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 FRIDAY, DECEMBER 9, 1994 15 VOLUME XLIX 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...................................... 4 4 Jury Instructions........................................ 17 5 Closing Argument by Mr. McGoldrick....................... 21 6 Closing Argument by Mr. Stopher.......................... 45 7 Closing Argument by Mr. Smith............................ 93 8 Hearing in Chambers......................................153 9 Reporter's Certificate...................................162 10 * * * 11 12 13 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 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 13 FOR THE DEFENDANT: 14 EDWARD H. STOPHER Boehl, Stopher & Graves 15 2300 Providian Center Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. 17 LAWRENCE J. MYERS Freeman & Hawkins 18 4000 One Peachtree Center 303 Peachtree Street, N.E. 19 Atlanta, Georgia 30308 20 JOHN McGOLDRICK McCarter & English 21 Four Gateway Center 100 Mulberry Street 22 Newark, New Jersey 07102-4096 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 Friday, December 9, 1994, at approximately 8:40 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 MR. MYERS: Judge, I first apologize for hauling 11 Nancy over here on this subject, but I was asked to come over 12 here, not to reopen the instruction question but to ask a 13 question, and that is on Instruction No. 4, which is really 14 the apportionment and it contains the verdict form or one of 15 the verdict forms, it references finding two or more entities 16 at fault. And if that's what the Court intended, my question 17 is whether the Court intended for there to be a verdict form 18 which included only Wesbecker and Standard Gravure on it, 19 because that is, under the proceeding instruction, a 20 possibility. 21 JUDGE POTTER: No. Let me tell you why it's not 22 a possibility. And if there's a semantic change that needs to 23 be made, I'll make it. This is not an issue. Because if they 24 don't find Lilly at fault, it says, "Enter your verdict on 25 Verdict Form A and proceed no further." So that is my 5 1 reasoning as to why they'll find nobody at fault because they 2 make a factual finding as to Lilly and were told not to bother 3 with anybody else or if -- I mean, that's my reasoning of it, 4 and it's the way I've done it in other things. I guess I'm 5 not going to put the jury through the exercise of evaluating 6 Wesbecker versus Standard Gravure when it has no legal 7 significance. 8 MR. MYERS: All right. That was the only 9 question that I had, and I apologize for convening this. 10 JUDGE POTTER: No. No. That's what we're 11 supposed to be here for. And Mr. Stopher or whoever is making 12 their argument, you know, can spell that out for them: If we 13 all agree that Mr. Wesbecker is at fault and, you know, you 14 don't get to it unless, or whatever, but that's my logic why 15 that is worded that way. 16 MR. MYERS: The only other thing he asked me to 17 simply say for the record, and this is just a cleanup matter, 18 is that additional instruction that he submitted last night 19 was not to supersede the original instructions that we 20 submitted but was in addition. That's the only thing. I have 21 nothing further. 22 MS. ZETTLER: I want to again raise our 23 objections to the instructions as we set out yesterday. One 24 other thing, Judge, I don't know if this needs to be on the 25 record. 6 1 (OFF THE RECORD) 2 JUDGE POTTER: Go ahead, Ms. Zettler. 3 MS. ZETTLER: We looked again at the -- we 4 looked at the exhibits last night as the Judge suggested and 5 have no objections, no problems with them, except with the 6 book of medical records that was put together there are still 7 some problems. For instance, that newsletter about Prozac is 8 still in Doctor Coleman's records, as well as there now is -- 9 and I don't believe this ever came in in evidence, the 10 coroner's final diagnosis and report, and then I guess there 11 are in a few places interspersed letters requesting 12 information for the coroner's inquest. So we would object to 13 those things going to the jury. 14 JUDGE POTTER: Have you got a list of what those 15 items are? 16 MS. ZETTLER: Yeah. I've got that back in my 17 briefcase. I mean, it will take two seconds during lunch. 18 MR. MYERS: Yeah. Maybe I can short-circuit 19 this. That was brought to my attention last night, and on the 20 question of anything having to do with the coroner's inquest, 21 we will certainly remove those. On the question of this 22 newsletter that was in Doctor Coleman's file, our position, 23 Judge, is that at the time we got the records from Doctor 24 Coleman and he swore or somebody swore and certified that 25 those were the records in his office, that thing was included. 7 1 JUDGE POTTER: That has -- as I see it, that is 2 not the issue. It would be like you call Doctor Coleman, 3 everybody would agree that it was authenticated, he could 4 talk, but the content is objectionable. So the fact that 5 something merely appears in a record -- I mean, let's take the 6 most obvious example, the hospital record says Mr. Myers came 7 in, he had a broken leg. It also says he's covered by 8 insurance. Both of those are authenticated and would be 9 admissible against the hearsay objection. We would let in the 10 part about Mr. Myers' broken leg because it's relevant; we 11 would keep out the part that Mr. Myers has insurance because 12 it's not relevant. 13 Why don't you-all look at that, put a yellow 14 sticker or something on the page that you have any objection 15 to, and we'll take it up either quickly at lunch or quickly at 16 the end of the case, because I don't think anybody is going to 17 refer to those particular pages during the closing. 18 MR. MYERS: Nobody is going to refer to those in 19 closing. 20 MS. ZETTLER: As long as that's the assurance, 21 because our position on that, Judge, is that that was not a 22 part of Dr. Coleman's file on Mr. Wesbecker. 23 JUDGE POTTER: Even if it is a part of Doctor 24 Coleman's file on Mr. Wesbecker, it may not be relevant. 25 MS. ZETTLER: I know. But we have a warning 8 1 issue here, and it implies to the jury that Doctor Coleman had 2 this information directly with regards to Mr. Wesbecker. 3 JUDGE POTTER: Okay. 4 MR. MYERS: I agree with everything the Judge 5 says about resolving it. I would like to resolve it at the 6 lunch break because I don't want to resolve it when the jury 7 is going out. But I think otherwise the evidence is all 8 together on both sides. 9 MS. ZETTLER: I don't have any other objections 10 to anything that they're submitting, but -- let me take that 11 back. There's been a picture of Mr. Wesbecker floating around 12 here with a scowl on his face. Nobody has ever authenticated 13 that thing or put it into evidence, as far as I know. I don't 14 know if that's included in -- 15 JUDGE POTTER: I think you were the only people 16 that tried to put pictures. 17 MS. ZETTLER: Okay. So long as that doesn't go 18 back -- 19 MR. MYERS: I don't know anything about that. 20 JUDGE POTTER: Okay. Let me go over a couple of 21 things. Probably the first night since the trial started, I 22 did what I suppose you-all have been doing is kind of thought 23 about it in my sleep for a while, inordinately thought about 24 it in my sleep. 25 MR. STOPHER: Oh, that's never happened to me. 9 1 MR. SMITH: What is sleep? 2 JUDGE POTTER: I think you-all have been doing 3 that regularly; I have not been doing it to any great degree. 4 One thing I have thought about doing, and I would like 5 your-all's input, is for me with one lawyer from each side and 6 the Court Reporter to address the jury in the jury room and 7 tell them that I've given them these admonitions about not 8 talking to anybody. And I have -- I am sure they have obeyed 9 it, but we're all human. And one reason I'm sure, that they 10 have told me things that have come up during the trial; people 11 have told my sheriff that they knew somebody was a witness, I 12 have discussed it with the lawyers and that was not a problem. 13 But what I would like to do is interview them 14 one last time and then bring them in here one at a time and 15 ask them do they know of any reason that they could not serve 16 as a juror, and that would give them an individual opportunity 17 if one of them has read something, talked to somebody or, 18 like, you know... I guess they haven't gone home and done 19 experiments like the people did up at the Covington fire. And 20 we have an alternate, and if some juror says, "Judge, I want 21 you to know I got drunk Thursday night and spilled my guts and 22 had a long heart-to-heart with my grandmother that's taking 23 Prozac," we can excuse that person now as opposed to finding 24 out later, do it in a very nonthreatening way and in a non -- 25 maybe you can't do it in a nonthreatening way. But does 10 1 anybody have any thoughts about that? 2 MR. STOPHER: Are you talking about before we go 3 in there? 4 JUDGE POTTER: Yeah. Right now. Do it in the 5 jury room. 6 MR. STOPHER: Well, my thought is, Judge, that, 7 Number One, I think it may take a lot of time if we bring each 8 one of them in here. I mean, it's got to take 30 to 45 9 minutes to do 15 people in here. 10 JUDGE POTTER: I was thinking 30 seconds a 11 juror, but go ahead. 12 MR. STOPHER: I have no objection to your doing 13 it out of our presence. I feel uncomfortable about going into 14 the jury room. Maybe it's just such an innate off-boundary 15 place. 16 MR. SMITH: I've been in there off and on, Ed. 17 MR. STOPHER: Then let's go do it, Judge. 18 MR. SMITH: Put on the record smiling and joking 19 Mr. Smith said. 20 MR. STOPHER: I hate to take up the time doing 21 it. I don't have any problem about your doing it in a general 22 way and being very, very specific and inviting somebody to 23 approach you. 24 JUDGE POTTER: My only thought was that if I do 25 it in a general way, no one juror is going to come forward. I 11 1 mean, no juror is going to raise his hand in front of the 2 other 14 and say, "Judge, can I talk to you about something." 3 MR. STOPHER: Judge, I also don't have any 4 problem doing it at the end of the day, after all this is 5 over. But I hate to get that far off track timewise. 6 MR. SMITH: Does the Court have any reason to -- 7 JUDGE POTTER: No, I don't. No. It was just a 8 case here -- much bigger case than this, that some juror went 9 home and did some experiments and it turned out later they had 10 to try the whole thing over again. Quite frankly, I don't 11 watch local television very much, but from what I've seen in 12 the newspaper and whatnot, even if a juror read a newspaper or 13 something, I haven't seen anything that I think would cause a 14 real problem. Okay. Maybe it's just I shouldn't have stayed 15 up last night thinking about something. 16 The exhibits, there's one little thing that has 17 to be taken up at a break. Apparently there's a letter in -- 18 or advertisement or something in Doctor Coleman's medical 19 records that needs to be looked at. You-all have gone over 20 your indexes and everybody's happy with the other side's 21 index. Just -- I think this is no surprise. The alternates 22 will not be excused; they will be kept. I will send them 23 home, admonish them and try to keep them on like some kind of 24 three-hour call that we can get them back. 25 MR. SMITH: In that connection, I had not 12 1 intended on mentioning to this jury in argument that there 2 might be a punitive phase that they might decide, that there 3 might be a compensatory phase that they don't have to worry 4 about damages. I'm assuming that that would be highly 5 objectionable to mention anything of that nature. 6 MR. STOPHER: Absolutely. 7 MR. McGOLDRICK: We would certainly object 8 highly. 9 JUDGE POTTER: Well, my only concern about it is 10 to some extent you wouldn't be telling them the truth because 11 if there is a punitive phase, they will have to worry about 12 it. 13 MR. SMITH: Well, here's two scenarios that 14 could occur that would prejudice each side. Mr. Stopher could 15 get up and say that, you know, "If you find Lilly responsible 16 at all, you're going to have three more weeks." I could say, 17 "You notice that there's no issue on damages. You don't have 18 to worry about damages. That will be decided by another jury 19 at another time. You've got a real simple task here." That, 20 I think, would prejudice Lilly. And I had not intended to say 21 that, and I'm sure -- I just want to have some ground rules on 22 that. 23 JUDGE POTTER: Okay. Neither side is going to 24 talk about any possible ramifications of their verdict. 25 One juror's car didn't start. The sheriff and 13 1 the sheriff's car has taken another juror to pick up that 2 juror because the juror they're taking knows exactly where she 3 lives, so we might be a little late in starting. My secretary 4 is bringing over some extra copies of the instructions. Can 5 anybody think of anything else we need to do? It's two and a 6 half hours. Mr. McGoldrick and Mr. Stopher, I'll ask that you 7 take your recess between the two of you -- well, I say -- is 8 that all right? 9 MR. STOPHER: Sure. That's fine. 10 MR. McGOLDRICK: That's no problem. 11 JUDGE POTTER: Okay. And, Mr. Smith, you can 12 just schedule your recess in your two and a half hours as you 13 feel appropriate. 14 MR. SMITH: In light of my throat and coughing 15 problem -- 16 JUDGE POTTER: If you want two recesses, you can 17 have them. Okay? 18 MR. SMITH: I hope not to use them, and I hope 19 not to use my entire two and a half hours but... 20 JUDGE POTTER: Okay. Anything else? 21 MR. STOPHER: No. 22 JUDGE POTTER: Show time. 23 (HEARING CHAMBERS CONCLUDED; THE FOLLOWING 24 PROCEEDINGS OCCURRED IN OPEN COURT; BENCH 25 DISCUSSION) 14 1 MR. STOPHER: On behalf of everybody, we would 2 request that the Court make an announcement before the jury 3 comes in to the people seated here not to make any noise, not 4 to make any sort of comment of approval or disapproval. 5 MR. SMITH: I've instructed my clients to do 6 that, but I think that would be appropriate, also. 7 MR. STOPHER: The only thing in addition to Paul 8 doing it to his clients is that there are a lot of people here 9 that neither of us knows. 10 (BENCH DISCUSSION CONCLUDED) 11 JUDGE POTTER: Ladies and gentlemen, let me say 12 something to you-all, the members of the audience, before the 13 jury comes in. If you stay here for all of this, it's going 14 to be a fairly long day. Some of you have been here 15 throughout this trial and have become fairly relaxed here, and 16 I'm glad that's happened. But what I want to caution you 17 about, both the people that have been here and the people that 18 are just here for today, is that the lawyers are going to be 19 making their presentation to the jury, their closing 20 arguments, and I'm sure one lawyer is going to say something 21 that you either agree with or disagree with. Okay? And it 22 would be very inappropriate for you to make any noise or signs 23 or anything that would indicate approval or disapproval of 24 what the lawyer is saying. Do you understand what I'm saying? 25 Basically I'm saying keep your part of this very 15 1 formal and quiet because, you know, this is not one of those 2 shows where they ask the audience to clap and then have a 3 meter about which is the loudest. Okay? You-all are -- you 4 have a perfect constitutional right to be here and I am glad 5 you're here, but in exercising that right there's a certain 6 responsibility in which it is that you don't in any way 7 disrupt or interfere with the presentation. Okay? And I just 8 thought I'd mention that because it's been a long trial, and 9 when you're in a place for a long time you tend to become very 10 familiar with it. And even the people that haven't been here 11 before, by 3:00 this afternoon are going to feel like this is 12 their home, all right, or feel very familiar with this place. 13 And I'm glad to be familiar, but don't let it cause you to do 14 something less than be formal and appropriate. 15 Okay. You want to go ahead and bring them 16 around. 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. 21 Good morning, ladies and gentlemen of the jury. 22 Has anyone had any difficulty at all observing my admonition 23 about not giving any information about the case or letting 24 anybody talk to you about the case? 25 Okay. And let me just say that I'm just going 16 1 to ask all of you collectively now that we're here at the end, 2 rather than like I have been doing asking one person 3 individually. And I not only ask you about since last night, 4 but has there been anything that's happened over the weeks of 5 this trial that you think it might make it difficult for you 6 to sit as a juror? And I know some of you have told my 7 sheriff, "Gee, I knew that witness," or something like that 8 happened during the case, and I've talked with the lawyers and 9 they said that is no problem that you knew that witness, that 10 there was no way you knew that witness was going to come. And 11 I would just -- is there anyone that has any thought that 12 something has happened during the, believe it or not, it is 13 ten weeks, that might make it difficult or inappropriate for 14 you to sit as a juror? 15 And I know in a public setting like this it's 16 very difficult for me to ask anybody to speak up, but I assume 17 you would if there was something nagging in the back of your 18 mind. It's really for your benefit as much as anybody's. 19 When this case is submitted to you, you're going to have 20 enough trouble just focusing on the instructions and the 21 evidence without having to remember whatever it is you're 22 trying to -- remembering not to remember whatever it is you're 23 going to put out of your mind. Okay. 24 My sheriff took a quick break. I'm now -- what 25 is going to happen from here on out, let me give you the 17 1 timing and the game plan. I'm going to read you some 2 instructions or rules of law you'll use to decide the case, 3 then each side will make a closing argument. The attorneys 4 have agreed that each side can take up to two and a half 5 hours. What we are planning to do -- and each side can take 6 breaks during that two and a half hours and, of course, no one 7 is obligated to take the two and a half hours. 8 It's sort of the reverse of what happened on 9 opening statements. In this case, the Defendant will go 10 first, take its two and a half hours, and then we'll go to 11 lunch, and then the Plaintiff will take up to their two and a 12 half hours. We may take -- obviously, we'll take at least one 13 break in at least a two-and-a-half-hour section. To assist 14 you while I'm reading these instructions, I'm going to pass 15 out copies. I'm going -- since my sheriff had to do 16 something, I'm going to ask my court reporter if she will pass 17 out these copies of the instructions. Oh, here's Marsha. 18 SHERIFF CECIL: (Hands documents to jurors). 19 JUDGE POTTER: Has everybody got their copy? 20 Okay. The first page is the full title of the case, which 21 lists all of the plaintiffs and the defendant. Second page, 22 "The Court instructs you as follows: Instruction No. 1, Fault 23 of Eli Lilly and Company. 24 "A drug is defective if it is improperly tested 25 or not accompanied by suitable warnings or instructions to the 18 1 prescribing physician. 2 "A drug is unreasonably dangerous if a prudent 3 drug manufacturer, being fully aware of the drug's effect and 4 operation, would not put the drug on the market or would do so 5 with additional warnings or instructions. 6 "You will find Eli Lilly at fault if you are 7 satisfied from the evidence as follows: 8 "(a) That Lilly manufactured and sold the drug 9 Prozac; 10 "(b) That Prozac as manufactured and sold was in 11 a defective condition and unreasonably dangerous; 12 "(c) That Mr. Wesbecker ingested Prozac prior to 13 September 14th, 1989; and 14 "(d) That such defective condition was a 15 substantial factor in causing Joseph Wesbecker's actions on 16 September 14th, 1989. 17 "Otherwise, you will not find Lilly at fault. 18 If you find Lilly at fault, proceed to Instruction No. 2. If 19 you do not find Lilly at fault, enter your verdict on Verdict 20 Form A and proceed no further. 21 "Instruction No. 2: Fault of Joseph Wesbecker. 22 "On September 14th, 1989, Mr. Joseph Wesbecker 23 had a duty not to injure or harm any plaintiff in any manner. 24 "The Court instructs you that Mr. Wesbecker 25 violated this duty and that you will find him at fault. 19 1 "Proceed to Instruction No. 3. 2 "Instruction No. 3: Fault of Standard Gravure. 3 "Standard Gravure had a duty to exercise 4 ordinary care to protect its employees and others from the 5 criminal acts of Mr. Wesbecker if it knew or should have known 6 that such conduct was likely. 7 "If you are satisfied from the evidence that 8 Standard Gravure failed to comply with the above duty and that 9 such failure was a substantial factor in causing harm to the 10 plaintiffs, you will find Standard Gravure at fault; 11 otherwise, you will not find Standard Gravure at fault. 12 "Proceed to Instruction No. 4. 13 "Instruction No. 4: Apportionment of fault. 14 "If you have found two or more entities at 15 fault, you will determine from the evidence and indicate in 16 your verdict what percentage of the total fault was 17 attributable to each of the entities you find to have been at 18 fault, as follows: 19 "Verdict Form B, Eli Lilly, blank percent; 20 Wesbecker, blank percent; the total, 100 percent; or Verdict 21 Form C, Eli Lilly, blank percent; Wesbecker, blank percent; 22 Standard Gravure, blank percent; total, 100 percent. 23 "In determining the percentage of fault, you 24 shall consider both the nature of the conduct of each of the 25 entities you have found to be at fault and the extent of the 20 1 causal relation between the conduct and the damages claimed. 2 "Enter your verdict on Verdict Form B or C as 3 appropriate and proceed no further. 4 "Instruction No. 5: Rendering Verdict. 5 "Nine or more of you must agree upon a verdict. 6 If your verdict is unanimous, it need be signed only by the 7 Foreperson, whom you yourselves shall choose; otherwise, it 8 must be signed by the nine or more who agree." 9 Attached thereto, you're going to find three 10 verdict forms which you may use, if you wish. 11 "Verdict Form A: We, the Jury, do not find 12 Eli Lilly and Company at fault. 13 "Verdict Form B: We, the Jury, find Eli Lilly 14 and Company and Joseph Wesbecker at fault. Further, we the 15 Jury, do not find Standard Gravure at fault. Further, we the 16 Jury, apportion the fault as follows: Eli Lilly and Company, 17 blank percent; Joseph Wesbecker, blank percent; total, 100 18 percent. 19 "Verdict Form C: We, the Jury, find Eli Lilly 20 and Company, Joseph Wesbecker and Standard Gravure at fault. 21 Further, we the Jury, apportion fault as follows: Eli Lilly 22 and Company, blank percent; Joseph Wesbecker, blank percent; 23 Standard Gravure, blank percent; total, 100 percent." 24 Mr. Stopher. 25 MR. McGOLDRICK: I'll go first, Your Honor. 21 1 JUDGE POTTER: I'm sorry. Mr. McGoldrick. 2 MR. McGOLDRICK: May it please the Court. 3 JUDGE POTTER: Mr. McGoldrick. 4 MR. McGOLDRICK: Mr. Smith, Ms. Zettler, all the 5 Plaintiffs and families of the Plaintiffs who were victims of 6 Joe Wesbecker's shooting. 7 Ladies and gentlemen of the jury. 8 9 CLOSING_ARGUMENT _______ ________ 10 11 BY_MR._McGOLDRICK: __ ___ __________ 12 Let me start with how I think you should end 13 this case. Prozac is a safe medicine. It helps or even cures 14 people of a terrible disease. It is very important that you 15 vindicate this good medicine against the false charge that it 16 had anything whatsoever to do with what Joe Wesbecker did in 17 his murders. Now, this has been a long trial. You've been 18 talked at an awful lot, you've heard a lot of evidence, much 19 of it relevant, some of it not so relevant, and now you're 20 going to have one more day of you being talked at and then it 21 will be your time to speak. 22 The Judge has already told you what the rules of 23 law are, which, of course, you must follow. But it's your job 24 to find the facts. And in finding the facts, if I could say 25 one thing to you that I think is just very important, it's 22 1 that you need to look at the whole picture of the facts, the 2 whole context, all the evidence you've heard over these many 3 weeks. You can't just take a little bit here and a hunk there 4 out of context; you've got to look at the whole thing and 5 weigh it as a whole. 6 In one sense we think this case is simple, the 7 questions are simple and the answers simple. What was the 8 cause of the events on that fateful day at Standard Gravure? 9 We think the answer is simple, too; that it was Joe Wesbecker 10 and Standard Gravure's perhaps failure to stop him, nothing 11 else, nothing more, nothing less. Prozac, a good medicine had 12 nothing whatsoever to do with that shooting spree. 13 Now, Mr. Stopher, Mr. Freeman and I have tried 14 to present the evidence as clearly as we can. I know it's 15 been a long time and a lot of evidence and I suspect you've 16 got it all by now without our saying anything else, but we're 17 going to take some time this morning to try to put these 18 things in context. I'm going to speak for a while first about 19 the medicine, and then Mr. Stopher is going to talk about what 20 we think are the most important things in this case, Joe 21 Wesbecker, what made him tick, all the planning he did and the 22 murders he committed. Now, we can't touch on everything that 23 you've heard in this trial and we won't try to; it would take 24 us days and you would probably revolt, so we're going to have 25 to be selective and just touch on some of the things you've 23 1 heard, those we think are perhaps the more important. 2 First, let's try to remember the organizing 3 questions and principles of the case, the questions you have 4 to answer. The Judge has already told you, they're on your 5 charge sheet which you have in front of you, and I'm just 6 going to take what I think are a distilled way to look at 7 those questions and put them up here for just a second. 8 Your verdict sheet, of course, contains this, 9 but as we see it, the real questions were, was Prozac a safe 10 and effective medicine or was it defective and unreasonably 11 dangerous? Second question: Was Prozac a substantial factor 12 in causing this shooting or was Joe Wesbecker the cause? If 13 you distill everything down, I think that's really what this 14 case is about. 15 Now, in looking at it, what are the things I'd 16 stress to you? I just think that there are certain things 17 that really can't be disputed. Mr. Smith has tried, it's his 18 job to do that, and I'm sure you're going to hear at great 19 length this afternoon whatever he has to say, but I think 20 these things are hard to dispute. First, this is a safe and 21 effective medicine. It's already helped millions of people 22 who have what we've all learned in this trial is really a 23 terrible disease. You've heard that and you've heard that a 24 lot, but I just want to take a minute on it, though, because I 25 think it's quite important. 24 1 This disease is so bad that one in eight people 2 who have it will at some time in their life commit suicide. 3 Think about that for a minute. One in eight. One of the 4 doctors told us about people in the emergency room or the 5 hospitals after they're badly burned, you know those awful 6 cases where people get in an accident or something happens and 7 people get terribly burned, burns all over their body, great 8 pain, many of them won't live, and yet that doctor told us 9 from the stand that those people fight, they fight for every 10 minute, for every hour of life. And I think that's really 11 what human beings are. We're all like that. We fight for 12 life. We want to live. Oh, things go bad for us now and 13 then, but we want to live. But these poor folks with major 14 depression in high rates lose that, life becomes worthless to 15 them. Of course, some of them live through it; it's still bad 16 for them. Others commit suicide. It's a terrible disease. 17 Finally, after all these years we now have 18 medicines that can help a significant number of people, and 19 Prozac is one of the very best of those. It's as effective as 20 other antidepressants, and you've heard at length it has a low 21 side effect profile, very good in overdose. Remember, that's 22 important because these people who are suicidal will often 23 overdose on their medicine to try to kill themselves. You 24 can't do that with Prozac, or at least it's very hard. So 25 this medicine is good, it's important, and it treats this bad 25 1 disease and millions have been helped by it already. I think 2 that's clear. 3 Secondly, the FDA charged with the job, has 4 looked carefully at this medicine, and in looking carefully 5 has found that it's a safe and effective medicine, not 6 defective, not unreasonably dangerous, and has approved the 7 labeling, the warning. Now, at times you've heard in this 8 courtroom things that would make it sound like the FDA is a 9 bunch of very compliant patsies who do whatever the drug 10 companies want. Nothing could be further from the truth. 11 They take their job seriously; they're tough taskmasters; 12 they're always asking questions. You've seen that in the 13 evidence. They make the drug companies prove things five ways 14 from Sunday. That's their job. That's what they should do 15 and they do it and, having done it, they found it safe and 16 effective. 17 Since then, by the way, you've also heard 18 evidence that other -- remember the term -- SSRIs, like 19 Prozac, have been approved, the Zoloft medicine from, I guess 20 it's Pfizer, and the Paxil medicine from SmithKline; those 21 SSRIs have been approved, as well. So this medicine and this 22 type of medicine are safe and effective, and the FDA has found 23 it to be that. 24 Now, you've also heard a lot of evidence, 25 perhaps more than you ever wanted to, about all the testing 26 1 that went into this medicine, long, long careful testing. I 2 think the number is that more than 15,000 people were involved 3 in the clinical trials for this medicine. I think that 4 testimony is that that's more than any other medicine of a 5 similar type that we've ever had. You've seen some of the 6 scientists who were involved in that testing. People have 7 come down and sat on that stand and talked with you. Doctor 8 Fuller, you'll remember him, Doctor Wernicke, others. Careful 9 scientists. So we've had that. 10 Since this medicine was approved, some 15 11 million people have taken it, 15 million people, and it's 12 helped them. Now, what has that experience taught us. It, 13 too, has confirmed safety and effectiveness. Think about one 14 aspect of that number for a minute. If 15 million people have 15 taken this medicine, this means that thousands upon thousands 16 and thousands more of doctors have prescribed that medicine 17 for people who are sick, who are right across the table in the 18 doctor's office from them. Those doctors, I'm sure almost all 19 of them and probably all of them, are trying to help their 20 patients. They're caring people, they're doctors. That's 21 their job to try to help people and they're using that 22 medicine, they're prescribing it. They follow these matters. 23 It seems to me that's a particular endorsement of safety and 24 effectiveness. 25 Now, you've also heard a lot in this trial about 27 1 the so-called blue-ribbon panel, the PDAC of the FDA, the 2 Psychopharmacological Drugs Advisory Committee. They've 3 looked at it. Remember one more time, I know you've heard it, 4 but one more time who those people are. These are experts 5 from all over the country, especially specialized knowledge in 6 this field, picked, chosen by the FDA to come in and take a 7 look at a question the FDA wants them to take a look at. Now, 8 that panel has considered the question of Prozac on various 9 occasions and it, too, has found the medicine safe and 10 effective. Recall that on one occasion when they really 11 looked very specifically at what's been charged in this case, 12 whether there's any reason to believe that Prozac could cause 13 suicidality or violence in anybody and what did they find? 14 Once again, you've seen this, but, gee, I think it's 15 important. When they got through all their hearings, 16 everybody came in and presented evidence, the FDA presented 17 evidence, this is what that panel said again. You have that 18 talk paper, it's Exhibit No. 173, you'll remember it, I think. 19 What did they find? "No credible evidence of a 20 causal link between the use of antidepressant drugs, including 21 Prozac, and suicidality or violent behavior." They said a lot 22 of other things in there, too, a lot of them real good, and 23 I'd commend that to you to read. But it seems to me that's a 24 terribly important point for you. That group also looked to 25 see if the warning, the package literature, the instructions 28 1 were adequate, and they said don't change that. It's 2 adequate. Since then, 75 countries total have approved the 3 medicine as safe and effective. 4 You've also heard about studies, lots and lots 5 of studies by Lilly, by others, showing safety, showing 6 effectiveness, showing broadly safe across a range of people. 7 You've heard specific testimony. You've heard Doctor Greist, 8 remember him, the fellow from Wisconsin, and Doctor Tollefson; 9 they talked about use of the medicine in the agitated- 10 depressed group and how it was effective and safe in that 11 particular group. You've also heard Doctor Greist and Doctor 12 Granacher talk about how it's used and useful without problems 13 in patients who are schizoaffective, broadly used in people 14 who are depressed, have depressive disease, safe and 15 effective. 16 You've also heard a lot of evidence about how it 17 doesn't cause suicidality or violence in lots of people. I 18 can't go through it all with you now. You probably remember 19 Doctor Fuller coming down and telling you about that at 20 length. You won't remember all the studies, but just reeling 21 off a couple, there was Doctor Cacarro, who studied in 22 patients with impulsive-aggressive behavior. What happened? 23 Prozac decreased aggression. 24 Doctor Cornelius, studied in patients who were 25 aggressive. Prozac reduced aggression. It didn't cause 29 1 aggression; it actually reduced it. 2 Doctor Fava, looked at anger attacks in 3 depression, found that Prozac helped it, reduced it. Many of 4 these studies were careful, controlled, double-blinded 5 studies, the kind of science -- the way you really test to see 6 if something's happening. And what is it? It's all here in 7 abundance, and it shows safe, effective, not defective, 8 certainly not unreasonably dangerous, not causing suicidality, 9 not causing violence, the warning more than adequate. 10 Now, what have the Plaintiffs said in the face 11 of all of that evidence and all of that study? You've heard 12 it. You've heard it at length. You'll hear it again this 13 afternoon. But, with respect, I think it amounts to a bit 14 here, a hunk here, out of context, not the whole picture. 15 Now, I'm going to talk for a minute about some 16 of the things that the Plaintiffs have talked about, but there 17 isn't time to talk about all of them, and we've come to a 18 place in the trial that I want to mention it to you. Up till 19 this point, pretty much anytime one side stood up, the other 20 side would have a chance to stand up afterwards. We stood up, 21 they have a chance to stand up afterwards to bring to you what 22 we thought was the point. At this point, I guess because 23 somebody has to go last, that won't happen. I'll speak with 24 you, Mr. Stopher will speak with you, and then Mr. Smith will 25 speak, and we won't have a chance to stand up and talk again. 30 1 You'll have to supply -- if there are answers to what Mr. 2 Smith raises, you'll have to supply, based upon your knowledge 3 of the evidence, what that answer is because we won't have a 4 chance to get up and say it. It all resides with you. 5 Whatever I say, whatever Mr. Stopher says, whatever Mr. Smith 6 says, it's yours to decide, whatever we may say. 7 And, you know, on this business of taking things 8 out of context, it can happen; it's easy, I think. I remember 9 the first time there came up in this trial the subject of -- 10 remember the cats that hissed and the dog that bit? Gee, you 11 know, when you first hear that you say, "Hey, wait a minute. 12 That happened, it sounds like it's relevant." But then I 13 think you heard more later, and it was put in its whole 14 context, and it didn't seem what it first seemed. Remember, 15 the whole picture. 16 Let's go to that one for just a minute. You 17 recall that there was in the testing part of the development 18 of Prozac that period where you did have some examples of the 19 animals, the cat, a couple of the cats and the dog being 20 upset. Well, Doctor Fuller came down and talked to you about 21 that. He said, you know, the FDA requires you to give toxic 22 doses to these poor animals; they're being tested, and it's 23 not surprising that they might react in a test situation where 24 you're actually having, because the FDA requires it, to hurt 25 them, they'd react that way. As Doctor Fuller put it, if a 31 1 dog got hit on the road, we'd feel sorry for that poor dog, 2 but we'd also recognize that that dog might bite if we went 3 over towards the dog because the dog was hurting. So we 4 shouldn't be too surprised about that. 5 And then, then what happened, Doctor Fuller came 6 in and he brought in all of those studies, I remember because 7 I had to get down on my knees and write them all down. And 8 I'm not going to take you through them again, but he came in 9 and he showed you -- here's the easel from that day -- all 10 those studies. Muricidal rats, remember the rats that liked 11 to kill mice, and they stopped doing it. And people from all 12 over the world, Italy, France, all over the place trying 13 various different kinds of tests to show that in animals what 14 happens if you give the medicine. Well, what happens is they 15 get less aggressive. In specific controlled tests to find out 16 what happens, they get less aggressive. 17 There's some part of that which I think is 18 really interesting because in lots of things in life there's 19 evidence on one side, sometimes a lot of evidence, but there's 20 a little bit of evidence on the other side, and we find in 21 favor of the most evidence. And in science it's that way, 22 too. But this was all consistent, Doctor Fuller told us it 23 was all uniform. It all went in the same way. That's 24 remarkable. Independent scientists all over the world, ladies 25 and gentlemen, just nothing to the claim that Prozac causes 32 1 violence or suicidality in any experience with animals shows 2 that. 3 Now I want to come to another subject, and 4 that's BGA and the Germans. We heard a lot about that. Mr. 5 Freeman in his opening talked to you about that and he -- he 6 said, you know, Mr. Smith, I'll bet is going to spend two 7 weeks on that. And he was right, Mr. Smith spent two weeks on 8 it. And Mr. Freeman said to you, as well, that in the final 9 analysis the BGA events have nothing to do with this case, and 10 he was right on that, too. 11 Now, let's look at it just briefly, not two 12 weeks, two minutes. The BGA raised a question, like 13 regulatory agencies are supposed to do and do all over the 14 world, and they raised a number of them. One of them that was 15 said was, "Gee, it looks like you have a lot of suicide 16 attempts in your clinical trial in the Prozac group." 17 Remember that, sixteen, one and zero? And there were sixteen 18 in the Prozac group, and the BGA said, "What about that?" A 19 proper question to ask. Well, it was suggested here that that 20 shows that Prozac causes suicidality. But you remember Doctor 21 Wernicke came in and said, "You have to look at the whole 22 picture; you can't just look at that number alone. You have 23 to look at how many people were taking the medicine for how 24 long." 25 Remember, he makes it easy for me to remember, 33 1 he talked about home runs, the baseball player who hits home 2 runs, and if you saw one baseball player who hits ten home 3 runs and another who hits two, you might say, "Well, the one 4 who hits ten is a better hitter of home runs." But that's not 5 the whole story. If you knew that the one who hit ten home 6 runs had to play five hundred games to do it, and the one who 7 hit two hit it in three games, you'd say, "Aha, that's a 8 little different." So you have to look at those numbers. 9 Now, it's also been -- by the way, that information is all 10 provided to the BGA, the analysis is provided to the BGA, the 11 BGA approves it as safe and effective, and Prozac is widely 12 used in Germany today. 13 It's been suggested here also that Lilly somehow 14 hid the BGA concerns from the FDA. Ladies and gentlemen, 15 that's not right. Lilly told the FDA at least twice, granted, 16 there was some confusion about the timing and all of that, but 17 if you look at your Exhibit 67, it's clear as a bell Lilly 18 told the FDA about that and, of course, the FDA approved. 19 There was another point raised. The Plaintiffs 20 talked about different labeling in Germany, different 21 instructions. First of all, different countries have 22 different instructions, that's not unusual. Second, the 23 labels, you have them, Exhibits 173 and 411, if you look at 24 them, they're not really different. In the U. S. label, Lilly 25 mentions in at least four spaces, Doctor Greist and Doctor 34 1 Tollefson told you they're the right spaces, talked about 2 agitation, anxiety, nervousness. The real difference is 3 language that's different suggesting in the German label the 4 possible use of a sedative in an agitated patient. But our 5 witnesses came in and told you clearly that American 6 psychiatrists know about that. They also know that it's not 7 always the right idea to give a sedative. That decision in 8 America is left up to the doctor and the FDA approves the 9 labeling that does that. 10 Fourth, remember that Joe Wesbecker -- and 11 remember, I'm not talking much about this case; I'm talking 12 about the medicine, Mr. Stopher's going to talk about this 13 case, but I'll talk about it once here. Joe Wesbecker was 14 getting a sedating drug, he was getting Restoril. The 15 Plaintiffs argue that's somehow not what he should have been 16 getting, but they can't deny it was a sedative. 17 Fifth, and I think, myself, that this is just a 18 knockout punch on this point. You heard Doctor Coleman come 19 in and tell you that if the FDA label were different and were 20 the same as the German label, it would have made no difference 21 whatsoever to his treatment of Joe Wesbecker. So what do we 22 make of all this BGA stuff? I suggest nothing much. Did the 23 BGA ask questions, yes; did Lilly answer the questions, yes; 24 was the information provided to the FDA, yes; did the BGA 25 approve the medicine, yes; did the FDA approve the medicine, 35 1 yes; does any of this have anything to do with the murders 2 that Joe Wesbecker committed, no. 3 Go to another one. There was this business 4 about spontaneous reports. You probably remember various 5 charts, Exhibit 120 this one is, that Mr. Smith's shown around 6 a lot, showing apparently greater incidence of hostility -- 7 hostility on the spontaneous reports and other charts. These 8 are FDA charts, remember. And trying to make that out as 9 showing that there's somehow proof of violence or suicidality, 10 but when the people who know about this came in, they 11 explained that that's not so. Again, the whole picture and 12 not just the little piece of it. You've got to look at all 13 the numbers; how many people; how long; what circumstances. 14 The FDA looked at this carefully. This was their chart. They 15 brought it to the PDAC. They looked at it carefully, too, and 16 what did they find, after looking at it, match those two up? 17 They looked at the charts, they looked at all the evidence, no 18 credible evidence of a causal link between Prozac and 19 suicidality or violence. So the people who know and use those 20 reports looked at them and found them and decided that. 21 Remember, Doctor Tollefson said something that 22 was kind of funny, actually. He talked about something about 23 the Weber effect, and Doctor Weber discovered it. And that is 24 with any new medicine you get a bunch of spontaneous reports 25 in the beginning. He analogized it to a new restaurant. 36 1 People talk about it in the beginning, but then don't talk 2 about it so much later, and then the spontaneous reports trail 3 off after the medicine isn't new, suggesting no causation. 4 And Doctor Tollefson told us that the world 5 didn't end here in 1991, it's continued. And what's happened, 6 you recall, those reports have gone down just the way you'd 7 expect them to. This chart also -- I'll pick it up again, I 8 guess, looks like a lot on this piece of paper, but it's 20 9 reports per million. If you made this -- if this is 20, I 10 don't know how high a million would be, but it would be real 11 high, and is it really that unusual to find that? Remember, 12 Doctor Tollefson told us about the statistics in an American 13 city of one million people you'd expect about eight-six 14 homicides a year. It's a frightful fact, but it's true. 15 These numbers aren't that surprising. 16 There was talk about agitation, anxiety and 17 nervousness, lots of talk about that. Let's remember a few 18 things. One, those are part of the disease, depression. Two, 19 they would occur in depressed patients, but what did Lilly do 20 about this? First of all, it told physicians about it. It's 21 in the package literature, it's in the PDR. You heard Doctor 22 Greist and Doctor Tollefson, they talked about it, it's right 23 there. No hiding of it. It's well known. The events were 24 reported, somehow suggested by Doctor Lord that they were 25 downplayed. They were reported. Lilly didn't ignore any 37 1 issue there. Remember, Doctor Tollefson and Doctor Greist 2 came in and told you about the study they ran. Took agitated, 3 depressed people, lots of depressed people are agitated, you 4 remember that. They took that group and they tried them with 5 Prozac and with something else, and what did they find. They 6 found that the Prozac worked better. They found that suicidal 7 thinking in that group, actually they got better with Prozac. 8 It just doesn't make sense. Mr. Wesbecker was 9 agitated and anxious many times in his life, probably because 10 of his mental illness. Because a person is agitated or 11 anxious doesn't mean that he'll become violent or suicidal. 12 Could agitation explain the planning, the purchasing of 13 firearms, and all the rest that you've heard about done by 14 Mr. Wesbecker in the months and years leading up to his mass 15 murder when he wasn't even taking any -- this medicine? No, 16 of course not. 17 One other thing that the Plaintiffs raised, 18 Doctor Breggin -- Doctor Breggin pointed to a few instances 19 where patients who were taking the medicine were suicidal and 20 somehow said, aha, they were taking the medicine, they became 21 suicidal, the medicine must have caused the suicidality. But 22 that's not right. Remember that suicidality is part of the 23 disease depression. Remember, also, that Prozac, like all 24 antidepressants, probably works in about 70 percent of the 25 people. It doesn't work in everybody, so it wouldn't be 38 1 surprising that someone who's taking Prozac would become 2 suicidal. But it's the disease, not the medicine that's 3 causing it. 4 I like to think of it like this. Suppose I have 5 a bad cold, it's a bad cold and I take some cough medicine, 6 and then later my cold goes on to pneumonia. Now, nobody 7 here -- nobody here would think that the medicine caused the 8 pneumonia; it's the cold that caused the pneumonia. It's the 9 disease, not the medicine, and that's what's true here, too, 10 in this case. How many witnesses got up here and told you 11 that this disease is such that people are suicidal, sometimes 12 violent, it happens with these sick folks. And the real 13 science, the controlled studies which compare, they show that 14 it just doesn't happen. 15 Now, I want to take a minute more and look at 16 the quality and the quantity of the evidence on the medical 17 issues that we put before you, and I'm going to try to use 18 these, if I can, to help a little bit. First of all, what 19 were the things that the people who came in here to talk to 20 you said. Once again, they said Prozac is safe; Prozac is 21 effective; it doesn't cause violence; it doesn't cause 22 suicide; it's not defective. Remember, this is part of your 23 charge, your instruction. It was safe and effective, it was 24 not defective. It certainly wasn't unreasonably dangerous. 25 The information to doctors was correct and adequate, and 39 1 Prozac had nothing whatsoever to do with what Joe Wesbecker 2 did. 3 Now, I want to talk for just a minute about 4 those witnesses, but before I do, let's just, without talking 5 about them, consider what the sources of that information was, 6 what was that based on, where did it come to you from. And it 7 came from lots of places, more than I can list here, but it 8 certainly came from these places. The FDA and BGA and 75 9 countries approved it; the panel, the PDAC approved it, looked 10 at the evidence, said no suicidality or violence and the 11 warning was good. Doctor Granacher, you remember him; Doctor 12 Greist, he came in, talked to you about it, also talked about 13 Mr. Wesbecker; Doctor Thompson was here; Doctor Fuller, you 14 remember him; Doctor Coleman, of course, who treated Joe 15 Wesbecker, whom even Doctor Breggin said was probably in the 16 best position, he said those things, too; Doctor Wernicke came 17 in; Doctor Tollefson came in. 18 On the other hand, what was the evidence and 19 what were the sources of the evidence on the other side. 20 Well, there was Doctor Breggin, and I suggest to you it was 21 primarily Doctor Breggin. There was, of course, Doctor Lord 22 and Doctor Brown, and they came in and they said some things 23 that were critical about the way the tests were conducted. We 24 think our witnesses responded to those and answered those. 25 But, remember, neither Doctor Lord nor Doctor Brown offered an 40 1 opinion to you about violence in Joe Wesbecker. Doctor 2 Breggin did. 3 Now let's talk about Doctor Breggin for just a 4 second. You're going to have to make up your own mind about 5 him and it's your job to do it, but I'd offer just a few 6 thoughts. He's done no studies. That's not what he does. 7 He's not board certified, as many of our witnesses were. He 8 points to no study linking Prozac and murders, the kind of 9 conduct you've seen here. You'll find none in all your 10 evidence. You'll look in vein for it. He talks a lot about 11 serotonin in animals, but unlike true experts in those 12 subjects, like Doctor Fuller, he's not really an expert in 13 those matters. There's another thing about him. Doctor 14 Breggin, I think he was open enough about it, doesn't really 15 like medicines. He doesn't like medicines for treatment of 16 people with conditions like this. He's against them. Oddly, 17 curiously, even he of all people doesn't think that the FDA 18 should withdraw this medicine and he even lets his patients 19 stay on it if they want to. But that says something about 20 where he's coming from, if you will, in his views. 21 Now, there's another thing and I just -- ladies 22 and gentlemen, I don't know what to make -- I truly don't know 23 what to make of all that business about Doctor Breggin having 24 written that it's good for little children to have sex with 25 each other and the article in Penthouse magazine about how 41 1 American psychiatry caused the holocaust. I'll leave that up 2 to you to measure that stuff. But one thing I think is clear, 3 Doctor Breggin is not in the mainstream. He's on the fringe 4 of American psychiatry, science and medicine, and I think this 5 case shows that, because if you match what he said against 6 these folks, it's not a match. 7 Compare Doctor Breggin for a minute with someone 8 like Doctor Ray Fuller. Doctor Ray Fuller, he's really an 9 extraordinary man, I think. As a young man, he worked, you 10 recall, in the wards in the state mental hospital. Before 11 they had medicines to help these folks, it was kind of a 12 bedlam. He dedicated his life to trying to find medicines 13 that would help people like this. Unlike a lot of us, he 14 succeeded. He really has done it. Became a world-renowned 15 scientist, won national awards, got honorary degrees, all 16 that, and I think you'll agree he's a fine man. And although 17 Prozac was certainly a group effort, as much as anybody, he 18 probably was the father of Prozac. 19 You'll have to judge our witnesses yourself, but 20 we tried to bring highly knowledgeable, expert, honest 21 witnesses, people who've actually done the science; careful, 22 caring physicians who treat patients, board certified, award 23 winning and all the rest. First-rate scientists like Ray 24 Fuller and Gary Tollefson; careful and precise people like, 25 remember, Joe Wernicke, very careful in running these clinical 42 1 trials. Doctors who are highly experienced in treating this 2 kind of patient, like Doctor John Greist, the fellow from 3 Wisconsin. Psychiatrists experienced in helping us understand 4 how violence like Joe Wesbecker's occurs, like Doctor 5 Granacher. Stacked up against them, I don't think Doctor 6 Breggin's opinion does it. These people pointed to a range of 7 subjects. They pointed to experience, they pointed to 8 studies, they pointed to medical literature, and what did they 9 all come out and say based on that? Those are what those 10 witnesses brought to you, different ones, different things, 11 but that's what they brought to you. 12 Now, you know, at the beginning of this case, 13 Mr. Smith said that Lilly would not defend this product. I 14 don't know why he said that. Lilly has defended this product. 15 We're proud of this product. We're proud that it's safe, that 16 it works to help people. We're proud of the men and women who 17 invented it and caused it to be able to help people. We've 18 brought witnesses down from Indianapolis, a number of them, 19 the actual people who did it, who were involved, and you've 20 heard, of course, there are thousands more who were involved. 21 With respect, this evidence is just 22 overwhelming. How could you possibly say, how could you 23 possibly say, in light of all this, that Prozac was defective 24 or unreasonably dangerous. It's beyond me. How could you 25 possibly say that a reasonably prudent drug company wouldn't 43 1 put this medicine out, this helpful medicine that's said to be 2 safe by all these people and all these tests. But you should 3 ask, correctly, if it wasn't Prozac that caused this tragedy 4 here, what did. We know what did. It was Joe Wesbecker. Joe 5 Wesbecker and his disease planned out murders. Now, mass 6 murders have occurred before, ladies and gentlemen, they've 7 occurred throughout human history. They occur today and, 8 unfortunately, it's probably in the nature of human beings 9 that they'll occur in the future. But Prozac didn't have 10 anything to do with that, and it had nothing to do with this. 11 Now, after a break, Mr. Stopher is going to talk 12 to you a little bit more about the facts of this case, not all 13 these other things that many of which were tangents and blind 14 alleys, that took a lot of time in this trial but didn't 15 really have much to do with it. Mr. Stopher is going to talk 16 to you about that part. 17 I want to thank you now for your attention, and 18 I do that very sincerely. This has been a long, arduous 19 trial. You've had to sit in that box for a long time, be 20 talked at and not be able to say anything back, and I'm sure 21 it's been very frustrating. But it is very important. It is 22 terribly important to the parties in this case, the folks out 23 here, of course, to Eli Lilly, but more than that, to the 24 people in this country and the world who need these good 25 medicines, that you decide this case fairly and correctly. It 44 1 would be a terrible shame if anybody took away from your 2 verdict a notion that that medicine should not be used because 3 of a false charge that Joe Wesbecker did this because of 4 Prozac. He didn't. For all of us, for all of them, I thank 5 you for your attention, and for deciding this case as the way 6 you think it ought to be done. Thank you, ladies and 7 gentlemen. 8 I think, Your Honor, if we could take a break 9 now. 10 JUDGE POTTER: Ladies and gentlemen, we're going 11 to take a 15-minute recess. As I've mentioned to you-all 12 before, do not permit anybody to speak to or communicate with 13 you on any topic connected with this trial; do not discuss it 14 among yourselves; do not form or express opinions about it. 15 We'll take a 15-minute recess. 16 (RECESS) 17 SHERIFF CECIL: The jury is now entering. All 18 jurors are present. Court is back in session. 19 JUDGE POTTER: Please be seated. 20 Mr. Stopher. 21 MR. STOPHER: May it please the Court. 22 Mr. Smith, Ms. Zettler, Mr. Foley. To the 23 families of the victims of the shootings at Standard Gravure, 24 and to you, ladies and gentlemen of the jury, good morning. 25 45 1 CLOSING_ARGUMENT _______ ________ 2 3 BY_MR._STOPHER: __ ___ _______ 4 On September the 26th, we began this long 5 process. We've had 47 days of trial. By my count, we've had 6 75 live witnesses from the witness stand. We've heard 22 7 depositions read, and there have been 411 exhibits given to 8 you. On behalf of every one of us, on behalf of both sides of 9 this case, on behalf of the court system, I want to thank each 10 and every one of you for what you've done. You have been here 11 diligently doing that task, which has not been easy. Some of 12 you have been ill; some of you have suffered great 13 inconvenience. Probably none of us will ever know the amount 14 of trouble and turmoil that it's caused in your lives. And on 15 behalf of everybody, I want to thank you for the energy and 16 the dedication that you've given to this system. Without you, 17 it would not work. 18 I will tell you that from time to time I, like 19 everybody else, read in the newspapers and see on television 20 or whatever, comments that are sometimes critical of our court 21 system. They're too slow, it doesn't work anymore, critical 22 of lawyers and sometimes even judges, if you'll pardon me, 23 Your Honor. But to those cynics I say, "Look at this trial." 24 For 200 years in our country, lawyers have been standing at a 25 railing just like myself and arguing cases, perhaps not as 46 1 large as this, before a learned and good judge like Judge 2 Potter, in which witnesses have testified and in which there 3 is a real dispute. I say to everyone that is critical of that 4 system that it still works, and I point to you as the reason 5 that it works. I will tell you that no matter who wins and no 6 matter who loses, no matter what your verdict in this case, 7 there is no disgrace and no dishonor to anyone who has been 8 here; there is only honor. 9 I want to end my participation in this trial 10 exactly where I began. I want to tell you that I feel deeply 11 for the victims of the terrible, awful crimes that occurred on 12 September 14, 1989. Every time I'm reminded of it, it drives 13 a stake through my heart. I feel for these good people, as we 14 all do, nothing but sympathy. They have my love and my 15 support and the support of our city. Not a one of them 16 deserved anything at all that happened to them. Not one hair 17 on their heads should have been disturbed by Joseph Wesbecker. 18 I remember precisely where I was when I heard it on the radio 19 that day, just like the day that President Kennedy was shot. 20 I'll never forget it, nor will they. I would give anything 21 that it had never occurred. But we are here today not to 22 express our sympathy, we are here to make a decision, as you 23 have been authorized to do based on the facts and on the law, 24 not based upon my emotional reaction or yours or anyone 25 else's. 47 1 It's an interesting picture to stand here and to 2 look at you. I will tell you that if we were going to build a 3 new bridge across the Ohio River, which is a matter of some 4 debate, as you know, we would probably assemble a group of 5 expert engineers to design it and to specify the materials, 6 the strengths and so forth. If we were going to try to design 7 a new audio system that would work all the time in this 8 courtroom, we'd probably get some audio engineers together, 9 hand picked because of their experience and their expertise. 10 But I will tell you that you have been selected to decide this 11 case because you are people selected to represent our 12 community. You're not here because you know anything 13 particular about homicide, suicide, violent assault or Prozac. 14 You are here because your backgrounds and your education, your 15 jobs, your ages, what you know about is different and varied, 16 just like our community is. It is in your hands that we put 17 this case. 18 In analyzing all of this mass of material that 19 has come in, witnesses, documents, scientific reports, 20 psychiatric diagnoses, half of the things I've heard I 21 couldn't begin to pronounce and surely can't spell. I 22 couldn't even spell mental illness the other day. But we are 23 here to ask you to decide this case based upon your common 24 sense, based upon your life experiences, what you think is 25 right and wrong, the way you evaluate people, your experience 48 1 with human nature and with human behavior. We're not looking 2 for an expert opinion; there have been enough of those. I'm 3 here to ask you to use your own good judgment, what my 4 grandfather used to call walking-around sense. I'm here to 5 ask you to use your values, to use your sense of what's fair 6 and what's right and what's true to character and what's not 7 true to character. Your logic, not someone else's; your 8 experience, not what you hear from lawyers; your values 9 applied to these issues in this case. A famous judge once 10 wrote, "A jury verdict is the expression and the perfection of 11 common sense." 12 In this case, and in making my remarks, I want 13 to speak to you about only one thing. I want to speak to you 14 about cause. In the jury instructions that have been read to 15 you and you now have a copy of those, there are a couple of 16 key phrases with regard to cause, and I'd like to write them 17 down. The first one is, "If you are satisfied from the 18 evidence..." The standard in this case is your satisfaction 19 from the evidence. The second phrase that I would like to 20 write down which relates to that, "...a substantial factor in 21 causing..." I would like to discuss for just a few moments 22 those key phrases. In deciding what is a substantial factor 23 and in deciding when you are satisfied from the evidence, I 24 invite you to use your common sense, your sense of logic in 25 giving those phrases meanings. There are no definitions of 49 1 those phrases contained in the jury instructions. Those 2 definitions come from you. 3 Now, let me focus on those for just a moment. 4 In deciding what's a substantial factor in causing what Joseph 5 Wesbecker did, does that mean that it is anything that might 6 have contributed? Does it mean that his car might be at fault 7 as a contributor because it got him there, or that the Time 8 Magazine article describing mass murder might have brought him 9 there? Does it mean something real insignificant? Of course 10 not. You are not to find Lilly at fault under these 11 instructions, not even one percent, not even a smidgeon, 12 unless you are satisfied from the evidence that Prozac is in a 13 defective and unreasonably dangerous condition and that it was 14 a substantial factor in causing Joe Wesbecker's actions on 15 September 14, 1989. 16 Now, to be satisfied, common sense tells us that 17 if it's a mere possibility, that isn't being satisfied. Of 18 course anything could have happened. Gee, maybe it's a 19 possibility that Prozac triggered it or pushed him, that it 20 was the little straw, the little fragment that might have 21 contributed to this. That's not a substantial factor. 22 Questions that are asked of witnesses are not evidence; only 23 the testimony, only the documents that are put in as exhibits 24 are evidence. Arguments by lawyers are not evidence. You are 25 sworn to decide this case based only on evidence and on the 50 1 law that Judge Potter has already given to you. 2 Now, let me talk with you for just a moment 3 about cause. In this case, the real issue is: Did Joe 4 Wesbecker do this voluntarily? Did he do it because he wanted 5 to? Was it something that he was forced or compelled to do 6 because he was controlled by Prozac? Was he motivated by 7 Prozac to want to commit these terrible, awful acts or did he 8 intend to do these things because of his twisted, distorted 9 view of reality? Did Prozac cause him to become homicidal, to 10 have ideas and to make plans of killing many people, or was it 11 the result of his desire to get revenge against a place that 12 he hated? Did Prozac cause him to do something that he didn't 13 want to do or did he do what he wanted to do, as terrible as 14 it was, while he had Prozac, lithium and Restoril in his 15 bloodstream? If it was intentional, if he decided that he 16 wanted to do this, as crazy as the reasons may be, as 17 unjustified and undeserved as his conduct was, if it's what he 18 wanted to do, he is the sole cause. 19 Judge Potter has already instructed you in the 20 instructions that you have before you that Joseph Wesbecker 21 had a duty not to hurt these people, and he violated that duty 22 and he is at fault. The issue is not whether or not his acts 23 were justified and whether this was deserved, the question is 24 whether or not Standard Gravure -- the question is not whether 25 or not Standard Gravure or these good people deserved this 51 1 kind of violence. Nothing justifies that, not ever. 2 Everything he did was wrong. But the issue remains, did he do 3 these things because he wanted to based upon a distorted, 4 twisted view of Standard Gravure and its people, or did he act 5 involuntarily, not knowing where he was and what he was doing, 6 out of control, agitated or anxious? Did he do something that 7 he wouldn't have done if he hadn't taken Prozac for 26 days? 8 If he did what he intended to do or what he 9 wanted to do, then Prozac is not the cause; he is the only 10 cause. If he knew what he was doing and wanted to do it, then 11 he alone should be held responsible for what he did. That 12 doesn't mean that his intentions make any sense -- all murders 13 are without a rational basis -- or that his actions were 14 justified; most assuredly, they were not. But from his point 15 of view, if he did what he desired to do, then he alone should 16 be held accountable for what he did do. 17 In 1963, Martin Luther King said, "Like an 18 unchecked cancer, hate corrodes the personality and eats away 19 its vital unit. Hate destroys a man's sense of values and his 20 objectivity. It causes him to describe the beautiful as ugly 21 and the ugly as beautiful and to confuse the true with the 22 false and the false with the true." Hatred for Standard 23 Gravure was in the heart of Joe Wesbecker on September 14, 24 1989. Hatred distorted his views. The true became false and 25 the false became true, and the right became wrong and the 52 1 wrong in his mind became right. 2 I would like to look now at two aspects of the 3 evidence in this case, just two things. I want to look at the 4 office notes of Doctor Lee Coleman and I want to view those 5 notes in a way that none of us in this trial have ever seen 6 them. I want to view them placed against the context of the 7 history of what was going on in Joe Wesbecker's life, exactly 8 at the same times that he was seeing Doctor Coleman. 9 Now, I'm going to plead guilty to having to put 10 in evidence out of order. I had to do it for a lot of 11 different reasons, most of which I couldn't begin to control. 12 They dealt with schedules, the witnesses' schedules and the 13 like, and you've heard a lot of facts about his life that I 14 have presented to you out of order. I'll also confess to you 15 that I've cut some of it out. The parts that I thought were 16 repetitive, I have mercilessly not taken the time to present 17 it to you, but I have tried to present to you facts about him 18 so that you can understand the mind behind the actions on 19 September 14. 20 Let me talk to you about Doctor Coleman's note 21 of September 11, 1989, three days before the shootings. You 22 will recall the note. I'm just going to read a portion of it 23 to you now, and I'm going to show you the whole thing in just 24 a few minutes. "Patient seems to have deteriorated. 25 Tangential thought. Weeping in session. Increased level of 53 1 agitation and anger. Question from Prozac." Doctor Coleman's 2 question mark was written at the time that he did not know 3 what you know now. He did not know Joe Wesbecker. He did not 4 know those 22 assumptions that I presented to him, those 22 5 items of fact at the time he wrote that note. He didn't know 6 a one of them. They have subsequently been proven, together 7 with a lot of other facts and they've been presented to you, 8 not just those 22 items but many, many more, to complete the 9 picture. 10 In trying to decide what was the cause of what 11 Joe Wesbecker did, I want to tell you a brief story about 12 myself. My first recollection of any kind of work was when I 13 was two or three years old, living with my family, my mother 14 and my father at 41st and Michigan Drive. I recall being at 15 the kitchen table and my mother was upset because there was a 16 dead mimosa tree in our backyard. Mimosa trees don't get very 17 big but this one was an old one and it was leaning over the 18 house, and my mother wanted my father to cut it down and get 19 rid of it so that it wouldn't damage the house or somebody. I 20 remember my mother was upset that my dad didn't seem to think 21 it was very important. He had something else that he wanted 22 to do that Saturday. And so as a little toddler, I went out 23 into the backyard and I got a stick. I beat on the trunk of 24 that old, dead mimosa tree until I got pretty tired, went 25 inside and took a nap, and when I woke back up and went into 54 1 the backyard, the tree was down. And I remember very proudly 2 telling my mom I did that. I caused that tree to come down. 3 She didn't tell me that my father and the next-door neighbor 4 had gotten a big saw and while I was asleep they felled the 5 tree. I assumed that because I had beat on the trunk of that 6 old tree with a stick first and then later it fell down that I 7 was the cause. I thought I did it. I hit it first, and then 8 it fell, and I didn't know the real cause. I didn't know 9 because my mother didn't tell me that the real cause was 10 something else altogether. 11 A cause in a case like this cannot be determined 12 by simply learning that something occurred first, that a man 13 took Prozac and then subsequently did these awful things and 14 that they're necessarily connected up. In order for anyone, 15 including Doctor Coleman, to determine the cause of Joe 16 Wesbecker's actions, we must know all of the facts. We need 17 to know about the two men with the saw. 18 Now, Doctor Breggin has talked in this case 19 about what a compliant and what a conscientious patient Joe 20 Wesbecker was, but Joe Wesbecker, either intentionally or by 21 neglect, kept at least 22 important facts from Doctor Coleman 22 that relate to cause. Twenty-two important facts about 23 himself that relate to his condition were kept from Doctor 24 Coleman when he wrote that note. 25 Let me talk with you about some of these facts. 55 1 You'll remember these because they have come from the witness 2 stand in this case. Let me go back to the beginning. Brenda 3 Camp, his wife, has told us that in 1982 or 1983 that Joe 4 Wesbecker threatened to kill Doctor Beasley two or three 5 times, one time was during Wesbecker's marriage to Brenda and 6 another time was two years before the incident. He said one 7 time he would wait at his Southern Parkway office and when he 8 left the office he would roll down the window and blow his 9 brains out. 10 Charles Metten testified Wesbecker told him that 11 he followed Doctor Beasley everywhere Doctor Beasley went. He 12 pretty well stalked Doctor Beasley for quite a while. 13 Ann Detlefs Minch, the social worker who was 14 assigned to James's case, testified that while she worked on 15 that case from the spring of '82 until '84, that Wesbecker was 16 a difficult person to work with, communicate with, reason 17 with. He was angry, expressed that quite openly. He was 18 hostile. He was aggressive. She described him as red in the 19 face, aggressive, yelling loud and angry. "My experience with 20 Joe Wesbecker is that he was a very hostile, aggressive person 21 who was difficult to deal with." 22 Tom Gosling, a pressman at Standard Gravure who 23 knew Wesbecker well, testified that as early as '83 or early 24 '84, that Wesbecker was having trouble in his second marriage 25 and he started talking about hurting people, violence. "He 56 1 had asked McKeown to take him off the folder and McKeown 2 wouldn't do it, and he took it as a personal insult and 3 started saying he wanted to kill him." 4 '83 to '84, David Fewell, who testified by 5 deposition, "You didn't want to be around him when you talked 6 to him because he was acting like he had tunnel vision. He 7 would be mad at somebody and he would just change the subject 8 and he would want to bring it back and just dwell on it like 9 it was eating on him." 10 Tom Gosling again, in the four-year period of 11 '84 to '88, it was during this period of time that Wesbecker 12 started saying he wanted to kill different people. 13 "Question: How many times did he say that, Mr. 14 Gosling, to you that you specifically remember? 15 "All right. From '84 to '88, I couldn't begin 16 to count the times. 17 "Was it more than five? 18 "It was more than that. 19 "Was it more than ten? 20 "I would think so. 21 "Was it more than 15? 22 "I would think so. 23 "Was it more than 20? 24 "I really can't give you the number." 25 You recall Brenda Camp talking about the 57 1 occasion in April of 1984, when he attempted to take his own 2 life, attempted to commit suicide by using the carbon monoxide 3 from his car. And then you'll recall that in that same month, 4 according to the records of Doctor Senler and the Our Lady of 5 Peace records, he was admitted to Our Lady of Peace after 6 suicide, diagnosed with major depressive illness, unable to 7 cope with family and job. Ineffective at coping exhibited by 8 suicidal attempt and homicidal thoughts. Worries about losing 9 his job. Says can't compete financially with wife's family. 10 Admits homicidal thoughts towards ex-wife's ex-husband. 11 Thought of blowing his brains out, but he always has a witness 12 with him. 13 April 20, 1984, Doctor Leventhal did a 14 psychological evaluation on him and he wrote, "Currently, he 15 is attempting to contain his anger so that it doesn't 16 jeopardize the gratification of his dependency needs by 17 alienating support figures. To do this, he tends to turn his 18 anger against himself and so potential for self-destructive 19 behavior remains. Although the danger of acting out is not 20 imminent, I think he will be a difficult person to treat in 21 that he really doesn't trust anyone enough to engage in the 22 psychotherapeutic relationship, the only possible vehicle for 23 getting at the personality disorder." 24 Psychotherapy requires truth and candor on the 25 part of the patient, and Joe Wesbecker kept his real thoughts 58 1 of homicide and suicide from Doctor Coleman. When Doctor 2 Senler saw him in August of '84, he was bitter, angry, hostile 3 to the social worker of his son. 4 And then Tom Gosling, again, his testimony about 5 Joe Wesbecker between '84 and '88. "He talked about killing 6 different people; McCall, Shea, Warman, McKeown and others, 7 including Cox, depending on who made him mad that day. He 8 threatened a lot of people who had nothing to do with 9 management. He talked about making a bomb and bringing a bomb 10 in there. He started talking about coming in with guns and 11 shooting everybody." Joe Wesbecker thought about the ultimate 12 indiscrimate killing, a bomb, where the victims are everybody 13 that just happens to be there by chance at the time of 14 detonation. 15 Mr. Gosling said, "We'd sit around and talk and 16 he would talk about how bad he was feeling. Really you 17 couldn't say a lot of times because he was so agitated. He 18 just kept talking about how bad he felt. He would just get 19 tense, his face would get all red and he would be talking 20 about how many people he wanted to kill, and nothing you said 21 would calm him down. So when he started getting that way, I 22 would usually try to get away from him. He just stayed that 23 way till he left work." Gosling would see him pace. He was 24 over by his folder and he would just walk around his folder, 25 and sometimes he'd just walk up and down one side of it. 59 1 Because he was nervous with regard to the pacing, Gosling 2 said, "I can't really say that Joe ever got better at work, 3 just several days he would do that sometimes, some days he 4 would just sit there." 5 In July of 1986, Mike Shea buys Standard Gravure 6 and the atmosphere in the pressroom changed. Shortly 7 thereafter, he told Mr. Metten that somebody ought to do away 8 with Mike Shea. 9 Don Frazier described Wesbecker in 1986 as 10 antagonistic, confrontational and very agitated. 11 Richard Keilman in the mid 1980s recalls hearing 12 Wesbecker say he wanted to shoot Popham. "I don't know. It 13 was Popham. It was McKeown. It was -- oh, hell, Cox. It 14 was, you know, I never took him serious. I don't think 15 anybody did. Maybe if somebody had taken him more serious, 16 this wouldn't have happened. Joe went from one of the nicest 17 guys you'd ever want to meet to paranoid. You didn't realize 18 it when it was happening." 19 While the Wesbeckers were on their way on New 20 Year's Eve 1987, I'll never forget Brenda's description of 21 this from this witness stand. They were at a stoplight right 22 beside Steak N Shake. "He looked right at me and said, 'You 23 know, it would be easy for me -- same figment of speech -- to 24 blow your daughter's brains out, and then I wouldn't have to 25 look at her. I wouldn't have to see her and I wouldn't have 60 1 to be jealous of yours and her relationship.'" 2 In early 1987, he brings a loaded pistol into 3 Standard Gravure and says that he wants to kill Jim Popham; 4 that if Popham ever speaks to him about anything other than 5 work, he's going to kill him right there in the plant. Lucas 6 tells Popham that if he says anything to Wesbecker that is not 7 job related, Wesbecker will blow his head off. The next day, 8 Popham informed Don Cox. He also told McKeown, Emert and 9 Sitzler. According to Cox, several months after that, 10 Wesbecker brought the gun into the plant, that Popham told him 11 about it. Cox then reported that to Grady Throneberry, the 12 manager of safety and security, and told McCall, who was the 13 Number Two guy with Mike Shea, that Wesbecker had brought a 14 gun into Standard Gravure and was going to use it on Popham 15 and himself. The very highest level of management was aware. 16 According to Throneberry, they met and talked with Don McCall, 17 Cox met with Throneberry, told him about the Wesbecker 18 threats, and that was the end of the matter. 19 1987 still. Wesbecker was in Our Lady of Peace 20 for almost a month. At that time Barbara Sheehan, the nurse 21 who testified here from Our Lady of Peace, took out a 22 question-and-answer form from him. Inability to cope related 23 to hyperactivity, sleep deficiency, agitation with job 24 stressors. As she questions Wesbecker, he states, "I'm moody. 25 I've pushed away from my friends due to excess overtime hours. 61 1 I don't like feeling weak. I've been screwed. I'm angry. My 2 nerves are preventing me from coping. He has felt like 3 harming his foremen at work any way he can. Sometimes I feel 4 like I'm two people; one, happy and, two, mad." 5 The nurses' notes which were read out loud to 6 you from the stand in the middle of that stack of Our Lady of 7 Peace records state, "Agitation with job stressors. Speech 8 pressure, rapid, face reddened when discussing job stressors, 9 and states he became so agitated with co-worker or co-workers 10 at times, he would speed up the equipment to get back at them, 11 which makes me feel good." 12 Doctor Buchholz tested him. His findings: "He 13 didn't seem very hopeful about the future and was frustrated 14 about his abilities to solve his problems." 15 And then in May of 1987, he met with Mr. 16 Mattingly, the man from the Human Relations office, the former 17 priest, the big man who sat on the stand and testified. And 18 Mr. Mattingly says that he talked about Cox, Popham and 19 McKeown. He gave examples, insisting that there was nothing 20 -- that they claimed there was nothing really wrong with him, 21 and that if we need to put you on the folder we will, that 22 McKeown said things like, "All you need to do is just tough it 23 out and do your job." He would go home and stew and fret 24 about it. He wanted the company to say in writing, "We will 25 never ask you again to work on the folder." He was nervous, 62 1 high strung, articulate and believable. He had a lot of 2 hostility toward his supervisors and toward the company. 3 Mr. Mattingly met with Paula Warman, June 16, 4 1987, and he said, "I'm sure you're not going to want to hear 5 what I'm about to say and I know the company is not going to 6 want to hear it, but in my opinion before you put Mr. 7 Wesbecker on the folder you ought to shut it down, because 8 putting him on the folder could be endangering his life and 9 the lives of the people around him." She said, "The company's 10 not going to want to hear that." And one of Mattingly's 11 concerns was that this man who had deep emotional problems 12 might snap under the pressure and harm himself or others. 13 Wesbecker, according to Richard Keilman again, 14 felt like everyone was picking on him. Bill Ganote ran the 15 press that he was on the reel and if Wesbecker missed a 16 paster, they'd get on him. And then right after that he meets 17 for the first time with Doctor Coleman, and when he meets with 18 Doctor Coleman he doesn't tell him anything except: "Patient 19 presents primary stress as employer jerking him around." He 20 didn't tell Doctor Coleman. When Doctor Coleman asked him, 21 have you been homicidal, have you thought about killing 22 people, he said no. And when he asked Wesbecker if he had 23 ever been suicidal, he said no. No suicidal or homicidal 24 ideation. All of the things that I just showed to you that 25 you have heard about, he withheld deceitfully from Doctor 63 1 Coleman because he knew what would happen. He would go back 2 to the hospital. 3 The second time and the third time that he met 4 with Doctor Coleman, he didn't tell him anything about 5 homicide or about suicide and wanting to hurt people. 6 In 1987 or '88, there was a meeting where Mr. 7 Shea wanted Throneberry right outside the door while he met 8 with Wesbecker. Shea denies it, of course. 9 1987, Danny Senters says that Wesbecker told him 10 he was going to get even with Shea, McCall, Cox, McKeown and 11 Warman. He had a mental list and the list would vary 12 depending on who he was having trouble with. One time he even 13 wrote seven to eight names on a roll of paper that went into 14 the presses. 15 In 19 -- early -- end of '87 or early '88, 16 Brenda Camp told you that Joe Wesbecker said to her that he 17 wanted to blow up Standard Gravure with dynamite. "I would 18 say end of '87, beginning of '88, Joe talked about blowing the 19 plant up with dynamite, you know. He made the comment it 20 would be easy for him to take an airplane -- he always liked 21 gadgets and he was pretty talented with his hands before he 22 got real ill, and he made the statement, 'It would be easy for 23 me to take a plane, fill it full of dynamite and go into my 24 locker, plant it and blow the plant up.'" And in early 1988, 25 while he was thinking about those destructive plans, while he 64 1 made those statements to Brenda, he never said a word to 2 Doctor Coleman. 3 February of 1988, he bought a pistol, a .38 4 Smith & Wesson. '87 or '88, Gerald Griffin says, "When he did 5 not like his work assignment one time Wesbecker said, quote, 6 I'll be back. I'm going to get these SBs." 7 Approximately 1988, Danny Senters tells us again 8 that two to three times he heard Wesbecker say he was going to 9 blow somebody away with a gun. He talked about having guns. 10 Three to four times a week Wesbecker would talk about getting 11 even. He would get worked up about Shea or McCall and you 12 could just see the steam coming out of his ears. His threats 13 were usually against the company. He felt someone in 14 management was keeping him from leaving. 15 He goes back to Doctor Coleman and again tells 16 him nothing about his statements to blow up and to kill. He 17 tells him nothing that would indicate to Doctor Coleman that 18 this is a seriously, seriously ill man. 19 Joe Ball, the police officer, testified that in 20 the summer of 1988, when Wesbecker was being treated by Doctor 21 Coleman, that he even saw Wesbecker on the Fourth Street Mall, 22 right over on Fourth Street, with a banana clip in his back 23 pocket, walking around at lunchtime. 24 And on August 6, 1988, Wesbecker took disability 25 because of his mental illness. He did not work from that time 65 1 forward. As Mr. Frazier told us, he wanted to work. It was 2 all that he had left in his life was to go to work, and he 3 couldn't go to work because he was so ill mentally that he 4 couldn't work the folder and Standard Gravure would not let 5 him off the folder. 6 When he goes to Doctor Coleman and he tells him 7 that his work performance has deteriorated; he was off. When 8 he goes to Doctor Coleman two days later, he talks about 9 increased pressure at work; he was off work. 10 Twenty days almost to the day after he stopped 11 working, Joe Wesbecker bought the nine-millimeter pistol that 12 he killed himself with on September 14, 1989. He didn't tell 13 Doctor Coleman about his ideas at that time to take his own 14 life. He goes to Doctor Coleman and says that he's feeling 15 slightly better. He didn't level with him. 16 On September 10, 1988, Wesbecker went to the 17 Owen Funeral Home, met with Mr. Addams and paid $650 in cash 18 for his own cremation and specified, "I want the ashes 19 destroyed. I want no one to have them because no one cares 20 about me." And Joe Wesbecker did not tell Doctor Coleman that 21 he was seriously suicidal at that time. 22 In 1988, Brenda moved out of the Nottoway Circle 23 house that Joe Wesbecker had purchased for $58,000, and 24 against his attorney's advice, he deeds the house to her, 25 quote, as the deed says, for love and affection. According to 66 1 Brenda, he feared that he was becoming increasingly mentally 2 ill, might be locked away at Central State Hospital and his 3 medical insurance running out and that the house would be 4 taken away, and he gave it to her. He goes to Doctor Coleman 5 in October and November and tells him nothing about his plans 6 and his concerns. Doesn't tell him he's purchased a weapon, 7 paid for his own cremation, given his house away for zero. He 8 tells him nothing that would give Doctor Coleman any insight 9 as to what's really going on in his life and in his mind. 10 On November the 5th, 1988, two days after he 11 sees Doctor Coleman, he orders a shotgun. And then on 12 November 10, 1988, there was a big fire and explosion at 13 Standard Gravure, and his friend Jim Lucas was seriously hurt. 14 And when Wesbecker visited him in the hospital, Wesbecker 15 said, "It's a shame the whole building didn't burn up." 16 On that date, December 1, 1988, Coleman didn't 17 -- Wesbecker didn't keep his appointment with Coleman, and on 18 December 12, 1988, Wesbecker tells him he's feeling better. 19 He doesn't tell him about the weapons he's purchased, about 20 the statements he's made to destroy a major building and plant 21 in downtown Louisville. 22 On the same day that he sees Doctor Coleman, Joe 23 Wesbecker wrote a will leaving everything to James and Brenda 24 and nothing to his oldest son that he had not spoken to in 25 seven years. The will says that he leaves nothing to Kevin 67 1 Wesbecker. And Wesbecker said, according to James, quote, his 2 father thought he didn't deserve it. 3 And on January 9, 1989, we're now nine months or 4 eight and a half months before these violent acts, Wesbecker 5 goes back to Doctor Coleman and says he's feeling better, 6 doesn't tell him about the wills, doesn't tell him he hasn't 7 spoken to his son for seven years, doesn't tell him about the 8 weapons that he's purchased nor has he told him about the 9 developing plans that he's got of destruction. 10 January 17, 1989, Patrick Purdy took an AK-47 in 11 Stockton, California, and opened fire on innocent school 12 children in a yard. January 18th, 1989, that was covered by 13 the media in the newspaper here, and on January 19, 1989, Joe 14 Wesbecker bought an AK-47. 15 February of 1989, that same month that he 16 purchased that weapon, Jim Lucas told us that he had a 17 fixation that people were watching him. Lucas went to his 18 house, and he had it in his mind that the company was out to 19 get him. Each time they talked, the list of people would be 20 different: Warman, McCall, Popham, Sitzler and McKeown. 21 February 1, '89, he orders two Mac-11s. You 22 recall what they look like. 23 February 2, he withdrew from the union, got out 24 of the union that he had been in for decades and, according to 25 his son, "He thought that since he had been on disability 68 1 there was no really fight for someone in their union to argue 2 for his cause, so why be in the union." Wesbecker, according 3 to his son, wanted to go back to work but he didn't want to be 4 on the folder, and he wasn't sure what he could handle. The 5 union was not getting him off the folder permanently. 6 Then he goes back to Doctor Coleman, nothing 7 significant told. He doesn't describe that he's purchased an 8 AK-47, that he has the Time Magazine article of February 6, 9 1989. He doesn't tell him about withdrawing from the union 10 and about his concerns and problems that everybody's abandoned 11 him. 12 And on February 7, 1989, the water is 13 disconnected at the house that he's living in. Next day the 14 phone was disconnected permanently. Never reconnected. 15 February 10, he picks up the two Mac-11s at 16 Tilford's Gun Shop. And then on February 20, he goes back 17 to -- he calls Doctor Coleman, talks about Halcion, says he 18 wants to switch but doesn't tell him anything about his plans 19 and what he's purchased and what he's getting ready to do. 20 February of 1989, either the 23rd or the 24th, 21 James goes to his house at 7300 Nottoway, where he's living, 22 and they discussed the fact that his son wanted to go