1 NO. 90-CI-6033 JEFFERSON CIRCUIT COURT DIVISION ONE (1) 2 3 JOYCE FENTRESS, ET AL. PLAINTIFFS 4 5 VS. DEPOSITION FOR PLAINTIFFS 6 7 SHEA COMMUNICATIONS, ET AL. DEFENDANTS 8 * * * * * * * * * * 9 10 DEPONENT: TRANSCRIPT OF THE HEARING 11 DATE: DECEMBER 13, 1993 12 13 * * * * * * * * * * 14 15 16 REPORTER: KATHY NOLD 17 18 KENTUCKIANA REPORTERS SUITE 260 19 730 WEST MAIN STREET LOUISVILLE, KENTUCKY 40202 20 (502) 589-2273 Page 1 1 THE TRANSCRIPT OF THE HEARING, HELD AT THE 2 JEFFERSON CIRCUIT COURT, DIVISION FOURTEEN, 600 3 WEST JEFFERSON STREET, LOUISVILLE, KENTUCKY, 4 40202, ON DECEMBER 13, 1993; SAID HEARING HELD 5 PURSUANT TO NOTICE IN ACCORDANCE WITH THE RULES 6 OF CIVIL PROCEDURE. 7 * * * * * * * * * * 8 A P P E A R A N C E S 9 10 LEONARD M. RING NANCY ZETTLER 11 COUNSEL FOR GROUP A PLAINTIFFS LEONARD M. RING AND ASSOCIATES, P.C. 12 111 WEST WASHINGTON AVENUE, SUITE 1333 CHICAGO, ILLINOIS 60602 13 LAWRENCE J. MYERS 14 COUNSEL FOR ELI LILLY AND COMPANY FREEMAN & HAWKINS 15 4000 ONE PEACHTREE CENTER 303 PEACHTREE STREET, N.E. 16 ATLANTA, GEORGIA 30308-3243 17 EDWARD H. STOPHER COUNSEL FOR ELI LILLY AND COMPANY 18 BOEHL STOPHER & GRAVES SUITE 2300, CAPITAL HOLDING CENTER 19 400 WEST MARKET STREET LOUISVILLE, KENTUCKY 40202 20 Page 2 1 IRVIN G. FOLEY 2 LISA KOCK BRYANT COUNSEL FOR PLAINTIFF STEIN 3 SECOND FLOOR NORTH 200 SOUTH FIFTH STREET 4 LOUISVILLE, KENTUCKY 40202 5 THURSTON M. CRADY COUNSEL FOR PLAINTIFF SALLEE 6 209 SOUTH FIFTH STREET LOUISVILLE, KENTUCKY 40202 7 LARRY C. ETHRIDGE 8 COUNSEL FOR PLAINTIFF BOWMAN MOSLEY CLARE & TOWNES 9 730 WEST MAIN STREET LOUISVILLE, KENTUCKY 40202 10 B. HUME MORRIS 11 COUNSEL FOR PLAINTIFF FENTRESS MORRIS HAWKINS & DUTTON 12 1200 STARKS BUILDING LOUISVILLE, KENTUCKY 40202 13 GRANT M. HELMAN 14 COUNSEL FOR PLAINTIFF, ESTATE OF WESBECKER HELMAN COOK & MCCARTHY 15 619 MARION E. TAYLOR BUILDING LOUISVILLE, KENTUCKY 40202 16 CHARLES L. KOBY 17 COUNSEL FOR DEFENDANT STANDARD GRAVURE SEGAL & SHANKS 18 237 GUTHRIE GREEN LOUISVILLE, KENTUCKY 40202 19 LEE ANN RISNER 20 COUNSEL FOR DEFENDANT HALL SECURITY MACKENSIE & PEDEN 21 650 STARKS BUILDING LOUISVILLE, KENTUCKY 40202 22 GREGORY BUBALO 23 COUNSEL FOR DEFENDANT COLEMAN OGDEN NEWELL & WELCH 24 1200 ONE RIVERFRONT PLAZA LOUISVILLE, KENTUCKY 40202 Page 3 1 MARK DOBIESZ COUNSEL FOR PLAINTIFF CAMPBELL 2 RAWLINGS & ASSOCIATES P.O. BOX 740027 3 LOUISVILLE, KENTUCKY 40202 4 JOHN R. WILSON COUNSEL FOR WESBECKER ESTATE 5 RUCH WILSON & COOPER 2350 MEIDINGER TOWER 6 LOUISVILLE, KENTUCKY 40202 7 STUART E. ALEXANDER, JR. COUNSEL FOR WORKERS' COMPENSATION CARRIER 8 TILFORD DOBBINS ALEXANDER & BUCKAWAY 1406 ONE RIVERFRONT PLAZA 9 LOUISVILLE, KENTUCKY 40202 10 HARRY HARGADON, JR. COUNSEL FOR PLAINTIFFS WARMAN 11 713 WEST MAIN STREET LOUISVILLE, KENTUCKY 40202 12 JOHN L. HARBOLT 13 COUNSEL FOR MUDD ESTATE 713 WEST MAIN STREET 14 LOUISVILLE, KENTUCKY 40202 Page 4 1 * * * * * * * * * * 2 JUDGE POTTER: We're here in 90 3 CI-6033, Fentress versus Shea Communications. As 4 near as I can understand it, there are two things 5 that are on today. One is oral of Mister Bubalo -- 6 where are you, sir? 7 MR. BUBALO: Right here, sir. 8 JUDGE POTTER: Mr. Bubalo's motion to 9 be granted a summary judgement, and the other is 10 a motion that was filed by the plaintiffs for a 11 continuation of the trial date. Does anybody 12 know of anything else that is on the docket 13 today? 14 (NO RESPONSE FROM THOSE PRESENT.) 15 JUDGE POTTER: I passed around a sheet 16 that we've been using it for a while that lists 17 various parties and their attorneys. Would you 18 circle it if you are here, or if you are not on 19 the list, add your name, and if there are any 20 corrections you think need to be made in that 21 list. If we've got you with the wrong party or 22 there was a party there that's no longer in the 23 case or something like that, make the 24 corrections. Page 5 1 I have ruled upon, and they have been 2 entered, copies will go out tomorrow, one was the 3 Hartford motion to stop Lilly from seeing ITT's 4 file, and I have allowed Lilly to see certain 5 portions of ITT's files. So if you want to read 6 this when you're through, you can, but it will go 7 out in the mail tomorrow. 8 I know I did a second order, I don't 9 know where it is -- oh, here it is. It's been 10 entered also, and that is Lilly's motion to be 11 authorized, which really I think means an 12 advanced ruling that there not be any privileges 13 asserted by certain people who had treated Mister 14 Wesbecker's son, and basically that one I ruled 15 that they can take the depositions of the three 16 juvenile court workers who were not social 17 workers, and not take the deposition -- or that 18 Doctor Johnson and Mister Brown could still 19 assert the privilege if they choose to. You all 20 can look at those when we're through. 21 On the motion to continue -- the reason 22 I go through this long recitation is because 23 there's a lot of paper in the file, and I want to 24 make sure we're all at the same place. On the Page 6 1 motion to continue, I have that, plus like a 2 two-page response by Lilly. Is there anybody 3 else that's got a written response or anything to 4 say about the motion to continue? 5 MR. STOPHER: Judge, I have a more 6 extensive response, I gave it to Ms. Zettler, and 7 I brought copies for everybody else. If you 8 would permit me, I would like to hand this to the 9 court and ask that it be filed. 10 JUDGE POTTER: How long is it? 11 MR. STOPHER: It's just about six or 12 eight pages. 13 JUDGE POTTER: All right. 14 MR. STOPHER: Can I just hand this to 15 you, Judge? 16 JUDGE POTTER: Yes. Well, let's do Mr. 17 Bubalo and then I'll read this, and then we'll 18 take up the motion to continue. 19 Mr. Bubalo, we set this, I guess, 20 before everybody knew what the briefs were going 21 to look like, I kind of forget when we set it, 22 but it was set some time ago. It looks like to 23 me the issues are fairly clear, and although I 24 haven't read every brief in detail, but they're Page 7 1 fairly well laid out. 2 MR. BUBALO: I think there are two 3 briefs you need to read, Your Honor, and I think 4 that's the one that was filed, I think, November 5 1 by the plaintiffs, by Nancy Zettler, and then 6 our response brief, and I think that those two 7 briefs really do delineate the issues. I think 8 our response brief was filed -- or served, at 9 least, November 22, 1993. 10 JUDGE POTTER: The two I've read, and 11 they seem to cover it fairly well, is one, and I 12 have thousands of copies are, and it's called a 13 Reply Memorandum In Support Of Dr. Coleman's 14 Motion To Dismiss. 15 MR. BUBALO: That's it. 16 JUDGE POTTER: And apparently there was 17 a typo in it or something, and so I have got lots 18 of copies. And then the other one I read is 19 styled Plaintiff's Response To Dr. Lee Coleman's 20 Motion For Summary Judgment, and that one, and 21 they seem to lay it out. 22 MR. BUBALO: That might be the only 23 thing we agree on all day, I'm anxious to hear 24 this. I think if you read both of those briefs, Page 8 1 you're pretty well informed about what the 2 plaintiffs and defendants feel about this motion. 3 Am I correct, Nancy? 4 MR. RING: No, Your Honor, Leonard 5 Ring, counsel for the plaintiffs. I think that 6 there is great value in having some argument. In 7 light of the hour, I will try to restrict mine. 8 JUDGE POTTER: Why don't you start, and 9 I looked over Mister Bubalo's, and go ahead and 10 say what you think could be added. 11 MR. RING: Well, all right. 12 JUDGE POTTER: And let me just say for 13 everybody's benefit, I'm not going to rule on 14 this thing from the bench today. If anybody is 15 thinking that way, you're wrong. 16 MR. BUBALO: Your Honor, what I mean is 17 not necessarily that an oral argument wouldn't be 18 helpful, but as far as briefs go, there are only 19 two briefs you need to burden yourself with. 20 JUDGE POTTER: You've laid yours out 21 pretty well, and if you accept every stage of it, 22 it's a fairly simple argument. So let's see what 23 the complications are, and then you can respond 24 to Mister Ring and anybody else. Page 9 1 MR. RING: So we'll have mine and then 2 rebuttal. 3 JUDGE POTTER: Okay. 4 MR. RING: Well, let me say that I 5 think the starting point is Section Fourteen of 6 the Kentucky Constitution, the one that provides 7 a right of judicial remedy for injury, and that's 8 been set forth briefly in the briefs. But that's 9 the one that the eyes of the court shall be open 10 for every person. And, so -- and there shall -- 11 and every person shall have a remedy in the law 12 for any right. It's a common provision, 13 uniformly in the various constitutions. Now that 14 is the starting point. 15 The second constitutional provision is 16 Section 54, no restriction on recovery for injury 17 or death, the General Assembly shall have no 18 power to limit the amount to be recovered for 19 injuries resulting in death or for injuries to 20 person or property. 21 Both of these two constitutional 22 provisions were recently the subject of an 23 appellate court opinion in the case of Waldon 24 versus Housing Authority of Paducah, and that's Page 10 1 854 SW2d at 777. And that particular case, which 2 by the way involved the Section 411.155, the 3 statute that is argued in the briefs by counsel 4 as something that prohibits, because the state 5 constitution, that section that I'm reading out 6 of context, prohibits abolition or demolition of 7 legal remedies for personal injury statute limits 8 and liabilities for damages resulting from the 9 criminal use of a firearm by another person. 10 I think it's Dr. Coleman's position 11 that that would bar any claim. In the housing 12 authority case -- 13 JUDGE POTTER: Let me -- I didn't 14 really -- in my quick review, I didn't pick up on 15 this because I didn't really think Dr. Coleman -- 16 411.155 seems like a throwaway argument. 17 MR. RING: Well, it is. It only has 18 one thing that I think is relevant here, and that 19 is in the Paducah case the appellate court 20 reiterated the Section 14 and 54, and that's on 21 page 778. And it says it was the manifest 22 purpose of the framers of that instrument, 23 meaning the Kentucky Constitution, to preserve 24 and perpetuate the common law right of a citizen Page 11 1 injured by the negligent act of another to sue or 2 recover damages for his injury. The imperative 3 mandate of Section 14 is that every person, for 4 an injury done to him and his person, shall have 5 a remedy by due course of law, the Constitution 6 guarantees to him his right to a day in court for 7 the purpose of establishing the alleged wrong 8 perpetuated on him and the recovery of his 9 resultant damages. 10 With respect to the question of 11 recovery by third parties, the court states what 12 I recognize as the general law in this country. 13 Item two and three on the same page, 778, the 14 last paragraph. In Kentucky, quote, the rule is 15 that every person owes a duty to every other 16 person to exercise ordinary care in his 17 activities to prevent foreseeable injury. Now, 18 on that point, there's a case of 1907 in 19 Kentucky, University of Louisville versus 20 Hammock. In that case, a person who was 21 suffering from delirium tremens was in a 22 hospital, and that person injured another person 23 in the hospital, and the court said - this is a 24 1907 case - that the physician -- that a person Page 12 1 so afflicted, that is by dementia tremens, or 2 delirium tremens, might -- that a person so 3 afflicted might reasonably be expected to become 4 violent, uncontrollable and dangerous at any 5 time, ought to have induced them to take such 6 reasonable precautions with reference to his 7 control or confinement as would have prevented 8 his inflicting injury upon other inmates of the 9 hospital. Now that's pretty close. That case, 10 of course, was against the hospital for not 11 protecting another patient in the hospital 12 against somebody who had -- 13 JUDGE POTTER: Then you jump all the 14 way from there to 1988, or whatever, or there's a 15 string of cases in between? 16 MR. RING: There's cases in between, 17 and what I'll do is just give you some of the 18 later ones. But I don't think that this question 19 of foreseeable harm is an issue, or should be an 20 issue. And if it wasn't, they wouldn't need a 21 statute in the first place. So, we get down from 22 there to the question of the particular statute 23 here involved, and before we do that, I would 24 like to refer to Section 51 of the Kentucky Page 13 1 Constitution. That's also a common provision in 2 the Constitutions of, I think, every state. It's 3 phrased a little different, but the object is the 4 same. And that one is the title of an act must 5 contain the subject. 6 In the State of Kentucky, Section 51 7 says: The law may not relate to more than one 8 subject to be expressed in the title, amendment 9 must be of length, no law enacted by the General 10 Assembly shall relate to more than one subject -- 11 before that I read the title to that provision -- 12 and that shall be expressed in the title, and no 13 law shall be revised, amended or the provisions 14 thereof extended or conferred by the reference to 15 title only, but so much thereof is revised, 16 amended, extended or conferred, shall be 17 reenacted and published at length. 18 A few cases on that, one of the earlier 19 ones, which I'll call earlier, 1947, in that 20 particular case -- and let me give you the cite -- 21 204 SW2d 963. At page 964, the court said 22 Section 51 of the Constitution -- it's the second 23 full paragraph, Your Honor -- requires that the 24 subject of the law enacted by the General Page 14 1 Assembly shall be expressed in the title -- 2 JUDGE POTTER: What was the title on 3 this one? 4 MR. RING: Well, this one -- 5 JUDGE POTTER: I assume it was a little 6 thing all by itself since it's Section One of 7 whatever act it is. 8 MR. RING: This one -- yes, sir, 9 202.400. It's the duty of qualified mental 10 health professionals to warn intended victim of 11 patient's threat of violence. 12 JUDGE POTTER: All right. Mr. Foley, 13 is that what the title was when the bill went 14 through the state or is that what the compiler 15 gave it in here. 16 MR. FOLEY: I don't know, Your Honor. 17 JUDGE POTTER: Generally if the title 18 goes through the legislature, it would be 19 something like a bill dealing with the medical 20 profession or something, very broad like that. 21 It's just a one section bill or do we know? 22 MR. RING: As far as I know, this is 23 the title the way it went through the 24 legislature. So it's not just a general Page 15 1 expression dealing with psychiatrists or 2 something where you're expected to start reading 3 to see what it's about. And I see Your Honor 4 sees what I'm getting at. This particular 5 provision, in as much as Your Honor is familiar 6 with this particular section, I will not take the 7 court's time in citing. 8 JUDGE POTTER: I'll tell you, Mr. Ring, 9 it is a section that I've never, you know, I see 10 bills get struck down and I see bills get upheld, 11 and I've never been able to figure out the 12 rational difference between the ones that get 13 struck down and the ones that don't. It seems 14 like they do it on what -- we have another quirk 15 in Kentucky that you can only have one topic in a 16 bill, and some of them they say that's two 17 topics, and others they say that's one topic. Go 18 on, I didn't mean to interrupt you. It's hard 19 for anybody in Kentucky to figure out what they 20 do with those, much less -- you're in a real 21 disadvantage because I think that's something 22 peculiar to the Kentucky Constitution. 23 MR. RING: I really don't think it's 24 very different in Illinois, and I've done a lot Page 16 1 of constitutional cases, Your Honor. I realize -- 2 we have an expression, one drawer for the 3 plaintiff, and one drawer for the defendant. 4 There's always a case that would hold both ways, 5 but I think the rationale for this is very 6 simple, and simply stated at page 964. The 7 purpose of the provisions have been stated many 8 times, and among them is the important purpose to 9 prevent surprise or fraud -- that's not here -- 10 and the enactment of vicious legislation under an 11 innocent and misleading title -- that's here. 12 Therefore, the title must give fair and 13 reasonable notice of the nature and provisions of 14 the act so that a member of the legislature -- 15 people that get four thousand bills a year -- a 16 member of the legislature, or any other 17 interested person reading the title may obtain a 18 general notice or knowledge of the contents of 19 the act, or what it proposes to do. The title 20 must be true, although not detailed in depth. 21 Now, there have been recent cases, in 22 1989, for example, the Sweasy case, Supreme Court 23 of Kentucky, where this constitutional provision 24 was used to strike down a law, and the court Page 17 1 there noted that it was violative of state 2 constitutional provisions requiring that laws 3 relate to no more than one subject, and express 4 that subject in title and the statute accordingly 5 did not provide for it. This happened to be a 6 case involving a peer review of the medical 7 profession. And this was June 8th of 1989. And 8 then there was one just a bit earlier than that 9 that I think is relevant, also by the Supreme 10 Court of Kentucky, June 21, 1977, McGuffey versus 11 Hall, and there too, on the same premise. In 12 other words, a title cannot be such that it will 13 deceive and be deceptive of what the bill is 14 really about, because all of us who have spent 15 any time around the legislature know that they've 16 got these thousands of bills coming through, and 17 also it affects the public's right of a hearing. 18 There's notice of a hearing, and if it's a bill 19 that says what this one does, that they're 20 imposing another duty on the mental health 21 professional, well, that's the end of that. But 22 if they're taking away and immunizing them from 23 liability, that's another matter. So I think the 24 legislature and the people that get notice of Page 18 1 these bills and want to be heard on it have a 2 right to know what it really covers. 3 Now we get to the bill in question. 4 Now, the law. Duty of qualified mental health 5 professional to warn intended victim of patient's 6 threat of violence. If you read that title, you 7 assume this is a plaintiff's law that somebody 8 snuck in to get another duty on the medical 9 profession. Then read it. It's just the 10 opposite. First of all, it's stated in the 11 negative. That may not be a violation of any 12 constitutional provision, but it starts with some 13 confusion. No monetary liability, and no cause 14 of action, directly against 14 and 54 of the 15 Constitution, and no cause of action, shall arise 16 against any qualified mental health professional 17 for failing to predict, warn or take precautions 18 to provide protection from a patient's violent 19 behavior, unless the patient has communicated to 20 the qualified mental health professional an 21 actual threat of physical violence against a 22 clearly identified or reasonably identifiable 23 victim. 24 Now, it's clear that this is not a duty Page 19 1 to warn being imposed on the mental health 2 provider, it is an immunization. It actually 3 abrogates the constitutional rights of Section 14 4 and 54 of the Constitution. 5 JUDGE POTTER: What is the name of the 6 case, it begins with a T, the 1988 case? 7 MR. BUBALO: Evans versus Moorehead 8 Clinic. 9 JUDGE POTTER: Is that the California 10 one? 11 MR. BUBALO: Yes. 12 JUDGE POTTER: What's the '88 one here? 13 MR. BUBALO: Evans versus Moorehead, 14 Your Honor. 15 JUDGE POTTER: Is there anything 16 leading up to Evans versus Moorehead except the 17 1907 case? 18 MR. BUBALO: I don't think the 1907 19 case applies. 20 JUDGE POTTER: Assuming that it leads 21 up to it. 22 MR. BUBALO: No, it tears off, it's the 23 absolute first case -- 24 MR. RING: It sure wasn't in Kentucky Page 20 1 because we've got this 1907 case. And since the 2 Constitution -- 3 JUDGE POTTER: That's right, Evans 4 versus Moorehead, go ahead. So that's the first 5 one in Kentucky that recognized this duty, unless 6 the 1907 case is counted. Is that fair? 7 MR. BUBALO: That's fair, sir. 8 JUDGE POTTER: Go ahead. 9 MR. RING: So with that, we have to 10 assume, unless counsel has something to show that 11 at the time of the enactment of Section 14 there 12 was no such duty. But the statute at Fourteen 13 and Fifty-four seem clear, and the 1907 case is 14 as close as of this time that we could find to 15 the time of the enactment of the Kentucky 16 Constitution. 17 So starting with that, we now have a 18 situation where 202A.400 abolishes that right. 19 And they do this, not only is it deceptive, but 20 they attempt to amend the Constitution of 21 Kentucky, and you can't do it by the legislature, 22 not in this fashion. As you know, and I don't 23 have to go on with this, that would be a 24 constitutional convention that ultimately would Page 21 1 be submitted to the people to vote on it. You 2 can't do it by an act. So in that finally, we 3 now have this provision that undoes 14 and 54 of 4 the Kentucky Constitution. And I say it's also 5 special legislation, although that's not as 6 strong a point. 7 But the point is is that what they're 8 doing, they're providing a special relief to 9 mental health providers which they don't provide 10 to the medical profession in general. For 11 example, and this is an area I've just finished a 12 long trial on, you take the people that have HIV, 13 hemophiliacs, or whatever the reason may be, and 14 a physician examines that person, doesn't inquire 15 about whether he has HIV for whatever reason, 16 doesn't do the ALISA test to determine whether he 17 has AIDS, and just doesn't tell anybody, he has a 18 record of his wife, he has a record of maybe 19 other sexual partners of this person, says 20 nothing. That physician would not have the 21 immunity that this statute provides to a mental 22 health provider. So within the same category of 23 health providers, this statute draws a 24 distinction, and grants the privilege of immunity Page 22 1 to one and not the other. 2 Now with respect to the statute itself, 3 we have -- in light of this title and the subject 4 being different, there's no saving clause here, 5 but I assume that in Kentucky there must be in 6 the general laws a saving clause and that would 7 take care of it. But the question is now, I 8 realize that there is the presumption of 9 validity, and if the savings clause or if you can 10 save some part of the statute, then that would be 11 the thing to do. But how do we do this? I've 12 looked at this thing, and if you take away the 13 first part and leave the cause of action, in 14 other words here's a situation where the facts 15 are clear and you've seen the -- there's a long 16 affidavit attached here as to what this person 17 did have, but aside from that, there was no 18 attempt made by this -- by Dr. Coleman to get the 19 records of this man that came to him not as a 20 referral from another psychiatrist, but he just 21 called on his own. And in the hospital that his 22 records were in, Dr. Coleman was chief of staff. 23 He didn't call for those records which had the 24 whole history of this person. Page 23 1 Now, any other physician could be sued 2 for deviation from the standard of care for not 3 looking at the records. You don't have to be an 4 expert to know that. It's like us taking a case 5 and not ever looking at the records of what the -- 6 if it's an injury case, of what the damages were 7 or what the injury was. So in any event, if the 8 court were to try to salvage this, which would be 9 the thing to do, if it can be, then of course 10 this business of no cause of action shall arise 11 against any qualified mental health professional 12 for failing to protect -- that part of it, no 13 cause of action shall arise against any qualified 14 mental health professional. 15 I suppose if that was taken out, maybe 16 it can be argued that this statute was not 17 intended to abrogate the liability of any doctor 18 for not doing the most mundane things one would 19 do when a patient comes to him. The problem with 20 that is, while that might be something that at 21 least would leave only the issue of -- an issue 22 of negligence for failure to warn, and that might -- 23 you might argue that comes in within the statute, 24 although it seems to be a provision against the Page 24 1 physician, it ends up giving him immunity for not 2 doing it. 3 If you do that, it still -- if you do 4 that, it still has that one problem of the 5 difference between the title and the subject of 6 the act. But that, I submit, is about the only 7 way one can give any reasonable credence to the 8 presumption of validity in light of how this 9 statute is put together. Now, if it's a matter 10 of that, we get down then to the question of 11 summary judgment. You get past the presumption, 12 and you want to stretch it as much as you can to 13 find it valid, which is a judicial, I won't say, 14 prerogative, it's actually what is imposed on the 15 court to find it constitutional if it in any way 16 can be. But if you do that, then you get down to 17 what does it mean. They say here that unless the 18 patient has communicated. Well, I suppose one 19 can argue that could be in any way at all, and 20 therefore that word is not vague and is all 21 right. But if that is the case, then 22 communicated could mean by his observation of the 23 patient, or what he found about this patient, 24 what he diagnosed, what his diagnosis was. Page 25 1 Here's a case where the doctor says that on 2 September 11th, two days before this event, the 3 patient -- and he's got a long history here 4 before that. 5 JUDGE POTTER: I didn't understand. He 6 had said something about not getting the records. 7 He had been seeing this fellow for a couple of 8 years, right? 9 MR. RING: Yes. And for two years he 10 never got the records from Our Lady of Peace 11 Hospital where this man had been confined and 12 treated. 13 MR. BUBALO: That's not totally 14 correct, Your Honor. 15 JUDGE POTTER: When he said that that 16 sort of conjured up this picture of somebody 17 seeing the person briefly. 18 MR. BUBALO: He did get the records, he 19 got the discharge summaries, he didn't get all 20 the records. 21 JUDGE POTTER: I wanted to clear up 22 that I had it correct that he had seen him for a 23 couple of years. 24 MR. BUBALO: Yes, sir, July, 1987. Page 26 1 MR. RING: He had seen discharge 2 summaries. He had authorization to get the 3 records. The hospital was Our Lady of Peace 4 where Coleman, Dr. Coleman, is chief of staff. 5 And he also is a psychiatrist. So between that 6 and the authorization, you would expect, and as I 7 say you don't need an expert for this, you would 8 expect him to see those records, to get the 9 details, not a summary. 10 JUDGE POTTER: I didn't mean to get you 11 off the track there, it's just that I was under 12 the impression he had seen him for a couple of 13 years, and when you used the example or made the 14 statement that he hadn't gotten the records, it 15 conjures up the short-term treatment situation in 16 a malpractice case. 17 MR. RING: He did see him for a couple 18 of years, maybe once a month or whatever. But 19 that only gave him more information about this 20 patient, which leads us to this issue of summary 21 judgment. He had diagnosed him as a schizo 22 affective disorder, that is suffering from major 23 depression, had a persecution complex, paranoid 24 delusions and hallucinations. And he had Page 27 1 delusions about persecution by fellow workers at 2 Standard Gravure, accused Coleman, the doctor 3 himself, of hypnotizing him on one occasion. And 4 then finally on this September 11th visit, the 5 patient seems to have deteriorated, after these 6 two years of showing how he is having problems, 7 tangential thought, so he can't even get his 8 thoughts straight, weeping in the session, 9 increased level of agitation -- I'm reading the 10 doctor's notes -- and anger, question mark, from 11 Prozac. Patient states he now remembers sexual 12 abuse by co-workers, and has called the sex 13 crimes division. Because of deterioration, I 14 encouraged the patient to go into the hospital 15 for stabilization, but he refused. 16 Now, the sex crime, he later said in 17 his deposition, was that his foreman forced him 18 to perform oral sex on him in front of all the 19 employees. Now, you know, if you believe that, 20 then you belong in there with the patient in the 21 institution. We know that's crazy. So the 22 doctor had to realize this was delusional. In 23 either case, anyone that comes and says that and 24 he's weeping when he says that, and he's angry, Page 28 1 and he shows all this hate, and it's obvious 2 where, he's telling him on the 11th exactly where 3 it was, it's the foreman and all those people 4 there, the co-employees at the Standard Gravure. 5 With that, because he didn't want to go 6 to the hospital, the doctor leaves him go. And 7 two days later or three days later -- was this 8 the 14th -- three days later he comes in and he 9 has this mass massacre. Now I submit to you that 10 if we try to give this statute validity, then we 11 have to assume that communicated, it doesn't say 12 over what period of time, it doesn't say then and 13 there, it doesn't say how, communicated could be 14 over the two-year period, and all of it is going 15 downhill, that he's going downhill. So I would 16 say that if we got down to that, that would be a 17 question that could be fact. And then actual 18 threat, actual threat. Well, what is it. Well, 19 it's something that we can say is vague in any 20 event, an actual threat. But let's assume that 21 this, too -- now he's not a nurse, he's not the 22 janitor, he's a very qualified mental health 23 professional. These symptoms that he sees and 24 what this patient says to him -- he's a Page 29 1 psychiatrist. A lot is how he looks, and what he 2 says, and what he's saying. You just can't take 3 it as something you leave the room and let him 4 talk into the recorder. 5 So I would say that whether or not an 6 actual threat, based on what happened on the 11th 7 and the two-year history, could be found to be 8 something that was communicated. And will submit 9 to you, on that basis, if we were trying to save 10 the statute, and I don't know why, but if we were 11 because you have a duty to stretch whatever to 12 the points of legitimacy, all of the things there 13 that it says to try to find it constitutional, I 14 would say it then would boil down to a question 15 of expert testimony. 16 And on that base, we have the Steelvest 17 case, versus Scansteel, which is again the 18 Supreme Court of Kentucky, and it's a 1991 case, 19 April 16, 1991. And that's 807 SW2d 476. In 20 that case, in going around as to what the 21 standard is, and in most states it's similar, 22 that there must be a triable issue of fact, but 23 the Kentucky court, on page 480 of that decision, 24 is that there is no triable issue when, as a Page 30 1 matter of law -- and I'm reading from page 480, 2 Your Honor, we're under the heading summary 3 judgment practice in Kentucky court. When as a 4 matter of law it appears that it would be 5 impossible for the respondent to produce evidence 6 at the trial warranting a judgment in his favor. 7 Well, with that, we have about a 8 ten-page affidavit of a highly qualified 9 psychiatrist who had been licensed in Kentucky, 10 not licensed in Illinois, Dr. Gray. And he 11 delineates -- I think it's about ten pages -- 12 various things in these records that should have 13 alerted, and should have warned Dr. Coleman that 14 this man was a danger to himself, and how he had 15 admitted, I think in the hospital, I think in the 16 records in Our Lady of Peace, that he was 17 suicidal. Suicidal, Dr. Gray, in his affidavit, 18 points out, has the same connotation as 19 homicidal, and the same symptoms and the same 20 problems that you find in the suicidal exists in 21 a homicidal. 22 Now when you take that affidavit, and I 23 know the hour is late and I don't pretend to know 24 every detail in that affidavit, but when you take Page 31 1 all of that, at the very least, if you were to 2 sustain the constitutional validity of this 3 statute, and you would have to look at that 4 affidavit and see that, and that it makes out a 5 case where there is a legitimate issue -- 6 JUDGE POTTER: He goes even further 7 than that, doesn't he? Doesn't he go in and say 8 not only should Dr. Coleman have known it, but my 9 feeling about this fellow and everything I 10 believe, he did go in and say -- I can't find his 11 affidavit here. 12 MR. BUBALO: Your Honor, that's 13 correct. 14 JUDGE POTTER: His affidavit is that 15 I'm an expert, and I can tell you what crazy 16 people like this say when they go to see a -- 17 MS. ZETTLER: Number eight. 18 JUDGE POTTER: He's going to say that 19 my expert opinion is that that man went in and -- 20 confessed is the wrong word, laid out his plans 21 to Dr. Coleman. Doesn't he go and say that? 22 MR. RING: He says that if you look at 23 it as a psychiatrist, that this is what Wesbecker 24 was telling Dr. Coleman in so many words. Page 32 1 JUDGE POTTER: Maybe I missed it. I 2 thought he was going to actually say -- maybe 3 that was just the argument that if he told his 4 next door neighbor and told all these people -- 5 I'm sure he told Dr. Coleman, but go ahead. 6 MR. RING: I'm not even basing it on 7 that. I find it hard to believe, but it's 8 possible, that he never told Dr. Coleman. But 9 the fact is, we're basing this on one 10 psychiatrist's analysis of the records and the 11 history of this patient as to whether or not this 12 patient would have, to a reasonably qualified 13 psychiatrist, as Dr. Coleman, which Dr. Coleman 14 was, would have and should have known that based 15 on his examination and the findings from his 16 examinations, that this man was about to commit 17 some violent act. And the fact that he comes up 18 and conjures this fantasy that he was forced to 19 do this in front of all these people shows that 20 he is now giving what he's going -- what he's at 21 least got planned. He may change his mind, but 22 that's not the test. The test is that at that 23 time he should have committed him, saved him from 24 himself and saved him from massacreing all these Page 33 1 people. And I submit that this is a triable 2 issue for a jury. 3 JUDGE POTTER: Does anybody else, 4 before Mr. Bubalo says what he's going to say, 5 does anybody else want to support Mr. Ring's 6 position or the plaintiffs' position, do they 7 have anything they want to add? Mr. Crady, I 8 know you filed something. 9 MR. CRADY: Basically it says the same 10 things as he says. 11 MR. BUBALO: If I could approach the 12 bench here and give you just a copy of the 13 statute here and my argument if you don't mind. 14 JUDGE POTTER: I've got it right here. 15 MR. BUBALO: Okay. And there are a 16 couple of other attachments, Your Honor, from 17 depositions. 18 JUDGE POTTER: All right. 19 MR. BUBALO: Since Mr. Ring started 20 with a constitutional issue, I'll start with that 21 issue and respond directly to what he referred to 22 correctly as the open court provisions. I will 23 say to the court that part of my argument will 24 be, however, to assume that the statute is Page 34 1 ambiguous and unconstitutional. Despite that, I 2 think it still sets out the criteria that has to 3 be imposed as a duty of standard of care here for 4 Dr. Coleman, and Dr. Coleman's interpretation of 5 that statute as well as the other members of the 6 psychiatric community's interpretation would have 7 to rule here. 8 JUDGE POTTER: You agree with Mr. Ring 9 that it's unconstitutional? 10 MR. BUBALO: No, I don't agree with it. 11 I say even assuming arguendo that that's true, 12 I'm going to demonstrate to the court -- 13 JUDGE POTTER: My reading of the 14 statute and where things are now, I think you 15 better -- to get out on a summary judgment, 16 you're going to have to plead the statute. 17 MR. BUBALO: Yes, sir, I understand 18 that. And later on I'm going to address that. 19 But let me say that we don't believe that the 20 statute is unconstitutional, we don't believe 21 that it is ambiguous, and specifically he relies 22 on the open court provisions, he believes that it 23 curtails a cause of action which exists before 24 the enactment of the Kentucky Constitution. And Page 35 1 Mr. Ring then cites the case of University of 2 Louisville versus Hammock, and claims that that 3 is an indication that this cause of action 4 existed before the Constitution, and therefore 5 this is curtailing an action that existed and 6 unconstitutionally doing so. 7 In response, I think that through law 8 school, I can remember the absolute, I guess, 9 controversy that came off when the California 10 courts first decided that Tarasoff versus the 11 Regents of the University of California, that was 12 in 1976. And the reason there was such a 13 controvery, and the reason there were so many law 14 review articles written on Tarasoff, and Your 15 Honor, I think we could have filled our brief on 16 that subject, we could have string cited fifty 17 law review articles on Tarasoff, and it's because 18 that case set out a different standard of care, 19 different duty to third parties, than had 20 typically been imposed in the past. Under common 21 law, it had been typically ruled that there is no 22 duty to third parties, but only duty between 23 physician and patient. And what the patient did 24 to the third party would really be no concern of Page 36 1 the psychiatrist. Tarasoff -- 2 JUDGE POTTER: Where did the 3 restatement get its idea that -- the restatement 4 is before '79, isn't it? 5 MR. BUBALO: Yes, sir. That said that 6 in certain instances where there is a special 7 relationship between the committer -- the person 8 who would commit the criminal act, and another 9 person charged with a duty, then that special 10 relationship might then impose a duty. 11 JUDGE POTTER: What are they talking 12 about in '65 when they did that? When they put 13 the restatement together, what factual situations 14 did they have in mind? 15 MR. BUBALO: Specifically they were 16 thinking about an imposition of liability where 17 someone commits a criminal act. And generally we 18 have a situation where, you know, when does, for 19 instance, a psychiatrist, a probation officer -- 20 JUDGE POTTER: I'm not making myself 21 clear. In '79, in the California case, you say 22 was a bolt out of the blue. 23 MR. BUBALO: 1976, it was a new 24 imposition. Page 37 1 JUDGE POTTER: A new imposition. And 2 we have 1965 they did the restatement of torts, 3 and Section 300, whatever it is, that that says 4 where you've got a special relationship. 5 MR. BUBALO: Yes, sir. 6 JUDGE POTTER: So something was going 7 on before 1965 to make them put that in there, 8 and what I want to know is what factual situation 9 were they dealing with, were they talking about 10 prisons or -- because I haven't read the comments 11 to three or whatever it is. 12 MR. BUBALO: Your Honor, and I can't 13 cite to you specifically what factual situations. 14 I know that Tarasoff, and I think this is 15 correct, and for purposes of the constitutional 16 argument, I think it might be irrelevant whether 17 it's 1965 or 1976. In any case, what we're 18 dealing here is when does a doctor have liability 19 due to another person's criminal acts. And 20 Tarasoff was certainly, if not the first case, 21 the most prominent case and oft cited case where 22 this duty was imposed upon a psychiatrist, in 23 particular where it was held that the duty to the 24 patient was not outweighed by the duty to the Page 38 1 third party, and that confidentiality to the 2 patient could be overcome by the danger to the 3 third party that the patient might present. And, 4 so, the California court waived these two 5 interests, the interests of the patient and 6 confidentiality, and the relationship between the 7 psychiatrist and the patient, and decided that in 8 certain instances, where the patient was 9 dangerous, the psychiatrist had a duty. 10 The first time that interpretation was 11 imposed in Kentucky was in 1988, which we cited 12 to you in the brief, Your Honor, Evans versus 13 Moorehead, and in that case a psychiatrist was 14 treating a patient, the patient shot somebody who 15 he thought the -- he thought was having an affair 16 with his eighty year old wife, and it was held 17 that Tarasoff was the duty in Kentucky. That's 18 the first time that our Kentucky courts imposed 19 that duty. Interestingly, in that case, 202A.400 20 was cited, and it was argued that it should be 21 applied retroactively. And the court said that 22 we are not going to apply it retroactively. 23 Implicitly, then, the decision in that case or 24 before the Court of Appeals, at least, seemed to Page 39 1 rule that if this statute did apply to this 2 particular instance, we might have had a 3 different result. 4 JUDGE POTTER: They're just taking the 5 easy way out. 6 MR. BUBALO: Okay. Well, that's one 7 point I don't have. You don't buy that point, 8 fine. 9 Your Honor, but going on, the point 10 about constitutionality still remains. The case 11 that University of Louisville versus Hammock, 12 that is cited as an evidence by the plaintiff 13 that this duty was imposed even before the 1988 14 case, is inapplicable because here we're talking 15 about in that case a duty to a patient. 16 JUDGE POTTER: That's the 1907 case? 17 MR. BUBALO: Yes, sir. If you read 18 that case, it's talking about the duty to a 19 patient in the infirmary of the University of 20 Louisville. So we're not talking about a duty to 21 a third party, we're talking about -- 22 JUDGE POTTER: I'll agree with you that 23 if that case was in the brief, I didn't pick it 24 up very carefully, and it's one of those Page 40 1 interesting cases of the past that you can link 2 together and do something. One of my questions 3 to Mr. Ring was going to be if they passed this 4 statute in 1945 and put it in the positive 5 instead of the negative, it would have been a 6 plaintiff's statute. 7 MR. BUBALO: I think that's right, Your 8 Honor. I think that Tarasoff, and it's widely 9 recognized, I'm not sure that we even have to 10 argue that Tarasoff was a new occurrence in the 11 law, and we could cite, as I say, law review 12 after law review on that point. But more than 13 that, is the reaction to Tarasoff, and I think 14 that's important in deciding this case today. 15 Your action to Tarasoff came from the state 16 legislature. And fourteen states enacted 17 legislation meant to curtail the duty set out by 18 Tarasoff. So when the Kentucky General Assembly 19 imposed this duty set out in 202A.400, it was in 20 a clear legislative context where Tarasoff was 21 being rejected by some quarters, and the rather 22 ambiguous duty imposed by Tarasoff was made clear 23 by statutory language. And in fact it was, I 24 think -- it's really beyond debate that Kentucky Page 41 1 fell into that category of state where mental 2 health professionals needed clarification as to 3 exactly when they could violate the 4 confidentiality of their patients, and when they 5 may not be able to violate the confidentiality of 6 their patients. 7 Tarasoff left that up in the air 8 because Tarasoff, as you know, Your Honor, 9 imposed just the general duty of due care that a 10 physician is supposed to render to a patient 11 without any clear delineating black and white 12 line as to exactly when that psychiatrist can 13 cross over that line, violate the confidence of 14 his patient, which is the most sacred to 15 psychiatry, and announce to the world that he 16 thinks his patient is violent or may threaten 17 some third party. It's quite a quandary to put 18 any professional in, and I submit, Your Honor, 19 it's unique to being a psychiatrist. That's 20 exactly plainly why this statute was enacted by 21 Kentucky, along with fourteen other states, all 22 cited in my brief at page eleven, and if the 23 court cared to, they could -- the court could 24 review all those other statutes -- Page 42 1 JUDGE POTTER: Let me ask you this: 2 Was this a Kentucky concoction or was there some 3 kind of uniform psychiatrist act that they passed 4 around? 5 MR. BUBALO: There was no uniform act, 6 Your Honor, but there were tremendous 7 similarities among most of the statutes which are 8 apparent upon review of the statute. I think 9 four other states used the criteria of actual 10 threat, some said threatened, some said explicit 11 threat, some said serious threat. But the intent 12 from all the statutes and all the commentators on 13 this subject have been clear, and that is it was 14 meant to zero in on the Tarasoff duty which was 15 found to be somewhat ambiguous, and left 16 psychiatrists scratching their heads as to when 17 they should violate the confidentiality 18 provisions. 19 So bringing this into context, bringing 20 this statute into context, I think that it's 21 really beyond debate that this statute was a 22 reaction to Tarasoff, that Tarasoff was a new 23 imposition of liability on a psychiatrist, and 24 that clearly the legislative intent here -- Page 43 1 because there would be no other reason for 2 enacting this statute. Clearly the legislative 3 intent was to delineate with a clear black and 4 white line when that psychiatrist could step over 5 and reveal the confidences of his patients. 6 Now that after you understand the 7 context of this statute and why it was enacted, I 8 think you understand why it's constitutional. 9 JUDGE POTTER: Assuming I'm going to 10 apply it, and assuming it gets applied the way 11 you think it should, that the man has to come in 12 there and actually say something, why are you 13 entitled to a summary judgment? Haven't they put 14 up enough where people could say he's going 15 around telling all his neighbors he's going to do 16 it, he's distraught, this is the man he trusts? 17 I kind of think he told him. 18 MR. BUBALO: I don't think, Your Honor, 19 that we necessarily can have a reasonable 20 inference from those facts alone. Can we impose 21 liability on the police because a criminal 22 published at large to his buddies and his friends 23 that he might go out and rob this Convenient 24 store, and therefore we'll assume that he also Page 44 1 told the police. I think that would be an unfair 2 and ridiculous inference. I think that we're 3 asking for -- 4 JUDGE POTTER: So you say that to get 5 over this statute, you would either have to have 6 a note in the doctor's file or a doctor himself 7 saying yep, he came in and told me. 8 MR. BUBALO: I think that you would 9 have to have some clear evidence from testimony 10 from third parties who were present, testimony, 11 for instance, that -- 12 JUDGE POTTER: Mister Wesbecker, if he 13 hadn't killed himself. 14 MR. BUBALO: That Mister Wesbecker -- 15 no, that Mister Wesbecker's said to his son, 16 Jimmy, perhaps, I told the psychiatrist that I 17 was going to do this, some note, some indication, 18 some evidence that there is some sort of -- 19 JUDGE POTTER: You can't prove it by 20 circumstantial evidence. 21 MR. BUBALO: Your Honor, I think in 22 order to prove by circumstantial evidence here, 23 what you're going to have to prove is perjury on 24 the part of my client. Let's call a spade a Page 45 1 spade, that he's a liar, and that in order to 2 prove that he's a liar, I think that there should 3 be some more substantial evidence, some modicum 4 of proof other than just, gosh, somebody could 5 believe somewhere that Dr. Coleman is a liar 6 because Wesbecker must have told all these other 7 people about threats, and therefore he told 8 Wesbecker. 9 I think the only real inference that 10 you can draw from this situation is that Dr. 11 Coleman was the last person Wesbecker would have 12 told about this plot, he was maybe second only to 13 the police as to the person who could have 14 stopped Mister Wesbecker. Mister Wesbecker 15 understood, and I cite in the brief the situation 16 where -- his family's deposition, where he 17 understood that Dr. Coleman had the power to 18 institutionalize him. His greatest fear was 19 being institutionalized. Why would he, a few 20 days before he planned this event, walk in to 21 Coleman and confess to the very man who could 22 stop him instantly by putting him into an 23 institution. It's a ridiculous inference. 24 The other ridiculous inference is why Page 46 1 in the world would any psychiatrist who was aware 2 of this statute, that he had no problem with 3 violating confidences, if he had an actual 4 threat, why would any psychiatrist risk it, what 5 difference would it make as far as one patient 6 was concerned. We are asked to believe by the 7 plaintiffs that Mister Wesbecker walked in and 8 said you know, Lee, you know what I'm going to 9 do, I'm going to take an AK47, and I'm going to 10 wipe out all of Standard Gravure. And then we're 11 asked to believe that Dr. Coleman just sat there 12 and said see you in two weeks. Uh-uh, 13 ridiculous. It is ridiculous to think that that 14 happened, especially in this air of liability, 15 and especially in light of the fact that Dr. 16 Coleman was in absolutely no danger under that 17 situation to immediately write it down in his 18 notes, go to that phone, call the police, call 19 Standard Gravure. No jury should be allowed to 20 consider perjury charges, accusations of perjury, 21 in this situation. 22 JUDGE POTTER: Has anybody asked Dr. 23 Coleman if he ever reported anybody in his whole 24 career like that? Page 47 1 MR. BUBALO: He has, and I've actually 2 been involved in a situation like that. 3 JUDGE POTTER: Go ahead. 4 MR. BUBALO: In any case, Your Honor, I 5 think that when someone in a courtroom and a jury 6 stands up, points a finger and says that man is a 7 liar, that man is a perjurer, there has to be 8 some further evidence than is in this record, 9 there has to be clear and convincing 10 circumstantial evidence. We cite three ways in 11 which perjury can be, can be proven. 12 Circumstantial evidence is one of the ways that 13 it can be proven. But there has to be some 14 reasonable inference from that circumstantial 15 evidence. And this is an unreasonable inference, 16 it's a ridiculous inference to think that Lee 17 Coleman would sit there and say oh, okay, go and 18 get your AK47, I know I can call the police, I 19 know I can stop you, involuntarily commit you, 20 which I wanted to do anyway, but was afraid to 21 do, and then have the result that happened here. 22 In fact we cite to you, Your Honor, two 23 cases, Acooler versus Rubithin, and Farmer's Bank 24 versus Jones. And those cases state, and I Page 48 1 quote, the law presumes honesty and fair dealings 2 among people until the contrary has been shown. 3 And the court cannot anticipate or presume 4 dishonesty and unfair dealings until such has 5 been clearly established. There is no clear and 6 convincing inference from this, there is only a 7 question mark, and that is not sufficient to 8 prove perjury. 9 But I would like to return for a second 10 to the idea of constitutionality, and let me 11 underline this so the court has no question on 12 this point. Let's assume arguendo for a second 13 that this is unconstitutional and ambiguous, just 14 assume it for just a second. I don't think that 15 you can fairly assume that, we disagree with it 16 vehemently, but let's assume it for the sake of 17 this argument. We have a situation here where a 18 retroactive unconstitutionality would be imposed. 19 Unconstitutionality should not be imposed 20 retroactively, otherwise good citizens, assuming 21 that they are conforming to the law, would be 22 unfairly treated. 23 And just let me give you one example of 24 that situation, it's a gross example and may be a Page 49 1 simplified example, but suppose it was ruled 2 unconstitutional that all doctors should travel 3 at ten miles an hour through Broadway, down here 4 in Louisville, versus thirty miles. The state 5 trooper rings the door bell on the doctor and 6 says, I'm sorry, Doctor, but you were traveling 7 thirty miles an hour on Broadway, and the doctor 8 says well, there was a sign out there thirty 9 miles an hour, and the state trooper concedes 10 yes, there is a sign thirty miles an hour, but 11 gosh, the Jefferson Circuit Court, the Court of 12 Appeals of Kentucky, the Supreme Court ruled that 13 unconstitutional. And now we're going to take 14 you to prison for the many, many times you've 15 been traveling down Broadway back and forth at 16 thirty miles an hour thinking that you somehow 17 were conforming to the law when in actuality, you 18 were violating the law. It's totally unfair, 19 it's the principle of retroactivity that pervades 20 our judicial system here. 21 This is exactly what will happen if 22 this court rules not only, one, that the statute 23 is unconstitutional, but two, gosh, we're going 24 to change the rules in the middle of the stream Page 50 1 here for Dr. Coleman, we're going to change them 2 and we're going to say we know you read the 3 statute, Doctor, we know you thought you had a 4 clear line, and that an actual threat had to be 5 communicated, but we're going to change all those 6 rules and tell you now we're going to impose 7 Tarasoff. 8 JUDGE POTTER: Let me ask you this: 9 Did he say yes, I thought the person was going to 10 go do something to other people, but since it 11 wasn't communicated to me, I was afraid to breach 12 the doctor/patient privilege? 13 MR. BUBALO: Your Honor, one of the 14 issues we have here is that he was aware of the 15 statute at the time he treated the -- and that's 16 actually the handout that I gave you in his 17 September 9, 1983 deposition at page fifteen. He 18 gives his understanding of the statute, which is 19 consistent with what we are saying the statute is 20 here. And he also talks about how he understands 21 that, and I'll quote him, I haven't thought about 22 that before, but I assume if someone said I'm 23 going down to the post office and shoot up the 24 place, to me that might not be a definite victim Page 51 1 involved but a threat of hurting people or some 2 instance like that. In other words, he believed 3 this statute -- I have to tell you, every 4 psychiatrist in the training program at the 5 University of Louisville, which we'll prove at 6 trial, which I hope we won't have to prove at 7 trial, but we certainly can, all of them believe 8 that. 9 JUDGE POTTER: But the question is, did 10 he testify that he relied on that statute, in 11 other words he said, you know, being a decent 12 human being, I really ought to call up Standard 13 Gravure and tell them something is afoot, but 14 they have imposed the arbitrary things on me and 15 I can't call. 16 MR. BUBALO: Well, he did rely on the 17 statute, he didn't testify exactly as you state. 18 I can't tell you that he wasn't asked that 19 specific question, necessarily, but, Your Honor, 20 he knew about the statute, and he knew his 21 duties, and he knew also when he could without 22 fear violate the confidence of his patients. 23 And, so, it's certainly an acceptable inference 24 from those facts. Page 52 1 JUDGE POTTER: I assume he testified 2 that he had no clue that this man was about to go 3 out and murder a bunch of people. 4 MR. BUBALO: He did testify to that. 5 JUDGE POTTER: He had no clue. 6 MR. BUBALO: That's right. 7 JUDGE POTTER: So he didn't rely on the 8 statute. 9 MR. BUBALO: Well, it didn't even occur 10 to him, Your Honor, that this fellow was going to 11 commit these acts. But when you say he didn't 12 rely on the statute, you're asking whether we 13 should retroactively apply a different standard 14 here, and I don't think that -- I think that this 15 court has to impose a duty on Dr. Coleman, it has 16 to decide as a matter of law what that duty was. 17 And if the court rules this statute 18 unconstitutional, then Dr. Coleman would be 19 applying a different rule than what he was 20 looking at. 21 JUDGE POTTER: No, he didn't apply any 22 rule. What you're telling me is, and I don't 23 want to sound like I've made up my mind, but your 24 argument that you can't apply unconstitutionality Page 53 1 retroactively, it struck a cord with me. You 2 told me that the doctor didn't testify that he 3 thought -- that he had a clue that the man was 4 going to Standard Gravure, so therefore he didn't 5 rely on the statute. 6 MR. BUBALO: I beg to differ with you. 7 I think that he relied on the statute to the 8 extent that he understood what his duty of care 9 was to third parties. With all due respect, Your 10 Honor, I think the issue here is what is the duty 11 to third parties. Dr. Coleman wasn't even 12 thinking about that duty at that point because 13 the events that he had been trained in residency, 14 didn't occur. He didn't receive an actual 15 threat. 16 JUDGE POTTER: How old is Dr. Coleman? 17 MR. BUBALO: I've forgotten, I guess in 18 his mid to late forties, something like that. 19 JUDGE POTTER: He was still doing his 20 residency in 19 -- 21 MR. BUBALO: His residency was in 1984, 22 and he had heard about the statute, as every 23 psychiatrist had, through his practice. I mean 24 with all due respect -- Page 54 1 JUDGE POTTER: I was going to see if I 2 could catch you. 3 MR. BUBALO: He did go through in 1984. 4 They passed the statute -- the statute didn't 5 become effective until a much later date, but 6 people understood what the statute was going on. 7 I don't think, Your Honor, that -- you have to 8 understand how a doctor will think. He will 9 think in the same terms as a lawyer. When a 10 lawyer spots in a group of facts an issue, then 11 there's a red flag on that issue, and the lawyer 12 then understands that he has to react to that, 13 he's trained to react to that. Dr. Coleman was 14 trained to react, and whether he was trained in 15 his residency or later, he was certainly trained 16 to react, that when an actual threat occurred, 17 that's when his duty to a third party emerged. 18 Now whether he would have reacted 19 differently had he known that Tarasoff applied, 20 and if Tarasoff applied, then he has to have some 21 nebulous standard of care where he has to try to, 22 I guess, guess the future on a clinical 23 presentation. That shouldn't even be asked Dr. 24 Coleman in this situation. Page 55 1 The point is, the court has to decide 2 what is the duty of standard of care that a 3 psychiatrist had in 1989, and if that duty of 4 standard of care is the statute, whether it's 5 unconstitutional or not, that's the duty that has 6 to apply. And it's fair to impose that duty on 7 Dr. Coleman when he was expecting to be judged by 8 those rules, not the Tarasoff rules. 9 JUDGE POTTER: I'll tell you what, as I 10 said at the very beginning, I'm not going to rule 11 on this from the bench, I'm going to take it 12 under submission. Let's plan on what we're going 13 to do with the motion to continue. Why don't we 14 take -- Mr. Stopher gave me an expanded -- let's 15 take about a five-minute recess while I read the 16 expanded things. 17 (A SHORT RECESS WAS TAKEN.) 18 JUDGE POTTER: I have now had a chance 19 to read Mr. Stopher's expanded objection. 20 MR. BUBALO: Your Honor, if I could 21 just -- a housekeeping issue here on the summary 22 judgment motion that I would want to point out to 23 the court, and that is I think that -- and I 24 think the court intends to do this, but this is a Page 56 1 legal issue where the guidance of the court is 2 going to be very helpful, and so I assume that 3 the court will be writing an opinion on what duty 4 exists here one way or the other. And the reason 5 I say that is, for instance, let me just give an 6 example. Suppose the court feels that the 7 statute is unconstitutional but there's a 8 credibility issue. At that point, that changes 9 the complexion of expert depositions, and in fact 10 the question emerges as to whether we need 11 experts as to Dr. Coleman because you're really 12 trying the issue regarding his credibility -- 13 JUDGE POTTER: I went back and read the 14 other fellow's affidavit, and one of the issues I 15 had marked down to talk about today is whether 16 expert testimony would be appropriate in trying 17 to determine whether Mister Wesbecker came in the 18 doctor's office and said I'm going to shoot 19 people. But I went back over his affidavit and 20 although the brief says that he said yes, he did 21 communicate it, it's the expanded definition of 22 communication which means word, deed, putting all 23 the parts together. 24 MR. BUBALO: The clinical presentation Page 57 1 is what he's saying to a psychiatrist. 2 JUDGE POTTER: Mr. Bubalo, I can't 3 guarantee, I mean if I'm going to rule against 4 you, I may decide to bluff it and say well, even 5 if you interpret it this way, the jury could 6 believe that because he told everybody else, he 7 told the doctor, and therefore I don't have to 8 make up my mind what the instructions are going 9 to be at this time. I can't guarantee that I'm 10 going to do that. 11 MR. BUBALO: I can only say that I 12 think it's difficult to talk about it. I suppose 13 then everything would be open then in trial, 14 basically all evidence would come in. 15 JUDGE POTTER: It would, and quite 16 frankly even if I did what you say, I ruled that 17 the statute is constitutional, but there is an 18 argument which a jury could reasonably believe 19 that he came in and stated flat out that he was 20 going to shoot somebody. The only part of that 21 order that's an order is the one word deny, so I 22 suspect if it got to trial, somebody could argue 23 with me and change my mind. Do you understand 24 what I'm saying? I mean the only thing you will Page 58 1 get out -- in the summary judgment, the only 2 thing that a winner or loser gets is the word 3 denied or sustained, and everything else anybody 4 does is window dressing at the trial level. It's 5 not like a trial where when I make a finding, the 6 Court Of Appeals has to defer to it and give it 7 some sort of deference. 8 MR. BUBALO: I understand what you're 9 saying, Your Honor, but -- 10 JUDGE POTTER: If I deny your motion, I 11 will try and give you some idea of why I'm doing 12 it so you'll know what to expect. But I can't 13 guarantee it. 14 MR. BUBALO: If it doesn't come up in 15 this context, it will come up in a motion in 16 limine, and it would come up in instructions, it 17 would come up in repeated objections during 18 trial, and it will greatly simplify things. 19 JUDGE POTTER: I'll do my best. 20 On the motion for continuance, does 21 anybody have anything they want to say in 22 opposition to it other than Lilly, because they 23 filed something in writing? 24 MR. BUBALO: Your Honor, I would only Page 59 1 say that Dr. Coleman also just says exactly what 2 Lilly says in its memorandum. 3 JUDGE POTTER: And I don't know whether 4 I ought to address Mr. Ring or Ms. Zettler, but 5 I'll tell you what I'm thinking about is passing 6 this thing to like the second week in January. 7 You all have January 1 as your expert -- that's 8 when it's been moved to. 9 MS. ZETTLER: We haven't gotten an 10 order either way. 11 MR. STOPHER: That's been the rule by 12 the Commissioner Clayton. 13 MS. ZETTLER: I understood that we were 14 getting more time. 15 JUDGE POTTER: There may be some orders 16 by Commissioner Clayton in addition to the ones 17 that I mentioned earlier that are going to go 18 out, and if you want to look at the file, please 19 feel free to do that. What I thought would be a 20 big help to me in deciding on this is to see the 21 plaintiff's expert and a report by the 22 plaintiff's expert as to what he or she thinks 23 Lilly's done wrong, and that will give me a clue 24 as to the context in which to view this thing. Page 60 1 If the plaintiffs have no person at this point 2 that's prepared to make a report, I think it's in 3 one context. If they have somebody that says 4 yes, Prozac is bad, and these are the reasons why -- 5 MS. ZETTLER: If I may, it's not so 6 much not having a person that could elucidate on 7 some of this stuff that we're claiming in our 8 motion, it's a matter of needing more information 9 on those issues that we raised in a motion for 10 them to come to a -- I think that they can come 11 to an opinion at one point, but I don't want to 12 be blind sided later on for explanations why the 13 German government saw a heck of a lot more than 14 the FDA in the Lilly research, and saw some 15 serious problems with the drug. And in fact, 16 what Mr. Stopher doesn't mention in his response 17 is that in 1985, the German government rejected 18 their petition for marketing of the drug in 19 Germany. It wasn't until the past three years 20 that it was finally approved. This is an issue 21 that's been raised real recently -- or that has 22 come to light real recently that there was a 23 disagreement as far as Germany and what the FDA 24 found, and I sure as heck would like to see what Page 61 1 was submitted to the EPA. I understand from the 2 deposition I took a few days ago there was a 3 two-volume response to questions set out in one 4 of our exhibits. None of this stuff has come to 5 light until Commissioner Clayton did an en camera 6 review of documents that was held as trade 7 secret. 8 I can get you probably a report as to 9 what our experts feel are relevant, what the 10 issues are at this point, but I would argue that -- 11 and I will be happy to do that, but I would argue 12 that a lot of the stuff that we're asking for, a 13 lot of the time that we needed to take the 14 depositions and things, are going to be used to 15 support their opinions. 16 JUDGE POTTER: I haven't seen the 17 documents, but I suppose no one has any reason to 18 believe that the numbers put out in Mr. Stopher's 19 second response of half a million pages of this, 20 and a couple of hundred thousand pages of that, 21 are incorrect. It just seems like there's an 22 awful lot on the plaintiff's plate right now, and 23 it would give me a context in which to view this 24 thing. If I could see someone's expert opinion Page 62 1 that I'm so and so, these are my credentials, I 2 have reviewed X, Y and Z, and I think that Lilly 3 is at fault because of A, B and C, and with some 4 detail. And that would give me, you know, a 5 context in which to view this thing, because I 6 agree with Lilly in here when they say this thing 7 would never be tried if you had to get 8 everything, because there's always going to be 9 stuff, there's always going to be another rabbit 10 to chase, always going to be something. And, you 11 know, this stuff that's been going on for how 12 long -- have they ever tried the first NDA one 13 yet? 14 MS. ZETTLER: No. In fact, we're 15 having a status on that on Wednesday. 16 JUDGE POTTER: Well, the NDA documents, 17 and that's been going on for a long time. So you 18 have the preparation and review of those 19 documents, those depositions. What do you want 20 to say, Ms. Zettler? 21 MS. ZETTLER: Well, like I say, I will 22 be perfectly happy to get the expert reports from 23 the 1st. As far as the number of documents that 24 have been allegedly produced in this case to Page 63 1 date, while it is true that we do have almost two 2 hundred thousand pages of documents that we have 3 gotten in preparation for a number of depositions 4 that have been taken so far to date, a lot of 5 those documents are repetitive, first of all. 6 And second of all, the as far as the IND/NDA is 7 concerned, they keep raising that as a red 8 herring. We have looked at those documents, and 9 these documents are not in there. And frankly, 10 we go straight from the book and inundate 11 plaintiffs with all kinds of paper and say you 12 find the needle in the haystack. Well, we've 13 found the needle in the haystack. The German 14 documents -- I mean we're we're talking about an 15 issue that's finally coming to light, the 16 rechallenge protocol, the German documents. 17 There are issues and facts that are coming to 18 light that I think, frankly, in certain 19 circumstances were produced inadvertently, and in 20 other circumstances, were withheld as trade 21 secret until Commissioner Clayton said produce 22 it. So we're talking about, yes, three and a 23 half years of a lawsuit here, but these documents 24 were all documents that were requested early on Page 64 1 in this case, they have been withheld until they 2 have been forced to turn them over, and now we 3 want to know what else it going on with these 4 facts. And I think we have a right to it. And 5 it's not like we haven't been doing anything, 6 Judge, we've been taking all kinds of depositions -- 7 JUDGE POTTER: I agree that in the last 8 year or so -- the number of two hundred and 9 something, two hundred and ninety-two is correct, 10 depositions? 11 MR. STOPHER: Yes, sir. 12 JUDGE POTTER: I am going to push this 13 to the first of the year because if I did 14 anything on it today, I would be correct in 15 saying he's entitled to more time. Do you have a 16 day in the first part of January when you're 17 supposed to be here? 18 MR. STOPHER: No, sir. I take that 19 back, Judge, she did give us this morning, 20 fifteen or thirty minutes on January 3rd at 10:30 21 on -- 22 JUDGE POTTER: She being Ms. Clayton? 23 MR. STOPHER: No, the clerk of your 24 court on that motion. Page 65 1 JUDGE POTTER: Oh, the doctor -- 2 MR. STOPHER: Right. That's the only 3 date that's pending, Judge. 4 MS. ZETTLER: Your Honor, if it's 5 possible, could we make that in the afternoon? 6 JUDGE POTTER: The only trouble is that 7 I am going to ask you to have some kind of report 8 on who your -- by an expert of where he or she 9 thinks your case stands as to liability against 10 Lilly, and I'm just thinking January 3rd may be a 11 little close for you. 12 MS. ZETTLER: It may be a little tight 13 with the holidays. 14 JUDGE POTTER: I've got a whole 15 afternoon marked out Friday, January 21st. Is 16 that something we set a long time ago for a 17 status conference? 18 MS. ZETTLER: I believe so, yes. If I 19 remember correctly, we did have a status set on 20 that day. 21 JUDGE POTTER: Motion to continue, is 22 there any reason I can't pass it until January 23 21st at 1:00 o'clock with maybe the plaintiff to 24 file their expert report by January 18th? Page 66 1 MS. ZETTLER: That should be fine, Your 2 Honor. How does that fall in line with what 3 Commissioner Clayton has ruled on the expert 4 disclosure, is that January 21st? 5 JUDGE POTTER: Somehow I had the 6 impression she already told you that was January 7 21st. It was much further, and then a couple of 8 them got pushed back, and I was under the 9 impression it was January 21st because I asked 10 her about that. Let me think about this for a 11 second. Obviously your expert can put in the 12 report whatever he or she thinks is appropriate 13 to protect them from, you know, getting boxed in 14 about having made up your mind before you saw 15 this or you made up your mind before you saw that 16 or whatever, but I do think it has to be a report 17 that points a finger and tells why they're 18 pointing a finger. 19 MS. ZETTLER: Okay. 20 JUDGE POTTER: Anything else? 21 MR. CRADY: Did you say 1:00 o'clock, 22 January 21st? 23 JUDGE POTTER: Yes, that's what my 24 calendar shows and I think we marked that out. Page 67 1 MR. BUBALO: Your Honor, just to 2 clarify the dates, are we still on the same 3 expert schedule? 4 JUDGE POTTER: I assume so, unless 5 Commissioner Clayton has changed something, which 6 she did for some people I know because I have 7 signed agreed orders. 8 MR. BUBALO: So right now, the 9 plaintiffs must produce their experts. 10 JUDGE POTTER: Name originally by 11 January 1, and as part of this motion to 12 continue, I'm asking that they get me a report by 13 January 18th. Thank you all. 14 (THE HEARING WAS ADJOURNED.) Page 68 1 COMMONWEALTH OF KENTUCKY ) 2 : ss COUNTY OF JEFFERSON ) 3 4 I, MARY KATHLEEN NOLD, A NOTARY PUBLIC IN 5 AND FOR THE STATE OF KENTUCKY AT LARGE, DO HEREBY 6 CERTIFY THAT THE FOREGOING 7 TRANSCRIPT OF THE HEARING 8 WAS TAKEN BEFORE ME AT THE TIME AND PLACE AS 9 STATED IN THE CAPTION; THAT THE SAID PROCEEDINGS 10 WERE TAKEN DOWN BY ME IN STENOGRAPHIC NOTES AND 11 AFTERWARDS TRANSCRIBED UNDER MY DIRECTION; THAT 12 IT IS A TRUE, COMPLETE AND CORRECT TRANSCRIPT OF 13 THE SAID PROCEEDINGS SO HAD; THAT THE APPEARANCES 14 WERE AS STATED IN THE CAPTION. 15 WITNESS MY SIGNATURE THIS THE 19TH DAY OF 16 DECEMBER, 1993. 17 MY COMMISSION EXPIRES MARCH 10, 1994. 18 19 20 _________________________ MARY KATHLEEN NOLD 21 COURT REPORTER AND NOTARY PUBLIC STATE OF KENTUCKY AT LARGE Page 69 1 2 3 4 5 6 7 8 9 10 Page 70