233 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF HAWAII 3 4 SUSAN K. FORSYTH, ) Civil No. 95-00185ACK Individually and as ) 5 Personal Representative ) of the Estates of June M. ) 6 Forsyth and William D. ) PAGES 233 - 409 Forsyth, and WILLIAM F. ) 7 FORSYTH, JR., ) ) 8 Plaintiffs, ) ) 9 vs. ) ) 10 ELI LILLY AND COMPANY, ) an Indiana corporation, ) 11 et al., ) ) 12 Defendants. ) __________________________) 13 14 TRANSCRIPT OF PROCEEDINGS 15 The above-entitled matter came on for trial on Friday, 16 March, 5, 1999 at 9:15 a.m. at Honolulu, Hawaii. 17 BEFORE: THE HONORABLE ALAN C. KAY 18 United States District Judge District of Hawaii 19 20 REPORTED BY: TINA M. STUHR, RPR, CSR #360 Notary Public, State of Hawaii 21 PACIFIC REPORTING SERVICES UNLIMITED, INC. 22 733 Bishop Street Suite 2090, Makai Tower 23 Honolulu, Hawaii 96813 (808) 524-PRSU 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 234 1 APPEARANCES: 2 For Plaintiffs: ANTHONY ANDERSON VICKERY, ESQ. Archer, Waldner & Vickery 3 2929 Allen Parkway Suite 2410 4 Houston, Texas 77019 5 KAREN BARTH, ESQ. Baum, Hedlund, Aristei, Guilford 6 & Downey 12100 Wilshire Boulevard 7 Suite 950 Los Angeles, California 90025 8 ROY K.S. CHANG, ESQ. 9 Shim & Chang 333 Queen Street 10 Suite 900 Honolulu, Hawaii 96813 11 For Defendant: ANDREW SEE, ESQ. 12 MICHELLE R. MANGRUM, ESQ. Shook, Hardy & Bacon L.L.P. 13 One Kansas City Place 1200 Main Street 14 Kansas City, Missouri 64105 15 EDMUND BURKE, ESQ. Burke Sakai McPheeters Bordner 16 Iwanaga & Estes 737 Bishop Street 17 Suite 3100 - Mauka Tower Honolulu, Hawaii 96813 18 Also Present: Catherine Itai 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 235 1 I N D E X 2 OPENING STATEMENTS: PAGE 3 Mr. Vickery 244 Mr. See 282 4 WITNESSES ON BEHALF OF PLAINTIFFS 5 DENNIS KIM 6 Direct Examination by Mr. Chang 314 7 Cross-Examination by Mr. See 348 8 WILLIAM DAVID FORSYTH, III 9 Direct Examination by Mr. Vickery 358 Cross-Examination by Mr. See 389 10 11 12 13 14 EXHIBITS ADMITTED INTO EVIDENCE: PAGE 15 Exhibit 165 - Maui Police Report 320 16 Exhibit 172 - Personal Notes of June 402 Forsyth 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 236 1 THE CLERK: Civil No. 95-00185ACK, Susan K. 2 Forsyth, individually and as personal representative 3 of the estates of June M. Forsyth and William D. 4 Forsyth, and William F. Forsyth, Jr. versus Eli Lilly 5 and Company, an Indiana corporation, et al. 6 MR. VICKERY: May it please the Court. Good 7 morning, Your Honor. My name is Andy Vickery along 8 with Roy Chang and Karen Barth. We represent the 9 plaintiffs, Susan and Bill Forsyth. We're here and 10 ready for trial. 11 THE COURT: Good morning. 12 MR. SEE: May it please the Court, Your Honor, 13 I'm Andrew See. With me is Michelle Mangrum and 14 Edmund Burke. We represent Eli Lilly and Company and 15 are also ready for trial. With us is Ms. Catherine 16 Itai, who works for Eli Lilly and Company and will be 17 representing the company at the trial. 18 THE COURT: Good morning, ladies and gentlemen 19 of the jury. Whose exhibit is that? 20 MR. VICKERY: I set that up, Judge. 21 THE COURT: Would you move it, please? 22 MR. VICKERY: Yes, sir. 23 THE COURT: Thank you. 24 MR. VICKERY: You're welcome, Your Honor. 25 THE COURT: Ladies and gentlemen of the jury, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 237 1 you now are the jury in this case, and I want to take 2 a few minutes to tell you something about your duties 3 as jurors and to give you some instructions. At the 4 end of the trial, I will give you more detailed 5 instructions and those instructions will govern your 6 deliberations. 7 It will be your duty to decide from the 8 evidence what the facts are. You and you alone are 9 the judges of the facts. You will hear the evidence, 10 decide what the facts are, and then apply those facts 11 to the law which I will give you. That is how you 12 will reach your verdict. In doing so you must follow 13 that law, whether you agree with it or not. 14 The evidence will consist of the testimony of 15 witnesses, documents, and other things received into 16 evidence as exhibits in any fashion which the lawyers 17 agree or which I may instruct you to accept. You 18 should not take anything that I may say or do during 19 the course of the trial as indicating what I think of 20 the evidence or what your verdict should be. 21 Now, the parties to this case are plaintiffs 22 William D. Forsyth, Jr. and Susan Forsyth, 23 individually and as personal representatives for the 24 estates of June M. Forsyth and William D. Forsyth, Sr. 25 and the Defendant Eli Lilly and Company. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 238 1 The plaintiffs claim that their father, William 2 D. Forsyth, Sr. killed their mother, June M. Forsyth, 3 and committed suicide on March 4, 1993 because of his 4 ingestion of Prozac, a prescription antidepressant 5 medication manufactured by Defendant Lilly. 6 Plaintiffs claim that Defendant Lilly is liable 7 for damages because Defendant Lilly did not provide 8 adequate warnings concerning risks associated with the 9 use of Prozac to physicians such as the physician who 10 prescribed Prozac to William D. Forsyth, Sr. 11 Plaintiffs claim that as a direct result of 12 these inadequate warnings and his ingestion of Prozac, 13 William D. Forsyth killed his wife, June M. Forsyth, 14 and committed suicide. Plaintiffs are the surviving 15 children of June M. Forsyth and William D. Forsyth, 16 Sr. 17 The Defendant Eli Lilly and Company denies the 18 plaintiffs' claim. Defendant Lilly asserts that there 19 is no credible medical or scientific evidence to 20 support the claim that Prozac causes people to kill 21 and/or commit suicide. Defendant Lilly asserts that 22 William D. Forsyth, Sr. did not kill June M. Forsyth 23 and commit suicide because he took Prozac, but rather 24 because of his depression and other longstanding 25 mental and emotional problems, serious stressors in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 239 1 his life, including deteriorating health and marital 2 problems and his inability to cope with day-to-day 3 events. 4 Defendant Lilly also asserts that it provided 5 adequate warnings concerning risks associated with the 6 use of Prozac to William D. Forsyth, Sr.'s prescribing 7 physicians, and that in any event, any alleged 8 inadequate warnings by Defendant Lilly did not 9 directly cause June M. Forsyth and William D. 10 Forsyth's deaths. 11 Now, the following things are not evidence and 12 you must not consider them as evidence in deciding the 13 facts of this case. Number one, statements and 14 arguments of the attorneys; number two, questions and 15 objections of the attorneys; number three, testimony 16 that I instruct you to disregard; number four, 17 anything you may see or hear when the court is not in 18 session, even if what you see or hear is done or said 19 by one of the parties or by one of the witnesses. 20 Some evidence may be admitted for a limited 21 purpose only, and I instruct you that an item of 22 evidence has been admitted for a limited purpose, you 23 must consider it only for that limited purpose and for 24 no other. 25 Evidence may be direct or circumstantial. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 240 1 Direct evidence is direct proof of a fact, such as 2 testimony by a witness about what that witness 3 personally saw or heard or did. Circumstantial 4 evidence is proof of one or more facts from which you 5 can find another fact. You should consider both kinds 6 of evidence. The law makes no distinction between the 7 weight to be given to either direct or circumstantial 8 evidence. It is for you to decide how much weight to 9 give to any evidence. 10 There are rules of evidence which control what 11 can be received into evidence. When a lawyer asks a 12 question or offers an exhibit into evidence and a 13 lawyer on the other side thinks that it is not 14 permitted by the rules of evidence, that lawyer may 15 object. If I overrule the objection, the question may 16 be answered or the exhibit received. If I sustain the 17 objection, the question cannot be answered and the 18 exhibit cannot be received. Whenever I sustain an 19 objection to a question, you must ignore the question 20 and must not guess what the answer might have been. 21 Sometimes I may order that evidence be stricken 22 from the record and that you disregard or ignore the 23 evidence. That means that when you are deciding the 24 case, you must not consider the evidence which I told 25 you to disregard. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 241 1 In deciding the facts in this case, you may 2 have to decide which testimony to believe and which 3 testimony not to believe. You may believe everything 4 a witness says or only part of it or none of it. In 5 considering the testimony of any witness, you may take 6 into account, number one, the opportunity and ability 7 of the witness to see or hear or know the things 8 testified to; number two, the witness' memory; number 9 three, the witness' manner while testifying; number 10 four, the witness' interest in the outcome of the case 11 and any bias or prejudice; number five, whether other 12 evidence contradicted the witness' testimony; number 13 six, the reasonableness of the witness' testimony in 14 light of all the evidence; and number seven, any other 15 facts of their unbelievability. The weight of the 16 evidence is to a fact. It does not necessarily depend 17 on the number of witnesses who testify. 18 I will now say a few words about your conduct 19 as jurors. First, do not talk to each other about 20 this case or about anyone who has anything to do with 21 it until the end of the case when you go to the jury 22 room to decide on your verdict. 23 Second, do not talk with anyone else about this 24 case or about anyone that has anything to do with it 25 until the trial has ended and you've been discharged PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 242 1 as jurors. Anyone else includes members of your 2 family and your close friends. You may tell them that 3 you are a juror, but do not tell them anything about 4 the case until after you've been discharged by me. 5 Third, do not let anyone talk to you about the 6 case or about anyone who has anything to do with it. 7 If someone should try to talk to you, please report it 8 to me immediately. 9 Fourth, do not read any news stories or 10 articles or listen to any radio or television reports 11 about the case or about anyone who has anything to do 12 with it. 13 Fifth, do not do any research such as 14 consulting dictionaries or other reference materials 15 and do not make any investigation about the case on 16 your own. 17 Six, if you need to communicate with me, simply 18 give a signed note to my courtroom deputy or my law 19 clerk, who will, in turn, give it to me. 20 Seventh, do not make up your mind about what 21 the verdict should be until after you have gone to the 22 jury room to decide the case and you and your fellow 23 jurors have discussed the evidence. Keep an open mind 24 until then. 25 At the end of the trial, you will have to make PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 243 1 your decision based on what you recall of the 2 evidence. You will not have a written transcript to 3 consult, and it is difficult and time consuming for 4 the reporter to read back lengthy testimony, so I urge 5 you to pay close attention to the testimony as it is 6 being given. If you wish, you may take notes to help 7 you remember what witnesses said. If you do take 8 notes, please keep them to yourself until you and your 9 fellow jurors go to the jury room to decide the case. 10 Do not let notetaking distract you so that you do not 11 hear other answers by witnesses. 12 When you leave, your notes should be left in 13 the jury room or actually, leave them right here in 14 this courtroom. Whether or not you take notes, you 15 should rely on your own memory of what was said. 16 Notes are only to assist your memory. You should not 17 be overly influenced by the notes. 18 The trial will now begin. First, each side may 19 make an opening statement. An opening statement is 20 not evidence. It is simply an outline to help you 21 understand what the party expects the evidence will 22 show. A party is not required to make an opening 23 statement. 24 The plaintiff will then present evidence and 25 counsel for the defendant may cross-examine. Then the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 244 1 defendant may present evidence and counsel for the 2 plaintiff may cross-examine. 3 After the evidence has been presented, I will 4 instruct you on the law that applies to the case and 5 the attorneys will make closing arguments. 6 After that, you will go to the jury room to 7 deliberate on your verdict. When a party has the 8 burden of proof on any claim, by a preponderance of 9 the evidence, it means you must be persuaded by the 10 evidence that the claim is more probably true than not 11 true. You should base your decision on all of the 12 evidence, regardless of which party presented it. 13 The plaintiff will now make their opening 14 statement. Mr. Vickery. 15 MR. VICKERY: Thank you, Your Honor. 16 MR. SEE: Your Honor, if Mr. Vickery writes on 17 the tablet, may I move around so I can see? 18 THE COURT: You may. 19 MR. SEE: Thank you. 20 MR. VICKERY: May it please the Court, Susan, 21 Bill. Good morning, ladies and gentlemen. This is a 22 case about drug-induced violence. Specifically, 23 Prozac-induced violence. Six years ago yesterday 24 morning, or perhaps the night before, we're not quite 25 sure, Bill Forsyth, who had been taking Prozac for ten PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 245 1 days, did something that was totally out of character. 2 This man who had been married for 37 years, 3 sometime during the course of the night or the early 4 morning, stabbed his wife approximately 15 times, and 5 then he went into the kitchen and he took a large 6 knife and he placed the end of it on a stool and 7 leaned down on it and killed himself. 8 It was that scene which my client, Bill 9 Forsyth, walked in on the following day. He had just 10 been with his parents the night before, and there was 11 nothing to indicate to him or to anyone else, 12 including the three doctors who treated this man or 13 saw this man in the six months before his death, that 14 he would ever do such a thing. 15 Now, that is the theme of our case. It is a 16 case about Prozac-induced violence, and in the time 17 that the Court has allowed me this morning, I want to 18 tell you five things about that that I hope will help 19 you put all of the evidence that you will hear in the 20 next weeks into context. 21 The first is that Prozac is an unsafe drug for 22 some people. For some people. There will be no 23 contention by the plaintiffs that it's unsafe for all 24 people or indeed for the majority of people, but that 25 it is unsafe for some people. We think about 3 to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 246 1 5 percent of the people that take it have the physical 2 affects that lead to this kind of violent and suicidal 3 behavior. 4 The second is that the unsafeness of it relates 5 to a life and death matter, suicide and violence. The 6 third is that Eli Lilly and Company knew this. They 7 knew it before this drug was ever approved in this 8 country in 1987, years before it was ever prescribed 9 for William Forsyth on February 22, 1993. And that 10 knowing this, they failed to adequately warn the 11 physicians who prescribe this so those doctors would 12 know what to look for and know how to instruct their 13 patients to avoid this kind of tragedy. That they 14 failed to do that. 15 And the fourth is that under Hawaii law, which 16 governs this case -- let me say that again. Hawaii 17 law governs this case. Under that law, this makes Eli 18 Lilly liable for the damages for the wrongful deaths 19 of Bill and June Forsyth in this civil action. 20 And fifth, even though I don't need to prove it 21 to win, don't need to, what we think the evidence will 22 show you is that not only did Eli Lilly fail to warn 23 and instruct the doctors about this risk, but indeed, 24 they took rather extraordinary measures to mislead 25 those doctors, to misrepresent facts to them when the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 247 1 issue came up publicly about suicide, to suggest to 2 them that, don't worry about it. That's just a bunch 3 of crazy people on a lunatic fringe. Don't worry 4 about it. Keep prescribing the pills and keep 5 patients keep popping those pills. That they did 6 that. Now, those five things are the theme of our 7 case. 8 The Court as allotted me some time this morning 9 to sort of give you an overview of the evidence and 10 I'm going to try to watch my time and use it wisely 11 with you, but I would like to reiterate what Judge Kay 12 said to you, and that's what I say isn't evidence. 13 What Mr. See says isn't evidence. The evidence is 14 from the witness stand, from witnesses and from the 15 documents, which you will see. 16 As you might imagine, there are about a zillion 17 documents concerning Prozac, and let me talk to you 18 about our functions and our relationships through the 19 trial. First, being from out of state, from Texas, 20 let me say that I am honored, I'm honored that Bill 21 and Susan have chosen me to represent their family. I 22 am honored to be here in Aha Kaulike, this wonderful 23 room, this place of equity, to argue their case for 24 them. My job -- you see, my authority, whatever it 25 is, is derived solely from these two people. I have PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 248 1 their permission and their authority to speak on their 2 behalf in this courtroom. 3 The Court is the ultimate authority with 4 respect to the law in this case. Judge Kay will 5 provide you, as he said, with the substantive law, the 6 Hawaii law, that pertains to this case, and he also 7 serves as a filter, if you will, or a gatekeeper with 8 respect to the evidence to determine what's relevant 9 and what isn't. 10 And I'll tell you right now, when you see the 11 numbers on the exhibits, you'll see that like most 12 lawyers, we put everything together and we said, they 13 might need this. Let's get this exhibit, and they 14 might need this, too. And we've gone through a great, 15 long process with the Court saying, okay. Okay, guys 16 for both sides, let's just give the jury what's a 17 reasonable amount of paper for them to look at and to 18 consider that's relevant to these issues. So you will 19 have exhibits, and it will be a reasonable amount of 20 paper that I think you can focus on. 21 In the course of my remarks this morning, I'm 22 going to share with you excerpts from six of the 23 documents that you will see which focus on two 24 particular points in time with respect to this issue, 25 and I will say ahead of time that obviously, I'm PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 249 1 focussing or trying to focus your attention on the 2 things that I think are very persuasive from our 3 standpoint. And we don't have time to read the whole 4 document now. I'm just going to show it to you now 5 with an except so you can kind of put it in your mind 6 or make a note, if you want to, to make a note and put 7 it in the context of the overall case when you have 8 that opportunity. 9 So that is our function. That's my function. 10 That's the Court's function. Now, your function, of 11 course, as the Court explained to you so eloquently on 12 Wednesday, is that you have been selected from the 13 people of Hawaii and empowered by the federal 14 government to ferret out truth and do justice. Those 15 things. And I'm going to try to bring to you the 16 evidence from which you can do those two things, 17 ferret out truth and do justice. 18 So how do we -- how do we get our arms around 19 this case and the evidence and understand this case 20 which involves Prozac-induced violence, which involves 21 an unsafe drug and a risk of suicide that they knew 22 about and didn't warn about, which involves 23 affirmative misrepresentations? How do we do that? 24 One way to do it is look at it chronologically. 25 You're going to be hearing a lot about a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 250 1 chemical called serotonin. Some of you may be 2 familiar with that word as a result of Prozac and 3 other things like Phen-Fen and St. John's Wort. It is 4 kind of a word that people have heard about now. 5 What serotonin is is a chemical. It's a 6 chemical in the brain, but it is also throughout the 7 rest of your body, and it is one of those chemicals 8 described in a recent book as a molecule of emotion. 9 It is one of those chemicals that affect, not only our 10 biology, but our behavior. Now, that's not a new 11 phenomenon to us. You use your common sense and you 12 know that different things in your body can make you 13 feel different ways. Athletes like Ms. Barth get 14 endorphins when they run and it gives them a natural 15 high. I don't do that, but I can assure you standing 16 before you this morning that I have a little energy 17 because I'm a little nervous and a little excited and 18 a little appreciative, and it is my body that's giving 19 it to me. At the end of the day when I walk out, I'll 20 collapse. 21 And, of course, any woman that's ever had a 22 baby knows that the chemical changes that comes 23 sometimes in one's life, affect their mood and 24 behavior. Well, serotonin is one of many, many 25 chemicals in the brain that affects mood and behavior. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 251 1 So how did all of this get started? 2 What this drug Prozac claims to do is to block 3 the recycling mechanism of serotonin in the brain. 4 They call it an SSRI, selective serotonin reuptake 5 inhibitor. You'll learn all about that. I don't need 6 to take the time I have this morning to talk about 7 that. But what they claim is by doing that, it 8 somehow helps depression. It makes some people, I 9 think they claim about 66 percent of the people that 10 take it who are depressed, makes them better. It 11 makes them feel better. And it does work for some 12 folks. Now, how did all that come to be? 13 Well, it first started because scientists 14 noticed a relationship between serotonin, not in 15 depression, but in suicide. In autopsies of people 16 who have committed suicide, they've learned that the 17 serotonin levels were low in their brains as compared 18 to other people who have died for other reasons. And 19 so some bright scientists said, well, we know that 20 about half the people who commit suicide are 21 depressed. You'll hear some suicidology experts in 22 this trial, and that's one of the things you'll learn, 23 about half the folks that commit suicide are 24 depressed. 25 Interestingly, only about 1 percent of the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 252 1 people who commit suicide kill someone else first. 2 That's an exceedingly rare phenomenon that cannot be 3 explained by depression no matter what Mr. See says. 4 But they said, well, gosh, if people who die by 5 suicide have lower serotonin, perhaps if there was a 6 drug that would elevate their serotonin, then they 7 would -- that's a way to treat depression. That's a 8 way to treat depression. 9 And so Lilly had a drug which was actually 10 synthesized or made by them. It's not a natural 11 substance. It's a chemical that they made in the lab 12 in 1972, and that chemical was called fluoxetine or 13 hydrochloride fluoxetine to be more precise, but that 14 doesn't sell real well. When it was marketed, it has 15 become known as Prozac, and it's one in the same. And 16 so they said, if serotonin affects suicide and suicide 17 is related to depression, then maybe this drug, which 18 affects serotonin, can affect depression. How they 19 think that it can skip the third step, you'll have to 20 decide from the evidence. Prozac affects serotonin 21 which affects depression, but not affect suicide? 22 But in 1972, this drug was synthesized and made 23 and you will hear from Mr. See, you'll see a time line 24 of how long it takes things to get through the FDA. 25 They file, first of all, an IND, Investigative New PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 253 1 Drug Application, and they say to the federal 2 regulators in Washington, we have this new drug and we 3 want to check it out. We want to check it out and see 4 what it might be useful for. And they start with 5 animals to see if it kills them, to see is this drug a 6 poison. 7 Let me tell you right now, it's real hard to 8 kill yourself by overdosing on Prozac. You almost 9 can't do it, which is one of the marketing advantages 10 of this drug. You almost can't do it. 11 So they went through and they tested it, and 12 there's a long process by which they sought to have it 13 approved for sale in this country and in other 14 countries. And I want to get somewhat ahead in the 15 story now because it takes a long time. Mr. See is 16 right about that, it takes a long time. 17 In the early eighties, what they were noticing 18 as they experimenting with it on people is that there 19 seemed to be an inordinately high number of people who 20 were dropping out or getting a condition you'll learn 21 about called akathisia, who were agitated or who were 22 nervous. Akathisia, the way I can describe it and 23 you'll hear experts talk about, but to me it's like 24 having ants in your pants, okay, or stepping in a 25 wasp's nest, or feeling like you want to jump out of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 254 1 your skin. It is an extremely uncomfortable physical 2 sensation that long before Prozac was known to lead to 3 violence and suicide, akathisia. 4 And so as they began to accumulate data from 5 the clinical trials and begin in various countries to 6 try to get regulatory approval to sell it, some folks 7 began to say, wait a minute. It's helping some 8 people. It's not affecting others, but it sure seems 9 that the suicide rate is high. It seems that the 10 folks that are thinking about suicide is high. That 11 the folks that are dropping out because of agitation 12 and psychotic conditions, that that's high. So what 13 happened? 14 1985, the BGA, which is the German counterpart 15 of our FDA, the BGA, told Lilly we're going to reject 16 this drug. Let's see why. Ms. Barth. 17 January 29, 1985 regarding fluoxetine 18 registration. "We unofficially received our 19 confirmation that fluoxetine was discussed by the 20 Commission A, at the BGA, on January 21st. Two major 21 concerns seem to be the reason that the registration 22 was not accepted. One, the efficacy was questioned. 23 This may be due to the experiences in study design and 24 classifications used in the United States versus 25 Germany." Efficacy just means does it work or not. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 255 1 They were questioning whether it worked. 2 "Number two, suicidal risk." This is in 3 January of 1985. What did Lilly do, Ms. Barth, if 4 you'll move to the next one, is they said well, we 5 better look at this. Let's do a risk benefit 6 analysis. A risk benefit analysis, something that 7 probably some of you are probably familiar with. 8 Let's look at what it can do, what are the benefits to 9 us or others, and what are the risks? What are the 10 risks? 11 On the screen is a preliminary report dated 12 March 29, 1985, two months later of the Benefit/Risk 13 Considerations According to the State of Knowledge of 14 March 29, 1985 concerning the Antidepressant Drug 15 Fluoxetine. 16 Now, what I'm going to tell you right now may 17 surprise you, but as they weighed the benefits and 18 risks, they said, maybe it's possible if we limit the 19 number of patients, that we will get this suicide 20 problem down to a, quote, tolerable level. 21 The benefits versus risk consideration for 22 fluoxetine currently does not fall clearly in favor of 23 the benefits. Therefore, it is of greatest importance 24 that it be determined whether there is a particular 25 subgroup of patients who receive better to fluoxetine PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 256 1 than any other antidepressant drug so that the higher 2 incidents of suicide attempts may be tolerable. 3 I assure you, ladies and gentlemen, I promise 4 you that the first person, and probably every person 5 from Eli Lilly that sits on that stand and raises 6 their right hand to God and promises to tell the 7 truth, I will ask how tolerable is it? How many 8 people have to kill themselves? How tolerable? 9 This is 1985. For whatever reason -- thank 10 you, Ms. Barth -- the process in Germany was delayed. 11 They seem to put more emphasis on getting approval 12 here in the United States where, unfortunately, I'm 13 going to show you in the course of this time, they 14 have some pretty good friends in high places in 15 Washington. They seem to want to do that before they 16 got it done in Germany. 17 In the fall of 1987, Prozac, fluoxetine, was 18 approved by the Food and Drug Administration in 19 Washington, and they began to sell it in 1988. Now, 20 prior to that time, there had only been people who 21 were hand chosen for the clinical trials. Prior to 22 that time, they had hand chosen doctors, psychiatrists 23 to administer the drug to them. Prior to that time, 24 the people who were getting the drug, they had 25 excluded anyone who was at a serious suicidal risk. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 257 1 They had excluded them in the test, and they allowed 2 these doctors to give what's called a common sedative, 3 they allowed them to give in addition to the Prozac 4 drug. They were taking a drug called benzodiazepine, 5 a sedative, a downer, to take care of the problems of 6 agitation, akathisia, the things that would lead to 7 violence and suicide that they knew about from way 8 back, at least as far as 1985, but when they hit the 9 market in 1988, it was more widely described. 10 Doctors began to describe and prescribe across 11 the country for depressed people and they did so quite 12 frequently. Within two years, the problem that the 13 Germans had seen in 1985 began to rear its ugly head 14 in the United States, and in February of 1990, the two 15 well-known doctors, Dr. Martin Teicher, and 16 Dr. Jonathan Cole, published a paper in a respected 17 journal, a psychiatric journal that other doctors 18 would read, and that paper has a big title called, 19 "Treatment Emergent Suicidality," but, basically, what 20 these two doctors were saying is we have six patients 21 who, just like Bill Forsyth, had never been suicidal 22 before. They had never thought of violence before, 23 who, on this drug, not only began to think about 24 killing themselves, but to kill themselves in 25 extremely violent ways and we think you ought to know PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 258 1 about that. That's why we're going to publish this 2 article. 3 Now, I've got to tell you, Dr. Cole, you will 4 learn is what Lilly calls an opinion leader. In other 5 words, he's the guy that has some gray hair that's 6 published a lot. These are two Harvard physicians. 7 Dr. Cole was one of those hand-picked group that Lilly 8 had hired to test this drug on other people. He's not 9 some Johnny-come-lately. He was an opinion leader, 10 and he and Mr. Teicher and a nurse that was a 11 co-author with him on the paper named Carolyn Glod 12 published this paper. We need to look out for this. 13 You need to know about this. Colleagues out there in 14 the medical world, you need to know about that. 15 What was the response of Eli Lilly in January 16 and February of 1990? They found out about this 17 article, that it was coming out, actually before it 18 came out. A man named Dr. Charles Beasley, who I will 19 talk about somewhat later, is a scientist for Lilly, 20 got on the airplane and flew to Boston before their 21 article hit the street and talked to them and began to 22 have meetings at Eli Lilly and Company on the 23 executive floor where the top guys are and the top 24 scientists in the whole company, Dr. Leigh Thompson, 25 who I trust Lilly is going to bring. I can't bring PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 259 1 him. I can't force him to come. I can't bring anyone 2 past the bounds of Hawaii, but he's on the witness 3 list and I hope they'll bring him because I got some 4 questions for him. 5 Dr. Leigh Thompson, the top scientist of Lilly, 6 says Lilly, this company can go down the tubes if we 7 lose Prozac. Ms. Barth. February 7, 1990, from Leigh 8 Thompson, "I am concerned about reports I get 9 regarding UK attitude toward Prozac safety. Leber," 10 you'll learn later, that's Dr. Paul Leber at the FDA, 11 a man that Lilly describes as our defender, "suggested 12 a few minutes ago we using the CSM database to compare 13 Prozac aggression and suicidal ideation with other 14 antidepressants in the UK." That's United Kingdom. 15 That's Britain. Why Britain? Why not here? 16 This CSM database, they do better records over 17 there than we do perhaps because of socialized 18 medicine and there's more information in a computer 19 database, and that's why. And Dr. Leber suggested 20 that Lilly use that database, which they've never 21 done, but you'll hear considerable testimony from the 22 expert we're going to be bringing from England or 23 Whales, Dr. David Healy, about a study that was done 24 using that database. 25 "Although he is a fan of Prozac and believes a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 260 1 lot of this is garbage, he is clearly a political 2 creature and will have to respond to the pressures. I 3 hope Patrick realizes that Lilly can go down the tubes 4 if we lose Prozac, and just one event in the UK can 5 cost us that. You know my prejudice about Patrick, 6 but if I hear one more problem about not covering 7 Prozac safety in the UK, Allan, I'm going to really be 8 up in arms. Leigh." That's February 7, 1990. 9 Now, the week before the marketing people had 10 said, well, what are we going to do about this? What 11 are we going to do? We've got this article from two 12 members about a risk of suicide, knew there were 13 suicide thoughts in patients. What are we going to 14 tell the doctors? You see, the way Lilly informs 15 doctors like Dr. Randolph Neal here at Castle, a good 16 doctor, just needed all the information or Dr. Riggs 17 Roberts on Maui who prescribed it for him, a good man. 18 He just needed all the information. 19 The way Lilly keeps those people up to speed, 20 they just don't send them the package insert with the 21 tiny little print. They send people to answer the 22 doctor's questions. So they prepared a memo for those 23 people before this article ever hit the streets and 24 said okay, this article is about to hit the streets. 25 You guys need to know what your marching orders are PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 261 1 about. And you know what their marching orders were? 2 To develop a marketing plan. Let's look at their 3 memo. 4 January 30, 1990, Dista sales representatives 5 regarding "The Emergence of Intense Suicidal 6 Preoccupation During Treatment with Fluoxetine." The 7 article by Dr. Teicher and others and they say, 8 "Enclosed is an article. The article discusses case 9 reports of six depressed patients, some with other 10 psychiatric diagnoses, all of whom had complicated 11 psychiatric histories. After approximately two to 12 seven weeks on Prozac treatment, all six patients 13 developed, quote, intense, violent suicidal 14 preoccupation." 15 Now, that's the first page of the document. 16 Let's look at the second page and see what their plan 17 was on how they were going to deal with this. 18 "Because these issues are not part of our current 19 marketing plan, you should not initiate discussions on 20 these articles. However, when asked to comment on the 21 issues raised on this article, you should attempt to 22 determine their level of competency and experience or 23 their concern regarding the information based on this 24 article; on the summary provided in this letter, and 25 attempt to place into perspective these six cases; and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 262 1 refer to medical correspondence in Indianapolis. 2 "Again" -- in case they didn't get it the first 3 time -- "Again, since these issues are not part of our 4 current marketing plan, discussions should not be 5 initiated by you." That is January 1990. 6 For the next several months, the political 7 creature and others at the FDA made some inquiries 8 about this issue. People were looking at it and, in 9 fact, by the summer of 1990, it got beyond just the 10 psychiatric journals and into the public domain. 11 Things like 20/20, Nightline, the AP, the Wall Street 12 Journal. Things that you and I might see. 13 Now, let's see what happened in July of 1990 as 14 this matter began to get broader public attention. 15 What happened is when the press -- there was an 16 article in the Wall Street Journal that came out and 17 the press began to call, not only Lilly, but began to 18 call Dr. Paul Leber at the FDA and others at the FDA. 19 What about this? What are you guys going to do about 20 this? What they did -- what these government 21 regulators did that are supposed to be protecting the 22 public health is that they worked hand in hand with 23 Lilly to put a cap on the numbers. Because, as we've 24 already learned, Dr. Leber thought this was all 25 garbage anyway and Lilly had decided years ago that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 263 1 some level of suicide was tolerable. 2 Let's look at the memo from Leigh Thompson, the 3 chief scientist of Eli Lilly, July 18, 1989. "Paul 4 Leber called yesterday. I contacted him at 6:15 this 5 morning, a half hour conversation; very, very 6 pleasant, with Paul and Tom Laughren," who is another 7 doctor at the FDA. The call was about suicide. 8 "They said this morning's Wall Street Journal, 9 in their mind, was trivial, and the reporter had 10 called them. However, this issue is building and will 11 not go away." That's the first page of the 12 memorandum. 13 "Paul asked for chronology of all label changes 14 on Prozac." They were thinking about the label 15 whether or not it might need some warnings. "Paul is 16 taking a position in talking with outside folks today 17 that Lilly and FDA working together on the suicide 18 issue and following closely the post-marketing events, 19 that there are no denominators, and the best that can 20 be done is to put a, quote, cap or number -- on the 21 number of events, put a cap on it." That's July 1990. 22 It was consistent with Lilly's marketing plan. 23 You see, this is a case about the marketing of the 24 drug. It's not a case about whether Prozac is a drug 25 that's bad for all people. It's not. It is 3 to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 264 1 5 percent of the people who are at a life and death 2 risk. And it is a case about marketing. Something so 3 simple. So simple. 4 You know, I've noticed it in my home and I've 5 noticed it here in Hawaii over the past couple of 6 years as I've come here many times regarding this 7 case, that there are signs -- when I go to the beach, 8 there are signs that tell me what the surf is like. 9 I've been warned about the undertow. Sometimes 10 there's signs that warn about the jellyfish. 11 Sometimes in downtown Honolulu, there's signs that 12 warn about the window washers up above. It is so 13 simple. What would it have cost Lilly to provide this 14 kind of information to doctors like Dr. Randy Neal and 15 Dr. Riggs Roberts? 16 Well, the issue didn't go away quite yet in the 17 summer of 1990. It continued through the fall of 18 1990. Let's look at a November 1990 memorandum. 19 Ms. Barth back up. Let me put this in the context to 20 the jury. 21 The issue is not a live one just here in the 22 United States. It was live in Germany as well, and as 23 they were attempting to, quote, put a cap on the 24 numbers, one of the very important things was how are 25 these events reported. How are they reported to the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 265 1 government? When we keep track of them in the 2 computers, how do we report it? 3 If someone tries to slit their wrists or tries 4 to hang themselves and we make a report about it, do 5 we say violent suicide attempt? And what they were 6 doing were they were coding them all to overdose. 7 Now, I've already told you that you can't kill 8 yourself on an overdose of this drug, but the way that 9 the information was being accumulated by Lilly, skewed 10 the picture. If it is coded by overdose, then we can 11 put a cap on the number. 12 There was a man named Claude Bouchy, who is the 13 head, I believe, of Lilly's operation in Germany, and 14 he had a real problem with that, ladies and gentlemen. 15 He had a real problem with that. Let's look at his 16 memo. 17 November 13, 1990, regarding "Adverse Drug 18 Event Reporting on the Suicide in Fluoxetine. Our 19 safety staff is requested to change the event term 20 'suicide attempt' as reported by the physician to, 21 quote, overdose. Hans has medical problems with these 22 directions, and I have great concerns about it. I do 23 not think that I could explain to the BGA, to a 24 judge," perhaps to a jury, "to a reporter or even to 25 my family why we would do this, especially on the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 266 1 sensitive issue of suicide and suicidal ideation. At 2 least not with the explanations that have been given 3 to our staff thus far." He was concerned about that. 4 That's the fall of 1990. 5 Now -- thank you, Ms. Barth. So what we've 6 seen is in '85 the issue was concern -- they were 7 concerned that the BGA rejected because of suicide. 8 We've seen that in March Lilly did a risk benefit 9 analysis, and they decided that some number of dead 10 people would be tolerable. 11 The next year -- let me talk about my clients 12 for a minute. The next year, 1986, William Forsyth, 13 Sr., retired. Retired with substantial assets to be 14 quite frank. He was a real aggressive businessman. 15 Not aggressive in the sense of being a bad guy, but 16 aggressive in the sense of being a go-getter. 17 He had a business, a car rental business, in 18 Los Angeles out at the airport, and apparently, in 19 1986, the airport said, Mr. Forsyth, we need this 20 space. We're going to take your space, but we'll buy 21 out your business, or something like that. And he 22 retired. And for the next four years, they continued 23 to live in California where Bill and Susan had grown 24 up. 25 Now, Bill, Jr. -- can I call you Billy? His PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 267 1 family calls him Billy. Billy had moved to Hawaii by 2 this time, and you may hear Lilly say, well, Bill, Sr. 3 and Billy may have been at some odds because Bill, Sr. 4 wasn't all that happy with Billy's ambition. You see, 5 he made a life choice that he didn't need to have the 6 ambition and the money that his father sought his 7 whole life. That he would rather live here in the 8 beauty of Hawaii and live a simpler lifestyle with his 9 wife and children and that's the choice he made, and 10 his father took some time to come around to 11 understanding that. 12 So for the four years they were retired, from 13 '86 to '90, and in 1990, they moved to Maui. So at 14 the same time, in 1990, when the Forsyths were moving 15 to Maui, that's when all this Teicher and Cole article 16 was going on, remember. February and January there 17 was the Teicher article. There was a marketing plan. 18 In July, Dr. Thompson was on the phone at 6:15 in the 19 morning with Dr. Leber and they were going to put a 20 cap on the numbers, and in November, Claude Bouchy had 21 the pangs of conscience about explaining it to a judge 22 or even to his family. 23 That gets us up to 1990. And now, I want to 24 tell you what I think the evidence will show you about 25 my clients after that. When they moved to Hawaii and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 268 1 built a beautiful house on Maui, Bill Forsyth, to put 2 it quite frankly, I think he kind of got under his 3 wife's feet. I don't know if any of you have 4 experienced that, but sometimes when folks are -- the 5 man is off working his whole career, and then he 6 retires and they're at home together and the kids are 7 grown up, all of a sudden they're on top of one 8 another, and it caused some problems. It caused some 9 problems between them. And they had some marital 10 problems. 11 You know, I apologize to you now, ladies and 12 gentlemen, for the fact that there's a lot of very 13 personal things that we have to bring out here. 14 Things that are personal and painful to Bill and 15 Susan. There are some things that are going to be 16 visually unpleasant for you, particularly this 17 afternoon when Detective Kim comes and talks to you 18 about the investigation of the scene, and I apologize 19 to you for that. I know it's uncomfortable for you. 20 It's uncomfortable for us, but it is necessary if they 21 are to accomplish their goals here. And let me say 22 something about that for a minute. 23 Eli Lilly and Company, apparently, is going to 24 suggest that Bill and Susan Forsyth are pursuing this 25 case for some kind of secondary gain. I guess they're PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 269 1 going to suggest that this young man who left the 2 ambitious lifestyle and chose Hawaii over it, is just 3 interested in money. They're going to question their 4 motivations about this. And one of the things you're 5 going to learn in this trial is that both Bill and 6 Susan have been very active with a non-profit group 7 called "The Prozac Survivors Support Group." They've 8 tried to take their own family tragedy and turn it, in 9 some way, to public good, and that's why we're 10 enduring the pain of having these very personal 11 matters about their parents' marital relationship, 12 most of which, as you might imagine, they were not 13 really intimately aware of during their parents lives 14 brought out. 15 But in 1991, Bill Forsyth left Hawaii, left his 16 wife here, went back to California to give them both 17 some space. He was gone for a while, but they 18 reunited. In the fall of -- I'm sorry, in the 19 following year, in 1992, he left again in July, and he 20 left kind of abruptly. You'll hear testimony from his 21 psychologist, Dr. Tom Brady, who helped him through 22 his marital problems with his wife, helped him and 23 June both, that his MO, his way of dealing with stress 24 and confrontation with his wife was not to hit, was 25 certainly not to stab her. It was to leave. It was PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 270 1 to go away. That's what he tended to do, and he did 2 it again in July of 1992. He went back to the 3 Mainland where Susan lived, where he had friends and 4 support groups as he struggled with this 37-year 5 commitment to his wife and to the real troubles that 6 they were having. 7 He decided to get professional help in 8 September of 1992. This is going to be real 9 important, so I'm going to write these dates down 10 because I will always, through this trial, try to 11 pinpoint, as Lilly talks about problems between the 12 Forsyths, I'm going to be trying to pinpoint the time 13 because that's just critically important. 14 July of '92, Bill goes to L.A., to California. 15 September, he begins to see Dr. Brady, and Dr. Brady 16 is a psychologist, and he was helping him with therapy 17 and marital therapy and he was getting double doses or 18 more. He was going once or twice a week for double 19 sessions each time, so it was real intense therapy to 20 try to help him through this time. 21 By October, by October, he asks his wife to 22 please join him in L.A. and work with him with 23 Dr. Brady through their marital problems, which she 24 readily does. They start going on October the 29th, 25 and they go for about six weeks. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 271 1 Dr. Brady will explain it to you far better 2 than I as to what that process did for these people, 3 but I think the evidence will show you that they 4 started out, as you might imagine, sitting apart. I 5 mean, the body language, the facial expressions were 6 of people who were mad at one another, who needed some 7 professional help in opening up and sharing their 8 concerns with one another. 9 They ended up on December the 4th, 1992 coming 10 in and sitting together, holding hands, making love, 11 going on trips, talking about moving to Palm Springs 12 and buying a new house, and I don't think you will 13 hear anyone say, anyone, anything other, about their 14 relationship after that, than it was better than ever. 15 When they got back, Bill developed a 16 depression. He developed a depression, and he felt 17 low. You're going to learn about clinical depression. 18 It's more, ladies and gentlemen, than simply feeling 19 the blues. It is a diagnosable condition that is a 20 serious concern, and he developed that and he went to 21 see Dr. Riggs Roberts on December the -- I better 22 check my dates here. December the 16th, and he began 23 to see Dr. Roberts weekly after that. And you'll have 24 the opportunity to listen to Dr. Roberts' testimony. 25 Bill was anxious. He was depressed, and he was PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 272 1 given different medicines for those things. Now that 2 concerned him a little bit because one of the other 3 things that may be brought up is the fact that Bill 4 was an alcoholic. He hadn't had a drink in many, many 5 years, but he had fought and conquered the horrible 6 problem of alcoholism, and having done that and having 7 been dry for so many years, he was exceedingly 8 concerned about taking any mind-altering substances, 9 yet Dr. Roberts thought that would help him and 10 prescribed it for him and so that's what he tried. 11 And he worked with Dr. Roberts on a weekly basis 12 taking medication and going in for therapy sessions 13 for the next couple of months. 14 The medicine that Dr. Roberts gave him didn't 15 work. It wasn't Prozac. It didn't work. And on 16 February 22nd, Dr. Roberts decided to try this new 17 drug, Prozac. And he prescribed it for Mr. Forsyth 18 and said, try this antidepressant. It might help you. 19 And the next day he got a call from his patient 20 reporting something that he had already come to 21 describe as the Prozac miracle. Mr. Forsyth called 22 the next day and said I am 200 percent better. Now 23 this drug is working great. I'm just happy as a lark. 24 Imagine his surprise when he got the call the 25 very next day from Billy that said my dad was in the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 273 1 hospital. This man had never been hospitalized 2 really. He said, I've got to go to the hospital. 3 Today. This very day. Can't wait until tomorrow. 4 Today. And Dr. Roberts called him and said, Bill, 5 what's wrong? 6 My dad has had a horrible change. Yesterday he 7 was great, but today he's had a horrible change and he 8 wants to go to the hospital. And Dr. Roberts said, is 9 he there? I want to talk to him, and he talked to 10 him. And he said, based on what I saw two days ago 11 and what he said to me yesterday, I don't think he 12 needs to go to the hospital, but I'm not there. You 13 are. And if he's saying he wants to go and what 14 you're observing says he needs to go, then by all 15 means, take him. And so on 2/24, after two days on 16 Prozac, he came to Castle Medical Center where he was 17 seen by Dr. Randolph Neal and he -- Dr. Neal 18 prescribed Prozac or continued him on Prozac. There 19 may be a day there when he really didn't have a pill. 20 It is not entirely clear to me, but continued him on 21 Prozac for the duration of the time that he was there. 22 Now, one of the issues is going to be whether 23 Mr. Forsyth had any thoughts of suicide before he ever 24 took Prozac. Was he like all six of the patients that 25 Drs. Teicher and Cole reported on who had never had PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 274 1 those kinds of thoughts and developed intense suicidal 2 preoccupation on Prozac or had he thought about it 3 before? 4 Three different mental health professionals, 5 doctors, have seen this man and not a one of them 6 noticed that, even though with depression you would 7 look for it; Dr. Tom Brady in the fall of 1992, 8 Dr. Riggs Roberts weekly starting in December of '92, 9 and Dr. Randolph Neal every day in the hospital at 10 Castle Medical Center from then until March 3rd, but 11 there is an entry in the medical records from a man 12 named Rick Poole, who may or may not be called, that 13 said he has had some suicidal thoughts in the last 14 month. You'll have to decide for yourself. Did this 15 man really have these thoughts in the last month and 16 Dr. Riggs Roberts just flat missed it on a couple of 17 visits or is it more likely than not, that they 18 started when he had this tremendous downturn on 19 February 23rd or after February 23rd on Prozac? Was 20 he like the other patients that Teicher and Cole 21 reported on? 22 On March the 3rd, Mr. Forsyth was released at 23 his own request, sent home with his wife. He was 24 excited about going home with his wife, went back to 25 Maui. Billy was with them. They went over and had a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 275 1 dinner that night at their home. You'll hear his 2 description of his father. He still wasn't the same 3 father he had always had, but he was glad to be out of 4 the hospital and glad to be home. 5 You'll hear his description of his mother that 6 night. This woman had been married to this man 37 7 years. He had just checked out of a mental hospital. 8 She didn't hesitate to stay there alone with him at 9 night. She didn't hesitate to go to bed with him at 10 night. 11 Sometime that night inexplicably he stabbed her 12 to death and then he took his own life. Now, he was 13 supposed to go the next day, he and June were going to 14 go with Billy on the boat. He has a boat that he 15 takes folks like you and me out on a boat to see 16 whales and dolphins, and that sort of thing, and they 17 were going on a whale-watching trip the next day. And 18 when they didn't show at the boat at the end of the 19 day, Billy went by his house to check on his parents 20 and you will see very shortly, this afternoon when 21 Detective Kim comes, the scene into which he walked. 22 Essentially, ladies and gentlemen, that is a 23 brief overview of the case. It is a case about 24 Prozac-induced violence. It is a case about a company 25 that decided some levels of suicide is tolerable. A PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 276 1 company that decided not to warn about the risk that 2 it knew about, but instead to take extraordinary 3 measures -- now, they warned in Germany. They didn't 4 give a real decent warning, but they gave better than 5 they gave here. A different warning in Germany about 6 the risk of suicide because the BGA made them. But 7 it's a case about a company that withheld information, 8 but not just withheld, a company that went to 9 extraordinary lengths to provide disinformation or 10 misinformation about this risk to encourage the 11 doctors that it's not a problem. It's not a problem, 12 all this stuff here. Wall Street Journal, we won't 13 rely on them. Teicher and Cole, you know, why rely on 14 those guys. Don't worry. Keep prescribing it. 15 That's what this case is about. 16 If I prove to you the five things that I 17 said -- actually, one I don't have to prove is the 18 law. I expect the judge will give it to you. That 19 it's unsafe to some people; that the unsafety is 20 because of suicide; that they knew it and failed to 21 warn; and indeed that they misrepresented; and then 22 the fifth, under Hawaii law, the law that you and I 23 are sworn to uphold, at the end of this case, I hope 24 that you would have ferreted out the truth and I will 25 ask you to do justice on behalf of my clients, Bill PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 277 1 Forsyth and Susan Forsyth. And at that time, you'll 2 say, well, who are we? You know, 12 people in Hawaii, 3 what justice can we do? What difference can we make? 4 Ladies and gentlemen, I'm going to prove to 5 you, in the course of this trial, that your verdict -- 6 I'll prove to you from documents -- that your verdict 7 will make a difference in Washington, D.C. to the FDA, 8 and that perhaps by that verdict, people that call the 9 hotline at the Prozac Survivors Support Group and 10 other people in this country will learn what Lilly 11 should have been telling them all along, and perhaps 12 because of that verdict, other lives will be saved. 13 That's why we're here. Thank you. 14 THE COURT: Let's take a 15-minute break. 15 Please be back at 10:35. 16 (Whereupon, a recess was taken at 10:20 a.m.) 17 THE COURT: Mr. See. 18 MR. SEE: May we take a matter up at side bar, 19 Your Honor? 20 THE COURT: My courtroom deputy thought we 21 could avoid that and didn't bring in the jury. Okay. 22 (Whereupon, the following proceedings were had 23 at side bar out of the presence of the jury.) 24 MR. SEE: In his opening statement, Mr. Vickery 25 mentioned Phen-Fen. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 278 1 THE COURT: In his closing argument? 2 MR. SEE: There was some elements of that in 3 there, too. He mentioned Phen-Fen. Phen-Fen is a 4 highly popularized litigation. I'm sure the Court -- 5 THE COURT: Highly popularized? 6 MR. SEE: It's a diet drug litigation. 7 THE COURT: What's that word, litigation? 8 MR. SEE: Litigation. 9 THE COURT: I've never heard that used in 10 conjunction with a drug. 11 MR. SEE: There's a lot of cases about 12 Phen-Fen. In my mind, that's not consistent with the 13 Court's prior rulings that other litigation and other 14 cases ought to be out of that. 15 THE COURT: You mean Fentress? 16 MR. SEE: No, Phen-Fen. It's a name of a diet 17 drug. 18 THE COURT: And there's a lawsuit? 19 MR. SEE: There is. There's hundreds of 20 lawsuits and it's all over the papers. It's in 21 magazines. I believe the mentioning of that in this 22 situation to that situation is prejudicial. 23 My request is that the Court give the jury an 24 instruction that Mr. Vickery mentioned Phen-Fen and 25 that Phen-Fen hasn't got anything to do with this case PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 279 1 and the jury should disregard. 2 THE COURT: You want me to mention litigation 3 or just the drug? 4 MR. SEE: No, sir, just Phen-Fen. 5 THE COURT: So you want an instruction that 6 Mr. Vickery mentioned Phen-Fen and the Court instructs 7 the jury that it has nothing to do with this case? 8 MR. SEE: Yes, sir, and they should disregard 9 it. 10 THE COURT: Mr. Vickery. 11 MR. VICKERY: Judge, I don't believe I violated 12 any order, and I certainly didn't talk about any other 13 litigation, but I have no objection to the Court 14 telling them. 15 THE COURT: Okay. 16 MR. SEE: There is another matter, Your Honor, 17 which is probably more serious and it has to do with a 18 comment Ms. Mangrum heard made in the presence of our 19 jurors. I'll let her tell you about it. 20 MS. MANGRUM: I got in the elevator with two of 21 the jurors, and another attorney, Charles Ferrera, 22 said to me, in the presence of the jurors, he asked me 23 do you travel -- 24 THE COURT: Who's Charles Ferrera? 25 MR. BURKE: He's a local attorney, Your Honor, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 280 1 who was sitting out here this morning. 2 THE COURT: Not associated with this case? 3 MR. BURKE: No. 4 MS. MANGRUM: This is the Phen-Fen case. 5 THE COURT: Chris Ferrara. 6 MR. BURKE: No, Charles. There are two of 7 them. 8 MS. MANGRUM: He asked me in the presence of 9 these two jurors, one of who was Mr. Hom, and I'm not 10 sure who the other juror was, whether Mr. See and I 11 travelled around the country defending all of these 12 Prozac cases, which is an issue that's not supposed to 13 be before the jury, and I simply said, "There are 14 jurors here," and did not answer the question. 15 MR. SEE: I don't know what to do about that, 16 Your Honor, but I wanted to bring it to your 17 attention. 18 THE COURT: You want to bring those two jurors 19 in, maybe after lunch, and see if they remember 20 anything about it or instruct them that they're not to 21 consider any other litigation in the case that's just 22 before the court. 23 MR. SEE: I don't know if doing that, if it 24 highlights the matter. Well, it's just an overall 25 instruction to the jurors. You are not to consider PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 281 1 anything you hear out in the corridors or out in the 2 elevators. 3 THE COURT: I've already done that in my 4 preliminary jury instructions. 5 MR. SEE: That might be the best way to handle 6 it, Your Honor. 7 THE COURT: I can incorporate that in the 8 Phen-Fen instruction. And what would that be again? 9 MR. SEE: I want to remind you that you are not 10 to listen to any comments made by anyone in the 11 hallways or the elevators or around the courthouse. 12 None of those comments have any impact on this case at 13 all. Perhaps, the only thing you are to consider is 14 the evidence that is presented in this courtroom. 15 THE COURT: All right. Does Dr. Healy have a 16 rebuttal to this latest Dr. Jick's -- 17 MR. VICKERY: I haven't read this latest 18 Dr. Jick thing, Your Honor. 19 THE COURT: I want a response. It's a very 20 serious matter. 21 MR. VICKERY: He'll be here on Tuesday. He's 22 in transit. We will have a response Tuesday. 23 THE COURT: Well, I would just reiterate that 24 both parties have a strong motivation to settle this 25 case. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 282 1 (Whereupon, the following proceedings were had 2 in open court without the jury present.) 3 THE COURT: We'll have to take a short break to 4 let the jury come back in. 5 (Whereupon, a recess was taken at 10:47 a.m.) 6 THE COURT: I do want to instruct the jury that 7 Mr. Vickery mentioned in his opening statement 8 Phen-Fen, and that has nothing to do, absolutely 9 nothing to do with this case and you are to totally 10 disregard that. 11 Also, I want to remind you that you're not to 12 listen to any comments by anyone outside of this 13 courtroom. You are to consider only the evidence that 14 comes into this courtroom. Totally disregard anything 15 you hear outside of this courtroom, regardless of whom 16 might say it. You are to only consider the evidence 17 that is submitted in this trial. 18 Mr. See, you may make your opening statement 19 now for Defendant Eli Lilly and Company. 20 MR. SEE: Thank you, Your Honor. May it please 21 the Court and Mr. Vickery. Good morning to all. I'll 22 reintroduce myself. I'm Andy See. When I grew up, I 23 don't think I knew another person named Andy. 24 Everybody was a Bill or a John or a Tom, and now we're 25 falling all over one another, but it's good to have PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 283 1 all the Andys here. 2 I represent Eli Lilly and Company. Eli Lilly 3 is a drug company. It makes prescription medicines. 4 It's located in Indianapolis, Indiana, and it has been 5 since 1876. Lilly's been doing business there making 6 prescription medicine for 120 years. 7 We've placed this up-ended trash can here so 8 that the smart lawyers won't fall over this microphone 9 line. Hopefully, I won't. 10 This is our chance to tell you and visit with 11 you about what the case is about and what we believe 12 the evidence will show. This case is about a good 13 drug and a very, very bad, powerful disease. The 14 disease is called major depression. 15 I want to put up, just to demonstrate for you, 16 what the symptoms of major depression actually are, 17 how doctors diagnose the condition, so that you will 18 be able to recognize, as the evidence comes in, which 19 one of these things you can find. 20 Major depression includes someone who has a 21 depressed mood. This is more than just being sad or 22 down. It is a depressed mood that lasts for a long 23 time. It doesn't go away. People have diminished 24 interest in pleasure or in their normal activities. 25 People who get depressed don't want to go out and do PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 284 1 anything. They lose interest in things that had 2 interested them before. 3 People with major depression often have 4 significant, either weight loss or weight gain. They 5 often have problems with sleeping. The most common 6 problem with major depression and sleeping is 7 insomnia, simply not being able to go to sleep, or 8 waking up very early in the morning. Sometimes people 9 with major depression sleep all the time, so it is 10 sleep disturbance. 11 People with depression can have psychomotor 12 agitation or retardation. Now, what is that? 13 Psychomotor retardation is someone who just doesn't 14 want to do anything. Stay at home, sit in the chair, 15 stay in bed with the covers pulled up, move slowly. 16 Just do nothing. Some people with depression have 17 that. It is a retardation. Everything is slowed 18 down. 19 But with depression you can also have 20 agitation, and that's speeded up, being excited. 21 Fatigue or loss of energy is very common in 22 depression. A person is just tired all the time, 23 doesn't want to go out and do anything. No energy, 24 and very often feelings of worthlessness; I'm just not 25 worth anything. Or feelings of guilt, especially PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 285 1 inappropriate guilt where the person just doesn't 2 really have anything to be guilty about, but they have 3 these terrible feelings that they are guilty. All 4 part of the disease. 5 Also, diminished ability to think or 6 concentrate. People with depression often simply 7 can't read a book because they can't focus their mind. 8 They can't do the normal business tasks, for example, 9 that they can usually do. And what is particularly 10 important in this case, as you will see, one of the 11 ways doctors diagnose a major depression is the 12 presence of what we call suicidality, and that means 13 thinking about suicide, life is not worth living. I 14 can't go on anymore. It is just not worth it. And 15 actively thinking about killing yourself. Actually, 16 acting out those thoughts in a suicide attempt, and 17 very tragically, part of this powerful, deadly disease 18 is suicide itself, an inherent part of the disease. 19 So that's the bad, powerful disease that this 20 case is about, and what you need to know, what the 21 evidence will be is that 80 percent, 80, 8-0 percent 22 of people who have major depression, diagnosed major 23 depression, have suicidal thinking. 80 percent. 24 40 percent of people with major depression actually 25 have a suicide attempt as part of their disease, and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 286 1 tragically, 15 percent of all people with major 2 depression go ahead and sometime in their lifetime 3 commit suicide. 15 percent. That's what this disease 4 is about. It is a deadly disease. If untreated, or 5 if the patient doesn't respond, it can be a deadly, 6 deadly disease. 7 Now, this case is about a gentleman named 8 William Forsyth. Mr. Forsyth is from California. As 9 Mr. Vickery told you, he was a very successful 10 businessman, had owned a rental car agency outside of 11 the Los Angeles airport. What kind of a guy was he? 12 Well, he was a guy that we would refer to as a fellow 13 with a Type A personality. A real go-getter, on the 14 go all the time. Needed a challenge. Loved to work. 15 Loved to be confronted with a challenge so it could be 16 overcome. Needed to be busy doing something all the 17 time. Actually would get restless if he wasn't up 18 around doing something. He was not the kind of guy 19 who would enjoy staying home all day Sunday reading 20 the paper or watch TV. That was not Mr. Forsyth. He 21 was a guy that got out and got things done. That was 22 part of his personality. 23 As Mr. Vickery said, Mr. Forsyth retired a 24 little bit early for his taste, sold out his business, 25 did very, very well, and made a decision in 1990 to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 287 1 move to Maui where his son, Mr. Bill Forsyth, who is 2 here today in the courtroom, lives and they built a 3 home. 4 Now, after June and William Forsyth moved to 5 Maui, they found that their life there was not exactly 6 what they had thought it might be. Mr. Vickery 7 referred to some problems, and there will be evidence 8 about that, and the problems were these: Mr. Forsyth 9 was one of the people who just could not adjust to 10 retirement. He just could not slow down. He needed 11 something to do. He needed to be active and be 12 productive, and he never really found anything to do. 13 And because of that, he was very unhappy in his 14 retirement, and you'll hear the testimony from his 15 family members about that. 16 William and June Forsyth experienced some 17 communication problems in their marriage, and one of 18 the things that brought on -- sort of brought this 19 communication problem to a head, now that he was 20 retired and they had moved to Maui, he was at home a 21 lot. During his working life, he had not been at 22 home. He worked all the time. A real go-getter. But 23 now he was at home, kind of under foot, and he and his 24 wife were, I think one of the therapists said, 25 literally on top of one another. And because of that, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 288 1 they needed to work out some new relationship, but 2 that was not working out well and they were not 3 communicating well together. 4 Mrs. Forsyth's role in the marriage was also 5 changing. As she looked towards her retirement, she 6 wanted to be a person who was an equal partner in the 7 marriage, and this was a little bit different than 8 before. She wanted to participate in the 9 decision-making of the marriage, and that changing 10 role of Mrs. Forsyth also was a problem for William. 11 There was another problem and that was the role 12 of religion, what role religion was going to play in 13 their lives. Mrs. Forsyth was a very sincere, very 14 devout born-again Christian. She belonged to the same 15 church as her son on Maui. She was a real believer. 16 It was important to her, and a very important part of 17 her life. She listened to Christian videotapes and 18 listened to Christian radio, and read Christian books 19 and so on. Mr. Forsyth was -- he did go to church 20 with his wife, but he was not as involved in living 21 the full born-again Christian lifestyle as his wife, 22 and that was -- that became an issue between them. 23 His wife, June, wanted him to adopt beliefs more 24 similar to hers. So that was a cause of some stress 25 between them. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 289 1 Now, during his retirement, William Forsyth 2 adopted a role -- a way of coping with the stresses 3 and problems that he had at home in getting along with 4 his wife and nothing to do in retirement and so on, 5 and his method of coping with those problems was to 6 get away from them. His psychologist called it 7 running away. 8 June Forsyth was a woman who had considerable 9 verbal skills. She was sort of a talker, and her 10 talking with Mr. Forsyth was a stress that was put on 11 him that he just couldn't -- he couldn't cope with it. 12 It was just too much input. He would move to the next 13 room, and if Mrs. Forsyth followed, he would leave the 14 house. And if the stress got too much, he even would 15 leave the island and go back to the Mainland, and that 16 happened on a couple of occasions. 17 Mr. Vickery has already told you that June and 18 William separated in their marriage two times, one 19 during the summer of 1991. And the evidence will show 20 you that when Mr. Forsyth left his wife at that time, 21 in 1991, he simply left the island and didn't tell her 22 that he was going or where he was going. She had no 23 idea until he finally called, but he went back to the 24 Mainland and stayed for a time. They reconciled and 25 then in the summer of 1992, essentially the same thing PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 290 1 happened. Mr. Forsyth left the island and returned to 2 the Mainland. 3 They seemed to reconcile again, went through 4 some counseling, and returned to Maui in December of 5 1992. December of 1992 is when William Forsyth became 6 ill with this disease, with major depression. He had 7 always been, his whole life, been an anxious -- an 8 anxious person. When the doctors talk about anxiety, 9 it is apprehension, uneasiness, worrying about things 10 that really aren't all that important. He had been 11 that kind of person, had been an anxious person all 12 his life. In fact, he went to the doctor right before 13 he and Mrs. Forsyth came back to Maui and was 14 prescribed some medication for his anxiety. So when 15 he came back, he had this anxiety problem and he also 16 became ill with this disease, major depression. 17 Now, what the evidence will show is that right 18 after they got back to Maui, something happened, and 19 the evidence -- there's no controversy about this. 20 Mr. Forsyth underwent a personality change. Why? 21 Because he became seriously ill with major depression. 22 So we're talking about December of 1992 and his 23 personality change. His family members really tell it 24 the best. He wasn't the same guy. His personality 25 changed. Well, what happened? How did he change? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 291 1 Number one, as we've already discussed, he 2 became depressed, depressed mood, sad. Not happy, no 3 joy, sad. He had his anxiety problem. He had 4 something that may have been panic attacks, but 5 certainly anxiety attacks. He would have from time to 6 time acute, immediate, serious feelings of very severe 7 anxiety, so much so that he would have physical 8 symptoms, heart palpitations. His heart would beat 9 really fast. He would be very afraid and then after a 10 time, those would pass. Those panic or anxiety 11 attacks would happen to him from time to time. 12 He lost weight. He lost interest and pleasure 13 in all the things that he liked to do. Because he was 14 a fellow that really liked to do lots of things and 15 always on the go and doing something, he was a radio 16 control model plane hobbyist. Lost interest in that. 17 He loved his grandchildren. He stopped going 18 and playing with them. He lost interest in that. He 19 would start staying at home, sort of withdrawing from 20 everybody else. He had a problem with sleeping. He 21 developed feelings of guilt. He had no energy. He 22 was tired all the time, and he was withdrawn. All of 23 these things are part of the personality change that 24 happened after they came back to Maui in December of 25 '92. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 292 1 Now, a few more things. As time went on, he 2 developed a fear of being alone. He wanted his wife 3 to stay home with him all the time. He was afraid 4 that he wouldn't be able to cope with just day-to-day 5 living activities. Again, more fear. He had a very 6 low self-worth. I'm worthless. I'm no good. I'm not 7 good for anything. He became hopeless. He began 8 having feelings of helplessness. Not only without 9 hope, but there's nothing I can do about it. I can't 10 help myself. Now, we know all of these things because 11 of Mr. Forsyth's work with the psychologist and 12 psychiatrists. We have their records and you'll hear 13 them testify. 14 Problem number one for William Forsyth, as he 15 told his psychiatrist, I'm lonely. Problem with 16 loneliness. He became dependent on his wife. He felt 17 he couldn't do anything for himself and needed to have 18 her there all the time. If she had to go to the 19 grocery store, come right back. Afraid to stay home 20 by himself. And he lost his mental sharpness. 21 Now, you'll hear all these things in testimony 22 from witnesses. This is how William Forsyth's 23 personality completely changed after he became ill 24 with this disease. 25 Now, we've already heard it was December 7th of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 293 1 '92 that William and June came back to Maui from the 2 Mainland. William went to see the psychiatrist, 3 Dr. Roberts, around the middle of December and he was 4 diagnosed as having major depression. 5 Now, Dr. Roberts prescribed some medication for 6 him, an antidepressant drug called Pamelor, and 7 Mr. Forsyth took Pamelor up until towards the end of 8 February. He was also taking a drug that had been 9 prescribed for him for his anxiety, which is called 10 Xanax. So he was taking these two drugs during this 11 period of time with these symptoms. And what 12 happened? 13 He became more withdrawn, even reclusive, 14 stayed at home all the time, in bed, covers pulled up 15 to his nose in the afternoon. He wouldn't go out. 16 The hopelessness came out because Mr. Forsyth 17 said, I'm not going to get over this. So we come up 18 to -- he went to see Dr. Roberts regularly through 19 this period of time, and we'll go over that to see if 20 this was doing him any good, but what we'll see and 21 what Dr. Roberts will tell you is with the Pamelor, 22 the antidepressant drug, he was not getting any 23 better. It just didn't help him. It could not break 24 his major depression. 25 Now, two things happened on February the 22nd PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 294 1 of 1993. In the morning, so I'll put a.m., 2 Mr. Forsyth called one of his doctors back in Los 3 Angeles, on the Mainland, and had a conversation with 4 him, and he told Dr. Hawley, I think I need to be in a 5 hospital. That was the morning. 6 Dr. Hawley told him, you need to go see your 7 psychiatrist. Go to him. He said, okay. I've got an 8 appointment this afternoon, and, in fact, he did. So 9 in the afternoon of the same day, I'll put p.m., 10 Mr. Forsyth did go to see Dr. Roberts and Dr. Roberts 11 decided that he tried the Pamelor long enough. 12 Pamelor was not breaking Mr. Forsyth's depression, and 13 so he would try a different antidepressant. And I'll 14 talk about trying different antidepressants in just a 15 second, but just to get the facts straight, this is 16 the first time that Mr. Forsyth ever got Prozac in the 17 afternoon of February the 22nd. 18 Now, let's go to February the 24th. What 19 happened on February the 24th? Mr. Vickery told you 20 about February the 23rd, the day after Mr. Forsyth 21 took Prozac, so he had probably taken one pill or two 22 pills. You will hear that Prozac, like just about 23 every other antidepressant, takes two or three or four 24 weeks to become effective. It just needs to build up 25 in your system, and the antidepressant drugs are PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 295 1 basically all like that. That's one of the problems. 2 They don't take effect immediately. It takes a little 3 while before they have an antidepressant effect. 4 So 2/24, what happened was Mr. Forsyth had one 5 of his panic/anxiety attacks, and what did he say? He 6 said the same thing he said the morning of the 22nd. 7 Well, I think I need to be in a hospital. But the 8 panic attack passed. 9 Mr. Forsyth, Jr. called Dr. Roberts and said, 10 you know, dad thinks he needs to be in a hospital. 11 That was arranged. They arranged to fly to Oahu so 12 that he could be checked into Castle Medical Center in 13 the psychiatric unit. And what did Mr. Forsyth say 14 when he got there? Well, I feel okay. I wish I 15 hadn't overreacted. But I'm here and I'm glad I'm 16 here, and maybe I can get some help for the problem 17 that I'm having. 18 So he's in Castle Medical Center from 19 February 24th until March the 3rd. Now, how is 20 Mr. Forsyth behaving during this time? Well, we know 21 that because we have -- we have the testimony of 22 family members and we also have the hospital records 23 and the observations of the doctors. 24 On February 24th, after the panic/anxiety 25 attack had passed and Mr. Forsyth said, well, I wish I PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 296 1 hadn't overreacted, how was he? Well, he was calm. 2 He was sedate. He was not pacing. He was not 3 fidgety. And he's checked into Castle and he stays 4 for about ten days. 5 Now, one of the things that you will hear, and 6 why this evidence here is very important, has to do 7 with the condition that Mr. Vickery mentioned, and we 8 should talk about that. And that condition is a 9 specific medical condition called akathisia. 10 Akathisia. Make sure I can spell it. Akathisia 11 literally means -- it's a medical condition. This 12 kath is either in the Greek or Roman, I'm not sure, 13 for chair. It means literally a person that can't sit 14 down. A person that can't sit down. 15 And there are, just like for major depression, 16 there are specific diagnostic criteria for akathisia, 17 and here's what those are. You have to have two 18 things. One is a subjective complaint of 19 restlessness; that is, a feeling, an inner feeling of 20 restlessness, that's the way you feel, and one or more 21 of actual physical symptoms. And those physical 22 symptoms are this: Fidgety or swinging legs, rocking 23 back and forth. Somebody that's like this 24 (indicating). But it is not just doing it for a 25 minute or two, it's somebody that can't stop rocking PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 297 1 back and forth. Swinging legs, someone who will sit 2 and swing and literally cannot keep their legs still. 3 Pacing, and then an inability to sit or stand still. 4 So for akathisia, you have to have both. One, 5 this inner feeling of restlessness, the way you feel, 6 and the other, the way you act, some physical action, 7 rocking back and forth, can't sit down. People 8 literally will do this, up and down, up and down. 9 They can't remain in one place. And why that's 10 important is, and what you will be able to do now, as 11 the evidence comes in, you'll be able to look for, 12 were these symptoms of akathisia present? 13 Because the evidence will show that on the 24th 14 of February, Mr. Forsyth did not have akathisia. What 15 was he? He was calm, not pacing; sedate, and not 16 fidgeting. And he goes into Castle Medical Center -- 17 go back one second. 18 When Dr. Roberts prescribed Prozac, he also 19 prescribed two other medications for Mr. Forsyth. One 20 of them is called Inderal and then he also had a 21 medication called Desyrel. The Inderal is the 22 medication that doctors sometimes prescribe for 23 symptoms of anxiety. The Desyrel is prescribed for 24 sleep. So Dr. Roberts was treating the depression, 25 the anxiety, and the sleep problems. He was getting PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 298 1 those three medications. 2 Now, after Mr. Forsyth goes into Castle, Dr. 3 Neal takes over his treatment and this medication. I 4 think there may have been a day lapse, but basically, 5 the same medication goes on through his stay at 6 Castle. He's taking Prozac, Inderal, and Desyrel. 7 The Xanax is the medication that Mr. Forsyth was so 8 concerned about because of his history of alcoholism. 9 He was told that Xanax, he could be dependent on it, 10 and he didn't like that at all and he wanted to get 11 off. So the doctor weaned him off of the Xanax, but 12 he was still on the Prozac, Inderal, and Desyrel 13 during his time at Castle. 14 And what do we know talking to the doctors and 15 looking at the medical records during the time that he 16 was at Castle Medical Center, what was Mr. Forsyth's 17 condition? He had no agitation. He was calm. He was 18 quiet. No side effects from Prozac. And what we know 19 most particularly, because we just flat out asked 20 Dr. Neal, his psychiatrist, did he have akathisia 21 during the time he was in Castle? No. No akathisia. 22 Now, one of the most important facts is this: 23 When Mr. Forsyth went and checked into Castle Medical 24 Center, he was taken over by his son and his wife went 25 with him. As part of his intake, he sat down with the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 299 1 counselor and his counselor asked him about his 2 history, what are you thinking? Any problems? That 3 sort of thing. One of the things they talk about is 4 suicidal thinking. They always ask that, especially 5 someone coming in with major depression, absolutely, 6 because suicide is part of major depression. 7 So they ask and Mr. Forsyth says this: Well, 8 my depression has been getting worse the last couple 9 of months, and in the past month I have had suicidal 10 thinking. So by his -- this would be about 1/24. 11 Suicidal thinking past month. That's in the medical 12 records at Castle. This was told, incidentally, not 13 to just one counselor, but to other social workers at 14 different times. Yes, I've been having suicidal 15 thinking the past month. 16 Now, the other point in time where we know, we 17 know about Mr. Forsyth's condition was the time he got 18 out of Castle Medical Center, June, his wife, flew 19 over to Oahu here and picked him up and they flew 20 together back to Maui. Bill Forsyth met them. They 21 had dinner apart and then they got back together that 22 evening. They had a long visit that evening of March 23 the 3rd. 24 And what do we know about how Mr. Forsyth was 25 behaving at that time? Well, we know that he was PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 300 1 calm. That he was quiet. That he was relaxed. That 2 he was not agitated, no pacing. That he was sitting. 3 That's a description of how Mr. Forsyth was at this 4 point in time. So the evidence will show, and you 5 will see there wasn't any time after Mr. Forsyth got 6 Prozac in the afternoon of February 22nd when he had 7 this problem, this condition akathisia. He didn't 8 have it. And the tragic end to the story is, 9 apparently, Mr. Forsyth did kill his wife and then 10 killed himself sometime that night because they were 11 found the next day. 12 Now, what can you make of all that? Well, the 13 evidence -- you're going to hear evidence on another 14 topic and that will be about specifically what 15 happened in this case; that is, a homicide followed by 16 a suicide where someone kills another and then turns 17 around and kills themselves. It's not a common event, 18 but it happens more often than you think, and there 19 have been many studies looking at, well, who are those 20 people? What is it that causes people to do that? 21 And you'll hear about that information and here's what 22 we know about homicide/suicide. 23 Through the studies, we actually know what it 24 looks like. We know who the people are that commit 25 this kind of an act, the joint act of a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 301 1 homicide/suicide, and this is what the studies show. 2 First, who does this kind of a thing? Who? The who 3 is it is done by men and they kill their female 4 partner, spouse or long-time partner. The man is the 5 perpetrator. The woman is the victim. That's what 6 homicide/suicide looks like. Men kill female partner. 7 That's the who. 8 Why? Well, here's what we know the studies 9 show, because of a broken marital or romantic 10 relationship. That's the why. Where does this 11 happen? The studies have looked at this. A 12 homicide/suicide, you can say murder/suicide if you 13 want, male kills the female partner because of a 14 broken relationship. It happens at home and more 15 often than not, it happens in the bedroom. 16 There are at least two kinds of sets of this. 17 One concerns younger couples. One concerns older 18 couples. With the younger couples, it's much more 19 likely that there is a jealousy, sort of a malignant, 20 really not a good jealousy at all, but a jealousy 21 feeling that there's been infidelity and so on. 22 That's what's common in younger couples. 23 In older couples what do we see? One factor, 24 declining health, and that is seen in either the man 25 or the woman. And what do we also see? An underlying PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 302 1 mental illness, and you know what that is? That's the 2 major depression, in the man. 3 What are the triggers? In other words, what 4 happens that seems to bring this on or precipitate 5 this act? Well, the triggers are stress. And what 6 can that be? Marital, financial, health, family, but 7 some stress. And now, an important consideration, 8 what about prior violence? Is this something we see 9 in cases where there has been domestic abuse, a 10 pattern, and then the man just finally kills the wife 11 or the domestic partner? Is that what we see? 12 Again, there's a two-way breakdown. In younger 13 couples, not always, but pretty common prior domestic 14 violence. In older couples, and you will see the 15 studies right on this, absent or rare. So that's what 16 homicide/suicide looks like as you will hear the 17 evidence come in. 18 Now, it is true, it is true that William 19 Forsyth was taking Prozac at the end of his life. 20 That's true. But the evidence will show you that it 21 wasn't Prozac that caused these two deaths. The 22 evidence will show you that this is, in fact, a 23 classic case of homicide/suicide among older couples. 24 William Forsyth killed his wife because their 25 marital relationship was broken. He did it at home in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 303 1 their bedroom. He was in declining health. He was 2 terribly bothered by it. You'll see his own writings 3 that he was bothered. I just can't cope with it 4 anymore. I just can't take care of my affairs 5 anymore. I can't -- he was very worried. You will 6 also hear that Mrs. Forsyth herself, unfortunately, 7 had recurring major depression. 8 The stresses, marital problems, the 9 communication problems they had where he just 10 couldn't -- in his condition, could not cope with the 11 communication that she wanted to have in their 12 marriage. He would get up and leave the house. He 13 couldn't stand it. And you'll also hear in the 14 evidence that prior history of violence in older 15 couples, absent or rare. 16 Now, this case ultimately comes down to, on the 17 one hand, a scientific fact, does Prozac cause people 18 to suicide? Does Prozac cause people to kill other 19 people? And you'll hear the scientific evidence on 20 that fact. It also comes down to the practical, real 21 life story of what happened in a very tragic way to 22 these people, and you will see that Prozac is not 23 necessary to explain this homicide/suicide. All the 24 facts are there. 25 Now, I also want to tell you just a little bit PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 304 1 about antidepressants. Mr. Vickery told you that 2 antidepressants work through chemicals in the brain. 3 That's correct. There was a revolution in medicine, 4 in psychiatry, in the early 1960s. Before there 5 really was no good medication to treat depression. 6 And the kind of depress -- antidepressant was 7 developed called tricyclic antidepressant, and it's 8 abbreviated TCA. And these were the first drugs that 9 could practically help people with depression, and 10 they're very good. 11 Problems? They have some side effects that 12 people just don't like. These side effects are not 13 particularly dangerous. You get a dry mouth, a cotton 14 mouth, but, I mean, it's really a dry mouth, blurry 15 vision, constipation. Some people just said, you 16 know, I don't like that. I don't want to take it. 17 Well, the danger is, if the people are not willing to 18 take the antidepressant medication, then their 19 depression will go untreated. 20 Tricyclic antidepressants took about two, 21 three, four weeks to become effective, just like 22 Prozac. And this is another fact, I think Mr. Vickery 23 referred to it, the tricyclic antidepressants were not 24 able to help everybody. Only 60 or 70 percent of 25 depressed patients would respond to any particular PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 305 1 antidepressant. Tricyclic. 2 Prozac is no different. Prozac will help about 3 two-thirds or 70 percent of the people, and the other 4 30 percent, it just is not able to help them. And 5 what doctors do, like Dr. Roberts did, will try 6 someone on one antidepressant for six weeks or eight 7 weeks or so, and see if they get relief. If it 8 doesn't seem to work for them, then they're probably 9 one of those people that just are not going to respond 10 to that particular one and the doctor will try another 11 one, which is exactly what happened in this case. 12 Now, the real danger in tricyclic 13 antidepressants is this: They take several weeks to 14 become effective, all right? So when you first start 15 taking them, it's not going to work right away. It 16 may not work for you at all. You might be one of the 17 one-third people that it just doesn't work. You might 18 have a depression so strong, so powerful that the drug 19 is simply not able to break it. 20 And what happens to people who have major 21 depression who don't respond to the drug treatment, 22 they can become suicidal even while they're taking the 23 antidepressant. It happens because the drug wasn't 24 working. It hadn't kicked in yet. Maybe they were 25 one of the people that it wasn't going to work for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 306 1 them. Maybe the depression was just too strong. It 2 happens and it's well-known. And the danger with 3 tricyclic antidepressants is, the very medicine that 4 the doctor gave the depressed patient to try to help 5 save their life, they may take an overdose. And 6 antidepressants of the tricyclic kind are toxic in 7 overdose. They will kill you. And that was a big 8 problem. 9 Then Prozac came along. Prozac was of a new 10 kind of antidepressant, slightly different in the way 11 it worked, and the real benefit of it was -- really 12 two real benefits. One, Prozac didn't cause the dry 13 mouth, so people could take it a little more easily, 14 and, of course, if you take the drug, it can help you. 15 If you don't take the drug, it can't help you. So 16 that was a benefit. 17 The other benefit is Prozac is not toxic in 18 overdose. It is very hard to kill yourself taking an 19 overdose of Prozac. That was an enormous step 20 forward. A great benefit. It made giving out an 21 antidepressant finally safe because the patient was 22 very unlikely to be able to turn around and hurt 23 themselves. 24 Now, I said Prozac is no different in some of 25 these considerations than are the tricyclic PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 307 1 antidepressants. It only works in about 70 percent of 2 the people. It takes a few weeks to start becoming 3 effective, and it may not work for somebody at all. 4 It may not be able to break their depression. What 5 happens is people with depression may become suicidal 6 even if they're taking Prozac, but the suicidal comes 7 from the depression, just like the tricyclic 8 antidepressants. 9 Now, there was a controversy that arose, and 10 we'll be talking about it. Mr. Vickery talked about 11 it. In February of 1990, a doctor in Boston published 12 an article and said, well, I've got these six patients 13 and I gave them Prozac -- this was not a study. Just 14 six separate patients -- and they got suicidal 15 thinking. It put the spotlight on Prozac. Maybe the 16 media in the nineties was more attune to making a big 17 splash, but it did, in newspapers, on TV. 18 Was this a problem? The FDA asked questions 19 about it. Lilly asked questions about it, and here's 20 what happened. Lilly went back to the data that had 21 been gathered in all the clinical trials that were 22 done in order to get FDA approval of the drug and 23 looked, does Prozac -- do patients taking Prozac have 24 more suicidal thinking than the patients who were 25 taking either the placebo sugar pill for comparison or PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 308 1 any other antidepressant? Went back and looked at 2 that. Answer: No, didn't see that. Studies were 3 done, published studies in medical literature so all 4 doctors could read about them. 5 Now, Mr. Vickery put some documents up, and 6 we'll be able to talk about those documents in due 7 time, but here's what the evidence will show you. Far 8 from being misleading, far from hiding anything, Lilly 9 on its own undertook to send a letter to every doctor 10 in the United States in August of 1990, and it said, 11 doctor, this article has come out and we want to tell 12 you about it. We want to tell you what we know, what 13 the science shows, but we want you to be aware of it. 14 And we want you to be aware depressed patients can 15 become suicidal even if they're taking medication. 16 In fact, Lilly sent a letter specifically to 17 Dr. Roberts who prescribed Prozac for Mr. Forsyth 18 talking about the same thing. This article has come 19 out, people are asking this question, should there be 20 a concern about suicide? Here's what the studies 21 shows. Here's what the science shows. That's what 22 Lilly did. 23 Prozac is not a perfect drug. There aren't any 24 perfect drugs. It doesn't exist. Prozac has some 25 side effects that for some people, they just -- it's PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 309 1 not good for them. Prozac can cause some people to 2 become just a little bit edgy, a little bit anxious. 3 For some people, they get nauseous. For some people, 4 they have a little problem with insomnia, especially 5 at first. It seems to go away, but that's a side 6 effect. So there are side effects to Prozac, but the 7 evidence will show Prozac does not cause people to 8 kill themselves. Prozac does not cause people to 9 become violent and commit murder. It does not. 10 In 1991, the FDA, after looking at all this 11 data decided, well, let's have a meeting -- 12 MR. VICKERY: Objection. The Court yesterday 13 ruled -- Counsel, is about to argue about something 14 the Court has ruled out of evidence. Excuse me for 15 interrupting, Mr. See, but this is a very serious 16 matter, Your Honor. It can't be cured by an 17 instruction. 18 MR. SEE: I don't think so, Your Honor, but 19 I'll pass over it. I'll skip it. 20 The conclusion of the Food and Drug 21 Administration, which regulates all prescription drugs 22 in the United States is this, and that conclusion 23 stands to this day, there is no credible scientific 24 evidence that taking Prozac causes suicide or causes 25 violent behavior. That conclusion stands to this day. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 310 1 Lilly continues to study the drug. Studies are 2 still being done, still being published in the medical 3 literature. And Mr. Vickery raised some questions 4 with some documents about what happened in Germany, 5 and I'll tell you. It doesn't take very long. 6 Lilly applied to have Prozac approved in 7 Germany as an antidepressant, just like they did here 8 in the United States. The German regulatory agency is 9 not called the FDA. It's called the BGA which is for 10 a real long German word. Ask questions, well, what 11 about this? What about that? What about the suicide 12 business? Lilly provided information, provided the 13 analysis to the BGA, and Prozac was approved by the 14 BGA and is approved and used in Germany up until 15 today. 16 Now, I don't get to speak again, neither does 17 Mr. Vickery, directly to you until the end of the 18 case. This was our chance to tell you what the 19 evidence will be about in the case. I just ask you 20 this: Because in our system, the plaintiffs present 21 their evidence first, that you keep an open mind while 22 that case is going on and that you don't decide until 23 all the evidence is presented. I'm sure you may have 24 had the circumstance where you hear one side of the 25 story and then later on you say, oh, well, gosh, I PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 311 1 didn't know that when you hear the other side. So if 2 you will, keep an open mind and wait until all the 3 evidence comes in. 4 The evidence will show you that Prozac is a 5 good drug. It's not perfect, but it's a good drug, a 6 very useful antidepressant. Prozac has been 7 prescribed and used by tens of millions, tens of 8 millions of people all over the world. All over the 9 world. And is today. 10 The evidence will be that there simply is no 11 credible scientific evidence that Prozac causes 12 violent behavior or that Prozac causes suicide. And 13 at the end of the case, I'll have a chance to come 14 back and we can go over what the evidence has been, 15 both on the scientific question and what the evidence 16 has been about the facts of this case; the evidence 17 that Mr. Forsyth had suicidal thinking as a part of 18 his major depression long before he ever took Prozac. 19 And at that time, when you've heard all the 20 evidence, I will ask you to enter a verdict for my 21 client, Eli Lilly and Company, the pharmaceutical 22 company in Indiana that discovered Prozac and made 23 Prozac and is very proud of it. 24 Thanks very much. 25 THE COURT: It's almost noon. Let's break for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 312 1 lunch now. Please be back at 1:00. 2 (Whereupon, a lunch recess was taken at 3 11:53 a.m.) 4 THE COURT: Please proceed, Mr. Vickery. 5 MR. VICKERY: Thank you, Your Honor. At this 6 time we would like to offer a stipulation between the 7 parties. 8 THE COURT: Very well. 9 MR. VICKERY: Will the Court instruct the jury 10 as to the nature of what a stipulation is and then 11 permit me to read it? 12 THE COURT: That's correct. The Court will 13 instruct the jury that parties have agreed on certain 14 facts and you are to consider those facts as having 15 been proven. 16 Please read the stipulation, Mr. Vickery. 17 MR. VICKERY: Thank you, Your Honor. The 18 parties stipulate to the following facts: That Prozac 19 is an antidepressant manufactured and marketed by Eli 20 Lilly and Company; 21 That Dr. Riggs Roberts prescribed Prozac to 22 William Forsyth, Sr. on February 22, 1993 to treat his 23 clinical depression; 24 That on February 24, 1993, William Forsyth 25 checked into the Castle Medical Center on Oahu; PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 313 1 That Dr. Randolph Neal of Castle Medical Center 2 continued William Forsyth on the prescription of 3 Prozac; 4 That William Forsyth was released from Castle 5 Medical Center on March 3, 1993, and returned to his 6 home on Maui with his wife, June; 7 That sometime during the evening of March 3 or 8 the early hours of March 4, William Forsyth, Sr. 9 stabbed and killed his wife June and then himself; 10 And finally, that in February of 1990, Lilly 11 knew of the article Teicher, Glod, and Cole, quote, 12 Emergence of Intense Suicidal Preoccupation During 13 Fluoxetine Treatment from The American Journal of 14 Psychiatry, Volume 147, Issue 2, 1990. 15 Thank you, Your Honor. We call Detective 16 Dennis Kim of Maui Police Department. 17 MR. CHANG: Your Honor, before Detective Kim 18 comes in, I ask that Susan and Billy be excused for 19 this portion of the trial because of the graphic 20 nature of some of the testimony. 21 THE COURT: Yes, they may be excused. 22 MR. CHANG: Thank you. May we apologize to the 23 jury -- 24 THE COURT: I can't hear you. 25 MR. CHANG: May we apologize to the jury for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 314 1 the nature of what is going to be shown? 2 THE COURT: Yes. 3 DENNIS KIM, 4 called as a witness on behalf of the Plaintiffs, after 5 having been first duly sworn to tell the truth, the 6 whole truth, and nothing but the truth, was examined 7 and testified as follows: 8 THE CLERK: Please be seated. Please state 9 your name and spell your last name. 10 THE WITNESS: My name is Dennis Kim, K-I-M. 11 DIRECT EXAMINATION 12 BY MR. CHANG: 13 Q. Mr. Kim, what is your current residence 14 address? 15 A. I live at 915 Wailupi Drive, Wailuku, Maui. 16 Q. And, Mr. Kim, could you give us your current 17 occupation? 18 A. Excuse me. I'm presently employed with Quest 19 Intelligence Bureau as a security officer. 20 Q. And how long have you been employed there? 21 A. Two months. 22 Q. And what kind of work are you engaged in as a 23 security officer? 24 A. I work at the Social Security office in 25 Wailuku, Maui, and I'm in -- we just control the crowd PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 315 1 you might say. 2 Q. Now, prior to your being in this occupation, 3 what was your former occupation? 4 A. I was a police detective. 5 Q. And is that with the Maui Police Department? 6 A. Yes, Maui Police Department. 7 Q. And for how many years had you been with the 8 Maui Police Department? 9 A. Twenty-six years. 10 Q. And what was the last rank that you achieved 11 before retiring? 12 A. Detective. 13 Q. And how long had you been a detective? 14 A. About 13 years. 15 Q. Would it be okay if I also referred to you as 16 Detective Kim? 17 A. It's okay with me. 18 Q. Okay. Thank you. And as a detective with the 19 police department, what kinds of situations would you 20 be investigating? 21 A. Well, we're called the general detail, so we 22 investigated sexual assaults, felony assaults, 23 burglaries, robberies, kidnappings, murders, suicides. 24 Whatever was a felony we were sent to investigate 25 those. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 316 1 Q. And were you trained to investigate both deaths 2 as well as homicides? 3 A. Yes, I was. 4 THE COURT: Mr. Chang, would you go over to the 5 podium please and question him from there? 6 MR. CHANG: Sure. 7 Q. Now, Detective Kim, when did you retire from 8 the Maui Police Department? 9 A. I retired on June 29, 1996. 10 Q. I'm going to ask you to remember back to March 11 of 1993 and the occasion would be March 4, 1993 at 12 approximately 6:30 p.m. Can you tell us what kind of 13 call you received on that evening? 14 A. I received a call about 6:30 p.m. from the 15 Wailuku Central Dispatch informing me to return to the 16 Lahaina district to conduct an investigation of a 17 possible homicide. 18 Q. And at that time when you received the call, 19 where were you? 20 A. I was at home. 21 Q. And what did you then do? 22 A. I then drove to the Lahaina district station, 23 and all the detectives that were recalled back to 24 duty, we met at the station and were given our 25 assignments. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 317 1 Q. Now, did you arrive at the Lahaina station at a 2 certain time? 3 A. At about eight o'clock. 4 Q. And where were you apprised that the homicide 5 may have taken place, what address or residence? 6 A. Address was at 155 Piihaa Street in Kaanapali. 7 Q. And did you then proceed to that residence? 8 A. Yes, we did. 9 Q. And were you accompanied by other detectives as 10 well? 11 A. Yes, there were three others. There was 12 Detective Cedric Zuma. He was assigned to take 13 photographs and video. Detective Gary Moniz was 14 assigned to sketch the scene, and Detective Roy Tom 15 was also assigned to assist and to recover evidence. 16 Q. And were you treated or considered the primary 17 or chief investigator for this particular -- 18 A. I was assigned to be the primary investigator. 19 Q. Now, approximately what time did you arrive at 20 that residence? 21 A. We arrived at approximately 8:30 p.m. 22 Q. Was there anyone else there at the scene at 23 that time? 24 A. Yes, there were the responding patrol officers, 25 the men in uniform. They are always first at the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 318 1 scene. 2 Q. Now, can you briefly tell us, basically, what 3 happened when you entered the dwelling? 4 A. Well, it was a two-story dwelling, and we 5 walked up the stairway from the front onto the lanai 6 and we went through the lanai doors into the dining 7 area, whereupon, I looked to my left into the kitchen 8 and I saw a male figure, white male figure, laying on 9 the kitchen floor. And then after that, I think I 10 walked away from the kitchen, walked down the hallway 11 into the bedroom, whereupon, in the bedroom I 12 discovered or I saw a white female laying on the bed, 13 on the left side I believe it was, and there was a 14 large pool of blood under her. I also saw a knife on 15 the bed, on the right side of the bed as you're facing 16 the bed, and she appeared to be lifeless. And like I 17 said, there was a large pool of blood. That was the 18 most I had ever seen in my entire experience as a 19 police officer. 20 Q. And after you observed this woman on the bed, 21 where did you proceed after that? 22 A. After I observed the woman, I turned around to 23 my right and I saw a doorway leading into the kitchen. 24 I went to the door, and on the door I noticed a smear 25 of blood on the door paneling. Then, as I looked down PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 319 1 towards the doorknob, I saw a smear of blood on the 2 doorknob. Then as I walked into the -- through the 3 doorway, I noticed on top of the stove, the counter, 4 there was blood on the little counter and then I saw 5 the male laying on his back with his head propped 6 against the stove and there was a large handle 7 imbedded in his abdomen and then I saw a stool on the 8 floor that had been knocked over. 9 Q. Now, was it at this point in time that you and 10 the other detectives began your official 11 investigation? 12 A. Yes. 13 Q. And as part of that investigation are there 14 different tasks that each of you were assigned to do? 15 A. I was assigned, as the primary investigator, 16 that was to question any suspects or to determine if 17 there was any suspects, to determine if there was any 18 type of struggle or forced entry to the residence, and 19 if I did discover anything of that nature, the 20 photographer would -- Detective Cedric Zuma, he would 21 be instructed to take a picture of that -- of what we 22 found, and Detective Moniz would be assigned to take 23 the measurements, if we found any signs of entry, and 24 Detective Wally Tom was to record all of that as the 25 evidence technician. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 320 1 Q. Now, in addition to the actual investigation 2 that you and the other detectives would do, was also 3 an autopsy required as a matter of law? 4 A. Yes. I had to prepare a coroner's inquest and 5 autopsy request, and that was done -- the coroner's 6 inquest was done, I think that night, and the autopsy 7 was done a day or two later. 8 Q. And is it also required as part of your 9 investigation to prepare an official Maui Police 10 Department report? 11 A. Yes. 12 MR. CHANG: At this time, Your Honor, we would 13 like to offer Plaintiffs' Exhibit No. 165, which is 14 the Maui police report into evidence at this time? 15 MR. SEE: No objection. 16 THE COURT: Plaintiffs' 165 -- is that it, 165? 17 MR. CHANG: That's right, Your Honor. 18 THE COURT: That's admitted. 19 MR. CHANG: Thank you, Your Honor. 20 Q. Now, Detective Kim, you mentioned that one of 21 the duties of one of the detectives would have been to 22 prepare sketches of the scene; is that correct? 23 A. Yes. 24 Q. I'd like to ask you to come down from the stand 25 at this point in time. Detective Kim, this sketch, do PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 321 1 you recognize this sketch? 2 A. This sketch is the upper floor plan of the 3 residence. 4 Q. And was this sketch part of the Maui police 5 report? 6 A. Yes. 7 Q. And it's found on Page 28? 8 A. I believe so, yes. 9 Q. I'll show you this next one. Do you recognize 10 that sketch? 11 A. Yes. 12 Q. And would you describe that for us? 13 A. That is the diagram of the kitchen area. 14 Q. And again, this is a part of the Maui Police 15 Department report? 16 A. Yes, it is. 17 Q. On Page 29? 18 A. Right. 19 Q. And I'll show you this sketch. Do you 20 recognize this sketch? 21 A. Yes. 22 Q. And what does it depict? 23 A. That is the sketch of the bedroom where the 24 incident occurred. 25 Q. And again, this is part of the Maui Police PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 322 1 Department report? 2 A. Yes, it is. 3 Q. And found at Page 30? 4 A. Yes. 5 Q. Now, Detective Kim, was a videotape also taken 6 of the scene? 7 A. Yes, it was. 8 Q. And who took that videotape? 9 A. That was Detective Zuma. 10 Q. And again, the taking of the video was part of 11 the official investigation of this crime? 12 A. Yes, it was. 13 Q. Now, at this point in time, I'd like to ask the 14 videotape be turned on. Can we begin the video, 15 please? 16 (Whereupon, the video began playing.) 17 Q (By Mr. Chang) Can we just freeze right at 18 this frame. Is it possible to stop it without -- 19 THE COURT: What exhibit is the video? 20 MR. CHANG: It is also part of 165, Your Honor. 21 THE COURT: Very well. 22 Q (By Mr. Chang) Detective Kim, do you recall 23 or do you recognize this portion of the home. 24 A. This is where Detective Zuma had gone through 25 from the lanai or to the dining area of the residence. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 323 1 Q. And referring to the chart, Page 28, where 2 would that be? 3 A. This is the stairway. This is the lanai, and 4 this would be the dining area right in this area here. 5 Right here (indicating). 6 Q. Which would be the letter B? 7 A. B, correct. 8 Q. Now, it appears that there is some kind of 9 paper that's laid on the floor. What's the purpose of 10 that? 11 A. This paper was laid on the floor so that we 12 don't track anything in from the outside. It is the 13 control officers that entered before we did, and if we 14 found anything of evidence or value, we would put it 15 on the paper and mark it. We laid it in order one, 16 two, three. At this particular time, we used the 17 paper to step on the paper to not disturb the scene. 18 Q. All right. Can we continue the video, please? 19 (Whereupon, the playing of the video resumed.) 20 Q (By Mr. Chang) Now, which room is Detective 21 Zuma filming at this point in time? 22 A. This is the living room which would be J, 23 family room/living room. 24 (Whereupon, the playing of the video resumed.) 25 Q (By Mr. Chang) Could we freeze it for one PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 324 1 second right there? Is there any significance to 2 having filmed the dining room, living room area as a 3 police officer investigating this scene that is of 4 importance of filming that particular room? 5 A. We try to look for disturbances, forced entry, 6 or struggle, if there was a struggle of any sort. If 7 we found anything of that nature, it would be shown in 8 this video. 9 Q. In this particular room that was just shown, 10 was there any evidence of that? 11 A. No, there was no signs of any struggle. 12 Q. Please continue. 13 (Whereupon, the playing of the video resumed.) 14 Q (By Mr. Chang) Just to freeze one second 15 there. Now, Detective Kim, referring to Chart 29, I 16 believe you mentioned was the kitchen, which side 17 would you be entering in this stage of the video? 18 A. At this particular time of the video, Detective 19 Zuma is entering through this entrance here 20 (indicating). 21 Q. Okay. Please continue again with the video. 22 (Whereupon, the playing of the video resumed.) 23 Q (By Mr. Chang) Again, is there any 24 significance of the telephone as well as the papers 25 that are there? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 325 1 A. Because it was in the kitchen, we try to 2 determine that there was no signs of any struggle 3 within the kitchen area, as everything was completely 4 neat on the countertops, papers weren't disturbed, 5 nothing was knocked over. 6 Q. Please continue. 7 (Whereupon, the playing of the video resumed.) 8 Q (By Mr. Chang) Can we freeze right there? 9 Now, Detective Kim, using the chart again, can you 10 show us the path that Detective Zuma had taken using 11 the video camera? 12 A. After he went into the kitchen, he came out the 13 doorway, went down the hallway, these (indicating) are 14 the master bedroom, which is location E. 15 Q. All right. Let's please continue. This shot 16 is looking back into the kitchen from the other side? 17 A. From the bedroom. 18 (Whereupon, the playing of the video resumed.) 19 Q (By Mr. Chang) Can we freeze right there? 20 What is that mark on the door, Detective Kim? 21 A. This is a blood smear. 22 Q. And what would the significance be of seeing 23 something like that? 24 A. That would indicate to me that he had pushed 25 the door open and his hand was all bloody. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 326 1 Q. Please continue. 2 (Whereupon, the playing of the video resumed.) 3 Q (By Mr. Chang) And the significance of the 4 blood stain on the doorknob? 5 A. He opened the door to get to the kitchen. 6 Q. Freeze right there for a second. Detective 7 Kim, what would be the significance of that particular 8 mark? 9 A. That shows that he laid his hand on top of the 10 counter, his bloody hand, to reach for the knife in 11 the knife rack. 12 Q. Please continue. 13 (Whereupon, the playing of the video resumed.) 14 Q (By Mr. Chang) Can we freeze right there? 15 Now, Detective Kim, did you examine that stool as part 16 of your investigation? 17 A. Yes, I did. 18 Q. And did you find anything of significance on 19 the stool? 20 A. There is an indentation in the seat of the 21 stool that matched the handle of the knife. What he 22 had done was placed the stool in front of him and 23 propped the knife handle on top of the stool and then 24 leaned over and placed himself on the knife, and with 25 his weight, he pushed it into his abdomen, and as he PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 327 1 fell, the stool fell with him. 2 Q. Please continue. 3 (Whereupon, the playing of the video resumed.) 4 Q (By Mr. Chang) And again, what splatter -- 5 what significance would that splatter be? 6 A. He was reaching for the knife. 7 Q. Can we freeze there one second? Detective Kim, 8 is there any significance to videoing the top sink 9 area? 10 A. Those types of schedules, that anyone trying to 11 clean their hands from the blood, it would be messed 12 up. So it was completely spic and span, as you might 13 say. 14 Q. Please continue. 15 (Whereupon, the playing of the video resumed.) 16 Q (By Mr. Chang) Can we freeze right there? 17 Detective Kim, is there some significance to a wound 18 being there? 19 A. This is a defense wound. This is what happens 20 when someone is trying to attack you and you -- trying 21 to stab you and you trying to block the blows from the 22 knife. If someone comes at you with a knife or 23 anything like a stick, you try to block it off, so 24 this type of wound is trying to fend off from being 25 stabbed. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 328 1 Q. Please continue. 2 (Whereupon, the playing of the video resumed.) 3 Q (By Mr. Chang) Are those wounds of 4 significance as well? 5 A. Again, these are defense wounds. I guess she's 6 trying to cover up the blows from the knife. 7 Q. Please continue. 8 (Whereupon, the playing of the video resumed.) 9 Q (By Mr. Chang) Can we freeze right there? 10 Detective Kim, what was the significance of taking 11 this particular video shot? 12 A. That's the wound from her left chest where the 13 knife pierced her chest and her lung. 14 Q. Please continue. 15 (Whereupon, the playing of the video resumed.) 16 Q (By Mr. Chang) Can we freeze right there? 17 Detective Kim, was there a significance in the video 18 shots of those areas? 19 A. That was to show the amount of blood loss the 20 victim suffered from, the wounds that she received. 21 This meant that she lived a long time before finally 22 dying. 23 Q. Please continue. 24 MR. SEE: Your Honor, I object to the last 25 statement of the detective and move it to be stricken. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 329 1 No foundation and not an expert for that subject. 2 THE COURT: I'll strike that at this time. The 3 jury is instructed to disregard the last statement of 4 Detective Kim. 5 Q (By Mr. Chang) Please continue. 6 (Whereupon, the playing of the video resumed.) 7 Q (By Mr. Chang) Can we freeze right there? 8 Detective Kim, is there a significance to the panning 9 of the items that are in the room at this point in 10 time? 11 A. You saw the camera and the handbag on the 12 chair. That means that there was no type of motive or 13 any kind of person entering the residence for burglary 14 or robbery for any type of reason we know of during 15 the time of the investigation. 16 Q. How about the orderliness of different items? 17 A. The items, it looked like she was a very 18 particular housekeeper. Everything was in its place. 19 Q. Please continue. 20 (Whereupon, the playing of the video resumed.) 21 Q (By Mr. Chang) Again, what kinds of wounds 22 are these, Detective Kim? 23 A. These are all defense wounds. 24 Q. More defense wounds? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 330 1 Q. Thank you. 2 (Whereupon, the playing of the video resumed.) 3 Q (By Mr. Chang) Can we freeze right there? 4 Detective Kim, is there any significance to the amount 5 of blood or splattering in this particular section of 6 the bed? 7 A. This is where she was probably laying down. 8 The blood from her body has dripped down from the 9 sides of the bed to the floor. 10 Q. Does this indicate which side of the bed the 11 attack took place on? 12 A. She was on the left side of the bed. 13 Q. The attacker would have been on the same side 14 that we're looking at? 15 A. Yes. 16 Q. And the tabletop had a clock on it, was 17 anything knocked off of that table? 18 A. No. 19 Q. Please continue. 20 (Whereupon, the playing of the video resumed.) 21 Q (By Mr. Chang) Okay. Can we freeze at this 22 point in time? 23 MR. CHANG: Your Honor, as far as the 24 plaintiffs' case in chief, this is the extent of the 25 video that we were going to use, as far as our case, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 331 1 as far as the relevance we have to the issues in our 2 case. I understand that Mr. See has another 15 or 20 3 minutes to be played to the jury. Is it the Court's 4 understanding that we'll do it now or during his 5 cross-examination? 6 THE COURT: What's the pleasure of the parties? 7 MR. SEE: It would make sense for the 8 continuity of the video to go ahead and play it now, 9 Your Honor, if that's agreeable. 10 THE COURT: Mr. Vickery. 11 MR. VICKERY: That's fine with me as long as on 12 the time keeping, that twenty minutes comes off of 13 Mr. See's time, Your Honor. 14 THE COURT: All right. 15 MR. CHANG: Since we don't have any more 16 questions for Detective Kim, as to the video at this 17 point in time, is it okay for him to go back and relax 18 in the chair for now? 19 THE COURT: That's fine, unless Mr. See wants 20 him up there. 21 MR. SEE: No, he can retake his seat. Thanks, 22 Judge. 23 MR. CHANG: Thank you, Your Honor. Go ahead 24 and play the rest of the video at this point in time. 25 (Whereupon, the playing of the video resumed.) PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 332 1 MR. SEE: Your Honor, that would be sufficient 2 for our purposes. 3 THE COURT: Very well. 4 Q (By Mr. Chang) Now, Detective Kim, in 5 addition to conducting an investigation at the scene 6 of the crime, did you also conduct an autopsy or was 7 an autopsy also done? 8 A. By the state law it requires an autopsy be done 9 and after we get the coroner's inquest, I mean, the 10 coroner's request and the autopsy request, I attended 11 the autopsy also. 12 Q. And do you recall about how many days after 13 this video was shot that the autopsy was done? 14 A. On the 7th, I believe. 15 Q. And who did the autopsy? 16 A. Dr. Kanthi De Alwis. 17 Q. And which office is she with? 18 A. She's with the Honolulu Medical Examiner's 19 office. 20 Q. And I think you mentioned that you were present 21 throughout the course of the autopsy? 22 A. Yes, I was. 23 Q. And did you also discuss the findings of Dr. De 24 Alwis with her? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 333 1 Q. And these were also made part of your official 2 coroner's inquest? 3 A. Yes, it was. 4 Q. I'm going to show you at this point in time 5 this document. Can we pan down a little bit to the 6 signature, please. 7 Do you recognize this document, Detective Kim? 8 A. Yes, I do. 9 Q. Okay. Can we also go to the title of it? Can 10 you tell us what this document is? 11 A. That is a coroner's, I believe, inquest. I 12 can't see it from over here. But there's a document 13 that has to be done every time we have a murder, 14 suicide, or any time that we find a person that has 15 been deceased, and I have to make out that document or 16 the assigned detective has to make out that document. 17 Q. And you are given the title at that point as 18 deputy coroner? 19 A. Yes. 20 Q. And is that your signature that appears at the 21 bottom of that document? 22 A. Yes, it is. 23 Q. And is this the coroner's inquest for which 24 Forsyth? 25 A. This is for June Forsyth. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 334 1 Q. I'll show you the next document. And again, do 2 you recognize this document? 3 A. Yes. 4 Q. And is that, again, your signature on the 5 bottom? 6 A. Yes, it is. 7 Q. And this is a coroner's inquest as to which 8 person? 9 A. William Forsyth. 10 Q. Now, were these documents also made part of the 11 Maui police report? 12 A. Yes, it is. 13 Q. Now, taking the results of the autopsy together 14 with your investigation, did you reach certain 15 conclusions in this case? 16 A. At the autopsy I did ask Dr. De Alwis the cause 17 of death for both parties and she indicated to me or 18 told me that Mrs. Forsyth had suffered a lot and she 19 died a slow death. 20 MR. SEE: Your Honor, objection. It's hearsay. 21 This witness is not qualified as an expert. Ask that 22 it be stricken. 23 THE COURT: Sustain. It will be stricken. 24 MR. CHANG: Your Honor, can I just ask the 25 detective as -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 335 1 THE COURT: The jury is instructed to disregard 2 Detective Kim's last statement. 3 MR. CHANG: May I ask the detective as to his 4 experience to these matters? 5 THE COURT: I don't think he's qualified in 6 this area. 7 MR. CHANG: Well, may I just ask as to his 8 experience first of all and then the Court can decide 9 at that point in time? 10 THE COURT: Very well. 11 MR. CHANG: Thank you, Your Honor. 12 Q. Detective Kim, in the course of your carrier as 13 a Maui police officer and also as a detective, you 14 indicated that you've investigated many different 15 kinds of felonies; is that correct? 16 A. That's correct. 17 Q. And these felonies would include homicides? 18 A. Yes. 19 Q. Would they also include suicides? 20 A. Yes. 21 Q. And have you also investigated assaults? 22 A. Yes. 23 Q. And in the course of your investigations, do 24 you also get involved with traffic accidents? 25 A. As a patrol officer and a patrol sergeant, I PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 336 1 was involved, I did investigate fatalities, yes. 2 Q. And you were also trained as a detective to 3 investigate homicides; is that correct? 4 A. Yes. 5 Q. And were you also trained as to the 6 significance as to the amount of blood loss of a 7 victim? 8 A. Yes. 9 Q. And what kind of training were you given as to 10 that significance? 11 A. I attended several seminars that was given by 12 the FBI and other agencies as to the cause of death, 13 types of deaths, and things of that nature, and at one 14 seminar we were told that the victim suffered a lot -- 15 MR. SEE: Your Honor, again I object. The 16 witness is testifying to expert matters about which he 17 is not qualified nor has he be designated. 18 THE COURT: I'm going to sustain the objection. 19 MR. CHANG: Thank you, Detective. 20 Q. Now, as far as the autopsy was concerned, were 21 you present at the autopsy of June Forsyth? 22 A. Yes, I was. 23 Q. And could you -- I guess, was there anything 24 unusual about her appearance at that autopsy from 25 other autopsies which you've been at? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 337 1 MR. SEE: Objection, vague. 2 THE COURT: Was there anything unusual? 3 MR. CHANG: I'll restate the question, Your 4 Honor. Let me just one more time. 5 Q. As far as the autopsy of June Forsyth, did you 6 make any observations of her condition that was of 7 significance to you in the preparation of your report? 8 A. My personal observation? 9 Q. Correct. 10 A. Well, I would say through my experience 11 attending autopsies that Mrs. Forsyth was completely, 12 I mean, her pallor was completely white. I mean, I 13 have never seen anything like that before. Usually 14 there is some kind of coloring to the person's body, 15 like a little bit of pinkness or maybe post-morbidity 16 on the bottom of the body, where the body was laying, 17 where the gravity is slow, but she was completely 18 devoid of color, completely devoid of color. 19 Q. Did Dr. De Alwis also attempt to try to extract 20 some blood from her for purposes of testing? 21 A. Yes. 22 Q. And was she successful in doing that? 23 A. No. 24 Q. Why not? 25 A. There was no blood. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 338 1 Q. Detective Kim, did you reach a conclusion as to 2 whether a third party may have been involved or had 3 been a cause of this crime? 4 A. Yes. There was no other person involved 5 because there was no indication that would lead to a 6 suspect or any other person that was in the home at 7 that particular time. 8 Q. Was there any sign of struggle -- other than in 9 the bedroom, was there any sign of struggle anywhere 10 else in the house? 11 A. No. 12 Q. Now, did you reach a conclusion as to what 13 happened to June Forsyth as far as when she was lying 14 on the bed, what happened to her at that point in 15 time? 16 MR. SEE: Objection, calls for speculation. 17 MR. CHANG: That's part of his investigation, 18 Your Honor, as to determining what is the manner and 19 cause of her death and how this crime may have 20 occurred. I think that's part of his total 21 investigation. 22 THE COURT: I'll allow that question. 23 MR. CHANG: Thank you. 24 Q. Detective Kim. 25 A. Well, from what we observed through her wounds, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 339 1 it appeared that she had been sleeping on her stomach 2 and that the attack occurred from her back as she was 3 laying on her stomach, and then she turned over, tried 4 to stop the knife from hitting her or stabbing her and 5 that was the defense wounds. She was stabbed 6 repeatedly and cut, you know, several times until she 7 got that -- the knife was plunged into her left side 8 which collapsed her left lung. 9 Q. Detective Kim, I'll show you what is also part 10 of the police report. Do you recognize this 11 photograph? 12 A. Yes, I do. 13 Q. And what is that photograph depicting? 14 A. That shows the victim laying on her left side 15 with the knife on the bed. 16 Q. And does it also indicate where the defense 17 wounds were on her? 18 A. On her right arm and her left thumb, by the 19 thumb. 20 MR. CHANG: Your Honor, I'd like to publish 21 this photograph to the jury. 22 THE COURT: Is it any different than the video 23 that we just saw? 24 MR. CHANG: It is a better depiction of the 25 particular wounds that we've been talking about. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 340 1 THE COURT: Very well. 2 MR. CHANG: Thank you, Your Honor. 3 Q. Now, Detective Kim, did you reach any 4 conclusions as to where this knife came from? 5 A. It came from the kitchen area or came from the 6 home. Probably from the knife rack that was over the 7 stove. 8 Q. Now, did you also reach any conclusion as to 9 who committed this homicide of Mrs. Forsyth? 10 A. Yes. 11 Q. And what was your conclusion? 12 A. Mr. Forsyth. 13 Q. And what did you base that upon? 14 A. What occurred in the residence and that there 15 was no other, you know, no signs of struggle. There 16 was no forced entry that we can determine -- 17 MR. SEE: Your Honor, I'm sorry, Detective Kim, 18 this has all been stipulated, so it's cumulative. 19 THE COURT: That's correct. 20 MR. CHANG: That's fine, Your Honor. I was 21 just using that really as the entree to the next 22 question. I just wanted to lay that foundation first. 23 THE COURT: All right. What's the next 24 question? 25 Q (By Mr. Chang) Did you also reach a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 341 1 conclusion as to what Mr. Forsyth did after he left 2 the scene where his wife was located in the bed, where 3 did he go after that? 4 A. He went into the kitchen, whereupon, he grabbed 5 another knife, a large knife, and then he got the 6 stool, propped the stool up, and then he placed the 7 knife handle on top of the stool and then plunged his 8 body onto the knife. 9 Q. You also, I think, testified earlier that you 10 were able to determine this because of some mark on 11 the stool? 12 A. Yes. 13 Q. At this time, Detective Kim, I'll show you 14 again another photograph from the police report. Do 15 you recognize that photograph? 16 A. This is Mr. Forsyth with the knife blade in his 17 abdomen and the stool laying on its side. 18 Q. And does that photograph depict that mark on 19 the stool? 20 A. Yes, it does. 21 Q. And it is sort of a blackish colored mark? 22 A. It is a dark colored mark in the middle of the 23 stool, approximately in the middle of the stool. 24 MR. CHANG: At this time I would like to 25 publish this to the jury. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 342 1 THE COURT: You may. 2 MR. CHANG: Thank you. 3 Q. Now, Detective Kim, as to reaching a conclusion 4 as to the manner of death of June Forsyth, which is 5 also made part of your coroner's inquest, what was the 6 manner of death of June Forsyth? 7 A. Exsanguination, loss of blood. 8 Q. Basically, she bled to death? 9 A. Bled to death, that's correct. 10 Q. And the cause of death or the manner of death, 11 was it considered a homicide? 12 A. Yes. 13 Q. And as to the cause of death of Mr. Forsyth, 14 what was the conclusion? 15 A. He had placed a knife in his abdomen, and I 16 think, it punctured his right renal artery, and the 17 cause of that was by suicide. 18 Q. As part of your investigation, was any 19 toxicology test done of Mr. Forsyth's blood? 20 A. Yes, it was. 21 Q. Tell us, in general, what is the purpose of a 22 toxicology test in this situation. 23 A. It was requested by the coroner, and the 24 toxicology test is to be conducted for any type of 25 drugs or alcohol within the person's blood samples. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 343 1 Q. Is there any significance as to having any 2 blood or I mean, drugs or alcohol in the person's 3 system? 4 A. It could be a probable cause for his actions. 5 Q. Now, in -- 6 MR. SEE: Your Honor, I object to the 7 detective's last response and move that it be 8 stricken. It is an improper expert's opinion. It's 9 not been designated. 10 MR. CHANG: It was just a general question as 11 to, in general, why do they do a toxicology test? 12 THE COURT: Well, I'm going to sustain the 13 objection. 14 MR. CHANG: Thank you, Your Honor. 15 MR. SEE: May I ask that the testimony be 16 stricken, Your Honor? 17 THE COURT: The testimony will be stricken. 18 Q (By Mr. Chang) Now, in Mr. Forsyth's 19 situation or case was any investigation done to 20 determine if there were any drugs found in the house? 21 A. We did go through the entire residence looking 22 for any type of medication or any kind of drugs or 23 something that was illegal or contraband, and we did 24 find something in his bathroom, and that was called 25 Prozac. And I can say that I never heard of that word PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 344 1 until that day. And what we did was after we -- 2 MR. SEE: With respect, there is no question 3 pending. 4 THE COURT: Pardon me? 5 MR. CHANG: I'll restate the question. 6 Q. Detective Kim, you said you found the drug 7 Prozac in Mr. Forsyth's bathroom; is that correct? 8 A. Yes. 9 Q. Was this drug recovered? 10 A. After we discussed what was going on, what was 11 happening, trying to make a determination as to the 12 crime itself, we decided that because of the fact that 13 we never heard about this type of medication, I'll 14 call it medication because I'm not an expert on that, 15 that we would go back and recover it. So we did 16 recover that particular medication. 17 Q. When you say, "we, we discussed it," who was 18 the we? 19 A. The assigned detectives at the scene. 20 Q. So was it that one of you found the drugs first 21 and then discussed about the significance of what that 22 drug was? 23 A. Yes. 24 Q. And then the drug was recovered at that point? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 345 1 Q. What was done with that drug after? Did you 2 discuss the drugs with anyone else at that point in 3 time? 4 A. I had to talk to the doctor regarding 5 Mr. Forsyth, I would say, pharmacology to see if he 6 had been taking any kind of medication or was 7 prescribed any medication and what he was being 8 treated for, and the doctor told me that he was being 9 on Xanax, but then Mr. Forsyth wanted to get away from 10 Xanax, so he prescribed Prozac. That was prior to him 11 going to Castle Memorial, I believe it was where he 12 admitted himself for observation. 13 Q. And did you also discuss this finding with 14 Dr. De Alwis? 15 A. Yes, I did. 16 Q. And what did you mention to her about what you 17 discovered? 18 A. Well, prior to the coroner making the autopsy, 19 she wanted to know the background and the facts of the 20 case, so we explained to her what had happened, what 21 we found in the residence and that we had found this 22 medication called Prozac and that we would like to 23 have a test conducted on that also in the toxicology 24 test. 25 Q. Now, the Prozac that you recovered from PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 346 1 Mr. Forsyth's bathroom, were there any pills missing? 2 A. Two was missing from what I recall. 3 Q. And it was some kind of a pack? 4 A. It was in a box. 5 Q. So to the best of your knowledge, was the 6 toxicology report done on Mr. Forsyth's blood? 7 A. It was done, yes. 8 Q. Now, I'm going to show you this next document. 9 Why don't you come down. It probably would be easier 10 to see at this point in time. Do you recognize this 11 document? 12 A. This document, as you see, chemical toxicology 13 institute that mentions what was done on the test 14 itself, when it was conducted, what they found in the 15 blood samples. 16 Q. And what was one of the chemicals that was 17 found in the blood samples of Mr. Forsyth's blood? 18 A. I know it was Prozac. 19 Q. Okay. You can go back to your stand again. 20 So the toxicology report indicated that 21 Fluoxetine was found in his system; is that correct? 22 A. I have a hard time pronouncing that word, but 23 it's Fluoxetine. 24 Q. Fluoxetine. 25 A. That's correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 347 1 Q. And was it your understanding that that was the 2 generic name of Prozac? 3 A. Yes. 4 Q. Detective Kim, I'm going to show you this last 5 photograph which is part, again, of the Maui police 6 report. Do you recognize that photograph? 7 A. Yes, this was taken by one of the detectives. 8 I think Detective Zuma. 9 Q. And what does it depict? 10 A. It's the Prozac box. Excuse me, Your Honor, I 11 have to use my dark glasses because mine aren't ready 12 yet, my other pair. Right under the word Prozac is 13 that chemical name, Fluoxetine. 14 Q. And this is the Prozac box that was recovered 15 from Mr. Forsyth's bathroom; is that correct? 16 A. Yes. 17 MR. CHANG: Your Honor, at this time I would 18 like to publish this photograph to the jury. 19 THE COURT: The box of Prozac? 20 MR. CHANG: This is what was part of the 21 evidence that was recovered from the scene. 22 THE COURT: Okay. 23 MR. CHANG: Thank you, Your Honor. 24 Your Honor, that's all the questions I have for 25 Detective Kim. Thank you. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 348 1 THE COURT: Mr. See. 2 MR. SEE: Yes, Your Honor. May we have just 3 one second to find an exhibit? 4 If I might approach the witness and hand him an 5 exhibit? 6 THE COURT: You may. 7 CROSS-EXAMINATION 8 BY MR. SEE: 9 Q. Detective, let me hand you what's been admitted 10 in evidence as 165. That's a copy of the police 11 report that you've just given testimony about. 12 First, when the video kept on playing, do you 13 recall that there were some scenes of an office with a 14 desk and some papers and books and so on? Do you 15 recall that? 16 A. In the kitchen or in another room? 17 Q. In another room. 18 A. Yes. 19 Q. Is it the case, Detective, that your men; that 20 is, your officers, who entered the house did not 21 disturb any of those materials before those 22 photographs were taken? 23 A. From my understanding, yes. 24 Q. That would be your policy and practice? 25 A. Well, normally patrol officers do tend to get PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 349 1 nosey, but we stress upon them not to touch anything 2 that doesn't belong to them, but there are some guys 3 they are fool hearted and they will touch something. 4 Q. As far as you know, were all of the items in 5 the Forsyth home as they were before your officers 6 entered the building at the time the video was taken? 7 A. Yes. 8 Q. Would you turn to Page 005 of the police 9 report, please, sir. The 005 is down in the lower 10 right-hand corner. Do you have it there? 11 A. Yes. 12 Q. All right. Now, I want you specifically to 13 look at item number seven, do you see that? 14 A. Yes. 15 Q. If I understand correctly, this particular 16 listing is a listing of items that officers from your 17 department removed from the Forsyth home; is that 18 right, sir? 19 A. That's correct. 20 Q. Now, item number seven specifically refers to 21 an unmailed, stamped and sealed envelope addressed to 22 Bill Dornblazer, insurance agency, 137 Main Street, 23 El Segundo, California. Do you see that? 24 A. Yes. 25 Q. Was, in fact, that letter addressed to Bill PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 350 1 Dornblazer recovered from the Forsyth home by your 2 officers? 3 A. It says, "evidence recovered," and then let me 4 check the evidence record. Yes, it was recovered. 5 Q. All right. Sir, now if I could ask you turn 6 over to the next page, 006? 7 A. Yes. 8 Q. And that is a Maui County Police property 9 report? 10 A. Yes, it is. 11 Q. And would you mind turning your attention down 12 to item number seven towards the bottom of that list. 13 Do you see that? 14 A. Yes. 15 Q. And it also refers to one letter, a stamped, 16 unmailed letter to Bill Dornblazer Agency. Do you 17 recall that? 18 A. Yes. 19 Q. The page marked 006 would be the actual 20 property record that your department logged in 21 receiving the item taken from the scene? 22 A. Yes. 23 Q. Detective, after your investigation was over, 24 was the property that your department took out of the 25 Forsyth home given back to the family? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 351 1 A. On that particular issue, I cannot answer that 2 question, because I don't know. 3 Q. All right. Could I ask you to turn over to 4 Page 013 of the police report? And there at the 5 bottom of the page there's an indication that as a 6 part of your investigation, Mr. William Forsyth, Jr. 7 was interviewed by your department? 8 A. Yes. 9 Q. And then if you'll turn over to the next page, 10 up at the top it says, that interview was taken on 11 March the 4th at his residence at about 2150 hours; is 12 that right? 13 A. That's correct. 14 Q. Is that about 9:30 in the evening? 15 A. 9:50. 16 Q. 9:50, sorry. Now, what is recorded in your 17 report on Pages 14 and 15 then are the statements 18 taken from Mr. Forsyth, Jr. at the time? 19 A. Yes. 20 Q. Could I ask you to turn over to Page 015, and 21 if you would, look to the fourth paragraph on that 22 page do you see where it says, "Then stated that his 23 father," you see that? 24 A. "Wanted to stop taking Xanax," yes. 25 Q. Yes. Would you read that to the jury, please? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 352 1 A. "Then stated that his father wanted to stop 2 taking Xanax as he did not want to build a dependency 3 for the medication. Continued to say that his father 4 was retired from operating a car rental agency in 5 California, and that he was not coping with his 6 retirement and was unhappy." 7 Q. This then would be the statements of 8 Mr. Forsyth, Jr.? 9 A. Yes. 10 Q. Would you go down to the paragraph next after 11 that that starts, "Related that his father," do you 12 see that one, sir? 13 A. "Then stated"? 14 Q. It starts out, "Related that his father," do 15 you see that one? 16 A. Yes, I do. 17 Q. All right. Would you read that paragraph, 18 please? 19 A. "Related that his father was suffering from 20 severe depression and that he had once mentioned that 21 he had thought of suicide, but there was never any 22 attempt at any time, but he was concerned that his 23 father mentioned this to him. When he heard this from 24 his father, he became concerned with his father's 25 welfare." PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 353 1 Q. Would you go down to the last paragraph on that 2 page, the one that starts, "Further stated"? 3 A. "Further stated that his mother had gone to 4 Honolulu on 3/3/93 to pick up his father. His father 5 had decided to return to Maui and both his parents 6 returned to Maui on 3/3/93 at about 1645 hours. Then 7 related that during the evening he and his parents had 8 a family conference regarding his father's health. 9 This conference was held across the street from his 10 residence. After this conference, everyone was in 11 good spirits and an excursion was planned for 3/4/93 12 at about 1000 hours on his boat." 13 Q. Would you go ahead and read the next two 14 paragraphs to the jury? 15 A. "When asked, he related that he knew of any 16 problems between his mother and father. He related 17 that his father was not happy with retirement. He had 18 been a businessman for a number of years and sold 19 their business and retired. Then stated that his 20 father was being treated for severe depression. And 21 that he had been prescribed medication known as Xanax. 22 However, his father was not happy taking this 23 medication. He could offer no other information at 24 this time." 25 Q. And again, what you just read to the jury were PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 354 1 the statements taken from Mr. Forsyth, Jr.? 2 A. Yes. 3 Q. Would you turn over to Page 19 of your report, 4 sir? And there, as indicated, members of your 5 department did an interview with Dr. Randolph Neal of 6 Castle Medical Center? 7 A. Yes. 8 Q. And you understand that Dr. Neal was the 9 psychiatrist who treated Mr. Forsyth during the time 10 that he was at Castle? 11 A. Yes. 12 Q. If you'd turn over to the next page, I would 13 ask you to read the first two paragraphs of that to 14 the jury, please. 15 A. This is from Dr. Neal's statement. 16 "Mr. Forsyth had started a car rental agency close to 17 the Los Angeles International Airport and was very 18 successful. He was a self-made man, a workaholic, and 19 very hard working. He had sold his business two years 20 ago for a large sum of money. He and his wife then 21 retired and moved to Maui. 22 "He further explained that Mr. Forsyth had 23 difficulty with retirement and suffered from 24 depression and anxiety. He was prescribed one 25 milligram of the drug Xanax. Mr. Forsyth felt nervous PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 355 1 about this medication and did not want to depend on 2 any type of medication." 3 Q. Could I ask you to skip the little paragraph in 4 between and read the next paragraph that is "While at 5 Castle"? 6 A. "He said that Mr. -- 7 Q. It's the one that starts with "While at 8 Castle." 9 A. Oh, excuse me. "While at Castle, he felt that 10 Mr. Forsyth was coming along fine. Continued to say 11 that he did meet with the Forsyths' son and the son 12 felt that Mr. Forsyth was not receiving the best of 13 care, and in his conversation with his son it was 14 mentioned that his father once spoke of suicide. It 15 was further said that the son wanted his father to 16 remain at the center a little longer." 17 Q. Would you skip the paragraph and read the next 18 one that starts out, "Mr. Forsyth had wanted"? 19 A. "Mr. Forsyth had wanted to return to Maui 20 immediately. He said that his son was trying to gain 21 control of his assets. He was very upset that his son 22 was trying to make financial decisions with his 23 assets. He felt that his son was not capable of 24 making sound financial decisions. He continued to say 25 that Mr. Forsyth and his son had disagreements over PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 356 1 money. Then said Mr. Forsyth was a very peaceable 2 man." 3 Q. Can I ask you to return to -- turn to Page 53 4 of the report, please. I'm sorry, it's 54. Now, 54 5 is the very toxicological report that you just 6 testified about that was up on the screen? 7 A. Yes. 8 Q. And in this report, Mr. Forsyth's blood was 9 tested for various substances; is that right, sir? 10 A. Yes. 11 Q. And you just testified that one of the things 12 that appeared in Mr. Forsyth's blood was Fluoxetine, 13 correct? 14 A. Fluoxetine, correct. 15 Q. Now, there's also another drug indicated there 16 that appears in Mr. Forsyth's blood and it's called 17 Nortriptyline. Do you see that? 18 A. Yes, I do. 19 Q. Do you know that Nortriptyline is the name for 20 the antidepressant Pamelor? 21 A. I have no idea. 22 Q. Do you know that Nortriptyline is an 23 antidepressant? 24 A. No, I don't. 25 Q. Now, we go down and there's one more drug PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 357 1 mentioned, and that's Alprazolam, do you see that? 2 A. Yes. 3 Q. Do you know that Alprazolam is the generic name 4 for Xanax? 5 A. No. 6 Q. But the indication on the report is for 7 Alprazolam that none was detected; is that right, sir? 8 A. That's correct. 9 Q. Other than the Prozac, did you and your 10 officers collect any other medication from the Forsyth 11 home at the time and take it into your custody for 12 your investigation? 13 A. No. 14 MR. SEE: Thank you, sir. 15 MR. CHANG: Your Honor, I have no further 16 questions. 17 THE COURT: Very well. Thank you. Let's take 18 a 15-minute break. Please be back at a quarter to 19 three. 20 (Whereupon, a recess was taken at 2:30 p.m.) 21 THE COURT: Please proceed, Mr. Vickery. 22 MR. VICKERY: Thank you, Your Honor. We call 23 the plaintiff, William Forsyth, Jr. 24 THE CLERK: Please raise your right hand. 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 358 1 WILLIAM DAVID FORSYTH, II, 2 the Plaintiff, after having been first duly sworn to 3 tell the truth, the whole truth, and nothing but the 4 truth, was examined and testified as follows: 5 THE CLERK: Please be seated. Please state 6 your name and spell your last name. 7 THE WITNESS: William David Forsyth, II, 8 F-O-R-S-Y-T-H. 9 DIRECT EXAMINATION 10 BY MR. VICKERY: 11 Q. The second, is there a third? 12 A. Yes. 13 Q. How old is he? 14 A. He's about six years old. 15 Q. Do you have a wife? 16 A. Yes, I do. 17 Q. What's her name? 18 A. Karen Irene Forsyth. 19 Q. And does she go by Kim? 20 A. Yes. 21 Q. How long have you and Kim been married? 22 A. Fourteen years. 23 Q. And what do you call William, III? Billy? 24 A. Willie. 25 Q. He's Willie, okay. How old is he? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 359 1 A. He's six. 2 Q. And you and Kim have other children. How many? 3 A. Well, I have three, three boys. Willie is 4 nine, our youngest is six. 5 Q. Are you a little nervous? 6 A. Yes, first time. 7 Q. You've never been on a witness stand in court 8 before? 9 A. No. 10 Q. That's all right. We'll take it slow. 11 Introduce yourself to the jury, if you would, please. 12 Tell them how old you are and where you were born and 13 raised. 14 A. I'm 38 years old. Born in Los Angeles, 15 California. Moved to Maui almost 20 years ago. 16 Q. So you moved to Maui when you were 18 or 19? 17 A. That's right. That's correct. 18 Q. Was that right after high school? 19 A. Yeah, I did one year of college. 20 Q. Now, Mr. Forsyth, your sister Susan is in the 21 courtroom, correct? 22 A. Yes. 23 Q. Were you and Susan the only children of Bill, 24 Sr. and June? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 360 1 Q. Who's older? 2 A. I am. 3 Q. By how many years? 4 A. Four years. 5 Q. Tell us about your growing up days. Where did 6 you grow up and where did you and Susan go to school? 7 A. Well, we grew up in a track home neighborhood 8 and went to public schools, and I went all the way 9 through high school in Santa Monica, and then I went 10 up to UC Santa Barbara for a year before moving to 11 Maui. 12 Q. What caused you to leave college and leave 13 California and come to Maui? I know that's a stupid 14 question to anybody who goes outside, but what did? 15 A. I moved to Maui because I was -- I loved the 16 water, boating. My father got me into boating when I 17 was young, and I went to Maui. About a year and a 18 half after I moved there, I got my captain's license 19 from the Coast Guard to run passenger carrying 20 vessels. 21 Q. Did you do that kind of as your principal 22 occupation for many years? 23 A. Yes. I still have a license. 24 Q. And do you still, from time to time, take folks 25 out to see whales and dolphins and other things? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 361 1 A. Yes. 2 Q. Now, you say your dad got you into boating? 3 How old were you when he got you into boating? 4 A. I was just a small kid, five or six. He had a 5 boat and we would go out and fish for the day, and 6 eventually started going over to Catalina Island and 7 spending the weekend. 8 Q. Just the two of you or others in the family as 9 well? 10 A. Usually the two of us. Sometimes mom and Sue 11 would come. My mom didn't swim, so she only went 12 probably a few times on the overnighters. 13 Q. Okay. Were you close to your father as a boy? 14 A. Yeah. I had a lot of fun with him. 15 Q. Were you close to your father as a teenager? 16 A. We would still do things. He would take us 17 skiing. I felt close to him. 18 Q. And how about your mother, growing up, were you 19 close to her? 20 A. I always felt close to her. She was a 21 homemaker, so she was home and involved a lot with my 22 life. 23 Q. Did either of your parents get involved in your 24 school activities, athletics, that sort of thing? 25 A. Yeah. I didn't do a lot. I did a couple years PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 362 1 of little-league baseball and that was fun. 2 Q. Parents come to the games? 3 A. Yeah. Sometimes my dad wouldn't on weekends if 4 he was working. He worked a lot of hours. 5 Q. Now, we've heard that about your dad already in 6 the opening statements. Give us kind of your 7 perception as you recollect your growing up years as a 8 boy and then as a teenager of your father's work 9 habits. 10 A. Well, he's a real early riser. He'd leave to 11 try to get to work early and beat the rush. He was a 12 hard worker. He put in a lot of hours. I think he 13 would work about every other weekend depending, you 14 know, on the schedule, but he would come home. I 15 never felt neglected or shortchanged. He cared a lot 16 about us and I always knew he worked for the family. 17 That was the reason. He was a real hard working 18 family man. 19 Q. Was he a pretty hard charging guy? 20 A. Yeah, he was hard working. 21 Q. Did the fact that you opted for a different 22 lifestyle, in other words, moving here and being out 23 on the ocean, did that, for some period of time, cause 24 some misunderstandings or disagreements between you 25 and your father? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 363 1 A. I think for both my father and mother it was a 2 little hard in the beginning for them to see the life 3 I was choosing. I got my captain's license, like I 4 said, and then I did get my Hawaii real estate 5 broker's license. But in the beginning, they just 6 thought I would be even more aggressive with business 7 or schooling, but after a few years and them visiting 8 Maui more regularly and then eventually moving there, 9 they made a big turn on that. They just really 10 thought I had made a good move and they were 11 mentioning how -- especially, my dad wished he had 12 thought about that kind of move earlier in life. The 13 less work, more family time, enjoyment, fun things. 14 Q. Now, some families tend to be more 15 demonstrative in their affection towards one another 16 than others, you know what I mean? Some hug and kiss 17 and other families don't tend to do that as much. How 18 was your family in that regard? 19 A. I thought we were always close. We could hug. 20 I would hug my mom all the time. My dad is more of a 21 hand shaker, how are you doing? When I first moved to 22 Maui, I didn't see them as often. They would visit. 23 So I always had no problem. You know, I felt close to 24 my parents so it wasn't a difficult thing to hug them 25 or show affection. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 364 1 Q. Did they make it a point once you and Kim were 2 married and started having a family of your own of 3 being together around Christmas and other important 4 holidays? 5 A. Yeah, we were together almost every Christmas. 6 When they finally moved to Maui, we would be at their 7 house regularly or them at ours. We lived just two or 8 three miles apart. 9 Q. Let me come back to the affection question for 10 a minute. Did your mother and father demonstrate 11 outward signs of affection towards one another 12 throughout their lives as you remember them? 13 A. Yeah, I always saw them hug and kiss. They 14 were friendly in that way. 15 Q. Now, you -- to jump ahead for just a minute. 16 You took your father to Castle Medical Center on 17 February the 24th, 1993, correct? 18 A. My mother and I both took him. 19 Q. And did you visit him while he was there, the 20 eight or nine days he was there? 21 A. I came home to work and my mom and I returned 22 two or three days later, I would say. 23 Q. Okay. 24 A. And spent one night in the area. 25 Q. And did you visit him the day that they got out PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 365 1 and came home? 2 A. I couldn't go with my mother to pick up my 3 father on Oahu, so I picked them up from the airport 4 on Maui when they arrived. 5 Q. All right. Let me ask you this and then we'll 6 get kind of back in time. You heard Mr. See say this 7 morning that your parents had a broken marriage. Did 8 you hear that? 9 A. I heard it. 10 Q. Did you ever see or hear anything that would 11 indicate to you that your parents had a broken 12 marriage at any time in 1993? 13 A. No, not at all. 14 Q. Okay. Well, let's back up. What year, as best 15 you recall it, did your parents move to Maui? 16 A. Probably '89 or '90. 17 Q. And why did they do that? 18 A. I think we kept pestering them to come over and 19 be with us as our family was growing with grandkids. 20 Q. Okay. And did they build a house? 21 A. Yes. I helped them build it. 22 Q. Now, building a house is kind of a unique 23 experience. Any of us that have done it know. Were 24 you participating with your parents in the building of 25 this house? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 366 1 A. I was. 2 Q. And was one of your parents, more than the 3 other, sort of into the project, if you will? 4 A. They were both into it and excited. My dad was 5 pretty thrilled to have what he had worked for and 6 saved for his whole life, a home that they could kind 7 of design and retire in. 8 Q. Did he have a circle of friends on Maui? 9 A. Yes, he did. 10 Q. Like what kind of friends? Where would he meet 11 friends and what would he do? 12 A. He was involved with the Rotary Club his whole 13 life and he had a Rotary Club that he went to on Maui. 14 He had friends there, and many of those guys would 15 meet for coffee in the mornings, most every morning. 16 Q. Every morning he would get up and have coffee 17 with the guys? 18 A. Well, many mornings. I wasn't living at the 19 home, but he would like to get up early and it was 20 beautiful and he would go have coffee with his friends 21 pretty regularly. 22 Q. Did your father get involved in any business on 23 Maui once he retired from his car rental business in 24 Los Angeles? 25 A. The only business he did was to help counsel PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 367 1 some of his friends on things they were doing, like 2 kind of as a counselor or something. I don't think he 3 was partners with them or anything, but he was real 4 involved with their business ideas and ventures and 5 things like that. 6 Q. Was he involved either from an investment 7 standpoint or sales standpoint in any real estate? 8 A. Yeah. In his life, yes. 9 Q. How about once he moved to Maui? 10 A. Well, he had built -- when we were kids, he and 11 a friend had built an apartment on the Mainland that 12 my parents managed and owned. 13 Q. Okay. Did he ever give you business advice and 14 help you along? 15 A. Yes. He gave me a lot of business advice. 16 Q. Now, we've heard read into the record a 17 statement by Dr. Neal, I believe, to the police 18 investigator about some financial differences of 19 opinion between you and your father. Did you and your 20 father have any financial disagreements in 1993? 21 A. I don't know what he's talking about. 22 Q. Did you ever try to seize control of your 23 father's assets? 24 A. No. 25 Q. Do you recall in the summer of 1992 your father PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 368 1 leaving Maui and returning to the Mainland? 2 A. Yes, I do. 3 Q. And did you talk to either him or your mother 4 before he left about him leaving, in other words? 5 A. I can't recall. 6 Q. Once he went, did you discuss it with either of 7 them, where he was and why he was there? 8 A. Yes, with both of them. 9 Q. And tell us, as you recollect it, the 10 discussions that you had with both of your parents 11 about that. 12 A. Well, my -- I probably talked to my mom first 13 and just said what's going on, and she just felt that 14 they were still trying to just communicate and dad was 15 trying to deal with not having a full-time job or 16 business so much. 17 Q. All right. How did your mother feel about him 18 leaving? I mean, was she just beside herself or was 19 she okay with it or somewhere in between? 20 A. Well, she was sad. She wanted to help him and 21 help out their communication, to be able to work out 22 these years in their life that they worked so hard to 23 get to. 24 Q. Were you aware when he started in September of 25 1992 and having counseling sessions with Dr. Brady? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 369 1 A. Yes. I remember hearing that he was doing 2 that. 3 Q. Did you hear it from him? 4 A. I think I did. We talked on the phone fairly 5 regularly. 6 Q. And did he tell you what his goal or reason was 7 in pursuing the counseling with Dr. Brady? 8 MR. SEE: Objection, hearsay. 9 MR. VICKERY: Goes to the state of mind of 10 Mr. Forsyth. It's offered for that limited purpose, 11 Your Honor. 12 THE COURT: Not for the truth of the matter? 13 MR. VICKERY: Exactly. 14 THE COURT: The Court will instruct the jury 15 that this answer will not be for the truth of the 16 matter, but to show why he acted in the way he did. 17 THE WITNESS: Could you repeat it? 18 Q (By Mr. Vickery) Yeah. Did your dad tell you 19 what his goals or reasons were in pursuing therapy 20 with Dr. Brady? 21 A. Yes, he did. 22 Q. What did he say? 23 A. He said he wanted to work things out with mom 24 and to try to get some counseling and advice to 25 improve their communication. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 370 1 Q. Now, were you aware in October when your father 2 invited your mother to come to the Mainland and 3 participate jointly with him in those marital therapy 4 sessions? 5 A. I was. 6 Q. Were you aware before she went? 7 A. Well, she told me that she was going and she 8 was excited, and I talked to my dad, too, and it was 9 just a real exciting time for them to work it out 10 together. 11 Q. Now, there's a period of about five or six 12 weeks where other evidence will establish that they 13 were going jointly together to Dr. Brady. During that 14 time frame, did you have conversations with either of 15 them regarding how it was going? 16 A. Yes, by telephone. 17 Q. And what did they tell you? 18 MR. SEE: Objection, hearsay. 19 MR. VICKERY: It is offered as to the state of 20 mind and motives of both June and Bill Forsyth, Your 21 Honor. 22 THE COURT: I'll allow it for that limited 23 purpose. 24 THE WITNESS: They both told me that it was 25 going really well and they were really excited. They PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 371 1 were beside themselves on how wonderful it was, and 2 they talked highly of this person who was helping them 3 many times. 4 Q (By Mr. Vickery) Dr. Brady? 5 A. Yes. 6 Q. Have you to this day really talked to Dr. Tom 7 Brady? 8 A. I've never met the man, but I did talk to him 9 on the phone one time. 10 Q. Okay. Now, your parents came back to Maui 11 about December 7th, I believe. Do you recall that? 12 A. I don't know the exact date, but yeah, early 13 December. 14 Q. And when they came back, did you spend time 15 with either or both of them? 16 A. Right when they got there. 17 Q. Tell me the kinds of things that you would do, 18 as a grown man then, you had a wife and family, you 19 know, what kind of activity would you have with your 20 parents? How frequently would you see them? 21 A. We would see them -- they would just pop over 22 really regular since we were so close by and they were 23 retired and they just had their schedules fairly open 24 and we would go by their fairly often, too, but the 25 thing we do most regularly would be like a Friday PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 372 1 night barbecue at their home. 2 Q. Okay. Now, you heard Mr. See describe for the 3 jury the relationship your father had with his 4 grandchildren, and Mr. See is right, isn't he, that he 5 had a wonderful relationship with your kids? 6 MR. SEE: Objection. Relevance, Your Honor. 7 MR. VICKERY: Well, Your Honor. 8 MR. SEE: Ask to approach. 9 THE COURT: I'll sustain the objection. 10 Q (By Mr. Vickery) Okay. Tell me if you would, 11 in December of 1992 when you got back, and that's the 12 Christmas season, did your father at that time display 13 pleasure in interacting with his grandchildren? 14 A. Yes, he did. 15 Q. And did you have Friday night barbecues when 16 they got back? 17 A. Yes. 18 Q. Did you spend Christmas with them in 1992? 19 A. We did. 20 Q. And did your father also, starting about this 21 time, have a change in personality? Did he start to 22 get depressed and anxious? 23 A. He wasn't quite as energetic as he normally 24 was. 25 Q. Can you give us maybe an example before then PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 373 1 what your father would be like in some sort of a 2 social encounter or public setting? 3 A. He's a very outgoing person, very friendly. He 4 would introduce himself to almost any stranger and 5 just -- he had charisma that I really respected. I 6 don't have that level that he has, and he was an 7 outgoing person. 8 Q. Did that begin to change in December of 1992? 9 A. He wasn't quite as outgoing or energetic as he 10 was his whole life. 11 Q. Now, were you aware of the fact that in 12 December of 1992 he began to get treatment from a 13 psychiatrist on Maui named Dr. Riggs Roberts for his 14 anxiety and depression? 15 A. I think when I heard about it, it had already 16 been going on for a week or two or three. I don't 17 know. I remember I was a little surprised because 18 I -- they had already been going. It wasn't like they 19 were going to go. Like I already knew the first 20 moment they went. 21 Q. Okay. Now, what did you -- how did you learn 22 that? Did your father tell you about going to 23 Dr. Roberts? 24 A. It was one of my parents. I don't know who it 25 was, but I was just really surprised because he never PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 374 1 had been to a doctor like that and it just didn't seem 2 natural for him to do something like that. 3 Q. We have heard in the contentions of the 4 parties, as read by the Court to the jury, that Lilly 5 contends your father was deteriorating, his health was 6 deteriorating. Was your father a physically active 7 man? 8 A. Yes, he was a regular at the gym. He was in 9 really great shape for his age. 10 Q. What kind of physical activities would he do 11 either at the gym or elsewhere? 12 A. Well, he would workout with weights, hard, at 13 the gym. Usually he'd go in the mornings, and he was 14 really strong because of the weight lifting. And he 15 would take walks. My mom and him took regular walks 16 through the neighborhood and down along the beach. 17 Q. Were there occasions from December of '92 up 18 until late February when you would just have chance 19 encounters with your parents out walking together on 20 the beach? 21 A. Oh, yes. The boats that I operate are near my 22 parents' home and a lot of times I would see them 23 walking on the beach because I would be on and off the 24 beach five to eight times a day with the boat loading 25 passengers, so I would see them walk by and they would PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 375 1 wave at me. 2 Q. Would it typically be the two of them walking 3 down the beach together? 4 A. Yes, they would just walk arm and arm, you 5 know, just down the sidewalk. 6 Q. Did either of them discuss with you, after they 7 got back from Los Angeles, how their relationship with 8 one another was doing? 9 MR. SEE: Objection. Hearsay. 10 MR. VICKERY: It is offered for the state of 11 mind, Your Honor. 12 THE COURT: I'll allow a limited amount of 13 that. 14 MR. VICKERY: Very well. 15 THE WITNESS: They reiterated what they told me 16 on the phone when they were on the Mainland with 17 counseling that just -- they were ecstatic about their 18 new relationship with better communication, and they 19 were having a great time. Better than ever they told 20 me. 21 Q (By Mr. Vickery) Okay. Now, you have given 22 your deposition in this case where you answered a 23 bunch of questions from Mr. See, correct? 24 A. Yes. 25 Q. And you were asked about your parents' PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 376 1 journals, do you recall that? 2 A. Yes. 3 Q. When your parents were alive, was that the kind 4 of thing that they would share with you, their own 5 private written journals? 6 A. No. 7 Q. And had you had occasion to read those journals 8 ever until you were asked to in connection with this 9 lawsuit? 10 A. No. 11 Q. All right. On February 22nd your father got 12 Prozac for the first time from Dr. Roberts. Were you 13 aware of it at the time? 14 A. I was not. 15 Q. There, I believe, will be evidence about a 16 phone call the next day that he made to Dr. Roberts. 17 Were you aware of his initial call back to Dr. Roberts 18 after having the Prozac? 19 A. I don't think at the time. I think I heard 20 about it after. 21 Q. What happened the very next day? 22 A. The next day I was visiting their home, and my 23 father didn't look well and I was talking to him and I 24 was asking him how he was doing and he said he wanted 25 to be admitted to a hospital. And I was kind of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 377 1 shocked because he just looked really -- he just 2 didn't look himself, his face and his countenance. So 3 I said, "What do you want me to do?" And he said, 4 "Can you call my doctor here on Maui and tell him that 5 I want to go to a hospital right away?" And I said, 6 "Could we go in the morning since it was late in the 7 afternoon?" And he said, "No, I want to go right now. 8 I don't want to spend another night at home." 9 Q. Did you place the call for him to Dr. Riggs 10 Roberts? 11 A. Yes, I called the doctor myself. 12 Q. Prior to that time, had you known Dr. Roberts 13 or ever talked to him? 14 A. No, I had not. 15 Q. And did you find it a bit strange calling your 16 father's doctor? 17 A. Yes, I did. My dad could handle -- could take 18 care of himself, you know, and he was -- it was just 19 weird calling for my dad. It was like he wasn't able 20 to. 21 Q. In your entire life do you ever remember your 22 father ever going in a hospital? 23 A. No. 24 Q. Okay. And did you, after some conversation 25 with Dr. Roberts, arrange for your father to go in to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 378 1 Castle Medical Center here on Oahu? 2 A. Yes. 3 Q. Did he actually place the call and make the 4 arrangements? 5 A. I can't remember. At first he tried to 6 discourage me from taking my dad to the hospital 7 saying that he thought he was fine and probably didn't 8 need to go, and I just told him that I had never seen 9 my dad like this and that we weren't going to take any 10 chance, that he wanted to go and that we were going to 11 go. He said if you absolutely have to go, then go, 12 but I can't remember -- I think he recommended that if 13 we had to go, that hospital would be good. I don't 14 know if I called or him, to be honest with you. 15 Q. Who took your father to Castle Medical Center? 16 A. Both my mother and I. 17 Q. Had you ever been to Castle Medical Center 18 before then? 19 A. No. 20 Q. When you got there, were you with him during 21 the intake process? 22 A. I was. 23 Q. Were you there when he was being questioned by 24 a counselor named Rick Poole? 25 A. Yes, I was. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 379 1 Q. Do you recall that man asking some question 2 about suicidal thoughts or actions? 3 A. I do. 4 Q. Tell us what you recall Mr. Poole asking and 5 your father saying. 6 MR. SEE: Objection. Hearsay. 7 MR. VICKERY: Your Honor, this statement of 8 Mr. Forsyth goes directly to his state of mind. 9 THE COURT: Pardon me? 10 MR. VICKERY: Mr. Forsyth's statement in 11 response to the question about suicide goes to his 12 state of mind. 13 THE COURT: I'll allow the question. 14 THE WITNESS: Well, there were many questions 15 and then he got to the question, he asked, "Do you 16 have problems with suicidal thinking?" And my dad 17 said, "No, but I thought about some knives." 18 Q (By Mr. Vickery) Okay. Did he say when he 19 had had those thoughts? 20 A. I don't recall him saying when. He just made 21 that statement. 22 Q. Was there any further follow-up or discussion 23 in your presence? 24 A. Not about that subject. 25 Q. And when your father was admitted that night, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 380 1 did you and your mother remain on Oahu? 2 A. My mother -- I think my mother and I both slept 3 on Oahu over by the airport here because I had to 4 catch the first flight back to work the next morning. 5 Q. That was February the 24th, when he was brought 6 over and the 25th when you left, and I asked you a few 7 minutes ago about visiting. Can you tell us now the 8 specifics of that, when you recall a visit and who 9 came to visit with your father? 10 A. I believe I had to work two days in a row 11 before I could come back with my mother, and we came 12 back and we were able to rent a bed and breakfast room 13 near the hospital so that we could visit him the day 14 we arrived and then the next day before we left. 15 Q. How did the visit go? Was he glad to see you? 16 A. Well, we walked in and found where his room 17 was, walked in and yeah, gave him a big hug and said 18 how's it going? It was a good visit. 19 Q. Okay. Were you able to come back with your mom 20 a few days later when he checked out? 21 A. I was not. 22 Q. When they got back to Maui that same night, 23 March 3rd, did you visit with them in your home, their 24 home, or somewhere else? 25 A. When I picked them up from the airport, we PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 381 1 drove to my home, but instead of going in my home, 2 because the kids were around and everything, we wanted 3 a quiet place, we went across the street to a friend 4 of ours home who was out of town and just sat on their 5 patio furniture out front. 6 Q. About how long did you sit and visit with your 7 parents that evening? 8 A. Well, at that time, I'd say about 45 minutes. 9 Q. Did you see them later in the evening? 10 A. Yeah. They went home for about an hour to grab 11 something to eat and then I ate at home and then I 12 went up to their home in the evening. 13 Q. And how long did you stay with them then? 14 A. Two-and-a-half hours or more. 15 Q. Did your father that evening say anything about 16 the help or support he had gotten from you, your 17 mother, or anyone else in working through this crisis? 18 MR. SEE: Objection. Hearsay. 19 THE COURT: Sustained. 20 Q (By Mr. Vickery) Did your father say or do 21 anything that would indicate to you that there was a 22 broken marriage? 23 A. On that night? 24 Q. Yes, sir. 25 A. No, on the contrary. He just really said how PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 382 1 wonderful mom had been in this whole tough time and 2 picking him up from the hospital and really helping 3 him, being by his side. 4 Q. Did he seem hopeless that night or did he talk 5 about future plans? 6 A. He was still troubled by what was going on, you 7 know, with his thinking and such, but we did also talk 8 about positive things and future and our family 9 working this out and being together, that we would 10 stick together through this and we'd always gone 11 through other things, we would get through this as a 12 family. 13 Q. Did you have any sorts of apprehensions -- even 14 now as you look back on it, was there anything said or 15 done that you think of and -- think of in terms of an 16 apprehension foreboding? 17 A. I asked him what it was like in the hospital 18 for him and he said it was rough because he had 19 trouble being around people that might be suicidal, 20 and he said that he didn't have any trouble with that 21 at all. It wasn't an option he said. 22 Q. Were plans made for a whale excursion the 23 following day? 24 A. Yeah, I had to work early, around 6:30, about 25 an 11-hour day and I told them that they could come PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 383 1 out on one of the whale trips and they agreed to do 2 that around the middle of the day, I think it was, 3 maybe an eleven o'clock trip. 4 Q. So how many trips do you take out in a typical 5 day like that? 6 A. That type of season we do probably three trips, 7 a couple whale watch trips and a longer snorkeling 8 trip in the middle. 9 Q. And did your parents show for any of those 10 trips? 11 A. No, they didn't. 12 Q. Were you real alarmed that they hadn't shown 13 up? 14 A. I got worried throughout the day. I left them 15 a few messages on their voice message machine at home, 16 and, you know, I never heard back. I had called my 17 wife, too, to check to see if she had heard anything 18 from them and she had not. 19 Q. Okay. Did you, after you got off work, go by 20 your parents' house? 21 A. Yeah. On the way home, I went by with my son 22 Seth, my oldest son. 23 Q. How come Seth was with you? 24 A. I think my wife had dropped Seth off on the 25 last whale watch trip immediately home from school and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 384 1 he spent the trip with me and was going to ride home 2 after work and help clean the boat up a little bit. 3 Q. Okay. As you got to their house, did you have 4 a key to get in? 5 A. No, I didn't have a key. I just went in the 6 downstairs door which was usually opened. 7 Q. I'm not going to ask you to relive everything 8 you did, but did you walk through the entire house and 9 find the bodies of both of your parents? 10 A. I didn't walk through the whole house, but I 11 walked upstairs and looked around in the living room 12 and kitchen areas. 13 Q. And did you discover their bodies? 14 A. I did. 15 Q. Is there any way that you can put it in words 16 for us to help us understand how you felt when you 17 found them? 18 MR. SEE: Objection, Your Honor. Relevance. 19 THE COURT: Sustained. 20 MR. VICKERY: Your Honor, this is offered for 21 the purpose of the damages under the Hosaka case the 22 Court cited to us. It is appropriate under the Hawaii 23 wrongful death act as construed in that case. 24 THE COURT: Well, I think you developed what 25 the relationship was up to that point in time. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 385 1 MR. VICKERY: Okay. 2 Q. I want to ask you some questions and try to put 3 this in your own words, if you would. I want you to 4 tell the jury what you have lost as a result of the 5 death of each of your parents in several categories 6 that will be important for them to know later on. And 7 let's take -- let's take your mother first, June. 8 Love and affection, can you put that loss in 9 words for us? 10 A. Well, having her on the island, I just had 11 someone I could love and hug, and with our grandkids, 12 especially, our oldest is a girl, and our daughter was 13 really, really close to my mother, so for me it's just 14 painful also for my daughter as well as myself, the 15 loss. 16 Q. Now, how about your father, tell us about your 17 loss of love and affection as a result of your 18 father's death? 19 A. Well, my father I looked up to a lot. He was 20 successful and funny and outgoing and he was a good 21 friend to me. He always had fun things for me to do 22 when I was young. The boating thing was awesome 23 because it turned out to be my career and I loved the 24 fact that he was involved with that. 25 Q. Did you derive comfort, even though you were a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 386 1 grown man with a family of your own, did you derive 2 comfort from either your father or your mother? 3 A. Yeah. I liked that they were close by and that 4 I could talk to them and they would always listen 5 about Kim and I and our life with our kids. It was 6 good to know you had someone in the family that cared 7 that you could get advice from when you're raising a 8 family. 9 Q. Well, does that same go true for loss of 10 parental care, training, guidance, and protection, 11 even though you were a grown man, did you still get 12 guidance and care and training or protection from 13 either or both of your parents? 14 A. Well, my father, I would always get advice for 15 business or things like that and I just felt, again, 16 they were always there for me for that. They always 17 would listen to me. They really wanted to know what's 18 going on in my life. 19 Q. Just a couple more things. When you saw your 20 father in the hospital, when you went over or came 21 over here to Oahu and saw him in Castle, describe, if 22 you would, his appearance and his actions. 23 A. He was fairly quiet still. He -- I knew he 24 wasn't the dad I knew. I mean, he just wasn't there 25 yet, working through this problem. He still kind of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 387 1 had that look about him that he wasn't just feeling 2 really confident. I know the fact that he wanted to 3 admit himself in there in the first place, that wasn't 4 a place that he wanted to go unless it was really 5 serious. 6 Q. Did you notice him sweating? 7 A. Yeah, I did. When I went up to hug him with my 8 mom on that first visit, he was real sweaty and I 9 asked him if he knew and what that was about and he 10 said he didn't know. 11 Q. Okay. Since this lawsuit has been filed, have 12 you and your sister both -- have you and Susan been 13 involved personally in non-profit activities designed 14 to inform people about Prozac? 15 MR. SEE: Objection. Irrelevant. 16 THE WITNESS: We both have. 17 MR. VICKERY: Your Honor, the relevance is in 18 one of the 64 issues of law Eli Lilly -- 19 MR. SEE: Your Honor -- 20 THE COURT: Side bar. 21 (Whereupon, the following proceedings were had 22 at side bar out of the hearing of the jury.) 23 MR. VICKERY: Your Honor, the point is the 64 24 different issues of law as Lilly briefed as matter of 25 contention in this dispute, one of them is that they PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 388 1 should be allowed to put on evidence and arguments 2 about secondary gain motivations of my clients, and so 3 it's because of them making that contention that I 4 want to address that issue in the direct examination 5 of this witness. 6 THE COURT: Mr. See. 7 MR. SEE: In the evidence put on that topic 8 yesterday that was statements to him. I don't plan to 9 put any on. I'd just ask the Court to direct both 10 sides not to have speaking objections in front of the 11 jury. 12 THE COURT: So directed. 13 MR. VICKERY: Your Honor, while we're here at 14 the side bar, Ms. Barth has attempted to work out the 15 photograph issue with Mr. See and apparently the 16 family photos and family videos that you told us to 17 try to get up and work out our problems, I think 18 they're close and didn't get all the way, we'll have 19 to take that up sometime with the Court. I would just 20 assume now go ahead, if it's okay with the Court, and 21 pass him so that Mr. See can cross-examine and we 22 don't waste the jury's time. We've only got 30 23 minutes more anyway when we're through with the day in 24 questioning the witness. If you could hear Ms. Barth 25 and Mr. See on them and strong arm them into some PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 389 1 resolution of it. 2 THE COURT: All right. 3 (Whereupon, the following proceedings were had 4 in open court.) 5 MR. VICKERY: Your Honor, subject to the one 6 matter that we just discussed with the Court at side 7 bar, I'll pass the witness. 8 THE COURT: Very well. Mr. See. 9 MR. SEE: Thank you, Your Honor. 10 CROSS-EXAMINATION 11 BY MR. SEE: 12 Q. Good afternoon, Mr. Forsyth. Mr. Forsyth, I'd 13 like to ask you some questions about your father and 14 your observations of him. First of all, before your 15 father became ill with depression, you observed him to 16 be a very active, sort of go-getter type of 17 personality; isn't that right? 18 A. Yes. 19 Q. He was a person who liked to go out and do 20 things as opposed to sit around the house? 21 A. Yes. 22 Q. In fact, is it true that if there were times 23 when he found he had nothing to do, no project to look 24 at or attend to, he would get a little restless? 25 A. He would usually come visit me. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 390 1 Q. Now, you've already said your father had a very 2 strong work ethic? 3 A. Yes, he works hard. 4 Q. And as a businessman, he was, in essence, a 5 self-made man; that is, he built up a successful car 6 rental business really from nothing with his own two 7 hands; isn't that right? 8 A. Yes. 9 Q. Your father, again before he became ill with 10 depression, was also a very social person; that is, he 11 liked to go out with people and have people over? 12 A. He loved people. 13 Q. Was it also the case that with respect to going 14 out with other couples and entertaining people in 15 their home, your mother was like that less than your 16 father? 17 A. I wouldn't say that. 18 Q. So it was your view that your mother was as 19 socially outgoing as your father? 20 A. My mother enjoyed going out with people and 21 also having people in her home with my father. 22 Q. Now, I want to ask you questions about what you 23 observed about your father after he and your mother 24 came back to Maui in early December of 1992. Do you 25 have that time frame in mind? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 391 1 A. Yes. 2 Q. After your dad returned to Maui, you noticed 3 that he was not himself; isn't that right? 4 A. In what way? 5 Q. Well, let me first ask, after he came back to 6 Maui and as December of '92 wore on into January of 7 '93, you noticed that your father had a depressed 8 mood; isn't that right? 9 A. He didn't seem to be quite as energetic. 10 Q. Would you agree that in December of '92 and 11 wearing on into January of '93, your father underwent 12 a personality change? 13 A. Well, he was so excited about him and mom and 14 their marriage that I don't know, you know. I saw a 15 lot of excitement about the marriage, if that's what 16 you're getting at. 17 Q. Did you see in your father in December of '92 18 and January of '93 despair, despairing feelings? 19 A. I saw him when he wanted to go to the hospital 20 be very despairing. 21 Q. So only on February 24th of '93 did you see 22 that? 23 A. That was the first time that I really was 24 scared for my father and noticed something that really 25 woke me up. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 392 1 Q. What my question is trying to ask is, in 2 January '93 and earlier February of '93, did you see 3 that your father was having despairing feelings? 4 A. No. 5 Q. In January '93 and early February of '93, did 6 you notice that your father lost his zest for life? 7 A. I just noticed that somebody so outgoing wasn't 8 as energetic or -- I mean, he still loved to see us 9 and we would get together, but he didn't have the 10 spunk that he had. 11 Q. In January of '92 -- let me state that again. 12 In January of '93 and February of '93 did you see in 13 your father that he began to lack confidence? 14 A. Well, he was a lot quieter, so he didn't 15 respond to things. He just didn't seem to be as -- 16 well, I didn't see him quite as much, but I would 17 still see him regularly, but not as much. So I knew 18 he was -- when he couldn't make a phone call to go to 19 the hospital, I knew his confidence was gone at that 20 moment. 21 Q. You knew that in December of '92 and January of 22 '93 your father was losing weight? 23 A. I hear that now. He always tried to stay 24 pretty fit. Sometimes he would be a few pounds 25 heavier than other times. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 393 1 Q. So you didn't notice a weight loss? 2 A. I didn't. 3 Q. Now, by your observation of your mother and 4 father in January of '93 going into February, isn't it 5 correct that your father became increasingly dependent 6 upon your mother? 7 A. He stayed home a lot more and so I'm sure 8 that -- yeah, he did. He was glad that she was there 9 to support him during that time. He depended on her 10 to help him through this time that he was going 11 through. 12 Q. Isn't it correct that in January of '93 going 13 into earlier February your father was afraid to be 14 alone at home by himself? 15 A. I'm not aware of that. 16 Q. Did your mother tell you that in January of '93 17 and, again, going into early February of '93 that your 18 father was showing panicky, worrisome behavior? 19 A. My mother telling me? I don't remember her 20 telling me that. 21 Q. Did you notice in your father, Mr. Forsyth, in 22 January of '93 going into earlier February that your 23 father was having increasing problems with his anxiety 24 and depression? 25 A. I didn't know he was depressed. I knew that he PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 394 1 was just mellower and more at home. 2 Q. Now, was it correct that your mother's best 3 friend on Maui was a lady named Bobbie Comstock? 4 A. I don't know if it's her best friend, but they 5 are very good friends. 6 Q. In fact, Ms. Comstock has been close to you 7 also? 8 A. I know Ms. Comstock. She lives fairly close to 9 me. 10 Q. And is it correct that your father's best or 11 one of his best friends on Maui was a man named Tom 12 Lilledahl? 13 A. He was a recent friend that he spent time with. 14 Q. I'm just asking about Maui friends. He was a 15 friend of your dad's on Maui? 16 A. Yes, he was a friend of my dad's. 17 Q. Now, I'd like to ask you a few questions about 18 your father's retirement and how he got on with that. 19 Was it correct that your father did not adapt very 20 well to the changes in his life caused by his 21 retirement? 22 A. I would say that it was hard for him to not 23 have a full-time job at first. It took him a while to 24 kind of figure out what to do in retirement. 25 Q. He was a fellow with what's called a Type A PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 395 1 personality, always on the go, hard charging? 2 A. I haven't read books on Type A. He liked to be 3 busy that's why I would think he would get up and go 4 hang out with the guys for coffee. 5 Q. He actually referred to himself as a 6 workaholic, didn't he? 7 A. I don't think he ever told me that. 8 Q. Did your father tell you that he was very proud 9 of his business successes? 10 A. No, he's pretty humble. He didn't seem to be a 11 prideful man. 12 Q. Now, after your father did retire and move to 13 Maui, as you observed it, was one of the things that 14 was causing him a problem was that he was just not 15 used to being around the house all day? 16 A. Something to do. He just wanted to be 17 productive with his life. 18 Q. So he liked to be busy and needed things to do? 19 A. He wanted to be productive. 20 Q. Did he tell you that he missed the challenges 21 of working life? 22 A. He liked business, I know he did, but I can't 23 recall him telling me that he missed. I think that's 24 why he helped his other friends on Maui with their 25 business ideas and things like that. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 396 1 Q. In fact, although he looked, he had failed to 2 find any kind of business or personal challenge for 3 himself while he was living on Maui? 4 A. He was involved with Rotary and other things, 5 so I think he had some things to do that he liked. 6 Q. My question goes to the business challenge that 7 your father enjoyed and needed. Isn't it correct that 8 he looked and failed to find anything that fulfilled 9 that need in his life in Maui; that is, the business 10 challenge? 11 A. Well, he was retired, so I don't know if he was 12 looking for a new business or not. 13 Q. Did you observe your father as being unhappy in 14 his retirement? 15 A. He was always a happy guy. I didn't. 16 Q. Did you tell the police when they interviewed 17 you that your father had been unhappy in his 18 retirement? 19 A. I don't know if I did. 20 Q. If I may, let me ask you some questions about 21 your mother. Your mother could be a very direct 22 person at times; that is, she said exactly what she 23 meant? 24 A. She was a good communicator. I think we could 25 talk well. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 397 1 Q. I'm really going towards the style of her 2 communication. Isn't it right that at times your 3 mother was a very direct person? 4 A. I don't really know what you mean by "direct 5 person." 6 Q. She said just what she meant, didn't try to 7 sugar coat anything. 8 A. She was clear, yes. 9 Q. Now, there were times when your mother was 10 still alive that she had discussions with you about 11 her own feelings of self-worth; isn't that right? 12 A. I can't recall those discussions. 13 MR. SEE: If I may approach the witness, Your 14 Honor? 15 THE COURT: You may. 16 Q (By Mr. See) Mr. Forsyth, I'm going to hand 17 you the two volumes of your deposition. And the first 18 volume is here on your left. You do recall having 19 your deposition taken in this case? 20 A. Yes. 21 Q. And at that time you also were sworn to tell 22 the truth? 23 A. Yes. 24 Q. There was a court reporter taking down the 25 questions and answers? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 398 1 A. Yes. 2 Q. And I asked you questions and you gave answers? 3 A. Yes. 4 Q. Could you refer, please, to the second volume 5 of your deposition on Page 28? 6 THE COURT: Is that the thick or the thin one? 7 MR. SEE: It's the thin one, Your Honor. 8 Q. I want to ask you a question on page or Line 1 9 of Page 28. Do you have it there, Mr. Forsyth? And 10 my question is: During the time I took your 11 deposition, did I ask you these questions and did you 12 give these answers? 13 A. Yes. 14 Q. Okay. I have to ask you the question first, if 15 you don't mind, sir. The question was: "Mr. Forsyth, 16 in any conversation with you, did your mother ever 17 talk with you about that she felt she had low 18 self-esteem or low self-worth? 19 "ANSWER: I knew she had low self-worth at 20 times. I don't know if she specifically talked to me 21 about it. We may have talked about it briefly, but it 22 was more -- it was discussed a time or two. 23 "QUESTION: When your mother discussed that 24 with you, what did she tell you about it? 25 "ANSWER: She just wanted at times -- she PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 399 1 didn't always feel as good as other people, maybe." 2 Again, were those the questions and answers 3 that took place during the deposition? 4 A. They're here, I guess they are. It's been a 5 few years. 6 Q. Surely. At different periods in your life -- 7 in her life, your mother had problems with recurring 8 bouts of major depression; isn't that correct? 9 A. I wasn't aware of that. 10 Q. Were you aware that your mother had problems 11 with recurring bouts of major depression even during 12 the time she was on Maui? 13 A. I didn't know about it. 14 Q. Before she died, Mr. Forsyth, did you -- were 15 you aware or did your mother tell you that she had 16 taken Prozac for her major depression? 17 A. No. 18 Q. Did your mother, during her lifetime, did 19 she -- did she tell you or have any conversations with 20 you about her feelings of worthlessness or 21 helplessness? Did she tell you about that at all? 22 A. No, I don't think so. 23 Q. And again, forgive me, Mr. Forsyth, but I do 24 need to ask, during the time that your mother was 25 alive, did she ever talk with you or share with you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 400 1 that she had had wishes that she would die and, in 2 fact, wanted to die? 3 A. No, she didn't. 4 Q. Is it true that in the last few years of your 5 parents' marriage your mother's role was changing 6 somewhat? 7 A. I didn't see any role change. 8 Q. Isn't it correct that during the last two or 9 three years of your parents' marriage your mother was 10 beginning to leave the traditional role of the 11 homemaker and helper of your father and move into a 12 more equal partnership role in the marriage? 13 A. I wasn't aware of that. 14 Q. Were you aware that your mother really wanted 15 to have a bigger role in decision making in their 16 marriage? 17 A. No. 18 Q. Let me ask you a question or two about your 19 parents communications. During the last couple of 20 years of their lives, did you become aware that they 21 were having some difficulty in communicating? 22 A. Only when my dad decided to go to the Mainland 23 for a while. 24 Q. And this was when he left your mother and went 25 to Los Angeles in the summer of '92? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 401 1 A. That's correct. 2 Q. And he had a talk with you about their 3 communication problems at that time? 4 A. I believe I talked to both of them just to find 5 out what was going on. 6 Q. And your father indicated to you that 7 communication had not been easy between him and your 8 mother? 9 A. He thought it needed work. It was hard. 10 Q. And that was one of the reasons that he had 11 left and had gone to live in the Mainland for a time? 12 A. That's correct. 13 Q. Did your father tell you that one of the 14 problems that caused him stress was the fact that he 15 was spending longer periods of time at home with your 16 mother because of his retirement? 17 A. No, he didn't. 18 Q. Would you turn to Page 41 of that same second 19 volume of your deposition, sir? I want to ask you 20 beginning at Line 15, if you were asked these 21 questions and gave these answers: 22 "QUESTION: Did you speak with your father 23 during the time he was on the Mainland during the '91 24 trip? 25 "ANSWER: Yeah, by phone. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 402 1 "QUESTION: Did he tell you what he was 2 thinking about? 3 "ANSWER: Yeah. He said since retirement, he 4 had trouble being at home and communicating with mom 5 now that they were there with a lot more hours in the 6 day together." 7 Were those questions put and did you give those 8 answers, sir? 9 A. I believe so. 10 Q. And did your father also tell you that his 11 spending more time at home with your mother was 12 stressful for both of them? 13 A. I don't recall him saying that. 14 Q. Let me ask you, Mr. Forsyth -- 15 MR. SEE: I'm going to show Mr. Forsyth a part 16 of Exhibit 172. Your Honor, as a predicate for 17 showing these blowups to Mr. Forsyth, may we offer, 18 with the plaintiffs' agreement, Exhibit 172, which is 19 the personal notes of June Forsyth? 20 MR. VICKERY: Absolutely, Your Honor. We join 21 in that offer. 22 THE COURT: Very well. So you're offering into 23 evidence 172? 24 MR. SEE: Yes, sir. 25 THE COURT: Okay. 172 is admitted. This is PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 403 1 the whole exhibit? 2 MR. SEE: There's a series of notes, Your 3 Honor, and these are two excerpts from them. 4 THE COURT: Very well. 5 MR. VICKERY: Excuse me, Your Honor. May I 6 step around to see this as he asks? 7 THE COURT: You may. 8 MR. SEE: Are you able to see this, 9 Mr. Forsyth? 10 THE COURT: Maybe we better break for the 11 weekend. Let's stop for today. We'll start again at 12 nine o'clock on Tuesday. Have a nice weekend. We'll 13 excuse the jury at this time. 14 (Whereupon, the following proceedings were had 15 in open court out of the presence of the jury.) 16 THE COURT: You may step down. 17 What's the problem with the photographs? 18 MR. VICKERY: Ms. Barth will take that up for 19 us if it's all right with the Court, Your Honor? 20 MR. SEE: The objection I expressed was that 21 the photographs included photographs of the 22 grandchildren and also the family video that they want 23 to play includes many representations of just the 24 grandchildren. 25 THE COURT: I thought they were going to be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 404 1 deleted. 2 MR. SEE: Well, I did, too, but that's not what 3 happened. 4 MS. BARTH: Your Honor, the plaintiffs' 5 position on the grandchildren is not that these are 6 being offered to show damages for the grandchildren, 7 but rather to show the stark contrast between Bill 8 Forsyth's personality in his normal life versus when 9 he was on Prozac. Plaintiffs contend that Mr. Forsyth 10 was not capable of the acts that he did without an 11 outside source. We contend that's Prozac. Defendants 12 have a claim that it's not. 13 THE COURT: What date were these photographs 14 taken? 15 MS. BARTH: They're taken throughout 1991, '92, 16 and I believe '93. As Mr. See also said earlier -- 17 THE COURT: How many are there? 18 MS. BARTH: Well, we had nine still photographs 19 to admit, and then I tried to negotiate with Mr. See 20 to take out six of those. So we have three we would 21 like to keep in. We would also like to avoid fast 22 forwarding through the videotape. It's a short 23 videotape and it runs straight through. We would 24 rather just keep that straight through. That was our 25 compromise and Mr. See did not agree to that. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 405 1 MR. SEE: If I may, Your Honor, the videotape 2 is nothing but a pure appeal to sympathy based upon 3 very attractive, very appealing grandchildren, 4 sometimes not even with the grandparents being there, 5 opening presents at Christmas, being with their 6 parents and so on. It just has nothing to do with 7 this case. 8 THE COURT: All right. I'm going to order that 9 you fast forward when the grandparents are not there. 10 Anything else? 11 MS. BARTH: And the pictures can go in? 12 THE COURT: What's the problem with the three 13 photographs? 14 MR. SEE: I don't believe they are appropriate 15 because they appeal to sympathy and the parents -- the 16 grandparents' relationship with their grandchildren is 17 not a compensable item of damage. 18 MS. BARTH: We're not offering it for damages. 19 THE COURT: You heard the proffer, it's not for 20 that purpose. 21 MR. SEE: Under 403, it is much more 22 prejudicial than it is probative of anything. 23 THE COURT: All right. I'll have to look at 24 them then if you're going to put me to a 403 analysis. 25 Where are they? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 406 1 And these are all in '91 and '92 and '93? 2 MS. BARTH: Yes, Your Honor. 3 THE COURT: Well, one of these is just the two 4 grandchildren. 5 MS. BARTH: With Mr. Forsyth, that's correct. 6 THE COURT: Oh, I see. I didn't see him 7 underneath. That hardly shows him, so I'm not going 8 to allow 46C, but I will allow the other two, which 9 are 29A and the other one has no designation, except 10 it's been marked in pink. I think you know which two 11 those are, Mr. See? 12 MR. SEE: I certainly know which one 46C is. I 13 have nothing other than the same objection that I had 14 before. 15 THE COURT: All right. The Court finds under 16 403 that they're substantially more probative than 17 giving rise to any undue or unfair prejudice. 18 Anything else we should take up at this time? 19 MR. SEE: So is it my understanding from the 20 Court that the pictures the Court just read off are 21 the only pictures of the grandchildren that can be 22 shown? 23 THE COURT: Those are the only two they're 24 offering. 25 MS. BARTH: Unless -- let me just make a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 407 1 clarification for the Court. Unless there is a 2 compensable party in the picture already. 3 THE COURT: Pardon me? 4 MS. BARTH: Unless there is a compensable party 5 in the picture. 6 THE COURT: I thought you told me you're only 7 offering two photographs? 8 MS. BARTH: No, these are the only two 9 photographs of Mr. Forsyth with the grandchildren and 10 nobody else in the picture. Mr. See has objected to 11 only pictures of Mr. Forsyth and the grandchildren. 12 MR. SEE: Well, that's simply inaccurate. I'm 13 sorry. 14 MS. BARTH: Well, please correct me. 15 MR. SEE: What I've objected to is the pictures 16 of these grandchildren, because the grandchildren -- 17 it is an appeal to sympathy and it's improper. 18 THE COURT: You'll have to come in on Monday 19 and give me a list of the photographs that the 20 plaintiffs want to offer and those that you're 21 objecting to, Mr. See. 22 What time can we meet on Monday? 23 It will be at 1:30 on Monday. Keep trying to 24 work this out. 25 MS. BARTH: Thank you, Your Honor. We will. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 408 1 THE COURT: Have a nice weekend. 2 (Whereupon, the proceedings were adjourned at 3 4:00 p.m. to be reconvened on Monday, March 8, 4 1999 at 1:30 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 409 1 C E R T I F I C A T E 2 --ooOOoo-- 3 I, TINA M. STUHR, Official Court Reporter, 4 United States District Court, District of Hawaii, 5 Honolulu, Hawaii, do hereby certify that the foregoing 6 is a correct partial transcript of proceedings in 7 Civil No. 95-00185ACK, Susan K. Forsyth, et al. vs. 8 Eli Lilly and Company, et al., at Honolulu, Hawaii, on 9 March 5, 1999, before the Honorable Alan C. Kay, 10 United States District Judge. 11 DATED: December 19, 1999. 12 13 ______________________________________ TINA M. STUHR, RPR, CSR #360 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU