 7 understand it right, that if you called Sallie Duncan from NCS 8 or Judy (sic) Godfrey from NCS live, he wouldn't have an 9 objection because these are people that grade these things and 10 they could say this is the true test book, this is what I do, 11 and what do you say to the fact -- I'm sorry, maybe I 12 misunderstood it, Mr. Smith. If they called somebody from NCS 13 that this is what they do is grade these tests and they say, 14 "Well, we look up in the left-hand corner and we see it's a 15 Roche and we know how they're numbered, and the way they're 16 numbered this comes out this way, although the numbers don't 17 match up the results are correct," what objection would you 18 have to this Duncan or Ms. Godfrey or whoever, a qualified 19 person from NCS coming down here as a live witness? 20 MR. SMITH: Because NCS didn't do the original 21 test. 22 JUDGE POTTER: But, I mean, I don't see that 23 that has anything to do with it because what we're dealing 24 with is an answer sheet, and whether they're the right -- 25 quote, right answers on the answer sheet. 25 1 MR. SMITH: I guess it's a question of matching 2 the questions up to the answers. As it now stands, the 3 questions and the answers in the exhibit that's in evidence do 4 not match. 5 JUDGE POTTER: Right. 6 MR. SMITH: And in order to explain this, this 7 witness can't explain this without -- because he didn't 8 administer the test. He doesn't have any personal knowledge. 9 JUDGE POTTER: Suppose he administered the test. 10 All he would know -- all he'd be able to say was, "I sat Mr. 11 Wesbecker down in a room, I put this sheet of paper in front 12 of him, I said, 'Here are the questions, here's the answer 13 sheet. Put the black marks on it.' And after he was through 14 I collected it up, put it in first-class postage, sent it to 15 whatever Roche was or wherever you sent them back then and 16 this thing came back to me in the mail." That's all the 17 person that administered the test could say. 18 MR. SMITH: But apparently it's a different 19 booklet. The Question 231 in Booklet A is Question 23 in 20 Booklet B. 21 JUDGE POTTER: Right. 22 MR. SMITH: And we don't have that booklet. We 23 don't have the original booklet. 24 JUDGE POTTER: Right. The person that 25 administered the test probably doesn't have the original 26 1 booklet. I mean, they have one booklet and they show it to 2 every patient and the only thing they keep relating to that 3 patient is the answer sheet. 4 I'm going to rule that the fact that this person 5 did not administer the test does not mean he can't comment on 6 it. It's kind of like a doctor coming in and reviewing the 7 X-rays and the EKGs and whatnot. And he didn't administer 8 them but he looks at them all and he says, "Based on these 9 pieces of paper, I believe XYZ." And this guy is coming in 10 and saying, "Looking at this answer sheet, I can tell you why 11 this result is correct." The question then becomes may he 12 rely on hearsay that comes from NCS. Assuming that he is 13 prepared to testify that NCS, who they are and what they are 14 and they're reliable and they're used in the business and that 15 it's a part of the clinical psychologists' trade to use them, 16 they mail the test off, they mail it back, I'm going to allow 17 him to use the hearsay. I mean, this is no more hearsay than 18 the original answer was. And if I had to pick one of these 19 exceptions, I guess I'd go with sort of a modified learned 20 treatise. Maybe a record of a regularly conducted activity 21 plus a dose of expert witnesses being able to rely on things 22 that are normally relied on by experts. 23 MR. SMITH: I'm assuming he's not going to be 24 able to express an opinion since he didn't administer that 25 test? 27 1 JUDGE POTTER: Well, I think he's not going to 2 be able to express an opinion beyond -- he dealt with the guy; 3 right? 4 MR. STOPHER: Yes, sir. 5 MR. SMITH: He administered his own test four 6 years later. Obviously -- 7 JUDGE POTTER: He can talk about his own test, 8 that kind of stuff. As far as this goes, he is only allowed 9 to testify because it's a surprise, he wasn't listed, and he 10 can explain what went wrong with the prior test and then he 11 can go on with his testimony as if this had never happened. 12 He's really a two-part witness. He's a fact witness about his 13 own treatment and then he's an expert to explain the glitch in 14 the '83 test. 15 (HEARING IN CHAMBERS CONCLUDED; THE FOLLOWING 16 PROCEEDINGS OCCURRED IN OPEN COURT) 17 SHERIFF CECIL: All rise. The Honorable Judge 18 John Potter is now presiding. All jurors are present. Court 19 is now in session. 20 JUDGE POTTER: Please be seated. Ladies and 21 gentlemen of the jury, did any of you-all have any difficulty 22 observing the admonition about not letting anybody talk to you 23 about this case? How about you, Mr. Hollifield? 24 JUROR HOLLIFIELD: No problem. I didn't have 25 any difficulty. 28 1 JUDGE POTTER: Let me apologize to you-all. 2 Those of you that get here early know that frequently the 3 attorneys and myself get in here early in the morning, 4 sometimes half an hour, sometimes an hour, sometimes more than 5 that, to try and deal with things that need to be dealt with 6 so that we can start right at 9:00. We had planned to be here 7 at 8:30, and it just slipped my mind. That's why we're 8 starting a half hour late. They were here at 8:30, and when I 9 breezeed in at quarter of nine thinking we had nothing on the 10 docket, so the delay is 100 percent my fault. 11 Mr. Stopher, you want to continue with your 12 deposition examination of Doctor Schramm? 13 MR. STOPHER: Yes, Judge. Thank you. This is 14 the continuation of the deposition of Doctor Theodore Schramm 15 that was taken on October 23, 1991. I think it actually 16 begins, Steve, on Page 46, Line 25. 17 Q. You mentioned that in your group therapy session 18 there was a person designated as a CS? 19 A. Those are the initials of my co-therapist, Carol 20 Stuecker of Stuecker and Associates. 21 Q. Carol Stuecker. Was she present in all the 22 group sessions that were attended by Mr. Wesbecker that you 23 conducted? 24 A. I believe so, or reference would have been made 25 to the absence of one of the other therapists. 29 1 Q. I believe you indicated that she took notes 2 during the session? 3 A. No. These are notes which one of us will 4 dictate after we discuss the session in the other room after 5 we have left the patients, the patients have left the office. 6 Q. And those notes that follow the sessions are 7 included in your records that we discussed today? 8 A. Right. They're not verbatim notes; they're 9 impressions, they're hypotheses. 10 Q. Is Ms. Stuecker -- what are her qualifications? 11 A. She is a licensed clinical social worker. 12 Q. Is she still practicing? Is she still in 13 Louisville? 14 A. She's still in Louisville. 15 Q. The nursing assessment that you were asked 16 about, do you recall ever seeing that? 17 A. I scanned it, I'm sure. I usually read all my 18 charts. 19 Q. Is that your standard procedure when the nurse 20 in the hospital makes these types of observation on this form? 21 A. Actually, these are for her own use and she 22 brings up what she has discovered in our treatment planning 23 conference. 24 Q. Do you have a copy of those notes that you 25 transferred on to the next physician that was treating Mr. -- 30 1 A. No. These are appended to the chart. 2 Q. He never really had a copy of these -- 3 A. No. Those -- 4 Q. -- outside of the hospital? 5 A. Those don't come into my possession in this 6 office. They stay as part of the hospital records. 7 Q. You never had a copy of those in your office? 8 A. No, sir. 9 Q. You indicated that you passed along a series of 10 documents to the next physician treating Mr. Wesbecker. Who 11 was that physician? 12 A. I received a release of information signed by 13 Mr. Wesbecker asking to transfer my office records to Doctor 14 Coleman. 15 Q. You transferred what was in your possession in 16 your office to Doctor Coleman; correct? 17 A. Right. Which he already had access to, except 18 the group therapy notes and my intake note. Everything else 19 was part of the hospital records. 20 Q. At any time during the course of your dealings 21 or course of treatment of Mr. Wesbecker, did he ever in your 22 presence make a specific threat against any individual or 23 group of individuals? 24 A. Not a specific threat. Generally a desire to 25 get some redress from his employer. 31 1 Q. Is that your impression from statements that he 2 made or did he make some statements in which he said, "I want 3 some redress"? 4 A. That was my impression from what he said. 5 Q. Are you able to describe that impression or 6 explain that impression to us in any more detail? 7 A. I don't have any detailed notes. It's just from 8 memory. 9 Q. Do you have any memory as to who in your 10 impression he desired redress from? 11 A. Not particularly, except that he mentioned the 12 office. 13 Q. You mentioned I believe that Joseph Wesbecker 14 spoke to you about three different suicide attempts; is that 15 correct? 16 A. They came up in the course of taking the 17 history. 18 Q. Did they also come up in the group therapy 19 sessions? 20 A. No. 21 Q. Okay. 22 A. Now, group therapy sessions, Counsel, we deal 23 with the here and now, the existential reality of what's going 24 on in here. 25 Q. Your recollection is, then, that he did not 32 1 speak anything about past suicide attempts? 2 A. He really didn't say much in group sessions. 3 Q. Was tight-lipped? 4 A. Tight-lipped. 5 Q. In the session with you, then, did you determine 6 how recent those suicide attempts were? 7 A. Only what my notes say. Must be in the hospital 8 notes. I don't think I dated those, if that's what you're 9 asking. 10 Q. Did you follow up with him about those suicide 11 attempts? Did you get into depth with him on those? 12 A. No. 13 Q. Did he mention or did you talk to anybody else 14 that corroborated those statements by him -- 15 A. No. 16 Q. -- that he attempted suicide three times? 17 A. I took him at his word. 18 Q. Okay. And upon admission, I notice you 19 testified that there was an open ward and I guess a closed 20 ward; is that correct? 21 A. Yes. 22 Q. And you indicate he went to the open side? 23 A. No. He was admitted to the closed unit because 24 of the intensity of his depression. As he improved, we 25 transferred him to the open unit, again, only with his 33 1 consent. 2 Q. During his hospitalization, was he on any kind 3 of special suicide watch? 4 A. No. He was just on group privileges, which is 5 not a special suicide watch. Let me check my records here, 6 but I don't recall having ordered suicide precautions. No, I 7 did not. 8 Q. Did you feel that he was a danger to himself at 9 that time? 10 A. At that point, no. 11 Q. How about to others? 12 A. At that point, no. 13 Q. At any time during your treatment of Joseph 14 Wesbecker, did you feel that he was a danger to himself? 15 A. Not in terms of suicide, no. 16 Q. At any time during your treatment of him, did 17 you feel that he was a danger to someone else? 18 A. He talked about his anger, but he did not seem 19 to have any plan of action to discharge that anger. 20 Q. Did he mention to you any homicidal thoughts? 21 A. No. 22 Q. Doctor, on the case history outline you 23 mentioned that he allegedly was a manic-depressive. Did you 24 determine if he was a manic-depressive or not? 25 A. If you'll look at the neurologicals and the 34 1 personality evaluation, I believe Doctor Buchholz supports the 2 diagnostic impression of manic-depressive disorder. 3 Q. And do you concur with that diagnosis? 4 A. I did at that time, yes. See, I discharged him 5 with a diagnosis of dysthymic disorder, which is a 6 nonpsychotic type of depression. Manic-depressive disorder 7 usually refers to a psychotic type of disorder. He was not 8 psychotic at any time that I knew him. 9 Q. But it confuses me a little bit because you say 10 that you do concur that he was manic-depressive? 11 A. He had -- we use that not so much as a rigid 12 diagnosis but as a functional description of mood changes, 13 mood swing disease. Sometimes psychotic proportions, 14 sometimes -- most of it is at a neurotic level. 15 Q. And this was at a neurotic level? 16 A. It was not psychotic at that point. 17 Q. Would you tell us what manifestations he had of 18 the mood swings or the manic state? 19 A. The hyper -- the high level of energy devoted to 20 activity. He was constantly -- he was restless. 21 Q. Doctor, also in the case history outline, it 22 indicated that he was concerned he might be overmedicated. 23 Did you determine that he was overmedicated? 24 A. Yes. We ran levels. He was not overmedicated. 25 Q. And there's a mention of a low tolerance to 35 1 noise in the workplace. What significance did you attach to 2 that? 3 A. Well, he was sensitive to noise. I could 4 imagine myself in a printing establishment with all the 5 shuddering, shaking, clashing machinery. It's a noisy place, 6 I'm sure. 7 Q. Is this sensitivity to noise or low tolerance to 8 noise, is that peculiar to manic-depressives or depressed 9 people? 10 A. It's peculiar to people who are hypersensitive. 11 I mean, you don't attach a diagnosis to that. 12 Q. But it is peculiar to people that are 13 hypersensitive? 14 A. Yes. I myself don't like noisy places. 15 Q. He complained of toluene exposure. Did your 16 diagnosis and treatment reveal anything concerning -- 17 A. We were unable to get a toluene level. Toluene, 18 as you know, is a highly volatile solvent, which may have some 19 toxic effects. 20 Q. During your treatment of him, you did not deal 21 with that; is that correct? 22 A. I tried to get a toluene level, but we weren't 23 able to get one. I don't think it's reported back in the 24 laboratory data at all. Oh, negative in serum. Detection 25 limit, 0.5 micrograms per milliliters, so there was no toluene 36 1 in his blood. 2 Q. So that finding of no toluene in his blood was 3 consistent with the rest of your diagnosis? 4 A. It wasn't consistent with anything. It was just 5 a finding that he was afraid that he had been intoxicated on 6 toluene poisoning. It was at some point during his work. At 7 the time the serum was drawn, there was no toluene. And the 8 blood test only shows what's going on at the moment the needle 9 enters to sample the blood. 10 Q. Doctor, you mentioned I believe mood swings and 11 manic sometimes, depressed sometimes. Would you be able to 12 say whether he spent more time depressed or more time in the 13 manic stage during your treatment of him? 14 A. I think from the nature of my treatment with 15 imipramine, Tofranil, which is a tricyclic antidepressant, it 16 would go without saying that I considered him depressed. 17 Q. Was he also continued on the lithium during this 18 time? 19 A. Yes, sir. 20 Q. What was the purpose of that? 21 A. As I explained before, to stabilize him. 22 Q. Does that stabilize the manic aspects of -- 23 A. It stabilizes the whole dysthymic disorder, both 24 levels of mood swing. 25 Q. In the case history outline again, "Lately he 37 1 felt that medications were causing him side effects, which 2 sedated him or were dangerous for him on the job." Did you 3 determine if there were any side effects from his medication? 4 A. He did not appear to be suffering from the side 5 effects, which some of them probably -- there's a whole list 6 of side effects you get out of the PDR with any of these 7 drugs. The tricyclic antidepressants, they include dry mouth, 8 rapid pulse, things on that order. 9 Q. Doctor, on the discharge summary, my typed 10 version of it, on the second-to-last line says that, "Patient 11 needs at least one week closed hospitalization." 12 A. Post. 13 Q. That's supposed to be post? 14 A. Post. It's corrected. 15 Q. Okay. On my copy it isn't. 16 A. The copy I signed was corrected. 17 Q. Did you have any further doctor/patient 18 relationship with Joseph Wesbecker after he left in, what was 19 it, May? 20 A. When he ceased coming to group, my connection 21 with him ceased. 22 Q. And you sent the records to Doctor Coleman? 23 A. Some months later, when he transferred to Doctor 24 Coleman's care. 25 Q. So what was the last date you saw Joseph 38 1 Wesbecker or treated him? 2 A. It's in the group therapy notes. He was present 3 on the 6th, on the 13th, on the 20th of May, and did not see 4 him after the 27th. So the 20th of May was the last meeting, 5 the last time at which I saw him. 6 Q. Had you prescribed this medication or was some 7 other doctor prescribing the lithium and Tofranil? 8 A. When he was under my care, he was using my 9 prescriptions. 10 Q. When was the last time you prescribed any 11 medication? 12 A. Probably when he left the hospital. When he 13 left my care, I assumed I was dismissed by him. 14 Q. And you pinpoint that as to what date, sir? 15 A. The last time I saw him was in group therapy in 16 this very room on the 20th of May, 1987. 17 Q. Subsequent to that time and after he was being 18 treated by Doctor Coleman, did you have conversations with 19 Doctor Coleman about his treatment? 20 A. No, I did not. 21 Q. But there weren't any conversations or contact 22 between -- before September 14th of '89? 23 A. No, sir. 24 Q. Just one other question, Doctor, and I'll move 25 on. You mentioned anxiety. He had signs of anxiety. Where 39 1 does that fit into the manic-depressive cycle? 2 A. Anxiety is just a basically psychophysiologic 3 condition in which in response to a challenge, a stimulus, 4 there's an outpouring of adrenaline. And a decision is made 5 on a psychophysiologic axis whether to fight or to flee, to 6 stay and deal with it or to remove myself from the area. It's 7 a response to norepinephrine and epinephrine being released by 8 the adrenal glands into the bloodstream. 9 Q. How anxious was Joseph Wesbecker? 10 A. I did not do any psychophysiological testing in 11 terms of sweat or heart rate or mouth dryness, so I can't 12 answer that. My clinical impression was that it was chronic 13 anxiety. 14 Q. I'd like to show you to see if -- this is part 15 of the nurses' notes. And is that Barbara -- 16 A. Sheehan. 17 Q. Sheehan? 18 A. Yes. 19 Q. Barbara Sheehan. And that would have been part 20 of her notes at Our Lady of Peace? 21 A. This is her clinical workup at the time of 22 admission of the patient. These are her notes -- this is 23 her -- this is the nurse's work sheet. 24 Q. It would be your Page 3, Doctor. 25 A. General questions. 40 1 Q. But what I'm going to ask you about, Doctor, is, 2 I just want to go back to this Page 3, Paragraph 4. And he 3 was asked this question and then he would fill this out? 4 A. No. He didn't fill this out. This is Sheehan's 5 recording of his response to her question, as prompted by the 6 work sheet. 7 Q. And the question being, "Have you ever felt like 8 harming someone else?" And he checked, "Yes." And it said, 9 "If Yes, who?" "My foreman." And then -- 10 A. "Any way, at work," right. And this is 11 something he divulged to her but had not divulged to me. 12 Q. Doctor, when you referred earlier in your 13 testimony about one of his themes was getting redress at the 14 office, did you take what he said, the office, as his work? 15 A. I assumed that to be the office at Standard 16 Gravure, yes; I did not think it was this office. 17 Q. Would you say it was clear in your treatment of 18 this patient that the anger and hostility and all the words 19 you used were directed towards the workplace? 20 A. Yes. To the best of my recollection, his anger 21 was focused on the workplace. 22 Q. Did he ever communicate to you that he had 23 discussed his feelings about his work with others at work? 24 A. I have a vague recollection that he did, and he 25 found no resonance, no support at work. I cannot comment -- 41 1 document that. It's a recollection. 2 Q. And in that recollection was that -- 3 MS. ZETTLER: Your Honor, can we be heard on 4 this? 5 (BENCH DISCUSSION) 6 MR. STOPHER: I can't tell whether this was in 7 or out. 8 MS. ZETTLER: This was not designated. This is 9 not designated, Judge. 10 JUDGE POTTER: Mr. Myers, was it not designated 11 the first time? 12 MR. MYERS: 62, Line 1 through 21. 13 MR. STOPHER: It goes to the question and then 14 it cuts off at the answer, so I guess it's -- 15 MR. MYERS: The designation is -- 16 MS. ZETTLER: It was not designated before. 17 MR. STOPHER: The answer is on 21. It is 18 designated. 19 MR. MYERS: -- 62, Lines 1 through 21. 20 MR. STOPHER: She doesn't have the line numbers 21 on it. 22 MS. ZETTLER: Okay. That's fine. 23 (BENCH DISCUSSION CONCLUDED) 24 MR. STOPHER: Steve, we are to read that 25 question and answer. 42 1 MR. LORE: All right. 2 Q. And in that recollection, was that with the 3 employers at work? 4 A. I think it was with everybody. 5 Q. When you put him in the closed unit there, 6 Joseph Wesbecker in the closed unit of this hospital, he was a 7 psychiatrically sick person, was he not? 8 A. Yes. 9 Q. On the item that was read from Page 40 -- 10 MS. ZETTLER: You forgot the rest of his answer, 11 Ed. 12 MR. STOPHER: Oh, I'm sorry. 13 MR. LORE: I'm sorry. Yes. 14 A. Who voluntarily committed himself. 15 Q. On the item that was read from Page 40 by Mr. 16 Bensinger about the fact that Mr. Wesbecker told the nurse 17 that he wanted to kill his foreman at work, are you saying 18 that you did not know about that? 19 A. I heard about it subsequently. 20 Q. When you say subsequently, do you mean after the 21 incident of the shootings at Standard Gravure? 22 A. No. I heard about it during the course of the 23 hospitalization in treatment planning. But we hear lots of 24 threats about, "I'd get that bastard if I could." All right? 25 And many people say this in the intensity of an illness, 43 1 strong feelings of outrage. 2 Q. This is not something, though, that you 3 communicated to anyone at Standard Gravure, is it? 4 A. No. The threat was not made to me. 5 Q. And the records at Our Lady of Peace, without a 6 court order, an employer can't just go in and get them, can 7 they? 8 A. That's correct. 9 JUDGE POTTER: Mr. Stopher, do you want to call 10 your next witness? 11 MR. STOPHER: Yes, Your Honor. Doctor Dennis 12 Buchholz. 13 JUDGE POTTER: Sir, would you step down here and 14 raise your right hand, please. 15 16 DENNIS BUCHHOLZ, after first being duly sworn, 17 was examined and testified as follows: 18 19 JUDGE POTTER: Would you please step around, 20 have a seat in the witness box. Would you say your name loud 21 and clearly for the jury and then spell it, please. 22 DOCTOR BUCHHOLZ: My name is Dennis Buchholz. 23 B-U-C-H-H-O-L-Z. 24 25 44 1 EXAMINATION ___________ 2 3 BY_MR._STOPHER: __ ___ ________ 4 Q. Doctor Buchholz, let me ask you, if you would, 5 please, sir, to address the microphone. If you're within 6 about six or eight or ten inches of it, the sound picks up, 7 and I'm afraid if you get much further back, it's difficult to 8 hear. 9 Would you give us your business address, sir? 10 A. My office is in the Heyburn Building, Suite 905, 11 in Louisville. 12 Q. And what is your profession, sir? 13 A. I'm a licensed psychologist. 14 Q. And, briefly, would you tell us what a 15 psychologist is, sir, and particularly as you operate and 16 practice as a psychologist? 17 A. My particular specialty is neuropsychology. 18 Psychologists in general are -- study behavior and the kinds 19 of things that affect behavior. You usually think about 20 psychologists working with people that are having marital 21 problems or perhaps something -- somebody dies in the family 22 and that has an effect on the way they're feeling and the way 23 they act. My particular specialty involves neurological 24 diseases, things like head injury or Alzheimer's disease and 25 how those can affect the way people act. 45 1 Q. Doctor Buchholz, is a psychologist the same 2 thing as a psychiatrist? 3 A. No. I didn't go to medical school. I went to 4 graduate school in psychology and have a Ph.D., and I did two 5 years of postdoctoral work at different institutions to learn 6 my specialty. 7 Q. Doctor Buchholz, does a psychologist prescribe 8 medications? 9 A. No. 10 Q. Would you give us a description, sir, of your 11 educational background? You mentioned very briefly some of it 12 but, if you would, tell us where you went to college and what 13 you studied and when you graduated and bring us from that 14 point up to date. 15 A. I went to Ohio Wesleyan University and I have a 16 Bachelor's Degree with a major in psychology and then I went 17 to Ohio State University and got a Ph.D. in psychology. Then 18 I went to Case Western Reserve University for a year to study 19 neuropsychology, and then I did another year postdoc at Rush 20 University in Chicago. 21 Q. And about when did you complete that 22 postdoctoral work at Rush in Chicago? 23 A. This is a memory test. 24 Q. I have a cheat sheet here if it will help? 25 A. 1980, I think. 46 1 Q. All right, sir. Doctor, would you tell us 2 briefly about your experience from that time to the present 3 time, sir? 4 A. Well, I've -- I worked at the University of 5 South Dakota in the department of psychiatry, and then I moved 6 to Louisville and worked here in the department of neurology 7 at the University of Louisville. And I continue to have 8 appointments in the departments of neurosurgery at the 9 University of Louisville and the department of psychiatry and 10 also the department of psychology here, teaching medical 11 students and graduate students about neuropsychology. I'm 12 board certified in neuropsychology by the American Board of 13 Professional Psychology, and I have a private practice. And 14 most of my time now is spent in private practice seeing 15 patients that are referred to me by different doctors in the 16 community. 17 Q. Have you been a clinical associate professor at 18 the University of Louisville School of Medicine? 19 A. Yes. I still am. 20 Q. And you still teach there on a regular basis or 21 an occasional basis? 22 A. Yes. 23 Q. Doctor, in connection with your field in 24 psychology, are you certified or licensed? 25 A. Yes. I'm licensed in Kentucky and Indiana. The 47 1 license is a general license. All psychologists have the same 2 license, so there isn't a special license for neuropsychology, 3 just like there isn't a special license for neurology. But I 4 am licensed in two states. 5 Q. And you mentioned earlier that you are board 6 certified. Did I understand correctly? 7 A. Yes. 8 Q. What are you board certified in, sir? 9 A. My specific specialty, neuropsychology. 10 Q. And do you have hospital privileges in this 11 area, sir? 12 A. Yes. I have privileges at quite a few 13 hospitals. I often go to the hospital to see patients there, 14 so I have privileges at Our Lady of Peace, the Veterans 15 Hospital, at Jewish, at Jefferson Hospital, Baptist East, 16 different hospitals. 17 Q. Finally, Doctor Buchholz, have you authored 18 articles which have been published in various medical and 19 psychological journals? 20 A. Yes. 21 Q. Doctor Buchholz, in connection with your 22 practice, have you had an occasion to come into contact with 23 Joseph Wesbecker? 24 A. Yes. I saw him back in 1987. 25 Q. And can you refer to your records, sir, and tell 48 1 us the first contact that you had with him in point of time? 2 A. I saw him April 1st and April 2nd in 1987. 3 Doctor Schramm referred him to me for a psychological 4 evaluation. He was at Our Lady of Peace then. 5 Q. I'm sorry, sir. He was where? 6 A. He was at Our Lady of Peace. 7 Q. Generally, sir, would you tell us on those two 8 days, April 1 and April 2, 1987, in broad outline form, what 9 sort of contact you had with him? 10 A. I talked to Mr. Wesbecker for about a half an 11 hour, did an interview, talked to him about why he was in the 12 hospital, what kind of problems he was having. I gave a list 13 of tests to my assistant to give to Mr. Wesbecker and my 14 assistant gave him the tests, and then I scored up the tests 15 with my assistant and went back and talked to Mr. Wesbecker 16 again about the results, and then I wrote a report for Doctor 17 Schramm. 18 Q. Doctor Buchholz, did you make some notes on this 19 one-half hour interview that you conducted with him? 20 A. Yes. 21 Q. Do you have those notes there with you today, 22 sir? 23 A. I don't have my original notes, I have my 24 report. 25 Q. All right, sir. Are the notes referred to or 49 1 contained in the report? 2 A. Yes. 3 Q. All right, sir. Let me hand you, sir, and if 4 you can verify that that's accurate, a copy of a document 5 that's been marked as Defendant's Exhibit 377. Do you 6 recognize that document, sir? 7 A. That's my report. 8 MR. STOPHER: All right. Your Honor, we'd move 9 the admission of Defendant's Exhibit 377, and ask that a copy 10 be distributed to the members of the jury. 11 MR. SMITH: No objection, Your Honor. 12 JUDGE POTTER: Okay. Be admitted. 13 COURT REPORTER: (Hands document to jurors). 14 Q. Doctor Buchholz, would you refer to that 15 document and tell us -- it appears to be categorized and the 16 first category is History; correct? 17 A. Yes. 18 Q. And is this your record of the interview or the 19 one-half hour interview that you had with him on April 1, 20 1987? 21 A. Yes. 22 Q. Doctor, would you read that history out loud? 23 A. "Joseph Wesbecker is a 44-year-old white male 24 with a 12th grade education and a 17-year work history as a 25 press operator for Standard Gravure. Mr. Wesbecker lives with 50 1 his ex-wife. They were divorced approximately three years 2 ago. They were separated for about nine months when they 3 moved in together. Mrs. Wesbecker works as a teacher for a 4 beauty academy. 5 "Mr. Wesbecker's history is significant for 6 psychiatric admission at Our Lady of Peace four or five years 7 ago and psychiatric admission at Baptist Hospital Highlands 8 nine years ago. Mr. Wesbecker has a history of depression and 9 suicidal attempts, and he states that he has attempted suicide 10 12 or 15 times. He has attempted suicide with carbon monoxide 11 poisoning, medications and hanging. He states that he has 12 never significantly hurt himself. He said that his worst 13 attempt was taking 40 sleeping pills and 60 antidepressant 14 pills at home. He states that he slept for three days after 15 this, but was not hospitalized medically. He did go in for 16 psychiatric hospitalization at Our Lady of Peace after this. 17 "Mr. Wesbecker has had psychiatric treatment by 18 Doctor Moore recently, but Mr. Wesbecker complained about 19 feeling his medications were sedating and causing him side 20 effects which was dangerous for him on the job. He 21 subsequently contacted Doctor Schramm and was admitted to the 22 hospital. 23 "He was referred for neuropsychological 24 consultation to help clarify his diagnosis and determine the 25 importance of any neuropsychological dysfunction in his 51 1 presentation." 2 Q. Now, sir, the next category is Observations. 3 What does that mean? What does that refer to, sir? 4 A. Well, the first part of the report was pretty 5 much what he told me, and the second part is my observations 6 of what he looked like. 7 Q. All right, sir. Would you go ahead, then, and 8 read the section that's under Observations? 9 A. "Mr. Wesbecker was noted to be a somewhat 10 overweight, neatly-dressed gentleman who appeared to be his 11 stated age. He had a very clipped manner of speech and tended 12 to ramble and digress in giving a history; however, he 13 appeared to have an adequate understanding of events around 14 him and of the purpose of the evaluation. 15 "Mr. Wesbecker complained about toluene exposure 16 at work. He said he has been working with toluene for 17 17 years without a respirator and and he feels this has caused 18 him to have various symptoms, including memory loss, dizziness 19 and blackout spells. These are also the same symptoms which 20 he attributed to medications he was given by Doctor Moore. 21 "Mr. Wesbecker also complained of headache, 22 which he described as beginning in his forehead and sometimes 23 involving the muscles over his eyebrows. This appeared to be 24 a tension headache, which he said was treatable effectively 25 with salicylates. 52 1 "Mr. Wesbecker complained considerably about the 2 demands made on him at work. He states that his supervisor 3 wants him to be the head operator of a folding machine, and 4 Mr. Wesbecker finds this too stressful and demanding. He says 5 that he doesn't think it is worth the $4 per hour extra that 6 he would be paid to do this. He complains about having to do 7 too many things and not being able to get any rest while on 8 this job. Mr. Wesbecker filed a grievance against the foreman 9 at the plant over this issue in October and some resolution 10 was achieved by December, although Mr. Wesbecker is not happy 11 with the outcome. He still periodically has to operate this 12 machine, which he tries to avoid as much as possible. 13 "Mr. Wesbecker complained of being depressed and 14 reported both vegetative and psychological aspects of 15 depression, including some suicidal ideation. 16 "In testing, the patient was cooperative and his 17 profile appears to be valid. 18 Q. Doctor Buchholz, after having read this out 19 loud, can you tell us, first of all, what were the significant 20 observations that you made of Mr. Wesbecker, particularly in 21 connection with the history that he gave you on that date? 22 A. Well, he seemed to be depressed and he seemed to 23 have some concerns on his mind. He was particularly concerned 24 about the situation at work. It really seemed to preoccupy 25 his mind. He was worried about the effects of the toluene and 53 1 the job. He talked about some physical symptoms. It wasn't 2 clear what was causing those symptoms, whether it was the 3 medications he got from Doctor Moore or toluene or maybe some 4 other cause. Those are the sort of issues that came out. 5 Q. Doctor, in connection, then, with the contact 6 that you had with him on April 1 and April 2 -- first of all, 7 how did that come about? How did you happen to be connected 8 with Mr. Wesbecker? 9 A. Doctor Schramm wrote an order in the chart 10 asking for psychological testing by me. 11 Q. And what sort of psychological testing were you 12 to do, sir? 13 A. Neuropsychological testing. That involves tests 14 of memory and concentration, things like that, as well as 15 tests of emotional functioning, personality tests. 16 Q. And did you do those kinds of tests with regard 17 to him, sir? 18 A. Yes. 19 Q. Would you read the next section, which is 20 entitled Tests Administered? 21 A. The actual tests that I gave Mr. Wesbecker 22 included the Bender-Gestalt Test, Cognitive Screening 23 Examination, MMPI, Trailmaking Test A, Trailmaking Test B, 24 Wechsler Adult Intelligence Scale-Revised, and the Wechsler 25 Memory Scale. 54 1 Q. And I think you said that those tests were 2 actually administered by an assistant? 3 A. Yes. 4 Q. These are written-type tests, sir? 5 A. Some of them are written. Some of them are 6 tests where you ask the person a question and you write down 7 the answer that he gives you. In some cases, there's a puzzle 8 that he has to put together and you measure how fast he does 9 that. You might read him a story and ask him to tell the 10 story back, those sorts of tests. 11 Q. All right, sir. The written tests, were they 12 scored? 13 A. Yes. 14 Q. And who did the scoring? 15 A. Either myself or my assistant. 16 Q. All right, sir. Now, would you read, then, the 17 section -- the next section, which is Test Results, which I 18 think probably goes down -- or you tell us where it stops on 19 this report. 20 A. It goes down to the last page where it says 21 Summary. 22 Q. All right, sir. 23 A. "Intellectually, Mr. Wesbecker is in the low 24 average range. His scores were consistently low, with his 25 lowest score on the digit span subtest, which is a measure of 55 1 attention and concentration. His overall scores may 2 underestimate his true functional level because of his 3 impaired attention and concentration; however, there is no 4 indication that he has functioned at a dramatically higher 5 level in the past. 6 "The Wechsler Adult Intelligence Scale Subtest 7 Scores: Information, 9; digit span, 5; arithmetic, 9; 8 comprehension, 8; similarities, 6; and his verbal IQ was 86. 9 The performance subtest scores on the WAIS-R: Picture 10 Completion, 15; Picture Arrangement, 7; Block Design, 6; Digit 11 Symbol, 5; Performance IQ, 80; Full Scale IQ, 83." 12 Q. Doctor, let me interrupt you at that point 13 before you go ahead and read the rest of this. On April 1 or 14 April 2, 1987, his full scale IQ was an 83? 15 A. Yes. 16 Q. How does that relate, sir, to the population at 17 large? 18 A. Well, on this particular test, a score of 100 is 19 average. A score of 83, consulting my table here, is at the 20 13th percentile, so out of 100 people he would be No. 13. 21 Q. And 87 out of the 100 would have a higher score? 22 A. Yes. 23 Q. Would you go on, sir, and read the next 24 paragraphs of the report on the testing results. 25 A. "On all other measures of cognitive functioning, 56 1 Mr. Wesbecker showed some variability, although his overall 2 functioning appeared approximately consistent with his low 3 average intellectual level. On the Wechsler Memory Scale, Mr. 4 Wesbecker showed that he was oriented to person, place and 5 time, although he was not able to correctly name the most 6 recent past president. He could count backwards, say the 7 alphabet and count by threes, although he had difficulty 8 repeating a set of digits. He could repeat five digits 9 forwards but only two digits backwards. He showed average 10 recall of story paragraphs, with below average recall of 11 geometric designs and quite poor learning of word pairs over 12 repeated trials." 13 "His subtest scores are: Information, 4; 14 Orientation, 5; Mental Control, 8; Memory Passages, 6; Digits, 15 7; Visual Reproduction, 9; Associate Learning, 8.5; a memory 16 quotient of 86." 17 Q. Can you tell us with regard to the memory 18 quotient how that relates to the population, sir? 19 A. Again, 100 would be average. An 86 is at the 20 18th percentile. 21 Q. Now, just in brief laymen's terms, sir, what's 22 the difference between IQ and MQ? 23 A. The difference is that the memory tests require 24 you to learn something and then remember it and then be tested 25 on it, while the IQ tests don't require you to have that use 57 1 of your memory. So someone might have an IQ of a hundred and 2 if they had Alzheimer's disease, for example, they might have 3 a memory quotient of 50, but their IQ would be unaffected. 4 They just wouldn't be able to remember what was happening. 5 Q. All right, sir. The next paragraph begins with 6 visuospatial. 7 A. "Visuospatial functioning was unimpaired on the 8 Bender-Gestalt test and he showed adequate ability to copy 9 geometric designs." 10 Q. Would you go on, please, sir? 11 A. "Simple manual motor functioning was average on 12 the finger tapping test and Mr. Wesbecker showed the normal 13 pattern of dominant-hand superiority. He obtained a T score 14 of 54 for his right dominant hand and a T score of 53 for his 15 left hand. A T score of 50 is average on this scale. On more 16 complex tests of psychomotor speed, Mr. Wesbecker showed 17 greater difficulty, although performance was still in 18 acceptable limits for someone of his intellectual level. He 19 obtained a T score of 43 on the Trailmaking Test A, which 20 requires simply the ability to connect numbered circles in 21 their proper order. On Trailmaking Test B, he obtained a 22 somewhat low T score of 39. This test requires the ability to 23 alternate numbers and letters in their proper sequence and is 24 believed to measure a patient's ability to scan and keep track 25 of two sequences simultaneously. 58 1 "Basic language functioning was intact and he 2 was able to read and write primer level material, name 3 objects, repeat words and phrases and follow one- and two-step 4 commands. 5 "No deficits were seen in basic stereognosis and 6 praxis and he was able to identify common objects by touch and 7 demonstrate their use. 8 "Personality evaluation of a self-report 9 questionnaire, MMPI, indicated that Mr. Wesbecker has a large 10 number of complaints about psychological functioning at the 11 present time. This may be interpreted either as a "cry for 12 help" or as a deliberate attempt to exaggerate symptomatology. 13 Both of these factors appear to apply to some extent in this 14 case. On the MMPI clinical scales, Mr. Wesbecker showed a 15 prominent elevation on Scale 2, depression. He complains of 16 both vegetative and psychological components of depression 17 with feelings of worthlessness, discouragement and pessimism 18 about the future. Also of clinical significance are 19 elevations on Scales 7 and 8, which indicate a high degree of 20 anxiety with strong feelings of alienation and isolation from 21 others. Mr. Wesbecker appears to be chronically anxious and 22 depressed." 23 Q. Doctor Buchholz, with regard to this last 24 paragraph that you have read, this refers to a questionnaire, 25 I think it's described here as a self-report questionnaire; 59 1 correct, sir? 2 A. Yes. 3 Q. And you put in parentheses, MMPI? 4 A. Yes. 5 Q. What does that stand for, sir? 6 A. Minnesota Multiphasic Personality Inventory. 7 MR. STOPHER: Your Honor, I hate to be a pest, 8 but I'm about to freeze to death. I don't know about anybody 9 else. 10 JUDGE POTTER: Well, I got on Mr. Smith this 11 morning because we were so hot yesterday afternoon. 12 MR. SMITH: Not this Mr. Smith, Your Honor. You 13 didn't get on me for that, this morning. 14 JUDGE POTTER: No. Not this Mr. Smith. It's 15 Harold Smith. You're getting fresh air, folks, that's what it 16 is. 17 Go ahead, Mr. Stopher. 18 MR. STOPHER: All right, sir. 19 Doctor Buchholz, in general terms, would you 20 tell us what the MMPI is, sir? 21 A. It's a questionnaire with 566 true and false 22 questions on it about all sorts of different things, and the 23 test has been given to many thousands of people. And there 24 have been norms established on how different groups of people 25 answer the questions, so there's a normal baseline population 60 1 that's used as a reference point. And then there are 2 pathological populations, groups of depressed people, groups 3 of psychotic people, schizophrenic people, and we've looked 4 at -- or the researchers have looked at how these different 5 groups of people usually respond to the questions, and so we 6 can take any person's answers to the question and compare them 7 against another group and see how they match up. 8 Q. And is this the test that was given to Mr. 9 Wesbecker that's referred to here in this paragraph, sir? 10 A. Yes. 11 Q. Let me hand you a document that's been marked as 12 Defendant's Exhibit 375, and can you identify that for us, 13 please, sir? 14 A. Yes. It's the test booklet for the MMPI, which 15 was given to Mr. Wesbecker. 16 MR. STOPHER: Your Honor, we'd move the 17 admission of Defendant's Exhibit 375 and ask that it be 18 distributed. 19 JUDGE POTTER: Be admitted. 20 SHERIFF CECIL: (Hands document to jurors). 21 Q. Doctor Buchholz, again, briefly, does that 22 booklet that I've just handed to you and has been distributed, 23 does it contain the questions that are on the MMPI? 24 A. Yes. 25 Q. And then does the person taking the test answer 61 1 those questions true or false on an answer sheet? 2 A. Yes. 3 Q. Let me next hand you a group of documents, sir, 4 that have been marked and identified as Defendant's Exhibit 5 376. And can you tell us what this series of -- I believe 6 it's three pages, sir, what it is? 7 A. Well, the back two pages are copies of the 8 answer sheet that Mr. Wesbecker filled out, and the top page 9 is my scoring of that profile. 10 Q. And did you do that scoring yourself, sir? 11 A. Yes. 12 MR. STOPHER: Your Honor, we'd move the 13 introduction of Exhibit 376. 14 MR. SMITH: May I have just a second, Your 15 Honor, to make sure we have the right... 16 MR. STOPHER: Sure. 17 MR. SMITH: Okay. 18 JUDGE POTTER: Be admitted. 19 SHERIFF CECIL: (Hands document to jurors). 20 Q. Now, sir, let me go to the Exhibit 376, which is 21 the chart on top. Do you have that, sir? 22 A. Yes. 23 Q. And what are the last two pages of that 24 document, sir? 25 A. Those are the actual answers that Mr. Wesbecker 62 1 gave. 2 Q. So I can take, if I understand correctly, 3 Exhibit 375, which is the series of questions, and select a 4 number, a particular number of a question, and then go to the 5 answer sheet and see what answer he gave; is that accurate, 6 sir? 7 A. Yes. 8 Q. For example, Question No. 28. 9 A. He answered that "True." 10 Q. The question is: "When someone does me a wrong, 11 I feel I should pay him back if I can just for the principle 12 of the thing"? 13 A. Yes. 14 Q. And what was his answer, sir? 15 A. "True." 16 Q. Take a look, sir, for example, at Question No. 17 41: "I have had periods of days, weeks or months when I 18 couldn't take care of things because I couldn't get going." 19 How did he answer that one, sir? 20 A. He answered that "True." 21 Q. Question 43: "My sleep is fitful and 22 disturbed." 23 A. "True." 24 Q. Question 238: "I have periods of such great 25 restlessness that I cannot sit long in a chair." 63 1 A. "True." 2 Q. Question 337: "I feel anxiety about something 3 or someone almost all the time." 4 A. "True." 5 Q. Question 506: "I am a high-strung person"? 6 A. "False." 7 Q. Question 555: "I sometimes feel that I am about 8 to go to pieces." 9 A. "True." 10 Q. Question 142: "I certainly feel useless at 11 times." 12 A. "True." 13 Q. Question 39: "At times I feel like smashing 14 things." 15 A. "True." 16 Q. Question 381: "I am often said to be 17 hotheaded." 18 A. "True." 19 Q. Question 33: "I have had very peculiar and 20 strange experiences." 21 A. "False." 22 Q. Question 328: "I find it hard to keep my mind 23 on a task or job." 24 A. "True." 25 Q. In other words, sir, we can go down these list 64 1 of questions and match up to the answers that correspond to 2 the numbers shown here; correct, sir? 3 A. That's right. 4 Q. Now, sir, going back to Page 1 of this same 5 Exhibit No. 376, sir, the chart. Do you have that available 6 there, sir? 7 A. Yes. 8 Q. Let me ask you, sir, about this chart. And can 9 you tell us generally how it is configured, what's 10 represented, basically, on this chart? 11 A. Well, you can see there's a line on there, a 12 jagged line, and that reflects how Mr. Wesbecker answered the 13 different questions and also how his answers compare with 14 other groups. 15 Q. All right, sir. My copy of this, and I assume 16 everybody else's is a little difficult to read, particularly 17 on the specifics, but it looks to me like in the left-hand 18 column that it goes from it looks like 0 to like 120; am I 19 reading that correctly? 20 A. Yeah. On the -- yes. 21 Q. And is there a section on here that is normal? 22 A. Yeah. On this graph it's 60, right in the 23 middle. 24 Q. Sixty? 25 A. That's -- we're talking about between 50 and 70. 65 1 There are two lines that go across at 50 and 70 that go across 2 the page. That's the normal range of response. 3 Q. Between 50 and 70? 4 A. Yeah. So the scores that are between those two 5 lines are felt to be pretty normal. 6 Q. All right, sir. 7 A. Scores that are above that line, above the 70 8 line are felt to be pathological. 9 Q. What is pathological? 10 A. Things that are abnormal or of concern to 11 psychiatrists, in this case, symptoms that might need 12 psychiatric treatment. 13 Q. Now, sir, in looking at this chart, it appears 14 to -- in addition to the horizontal lines which go across -- 15 and you've identified 50 and 70 as being normal, those are the 16 horizontal lines; correct? 17 A. Yes. 18 Q. In addition to the horizontal lines, are there 19 also some vertical lines or scales here? 20 A. Yes. Across the top you can see there's a 21 question mark and an L, an F, and a K, and it goes 1, 2, 3, 22 4, 5, 6, 7, 8, 9, and 0. And those are the different scales 23 that we look at other than the normal scale that we've already 24 talked about. So you can see that his scores are above the 25 normal line in a couple of areas. The F one is high. Scale 1 66 1 is high; Scale 2 is high; Scale 7 is high; and Scale 8 is 2 high. So those are the ones that were pathological in this 3 case. 4 Q. All right, sir. What is Scale 1? 5 A. Scale 1 is called hypochondriasis, and it 6 reflects a lot of complaints about physical problems; 7 headaches, aches and pains, stomachaches. I didn't look at 8 specifically what he was complaining about, but we know that 9 he was complaining about physical problems more than most 10 people. 11 Q. What is Scale 2, sir? 12 A. Depression. That's obviously his highest scale 13 here and what's the most prominent thing about this profile. 14 He was reporting symptoms very much like people who are 15 clinically depressed. 16 Q. Scale 7, what is that, sir? 17 A. Primarily it shows anxiety, tension, 18 nervousness, that sort of thing. 19 Q. And Scale 8, what is it? 20 A. It reflects usually feelings of alienation and 21 isolation, feeling that he is not a part of things, that he 22 doesn't fit in, doesn't relate to people well, people don't 23 understand him, that sort of thing. 24 Q. Now, sir, the other scales. We've talked about 25 four scales; 1, 2, 7 and 8; correct? 67 1 A. Yes. 2 Q. Would you explain to us what Scale 3 is? What 3 does it relate to? 4 A. It usually reflects emotional reactivity and it 5 also relates to concern over physical symptoms. 6 MR. SMITH: I'm sorry, sir. I didn't hear you. 7 JUDGE POTTER: Would you keep your voice up, 8 sir? 9 A. It relates to emotional reactivity and also 10 physical symptoms. So, for example, it's called the hysteria 11 scale. Someone who is very emotional and very reactive to 12 minor problems would get a high score on that scale. 13 Q. What is Scale 4, sir? 14 A. That's referred to as psychopathy, and it 15 reflects primarily antisocial sorts of personality traits. 16 Very often when we test people in jail, we find very high 17 scores on this scale. People with a high score here tend to 18 be impulsive, tend to have trouble with the law, to have no 19 conscience, to not feel that laws are made for them, that sort 20 of thing. 21 Q. Do they have -- if someone scores abnormally 22 high on that scale, do they have any sense of right or wrong? 23 A. That's our best measure that they don't have a 24 good sense of right or wrong. 25 Q. Scale 5, sir, what does it relate to? 68 1 A. That's called the male-female scale. It relates 2 to the issues of sexuality and sexual identity. 3 Q. And, finally, Scale 6, sir. 4 A. Paranoia, concern that other people are 5 interfering with his life. 6 Q. Now, if I understand correctly, on scales 7 three -- well, maybe I missed Scale 9, sir. 8 A. Nine is mania and it reflects energy level. So 9 someone who was very energetic, very active, really 10 pathologically active, they would have a high score on Scale 11 9. Scale 0 is social introversion. If someone is very 12 socially introverted, they would get a high score on that 13 scale. 14 Q. Now, sir, in connection with these scales, 3, 4, 15 5, 6, 9 and 0, how did Mr. Wesbecker score or rate on this 16 particular day? 17 A. They were within normal limits on that day. 18 Q. Doctor, does this test score a long continuum of 19 personality traits or does it relate to a shorter term? 20 A. It's really much more like a snapshot that tells 21 you how he was doing on that particular day. Some of the 22 traits tend to be more enduring, particularly if you look at 23 the patient's history and put it all together. The test 24 itself is -- can vary from day to day, depending on how he's 25 feeling. 69 1 Q. If a person has mood swings, for example, does 2 that affect the performance on any one day on this test? 3 A. Sure. If someone were very energetic on a 4 particular day they might have a high score on Scale 9, and if 5 they were really feeling down they would have a low score. 6 Q. Doctor, going back, now, sir, to the report that 7 you generated in connection with Mr. Wesbecker, would you read 8 the section under Summary? 9 A. "Mr. Wesbecker scores in the low average range 10 on measures of intellectual functioning. There is no 11 indication that he has functioned at a substantially higher 12 level in the past on the absence of comparison baseline data. 13 His scores on other measures of cognitive ability are 14 variable, although generally in the range expected of someone 15 of this intellectual capacity. No definite evidence of brain 16 dysfunction was seen. 17 "Mr. Wesbecker's limited intellectual 18 functioning contributes to his psychiatric picture because of 19 his somewhat limited insight, concrete thinking and difficulty 20 coping with more than one problem at a time. 21 "A personality evaluation shows a slightly 22 exaggerated profile with prominent depression, anxiety and 23 feelings of alienation and isolation. 24 "The current data are available for future 25 comparison and will provide a valuable reference baseline for 70 1 this gentleman if he continues to complain of cognitive 2 difficulties." 3 Q. With regard, sir, to the finding that his 4 limited intellectual functioning contributes to his 5 psychiatric picture because of his somewhat limited insight, 6 concrete thinking and difficulty coping with more than one 7 problem at a time, can you expand on that and tell us what 8 that means in ordinary terms, sir? 9 A. Well, some people are very able to handle very 10 complicated situations. They can deal with a lot of stress. 11 They can handle five things at one time. This gentleman was 12 not that sort of person, according to the data that we got at 13 that time. 14 Q. How would he react to multiple problems or to 15 stress from different sources at one time? 16 A. I think that's reflected in the fact that he had 17 to have psychiatric hospitalization. I think that's exactly 18 what happened, he was stressed out and decompensated and 19 needed to be in a psychiatric hospital. 20 Q. In the next paragraph you make the statement 21 that "A personality evaluation shows a slightly exaggerated 22 profile with prominent depression, anxiety and feelings of 23 alienation and isolation." Can you expand on that again and 24 tell us what it means with regard to Mr. Wesbecker? 25 A. Well, it was evident in his history, this was a 71 1 gentleman that's made numerous suicide attempts. He had been 2 depressed and felt unhappy about things for quite a long time, 3 and his personality profile fit perfectly with that history 4 and the complaints he was presenting with. 5 Q. The statements about depression, that showed up 6 on Scale No. 2? 7 A. Yes. 8 Q. The evaluation of anxiety, that's No. 7? 9 A. Yes. 10 Q. Alienation and isolation are on Scale No. 8; am 11 I correct? 12 A. Yes. 13 Q. When you put all of this together, sir, what was 14 the personality profile of Mr. Wesbecker at the time that you 15 tested him on April 1 or 2, 1987, sir? 16 A. He presented as a very unhappy, chronically 17 depressed gentleman with some degree of paranoia described in 18 his reports. Someone with limited coping ability and very 19 prominent depression. 20 Q. Doctor Buchholz, did you have any follow-up with 21 Mr. Wesbecker at any subsequent times for additional testing? 22 A. No. 23 Q. Was that requested by Mr. Wesbecker or by the 24 psychiatrist? 25 A. Not of me. 72 1 Q. Not of you. 2 Your Honor, if we may take the morning break at 3 this time, I think it would be a good breaking point. 4 JUDGE POTTER: All right. You can go out and 5 get warm. Okay. This machinery does the whole building and I 6 think Mr. -- the building manager kind of tries to overplease, 7 so that's why we got cold this morning. 8 As I've told you-all before, do not let anybody 9 communicate with you about this case. Do not discuss it with 10 each other or form or express opinions. We'll take a 11 15-minute recess. 12 (RECESS) 13 SHERIFF CECIL: The jury is now entering. All 14 jurors are present. Court is back in session. 15 JUDGE POTTER: Please be seated. 16 Doctor Buchholz, I'll remind you you're still 17 under oath. 18 Mr. Stopher. 19 Q. Doctor Buchholz, just a few items in summary 20 about the work that you did with regard to Mr. Wesbecker in 21 early April. At the time that you had contact with him, sir, 22 was he psychologically distressed? 23 A. Yes. 24 Q. In what way, sir? 25 A. He was quite depressed, quite anxious, quite 73 1 concerned with his health and things going on in the 2 workplace. 3 Q. At the time that you had this contact with him, 4 sir, was he able to reason and think normally? 5 A. No. 6 Q. In what ways was his reasoning or his thinking 7 abnormal? 8 A. Well, his -- you know, his cognitive functioning 9 was impaired. Just in general terms, his memory probably 10 wasn't as good as it would be normally. He wasn't thinking 11 clearly. 12 Q. What do you mean he wasn't thinking clearly, 13 sir? 14 A. Well, he wouldn't be able to remember things as 15 well as normal. When people get depressed, they're 16 preoccupied; they're not able to do their jobs as well as they 17 might or drive a car as well as they might. It's just 18 something that affects the way you function generally. And, 19 you know, I think additionally he had some odd ideas about 20 what was going on at work. And I never did find out what was 21 really going on at work, you know, but the scenario he 22 described didn't seem very rational. So I had the impression 23 that his thinking was somewhat distorted, as well. 24 Q. Was he focused on items at work? 25 A. He was very preoccupied with things at work. 74 1 The toluene issue and the issue about the folder seemed just 2 to come up repeatedly in his conversation. 3 Q. Doctor, with regard to the depression scale, 4 which I think is Scale 2, how did Mr. -- how does that relate 5 to Mr. Wesbecker's feelings about himself? What does that 6 tell us, what you found on this study, about the way he felt 7 about himself? 8 A. One of the main features of depression is a 9 feeling of low self worth, that you're not worth anything and 10 that you're never going to succeed and it's hopeless and no 11 matter what you try it isn't going to work. 12 Q. And was that consistent with your clinical 13 impression of him? 14 A. To some extent, sure. He didn't seem very 15 hopeful about the future and was frustrated by his abilities 16 to solve his problems. 17 Q. You also mentioned and recorded, sir, that he 18 had a pathological score on the anxiety scale, or Scale No. 7; 19 correct, sir? 20 A. Yes. 21 Q. What, in terms of observable types of symptoms 22 and evidence of anxiety, was there in his case, sir? 23 A. I'd like to refer to my report and see what I 24