1030 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 ) Pages 1,030 - 1,229 of the Estates of June M. ) 6 Forsyth and William D. ) 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 12, 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 1031 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 1032 1 I N D E X 2 WITNESS ON BEHALF OF PLAINTIFFS 3 DAVID HEALY, M.D, Ph.D. PAGE 4 Redirect Examination by Mr. Vickery 1034 Recross-Examination by Mr. See 1072 5 AMY LEE 6 Direct Examination by Mr. Vickery 1075 7 Cross-Examination by Ms. Mangrum 1096 Redirect Examination by Mr. Vickery 1097 8 RANDOLPH NEAL, Ph.D. 9 Direct Examination by Mr. Vickery 1099 10 Cross-Examination by Mr. See 1129 Redirect Examination by Mr. Vickery 1168 11 Recross-Examination by Mr. See 1179 12 DOROTHY SMITH 13 Direct Examination by Ms. Barth 1181 Cross-Examination by Mr. Burke 1190 14 RIGGS ROBERTS, Ph.D. 15 Direct Examination by Mr. Vickery 1196 16 Cross-Examination by Mr. See 1214 17 EXHIBITS ADMITTED INTO EVIDENCE: PAGE 18 Exhibit 1 - U.S. Warnings for Prozac 1097 19 Exhibit 5 - Draft U.S. Warnings 1097 20 6/11/86 Draft Insert 21 Exhibit 6 - 12/6/89 German Warning 1097 22 Exhibit 8 - 10/16/86 Canadian Warning 1097 23 Exhibit 9 - 9/87 French Warning 1097 24 Exhibit 10 - 10/5/84 Swedish Warning 1097 25 Exhibit 11 - 12/15/86 Swiss Warning 1097 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1033 1 Exhibit 12 - Spanish Warning 1097 2 Exhibit 42 - 5/25/84 Translation of BGA 1097 Medical Comment on Fluoxetine 3 Exhibit 54 - 2/27/85 Telex From Weber to 1097 4 Weinstein 5 Exhibit 73 - 10/16/86 Telex from Wernicke 1097 6 Exhibit 88 - 8/30/89 Memo from Bouchy to 1097 Gennery, et al. 7 Exhibit 94 - 1/24/90 Memo from Beasley to 1097 8 Thompson/Weinstein/Zerbe 9 Exhibit 96 - 2/7/90 Letter from Zerbe to 1097 Unknown 10 Exhibit 102 - 6/11/90 Letter to Noone 1097 11 Exhibit 121 - 2/6/91 Memo from Thompson 1097 12 to Weinstein 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1034 1 THE CLERK: Civil No. 95-00185ACK, Susan K. 2 Forsyth, et al. versus Eli Lilly and Company, et al. 3 MR. VICKERY: Good morning, Your Honor. Andy 4 Vickery, Karen Barth, and Roy Chang for the Forsyths. 5 THE COURT: Good morning. 6 MR. SEE: Good morning, Your Honor. Andy See, 7 Michelle Mangrum, and Ed Burke for Eli Lilly and 8 Company. 9 THE COURT: Good morning. Good morning, ladies 10 and gentlemen of the jury. 11 Please proceed. 12 MR. VICKERY: Thank you, Your Honor. 13 REDIRECT EXAMINATION 14 BY MR. VICKERY: 15 Q. Dr. Healy, I have a few things to ask you to 16 follow up on some questions from Mr. See yesterday. 17 The first one is, how is it that you scientific 18 guys that seem so precise in your speech use the word 19 case reports in two such different ways? Can you 20 explain that for us? 21 A. Yes, I think I can. It's highly appropriate, 22 but extremely confusing to use it in two completely 23 different ways. In one sense what you've got is 24 either a consulting psychiatrist, or whatever, who may 25 be seeing an individual on their own in their office, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1035 1 and this individual may have gone on some drug and 2 some apparent adverse event may have happened. And 3 clearly, as Mr. See pointed out yesterday, there could 4 be a range of other different things that contributed 5 to that event other than the drug, but what the 6 consulting psychiatrist should do in the United 7 Kingdom, and I'm sure here in the USA as well, is when 8 these things happen, where they think there's a 9 reasonable chance that the drug may be associated, 10 they file a case report with the U.K. -- in the U.K. 11 with the U.K. equivalent of the FDA. This is called 12 the CSM, and they send it in either a yellow card to 13 one agency or a green card to another agency. 14 Q. I think in the United States we call those 15 adverse drug reports? 16 A. We do, yes. 17 Q. And I believe the jury may hear Lilly puts them 18 into a computer called the Drug Experience Network, 19 DEN. Are you familiar with that? 20 A. I am, and I have not been talking about that at 21 all. 22 Q. Okay. 23 A. If the case against Prozac rested on that kind 24 of data, at least before the Jick article came out, I 25 wouldn't be here. The case does not rest on that kind PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1036 1 of data. 2 Q. Let me stop you there. Is that kind of data 3 sometimes called anecdotal reports? 4 A. It is sometimes called anecdotal reports, and 5 it's also sometimes called case reports, because 6 what's involved is a report of a particular case, very 7 brief details of the case usually. 8 Q. Okay. Let me stop you. I'm going to write 9 that word because when you're gone, we may all need to 10 consider it, okay? Here's Mr. See's writing about 11 case reports. 12 Okay. There's no -- now, what does the word 13 anecdotal mean? 14 A. What it means is if we go back to the gin 15 instance that we used beforehand. Let's say, you and 16 I were here in the room and no one else was here in 17 the room and I went out to people afterwards and said 18 that I gave you some gin and you got drunk. They may 19 or may not believe me. They wouldn't really have the 20 evidence of it or not. There would be no more 21 controls in it. That's what it means, in essence, and 22 in my review, which Mr. See drew your attention to, 23 drew the Court's attention to, I say case reports of 24 this kind should not be put in the balance against the 25 data Lilly have. I would fully support them on that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1037 1 point. 2 Q. So you have not used that kind of case report 3 as the basis for your opinion? 4 A. Not a single case report of that sort, even 5 though I understand a great number have been filed. 6 Q. Now, Mr. See, I think, did a very good job 7 yesterday of pointing out that these very articles 8 that you have relied on, the Rothschild, Teicher, used 9 this phrase case reports in the article. Please 10 explain for us how that is different. 11 A. Right. The Rothschild, Teicher, King, Wirshing 12 articles and our own are controlled clinical studies. 13 What happens is they're much more like the situation 14 where I give you gin and everybody in the court is 15 here to see what happens. 16 In this case, you've got five or six senior 17 investigators, in all instances, witnessing the cases 18 and coming to a consensus about what's going on. It's 19 not one investigator saying I've seen this. They've 20 all seen it. They've considered what the other 21 options might be, and their consensus is, for a 22 variety of reasons -- that there appears to be a 23 dose-response relationship, or challenge/dechallenge, 24 challenge, dechallenge, rechallenge -- that the drug 25 can be implicated. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1038 1 Now, let's say that we were to do the 2 experiment with gin with all of us here in the room. 3 We were to give you gin -- actually, let's say we were 4 to give gin to all of your team here. 5 Q. They'd like that. 6 A. What we would do is we'd bring you in first and 7 we'd give you the gin, and all of us here in the court 8 would watch what happened to you, and we'd see you get 9 drunk. And then you would leave and the next person 10 would come in, Ms. Barth, and we'd give her gin and 11 she'd get drunk and then she'd leave, but we would 12 have all been here to see it. And then Roy would come 13 in and sit down and we would give him gin and he'd get 14 drunk -- 15 Q. Okay. I think I get the picture. 16 A. But what we would then do, trying to write this 17 up, we would go through the issues involved and then 18 we would say, case one, this is what happened. 19 Mr. Vickery, a man of this size, et cetera, et cetera, 20 was given this much gin and this is what we observed. 21 Case two, this is what we observed. So we do a report 22 on each of the cases, and the convention within the 23 article is to say, here are the reports of the cases 24 with all of the confounding factors taken into 25 account. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1039 1 Q. Okay. So we can differentiate, there's the 2 anecdotal case report, but the kind you're relying on 3 is some kind of a controlled -- what's the word or 4 phrase that would help us understand the distinction? 5 A. One is a controlled clinical scientific study. 6 The other is not. It's like oil and water. There is 7 not a shred of anything in common between them. 8 Q. And when you write things for public -- I mean, 9 for scientific consumption in the scientific journals, 10 are these distinctions well recognized? 11 A. Oh, absolutely. The first group that we have, 12 the yellow card or the green card reports, the 13 anecdotal reports are never peer reviewed in any way. 14 To publish a controlled clinical study, which contains 15 case reports of the kind that I have outlined to you, 16 this will be vigorously peer reviewed. 17 Q. But have you sometimes in writing in the 18 journal described the Teicher article or the 19 Rothschild article or these others as case reports? 20 A. One slips in to using these words, but I have 21 tried, where I can, and more, I guess particularly 22 since I've become aware of the legal significance of 23 this particular distinction, if you look in my most 24 recent review article, I take care to say that one 25 group is a controlled clinical study and should not be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1040 1 confused with anecdotal case reports, but that there 2 appears to be some tendency to get these two terms 3 confused. 4 Q. Okay, sir. Now, yesterday Mr. See showed you, 5 in your declaration in this case, where you said that 6 akathisia was a clear-cut phenomenon. Do you recall 7 saying that in your sworn declaration? 8 A. I do. 9 Q. Remember that, he pointed out you were under 10 oath when you said that? 11 A. Yes. 12 Q. Clear-cut from whose perspective? 13 A. Well, I think you've actually given the game 14 away, Mr. Vickery, almost. Akathisia -- let me 15 explain. Just to bring the point home, let me read 16 out the first reports of akathisia from the patient's 17 point of view. These are the first in the historical 18 literature, and I'm only going to read you one quote, 19 the very first one, okay. 20 MR. SEE: Your Honor, I object unless it is 21 clear what the doctor is reading from and that it's 22 been established by 803(18), the exception of the 23 hearsay rule. 24 THE WITNESS: This is a peer-reviewed 25 article -- sorry. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1041 1 Q (By Mr. Vickery) Let me ask the question. 2 Can you tell us what it's from? 3 A. Yes. This is written up in a peer-reviewed 4 article, The British Journal of Psychiatry, where I 5 have authored the article. I have gone back to look 6 at the origins of akathisia, literally the first 7 reports from patients about what it was like to have 8 this condition, and this will help bring out what I 9 mean when I say it's a clear-cut phenomenon. 10 Q. Okay. Sir, would you read the quote? 11 A. I will, indeed. These are the first words 12 actually recorded in history, as far as I'm aware. 13 These bits aren't actually the words of the patient 14 first. "The first few doses frequently made them 15 anxious and apprehensive. They reported increased 16 feelings of strangeness, verbalized by statements such 17 as, 'I don't feel like myself' or 'I'm afraid of some 18 of the unusual impulses I have.'" 19 Now, these reports were produced by a drug 20 which is shown to be an antidepressant acting on the 21 serotonin system. They are clear-cut in this sense, 22 that from the point of view of the person who's having 23 these experiences, you will know when the experience 24 begins and you'll know when it ends. 25 If we were to give this drug to all of us here PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1042 1 in the court, a significant proportion of people in 2 the room would have this kind of experience, and you 3 would be very clear in your own mind when it began and 4 rough -- well, to the hour when it began and to the 5 hour when it began to ease off. Why? Because you 6 would describe it later to me as one of the worst 7 experiences of your life. 8 Now, on the outside, I may be completely 9 unaware that you're having one of the worst 10 experiences of your life, but you will know it. Now, 11 there's another point behind this which helps make it 12 clear cut. Often, there can be a confusion between 13 the illness, what might be caused by the illness and 14 what might be caused by the drug. These reports that 15 I've just read out to you, which have been caused by 16 an antidepressant acting on the serotonin system, are 17 reports from people who did not have depression when 18 they were given this drug. It was also used as an 19 antihypertensive, and these are reports from the 20 people with hypertension. 21 Q. High blood pressure? 22 A. High blood pressure, yes. The significance of 23 this is as follows: Some of you will probably find it 24 a little hard to believe. We've heard so much about 25 people who were depressed actually committing suicide, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1043 1 and even though I've given you the only figures that 2 are available in the field for how likely people who 3 are mildly depressed should be to commit suicide, 4 you're still going to have a lingering suspicion that 5 depression could have been the cause of all this. 6 Particularly, as I've said, I agree that Mr. William 7 Forsyth probably was, at least, mildly depressed. 8 The significance of this is what we have here 9 is people becoming akathisic and committing suicide on 10 this drug who weren't depressed at all. Based on 11 this, I can say to you that Mr. William Forsyth, had 12 he not been depressed at all and had he been given 13 Prozac, I can say with a reasonable degree of 14 certainty, that he would have become akathisic on this 15 drug. And there are filed reports of fluoxetine 16 causing akathisia, just like this drug did in people 17 who are not depressed. 18 MR. SEE: Dr. Healy, if you would just wait one 19 second. I object and ask to approach the side bar. 20 THE COURT: All right. 21 (Whereupon, the following proceedings were had 22 at side bar out of the hearing of the jury.) 23 MR. SEE: It sounds as if Dr. Healy has just 24 given testimony about spontaneous reports. He said 25 there were reports of people taking Prozac and then PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1044 1 committing suicide. 2 MR. VICKERY: I can tell you what report he's 3 talking about. He's talking about a letter to Lilly 4 that's in evidence from -- there's a letter to 5 Mr. Noone from, I don't know who, because they blocked 6 out the name on the letter, and there's a response 7 filed with Lilly of someone who was not depressed who 8 had this reaction. 9 Now, I offered this for the purpose of notice, 10 and I understand Mr. See may want a limiting 11 instruction, and that's perfectly fine, but it's an 12 exhibit that the Court has determined is in evidence 13 and offered for the purpose of notice and not 14 causation. 15 THE COURT: He's referring to a letter now 16 rather than an article that he was quoting from? It's 17 hard to follow. 18 MR. VICKERY: I know it is, but it was a letter 19 that was offered for notice, and this testimony about 20 the letter is offered for notice to Lilly of the 21 problem, not for causation. 22 MR. SEE: Your Honor -- 23 THE COURT: This is a letter from whom to whom? 24 MR. VICKERY: It's a letter, I don't know who 25 it's from. It's from a physician. You can tell from PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1045 1 the verbiage of the letter. 2 THE COURT: I haven't seen it. I don't know 3 what he's referring to. 4 MR. VICKERY: I don't know the name of the 5 physician because it's been redacted. 6 THE COURT: I understand that. 7 MR. VICKERY: But it is from a physician who 8 reports a patient -- 9 MR. SEE: Would you lower your voice? 10 MR. VICKERY: It is a report from a patient who 11 was not depressed, but who was given Prozac and 12 developed akathisia and suicidal thoughts, and Lilly 13 gets the letter and writes the response, okay? This 14 is offered for the purpose of notice to Lilly that 15 people who are not depressed became akathisic and 16 suicidal on the drug. That's the very purpose of 17 which it is offered. No greater purpose. 18 THE COURT: In this case, he was depressed. 19 Mr. See? 20 MR. SEE: The problem here as defined by 21 Mr. Vickery, this is a spontaneous report, a drug 22 experience report, from a single doctor writing and 23 saying, I've given a drug to a single patient and I've 24 noticed a spontaneous report. Dr. Healy cannot 25 testify on the adequacy of warnings, so any issue of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1046 1 notice is completely irrelevant to his testimony and 2 Mr. Vickery knows that because Your Honor so ruled and 3 Dr. Healy is simply trying to push in everything he 4 can. 5 He has clearly used it in the context, well, 6 there are lots of reports that this happens in the 7 context of a causation opinion. He's up here talking 8 about causation, and now he mentions this spontaneous 9 report, which Your Honor has ruled, may not be ruled 10 upon in causation and he's used it in the context of 11 causation. 12 THE COURT: I tend to agree with Mr. See. It 13 is being used in the context of a causation opinion. 14 I'm going to disallow it. 15 MR. SEE: Would you direct the jury to 16 disregard the report? 17 THE COURT: Yes. 18 MR. VICKERY: Your Honor, I intend to reoffer 19 it, so while we're here at the side bar, let me tell 20 the Court that. I don't want to do it in front of the 21 jury and get into trouble. 22 MR. SEE: Not with this witness. 23 MR. VICKERY: I agree with Mr. See that the 24 Court limited the scope, okay, and I've tried to be 25 very cautious about that, and I think Mr. See expanded PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1047 1 the scope considerably with his cross-examination. 2 THE COURT: I don't think so. 3 MR. VICKERY: Okay. 4 (Whereupon, the following proceedings were had 5 in open court in the presence of the jury.) 6 THE COURT: The Court will sustain the 7 objection and instruct the jury to disregard the last 8 statement of Dr. Healy. 9 Q (By Mr. Vickery) Okay. Next question. 10 Mr. See asked you something about the DSM-IV. You 11 know what he was talking about, the DSM-IV? 12 A. The criteria for neuroleptic -- 13 Q. No, just the book. 14 A. The book, yes. 15 Q. Can you -- the DSM-IV, can you tell the jury 16 what he was talking about? 17 A. He didn't ask me anything. It was in the 18 Daubert examination, I think. 19 Q. No, he mentioned in his examination yesterday 20 the DSM-IV. I wrote it down so you could tell us what 21 that is. 22 A. The DSM-IV is the Diagnostic and Statistical 23 Manual, and this is the fourth version that has been 24 produced, and this contains the various different 25 conditions that people may have and the operational PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1048 1 criteria. This means, you know, if I'm going to say 2 that you have this condition, here are the things you 3 could have and you should have at least four or five 4 of them say, for instance, before I would say you were 5 depressed, for example. 6 Q. Okay. Is it a big ole thick 3-inch book bound 7 in red? 8 A. It is a very thick book, yes, sir. 9 Q. And Mr. See showed it to you earlier this week 10 and talked to you about it? 11 A. Yes. 12 Q. And does it, in fact, have criteria for 13 neuroleptically-induced akathisia? 14 A. It does, indeed. 15 Q. And remember when he put that footnote on the 16 board about that different kind of akathisia? 17 A. Yes, I do. 18 Q. And does the Diagnostic and Statistical Manual 19 Volume IV, it is the big thick red book, set out that 20 there has to be visible, objective movements; tapping, 21 pacing, that sort of thing to diagnose 22 neuroleptically-induced akathisia? 23 A. As phrased by DSM-IV, it leaves -- it says 24 clearly that in some cases these may be observable, 25 but it does not mandate the fact that the condition PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1049 1 can only be diagnosed by the clinician making the 2 observation. It can be diagnosed by the patient 3 saying that, look, I find that I'm on the move more 4 than I ought to be. So it can be diagnosed by the 5 verbal reports of the patient only. 6 Q. Well, I expect that when you're back in Wales, 7 we're going to see that book again, so I want us to 8 know, does that page that applies to diagnosing 9 neuroleptic akathisia, does that govern akathisia that 10 is caused by fluoxetine, Prozac? 11 A. No, it doesn't. 12 Q. Okay. Let's just move on. Now, Mr. See also 13 asked you yesterday if you still occasionally use 14 Prozac, you still prescribe it. Do you? 15 A. Yes, I do. 16 Q. Why? 17 A. Well, there are a few reasons. First of all, 18 the first thing I would like to say that if I had a 19 patient who was actually referred to me who was 20 currently on Prozac and doing well, there is no way I 21 would take this person off that drug. Clearly if 22 they're doing well, that's just fine by me. 23 The ultimate goal we're all concerned about is 24 that the patient does well. I am less inclined to 25 prescribe Prozac, not particularly for the reasons one PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1050 1 may hear about in this case these days, for two other 2 reasons really. One is a fairly minor reason, which 3 is that it's got an extremely long half life and a 4 very high potential to interact with other drugs if I 5 wanted to put the patient on these other drugs. So 6 from this point of view, it is a tricky drug to use. 7 And the other point, of course, is Mr. See 8 referred to the European College of 9 Neuropsychopharmacology meeting last year that I was 10 at, and he said, were you aware that there were 13 or 11 14 presentations on various different antidepressants 12 being compared with Prozac -- 13 Q. Slow down just a little bit. This lady is 14 going to get mad at us. 15 A. Right. Okay. Were you aware that there were 16 13 or 14 other presentations -- I'll take some water 17 for a second -- on other antidepressants being 18 compared to Prozac? And you would have heard me say, 19 well, yes, I'm happy to take his word that there were 20 all these, but that they will have largely all have 21 the same point, and it's this same point that would 22 influence me whether I was going to prescribe Prozac 23 or not. 24 What most of the other companies would have 25 been doing at this meeting, which I was at, is they PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1051 1 have found that it's actually very, very simple to 2 compare their drugs, all of the neuro drugs out in the 3 market, they've chosen to compare their drug to Prozac 4 for one reason, which is they find it is 5 extraordinarily simple to show that their drug is more 6 effective than Prozac. You just have to go to a more 7 moderately to moderately severe group of people who 8 were depressed and their drug will show that it works 9 more effectively than Prozac. 10 This would influence me -- you see, I get faced 11 with people who -- who will tend to be more moderately 12 to severely depressed, and this will influence me 13 because of this, not to make it my first choice 14 antidepressant because the evidence that it's going to 15 be most helpful for these people just isn't there. 16 Q. Now, a few other things to clear up and I think 17 we'll be done. He asked you -- well, first of all, he 18 asked you about this Harvard Mental Health Letter, so 19 let's take a look at it if we may. 20 I'm just going to read from this column over -- 21 actually, we'll show you -- Ms. Barth, pull it down so 22 they can see where Mr. See read up here the 23 highlighted, and then pull it down a little lower down 24 there. "In many patients they caused insomnia and 25 agitation," talking about the SSRI drugs. Now, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1052 1 agitation, is that a word that someone in a newsletter 2 would use to describe akathisia? 3 MR. SEE: Well, I object. It calls for 4 speculation, Your Honor, that Dr. Healy would know 5 what the author of this meant by the use of a word. 6 THE COURT: I think you better rephrase the 7 question. 8 Q (By Mr. Vickery) Have you seen -- have you 9 seen the words -- the word agitation used to describe 10 the phenomenon that you diagnose with this big 11 ten-penny medical word, akathisia? 12 A. In my very first presentation of the two people 13 that we challenged and rechallenged with 14 antidepressants active on the serotonin system with a 15 large audience from the British Association for 16 Psychopharmacology, there I used the word phrase 17 akathisia. The response from the professor of 18 psychiatry in Cambridge was, don't you mean agitation? 19 This is what you're describing. So, yes, this word 20 will be used interchangeably with the word akathisia 21 even by professionals. 22 Q. Okay. So what we know from this Harvard 23 newsletter, among other things -- even though it's not 24 a peer-reviewed journal, right? 25 A. Well, if you could quickly go up to the top. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1053 1 Is it feasible to just go up to the top of the page 2 and you'll see the problem I -- oh, well, right. If 3 we could go to the previous page, the problem I was 4 faced with is it's called, "The Harvard Mental Health 5 Letter." Now, letter implies that it's not peer 6 reviewed. I would want to have a great deal of 7 reassurance that it was. Then you see, "Update on 8 Mood Disorders Part Two," and there's no authors. I 9 have no idea who has written this at all. Absolutely 10 no idea, so I was put at a considerable disadvantage, 11 I felt. 12 Q. So not only can we not examine those people 13 here and ask them questions, but you don't even know 14 who it was that wrote it? 15 A. I have no idea at all. 16 Q. Thank you, Ms. Barth. We'll look at another in 17 a minute. 18 You were asked about Dr. Montgomery, and it was 19 pointed out that he was the president when you were 20 the secretary of the British Association. Has 21 Dr. Montgomery done a great deal of consulting work 22 for Eli Lilly? 23 A. He has. 24 Q. And the article that you were asked about 25 really compares Reboxetine with Prozac. Now, do you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1054 1 know the drug Reboxetine? 2 A. I do know the drug Reboxetine. 3 Q. Is it a selective serotonin reuptake inhibitor? 4 A. It has no actions in the serotonin system at 5 all. 6 Q. Let's see what Dr. Montgomery said about the 7 comparison of those two drugs. On Page 28, the same 8 page that Mr. See looked at. He says, "In comparison 9 with fluoxetine," that's Prozac, right? 10 A. Yes. 11 MR. SEE: I'm sorry, could you just tell where 12 you are? 13 MR. VICKERY: I'm sorry, Mr. See. I'm down in 14 the summary about eight lines up from the bottom. The 15 sentence that starts, "In comparison." 16 MR. SEE: Thank you. 17 Q (By Mr. Vickery) "In comparison with 18 fluoxetine, Reboxetine has a different adverse event 19 profile." What's an adverse event profile? 20 A. This, in essence, means the problems by the 21 side effects the drug causes; the things you don't 22 want the drug to do as opposed to the things you do 23 want it to do. 24 Q. "But shows advantages in terms of agitation, 25 nervousness, anxiety, and gastrointestinal events." PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1055 1 If he's telling us that this other drug, Reboxetine, 2 has advantages over Prozac with respect to agitation, 3 nervousness, and anxiety, what's the message? What do 4 you derive from that? 5 A. Well, Dr. Montgomery, we didn't use this 6 earlier, has also authored some controlled clinical 7 studies looking at fluoxetine and akathisia and 8 showing that it causes akathisia in a dose-related 9 fashion, and I explained to you earlier that one of 10 the workers on his team, the senior -- well, not the 11 senior author, but the first author on that article, 12 wrote to me personally, and we have the letter here in 13 court saying -- after I had written my 14 challenge/rechallenge cases to say that they -- 15 MR. SEE: Your Honor. Dr. Healy, if you would, 16 please. 17 THE WITNESS: Sorry. 18 MR. SEE: I object to the hearsay. 19 Q (By Mr. Vickery) That's fine. Let's don't 20 get into the hearsay. Mr. See's right. Let's not say 21 what that man told you again. 22 A. Wrote to me? 23 Q. Right, but he's not here for us to examine him, 24 you see. We can't cross-examine him, so that's 25 hearsay. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1056 1 A. Fine. 2 Q. Let me just get back to the question. If your 3 colleague, Dr. Montgomery, is saying that this other 4 drug has advantages in terms of agitation, 5 nervousness, and anxiety, is the natural implication 6 from that that Prozac must cause some of that stuff? 7 A. Absolutely. 8 Q. Let's see the article that you were talking 9 about. Thank you, Ms. Barth. 10 The article that you mentioned is entitled, 11 "Fluoxetine, Fluvoxemine, and Extrapyramidal Tract 12 Disorders," by Dr. Baldwin, Naomi Fineberg, and Stuart 13 Montgomery in the International Clinical 14 Psychopharmacology Journal. Is that a peer-reviewed 15 article? 16 A. I can't say without seeing it. If it hasn't 17 got the word supplement at the top -- I mean, if it's 18 not part of some supplement to the journal, then it is 19 peer reviewed. If it is part of a supplement, I can 20 be less certain. 21 Q. No word supplement. 22 A. Okay. Then it's probably peer reviewed. 23 Q. Let's look, first of all, at the title. 24 There's another big ole word, extrapyramidal. Does 25 that having anything to do with akathisia? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1057 1 A. Mr. Vickery, unfortunately for all of us, this 2 is where things get extremely complicated. Yes. This 3 refers to the fact that there are particular parts of 4 the nervous system called the extrapyramidal system, 5 and it is thought that actions on this particular 6 system can cause parkinsonian side effects for 7 instance, tardadyskinesia for instance, and akathisia 8 for instance. 9 Q. So akathisia is one of the different 10 extrapyramidal side effects? 11 A. Yes. 12 Q. I just want you to look at two items under the 13 article by these gentlemen under the discussion 14 section on Page 54 first. Let's give Mr. See a chance 15 to get with us. 16 I'll just read it, if I may, since you're 17 coughing up there. "Implication of a drug in an 18 adverse reaction should include evidence that 19 institution of that drug temporally related to the 20 development of the reaction." Now, is that that 21 factor number two, I think, of the Bradford Hill? 22 A. It is. 23 Q. "That its withdrawal leads to resolution of the 24 reaction." What's that? 25 A. That's the fact that when you dechallenge the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1058 1 individual, things go away. 2 Q. Dechallenge. "And re-exposure to the drug 3 leads to the replication of the regular phenomenon." 4 Is that rechallenge? 5 A. That's rechallenge. 6 Q. So Dr. Baldwin and Dr. Montgomery agree that 7 those are things to look at to determine causation, 8 right? 9 A. Absolutely. 10 Q. Okay. Now, let's look at what he says about 11 akathisia on Page 55. It's the next to the last 12 paragraph, Mr. See. 13 MR. SEE: Fifty-five. Thank you. 14 Q (By Mr. Vickery) "Akathisia is probably the 15 commonest and one of the most distressing movement 16 disorders associated with antipsychotic drugs. 17 Regrettably, the diagnosis of akathisia tends to rest 18 upon direct questioning." 19 Now, is there anything unclear about that? 20 A. No. 21 Q. Isn't that just what you're saying? 22 A. Absolutely. 23 Q. You've got to question the patient because it's 24 apparent from their perspective, right? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1059 1 Q. "Even though it has been recognized, that 2 reliance upon subjective reports alone does not lead 3 to a reliable diagnosis." And he cites Van Putten, 4 right? 5 A. That's right. 6 Q. Okay. Couple of other matters about 7 Dr. Montgomery and we'll be through with him. You've 8 mentioned before that you've presented this data to 9 over a thousand different scientists in different 10 forums? 11 A. Yes. 12 Q. And no one has ever criticized you in public or 13 after any of those meetings, right? 14 A. No, that's true. 15 Q. Did you do that in a meeting last year in 16 Paris? 17 A. I did. 18 Q. Who was the chairman of the meeting? 19 A. Dr. Montgomery. 20 Q. And did Dr. Montgomery say to you either 21 publicly during the meeting or privately after it, you 22 know, that you were off base or that this was 23 unscientific? Anything of that nature at all? 24 A. No. 25 Q. Are you aware of the fact, Dr. Healy, that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1060 1 Dr. Montgomery did a study of Prozac and suicide 2 sponsored by Eli Lilly that's never been published? 3 A. I'm aware of this. 4 Q. Okay. Incidentally, when you present in front 5 of a scientific audience, as you have, do you usually 6 have time for questions from the audience? 7 A. Yes, of course. 8 Q. And is that process like what you've been going 9 through here in terms of the questions or is it a 10 little bit different? 11 A. You mean, am I told I can only answer yes or 12 no? 13 Q. Right. 14 A. No, of course not. I mean, what people are 15 hoping is that they've heard me say words and they 16 want to really be sure they understand the meaning of 17 what I have said, so they want me to flush things out 18 for them. 19 Q. I guess, it's been a little frustrating for you 20 then? 21 A. Very. 22 Q. Dr. Healy, one final thing. You were asked 23 about the American College of Neuropharmacology -- 24 Neuropsychopharmacology. Now, that's what you are, 25 right, a neuropsychopharmacologist? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1061 1 A. Absolutely. 2 Q. And I think Mr. See was very careful to point 3 out that of all the groups of 4 neuropsychopharmacologists in the United States, that 5 these guys right here, the big daddies, they are the 6 top guys, right? 7 A. That group, yes, the organization. 8 Q. Now, let's look at what they said about 9 suicidal behavior in psychotropic medication. This is 10 the first page, Mr. See. 11 MR. SEE: I'm sorry, is it the document that I 12 showed him? 13 MR. VICKERY: Yes, the same document. 14 MR. SEE: Okay. If you would just give me one 15 second. 16 MR. VICKERY: You bet. 17 THE COURT: What document is this? 18 MR. VICKERY: It's the one that Mr. See 19 cross-examined him about, Your Honor. It was in one 20 of the tabs in the notebook. 21 THE COURT: What's the title of it? 22 MR. VICKERY: Oh, the title is "Suicidal 23 Behavior and Psychotropic Medication." It is a 24 consensus statement by the ACNP in March of 1992. 25 You with me, Counsel? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1062 1 MR. SEE: I am, thanks. 2 Q (By Mr. Vickery) Now, prior to the time that 3 Mr. See handed you that big notebook yesterday and 4 asked you to turn to the tabs that had this document 5 in it, had you ever seen it? 6 A. No, I haven't. I believe I was aware that it 7 actually existed, but I hadn't seen it. 8 Q. We see that it's in March of '92. That's about 9 two years after the Teicher-Cole article, correct? 10 A. Yes, approximately. 11 Q. Ms. Barth, if you would, zoom in down here on 12 this part that I've highlighted. 13 They say, "In this context," and they're 14 talking about suicide, "recent publicity in the 15 broadcast and the print media regarding claims that 16 the antidepressant fluoxetine may trigger emergent 17 suicidal and homicidal ideation in behavior of 18 patients is a considerable importance." They're 19 talking about the Teicher phenomenon, aren't they? 20 A. They appear to be. 21 Q. Okay. Now, down here they use this word case 22 reports again. Reading this document, is that 23 controlled case studies they're referring to or is it 24 anecdotal reports? 25 A. Well, I'm a wee bit unsure without actually PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1063 1 having the actual document, Mr. Vickery, here, and I 2 hope they're referring to controlled clinical studies. 3 Q. Well, you see they cite both Teicher and 4 Dr. Hoover? 5 A. Well, then they are referring to controlled 6 clinical studies. 7 Q. Okay. Now, are you familiar with a study in 8 the published literature by Fava and Rosenbaum? 9 A. I am. 10 Q. And if you just read what the authors say -- 11 click that off, Mrs. Barth -- what the authors say in 12 that study, it is pretty favorable for Lilly, isn't 13 it? 14 A. It is. 15 Q. Is it common that when people publish in 16 peer-reviewed journals, for them to give the data, as 17 Dr. Jick did, so that other scientists can go back and 18 look at it from a different perspective or reanalyze 19 it? 20 A. They can be asked to do so, yes. 21 Q. And that's what you've done with respect to the 22 Jick data, in some respect, you've sort of 23 supplemented it, right? 24 A. Yes. 25 Q. Now, let's see what the ACNP said about PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1064 1 reanalysis of the data from Fava and Rosenbaum. Next 2 page. 3 MR. VICKERY: Are you with me, Mr. See? 4 MR. SEE: I am. 5 Q (By Mr. Vickery) "A reanalysis of their data 6 comparing all fluoxetine-treated cases with 7 non-fluoxetine-treated cases" -- in other words, all 8 Prozac cases with all non-Prozac cases, right? 9 A. Yes. 10 Q. -- "indicated a higher rate of emergent 11 suicidality in the Prozac group." Correct? 12 A. That appears to be what it says. 13 Q. All right. Now, let's look at what they say 14 about akathisia. Same page, I'm sorry, Ms. Barth. 15 Starting down at the bottom. 16 "With respect to neuroleptic medications, a 17 common side effect is akathisia." Now, let's be real 18 clear. That's not talking about Prozac when we're 19 talking about neuroleptically induced, are we? 20 A. No. 21 Q. That's not a medicine for depression, is it? 22 A. No, not in the ordinary course of events. 23 Q. Okay. Turn the page. We have the words 24 "severe restlessness." 25 "This restless or agitation is more frequent PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1065 1 with high dose, high potency neuroleptics, and it has 2 been suggested that this side effect can increase the 3 likelihood of violent or suicidal behavior." 4 Okay. Now -- and let me make sure you 5 understand, I'm not trying to say that they're saying 6 that Prozac causes this. "In conclusion, case reports 7 suggest that a small minority of patients may 8 experience emergent suicidal thoughts or events such 9 behavior during the pharmacological treatment of 10 depression." 11 Okay. Now -- 12 A. I think, just to be consistent, we need to make 13 sure -- or we need to be clear, they appear to be 14 implying controlled clinical studies rather than 15 anecdotal reports there. 16 Q. Okay. I want to get back to the final page 17 that contains their conclusions. This is the ACNP 18 we're talking about. 19 A. From which Mr. See read to us yesterday? 20 Q. Yes. We're going to look at two sections of 21 their conclusions, one that he asked you to read 22 yesterday, and then the very final conclusion. On 23 Page 9. Can you zoom in on Paragraph C, Ms. Barth? 24 "There is no evidence that antidepressants, 25 such as the selective serotonin reuptake inhibitors, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1066 1 for example, fluoxetine, triggered emergent suicidal 2 ideation over and above rates that may be associated 3 with depression and other antidepressants." 4 Now, let's be real clear about this. Do you 5 read this to mean that there's no evidence that Prozac 6 causes suicide or just no evidence that it causes any 7 more suicide than depression causes? 8 A. No, what they're clearly saying here is there 9 is no evidence that people who take Prozac commit 10 suicide at a higher rate than would happen if they had 11 severe depression and were being treated with another 12 antidepressant. 13 The evidence that they were saying there's no 14 evidence that Prozac causes treatment emergent 15 suicidal ideation more than any other antidepressants, 16 which is true at that point in time, because at that 17 point in time, this was three years before we had the 18 Jick data, so they couldn't have said anything other 19 than that. 20 Q. Okay. 21 A. But they are -- but they clearly aren't saying 22 that it can't trigger suicidal ideation and suicide. 23 Q. In some people? 24 A. In some people. 25 Q. Now, let's look at their final one, Paragraph PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1067 1 D. 2 MR. SEE: Your Honor, before -- would you take 3 that off, please? Could we approach before this is 4 brought up, Your Honor? 5 THE COURT: Very well. 6 (Whereupon, the following proceedings were had 7 at side bar out of the hearing of the jury.) 8 MR. SEE: I see that Mr. Vickery has 9 highlighted the sentence, "Patients should be warned 10 that suicidal ideation may occasionally worsen in the 11 course of treatment." Now, this statement is a 12 statement by a group of doctors addressed to other 13 doctors. 14 If Mr. Vickery is going to put this in 15 evidence, he may not make an overt suggestion that -- 16 he's going to make an implied suggestion that Lilly 17 has a duty to warn patients directly, and I think we 18 know the law is very clear. There is no such duty to 19 warn patients directly by the pharmaceutical company, 20 so this comment of doctors talking to other doctors is 21 very unfair to my client, which has no duty to warn 22 patients directly, and it should not be brought out 23 and emphasized to the jury. 24 It shouldn't be read in front of the jury 25 because it gives the wrong impression, and he'll later PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1068 1 be able to argue, well, look, it says right here, the 2 patient should be told, but the drug company has no 3 responsibility, no duty by law to tell patients 4 anything. The drug company has a duty to warn the 5 doctors, so under 403, it's more prejudicial than more 6 probative, and it is also irrelevant because no duty 7 exists. 8 THE COURT: Mr. Vickery. 9 MR. VICKERY: Your Honor, Mr. See springs this 10 document on us yesterday, something we have never seen 11 before. He says it is from the high gurus in this 12 area, and he can't just say you can read part of it 13 and not the other. I'm very sensitive to the issue 14 he's talking about, and I'm going to be very careful 15 with him and with other witnesses because, quite 16 frankly, I don't know how the Court's going to hear -- 17 ultimately when you hear all of the evidence -- I 18 mean, I don't want this to put me out on a limb and 19 then have the Court saw me off of it, but Mr. See 20 can't take a document that he purports is a learned 21 treatise and cross-examine the man on it and say you 22 can't read parts of it. 23 MR. SEE: I most certainly can if the sentence 24 in the document implies some different legal duty than 25 we know the law provides. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1069 1 THE COURT: What does it say again? What does 2 he say again, what the -- 3 MR. SEE: It's this sentence right here, Your 4 Honor. The bottom part. 5 THE COURT: It actually uses the word patients. 6 I take it that's a statement to the doctor? 7 MR. SEE: It's a standard that applies to the 8 doctors, not to Lilly. If he reads it in like this, 9 the jury will -- 10 THE COURT: The Court instructs that it is a 11 statement to the doctor, a limiting instruction issue. 12 MR. SEE: I think it's -- I respectfully 13 disagree, Your Honor. I think under 403 this would 14 clearly be taken out of context if this high group 15 says this is what should have happened, patients 16 should be warned, and they will take it, 17 notwithstanding the Court's instruction, yeah, that is 18 the high group. Everything being counted, this is the 19 big organization and they say patients should be 20 warned, but Lilly has no duty to warn. It's very 21 prejudicial. I don't think there's any instruction 22 that would cure that. 23 THE COURT: Well, then he's not going to be -- 24 MR. SEE: It's warnings. 25 MR. VICKERY: Adequacy of warning. But Mr. See PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1070 1 can't pull this out of a rabbit, and then I'm not able 2 to use the implications of it. I can assure the 3 Court -- 4 THE COURT: You can bring it in with 5 Dr. Shlensky. 6 MR. VICKERY: I could, Judge, but he's 7 cross-examined this witness with it, and I'm entitled 8 to -- 9 THE COURT: Had you gone to the issue of 10 warnings -- 11 MR. VICKERY: I understand that, Judge, but 12 this is a very important matter. I'm not going to put 13 the wrong implication on it. I'm going to be very 14 clear that the pharmacy company has the duty to warn 15 the doctor and the doctor has to warn the patient, but 16 as to the pharmacy, I'm not going to ask him to 17 testify to that. 18 THE COURT: What are you going to ask him? 19 MR. VICKERY: I'm going to ask him if he agrees 20 with the ACNP, that the information ultimately should 21 get to the patient. I'll be glad to follow up and 22 say, you understand that the pharmacy company -- that 23 it's up to the doctor to warn the patient, the 24 pharmacy doesn't interact with the patient? That's 25 the way it works, the pharmacy companies give it to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1071 1 the doctors. 2 THE COURT: There are legal implications in 3 that sentence. I'm not going to allow it under 403. 4 I find it prejudicial and unfair prejudice and 5 probative, and so it goes beyond the scope of his 6 report. 7 MR. VICKERY: I would like to, at the 8 appropriate time, make a formal offer of proof about 9 it because I think this one is very, very serious. We 10 can do it out of the presence of the jury. 11 THE COURT: You bring it in with Shlensky. 12 MR. VICKERY: I may or may not. 13 THE COURT: What I'm concerned about is having 14 the jury alerted to the fact that duty lies with the 15 pharmaceutical company and not the physician and not 16 the patient. 17 MR. VICKERY: Why don't you tell them that. 18 Give them an instruction that that's the duty. 19 (Whereupon, the following proceedings were had 20 in open court in the presence of the jury.) 21 THE COURT: Please proceed, Mr. Vickery. 22 MR. VICKERY: Thank you, Your Honor. Actually, 23 I was finished. Thank you, Dr. Healy. 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1072 1 RECROSS-EXAMINATION 2 BY MR. SEE: 3 Q. Dr. Healy, I have about three questions for 4 you, if I might. I want to refer you to the article 5 by Dr. Montgomery, you just gave testimony about, 6 called, "Fluoxetine, Fluvoxemine and Extrapyramidal 7 Tract Disorders." Do you recall that one? 8 A. Yes. 9 Q. I want to refer you to Page 52 of that article 10 and just ask you one question. Doesn't it say right 11 up here at the top, "case reports"? 12 A. We have to distinguish between anecdotal 13 reporting and controlled clinical studies. 14 MR. SEE: Your Honor, with respect, could I ask 15 the Court to instruct the witness just to answer my 16 question? I've just asked him what's written there. 17 THE WITNESS: And I'm explaining to you what 18 the medical convention -- 19 THE COURT: Just answer the question. 20 THE WITNESS: They are the two words that are 21 used. 22 THE COURT: I think you've already explained 23 that. 24 Q (By Mr. See) Now, this is still 25 Dr. Montgomery's article that you just gave testimony PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1073 1 about, and it refers to the patient that's called, the 2 case report, case one. And it says there, by the 3 title on it, "This patient had restlessness that was 4 relieved by pacing, inability to sit still. The 5 patient was noted to pace on the spot and repeatedly 6 crossed and uncrossed her legs when sitting." Did I 7 read that correctly? 8 A. You have read that correctly, Mr. See. 9 Q. Let me show you now Page 54 of that article, 10 and this is talking about case number two of the case 11 reports. The article had two case reports, correct? 12 A. You've had two cases within a controlled 13 clinical study, yes. 14 Q. So case two, it says this about that case: 15 "Involuntary muscular jerking and was noted to be 16 agitated with difficulty in sitting and marked 17 distress associated with the restlessness." Did I 18 read that right? 19 A. You did. I hope you did. I'm not able to see 20 it clearly, but I'm happy to take your word for it. 21 Q. Thank you, sir. And now, I'd like to ask you 22 just one question about the ACNP paper. This is the 23 paper of the group of expert pharmacologists in the 24 United States. You recall that one? 25 A. Yes, I recall that one. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1074 1 Q. Now, Mr. Vickery asked you to read from Page 7, 2 from the part that says, "In conclusion," and he asked 3 you to read the first sentence. I'd like to ask you, 4 and I'll read it to you if you can't see it, the rest 5 of the paragraph that Mr. Vickery did not ask you to 6 read. And it says, "These reports do not distinguish 7 between the relative potential contribution of the 8 disease process, external stressors, or the medication 9 of significance. There is evidence that such emergent 10 suicidality is not specific to any one type of 11 antidepressant and may, therefore, be largely a 12 manifestation of the natural course of the illness." 13 And you read that part of it when you read the ACNP 14 report, didn't you? 15 A. I did. Yes, Mr. See. 16 MR. SEE: Your Honor, I have no further 17 questions for Dr. Healy, and I thank you very much. 18 THE WITNESS: You're very welcome, Mr. See. 19 MR. VICKERY: Before he steps down, Your Honor, 20 just in view of counsel's mentioning of the ACNP paper 21 again on his recross-examination, I would like to 22 offer the final conclusion in accordance with the side 23 bar conference. 24 THE COURT: Same ruling. 25 MR. VICKERY: Okay. Very well. May he step PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1075 1 down then? 2 THE COURT: Yes, he may step down. 3 MR. VICKERY: I'm sorry, Judge, were you ready 4 for me to call the next witness? 5 THE COURT: Yes. 6 MR. VICKERY: We call Amy Lee. 7 THE CLERK: Please raise your right hand. 8 AMY LEE, 9 called as a witness on behalf of the Plaintiffs, after 10 having been first duly sworn to tell the truth, the 11 whole truth, and nothing but the truth, was examined 12 and testified as follows: 13 THE CLERK: Please state your full name and 14 spell your last name. 15 THE WITNESS: Amy Lee, L-E-E. 16 DIRECT EXAMINATION 17 BY MR. VICKERY: 18 Q. Good morning. 19 A. Good morning. 20 Q. Mrs. Lee, my name is Andy Vickery and other 21 than saying hello to you in the hall this morning, 22 we've never met, have we? 23 A. No, we have not. 24 Q. Tell us a little bit about yourself. For whom 25 do you presently work? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1076 1 A. Presently I work for Kaiser Honolulu Clinic 2 Pharmacy. 3 Q. Are you a pharmacist? 4 A. Yes, I am. 5 Q. How long have you been a pharmacist? 6 A. I've been a pharmacist since 1980, so that 7 would make it -- 8 Q. Almost 20 years? 9 A. -- twenty years almost. 10 Q. Okay. And was there a period of time in which 11 you worked for Eli Lilly & Company in a capacity 12 that's sometimes called a detail person? 13 A. Yes. 14 Q. When did you work for them? 15 A. I worked for Eli Lilly from September of '92 to 16 February of '93. 17 Q. Well, that's pretty short. 18 A. It was five months, yes. 19 Q. Okay. Can you tell us, if it's not too 20 personal, why you left? 21 A. The job required quite a bit of traveling and 22 that was very difficult for my family, so I decided to 23 not continue on with the representative type of work. 24 Q. What kind of work had you done as a pharmacist 25 before you went to work for Lilly in September of '92? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1077 1 A. I worked for Long's Drugstore, and I was a 2 staff pharmacist when I started, and when I left them, 3 I was the pharmacy manager. 4 Q. And since you left Lilly in February or March, 5 I believe you said, of '93? 6 A. February, yes. 7 Q. February of '93, what kind of work had you 8 done? 9 A. I've been a staff pharmacist at Kaiser Honolulu 10 Clinic and recently I became the pharmacist in charge 11 of that location. 12 Q. Okay. So your whole career, the only time you 13 worked for a big pharmaceutical company was that brief 14 little period, right? 15 A. Yes. 16 Q. And what would you describe your job title as a 17 detail person? I have a cousin who's one and he said 18 don't use that. What do you use? 19 A. I believe I was a sales representative. 20 Q. Sales representative, okay. Does that title 21 suggest, I guess, you're supposed to sell something? 22 A. Well, my job, as a sales representative, was to 23 provide information on the products that I represent 24 to the physicians and serve as a potential liaison. 25 If they have any questions about the product, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1078 1 hopefully I can try and answer the question based on 2 the information on the package insert or if I wasn't 3 able to do that, I would forward the questions and 4 concerns of the physicians to the medical department 5 of Eli Lilly. 6 Q. And were you hired to do that job because of 7 your pharmaceutical background as a pharmacist? 8 A. I don't know the answer to that, whether I was 9 hired because I was a pharmacist. I don't know. 10 Q. Do you live here in Hawaii? 11 A. Yes, I do. 12 Q. On which Island? 13 A. Oahu. 14 Q. And did you, at that time, live on Oahu? 15 A. Yes, I did. 16 Q. And how many Lilly sales representatives were 17 there at that time covering the state? 18 A. I believe there were four. 19 Q. Was it divided up by territory or by types of 20 doctors or in some other way? How did you all divvy 21 up the work? 22 A. There were -- we were divided up by territory, 23 so that we're not covering the whole state. I believe 24 we were also divided up on what products we 25 concentrated on. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1079 1 Q. Okay. And what were your products? 2 A. I have three products. Ceclor, Ak-Cide, and 3 Prozac. 4 Q. Okay. Tell us, those other two don't have 5 anything to do with depression, do they? 6 A. No, they do not. 7 Q. Just Prozac? 8 A. Correct. 9 Q. Now, did you cover the doctors on Maui with 10 respect to Prozac? 11 A. Yes, I did. 12 Q. And when we say cover the doctors, do you 13 periodically try to get in face to face and visit with 14 them? 15 A. Yes, I did. 16 Q. And did you call upon Dr. Riggs Roberts? 17 A. Yes, I did. 18 Q. And you know he's the fellow that first 19 prescribed Prozac for Mr. Forsyth in February of '93, 20 the very month you left? You know that, don't you? 21 A. I wasn't aware of that. 22 Q. Okay. Did you also call on Dr. Randolph Neal 23 at the Castle Medical Center here on Oahu? 24 A. I don't recall that I did. 25 Q. Did someone else cover Oahu -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1080 1 A. Yes. 2 Q. -- with respect to Prozac? 3 A. Yes. 4 Q. Who was that? 5 A. You know, during the time -- I believe Willy 6 Inouye was the other person that covered the same drug 7 line that I did. I can't remember exactly which 8 person, but I don't believe I was the only one. 9 Q. Okay. Ms. Lee, is there some way that's in 10 place to track your performance in terms of how many 11 of the doctors you were calling on who were writing 12 prescriptions for Prozac? 13 A. We had cards that we needed the physician to 14 sign when samples were given to them. Now, whether 15 that was a method for tracking, I'm not sure. 16 Q. How about when they actually wrote 17 prescriptions for people, was that tracked? 18 A. I did not track that, no. 19 Q. Was your compensation in any way related to how 20 many prescriptions of Prozac were written by the 21 doctors you called on? 22 A. No, it was not. 23 Q. All right. Now, explain for us, if you would, 24 just how the process works. I mean, let's take it 25 when you first came on, were you given some training PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1081 1 to learn more knowledge than you already had about 2 these three drugs? 3 A. Yes, we did go through training. 4 Q. Tell us about that training process. When and 5 where did you do it and how long did it last? 6 A. The training was at corporate Eli Lilly in 7 Indianapolis. It took about -- it took one month 8 basically and the training gave us information, more 9 detailed information on the products that we will be 10 representing. 11 We went through the package inserts very 12 detailing so that we know what's in the insert. A lot 13 of training was related to communications, how to talk 14 to physicians, and a large part of the training was 15 also about paperwork. There was a lot of paperwork 16 when you work for, I guess, any pharmaceutical 17 company, so what kind of paperwork, what to do with 18 our mail, how to fill out the cards, what to do if 19 physicians have questions that we cannot answer, 20 things like that. 21 Q. Before that training process started, had you, 22 as a pharmacist, had much experience with Prozac? 23 A. I dispensed it. 24 Q. Okay. Had you ever studied the package insert 25 very carefully before then? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1082 1 A. Not in detail. 2 Q. That's pretty tiny print, isn't it? 3 A. Yeah. When a new drug comes in, we try to be 4 familiar with it, but it's very difficult to know 5 every aspect to it. We try to refer back to the 6 insert when there are questions. 7 Q. Okay. Now, in your training to do your job for 8 this month at Indianapolis, were you told that doctors 9 would have questions that you would have to have the 10 information to answer? 11 A. We were told that physicians may have questions 12 for us and try to answer it if you can based on what's 13 on the package insert, and if it is something that is 14 beyond my capability, to refer it to the medical 15 department. 16 Q. And were you -- were you given some marketing 17 materials in the nature of questions that you might 18 anticipate the doctors would ask and your suggested 19 responses? 20 A. I don't recall whether they were given to me or 21 not. 22 Q. Okay. Ms. Lee, in the month that you were in 23 Indianapolis, and I guess it must have been September 24 of '92; is that right? 25 A. Right. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1083 1 Q. In that month that you were up there, did you 2 get any training at all in how to field questions from 3 doctors about the tendency that they might fear that 4 this drug might cause people to be violent or 5 suicidal? 6 A. If I remember correctly, that issue was kind of 7 calming by the time I started with Eli Lilly, so I 8 don't recall whether that was a main training that we 9 went through. I don't recall. 10 Q. Well, how did you know it was calming? Had you 11 known about it before? 12 A. Well, from being a pharmacist, I knew that that 13 was an issue at one point, but I don't remember 14 whether it was while I was a pharmacist or whether I 15 was with Eli Lilly. 16 Q. So as you sit here today, you have no 17 recollection of having been given any information 18 about how to respond to a doctor's concern about 19 violence or suicide, is that your testimony? 20 A. If a physician asked a question regarding -- 21 you said suicide or violence? 22 Q. Yes, ma'am. 23 A. That's something that I would refer back to the 24 medical department. 25 Q. You wouldn't try to answer that question? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1084 1 A. I would not try to answer that question. 2 Q. Would you try to -- before you referred them 3 back to the medical department, would you try to 4 reassure them in any way? 5 A. Well, what we would go to is the package insert 6 and see what kind of information was given there, and 7 if the information wasn't satisfactory, then it would 8 really go to the medical department. That's something 9 that they need to help us with. 10 Q. When you started your job, was it important to 11 know the physicians who were prescribing this drug and 12 kind of know what their history had been? 13 A. No. 14 Q. You didn't try, in any way, to learn whether 15 which doctors were using which drug and which doctors 16 had expressed certain concerns? 17 A. No. That wasn't a big concern because my role, 18 again, was really to give information and to assist if 19 they had any questions about the product. 20 Q. Okay. You've told us already that if they had 21 questions about violence or suicide, you didn't have 22 an answer, right? 23 A. No, I would not have a specific answer other 24 than what's in the insert, and I would really direct 25 that to the medical department. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1085 1 Q. And did you give them any information or have 2 any information to give before they asked a question 3 about violence or suicide? 4 A. You mean like going in with any specific 5 information on that topic? 6 Q. Yes, ma'am. 7 A. Not that I can recall. Not specifically. 8 Q. Okay. Now, when you -- when you say refer them 9 back to the medical department, were there people up 10 in Indianapolis that had the job who were centrally 11 controlling what was said about this issue to doctors? 12 A. There is a central department for receiving the 13 information, but whether they had centralized answers, 14 I don't know. 15 Q. How frequently did you get questions from 16 doctors about violence or suicide with Prozac? 17 A. I don't recall receiving that question. 18 Q. When you got your training in Indianapolis, 19 were there physicians and scientists there who trained 20 you? 21 A. No. I don't believe there were. 22 Q. Who trained you, was it just marketing people? 23 A. I assume they were all salespeople, yes. 24 Q. What if you had a scientific question during 25 your month of training, who would have answered it for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1086 1 you? 2 A. I don't recall the group having anything that 3 weren't answerable by the material that was presented 4 in the insert at that time. 5 Q. Okay. Ms. Lee, I'm going to pour some water, 6 if you want to take some time to do that for yourself. 7 Ms. Lee, did you come to learn during the time 8 that you were calling on Dr. Riggs Roberts that he 9 had, in the spring of -- I'm sorry, in March of '92, 10 okay, this is a year before Mr. Forsyth came to see 11 him, that he had raised a concern with the company 12 about suicide with people on Prozac, and he had gotten 13 a big 'ole long letter from a guy named Dr. Charles 14 Beasley at Lilly reassuring him about that? 15 MS. MANGRUM: Object. Objection, Your Honor, 16 about the characterization of Dr. -- 17 THE COURT: Sustained. You better rephrase 18 your question. 19 Q (By Mr. Vickery) Did you come to learn that 20 Dr. Riggs Roberts made an inquiry of the company 21 before he ever prescribed Prozac for Mr. Forsyth as to 22 whether this drug causes suicide and that he got a 23 seven-page letter from the company responding to that? 24 Did you learn that? 25 A. I wasn't aware of that, no. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1087 1 Q. Have you ever heard it before I just told you? 2 A. I don't recall. 3 Q. Okay. What, incidentally, have you done to 4 prepare for your testimony today? 5 A. What have I done to prepare for this testimony? 6 Q. Yes, ma'am. Have you met with Ms. Mangrum? 7 A. Yes, I have. 8 Q. How many times? 9 A. Once face to face, yes. 10 Q. And when was that? 11 A. I believe it was last Monday. 12 Q. And what did Ms. Mangrum tell you this case was 13 about? 14 A. Well, by the time I met with her, I kind of 15 knew that because you had already summoned or 16 subpoenaed me, so I knew I had to come to court and it 17 was regarding Prozac while I was with the company. So 18 I didn't know the detail of the case, so she filled me 19 in a little about why and what the case was from, the 20 Forsyths against Eli Lilly, and we met with her and 21 she just asked me what do I remember from six years 22 ago while working with Eli Lilly. 23 Q. Right. I understand. I bet she did. I want 24 to know what you remember her telling you when she 25 filled you in about the case? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1088 1 A. She told me to tell the truth. 2 Q. Okay. 3 A. She told me to just answer the questions to the 4 best of my knowledge. That's the best I can do. 5 That's the advice I was given. 6 Q. Ms. Lee, all that advice was as to how to be a 7 witness, right, and that's good advice, but what I'm 8 really interested in is what she told you about this 9 case. Did she tell you anything about the case? 10 A. What do you mean by "about this case"? 11 Q. Did you tell -- well, let me be real specific. 12 Did she tell you that this was a case about a man who 13 killed his wife and then himself? 14 A. She didn't -- she did not offer that. I had to 15 ask her. 16 Q. Okay. 17 A. I said, "I don't know anything about this case, 18 can you tell me what happened?" I wasn't sure whether 19 she was even allowed to even tell me. 20 Q. But did she then tell you what happened? 21 A. Yes, she did. 22 Q. And did she tell you that the man had been 23 taking Prozac for about nine or ten days when this 24 happened? 25 A. Yes, she did. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1089 1 Q. Okay. And did she tell you that what we're 2 really fussing about here is the fact that his doctors 3 weren't told about a risk of suicide? 4 THE COURT: Well, Mr. Vickery, where are we 5 going with this now? She said she doesn't know 6 nothing about this case. 7 MR. VICKERY: Where we're going influence -- 8 let's meet at side bar. 9 (Whereupon, the following proceedings were had 10 at side bar out of the hearing of the jury.) 11 THE COURT: You're getting absolutely nothing 12 from this witness. I don't want you reciting what you 13 think about the case to her and having her say, I 14 don't know anything about it. 15 MR. VICKERY: Okay. 16 THE COURT: Because then Ms. Mangrum may give 17 me her brief background on the case. If you have 18 something important to bring out that's pertinent to 19 this witness, go ahead, but it doesn't appear that you 20 have anything. 21 MR. VICKERY: Okay. I think I have something. 22 I'll move on to it. I understand your admonition. 23 (Whereupon, the following proceedings were had 24 in open court in the presence of the jury.) 25 THE COURT: Please proceed, Mr. Vickery. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1090 1 MR. VICKERY: Thank you, Your Honor. 2 Q. Ms. Lee, did Ms. Mangrum show you any 3 documents? 4 A. Yes, she did. 5 Q. Were they documents you had seen before? 6 A. She showed me documents and asked whether I had 7 seen them before and I had not. 8 Q. Were some of the documents that she showed you 9 marketing instructions about this issue that predated 10 your employment with the company? 11 A. I don't know the content of the document. We 12 kind of looked at -- I didn't read it specifically. 13 There were dates and like a headline of what it was, 14 and I don't recall seeing any of those documents that 15 she showed me. 16 Q. Okay. Would it help you if I showed them to 17 you again? 18 A. You can, but I don't know if I would recognize 19 them, whether they were the exact ones that she showed 20 me. 21 MR. VICKERY: May I approach the witness, Your 22 Honor? 23 THE COURT: She said she never seen them. 24 MR. VICKERY: Okay. 25 Q. Is it fair to say this: That the documents PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1091 1 that Ms. Mangrum showed you were exhibits in this case 2 that will be available to the jury? Did she tell you 3 that? 4 A. Can you repeat that question? 5 Q. Yes. Did she tell you that the documents she 6 showed you were exhibits that the Court has admitted 7 for this jury to consider? 8 A. No, she did not tell me that they were 9 exhibits, but she did mention that you may ask me to 10 look at it and see whether I remember seeing it. 11 Q. Okay. Is it fair to say this, Ms. Lee, that 12 whatever information that is contained in those 13 exhibits, those documents about Prozac causing 14 violence or suicide, it's information that was not 15 shared with you by Eli Lilly at any time during the 16 employment of you by Lilly? Is that fair? 17 MS. MANGRUM: Objection, Your Honor. She 18 stated that she did not see those and so how she can 19 answer whether she was given that information -- 20 THE COURT: Sustained. 21 Q (By Mr. Vickery) The bottom line, Ms. Lee, 22 you were never given any information by either Eli 23 Lilly on this issue to either provide the physicians 24 to answer their questions, were you? 25 A. I'm sorry, could you repeat the question? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1092 1 Q. Yes, ma'am. Isn't the bottom line that you 2 never were given any information by Lilly concerning 3 the issue of Prozac causing violence or suicide which 4 you could use to do the two things you told us your 5 job was, to inform physicians and answer their 6 questions? Isn't that fair? You never got any 7 information, no nothing about it? 8 A. I don't recall. 9 Q. Okay. 10 A. Because -- 11 Q. There's just one other issue I want to ask you 12 about. When you called on physicians, are there 13 things that you would leave with them for their use in 14 their dealings with their patients? 15 A. There were these brochures, if you will, that 16 we leave the physician, but they're not really for the 17 patients. They're professional literature that we 18 would leave for them. I don't believe he gave those 19 or any physician gave those to the patients if you're 20 talking about pamphlets. 21 Q. I want to see if I can jog your recollection 22 about that. Do you recall a pamphlet that you were 23 instructed to give physicians called "The Road To 24 Depression" -- I'm sorry, it's not called The Road To 25 Depression. What's that thing called? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1093 1 MR. VICKERY: May I approach the witness, Your 2 Honor? 3 THE COURT: Yes. 4 Q (By Mr. Vickery) I have here an exhibit, 5 Ms. Lee, let me just leave that with you. 6 THE COURT: What exhibit is that? 7 MR. VICKERY: It's Defendants' Exhibit 1110, 8 Your Honor. I'll get it back from you in a minute. 9 THE COURT: What's that called? 10 Q (By Mr. Vickery) Would you read for us the 11 title of that pamphlet, please. 12 A. "Depression, The Road To Recovery." 13 Q. "Depression, The Road To Recovery." Now, do 14 you recall that that's a reproduction -- that's a 15 Xerox copy; is it not? 16 A. It looks like it. 17 Q. Do you recall the original color printed 18 brochure, "Depression, The Road To Recovery"? 19 A. Was this the exact color and everything because 20 I don't recall seeing something like this? 21 Q. Yes, ma'am, I assume it was. 22 A. You know, the only thing I remember giving out 23 to the physician or offering the physician that may -- 24 that they may give to the patients was a video for the 25 family member to understand clinical depression. I PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1094 1 don't remember this. 2 Q. Okay. Tell us what you remember about that 3 video. 4 A. Well, what I remember of it is it was to be 5 given, I think, to the family members or friends. You 6 see, clinical depression at the time was still not 7 very well accepted or understood. A lot of the family 8 members might just think the patient is -- something's 9 wrong psychologically instead of clinically where 10 there's actually a neurotransmitter involved, a 11 clinical depression, so they may not be able to 12 support the patient as well because the family support 13 is very important for patients who are clinically 14 depressed. 15 So this videotape helped explain what clinical 16 depression is, what kinds of signs and symptoms they 17 may be seeing their loved ones having, and how they 18 can help them along in coping and getting through it 19 and maybe getting better, taking their medication, 20 being understanding, and that kind of thing. 21 Q. About how long did it run? 22 A. I don't remember. I'm sorry. I think it was a 23 pretty short video. 24 Q. And you said the video would alert the family 25 about medicine, that there might be a side effect they PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1095 1 should look for? 2 A. No, I didn't say that. 3 Q. I misunderstood you. You said -- 4 A. Signs and symptoms of clinical depression. 5 Q. Signs and symptoms of depression. Do you 6 remember in the video it saying something about 7 rashes? 8 A. I didn't see the video myself, totally. I 9 glanced through it. I didn't pay major attention to 10 it when I was watching, so I don't recall whether a 11 rash was mentioned. 12 Q. But this is something that you gave the 13 physician for them to share with the patient, right? 14 A. That was the only thing I can remember that I 15 gave to the physician that they may potentially have 16 given to either the patient or the family member, 17 because I don't remember this. 18 Q. Okay. Ms. Lee, do you remember whether or not 19 there was anything in the video about what to do if 20 the patient or their family member should observe them 21 having really weird thoughts, really weird violent 22 thoughts? 23 A. Again, like I said, I don't remember viewing 24 the video in any detail. I just know the content of 25 it was, basically, information about clinical PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1096 1 depression. I can't answer any detailed information 2 about what was specifically in there. 3 MR. VICKERY: Okay. Thank you very much. I 4 pass the witness. 5 THE COURT: Any cross? 6 CROSS-EXAMINATION 7 BY MS. MANGRUM: 8 Q. Just one question, Ms. Lee. Do I understand 9 your testimony correctly regarding what you would do 10 if you were confronted by a physician with a question 11 about suicide as it relates to Prozac, you would refer 12 them to the insert, is that your testimony? 13 A. First we would look in the insert to see what 14 is in there. I don't recall whether there was 15 anything in there or not at this point, but that would 16 be the first place we would go to see if there is 17 anything that can answer the physician's concern, yes. 18 Q. And then the second step in your process would 19 have been, if the physician had further questions -- 20 A. Refer his question to the medical department. 21 MS. MANGRUM: Okay. Thank you. I have no 22 further questions, Your Honor. Thank you, Ms. Lee. 23 MR. VICKERY: Just one or two on redirect. 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1097 1 REDIRECT EXAMINATION 2 BY MR. VICKERY: 3 Q. Suicide is pretty important, isn't it? I mean, 4 there's almost nothing much -- 5 MS. MANGRUM: Objection, Your Honor. 6 Foundation. 7 THE COURT: Sustained. 8 MR. VICKERY: Very well. Thank you, Ms. Lee. 9 THE COURT: Thank you. You're excused. Let's 10 take a 15-minute break. Please be back at 11 11:00 o'clock. 12 (Whereupon, a recess was taken at 10:45 a.m.) 13 THE COURT: Please proceed, Mr. Vickery. 14 MR. VICKERY: Thank you, Your Honor. At this 15 time, Judge, I'm going to make an offer of certain 16 exhibits. These are offered for the limited purpose 17 of notice to Eli Lilly, and there is a joint 18 instruction that's been agreed in conjunction with 19 them. 20 The exhibit numbers are as follows: No. 1, 5, 21 6, 8, 9, 10, 11, 12, 42, 54, 73, 88, 94, 95 -- I'm 22 sorry, not 95, Your Honor. That's an article, a 23 scientific article. 96, 102, 121, 17 -- just 121 at 24 this time. 25 And I have here the instruction, Your Honor, in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1098 1 conjunction with those if I may hand it to your clerk. 2 THE COURT: Very well. And this is an 3 instruction that both sides have agreed to? 4 MR. VICKERY: Yes, it is, Your Honor. 5 THE COURT: Mr. See. 6 MR. SEE: Yes, I believe that's correct, sir. 7 THE COURT: I take it there's no objection to 8 the exhibits? 9 MR. SEE: I think the Court's already ruled, 10 and consistent with that ruling, no objection at this 11 time. 12 THE COURT: Very well. The Court will instruct 13 the jury that the evidence in this case includes 14 documents which have been admitted into evidence only 15 on the issue of Defendant Eli Lilly and Company's 16 knowledge at the time William D. Forsyth, Sr. was 17 prescribed Prozac. You must consider these documents 18 only on the issue whether Defendant Eli Lilly and 19 Company knew of the information it contains at the 20 time William D. Forsyth, Sr. was prescribed Prozac. 21 You must not consider the information contained in 22 these documents as evidence of any other fact. 23 MR. VICKERY: Thank you, Your Honor. We call 24 Dr. Randolph Neal. 25 THE CLERK: Please raise your right hand. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1099 1 RANDOLPH NEAL, Ph.D., 2 called as a witness on behalf of the Plaintiffs, after 3 having been first duly sworn to tell the truth, the 4 whole truth, and nothing but the truth, was examined 5 and testified as follows: 6 THE CLERK: Please be seated. Please state 7 your name and spell your last name. 8 THE WITNESS: Randolph Dale Neal, N-E-A-L. 9 DIRECT EXAMINATION 10 BY MR. VICKERY: 11 Q. Good morning, Dr. Neal. 12 A. Good morning. 13 Q. To introduce myself again, my name is Andy 14 Vickery and I represent the Forsyth family. You and I 15 previously met on one occasion, if I recall correctly, 16 with your attorney, Mr. Nishimoto, and we met at your 17 office; do you recall that? 18 A. That's correct. 19 Q. Okay, sir. You were the physician that took 20 care of Bill Forsyth when he was in the Castle Medical 21 Center; is that correct, sir? 22 A. I was. 23 Q. From February 24th until he was discharged on 24 March 3rd, 1993? 25 A. That's correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1100 1 Q. Now, Dr. Neal, are you a psychiatrist? 2 A. Yes, I am. 3 Q. And was your diagnosis for Mr. Forsyth 4 depression? 5 A. Correct. 6 Q. Did you diagnose him on all five axes of the 7 DSM-IV? 8 A. Yes, I did. 9 Q. What was your global assessment of functioning? 10 A. I don't recall what it was at that time. 11 Q. The reason I ask is because I can't find it in 12 the records, and maybe I'm just overlooking it. Have 13 you reviewed the records? 14 A. Yes, I have. It's possible that I didn't at 15 that time. That was in 1993. It's quite possible we 16 weren't using all five at the hospital or maybe I 17 wasn't using it. 18 Q. Okay. Tell us, if you will, how you first came 19 to learn of this patient. 20 A. I was called by the nurse in charge, at that 21 time, who told me that there was a patient that was 22 going to be coming over from Maui by the name of 23 William Forsyth, that it was felt he needed hospital 24 admission due to his depression, and it was also told 25 to me that he had suicidal ideation. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1101 1 Q. Told to you by the nurse? 2 A. Correct. 3 Q. Okay, sir. Now, is suicidal ideation something 4 that you as a psychiatrist are always extremely 5 sensitive to with a depressed patient? 6 A. Yes. 7 Q. Now, in the time that you cared for him, start 8 to finish, did you yourself ever notice any suicidal 9 ideation or suicidal tendencies or risks in this man? 10 A. No. 11 Q. And did you look carefully for them? 12 A. Yes. 13 Q. Did you talk to the physician who had been 14 caring for him for two months before you, Dr. Riggs 15 Roberts? 16 A. Yes, I did. 17 Q. And did you assure yourself that he had never 18 seen any signs of it? 19 A. Yes. 20 Q. So the only mention that we have of it is this 21 information you get from the nurse? 22 A. Correct. 23 Q. As you sit here today, do you recall anything 24 that was said to you by Mr. Forsyth concerning 25 suicidal thoughts? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1102 1 A. Yes. He was bothered by the fact that it had 2 been reported that he was suicidal because he said he 3 was not, never had been, and he wanted to make sure 4 that that was not in the record because he said he was 5 not suicidal and he wasn't really sure where that 6 information had come from. 7 Q. Okay. So the patient himself told you that's 8 wrong, I'm not suicidal at all and never have been? 9 A. Correct. 10 Q. Was there any discussion with him about, you 11 know, weird thoughts about knives? 12 A. No. 13 Q. Did you see him the night that he checked in? 14 A. I did not. 15 Q. When is the first time that you saw him? 16 A. I saw him the next day. 17 Q. Okay. Now, is it typical, when you see 18 somebody like that, to sort of review what it is 19 they've been doing and what medications they've been 20 given? 21 A. Yes. 22 Q. And did you do that with the patient or by 23 medical record or talking to Dr. Roberts or all of the 24 above? 25 A. All of the above. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1103 1 Q. And tell us, if you recall, what you learned 2 about the course of his treatment over the last couple 3 of months. 4 A. Over the last couple of months, he had started 5 seeing Dr. Roberts because he was depressed and 6 because he was having trouble with anxiety and with 7 insomnia, and he had been prescribed, in the past, 8 Xanax, which is an antianxiety medication, and he was 9 worried about being addicted to that and was very 10 concerned about being on Xanax. 11 And so he had started seeing Dr. Roberts and, I 12 believe, was seen weekly over a period of a couple of 13 months. He had been initially treated with a 14 medication called Pamelor for depression. Sounds like 15 maybe he had some success with that in the past, but 16 that the Pamelor didn't seem to be working as well, 17 and because of that, several days prior to his 18 admission at Castle Hospital, Dr. Roberts had changed 19 him from Pamelor to Prozac. 20 Q. Did you talk to Dr. Roberts on the phone about 21 this man? 22 A. Yes, I did. 23 Q. Did you, at that time, know Dr. Riggs Roberts? 24 A. I had never met him. 25 Q. Have you met him in the interim? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1104 1 A. Yes, I have. 2 Q. And did you see him outside in the hall waiting 3 to testify? 4 A. I was talking to him outside. 5 Q. Okay, sir. Did Dr. Roberts assure you that he 6 had not seen any suicidality in these weekly visits? 7 A. Yes. 8 Q. And did Dr. Roberts tell you whether or not he 9 had the opportunity to observe this man while he was 10 under the influence of Prozac? 11 A. Yes. 12 Q. And what did he say? 13 A. He said that in the first couple of days on 14 Prozac, that Mr. Forsyth seemed to be doing very well. 15 Q. Okay. I may have not been real quick about 16 this, Dr. Neal, in my question. I expect his 17 testimony to be that he talked to him on the phone 18 about it, but my question really meant whether 19 Dr. Roberts had the opportunity to eyeball him, to 20 look at him. 21 A. I don't know. 22 Q. Okay, sir. Was Mr. Forsyth on suicide watch in 23 Castle? 24 A. No, he was not. 25 Q. And is there a place or a procedure for suicide PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1105 1 watch? 2 A. Yes, there is. 3 Q. Tell us about it. What do you do if you think 4 someone is at risk for suicide? 5 A. Generally, if -- and I have to stop and think 6 back six years. It's hard to remember what we were 7 doing at that point, but we have a locked unit and we 8 have an open unit, and generally, when people are 9 definitely suicidal, dangerous to themselves or others 10 in any way, they are placed on the locked unit and 11 this is for a higher level of supervision, and they 12 might even have every 15-minute suicide checks, and 13 Mr. Forsyth did not have these. He was on the open 14 unit. 15 Q. Okay. How frequently would he be observed on 16 the open unit? 17 A. I'm not sure I can answer how frequently he 18 would be observed. He is with a group of other 19 patients on that unit. They have groups all day long. 20 They have some breaks, but there's fairly close 21 supervision. There are not too many times when he 22 would not be directly observed. 23 Q. Now, have you, before coming here today, 24 refreshed your recollection by reviewing the records 25 concerning this man? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1106 1 A. Yes, I have. 2 Q. Good. Dr. Neal, was there ever -- well, let me 3 lay the foundation first. 4 How many times did you meet with him? 5 A. I met with him daily. 6 Q. And approximately how long would you spend with 7 him in these daily visits? 8 A. Forty to fifty minutes. 9 Q. During those visits, were you doing traditional 10 psychotherapy? 11 A. Yes. 12 Q. So that's a supplement to the Prozac, correct? 13 A. Yes. 14 Q. And is that important, in your judgment, for 15 someone who is depressed and receiving an 16 antidepressant, to have that with it? 17 A. Yes, it is. 18 Q. Why? 19 A. Because there are conflicts that all people go 20 through. Some of them cause depression. Some of them 21 are a result of depression, but I think it's been 22 shown that when people are involved in psychotherapy, 23 they benefit considerably in the improvement of their 24 depression, as well as medications, and I think a 25 higher level of resolution of depression comes from a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1107 1 combination of both, psychotherapy and medication. 2 Q. Are you trained, as a psychiatrist, to use 3 those therapy sessions talking to the patient to sort 4 of root out the origin of their problems? 5 A. Yes. 6 Q. And how long does that process usually take? 7 A. That varies with the patient. It is not 8 something that I could give a general statement about, 9 I don't think. 10 Q. Tell us whether or not you had sufficient time 11 in the six or seven days, I believe, that Mr. Forsyth 12 was in Castle through psychotherapy, to root out the 13 origin of his depression. 14 A. I think, at this point, there's still a lot of 15 unanswered questions for me. I don't know that I knew 16 all the answers. It seemed that his depression was 17 related to a number of stresses in his life at the 18 time. 19 Q. Okay. 20 A. And I think I know what some of those stresses 21 were. 22 Q. Well, I don't want to ask you anything unfair, 23 okay? I just want to know, is it fair to say that you 24 had enough time to get a good handle on the source of 25 his depression or is it just too short of a period for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1108 1 us to expect you to have been able to do that? 2 A. I would say it was a long enough time to get at 3 some of the superficial issues, but maybe not some of 4 the deeper issues. 5 Q. Let me just talk to you about a couple, if I 6 may. Marriage. Did you discuss with him his marriage 7 relationship? 8 A. Yes, I did. 9 Q. And he told you what? 10 A. He told me that he had had a couple of 11 separations from his wife and that there was conflict, 12 and that they had had marital therapy and that had 13 helped considerably. 14 Q. Did he, in fact, tell you that their 15 relationship was better than ever? 16 A. Yes. 17 Q. Now, did you believe him or did you, from the 18 way he was saying it, have reason to disbelieve him? 19 A. No, I believed him. 20 Q. And did you, in fact, confirm that with his 21 wife? 22 A. I did. 23 Q. And, Dr. Neal, do you have any reason to 24 believe, as you sit here today, that it is not true 25 that in February and March of 1993, the Forsyths' PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1109 1 marriage was better than ever? 2 A. I believe it was. 3 Q. Okay, sir. Now, another one may seem strange 4 to you, because I don't believe it's in your records, 5 but do you recall any conflict, any stressor about 6 religion? 7 A. I think that he did mention that there were 8 some disagreements about religion within his family. 9 Q. Historically or presently? 10 A. Historically. 11 Q. Okay. Let me be real precise on this. Do you 12 recall any conflict or pressure or stressor in 13 Mr. Forsyth's life in February and March of 1993, when 14 you saw him, about religion? 15 A. No. 16 Q. Is it typical when you do psychotherapy, as you 17 did with him, to talk to people about their faith? 18 A. Sometimes it is. 19 Q. And did you do that with Mr. Forsyth? 20 A. I did not. 21 Q. Okay, sir. So you don't know one way or the 22 other whether he had had a personal religious 23 experience a few weeks before? 24 A. No, I don't. 25 Q. Okay, sir. Let me back up to something you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1110 1 said earlier. After Mr. Forsyth told you that he was 2 upset about this suicidal business -- 3 A. Yes. 4 Q. -- and didn't want it in the records, did you 5 go back and talk to the people who had talked to him, 6 either the nurse or Mr. Poole, the counselor, to find 7 out why they had put that down? 8 A. I don't recall if I talked to Mr. Poole. I 9 talked to Cindy Hopley, who was another counselor that 10 was working with him. And because the three of us 11 needed to sit down together to go over his treatment 12 plan, when she came in, she approached me, along with 13 Bill, about this idea that one of the problems had 14 been listed as suicide. And he -- at that point, he 15 and Cindy had talked about this and he had been very 16 insistent that he was not suicidal, that that 17 information must have come from elsewhere. 18 Q. Well, there's an entry, and I expect we're 19 going to see it on a big blown-up chart in a few 20 minutes, about suicidal thoughts within the last 21 month. 22 Now, let me ask you this: From that entry 23 alone, if you were going in to see that patient and 24 you walked by and you said before I see this guy, I 25 need to see the chart. Let's see what our people have PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1111 1 written. Suicidal thoughts within the past month, 2 would that make you think he had been having them for 3 a whole month, or would it make you think he had just 4 had them the last day or two, or can you tell us? 5 A. I don't know what the right answer to that 6 would be. My guess would be I would -- 7 MR. SEE: I object. 8 THE COURT: Sustained. 9 Q (By Mr. Vickery) Okay. Dr. Neal, in the 10 early nineties, did your practice change from a 11 historical practice of doing primarily psychotherapy, 12 in other words, talking to people, to giving them 13 medications? 14 A. No. 15 Q. There was no change in emphasis? 16 A. No. 17 Q. Did it change from an out-patient practice to 18 an in-patient practice? 19 A. I think what you're referring to is probably in 20 the mid eighties. 21 Q. Okay. All right. You recall you and I talking 22 about you having a change in focus, right? 23 A. Correct. 24 Q. Maybe I got my dates wrong. 25 A. Prior to about 1983, my practice was outpatient PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1112 1 only, and I did a lot of therapy. I did a lot of 2 family therapy and used medications very little at 3 that point. 4 Q. And from 1983 until 1993, when Mr. Forsyth was 5 seen by you in Castle Medical Center, what was the 6 nature of your practice then? 7 A. My practice gradually transitioned into 8 primarily inpatient and seeing people in the hospital. 9 I had a small outpatient practice still, but it was 10 primarily inpatient. 11 Q. And when people are in the hospital, are most 12 of them medicated? 13 A. I would say statistically, yes. Probably a 14 much higher percentage of people in the hospital are 15 medicated over people who are seen on an outpatient 16 basis. 17 Q. Let me be more specifically -- let me get 18 very -- I mean, statistically. Let me get very 19 specific with regard to your patients and depression 20 patients in particular. 21 A. Yes. 22 Q. Was your experience in that time, from '83 to 23 '93, that more and more, your patients with a 24 diagnosis of depression were treated by you in the 25 hospital and were on medications? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1113 1 A. I would say, yes. 2 Q. Now, when you do that, as you made that shift, 3 do you, as a physician have to rely on the 4 pharmaceutical company to provide you with information 5 about the drugs? 6 A. That is one source of information. 7 Q. What other sources do you have? 8 A. Journals, continuing medical education 9 conferences, or at the time, I subscribed to Audio 10 Digest, which is a tape program for continuing medical 11 education, and much of my information also comes from 12 my colleagues on a daily basis. Being on the 13 psychiatric unit, I have five or six or ten 14 psychiatrists around me and we talk a lot and exchange 15 information. 16 Q. Do you remember Prozac coming onto the market 17 in 1988? 18 A. Yes, I do. 19 Q. And when it came onto the market, were you 20 contacted by salespeople or by direct mail and 21 encouraged to prescribe it? 22 A. I don't recall. 23 Q. Do you ever remember, between '88 and '93, when 24 you gave it to Bill Forsyth, being called upon by a 25 Lilly salesperson to provide information or answer PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1114 1 questions about Prozac? 2 A. I can't answer that. Because I was out of my 3 office and primarily in the hospital, the usual place 4 of contact with drug reps is at the office, and I saw 5 very few drug reps during that time when I was 6 primarily in the hospital. 7 Q. Okay. Did you see the drug reps in the 8 hospital? 9 A. No. 10 Q. Is there something in the hospital called a 11 formulary committee? 12 A. I recall there being a pharmacy therapeutics 13 committee at the time. 14 Q. I apologize for stepping on your words. Is 15 there a committee of people who have the contact with 16 the drug representatives who decide, we're going to 17 dispense Prozac in this hospital, that this is an 18 approved drug for this hospital? 19 A. There is a committee that approves drugs. 20 Whether they have contact with the drug reps, I don't 21 know. 22 Q. All right, sir. Dr. Neal, from 1988 until 23 February of 1993, do you ever recall being provided 24 with any information from Eli Lilly about suicide or 25 violence in connection with Prozac? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1115 1 A. I don't recall being provided any information 2 like that. 3 Q. So whatever information they may or may not 4 have had, your recollection is you got none; is that 5 right? 6 A. I don't recall receiving any information. I 7 might have. I don't recall that. 8 Q. Well, I think that's going to tell us the 9 answer to this, but do you ever recall raising any 10 questions or having any discussions with them about 11 that issue? 12 A. No, I don't. 13 Q. Do pharmaceutical companies, like Eli Lilly, 14 give you information for you in turn to pass on to 15 your patients? 16 A. Sometimes they do. 17 Q. We've heard testimony this morning about a 18 video that was used right at this time to acquaint 19 patients with the medicine Prozac. Do you ever recall 20 a video? 21 MR. SEE: Your Honor, I object to the 22 foundation of the question when the video was used. 23 MR. VICKERY: Ms. Lee said she worked from 24 September of '92 to February of '93, Your Honor, and 25 that's the only time she could have remembered the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1116 1 video. 2 MR. SEE: Your Honor, she also testified the 3 video was about clinical depression and recognizing 4 clinical depression. She didn't say it was about 5 Prozac. 6 MR. VICKERY: Let me be very specific. 7 THE COURT: Well, revise your question. 8 Q (By Mr. Vickery) Do you remember, in the 9 period from September of '92 -- let me ask you this: 10 Did you ever meet a lady named Amy Lee? 11 A. Not to my recollection. 12 Q. Do you remember, from September of '92 until 13 February of '93, the six months before Mr. Forsyth got 14 Prozac -- 15 THE COURT: He doesn't ever remember meeting 16 with a sales rep. 17 MR. VICKERY: I know that, Your Honor. He 18 doesn't have to remember her to know if he got a 19 video. 20 THE COURT: Go ahead. 21 Q (By Mr. Vickery) Do you remember getting a 22 video from Eli Lilly to show to patients? 23 A. I don't recall receiving a video like that. 24 Q. Did you ever get patient handouts, little 25 pamphlets for the patients? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1117 1 A. I don't recall that either. 2 Q. Okay. Dr. Neal, is it your practice to try to 3 educate your patients about the reactions they could 4 be expected to have to drugs? 5 A. Yes. 6 Q. And how do you go about doing that? 7 A. I talk to them about the potential side 8 effects. 9 Q. And do you recall any specific conversation 10 with Mr. Forsyth about the potential side effects of 11 Prozac? 12 A. I don't remember a specific conversation with 13 him. 14 Q. You did prescribe something for him to take 15 care of some side effects that you were concerned 16 about, didn't you? 17 A. Yes, I did. 18 Q. What did you prescribe? 19 A. He was prescribed Inderal, which is a 20 medication which reduces the effects of anxiety. I 21 don't normally use that, but he had already been 22 placed on that by Dr. Roberts, and Mr. Forsyth seemed 23 very attached to it. He called it his fear pill, and 24 so he wanted to continue that, and I didn't feel like 25 it was going to cause any problems, so I did continue PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1118 1 that. 2 Q. And did you continue it specifically because 3 you were concerned about side effects from Prozac? 4 A. No, I didn't. 5 Q. Okay. There is a reference in your records to 6 side effects of Prozac, isn't there? 7 A. Yes, there is. 8 Q. And could you tell us, from reviewing them 9 recently, what your concern was about side effects? 10 A. The side effects I would have -- that I was 11 concerned with at the time would be anxiety, and also 12 people had talked about akathisia, and the Inderal 13 supposedly prevents both of those. 14 Q. Did you -- now, he was also on Xanax for 15 anxiety too, wasn't he? 16 A. Yes. 17 Q. And did you continue him on both pills, Xanax 18 and Inderal? 19 A. Initially I did. 20 Q. And then what did you do? You made a change? 21 A. I tapered off the Xanax. 22 Q. Right. And at the time of his discharge then, 23 he was on Inderal and Prozac? 24 A. Correct, and Desyrel. 25 Q. And Desyrel. And what was the Desyrel for? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1119 1 A. Desyrel or Trazodone is an antidepressant 2 medication, and it's a weak antidepressant, but 3 primarily used for its side effects in causing a 4 person to become drowsy and get a good night's sleep. 5 Q. Now, why did you use that? 6 A. He was continuing to have insomnia, which is a 7 symptom of depression. 8 Q. Okay. Dr. Neal, you mentioned akathisia. Do 9 you know the difference between 10 neuroleptically-induced akathisia and 11 fluoxetine-induced akathisia? 12 A. I know what akathisia is. I didn't know that 13 there was a difference in akathisia that comes about 14 because of neuroleptics or because of Prozac. 15 Q. We have heard testimony from another expert 16 about the writings of a man named Theodore Van Putten. 17 Are you familiar with Dr. Van Putten's writings 18 generally and his stature as a person knowledgeable 19 about akathisia in particular? 20 A. No, I'm not. 21 Q. Okay. Is -- did you ever question Bill Forsyth 22 specifically looking for akathisia? 23 A. Yes. 24 Q. Okay. And what do you recall him saying? 25 A. He had anxiety, but he didn't have any sort of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1120 1 restless feeling, any feeling that he needed to move 2 around or pace or any of those things that are 3 symptoms of akathisia. 4 Q. Do you recall seeing, in the medical records 5 you reviewed before coming today, that he wouldn't 6 participate in some of the other activities, wouldn't 7 go in and sit in the group sessions? 8 A. I don't remember that he wouldn't participate 9 in group sessions. He initially had a lot of 10 ambivalence about being there, but he became very 11 involved in the milieu. He went to, as far as I know, 12 most all of the groups. 13 Q. Okay. Do you run those groups? 14 A. No, I didn't. 15 Q. So as you -- when you recall, it's not from 16 personally being at the groups, but merely what you 17 were told by others? 18 A. Yes. 19 Q. What did he say to you when you saw him on the 20 25th of February for the first time? Did you talk to 21 him -- about why he had had such an urgent need the 22 day before to go to the hospital? 23 A. Yes. He told me he never did have an urgent 24 need. It was his son that wanted him in the hospital. 25 Q. Really? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1121 1 A. Yes. 2 Q. Okay. Did you ever talk to his son about that? 3 A. I did not. 4 Q. Did you ever talk to Dr. Roberts about that? 5 A. Yes. 6 Q. What did Dr. Roberts say? 7 A. Dr. Roberts said that he felt like things were 8 going along fine. He saw no reason for admission to 9 the hospital either, but that Bill, Jr. had become 10 involved and that he had helped to get his dad to the 11 hospital. 12 Q. Is it typical over at Castle, in the 13 psychiatric section of the hospital, that patients 14 that come in do so many times at the insistence of 15 their family members? 16 A. Yes. 17 Q. So there's nothing alarming or unusual about 18 that, is there? 19 A. No. 20 Q. Aren't those people sort of in the best 21 position to know -- I mean, in a better position to 22 know sometimes than the patient themselves? 23 A. Sometimes the family members are in a better 24 position to know. 25 Q. I'm sorry, I didn't hear this clearly. Did you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1122 1 say you talked to Dr. Roberts about that as well? 2 A. Yes, I did. 3 Q. And did he tell you that he had deferred to the 4 judgment of the family because they were in a better 5 position than him to observe it? 6 A. He said he was not in favor of admission to the 7 hospital, but that he was going along with it. 8 Q. Okay. Did he tell you why he was going along 9 with it? 10 A. Because I think the whole thing had been set 11 into motion and the man was already on the way to the 12 hospital, arrangements had already been made for him 13 to go to the hospital. He felt like he couldn't stop 14 that process at that point. 15 Q. Dr. Neal, if you had been told that the risk of 16 Prozac -- the risk of suicide with Prozac increases 17 initially, if Lilly had told you that, would you have 18 treated this man differently? 19 A. No. 20 Q. Okay. What if they had told you that he needed 21 to be sedated and perhaps closely monitored for the 22 first several weeks on Prozac, would you have done 23 something different about that? 24 A. If Lilly had told me that? 25 Q. Yes, sir. If Lilly representatives had said, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1123 1 look, there's a risk -- for some people, there's a 2 risk of suicide in the first few weeks on this drug, 3 you would have never tapered off the Xanax and let him 4 out of the hospital, would you? 5 A. I probably would. That's the risk with most of 6 the antidepressant medications. 7 Q. Would you have passed on that information to 8 the patient? 9 A. That there was a chance that he was going to 10 commit suicide? 11 Q. Yes, sir. Would you have alerted him so that 12 he would know what to do about those strange feelings? 13 A. I guess if I had been told that there was a 14 good chance that he would commit suicide after taking 15 this medication and I was going to be releasing him, 16 yes, I probably would have passed on that information 17 to him. 18 Q. Okay. And if you were told that that actually 19 could increase the risk of suicide, would you have 20 given it to him at all? 21 A. If I had been told that and I believed that, 22 that it would increase his risk of suicide by taking 23 Prozac, I probably would have told him and I may have 24 kept him longer. 25 Q. You may have kept him in the hospital longer? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1124 1 A. Yes. 2 Q. Okay. Or perhaps not have given it to him at 3 all? 4 A. If I knew for a fact that Prozac would cause 5 him an increased risk of suicide? Maybe I wouldn't 6 have given it to him. 7 Q. Okay, sir. Have you been asked to look at any 8 of the exhibits in this case? 9 A. Yes, I have. 10 Q. Who asked you to do that? 11 A. You did. 12 Q. Who did? 13 A. You did. 14 Q. I did? 15 A. Yes. 16 Q. And when did I ask you to do that? 17 A. Well, initially, I was given a stack of various 18 papers from Dr. Healy and Dr. Shlensky, and I don't 19 remember what else was there, and I was given those 20 and I read through those, I think, after my first 21 deposition. I can't remember whether I read those 22 before the first deposition, but then when you came 23 back to my office recently, you asked if I would 24 specifically read the Healy article. 25 Q. Right. And did you, indeed, do that? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1125 1 A. Yes, I did. 2 Q. And had you looked at the draft warnings that 3 were prepared by Eli Lilly for this country? 4 A. The draft warnings? 5 Q. Yes, sir, the ones that they drafted, but never 6 used. Have you looked at those? 7 A. I don't think I did. 8 Q. I want to show you one. It's Exhibit 5. Let's 9 look at the date first. It is dated June 11, 1986, 10 and it says, "Attached to the draft proposed 11 precautions and adverse reactions." Let's turn over 12 the page if we may, and zoom in on the suicide 13 paragraph, if you would. 14 Now, Dr. Neal, do you regularly read package 15 inserts? 16 A. I sometimes do. Sometimes I don't. 17 Q. Can you tell us whether there's a distinction, 18 in that fairly fine-print literature, between warnings 19 and precautions? 20 A. Yes. 21 Q. Okay. And this, of course, we see is a 22 precaution. That's not as strong as a warning, is it? 23 A. Correct. 24 Q. Let's just read it together. "Suicide is 25 possible in depression. The risk is greater before PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1126 1 remission begins. Close supervision of high-risk 2 patients should accompany initial drug therapy. 3 Prescribe small quantities of all drugs to minimize 4 the risk of drug overdose." 5 If you had been given this warning instead of 6 the one that was in the package literature, would you 7 have made sure that this man was closely supervised 8 throughout the initial drug therapy? 9 A. I think that precaution right there is fairly 10 commonly accepted for depression in general and with 11 antidepressant medications in general. That isn't 12 referring to the medication causing suicide. That's 13 referring to depression causing suicide. 14 Q. I see. So even this, you wouldn't interpret as 15 alerting you that the medication could cause akathisia 16 or suicide? 17 A. Right. Correct. 18 Q. Have you ever seen anything from Eli Lilly 19 indicating to you that it can cause akathisia? 20 A. No. 21 Q. Have you seen anything from Eli Lilly 22 indicating to you that it could cause violence and 23 suicide? 24 A. No. 25 Q. If you got those such warnings, instead of this PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1127 1 kind of precaution from Eli Lilly, would you have 2 taken that information very, very seriously? 3 A. Yes, I would take that seriously. 4 Q. Now, what is mania? 5 MR. SEE: Objection to relevance, Your Honor. 6 MR. VICKERY: I assure the Court I'll tie it 7 up. 8 THE COURT: All right. I'll allow it. 9 Q (By Mr. Vickery) What's mania? 10 A. Mania is a condition where a person becomes 11 very hyperactive, hyperalert, sometimes euphoric, 12 sometimes grandiose, sometimes don't sleep very much 13 at night, sometimes very hyperactive. 14 Q. What is psychosis? 15 A. Psychosis is the loss of touch with reality, 16 usually includes delusions, hallucinations, loose 17 associations. 18 Q. Do you believe that Bill Forsyth became 19 psychotic? 20 A. No, I don't. 21 Q. In fact, you were so shocked when you learned 22 about him, about what happened that night, you were so 23 shocked that you thought someone else must have 24 murdered both of them, didn't you? 25 A. I did think that, but that was only partially PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1128 1 my reason for thinking that. 2 Q. Right. But you're aware, are you not, that in 3 this case, that that's not an issue? There's a 4 stipulation that Mr. Forsyth killed his wife and then 5 himself. Has your attorney, Mr. Nishimoto, shared 6 that with you? I'm sorry, I shouldn't ask you about 7 your conversations with your attorney. 8 Are you aware that that's -- that both sides 9 agree in this case that what happened is Bill Forsyth 10 killed his wife and then himself? 11 MR. SEE: Your Honor, I object to Mr. Vickery 12 testifying. There's no question pending. 13 THE COURT: Didn't he read a stipulation to 14 that effect? 15 MR. SEE: He did, but -- 16 THE COURT: Well, he can refer to the 17 stipulation. 18 THE WITNESS: I guess I've been told that, but 19 I didn't know that that had been proven beyond a 20 doubt. 21 Q (By Mr. Vickery) Both sides have agreed to 22 it. Would you accept my word for that? 23 A. Okay. 24 MR. VICKERY: Thank you, Dr. Neal. 25 THE COURT: Mr. See. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1129 1 CROSS-EXAMINATION 2 BY MR. SEE: 3 Q. Good morning, Dr. Neal. 4 A. Good morning. 5 Q. I first want to ask you a question about the 6 warning, the draft language that Mr. Vickery just put 7 up. 8 MR. SEE: Would you mind if I could put that up 9 again so the doctor could see it? 10 MR. VICKERY: Not a bit. 11 Q (By Mr. See) Can you see this, Dr. Neal? 12 A. Not very well. 13 Q. Not so well. Let me tell you what it says and 14 I'll just ask you a question about it. Mr. Vickery 15 was asking you about this language, "Suicide is 16 possible in depression. The risk is greater before 17 remission begins." 18 My question for you is, as a result of your own 19 medical training and your experience, you knew that, 20 didn't you -- 21 A. Yes. 22 Q. -- before you ever prescribed Prozac for Bill 23 Forsyth? 24 A. I did. 25 Q. That's common medical knowledge, right? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1130 1 A. Yes, it is. 2 Q. The next line, "Close supervision of high-risk 3 patients should accompany initial drug therapy." 4 Would it be also correct, because of your medical 5 training and experience, and in fact, common medical 6 knowledge, you knew that before you ever prescribed 7 Prozac for Bill Forsyth? 8 A. Yes, I did. 9 MR. SEE: Your Honor, may I move the easle over 10 to set up the charts or if the Court -- 11 THE COURT: About how long are you going to be 12 with this witness? 13 MR. SEE: I need to go through the records with 14 him to get the facts out for the jury, Your Honor, so 15 it will be -- 16 THE COURT: I think we better break for lunch 17 now. Please be back at one. I want to meet with 18 counsel. 19 (Whereupon, the following proceedings were had 20 in open court out of the presence of the jury.) 21 THE COURT: How does your schedule look at this 22 juncture, Mr. Vickery? 23 MR. VICKERY: I have a very ambitious schedule 24 prepared for the afternoon, Your Honor. We have 25 Dr. Roberts up next. I don't think he'll be long for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1131 1 the simple reason he never got to see Mr. Forsyth on 2 Prozac at all. Then we have Dr. Tom Brady. Again, 3 not a long witness, and then we have a very short -- 4 THE COURT: That's what you told me yesterday 5 about the people this morning. 6 MR. VICKERY: Well, I thought that I did tell 7 the Court that yesterday, maybe it took a little 8 longer than I thought. Then we have a very short fact 9 witness, Ms. Smith. There are two Dorothies, Judge, 10 and we're calling Dorothy Smith, and I'd like to get 11 Dr. Shlensky on and off at the end of the day. 12 That may be ambitious, but that's my plan. 13 Depending on what happens and how rapidly we move this 14 afternoon, I think what I may do is go ahead with 15 Dr. Shlensky rather than Dr. Brady, yes, because we 16 want to try to accommodate Dr. Shlensky's travel 17 schedule. He's not as flexible about being here next 18 week as Dr. Brady. 19 So if we don't move fast enough to get them 20 both done, I think I will probably put on Shlensky 21 before Brady in the hopes that we could get him done 22 and over with. 23 THE COURT: Well, what about the causation 24 issue? 25 MR. VICKERY: Your Honor, I have -- I didn't PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1132 1 file it early this morning, because I didn't want to 2 lay a bombshell on the Court, but I've got the entire 3 sequence from the deposition that Mr. See mentioned, 4 and in terms of the Daubert issues, what I would like 5 to do is just submit that sequence to the Court. What 6 I think you'll see is that the statement he made -- 7 THE COURT: Well, when are we going to admit 8 this to the Court? 9 MR. VICKERY: Well, I propose to give it to the 10 Court over the lunch hour. It is a seven-page 11 sequence from a deposition. If we had a Daubert 12 hearing, that's exactly what I would offer, Your 13 Honor, so since I bear the burden on the Daubert 14 issue, and since the only issue raised is that one 15 statement on Page 336, I believe, of the deposition, I 16 would like to offer the seven or eight pages, that's 17 the testimony on -- that's relevant to this issue. 18 And I think you'll see that the context in which he 19 was talking about that was in statistically 20 significant associations for good effects, positive 21 effects for regulatory purposes. He was not talking 22 about proof of adverse effects. 23 So I think he is still, pursuant to your 24 earlier ruling, a valid causation witness, although, 25 as I say in the cover memorandum to give you with it, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1133 1 because it's been explored in such detail with 2 Dr. Healy, my plan is merely to mention his opinion 3 and go on. I mean, I'm not going to take literally -- 4 THE COURT: You're not going to bother to lay a 5 foundation? 6 MR. VICKERY: Well, I'm certainly going to lay 7 a foundation in terms of his credentials and what he's 8 reviewed and all of that, Your Honor, but I'm not 9 going to belabor the point on all of his reasoning on 10 the causation opinion. If Mr. See wants to challenge 11 him on it, I will report it to avoid cumulative 12 testimony. 13 THE COURT: Well, first up, I'm not, you 14 know -- if you need additional time to put on your 15 witnesses, I'm not holding you fast to finish today, 16 and obviously, you're not going to finish today. 17 MR. VICKERY: I appreciate that. 18 THE COURT: If you need more time, let me know. 19 Mr. See, what is your position now with respect 20 to Dr. Shlensky? 21 MR. SEE: My position with Dr. Shlensky, I 22 would be happy to read the excerpt again that I 23 propose. My position is the same as to Dr. Healy. 24 Dr. Shlensky testified for the standard of 25 scientifically valid cause and effect conclusion, and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1134 1 he had no data to satisfy the standard that he himself 2 ought to apply what is generally accepted in the 3 scientific community. 4 Pursuant to the Court's request of me, I did 5 read the Mendes-Silva case and I also read the Rainer 6 case, which I'll be happy to pass up to your clerk. 7 The Mendes-Silva case is actually a pre-Daubert case, 8 and the Rainer case is a post-Daubert case from the DC 9 Circuit. 10 I think they come to different conclusions. I 11 think the one thing I would say on that issue is the 12 issue in Mendes-Silva seems to be, well, we could go 13 ahead and use case reports to come to a causal 14 conclusion because we don't have any epidemiology 15 studies that will tell us what the answer is. 16 In this case, to the contrary, we have many 17 epidemiology studies, all going the same way, some of 18 which had been referenced here. The Fava study, if 19 you read what the authors did, compare only Prozac to 20 the other conditions, it shows nothing adverse about 21 Prozac. 22 The Jick study, if you hold to only looking at 23 statistically significant conclusions, the Jick study 24 supports the conclusion that there's no difference 25 between Prozac and other antidepressants on PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1135 1 suicidality because it's not statistically 2 significant. 3 The Leon study that I talked to Dr. Healy 4 about, the Wirshing study, that I talked to Dr. Healy 5 about, as well as the Beasley study, which is 6 meta-analysis of the controlled clinical trials that 7 were submitted to the Food and Drug Administration by 8 Lilly, all of those come to exactly the same 9 conclusion, so . . . 10 THE COURT: You're saying those are all 11 epidemiological studies? 12 MR. SEE: The Beasley study is not. It is a 13 very big group of controlled clinical trials, but the 14 rest of them are in the nature of epidemiology studies 15 and they all come to the same conclusion. They're all 16 on the same side. 17 If you read what the authors say, and if you 18 look at, does this come to a valid result; that is, a 19 statistically significant result, which we're willing 20 to base conclusions, they all come to the same answer. 21 I would submit they may not be like Bendectin. There 22 were how many lawsuits regarding Bendectin and that, 23 in fact, there was no evidence that it caused birth 24 defects, but it is almost like that. Every one of 25 these epidemiology studies came to the same PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1136 1 conclusion. 2 THE COURT: Same conclusion being what? 3 MR. SEE: Same conclusion that there is no 4 showing, no evidence of an increased risk of suicide 5 with Prozac. If you apply scientific standard, if you 6 require the results to be statistically significant, 7 all of those studies come to the same conclusion. All 8 the authors say the same thing. 9 So contrary to the circumstance in 10 Mendes-Silva, we have lots of epidemiological evidence 11 here, and I would just point out to the Court, what is 12 interesting in the Rainer case -- and it goes directly 13 to Dr. Healy saying, well, these case reports or 14 challenge/rechallenge circumstances are the best way 15 to do it, the DC Circuit in the Rainer case says it is 16 similarly where sound epidemiological studies produce 17 opposite results from non-epidemiological ones, then 18 the rate of error of the latter is likely to be quite 19 high. 20 So I think what they're saying is if you have a 21 lot of epidemiological studies, and we've got one, 22 two, three, four, at least five here, and they all 23 come to the same -- they all come down to the same 24 side; that is, they do not show evidence that Prozac 25 has an increased rate of suicide, then these case PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1137 1 reports that Dr. Healy talks about, and incidentally, 2 Dr. Shlensky relies upon, must have a very high error 3 rate because they're completely inconsistent with what 4 the epidemiological evidence shows. 5 I'll hand those up to your clerk. 6 THE COURT: Now, getting back to this 7 deposition that you want the Court to read at some 8 point in time. When are we talking about -- 9 MR. VICKERY: I was going to give it to you 10 now, Your Honor. It's not a whole deposition. It is 11 only seven to eight pages to put this one statement in 12 context. And I would feel comfortable with the Court 13 merely reading those, which should take no more than 14 five minutes and ruling, Vickery, you're in. This guy 15 can talk about this, or no, you're out. We can't. I 16 think that's a prompt resolution of the situation. 17 THE COURT: Okay. Where are those papers? 18 MR. SEE: So the Court is informed on 19 scheduling, Mr. Vickery had stated that he will have 20 very brief witnesses with Dr. Neal and Dr. Roberts. 21 That apparently is so because he's not asking Dr. Neal 22 about what happened during his hospitalization while 23 Mr. Forsyth was taking Prozac. I need to do that. I 24 need to go through that hospitalization with Dr. Neal 25 and I need to go through Dr. Roberts' treatment to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1138 1 show what happened because this is my chance to show 2 the facts, so I don't think it is reasonably 3 possible -- we may finish those two gentlemen today. 4 That is reasonably possible. 5 THE COURT: I'm not holding my breath. 6 MR. SEE: Yes, sir. 7 THE COURT: Let's break for lunch. Let's start 8 at a quarter after one. 9 (Whereupon, a lunch recess was taken from 12:10 10 p.m. to 1:20 p.m.) 11 THE COURT: Please proceed, Mr. See. 12 MR. SEE: Dr. Neal, will you take the stand 13 again, please, sir. 14 Your Honor, I'm going to be asking Dr. Neal 15 some questions about some of the blowups from the 16 Castle Medical Center Chart. They are in your exhibit 17 books if you would like to look at the small copies. 18 They are in there at 1009. 19 THE COURT: All right. Thank you. 20 Q (By Mr. See) Dr. Neal, I've got some small 21 copies of the blowups right in front of you, so maybe 22 you can follow along with the jury and they'll look at 23 the big one. 24 First, Dr. Neal, let me ask you this question: 25 You testified, when Mr. Vickery was questioning, that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1139 1 after your deposition in this case, he had sent you 2 some materials, including an article by Dr. Healy; is 3 that right? 4 A. That's correct. 5 Q. And then he came and visited with you in your 6 office about those things? 7 A. That's correct. 8 Q. And did you review those materials? 9 A. Yes, I did. 10 Q. Now, the question I have for you, Dr. Neal, is 11 after having reviewed those materials, Mr. Vickery 12 described them as exhibits in this case, including the 13 article by Dr. Healy, if you had known what was 14 contained in those materials, including Dr. Healy's 15 article, if you had known all of that in February of 16 1993, would that have caused you not to prescribe 17 Prozac to William Forsyth? 18 A. I don't believe it would have. 19 Q. If you had known all those things contained in 20 the materials that Mr. Vickery sent you, would you 21 have treated Mr. Forsyth differently than you did in 22 February and early March of 1993? 23 A. No. 24 Q. Now, I'd like you to, if you would, refer to 25 the blowup, Doctor -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1140 1 THE COURT: I'm sorry, did you say 1009? 2 MR. SEE: Yes, sir. It's in Volume I, Your 3 Honor. It's in a plastic envelope. I think there are 4 about six just small versions of the blowups. 5 THE COURT: This is with Mary Beckly, 6 deposition of Mary Beckly? 7 MR. SEE: I think that may have been the 8 document custodian of the Castle Medical Center 9 records. 10 THE COURT: These are the things I'm supposed 11 to be looking at? 12 MR. SEE: Yes, sir. 13 THE COURT: Okay. Thank you. 14 Q (By Mr. See) Dr. Neal, I first want to ask 15 you about the first blowup here and these are in 16 evidence as Plaintiffs' Exhibit 164, the Castle 17 Medical Center records. We have here a form that was 18 filled out by Mr. R. Poole. Mr. Poole was a counselor 19 at the hospital at that time? 20 A. Yes. 21 Q. And part of his job was to meet with patients 22 and their family members as they came in on admission 23 to take initial information from them? 24 A. That's correct. 25 Q. And, in essence, this form would reflect that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1141 1 information? 2 A. Yes. 3 Q. Now, this shows that this was taken on 4 February 24th and the time is listed as 1800, that's 5 six o'clock in the evening? 6 A. Okay. Yes. 7 Q. Now, the reason for hospitalization is 8 indicated as depression and anxiety, and that's 9 consistent with what you were told on the telephone as 10 you were told -- 11 A. Yes. 12 Q. -- that Mr. Forsyth was coming over to be 13 hospitalized? 14 A. That's correct. 15 Q. Then it asks for the present experience, and 16 there is indicated, "Increased anxiety today," and 17 then it states, "States had two good days prior to 18 today." Do you see that, Doctor? 19 A. Yes. 20 Q. Now, it's your understanding that Mr. Forsyth 21 was prescribed Prozac by Dr. Roberts on February 22nd? 22 A. I believe that's correct, yes. 23 Q. So that would be two days before his admission 24 to Castle? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1142 1 Q. So the two good days referred to here would be 2 those are the two days that Mr. Forsyth was taking 3 Prozac, right? 4 A. Yes. 5 Q. Now, it goes on under present experience that 6 "Mr. Forsyth," it says, "states obsessive thoughts, 7 worrying, focused on meds." That meds would be an 8 abbreviation for medication? 9 A. Yes. 10 Q. Is it correct that what Mr. Forsyth was 11 focusing on and worrying about and obsessing about was 12 that he was afraid he was becoming addicted to Xanax? 13 A. That's correct. 14 Q. So this meds right here refers to Xanax? 15 A. Yes. 16 Q. Now, the next block there is precipitating 17 events. Can you tell us what precipitating is other 18 than rain? It was raining outside as I walked in. 19 A. Causal events, I guess I would say, things that 20 cause other things to happen. I guess, in this case, 21 the precipitating event would be what led up to his 22 present condition. 23 Q. And we have there, again, it states, 24 "Long-term, underlying anxiety," and you learned that 25 Mr. Forsyth, in fact, had long-term anxiety? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1143 1 A. Yes. 2 Q. And then "Increased anxiety since retirement 3 several years ago." You also learned that from your 4 consultation with him? 5 A. Yes. 6 Q. And then it says, "Intense the past two 7 months," and that also was consistent with what you 8 learned in your evaluation? 9 A. Yes, that's consistent. 10 Q. Now, it talks about increased use of Xanax, 11 "Has begun decrease under supervision." Does that 12 mean he was trying to taper himself off of the Xanax 13 under Dr. Roberts' care? 14 A. Yes. 15 Q. "And then felt like he couldn't continue." 16 Does that mean Mr. Forsyth just really did not want to 17 keep taking Xanax? 18 A. That's correct. 19 Q. And, in fact, he was obsessing about that, 20 wasn't he? 21 A. Yes, he was. 22 Q. When we say someone is obsessing, can you 23 explain to the jury what that means? 24 A. They are thinking about that over and over 25 again. It's a recurrent thought. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1144 1 Q. And then we come down to history of illness, 2 and what we have listed here is "Depression the past 3 two months," correct? 4 A. Correct. 5 Q. And then entered there is "Some suicidal 6 thoughts," right? 7 A. Correct. 8 Q. And then "Under Dr. Roberts' care on Maui the 9 last two months," and that, you also learned from 10 Mr. Forsyth, right? 11 A. Yes. 12 Q. Now, under his thought process, the first item 13 there is content, and it says, "Suicidal thoughts the 14 past month," and then "Denies current suicidal 15 ideation." Does that mean that Mr. Forsyth was 16 saying, I don't feel suicidal right now? 17 A. That's correct. 18 Q. And when the doctors or the mental health 19 people, they write, "denies," that just means 20 Mr. Forsyth said, I am not feeling suicidal right now? 21 A. That's correct. 22 Q. And then under mood, would that be the 23 counselor's observation of what Mr. Forsyth looked 24 like and how he was behaving? 25 A. That would be probably his -- it would be his PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1145 1 observation of the patient, but also his conclusion 2 from information that he's gathered from the patient. 3 Q. And that would be depressed and anxious? 4 A. Yes. 5 Q. Now, do you have the second blowup there, 6 Doctor? 7 A. I do. 8 Q. Again, this is a form called "Admission 9 Summary"? 10 A. Yes. 11 Q. Also filled out by Mr. Poole, the counselor, 12 correct? 13 A. Yes. 14 Q. And that would have been done the same day, 15 that's February 24th, the day that Mr. Forsyth came 16 into the hospital? 17 A. Yes. 18 Q. And we have listed there, "Presenting problem, 19 depression and anxiety, and then some suicidal 20 thoughts the past month," correct? 21 A. Correct. 22 Q. Let me ask you this, Dr. Neal, is it the case 23 with patients, who come in to the psychiatric 24 hospital, that sometimes they will tell the mental 25 health people, the doctors or the counselors, the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1146 1 staff, that they are suicidal, and then later, out of 2 embarrassment or denial, or for whatever reason, they 3 will deny that that was the case? Does that happen? 4 A. I imagine that's possible. I don't see that 5 happen very often. 6 Q. Now, under the other blank, we have an entry, 7 "Patient reports increase of anxiety and depression 8 the past several months." Again, consistent with the 9 history you received? 10 A. Yes. 11 Q. And then the entry is, "Patient reports 12 occasional suicidal thoughts the past month, but 13 denies current suicidal ideation." 14 A. Yes. 15 Q. Now, let me ask you about that again. The 16 "Denies current suicidal ideation," that would be 17 Mr. Forsyth saying, but I'm not feeling suicidal right 18 now? 19 A. That's correct. 20 Q. We then have "Patient reports nervousness, 21 worry" -- actually, I think that word is misspelled. 22 It should be "worrisomeness, focused on thoughts, 23 again obsessive about medication," and that would be 24 the reference to Xanax again? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1147 1 Q. "Patient reports history of being a workaholic 2 and is also a recovering alcoholic with 20 years 3 sober." Again, that information was consistent with 4 what you got from Mr. Forsyth? 5 A. Yes, it was. 6 Q. If we could go to the next blowup. Now, this 7 is your psychiatric evaluation on February 25. 8 A. Yes, it is. 9 Q. This would be the time that you actually sat 10 down with Mr. Forsyth personally and conducted a 11 psychiatric evaluation of him? 12 A. That is correct. 13 Q. Would you just tell the jury briefly how do you 14 do that? What is involved in that psychiatric 15 evaluation? 16 A. Normally I sit down with a person and I will 17 start out by asking him what brought them here today, 18 what caused them to be in the hospital, and allow them 19 to give me their own history about what events led up 20 to their being in the hospital. And then gradually I 21 will focus my evaluation on a number of different 22 areas depending on what kind of history a person is 23 giving. 24 Q. And you eventually arrive at a diagnosis? 25 A. Diagnosis, correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1148 1 Q. So the information that you entered 2 particularly in the history part of it, this would be 3 information that you got from Mr. Forsyth? 4 A. Sometimes information in the history is also 5 information gathered from outside sources. 6 Q. And that would include Dr. Roberts -- 7 A. Yes, it would. 8 Q. -- or perhaps Mr. Forsyth's family? 9 A. Yes, it would. 10 Q. So under the chief complaint -- and tell us 11 what that means? 12 A. This is the primary presenting symptom or 13 concern. 14 Q. Why the patient's here? 15 A. Correct. 16 Q. And you've entered, "This is a 63-year-old 17 married male, who is self-referred for symptoms of 18 depression and anxiety and feelings of panic." Was 19 that information you got from Mr. Forsyth? 20 A. That was information I got from Mr. Forsyth and 21 also from the nurse in charge who took the information 22 from, I presume, the family. 23 Q. Now, you've indicated that treatment with 24 Dr. Roberts tapering off the Xanax, and then that 25 Dr. Roberts was giving Mr. Forsyth gradually PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1149 1 increasing doses of Pamelor, correct? 2 A. Correct. 3 Q. And Pamelor is an antidepressant medication? 4 A. Yes, it is. 5 Q. And it was your understanding that with the 6 Pamelor, and you've entered here, "The patient did not 7 improve significantly on this regime." Does that mean 8 that Mr. Forsyth had been taking the Pamelor to try to 9 make his depression better, but it was not working for 10 him? 11 A. That's correct. 12 Q. So then the history you have is that after 13 this, Dr. Roberts prescribed for Mr. Forsyth Prozac, 14 as well as Inderal and Deseyrel? 15 A. Correct. 16 Q. Now, the Inderal, that is a medication that is 17 used for symptoms of anxiety? 18 A. Yes, it is. 19 Q. And Mr. Forsyth was already taking it at the 20 time he got to Castle? 21 A. Yes, he was. 22 Q. And I think you indicated that he -- he, that 23 is, Mr. Forsyth, felt that he liked the Inderal. It 24 helped his anxiety symptoms? 25 A. That's correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1150 1 Q. So you elected to continue him on it? 2 A. Correct. 3 Q. And then he was taking Deseyrel and that was 4 essentially directed at helping him sleep? 5 A. That's correct. 6 Q. And the sleeplessness that the Deseyrel was 7 directed at was a symptom of his major depression? 8 A. I believe so. 9 Q. Now, again, we go into where it says, "The 10 patient claims." Saying "The patient claims," that 11 would indicate that's information you got from 12 Mr. Forsyth? 13 A. Yes. 14 Q. Okay. It says, "The patient claims that he 15 improved over the first couple of days, but felt 16 depressed again and felt worried and panicked." 17 That's what Mr. Forsyth told you? 18 A. Yes. 19 Q. And the feeling worried and panicked would have 20 been on the day that he actually came over -- came 21 over here to Oahu to be admitted into Castle? 22 A. Yes. 23 Q. Now, again, it says, "He claims," so that would 24 have come from Mr. Forsyth? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1151 1 Q. "He claims that he feels a little bit better 2 now and he wishes that he hadn't overreacted;" is that 3 right? 4 A. Yes. 5 Q. So that was information that he gave to you? 6 A. Yes. 7 Q. Did you relate, Doctor, the statement, his 8 statement that he wished he hadn't overreacted, to 9 what Mr. Forsyth had told you before about having felt 10 worried and panicked? 11 A. Yes. 12 Q. And then you note, "On the other hand, he seems 13 glad to be here and it's hopeful we can sort out his 14 medications." And again, that sorting out of 15 medications, is that a reference to the fact that he 16 was worried that he was becoming addicted to Xanax? 17 A. That's correct. 18 Q. This is a continuation page of your February 25 19 psychiatric evaluation? 20 A. Yes. 21 Q. And at the first entry up at the top of the 22 blowup it says, "Mental status evaluation." 23 A. Yes. 24 Q. What do you do to do that? 25 A. You do a number of things, basically, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1152 1 evaluating the patient on a number of aspects of their 2 thinking, their behavior, everything from whether 3 they're oriented to their person, place, and the time, 4 to whether they might be having hallucinations or 5 delusions. That kind of thing. 6 Q. To be oriented, you know who you are, you know 7 where you are, and you know what's going on? 8 A. You know why you're there, correct. 9 Q. And all of those things came out all right for 10 Mr. Forsyth? 11 A. Yes. 12 Q. On the blowup we noted here, "There's no 13 abnormal speech or motor behavior." 14 A. Yes. 15 Q. Tell us what the motor behavior part refers to. 16 A. The motor behavior might refer to, let's say, 17 if a person was manic, they might be hyperactive, or 18 if they were very depressed, their motor movements 19 might be slowed, and we call that psychomotor 20 retardation. There was nothing like that. He was 21 just sitting very calmly relating his history to me. 22 Q. Okay. So when you say that there was no 23 abnormal motor behavior at that time when you were 24 evaluating Mr. Forsyth on February 25, he was not 25 physically agitated? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1153 1 A. He was not. 2 Q. He was not having behaviors like getting up and 3 sitting down constantly? 4 A. No, he was not. 5 Q. He wasn't having foot tapping or involuntary 6 leg movement? 7 A. No, he was not. 8 Q. No hand wringing? No pacing? 9 A. No. 10 Q. And cutting to the bottom line, did 11 Mr. Forsyth, during the time you did your mental 12 status examination, did he have akathisia? 13 A. No, he did not. 14 Q. And let me ask, going on a little bit further, 15 during Mr. Forsyth's entire stay at Castle Medical 16 Center, including all of your personal interactions 17 with him, and including the information that you got 18 from his chart that was charted by others, and from 19 the nurses and the counselors and the social workers 20 who were in contact with him, did Mr. Forsyth ever 21 have akathisia during any of the time that he was at 22 the Castle Hospital? 23 A. No, he did not. 24 Q. Now, Mr. Forsyth, because of his concern about 25 Xanax, you actually did put him on a program to taper PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1154 1 down the dose of Xanax so he could get off that drug? 2 A. Yes, I did. 3 Q. And is it correct that one of the things you 4 should do when you are tapering a person down off of a 5 drug, especially like Xanax, is you observe the 6 patient very carefully for any sign or any symptom 7 that might be related to drug withdrawal? 8 A. Yes, that's correct. 9 Q. So you and the staff at Castle were looking at 10 Mr. Forsyth pretty carefully to see if he was having 11 any drug-related symptoms? 12 A. That's correct. 13 Q. And I think you mentioned this on direct, but 14 let me make certain. In your interviews with 15 Mr. Forsyth, did you actually inquire about whether he 16 was having subjective feelings of restlessness? 17 A. I don't remember asking him that specifically. 18 That's ordinarily part of the questioning. 19 Q. According to your usual practice, then, at the 20 time, you would have asked him? 21 A. Yes, I would. 22 Q. Whether he was feeling subjective feelings of 23 restlessness? 24 A. Yes. 25 Q. And if he would have reported that to you, is PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1155 1 that something you would have written in the chart? 2 A. Yes, I would. 3 Q. And is there any entry in the chart that 4 Mr. Forsyth, in response to questions, was feeling any 5 subjective feeling of restlessness? 6 A. No. 7 Q. Again, you note that "There is no suicidal or 8 homicidal ideation," and you're making that record and 9 that note as of the time of your mental status 10 evaluation? 11 A. Yes. 12 Q. So as you're talking to Bill Forsyth on 13 February 25th, he is not having suicidal ideation or 14 homicidal ideation? 15 A. That's correct. 16 Q. So your plan is to -- because Pamelor was not 17 working very well for Mr. Forsyth, you were going to 18 taper him off the Pamelor? 19 A. Yes. 20 Q. Taper him off the Xanax, and put him back on 21 the Prozac? 22 A. Yes. 23 Q. And then see if he wanted to continue the 24 Inderal? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1156 1 Q. And then you eventually decided that you would 2 continue the Inderal because Mr. Forsyth felt it was 3 helpful for him? 4 A. Yes. 5 Q. Now, specifically, is it correct, when you 6 prescribed Inderal for Mr. Forsyth, it was not for any 7 side effect that you noticed he was having for Prozac; 8 isn't that right? 9 MR. VICKERY: Excuse me, Mr. See. Your Honor, 10 I want to object to the leading nature of these 11 questions. This man isn't really a hostile witness to 12 Mr. See and there's no sense in him leading him like 13 this. 14 MR. SEE: It's cross-examination, Your Honor. 15 THE COURT: Overruled. 16 Q (By Mr. See) What I was asking you, Doctor, 17 to remind you, Mr. Forsyth was taking Inderal when he 18 came into the hospital? 19 A. He was. 20 Q. And you elected to continue him on it? 21 A. I did. 22 Q. There was no side effect of Prozac that 23 occurred that caused you to prescribe the Inderal? 24 A. That's correct. 25 Q. While Mr. Forsyth was at the Castle Medical PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1157 1 Center, did you have conversations with him about 2 whether he wanted to be there? 3 A. Yes, I did. 4 Q. And what did he say about that? 5 A. That varied as to the time I was talking to 6 him. Generally, in the beginning, he was somewhat 7 ambivalent. Like I said, he felt like he had 8 overreacted. He didn't really need to be in the 9 hospital. He wasn't really suicidal, but after he 10 kind of settled in and started going to groups and 11 participating in the milieu, he became much more 12 involved and seemed to want to be in the hospital. 13 Q. You used a phrased, participated in the milieu, 14 that I know is used by people in your profession, but 15 you have to tell us what that means. 16 A. What that means is that when a patient is in 17 the hospital, they aren't just isolated in a room by 18 themselves. They are on a unit where there are maybe 19 10, 15 other patients with problems of their own. 20 There are groups that they participate in together, 21 and they also participate and talk to each other at 22 times when there's not formal groups going on, and 23 that is -- the milieu is just the overall context in 24 which the person is living. 25 Q. Now, as I understand it, the program for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1158 1 patients, in the unit that Mr. Forsyth was in, would 2 have included both individual therapy as well, maybe 3 several times during the day, meetings with groups of 4 other patients? 5 A. That's correct. 6 Q. Talking about problems and how they could 7 recognize them themselves and maybe look inside and 8 figure out what was bothering them? 9 A. That's correct. 10 Q. I won't go through the whole chart with you, 11 but an issue has been raised in testimony already and 12 there's been a suggestion that Mr. Forsyth kind of 13 withdrew and did not actively participate in the 14 therapy, in the group sessions, in the group meetings, 15 and that sort of thing. Isn't it correct that 16 Mr. Forsyth, in fact, actively participated in the 17 group sections and with all of the other patients in 18 the unit? 19 A. That is correct. 20 Q. Let's go to the next blowup. And this one is a 21 blowup of the psychosocial history and assessment of 22 February 26, 1993, and this one is signed by a 23 Ms. Tonya Dickson, and then there's an SW. Does that 24 mean social worker? 25 A. That's correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1159 1 Q. So this would have been simply another 2 information-gathering process from Mr. Forsyth 3 himself? 4 A. Yes, it would. 5 Q. And this one would have been a one-on-one, 6 Mr. Forsyth actually sitting down with a social worker 7 and going through an interview process? 8 A. That's what that normally would be. 9 Q. So we have a place here for presenting problem, 10 and the parenthetical says, "The reason for the 11 admission and history of the problem," correct? 12 A. Correct. 13 Q. And then there's a place for the patient to 14 fill in what the patient had to say and a place to 15 fill in what the social worker had to say, correct? 16 A. Correct. 17 Q. And the blank for the patient has a statement 18 that has quotation marks around it. Now, in the 19 practice at Castle Medical Center at this time, 20 according to usual policy and procedures, if a 21 statement is indicated with quotation marks around it, 22 right after it says patient, would that indicate that 23 that was a verbatim recording of what the patient 24 actually said? 25 A. It would. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1160 1 Q. So we have the entry "patient," and then in 2 quotations, "I've had a lot of anxiety lately and had 3 been thinking about suicide," correct? 4 A. Correct. 5 Q. Now, according to the procedures of the 6 hospital, that statement, by being in quotation marks, 7 would have come from Mr. Forsyth himself? 8 A. That's what those quotation marks would mean. 9 Q. Now, we go on down that form here and there's a 10 place under family history for the entry of traumatic 11 experiences. Do you see that part? 12 A. I do. 13 Q. Tell us what that means, traumatic experiences. 14 A. It could be anything that the person has gone 15 through in their past, recent or remote, that could be 16 contributing to their present problems. 17 Q. And now, those entries are "Retirement, lack of 18 activity, separation from wife," and then there's an 19 indicated parenthetical, "have reunited," correct? 20 A. That's correct. 21 Q. And then under clinical assessment, the blank 22 for identified problems indicates "Boredom, lack of 23 productive activities, and major depression," correct? 24 A. Correct. 25 Q. We'll go to the last blowup, and this is a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1161 1 blowup from the discharge summary? 2 A. That's correct. 3 Q. And it's got your signature down at the bottom? 4 A. It does. 5 Q. Now, Mr. Forsyth was discharged on March the 6 3rd, 1993, and you indicate that he was getting Prozac 7 while he was in the hospital on an everyday basis; is 8 that correct? 9 A. That's correct. 10 Q. And then you say, "The patient did very well 11 over the ensuing hospitalization." That's consistent 12 with your memory and what you saw in your review of 13 the records? 14 A. Yes, it is. 15 Q. Now, you've indicated that in addition to 16 Prozac, during his hospitalization, Mr. Forsyth was 17 getting Deseyrel, that was for sleep, right? 18 A. Correct. 19 Q. And Inderal to help him out with his anxiety, 20 correct? 21 A. Yes. 22 Q. And then you've also indicated "to prevent any 23 side effects from Prozac." 24 A. Yes. 25 Q. That's what you wrote there? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1162 1 A. Um-hum. 2 Q. And the side effect from Prozac that you were 3 thinking about was what, anxiety? 4 A. At the time, I guess, I had heard that people 5 said that people had akathisia, and Inderal can 6 prevent both anxiety and akathisia in people that are 7 on neuroleptics, for example. Sometimes Inderal is 8 used for that purpose. I don't remember whether I was 9 specifically thinking in terms of akathisia at that 10 point or primarily anxiety. 11 Q. So Mr. Forsyth was already getting the Inderal 12 for anxiety, right? 13 A. Yes. 14 Q. And had he had any akathisia, it would have 15 helped with that too, right? 16 A. Correct. 17 Q. But there wasn't any symptoms, as I understand, 18 of akathisia during the whole time he was in the 19 hospital? 20 A. No, there was not. 21 Q. Now, you've indicated, also in your discharge, 22 that at the time of discharge, Mr. Forsyth was 23 requesting to get back to Maui because he wanted to 24 take care of some business arrangements, correct? 25 A. Yes, that's correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1163 1 Q. What did Mr. Forsyth tell you about his desires 2 to get back to Maui to take care of his business 3 matters? 4 A. He said that while he had been gone, his son 5 had been taking over his finances and that he felt 6 that he no longer had control of his money, that his 7 son was trying to take over that and had made some 8 sort of business arrangement with June, his wife, and 9 he needed to put a stop to that. 10 Q. And because of that, he was ready to get out of 11 the hospital and go back to Maui? 12 A. Yes. 13 Q. Now, you've indicated that it was your feeling 14 that Mr. Forsyth would have benefited from a couple 15 more days in the hospital, correct? 16 A. Correct. 17 Q. So at the time of his discharge, he was still 18 suffering from major depression, right? 19 A. Correct. 20 Q. But over the course of his hospital stay, he 21 appeared as if he was in a, as you say, much improved 22 condition? 23 A. Yes. 24 Q. And this was during the time that he was taking 25 Prozac? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1164 1 A. That's correct. 2 Q. During your observation of Mr. Forsyth, during 3 all the time he was in the hospital while he was 4 taking Prozac, was there any indication, any symptom, 5 any sign that Mr. Forsyth was having any kind of a 6 side effect or an adverse reaction to Prozac? 7 A. There was not. 8 Q. Again, after Mr. Forsyth was discharged from 9 the hospital, that was the last time you saw him, 10 correct? 11 A. That's correct. 12 Q. Now, Dr. Neal, based upon your observation of 13 Mr. Forsyth during all the time that he was taking 14 Prozac, is there any evidence that Prozac caused 15 Mr. Forsyth to have suicidal thinking or suicidal 16 ideation? 17 A. No. 18 Q. Was there any evidence or any sign or any 19 symptom that Mr. Forsyth became agitated while he was 20 at Castle? 21 A. No. 22 Q. Was there any evidence or any sign or any 23 symptom that taking Prozac caused Mr. Forsyth to 24 become agitated? 25 A. No. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1165 1 Q. Again, during his entire hospitalization at 2 Castle, was there any evidence, any sign, any symptom 3 that Prozac caused Mr. Forsyth to have akathisia? 4 A. No. 5 Q. Based upon your psychiatric evaluation and your 6 interaction with Mr. Forsyth and your observation of 7 him during his hospitalization, is there any evidence, 8 is there any symptom or any sign that Prozac caused 9 Mr. Forsyth to have homicidal ideation? 10 A. No. 11 Q. Is there any evidence or any sign or any 12 symptom, during the entire time Mr. Forsyth was 13 hospitalized at Castle, that taking Prozac caused him 14 to become violent or physically aggressive? 15 A. No. 16 Q. During the entire time that Mr. Forsyth was at 17 Castle Medical Center, was there any evidence, was 18 there any sign or symptom that taking Prozac caused 19 Mr. Forsyth to have panic attacks or feelings of 20 panic? 21 A. No. 22 Q. During all of the time that Mr. Forsyth was at 23 Castle, was there any evidence or any sign or any 24 symptom that taking Prozac caused him to engage in 25 homicidal behavior; that is, physically attack other PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1166 1 human beings, try to kill them? 2 A. No. 3 Q. During the time that Mr. Forsyth was at Castle, 4 was there any evidence, any sign, or any symptom that 5 taking Prozac caused Mr. Forsyth's depression to 6 worsen? 7 A. No. 8 Q. During the time he was at Castle taking Prozac, 9 was there any evidence or any sign or symptom that 10 Prozac caused Mr. Forsyth's existing anxiety to get 11 worse? 12 A. No. 13 Q. Dr. Neal, when you prescribed Prozac for 14 Mr. Forsyth in February and March of 1993, did you 15 believe, based upon all of your medical training, your 16 experience, your clinical experience with patients 17 taking antidepressants, did you believe at that time 18 that Prozac was a safe and an effective antidepressant 19 drug? 20 A. Yes, I did. 21 Q. Now, at the time that you prescribed Prozac for 22 Mr. Forsyth, based upon your own medical training and 23 your own clinical experience, is it correct that 24 you -- you knew that patients who have major 25 depression sometimes become suicidal? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1167 1 A. Yes. 2 Q. And at that time, did you also know that 3 patients with major depression sometimes become 4 suicidal even though they're taking antidepressant 5 medication? 6 A. Yes. 7 Q. From time to time in your medical practice -- 8 and now I want to ask, this is before February of 9 1993, did you, from time to time, receive what are 10 called Dear Doctor letters from pharmaceutical 11 companies? 12 A. Dear Doctor letters? I'm not sure I recognize 13 that terminology. 14 Q. Okay. Did you, from time to time, receive 15 correspondence from pharmaceutical companies with 16 information about this or that prescription drug? 17 A. I'm sure I did. I couldn't recall 18 specifically. 19 Q. And is it the case -- you're not saying you did 20 not receive correspondence from Lilly about Prozac 21 prior to your prescription for Mr. Forsyth? Because 22 of the passage of time, you just don't recall? 23 A. That's correct. 24 MR. SEE: Okay. That's all I have. Thank you 25 very much, sir. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1168 1 THE COURT: Redirect, Mr. Vickery. 2 MR. VICKERY: Yes, Your Honor. I'll be needing 3 those, Mr. See. 4 REDIRECT EXAMINATION 5 BY MR. VICKERY: 6 Q. Dr. Neal, it's hard for you to believe that any 7 drug that you gave this man could have caused him to 8 kill his wife and himself, isn't it? 9 A. I would say that's correct. 10 Q. I mean, you would feel really awful if you 11 thought that happened, wouldn't you? 12 A. I guess if I thought that's what happened, I 13 would feel awful. 14 Q. I couldn't help but notice, in your examination 15 with Mr. See, that really, you only gave three 16 answers. You said yes, that's correct, or no. And my 17 question to you, sir, is have you been coached or 18 encouraged to respond to the questions in that 19 fashion? 20 A. No, I have not. 21 Q. Do you feel threatened? Has anybody threatened 22 you in any way? 23 A. No. 24 MR. SEE: I object, Your Honor. 25 THE COURT: Sustained. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1169 1 MR. SEE: I move to strike the question and the 2 answer. 3 THE COURT: I sustained the question and the 4 answer is stricken. 5 Q (By Mr. Vickery) Dr. Neal, can you tell me 6 why you have an attorney here? 7 A. From the very beginning, I asked my insurance 8 company to supply me with an attorney because I wasn't 9 really sure how to proceed. 10 Q. From the very beginning, you mean, right after 11 you learned of these deaths? 12 A. That's correct. 13 Q. Okay, sir. Now, let me visit with you about 14 some of these documents. The first is your admission 15 document. When somebody first comes in, they -- you 16 do a dictation right away, don't you? 17 A. That's correct. 18 Q. Now, let's look at the second page first. He 19 came in on February 25th and you did the dictation on 20 February 25th, didn't you? 21 A. That's correct. 22 Q. What did you mean here when you said, 23 "Effective status, the patient is fairly depressed and 24 moderately anxious with a fairly constricted affect." 25 What's a constricted affect? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1170 1 A. Affect is the expression of emotion, sometimes 2 a facial expression, and a person who is not under any 3 particular kind of stress might have a, what we call, 4 full range of affect where he might be smiling at some 5 point, maybe sad at another point. Constricted means 6 that there's not a whole lot of expression of emotion. 7 Q. And that's one of the things you see with 8 akathisia, isn't it? 9 A. I'm not aware of that being a symptom of 10 akathisia. 11 Q. Are you an expert with regard to akathisia? 12 A. I guess I'm not an expert. I've never been 13 told I was an expert. 14 Q. Now, back on the first page of that document, 15 it says, "This is a 63-year-old married male who is 16 self-referred for symptoms of depression." What does 17 self-referred mean? 18 A. It means that he referred himself. He came of 19 his own accord. 20 Q. I'm confused because earlier, you suggested to 21 us that it was his family trying to get him in there. 22 Which is it? 23 A. I believe that it was his family. 24 Q. Then why didn't you put that down? Why, when 25 you dictated this on February 25th, did you say he was PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1171 1 self-referred? 2 A. Probably out of habit. 3 Q. I see. The other document that you, as a 4 doctor, dictate with respect to someone is the one 5 when they get out, right? 6 A. Correct. 7 Q. And you usually do that right away? 8 A. Sometimes I don't do it right away. 9 Q. You didn't in this case, did you? 10 A. I did not. 11 Q. You didn't dictate your discharge summary until 12 20 days after this man was dead, did you? 13 A. That's correct. 14 Q. And you didn't dictate your discharge summary 15 until after you had already hired a lawyer, did you? 16 A. I did not hire an attorney. 17 Q. You didn't dictate your discharge summary until 18 after you already had a lawyer advising you; isn't 19 that true, sir? 20 A. That probably is correct. I don't remember 21 exactly when I had an attorney. 22 Q. And is it not also true, sir, that the lawyer 23 that was advising you at the time you dictated the 24 discharge summary was with Mr. Burke's law firm that's 25 representing Lilly in this case? Isn't that true? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1172 1 A. I believe that's correct. 2 Q. Now, you said some things in this discharge 3 summary that really help Eli Lilly, didn't you? 4 A. I don't know. 5 Q. Well, you said, for example, "At the time of 6 discharge, he was requesting to be discharged because 7 he was in a hurry to get back to Maui to take care of 8 business, and although it was my feeling he might 9 benefit from a couple more days' stay, he did not 10 request to live." Isn't that what it says? 11 A. That's what it says, yes. 12 Q. Do you have that in front of you there? Can 13 you see it okay? I want to ask you, first of all, 14 when you say, "he did not request to live," is that a 15 typographical error? 16 A. Yes, that's a typo. 17 Q. Not a freudian slip on your part? 18 A. I believe it wasn't, no. 19 Q. But that certainly -- you understand that helps 20 both you and Lilly for you to say, well, I tried to 21 keep him in there? 22 A. Yes, but they didn't coach me on this 23 dictation. 24 Q. Well, look at your handwritten notes. Do you 25 have your records there on the day, not 20 days later, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1173 1 on the day, about him being discharged? Do you have 2 them or do you need me to get them for you? 3 A. I don't know. Is this what this is here? 4 MR. VICKERY: May I approach, Your Honor? 5 THE COURT: You may. 6 Q (By Mr. Vickery) That's just a copy of your 7 deposition. 8 Ms. Barth, would you get the TV and let's look 9 at them together. 10 What I'm going to show you up here are the 11 Castle Medical Records, which I believe are in your 12 handwriting, and I want you to confirm that for us. 13 Is that your handwriting? Do you need to step down to 14 see it, Dr. Neal? 15 A. No, I believe I can see it from here. That is 16 my handwriting. 17 Q. Okay. Sir, can you read what you wrote on 18 March the 2nd, 1993? 19 A. It looks like, "Continued decreased anxiety, 20 decreased depression. Plan DC tomorrow," discharge 21 tomorrow. "Will discharge," I think, "with Xanax" 22 and -- "with DC," discontinue Xanax. 23 Q. Discharge tomorrow? 24 A. Correct. 25 Q. Can you explain for us, Dr. Neal, why the note PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1174 1 you wrote on the day this happened says nothing about 2 you believing he should be retained, but the note you 3 dictated 20 days after you knew he was dead says, oh, 4 I wanted to keep him? Can you explain that for us? 5 A. All I can remember is that at the time I talked 6 with Bill before he was going was that he was very 7 upset about his son gaining control of his money and 8 so he wanted to go, and he felt like he needed to get 9 back to regain control of his money. 10 I suggested he stay for another couple of days 11 so we could sit this out, and I asked if I could help 12 him in any way and he said, no, this was a matter that 13 he could take care of himself, and so that was my 14 reason for wanting him to stay a little bit longer. 15 Q. You do admit those things are inconsistent with 16 one another, don't you, your handwritten note and the 17 typewritten note you typed three weeks later? 18 A. I guess they are. 19 Q. Is what you're telling me is he was worried 20 about his wife and his son getting together on some 21 deal about his money, is that consistent with the 22 entries you reviewed in the medical records about how 23 happy this man was to see them when they visited him 24 and how sad he was the next day when they weren't 25 there? Is that consistent? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1175 1 A. I didn't write those notes. 2 Q. Do you have any reason to doubt the veracity, 3 the truth of those notes written by the people at 4 Castle where you worked? 5 A. They may not have been talking to him about the 6 same things that I was talking to him about. 7 Q. Does it make sense to you, Dr. Neal, that if 8 this man thought that his wife and his son were in 9 cahoots to get his money, that when they came to visit 10 him, he would just be pleased as punch, and when they 11 left the next day, he would be sad? Does that make 12 any sense? 13 A. No, he told me that he cared very much about 14 his son and cared very much about his wife. He just 15 disagreed with what was happening. 16 Q. Okay. Incidentally, are you familiar with the 17 two references from the records I was just talking 18 about, one written by one person saying what a good 19 visit he had with his family, and another by another 20 person saying, the next day, how much he missed them? 21 A. Yes, I am. 22 Q. Okay, sir. Dr. Neal, when you gave this 23 Inderal to help with the side effects for Prozac -- 24 A. Yes. 25 Q. -- you gave it QID, didn't you? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1176 1 A. That's correct. 2 Q. Would you please explain to these ladies and 3 gentlemen what it means when you prescribe a medicine 4 QID? 5 A. That's four times a day. 6 Q. Four times a day, okay. Now, he didn't get -- 7 he got it four times every other day except March 3rd, 8 didn't he? 9 THE COURT: You better rephrase that question. 10 MR. VICKERY: I did do it very badly, Your 11 Honor. I will rephrase it. Here's page 43 of the 12 records. 13 THE COURT: Forty-three of what? 14 MR. VICKERY: Of the Castle Medical Records. 15 It's Bates number. It's the number -- what's the 16 exhibit number? It's 164, Your Honor. 17 MR. SEE: I beg your pardon, would you say the 18 page number again? 19 MR. VICKERY: Page 43. 20 Q. Is this a medication record that's kept at 21 Castle that shows what medications the patients get? 22 A. That looks like one, yes. 23 Q. And it starts here on the 24th of February when 24 he comes in, and goes through the 3rd of March, when 25 he's discharged, correct? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1177 1 A. Correct. 2 Q. And we see here he's on Xanax on the 25th, and 3 he gets three doses, correct? 4 A. Correct. 5 Q. And then we see down here that he has some on 6 the 26th and 27th, and no more after that, right? 7 A. Correct. 8 Q. And we see here that he's on Inderal and he 9 gets four doses every day on the 26th, 27th, 28th, 10 what is that? I'm confused by that one. Can you help 11 me? Oh, that would be the first. It's the month of 12 February, that's why I'm confused. 13 March the 1st, he gets it four times. March 14 the 2nd, he gets it four times. But the next day, the 15 very next day, the day that he killed his wife and 16 himself, he only got one dose, didn't he? 17 A. Well, that's because he left. He left in the 18 morning. He only got one dose before leaving. 19 Q. And certainly, you didn't tell him that he 20 needed to take this to ward off akathisia or 21 suicidality, did you, sir? 22 A. I didn't tell him he had to take it for that, 23 no. 24 Q. And the reason that you didn't tell him that is 25 because Eli Lilly Company never told you that, did PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1178 1 they? They never told you that it could cause this, 2 and they never told you that you needed to take these 3 measures; isn't that true, Dr. Neal? 4 A. They didn't tell me that, no. 5 Q. And Mr. See asked you, when he got up here, 6 about whether you would put any stock in the 7 information that I tried to provide to you and sending 8 you stuff from Dr. Healy. That's a far cry different 9 thing to get information from a lawyer and information 10 from a witness that lawyers hired than it is to get 11 information from the company itself, isn't it, sir? 12 A. I'm not sure I really understand what you just 13 said. 14 Q. What I mean to say is if Eli Lilly told you 15 this, if Eli Lilly said, there's a problem, Doctor, 16 you need to do something about it, you would have been 17 much more careful, wouldn't you? 18 A. I guess. 19 Q. Wouldn't you take heed of whatever warning Eli 20 Lilly gave you about this medicine? 21 A. I would take heed of any warning they gave me, 22 yes. 23 Q. If they gave you a big bold warning, whatever 24 it might say, you would look at it and you would heed 25 it, wouldn't you? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1179 1 A. Yes, I would. 2 MR. VICKERY: Thank you, Dr. Neal. 3 RECROSS-EXAMINATION 4 BY MR. SEE: 5 Q. Just a couple of very short things, Dr. Neal. 6 I just want to ask you this: Before your deposition 7 was taken in this case, had you and I met? 8 A. No, we had not. 9 Q. And from the time of your deposition in this 10 case until today, had you and I either met or spoken? 11 A. No, we have not. 12 Q. Mr. Vickery came to your office, however, and 13 met with you, didn't he? 14 A. Yes. 15 MR. SEE: And, Your Honor, if I may approach, I 16 would just like to hand the witness the Castle Medical 17 records, which is in evidence at 164. 18 Q. And I want to specifically ask a question where 19 it says, "discharge medications." Do you see that? 20 A. Yes, I do. 21 Q. All right. And those are the medications that 22 the patient actually leaves the hospital with; isn't 23 that right? 24 A. That's correct, yes. 25 Q. The patient actually has medication they take PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1180 1 away from the hospital? 2 A. Either that or they are given a prescription 3 that they fill at a pharmacy. 4 Q. And the medications that Mr. Forsyth had for 5 his discharge were Prozac for his depression, and 6 Inderal for his anxiety, and Deseyrel to help him 7 sleep, right? 8 A. That's correct. 9 Q. And that's what he was to take away from the 10 hospital? 11 A. That's correct. 12 MR. SEE: That's all. Thank you, sir. 13 THE COURT: Any further questions? 14 MR. VICKERY: No. Thank you, Your Honor. 15 THE COURT: Thank you. You're excused. 16 Let's take a 15-minute break at this point. 17 Please be back at a quarter to three. I want to meet 18 with counsel. 19 (Whereupon, the following proceedings were had 20 in open court out of the presence of the jury.) 21 THE COURT: Now, who are you calling next, 22 Mr. Vickery? 23 MR. VICKERY: We're calling Dr. Riggs Roberts. 24 THE COURT: And then who after him? 25 MR. VICKERY: Mr. See has advised me, given his PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1181 1 examination, it's probably going to take the rest of 2 the day with Dr. Roberts. 3 THE COURT: All right. We'll take a 15-minute 4 break. 5 MR. VICKERY: Thank you, Judge. 6 (Whereupon, a recess was taken at 2:35 p.m.) 7 MR. VICKERY: We found Ms. Smith. That's not 8 Dr. Riggs Roberts. We found Ms. Smith. We can get 9 her in and off. She's from the Mainland. 10 THE COURT: All right. 11 THE CLERK: Please rise and raise your right 12 hand. 13 DOROTHY SMITH, 14 called as a witness on behalf of the Plaintiffs, after 15 having been first duly sworn to tell the truth, the 16 whole truth, and nothing but the truth, was examined 17 and testified as follows: 18 THE CLERK: Please be seated. Please state 19 your name and spell your last name. 20 THE WITNESS: Dorothy Smith, S-M-I-T-H. 21 DIRECT EXAMINATION 22 BY MS. BARTH: 23 Q. Good afternoon, Mrs. Smith. 24 A. Hi. 25 Q. I've talked to you before and met with you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1182 1 before. I'm Karen Barth, one of the attorneys for the 2 plaintiffs. You remember that, right? 3 A. Um-hum. 4 Q. Thanks for coming today. 5 A. Sure. 6 Q. You came from California, right? 7 A. Um-hum. 8 Q. How long have you lived in California? 9 A. All my life, 78 years. 10 Q. And are you retired? 11 A. No. I'm a travel agent. 12 Q. And was this your main business throughout your 13 life or did you have another career? 14 A. Several other careers. Mostly early childhood 15 development. 16 Q. And I understand your husband passed away? 17 A. Yes, he did. In 1981. 18 Q. You were close friends with the Forsyths for a 19 very long time, weren't you? 20 A. Yes. 21 Q. How long did you know them? Do you remember? 22 A. Since 1970. 23 Q. Let me think about my math. 24 A. That's almost 30 years. 25 Q. Okay. Thank you. How did you meet? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1183 1 A. My husband and I first met Bill when he joined 2 the local Rotary club, and then as it turned out -- 3 well, June and Bill and my husband and I were -- 4 served on the social committee, the fun committee of 5 the club and arranged for a lot of outings and 6 different events, so we were together very often. 7 Q. Did you do things socially with Bill and June 8 Forsyth when you were living in California and so were 9 they? 10 A. Mostly through the Rotary club, and there was 11 social stuff all the time. 12 Q. You knew them for many years. Did you meet 13 Billy Forsyth and Susan Forsyth over the years? 14 A. Yes. Kind of was an extra parent for them. I 15 mean, we were socially together so much, and one of 16 the main social events that I recall for many years 17 was a Rotary function which we took over a whole 18 resort in Palm Desert in California and for a long 19 weekend and we took it over so that everybody was 20 there was from the club and so everybody was 21 everybody's parents, kind of. Sure, I knew Sue and 22 Bill for many years. 23 Q. What kind of other activities did you do with 24 Bill and June Forsyth? 25 A. Some potluck dinners. Some -- I don't know. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1184 1 Mostly the events arised out of the social event of 2 Rotary. 3 Q. Did you ever travel with the Forsyths? 4 A. Very often. 5 Q. What kind of trips did you take? 6 A. The first trip was with -- June only came with 7 us in 1979 to Maui, and then in '83 we went to Fiji. 8 June went not Bill. Bill was always invited, but 9 always had business to take care of and stuff and said 10 fine, go. 11 Then in '85 we went to New Zealand, Australia, 12 June again only with us, and we came home and went to 13 their home in Palm Dessert, I don't know, a couple 14 weeks later, I guess, and we were all sharing our 15 pictures and Bill said -- well, we said, "Yeah, you 16 should have gone. We had such a good time." And he 17 said, "Well, if you would ever go to the Orient, maybe 18 I'd go." And we said, "Fine. That's where we're 19 going next." And we did. 20 We told him the whole time he was on probation 21 of whether we would allow him to be in our group. He 22 really had to cut the mustard, and he went there with 23 us. That was -- and that was '87 and, you know, the 24 normal Southeast Asian Orient; Bangkok, Singapore, 25 Bali, and Hong Kong. And then in '89 we went PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1185 1 together, Bill again, in South America and that was 2 our last trip together. 3 Q. Sounds like these are some very close, long 4 time friends? 5 A. Right. 6 Q. Can you tell the jury here, what kind of a 7 person Bill Forsyth is? 8 A. He was always fun and funny, enjoyed life. He 9 was outgoing. Very exceptionally friendly to somebody 10 he just would meet. He would take them on as a friend 11 kind of. Just very much in that nature. I don't know 12 what else to say. 13 Q. Okay. How about June, can you describe her? 14 A. June was not quite as outgoing. She was a 15 little more introspective than Bill was. Bill was 16 always right out there, but when you got to know June, 17 you just felt like a soul mate with her. 18 Q. Did you remain in contact with Bill and June 19 Forsyth when they moved to Maui in 1990? 20 A. Yes, we did. 21 Q. When is the last time you saw Bill and June 22 Forsyth? 23 A. Early in December of 1992. 24 Q. And I understand you took a trip to Maui to 25 visit them? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1186 1 A. Yes. We -- they had said, "Well, whenever 2 you're in Maui, come stay with us." And so we called 3 and made the arrangements and we were there. 4 Q. There's been testimony earlier this week that 5 Bill and June Forsyth went through some marital 6 problems, they had counseling, and then they 7 reconciled. They had some counseling in Los Angeles 8 and then they came back to Maui. They actually 9 returned on December 7, 1992. Do you remember when 10 your trip was? 11 A. That was exactly when, December 7th. I was 12 going to say the 6th or 7th to 10th, something in 13 there. It was about four or five days we were with 14 them. And they had, indeed, come back. In fact, June 15 had called ahead and said, look, we're coming back 16 from the Mainland, and she said go to our 17 daughter-in-law's and get the key, and move in, which 18 we did, and they came a few minutes later. 19 Q. Did you have a good time? 20 A. Yes. 21 Q. What kind of activities did you do? 22 A. Well, the Maui weather just didn't cooperate 23 very well. So instead of being on the beach a lot, 24 and because we had so much to catch up on together, 25 when -- after they moved to Maui, we didn't see them PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1187 1 as often, of course, and so it just turned out that 2 we'd get up in the morning and sit around that dining 3 room table and talk and talk and talk until we were 4 blue in the face, and we loved it. 5 They said, go to the beach, and we said clear 6 up the weather. And we just enjoyed our long-term 7 friendship and all the things that's happening with 8 their kids and our kids and so forth. And then Bill, 9 at one point, said -- he said, well, we talk so much. 10 And he said, well, nobody knows us better than you 11 guys do because we've all been together so much on so 12 many trips. 13 Q. Do you remember any conversations in particular 14 you had during that time? 15 A. Oh, yes, several. They were delighted to see 16 us. We felt very comfortable and at home, even helped 17 clean up the house because it had been closed up while 18 they were gone, and I remember that the -- around the 19 table, as we talked, it sounded as though Bill was 20 kind of retired, but kind of not. He kind of wanted 21 something more. I remember him saying that he had 22 just rented a small office down in Kaanapali because 23 even though he had a gorgeous office in his home, you 24 know, there's something about going to an office in 25 the daytime and so forth. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1188 1 So he was talking about that and both of them 2 were kind of searching for another career, kind of. I 3 had always known him in the car rental business and he 4 was just looking for something else and they talked 5 about the possibilities of things that they might 6 enjoy doing and it was like they were searching for a 7 new -- they didn't really want to retire totally. 8 Q. What was your impression of the two of them as 9 a couple at that time, in December of 1992? 10 A. No different than I had ever seen it. It 11 seemed like they were just the same as they had ever 12 been. 13 Q. They were getting along fine? 14 A. Yes, um-hum. 15 Q. Did you make any future plans before you left? 16 A. Yes. We had planned to go to the Greek Islands 17 the next summer, spring or summer, and I remember that 18 both of them said, well, now, we've got to hold off on 19 the exact date, because our kids, meaning Bill, young 20 Bill and Kim, were having another baby, and they, of 21 course -- it was just obvious that they just doted on 22 those grandchildren and they were going to be there 23 for that for sure and we would leave together when 24 they figured out the date. 25 Q. Was Bill Forsyth going to go with you this PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1189 1 time? 2 A. Oh, yeah. Sure. Oh, yes. 3 Q. Incidentally, did you see Billy's grandkids 4 when you were there? 5 A. Yes. Yes, we did. Bill on one day -- young 6 Bill was off, but his wife was there and the kids were 7 there, and I guess, it was just a regular thing that 8 Bill and June did every week because they said, we're 9 going -- I remember Bill saying, "We're going over to 10 see the kids today. You're welcome to come or not. 11 Do as you please." And I said, "Well, of course." 12 So we went over there -- of course, it was 13 great seeing all of them, but the biggest memory I 14 have is the way their house is situated, of the kids 15 all running around and Bill, Sr. just chasing them and 16 they are all shrieking at the top of their lungs, you 17 know how kids will do, and he was as big as any of the 18 kids. I mean, he was just like one of the kids. Just 19 both June and Bill totally loved those grandchildren. 20 Q. When did you find out that Bill and June died 21 on March 3rd, 1993? 22 A. Probably just a day or two later, and to be 23 perfectly honest with you, I was so completely wiped 24 out, denial. I just couldn't believe this. And I 25 can't even remember, to tell you the truth, who told PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1190 1 me, the news was so shocking. It didn't make sense. 2 Q. I have only one more question for you. Knowing 3 Bill Forsyth for 30 years, as you said you have, were 4 his actions on March 3, 1993 consistent with his 5 behavior before that? 6 A. Not in any way that I would ever -- could ever 7 imagine, no. 8 MS. BARTH: Thank you, Mrs. Smith. 9 THE WITNESS: Thank you. 10 MR. BURKE: Wait a minute, Mrs. Smith. 11 THE WITNESS: Oh, I'm sorry. 12 CROSS-EXAMINATION 13 BY MR. BURKE: 14 Q. Good afternoon, Mrs. Smith. 15 A. Good afternoon. 16 Q. I'm Ed Burke, one the attorneys for Eli Lilly. 17 A. Um-hum. 18 Q. As I understand you also had some contact at 19 least with Bill Forsyth in August of 1992? 20 A. August of '92? 21 Q. I'll tell you why I'm asking you that. 22 A. Yeah, go ahead. 23 Q. Do you remember filling in a questionnaire -- 24 A. Yes, I do. 25 Q. -- after it was sent to you -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1191 1 A. Yes. 2 Q. -- by the surviving children? 3 A. Yes, I do. 4 Q. And you sent this back to them? 5 A. Um-hum. 6 Q. And there's a question here, number five, just 7 to refresh your memory, "How often did you see Bill 8 when he was living?" And you put, "Occasionally." 9 Specific time periods, and you put here August of '92 10 and then you also put December 7 through 10 of 1992. 11 A. I do remember that now. 12 Q. Does that refresh your memory? 13 A. It was -- we were staying down in another part 14 of the Island and we did get together with them. 15 Q. As I understand in August of 1992, Bill Forsyth 16 was in the Los Angeles area. 17 A. I do not remember seeing him in the L.A. area 18 then. 19 Q. Well, did you have an understanding that the 20 Forsyths had been separated -- 21 A. No, I did not. 22 Q. -- during the summer of 1992? 23 A. No, I did not. 24 Q. You never even heard that? 25 A. Never heard that. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1192 1 Q. And then is this correct on your questionnaire 2 that you did visit with them in Maui and stayed in 3 their house precisely from December 7 through the 10th 4 of 1992? 5 A. I think that is correct. 6 Q. Now, we have the records of Bill's 7 psychiatrist, Dr. Riggs Roberts, who I believe is 8 going to testify next, that he started seeing Bill for 9 severe depression on December the 16th. That would 10 have been just six days -- 11 A. After. 12 Q. -- after you were with him. Did you observe 13 this depression? 14 A. I didn't observe any signs of what I would ever 15 label as depression, no. I didn't see anything out of 16 the ordinary. 17 Q. Whether or not you were aware that they had 18 been separated during the summer and fall of 1992, you 19 were aware that the Forsyths, Bill and June, were 20 having some marital difficulties? 21 A. I had heard a rumor of that, but I could not 22 ever testify to that because I did not see any signs 23 of it. 24 Q. They didn't tell you that they -- 25 A. No, they did not -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1193 1 Q. Excuse me. One at a time. Did they tell you 2 that they were undergoing counseling, marital 3 counseling? 4 A. No. They told me of another kind of 5 counseling. 6 Q. What was that? 7 A. They told me that they had been in some 8 counseling. This was sitting around the table, all 9 these breakfasts, that they had been in some 10 counseling and it had to do with -- these are Bill's 11 words or the flavor of his words at least, that they 12 had been in some counseling to learn better how to let 13 go of their children. And I remember saying, gee, 14 join the group. All parents have to go through this. 15 This is a normal part of growing up and so forth. 16 Q. This was to sort of learn not to be so 17 controlling -- 18 A. Yes, um-hum. 19 Q. -- over the activities of their children? 20 A. Um-hum. I assume that's what he meant, and I 21 was surprised to have him be that open about it 22 because that was -- he usually wouldn't have said 23 something like that, and I remember saying, whatever 24 you're doing, it's great. Keep it up. 25 Q. Were you aware that June Forsyth was very PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1194 1 involved in religion? 2 A. Yes, I was. 3 Q. Were you involved in that same religious 4 pursuit? 5 A. No, I was not. But I was aware of her 6 involvement in it, yes. 7 Q. Were you also similarly aware that Bill, Jr. 8 and his wife Kim were very involved with their church? 9 A. Yes. Yes, and we even went to church with them 10 one day. Not that trip, but earlier. 11 Q. And were you also involved (sic) that Bill, Sr. 12 was not as involved -- 13 A. That's true. 14 Q. -- involved with the religion? 15 A. I always felt that way. 16 Q. Did you feel that when you were with the 17 Forsyths in December of 1992 -- let me ask you this: 18 The Bill that you had known in California -- 19 A. Um-hum. 20 Q. -- had very definite opinions, did he not? 21 A. Yes. Yes. 22 Q. Now, did you find that when you were with him 23 in December of 1992, that Bill was not as assertive 24 and opinionated as he had been before? 25 A. Yes. I did feel that and I felt it was good. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1195 1 Q. Did you feel that there was a certain change, 2 therefore, in his personality at that time? 3 A. I don't know that I'd say that. I felt like he 4 was more open than I had seen him. The fact that he 5 told us that -- that they told us that they had been 6 in this counseling. 7 Q. Did you feel that Bill had some frustration 8 with his current retired life? 9 A. Yes. I felt like -- I don't know if it was 10 frustration, but he was searching or looking for some 11 kind of work to be doing. 12 Q. But from those three days or so that you were 13 with the Forsyths, you did not become aware that Bill 14 Forsyth was severely depressed? 15 A. Definitely not. 16 MR. BURKE: Thank you very much. 17 MS. BARTH: I have nothing further, Your Honor. 18 THE COURT: Thank you. You're excused. 19 MR. VICKERY: Your Honor, we call Dr. Riggs 20 Roberts. 21 THE CLERK: Please raise your right hand. 22 RIGGS ROBERTS, Ph.D., 23 called as a witness on behalf of the Plaintiffs, after 24 having been first duly sworn to tell the truth, the 25 whole truth, and nothing but the truth, was examined PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1196 1 and testified as follows: 2 THE CLERK: Please be seated. Please state 3 your name and spell your last name. 4 THE WITNESS: My name is Riggs Roberts. My 5 last name is spelled R-O-B-E-R-T-S. 6 DIRECT EXAMINATION 7 BY MR. VICKERY: 8 Q. Dr. Roberts, the last person in that chair was 9 a little short lady and I put it way up high for her. 10 You may want to reach down to your right -- is that 11 better? 12 A. I don't know. 13 Q. I bet you played basketball in college. 14 A. I did. 15 Q. Dr. Roberts, you're from Maui, are you not? 16 A. Yes, I am. 17 Q. And what kind of a doctor are you, sir? 18 A. I'm a psychiatrist. 19 Q. And did you begin in December of 1992 to see 20 Mr. Bill Forsyth? 21 A. Yes. 22 Q. And did you see him from December of '92 up 23 until February 22nd? 24 A. Yes, I did. 25 Q. Do you recall how it was that he came to be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1197 1 your patient in the first place? 2 A. I do not. 3 Q. Okay, sir. What was your diagnosis with 4 respect to this man? 5 A. I would have had to categorize him as suffering 6 an affective disorder of anxiety and depression. 7 Q. Was it like a severe major depression? 8 A. I would suggest that it would have been 9 classified as a major depressive disorder or major 10 affective illness, yes. 11 Q. In the categories of major depressive 12 disorders, are there variations, mild to moderate and 13 severe? 14 A. Yes, there are. 15 Q. And his was which one? 16 A. I would have had to classify him as severe. 17 Q. I thought the severe guys went to the 18 hospitals? 19 A. Not always. 20 Q. Okay. Now, you diagnose depression based on a 21 number of different criteria, do you not? 22 A. Right. 23 Q. And, in fact, there are eight or nine of them, 24 aren't there? 25 A. Correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1198 1 Q. And you've taught me that you learned a method 2 in medical school to sort of tick them off. 3 A. Right. 4 Q. Would you teach us how you do that? 5 A. Well, there's an acronym, SIG E CAPS, which is 6 S-I-G-E-C-A-P-S, which would stand for evaluating 7 them, the sleep, interests, guilt or thought process, 8 energy level, concentration, appetite, psychomotor or 9 energy level, and then suicidality. 10 In addition, then there are thought processes 11 of hopeless, helpless, worthless, guilt, no fun 12 anymore, and nihilism, which would imply that the 13 world had no meaning any longer in the person's life. 14 So you can use that as a quick method rather than 15 looking it up in the book each time to try and 16 evaluate a person's state of mind. 17 Q. Now, Dr. Roberts, did he -- during the period 18 that you saw him from mid December '92 until 19 February 22nd, did he get better or worse or remain 20 about the same? 21 A. At first it seemed as though he got a little 22 bit worse. We were treating him with nortriptyline, 23 Pamelor, and apparently that did not give a quick and 24 early relief of symptoms. It was, as a result of 25 sticking with that medicine for approximately six to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1199 1 eight weeks, that then we elected to change medicine 2 when the relief of symptoms that we desired were not 3 forthcoming. 4 Q. One of the things that you saw, to some degree, 5 in visiting with him was anhedonia. Could you tell us 6 what that is? 7 A. Well, a loss of interest in the usual pleasures 8 or an inability to have fun any longer in a person's 9 life. 10 Q. Now, we've just heard, just now, a lady testify 11 who said one week before he came to you the first 12 time, she remembers him chasing the grandkids around. 13 Is it possible that he did that some of the time, 14 enjoyed the grandkids some of the time, and then some 15 of the time he wasn't? 16 A. Apparently so. 17 Q. Okay. And is the same true with respect to all 18 of the other symptoms or diagnosis criteria of suicide 19 that you found? 20 A. I would have to say that yes. I think 21 psychiatry is in a very challenging position because 22 we're getting to know how the mind works. We're 23 beginning to understand it more clearly and able to 24 describe it more effectively, and we're in a 25 transition in our field where symptom clusters help us PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1200 1 understand illness as compared to -- as compared to, 2 say, a discrete category of fact that can be 3 replicated at each -- within each patient. 4 I think it's -- the change in the field is the 5 movement into the experience of knowing symptom 6 clusters and how to treat them as compared to discrete 7 elements of fact. So it is not entirely out of the 8 realm of possibility to see changes in symptom 9 clusters within short periods of time. 10 Q. Dr. Roberts, I have to confess to you that went 11 right over my head. 12 A. I'm terribly sorry. 13 Q. That's okay. I'll keep trying. Let me ask it 14 real simple. Is it possible that with regard to these 15 various things that you look at, some days will be 16 better and some days will be worse? 17 A. Yes, that's possible. 18 Q. Now, of all of the symptoms that you look at or 19 the diagnostic criteria to diagnose depression, 20 there's one that you never saw at all; isn't that 21 true, sir? 22 A. I assume that you're referring to suicidality? 23 Q. I am, indeed. Is that true? 24 A. I would have to agree that that was not 25 something that Mr. Forsyth spoke of. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1201 1 Q. Did you have weekly meetings with him? 2 A. Yes, for the most part. 3 Q. And did you -- 4 A. Through the first part of February. 5 Q. Did you typically spend an hour-long session or 6 50 minutes or something like that? 7 A. Yes. 8 Q. And during that session, did you engage in 9 traditional psychotherapy in addition to the 10 medication therapy that you had for him? 11 A. Well, your word traditional is challenging. I 12 spend a tremendous amount of time trying to train 13 patients. I'm a patient trainer as much as I am 14 someone that would be involved in traditional 15 psychotherapy, so to speak. 16 Q. Okay. You and I have talked about this and 17 you've tried to educate me, and I would appreciate it 18 if you would try to educate the jury. What were you 19 training them about? 20 A. Ever since I was in training, I've grown to 21 respect the medicines that we're using and the impact 22 that they have on the people that consume them, and 23 therefore, every patient that I become involved with 24 gets trained on how to evaluate themselves and how to 25 evaluate the impact of the medicine upon their person PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1202 1 and how then to report back and give feedback 2 properly. 3 Q. Okay. I mean, that really is sort of your 4 principal focus, isn't it, to help them -- 5 A. Patient training and to turn the responsibility 6 over to the patient, if you can, to be monitoring 7 themselves, is the method of helping people get 8 better. 9 Q. And do you tell them what to look for in terms 10 of what kind of effects, adverse effects or good 11 effects, from a medicine that you would expect? 12 A. I make every effort to. 13 Q. Do you do that in each and every session? 14 A. No, but certainly at the beginning of the work. 15 Early on in the sessions, it would be my usual habit, 16 which is to, within the first three to four to five 17 sessions, by that time, we will have gone through most 18 of the initial medication training, but then each 19 session there would be a period of time where I would 20 want to review with them how they're doing and receive 21 feedback about the impact that the medicine was 22 having. 23 Q. Now, Dr. Roberts, do you, as a physician, are 24 you dependent on the information that you receive from 25 the maker of the drug, whichever drug it might be? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1203 1 A. I would have to say no. I would -- that, in 2 fact, my medical school taught me a very important 3 lesson which was not to depend upon the maker of the 4 drug for my information. 5 Q. Not at all? You don't depend on what they give 6 you at all? 7 A. Well, certainly, I have noticed, unfortunately, 8 and I guess that as I grow more mature in my practice 9 and time consumed, that I have noticed myself 10 depending more and more upon the manufacturer for 11 information, but my medical school, which was Harvard 12 Medical School, taught a very important lesson and 13 that was that it was me and my individual research and 14 learning that I was to rely upon rather than the 15 manufacturer. That's what they taught me. I'm 16 telling you what they taught me. 17 Q. Sure. 18 A. And that's how I practiced, but unfortunately, 19 I have seen that I've depended more and more upon 20 information from other sources rather than the 21 academic literatures. 22 Q. Do people call on you from the drug companies 23 and come out and see you and tell you about their 24 medicines? 25 A. All the time. That's a common practice. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1204 1 Q. Do they provide you information? 2 A. Yes. 3 Q. They answer your questions? 4 A. That's correct. 5 Q. Now, we had this morning -- 6 A. Excuse me. I've got to interrupt there, I'm 7 sorry. I'm usually answering their questions. I 8 usually don't depend upon the drug representative to 9 answer my questions. They do provide me with 10 materials. 11 Q. We heard testimony this morning from a lady 12 named Amy Lee, who told us that from September of '92 13 until February of '93, right when you were seeing 14 Mr. Forsyth, that she was your drug rep for Prozac. 15 Do you remember her? 16 A. I do remember a woman who followed Noel Evans. 17 I remember Noel Evans. I don't remember any of the 18 Prozac drug representatives after him. I don't 19 remember them personally. I might recognize them if I 20 saw them again, but I don't remember their names. 21 They did not have as powerful an impact upon me. 22 Q. She told us that she has no recollection at all 23 of providing you with any information about Prozac and 24 any danger of suicide or violence of any type or 25 answering any question of yours along that regard. Is PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1205 1 that consistent with your own memory about that? 2 A. That would be consistent with my own memory. 3 Q. Okay. Dr. Neal, (sic) as part of your process 4 of training your patients, when drug companies give 5 pamphlets or information for you, in turn, to hand out 6 to your patients, do you always have them right there 7 in your office for the patient? 8 A. I would have to take exception to the word 9 always. I would say frequently I would have those 10 pamphlets available. I would have to make an 11 independent judgment, depending upon the pamphlet and 12 depending upon the patient. Most often I'm spending 13 my time training the patient and making contact with 14 that person as an individual, trying to bring them up 15 to snuff and to understanding what they are up against 16 in the form of their illness. 17 Q. Okay. Just a couple of other things. I'm 18 going to try to give Mr. See more time than I've taken 19 and see if we can finish today. 20 Did you -- have you reviewed your records, 21 first of all, before coming today? 22 A. Yes. 23 Q. And did you, after January the 18th, when 24 there's an entry about religion, after that date, was 25 there ever any other discussion of religion or PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1206 1 religious pursuits? 2 A. I believe that there were other comments and 3 other discussions. There were probably -- I'd have to 4 look at the notes again to know what the dates were. 5 You're asking me a very specific question that I'm 6 afraid my brain would have to look at the papers to 7 know how to answer. 8 Q. I can provide it if I need to, but I'll 9 represent to you, sir, that the last entry in your 10 records about anything about religion was on the 18th 11 of January, in which you wrote that he told you that 12 he was fighting God back. Will you accept my 13 representation of that? 14 A. That may be true. I'll accept that if that's 15 the last entry. I recall that entry in my notes, yes. 16 Q. Now, did you get into the subject of religion 17 with him, other than him sharing a few thoughts with 18 you? 19 A. Not in great detail. 20 Q. And can you put that statement about fighting 21 God back in context for us? 22 A. I think that in -- at this stage, it would be 23 too difficult for me to make sense out of more than 24 just how it's represented in the notes. I think for 25 me to speak at greater length would be very PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1207 1 challenging. 2 Q. Okay. Let me see if this jogs you a little bit 3 or at least puts it in context. We have seen from 4 June's calendars, the jury has seen -- I believe the 5 date was the 24th or the 26th, about a week after he 6 told you he was fighting God back, we've seen her in 7 her handwriting wrote, "Bill's spiritual birthday." 8 Did she ever have a discussion with you -- I 9 mean, did he ever have a discussion with you after 10 that date about having a change in his religious 11 persuasion? 12 A. I know of this through information that I have 13 gained outside of the questioning of Bill Forsyth. I 14 know of this through all of the discussion that has 15 occurred after this -- after his death. 16 Q. Okay. 17 A. I've learned of these things subsequent to my 18 interactions with him. I feel I don't have solid 19 recollection to that -- there's so much that goes on 20 around this subject matter that it's just very 21 challenging for me to answer in memory. We've got to 22 depend a little bit here on my notes, because to go in 23 memory back to 1992, 1993 -- you're talking about 24 March of 1993. 25 Q. I know it's a long way. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1208 1 A. Okay. I could share with you that by April, my 2 whole experience -- in 1993, that by April my whole 3 experience of God had changed myself. So, you know, 4 that's just -- it's going to start mooshing together 5 in my brain at that point because the very real 6 experience of coming to know God is one that causes 7 some brain mooshing. 8 Q. I understand. Dr. Roberts, you saw Bill 9 Forsyth every week from mid December until their 10 death, which I think, with one exception. Did he have 11 a bad marriage? 12 A. He was struggling in his marriage. 13 Q. Had he been to therapy with Dr. Tom Brady, he 14 and his wife jointly, before they came to you? 15 A. You've mentioned that name. I was not familiar 16 with the name, but yes, there was counseling that 17 occurred in Los Angeles before he came to see me that 18 was described as being very successful. 19 Q. I believe the word you used in your records was 20 unbelievable, wasn't it? 21 A. That was his word, yes. 22 Q. Okay, sir. Let's go forward quickly to 23 February the 22nd. You decided to change his 24 medication, his antidepressant, to Prozac? 25 A. Correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1209 1 Q. And in deciding to do that, did you hope that 2 it would help, obviously? 3 A. Obviously. 4 Q. Did you ever get the chance to see him, 5 physically see him under the influence of Prozac? 6 A. No, I did not. 7 Q. But you had a conversation with him on the next 8 day after he had been taking it for one day, right? 9 A. That's correct. 10 Q. And would you just tell us in your own words 11 what you recall of that conversation? 12 A. That at that stage of my understanding of the 13 medicine, he had had what was familiar to me as a very 14 powerful Prozac response. He was a Prozac responder, 15 and so the content of that conversation had to do with 16 how excited he was about finally receiving relief. 17 Q. Now, Dr. Roberts, did you have a little catch 18 phrase that you used to describe that phenomenon? 19 A. Yes, I do. And I call people who have that 20 kind of response, I've seen, actually quite a few of 21 them, I call them Prozac miracles. 22 Q. And they have them that quickly; is that true? 23 A. It's an amazing phenomenon. 24 Q. Now, what happened the very next day? 25 A. Well, I received a telephone call from his son PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1210 1 that suggested that Mr. Forsyth be hospitalized. 2 Q. Had you ever considered hospitalization for him 3 prior to that time? 4 A. I'm sure it had passed through my mind, I don't 5 doubt, but while I thought of it several times, I had 6 agreed that it was worth it to continue to work as an 7 outpatient. He could reassure me in that manner that 8 I needed to be reassured, so that I would continue 9 accepting that risk for him. 10 Q. And when you first got this call, you couldn't 11 believe it, could you? 12 A. That was my initial response. I needed to 13 speak with Mr. Forsyth himself in order to understand 14 better what was happening because I was -- after the 15 Prozac response, I didn't feel that it would have been 16 necessary. 17 Q. After talking to him, what was your feeling? 18 A. I didn't change my feeling. I didn't think it 19 was necessary still, but I was willing to go along 20 with it because the family was so concerned that -- 21 his son was so concerned. Mr. Forsyth himself was 22 confused about his need for hospitalization, as I 23 recollect, and so it was more trusting that if that 24 was the opinion, then we should go with it. 25 Q. And did you make the arrangements for him to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1211 1 come to Castle? 2 A. Yes, I made the call at that time. 3 Q. Okay. One more thing, Dr. Roberts, you 4 mentioned that you never did see any signs of 5 suicidality or violence in this man. Did you look 6 carefully for it in view of his depression? 7 A. Well, I trust that I would have looked 8 carefully to satisfy myself. I cannot promise that 9 I'm a perfect physician, but I do feel as though I 10 would have made every effort to be sure that he was 11 safe. 12 Q. And, indeed, you saw him twice in the month of 13 February in which you had an opportunity to observe 14 that and to look for it, didn't you? 15 A. That's correct. 16 Q. And the last time was on February the 22nd, 17 correct, sir? 18 A. Correct. 19 Q. And as of that date, at least, you being a 20 Harvard-trained psychiatrist, who was looking for it, 21 never saw a hint of it, did you? 22 A. I disagree. Never saw a hint of it, yes, but I 23 would say that I felt that the risk of keeping him out 24 of the hospital was reasonable. Yes, that's correct. 25 Q. Well, wait a minute now. Are you saying now PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1212 1 that you saw a hint of suicide or suicidality with 2 this man? 3 A. Well, again, you yourself have pointed out, 4 sir, that you get to see a change in a person's 5 behavior in short periods of time and so we always 6 have to keep in our minds that there's a risk of 7 suicide in a person who has suffered depression and 8 suffered confusion. 9 Q. Okay. I agree with you totally. I'm just 10 talking about insofar as what we know, both from your 11 notations in your records and from your sworn 12 deposition testimony in this case, you never thought 13 this man was suicidal or violent or homicidal as of 14 all the time you saw him; is that correct? 15 A. True. And subsequently, I have come to 16 understand that there may be other information that 17 would allow us to know that. There may be things that 18 I did not know, at that time, spoken by him, so I 19 guess that at this stage you're asking me again in the 20 moosh, that is of my mind, that no, I did not see the 21 hints that would have suggested that I needed to be 22 concerned about his suicide ideation. 23 I, in fact, tried to suggest that he did not 24 need the hospital. I tried to suggest that to him, to 25 him and his family because I felt that he had received PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1213 1 benefit. He himself was confused at the time, and 2 when I made that evaluation on the phone, it was 3 because I felt the better part of my decision making 4 at that time was to go with their impression based 5 upon, in the back of my mind, I'm always concerned, 6 especially in a later-aged gentleman that's suffering 7 depression, for their potential to commit suicide. 8 Better to go ahead and allow him. I even made a note 9 to myself in there that I read. 10 Q. That said money was no object. 11 A. Since that was not the problem at this time, 12 according to his statement to me on the phone, I was 13 concerned, but you don't have insurance. You want to 14 go over there and go into the hospital? He said, 15 "That's not the problem, Doctor." And so well, all 16 right. So I don't have to worry about that side of 17 your equation, sir, and I don't have to talk with you 18 about that, then that tilts -- that helped tilt my 19 hand towards agreeing to hospitalization. 20 MR. VICKERY: Thank you, Dr. Roberts, I'll pass 21 the witness. 22 THE COURT: What exhibit are you going to be 23 referring to? 24 MR. SEE: I'm going to use some blowups, Your 25 Honor, that are made from Exhibit 163. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1214 1 THE COURT: 153? 2 MR. SEE: 163. 3 THE COURT: 163. 4 MR. SEE: Oh, Your Honor, they will be numbered 5 in your books as 1016. 6 THE COURT: I'm sorry. 7 CROSS-EXAMINATION 8 BY MR. SEE: 9 Q. Dr. Roberts, I want to let the jury understand 10 the nature of your treatment with Mr. Forsyth, and so 11 I'm going to need to go through your chart, and if the 12 Court permits, I'll just lay a copy of it in front of 13 you in case you need to refer to it. 14 A. That will make it easier, thank you. 15 Q. And I'll also put a copy of your deposition 16 right there in case we need that. 17 A. Very good, sir. 18 Q. Dr. Roberts, I've taken the liberty of blowing 19 up some of the pages from your chart and also 20 transcribing them into some language that might just 21 be a little more legible. 22 A. Yes, sir. 23 Q. So that's what we're doing with the blowup. 24 A. All right. 25 Q. Now, as Mr. Vickery said -- as Mr. Vickery PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1215 1 indicated, your first visit with Mr. Forsyth was on 2 December the 16th of 1992. 3 A. Correct. 4 MR. VICKERY: Is it permissible for me to stand 5 over here? 6 THE COURT: Pardon me? 7 MR. VICKERY: May I stand over here so I can 8 see? 9 THE COURT: Oh, yes. Certainly. 10 MR. VICKERY: Thank you. 11 Q (By Mr. See) And at that time, with your 12 initial visit, your custom is to sit down with the 13 patient and sort of take a history, find out what has 14 gone on in the patient's life and what brings the 15 patient to you? 16 A. Correct. 17 Q. Now, there is an entry here that says, "Three 18 years ago wife, all her old hurts." Do you recall 19 Mr. Forsyth relating to you that there had been an 20 episode between he and his wife at a time when they 21 lived in the desert when she had related to him some 22 problems that she felt were in the marriage that she 23 had not previously spoken with him about? Do you 24 recall him telling you about that? 25 A. The desert is not in my mind. There are PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1216 1 elements that you can recall because you're more 2 familiar with the case than I at this time. 3 Q. Yes, sir. 4 A. Yet, at the same time I am familiar with my 5 notes, and I can recall that part of his major 6 challenge was the reconciliation with his wife after 7 many years of estrangement. 8 Q. Now, one of the things that Mr. Forsyth told 9 you at that time was that after he had had this 10 episode with his wife where she had informed him of, 11 essentially, all her old hurts, that he had become 12 analytical and, as a result of becoming analytical, he 13 had become critical of her? 14 A. Correct. 15 Q. He then also indicated to you that she was 16 pretty heavy into religion, correct? 17 A. Correct. 18 Q. And the religion problem was sort of a 19 recurring theme, as he related to you what was causing 20 him stress in his life? 21 A. Or better said, perhaps, causing the 22 estrangement in the marriage, causing the difficulty 23 in the marriage. 24 Q. And then he indicated to you that he and his 25 wife had had a separation six or seven months ago? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1217 1 A. I think that that separation -- yeah, that's 2 correct. 3 Q. And what I specifically want to ask you about 4 is this: He also told you, at this first visit, that 5 loneliness was his biggest problem. 6 A. Right. Any good analyst would start picking up 7 on this one. 8 Q. And he told you this, this is after he and his 9 wife had come back from Los Angeles and were now back 10 together living in Maui, right? 11 A. Correct. 12 Q. It's also true, just so we're very clear, that 13 Mr. Forsyth relating to you that loneliness was his 14 biggest problem, applied on the date that he came to 15 see you? He wasn't talking about the past? 16 A. There's more than one reference in the notes 17 and you'll be able to see very clearly that that theme 18 does spread throughout the whole interaction with him. 19 Q. Now, you indicated with a question mark, 20 depression. That would indicate that at that time it 21 was your impression that that was his problem, but you 22 had some further things that you needed to do before 23 you arrived at a diagnosis? 24 A. I would agree with you. 25 Q. And then you list, "Listless, no purpose, and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1218 1 no direction." These are things that you are getting 2 from Mr. Forsyth as you're talking with him? 3 A. Yes. 4 Q. There's an entry here, "Up early, go to the 5 gym. Nothing else to do." Was that Mr. Forsyth's 6 description of his life day to day on Maui now that he 7 was retired? 8 A. Correct. 9 Q. And at least the "nothing else to do" part, 10 that was sort of causing him a problem in adjustment; 11 isn't that right? 12 A. That's correct, his perception of nothing else 13 to do. 14 Q. He had been, in his former life, a very 15 successful and aggressive businessman? 16 A. That's correct. 17 Q. And in his now retired life, that was gone? 18 A. That's correct. 19 Q. And it created a void? 20 A. That's correct. 21 Q. And he had not found anything to fill the void; 22 isn't that right? 23 A. There was plenty filling the void, 24 unfortunately, it was not rewarding for him. 25 Q. Now, you have an entry, "Fearful of something PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1219 1 new." Can you tell us what that meant? 2 A. I can't tell you specifically. It is a theme, 3 right, that would leave him confused about how to 4 choose what to do next. It's a theme of confusion 5 that a person who is depressed is likely to 6 experience. 7 Q. Now, there's an indication then, although not 8 in your chart, but I believe from the pharmacy records 9 we see that, in fact, you did go ahead and prescribe 10 Pamelor for him? 11 A. Correct. Usually I would start with a 12 10-milligram pill and then increase half, or a half of 13 a 25-milligram pill to be sure that there are no 14 unique reactions to that particular chemistry, so I 15 start very low and gingerly and then move up quickly 16 once we are aware that the unique chemistry would not 17 present a problem to him. 18 Q. And Pamelor is what's called a tricyclic 19 antidepressant? 20 A. That's correct. 21 Q. And at that time you generally would start at a 22 low dose and move up slowly until you think you get to 23 a dose that will work for a patient? 24 A. Yes, and, in fact, it's recommended that we do 25 that nowadays with our new medicines. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1220 1 Q. And you started him off with 30 milligrams, but 2 with the plan you move up to 50 and that's part of the 3 plan to get him up to a higher level? 4 A. That's correct. 5 Q. And then you also note that he's getting Xanax 6 to be taken four times a day? 7 A. That's correct. 8 Q. And Xanax was for the anxiety that he had? 9 A. I would say that that was the major part of his 10 problem, that he was so anxious, the theme becomes, as 11 we read through this, that he was very pressured, is 12 the word that I think suits him best. 13 Q. Pressured? 14 A. Pressured, yes. 15 Q. And the pressure is -- it comes from the 16 anxiety problem? 17 A. Tough to say, or the desire for quick solution. 18 The desire for a solution to occur quickly. 19 Q. Now, you noted that he did have an anxiety 20 problem? 21 A. Anxiety is uncomfortable. You might want the 22 solution to come quickly. 23 Q. You also note that -- we're now down to 12/21, 24 your second visit, "but he had trouble concentrating"? 25 A. Which would be part of the depression and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1221 1 possibly part of the medicine, but most likely part of 2 the depression, because we've seen that he does have 3 the hopeless, helpless, worthless, guilt, anhedonia, 4 nihilism thoughts occurring. 5 Q. I was going to ask you this: Having trouble 6 concentrating is a recognized symptom of major 7 depression? 8 A. That's correct. 9 Q. Now, moving down you indicate, "Don't want to 10 push self." Is that what he told you? 11 A. That is part of the conflict, right. 12 Ambivalence, the push and the pull, the tug of war 13 inside the mind, the wrestling match that occurs in 14 depression, the thoughts that would want to do 15 something but cannot. This is all part of a very 16 familiar picture in a person who's depressed. 17 Q. And then you have, at least in your notes, 18 several symbols that you told us stand for, first, 19 hopelessness and then you have a positive sign. That 20 meant that at this time Mr. Forsyth was feeling 21 hopeless? 22 A. Correct. 23 Q. You also have the positive sign for 24 helplessness? 25 A. Correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1222 1 Q. Meaning he felt helpless, correct? 2 A. That is correct. 3 Q. And then you have also the positive signs for 4 worthlessness, meaning he felt worthless? 5 A. That's correct. 6 Q. Had a low self-worth and also the positive sign 7 for guilty feelings? 8 A. Correct. 9 Q. And then we go down to the next one, a positive 10 sign for anhedonia, that's the -- 11 A. No fun anymore. 12 Q. -- inability to experience joy or pleasure from 13 the things you used to like to do? 14 A. That's correct. 15 Q. The nihilism you have -- what is the nihilism 16 again? 17 A. The nihilism is the thought of sort of trouble 18 finding meaning in the world and certainly that's 19 reflected in the theme throughout there, so I put down 20 thoughts as compared to absolutely nihilistic. 21 Q. And for suicidal thoughts at that time, as far 22 as you could tell, he was not having them? 23 A. As far as I could tell by my notes, I asked him 24 specifically and he would have denied them 25 specifically. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1223 1 Q. So we're clear, the way we find out is you just 2 ask the patient; isn't that right? 3 A. It's not a very complicated science. 4 Q. And that's the only way you can find out, isn't 5 it? 6 A. That's why I spend time training people. 7 Q. And isn't it the case that you have depressed 8 people who come in and sometimes they are feeling 9 suicidal and they don't tell you? 10 A. Unfortunately -- 11 MR. VICKERY: Excuse me, Doctor. I object, 12 Your Honor. That's got to be speculation. If they 13 don't tell him, how can he know what they're feeling? 14 THE COURT: I'll allow him to answer it if he's 15 capable of answering it. 16 THE WITNESS: Unfortunately, I have lost 17 patients after examining them and they've not told me 18 that that's what was going to happen. 19 Q (By Mr. See) So that's always a risk? 20 A. That's always a risk. 21 Q. You ask and you hope they tell you, and 22 sometimes they don't; isn't that right? 23 A. I'm afraid so. 24 Q. Now the last visit was December -- December 21 25 and the next one is the next day, December 22. You PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1224 1 recall seeing Mr. Forsyth the very next day? 2 A. Well, again, I'm sorry, that I can't recall it, 3 but it's not unlike me in a case that is complicated 4 and challenging to want to see the person the very 5 next day, especially, if I'm starting a new medicine. 6 It has become my routine to want to see the person 7 immediately to be sure that there are no unusual 8 unique responses to that chemistry. 9 Q. Now, here you have noted anxiety, and going 10 down a list, first "a paranoia" with a question mark 11 and then "possibilities" your note said. You saw 12 signs that suggested to you that there may be paranoia 13 present but you weren't quite sure? 14 A. That's correct. 15 Q. And then the phrase, "I'm not going to get over 16 it." Would that have been something that Mr. Forsyth 17 told you? 18 A. That's correct. 19 Q. And by him saying, "I'm not going to get over 20 it," he was, as you interpreted that comment, he was 21 telling you he was afraid that he would not recover 22 from his mental illness? 23 A. That's certainly a natural feeling in the 24 middle of depression. That's what makes depression so 25 terrifying is that, yes, you can get trapped in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1225 1 thoughts like that. 2 Q. And then he's asking you, "Is it going to get 3 worse?" Right? 4 A. That's correct. 5 Q. And then the question, "Can I handle my 6 responsibilities?" 7 A. This is exactly what made him a challenging 8 case and why we were concerned about him. 9 Q. You note the history that we've heard testimony 10 about before, that Mr. Forsyth in his working life, 11 had been a Type A person, kind of an aggressive go-go 12 businessman? 13 A. Correct. 14 Q. Now, you note here that his wife and family 15 were Evangelic born-again Christians, and then right 16 under that you noted, "give each other a wide space." 17 Again, this is what Mr. Forsyth related to you about 18 how he managed, if you will, getting along with his 19 family's religious views? 20 A. That's correct. 21 Q. Now, you've got some dates here. "Noted 22 anxiety started 11/6; sleeplessness 12/92; and 23 depression started at 12/20/92." Are those dates that 24 Mr. Forsyth would have given you? 25 A. They must have been. That must have been a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1226 1 sequence of reviewing his symptoms, as I would be apt 2 to do each day, sort of run through it again and just 3 be sure that we're seeing the same thing. 4 Part of patient training is to know what you're 5 up against, and so likewise, part of my own 6 completeness might be to be sure to review it again 7 with him. 8 Q. Now, we're past the new year. We're at 9 January 4 of '93. 10 A. Yes. 11 Q. And we've got the Pamelor up to 50 milligrams, 12 so you're giving him a higher dosage and he's taking 13 the Xanax, but he's now taking five Xanax a day. That 14 would be an increase? 15 A. Correct. 16 Q. Now, was he deciding how much Xanax to take or 17 would it -- 18 A. I wouldn't be bothered by that. A properly 19 trained person can titrate their Xanax one or two 20 pills up if they're trained properly, especially with 21 this low dose 0.25, which is not a very big dose, and 22 if his anxiety syndrome has not yet been benefited by 23 an antidepressant medicine, it's not unusual to use a 24 benzodiazepine. 25 Q. And I take it that part of the patient training PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1227 1 would be if he felt more anxious, then maybe he needed 2 to add another Xanax? 3 A. It would be all right to go ahead and add an 4 extra one, and so then I might query the next day and 5 find out how many of those he's been taking. 6 Q. Now here, you've noted, "Good progress," and 7 then notice some things that seem to indicate that 8 perhaps Mr. Forsyth has been doing a little bit 9 better? 10 A. Correct. 11 Q. "Watching TV, some good time, reading." Is 12 this the time that you were referring to when he 13 seemed like maybe he was getting a little bit better 14 for a time? 15 A. Yes. 16 Q. Again -- sorry? 17 A. That's correct. 18 Q. You note, "Energy pretty good." Now, let me go 19 down to the bottom of the chart anyway, and there's an 20 entry, "Co-dependent on my wife," and then under that 21 is written "new feeling." Could you tell us what this 22 phrase co-dependent means? 23 A. That would have been, as I recollect, his 24 statement and that meant that he was therapy savvy and 25 had been working with someone long enough to have them PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1228 1 say this is called co-dependence, which would mean 2 that there is a feeling of strong bond or a strong 3 attachment to. I think, in the context that it was 4 used, that was its intended meaning. 5 Q. And does co-dependent have a positive 6 connotation or a negative one? 7 A. I think, unfortunately, it has a negative 8 connotation for we are all co-dependent on one 9 another, but that co-dependence came to mean negative 10 things in our social circles. 11 Q. And this is how Mr. Forsyth was describing that 12 relationship to you? 13 A. That's correct. 14 THE COURT: Mr. See, it's quite a bit after 15 four. I think we better break now. 16 Please be back at nine o'clock on Tuesday. We 17 don't have trial on Monday. Be back on Tuesday, nine 18 o'clock. Have a nice weekend. 19 (Whereupon, the proceedings were adjourned at 20 4:05 p.m. to be reconvened on Tuesday, 21 March 16, 1999 at 9:00 a.m..) 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1229 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 12, 1999, before the Honorable Alan C. Kay, 10 United States District Judge. 11 DATED: December 20, 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