568 1 IN THE UNITED STATES DISTRICT COURT 2 DISTRICT OF WYOMING 3 -------------------------------------------------------- 4 THE ESTATES OF DEBORAH MARIE TOBIN and ALYSSA ANN TOBIN, deceased, by 5 TIMOTHY JOHN TOBIN, personal representative; and THE ESTATES OF 6 DONALD JACK SCHELL and RITA CHARLOTTE SCHELL, deceased, 7 by NEVA KAY HARDY, personal representative, 8 Plaintiffs, Case No. 00-CV-0025-BEA 9 vs. May 24, 2001 Volume IV 10 SMITHKLINE BEECHAM PHARMACEUTICALS, 11 Defendant. ----------------------------------------------------------- 12 13 14 TRANSCRIPT OF TRIAL PROCEEDINGS 15 16 Transcript of Trial Proceedings in the above-entitled 17 matter before the Honorable William C. Beaman, Magistrate, 18 and a jury of eight, at Cheyenne, Wyoming, commencing on the 19 21st day of May, 2001. 20 21 22 23 Court Reporter: Ms. Janet Dew-Harris, RPR, FCRR Official Court Reporter 24 2120 Capitol Avenue Room 2228 25 Cheyenne, Wyoming 82001 (307) 635-3884 569 1 A P P E A R A N C E S 2 For the Plaintiffs: MR. JAMES E. FITZGERALD Attorney at Law 3 THE FITZGERALD LAW FIRM 2108 Warren Avenue 4 Cheyenne, Wyoming 82001 5 MR. ANDY VICKERY Attorney at Law 6 VICKERY & WALDNER, LLP 2929 Allen Parkway 7 Suite 2410 Houston, Texas 77019 8 For the Defendant: MR. THOMAS G. GORMAN 9 MS. MISHA E. WESTBY Attorneys at Law 10 HIRST & APPLEGATE, P.C. 1720 Carey Avenue 11 Suite 200 Cheyenne, Wyoming 82001 12 MR. CHARLES F. PREUSS 13 MR. VERN ZVOLEFF Attorneys at Law 14 PREUSS SHANAGHER ZVOLEFF & ZIMMER 225 Bush Street 15 15th Floor San Francisco, California 94104 16 MS. TAMAR P. HALPERN, Ph.D. 17 Attorney at Law PHILLIPS LYTLE HITCHCOCK 18 BLAINE & HUBER, LLP 3400 HSBC Center 19 Buffalo, New York 14203 20 INDEX TO WITNESSES PLAINTIFFS' PAGE 21 IAN HUDSON, M.D. Videotape Deposition played 571 22 GEORGE SMITH 23 Direct - Mr. Vickery 572 Cross - Mr. Gorman 581 24 Redirect - Mr. Vickery 589 25 570 1 INDEX TO WITNESSES CONTINUED 2 PLAINTIFFS' PAGE BETTE SMITH 3 Direct - Mr. Vickery 591 Cross - Mr. Gorman 600 4 Redirect - Mr. Vickery 610 5 SHIRLEY PETTIGREW Direct - Mr. Vickery 613 6 Cross - Mr. Gorman 623 7 PATRICK BUCHANAN Deposition of Patrick Buchanan Read 625 8 PATRICK TOBIN 9 Direct - Mr. Fitzgerald 640 10 DONALD MARKS, M.D., Ph.D. Direct - Mr. Vickery 648 11 Continued Direct - Mr. Vickery 674 Cross - Mr. Preuss 700 12 Redirect - Mr. Vickery 727 13 NITA RIENITS Direct - Mr. Vickery 660 14 Cross - Mr. Gorman 668 Redirect - Mr. Vickery 672 15 MICHAEL SCHELL 16 Direct - Mr. Fitzgerald 730 Cross - Mr. Preuss 733 17 Redirect - Mr. Fitzgerald 741 18 NEVA HARDY Direct - Mr. Fitzgerald 743 19 Cross - Mr. Gorman 754 Redirect - Mr. Fitzgerald 763 20 21 22 23 24 25 571 09:02:11 1 P R O C E E D I N G S 09:02:11 2 (Trial proceedings reconvened 09:02:11 3 9:00 a.m., May 24, 2001.) 09:02:19 4 THE COURT: Good morning, everybody. 09:02:23 5 MR. GORMAN: Morning, Judge. 09:02:25 6 MR. ZVOLEFF: Good morning, Your Honor. 09:02:26 7 THE COURT: I believe we're going to resume with the 09:02:28 8 deposition of Dr. Hudson. 09:02:34 9 MR. VICKERY: Yes, Dr. Ian Hudson, Your Honor. 09:02:49 10 (Videotape deposition of Ian Hudson played.) 09:07:50 11 MS. WESTBY: By stipulation of counsel, I'm going to 09:07:52 12 read the answer. 09:07:53 13 "I'm not aware of any data that suggests any patient 09:07:56 14 will be precip -- I think your word was precipitated. I'm 09:08:00 15 not aware of any data suggests any patient will be 09:08:03 16 precipitated into suicidal ideation. Quite the contrary. 09:08:07 17 The analyses that we have done where we have taken patients 09:08:10 18 without any suicidal ideation at baseline using the HAM-D 09:08:16 19 score -- this is a metaanalysis of cross trials -- have 09:08:19 20 showed no increase in suicidal ideation in these patients 09:08:24 21 compared to placebo, and indeed, the other way around. 09:08:26 22 "For those patients who had HAM-D of zero at 09:08:29 23 baseline, there was statistically less emergent suicidal 09:08:34 24 ideation in those patients receiving paroxetine compared to 09:08:38 25 those patients receiving placebo." 572 09:10:52 1 (Videotape deposition of Ian Hudson played.) 09:23:19 2 MR. VICKERY: May I step out and get our next 09:23:21 3 witness? 09:23:21 4 THE COURT: Does that conclude this one? 09:23:24 5 MR. VICKERY: That concludes the offer from this 09:23:26 6 witness. 09:23:27 7 THE COURT: Very well. Thank you very much. 09:24:10 8 MR. VICKERY: Your Honor, the plaintiffs call George 09:24:13 9 Smith. 09:24:14 10 THE COURT: Very well. 09:24:45 11 (Witness sworn.) 09:24:45 12 THE CLERK: Please state your name and spell it for 09:24:47 13 the record. 09:24:49 14 THE WITNESS: George Smith, G E O R G E, S M I T H. 15 16 GEORGE SMITH, 17 called as a witness on behalf of the Plaintiffs, being first 18 duly sworn, testified as follows: 19 DIRECT EXAMINATION 09:24:59 20 Q. (BY MR. VICKERY) Good morning, sir. 09:25:01 21 A. Morning. 09:25:02 22 Q. Ever testified in a court of law before? 09:25:04 23 A. No. 09:25:05 24 Q. Little bit nervous? 09:25:08 25 A. Yes. 573 09:25:08 1 Q. No need to be. There's a little water up there, 09:25:11 2 Mr. Smith, if you want to pour some water for yourself. 09:25:17 3 Were you a friend of Don Schell's? 09:25:19 4 A. Yes, I was. 09:25:21 5 Q. Tell the folks how good a friend. 09:25:24 6 A. We had known each other for many years and had a 09:25:27 7 long-lasting friendship. 09:25:29 8 Q. When did you first meet him? 09:25:30 9 A. Probably in 1960. 09:25:32 10 Q. '60? 09:25:33 11 A. Uh-huh. 09:25:34 12 Q. So this is before he and Rita were married? 09:25:36 13 A. Yes. 09:25:36 14 Q. And were you and your lovely wife Bette already married? 09:25:40 15 A. No. 09:25:40 16 Q. And did you all meet when you were dating Bette and he was 09:25:43 17 dating Rita? 09:25:44 18 A. Yes, that would be fair. 09:25:48 19 Q. Was Rita still in high school? 09:25:50 20 A. Yes. 09:25:51 21 Q. Did she and Bette go to high school together? 09:25:53 22 A. Yes. 09:25:53 23 Q. Up in Gillette? 09:25:55 24 A. Yes. 09:25:55 25 Q. How about you guys? Were you guys still in high school? 574 09:25:59 1 A. No, we had both joined the work force. 09:26:03 2 Q. What kind of work were you doing? 09:26:08 3 A. We were both in the oil field-type work. 09:26:11 4 Q. Did you all work together? 09:26:12 5 A. On occasions, yes. 09:26:14 6 Q. Is that how you got acquainted or was it through the 09:26:17 7 girls? 09:26:17 8 A. Probably through the girls, I believe at first. 09:26:21 9 Q. All right. When you were dating Bette and Don was dating 09:26:24 10 Rita, did you all do things as couples then? 09:26:28 11 A. Yes, quite often. 09:26:29 12 Q. I mean, what kinds of things? 09:26:32 13 A. Well, in Gillette there wasn't that much to do anyway, you 09:26:36 14 know, a movie. That was about it, or picnics, games. 09:26:41 15 Q. Which couple got married first? 09:26:43 16 A. Don and Rita. 09:26:44 17 Q. They got married in 1961, we all know that. How about you 09:26:48 18 and Bette? 09:26:49 19 A. We were married in 1963. 09:26:52 20 Q. And did you then continue through your married years to 09:26:58 21 see Don and Rita? 09:27:00 22 A. Yes, we did. 09:27:01 23 Q. And give us an idea of what kinds of things you all would 09:27:04 24 do or how frequently you would see them. 09:27:08 25 A. Well, we were all working, of course, and whenever we 575 09:27:12 1 would have an opportunity with everybody off, why, we would 09:27:16 2 usually go out for dinner and drinks, whatever. And we 09:27:21 3 always often entertained at each others' homes. 09:27:27 4 Q. You were entertained in their home? 09:27:30 5 A. Certainly, yes. 09:27:31 6 Q. Were they ever reluctant to entertain you in their home? 09:27:34 7 A. No, no. 09:27:35 8 Q. Were you ever in their home for a social occasion where 09:27:38 9 there were other couples involved? 09:27:41 10 A. Oh, yes. 09:27:42 11 Q. Anything odd or infrequent about that? 09:27:44 12 A. No. 09:27:45 13 Q. Were you and Don the principal breadwinners for your 09:27:53 14 families during the early years of marriage? 09:27:56 15 A. Yes. 09:27:56 16 Q. Did you all ever sort of discuss your roles as husbands 09:27:59 17 and breadwinners? 09:28:01 18 A. No. 09:28:01 19 Q. Did you have children, each of you, each of the couples? 09:28:06 20 A. No, we didn't. Don and Rita had children but we didn't 09:28:11 21 have until later on. 09:28:12 22 Q. Mr. Smith, were you and Don friends? Did you all do 09:28:18 23 things together separate and apart from being with your 09:28:25 24 wives? 09:28:25 25 A. Not really, huh-uh. We went fishing quite often, but we 576 09:28:25 1 always had the wives with us. They enjoyed it. 09:28:29 2 Q. All right. And how about the wives? Did they do things, 09:28:32 3 you know, just as gals together without you guys around? 09:28:36 4 A. Yes, they did. 09:28:38 5 Q. Well, we will hear from Bette. She will tell us about the 09:28:41 6 nature of her relationship with Rita. 09:28:44 7 Were you around when Don and Rita had first Michael 09:28:48 8 and then Deb? 09:28:51 9 A. Yes. 09:28:52 10 Q. And tell these folks, if you would, your perceptions of 09:28:56 11 Don and Rita as parents. 09:28:59 12 A. Beautiful as far as we were concerned, yes. As a matter 09:29:03 13 of fact, they were to be the guardian of our son if anything 09:29:09 14 happened to us. It was in our will. So we were really 09:29:15 15 convinced that they were good parents. 09:29:18 16 Q. Did you discuss that with them, ask their permission to 09:29:21 17 put that -- 09:29:22 18 A. Yes, yes, it was in the will and everything. 09:29:27 19 Q. Now, as years went on did your wives work? 09:29:34 20 A. Yes, she worked all the time. 09:29:37 21 Q. Rita or Bette? 09:29:38 22 A. Bette did. 09:29:39 23 Q. What kind of work does your wife Bette do? 09:29:42 24 A. She was an RN. 09:29:43 25 Q. Is she retired now or is she still working? 577 09:29:46 1 A. No, she's still slaving away. 09:29:50 2 Q. Does that bother you in any way? 09:29:52 3 A. No, there's no problem there at all. 09:29:56 4 Q. Did it ever bother Don that Rita went to work later down 09:30:01 5 at the real estate office? 09:30:03 6 A. I don't believe so. I think he thought she was bored 09:30:06 7 without the children around and I think he really encouraged 09:30:11 8 her to work. 09:30:12 9 Q. She did pretty well at that, didn't she? 09:30:15 10 A. Yes, she did well. 09:30:17 11 Q. Do you recall when she finally reached that million-dollar 09:30:19 12 mark, the million-dollar real estate sales club? 09:30:21 13 A. Oh, yes. She had her name up on the sign at an agency and 09:30:25 14 everything. 09:30:26 15 Q. And did you have a discussion with your friend Don about 09:30:30 16 how he felt concerning Rita's accomplishment? 09:30:34 17 A. No, we never. 09:30:43 18 Q. In all the years you knew Don, Mr. Smith, you saw him at 09:30:47 19 work and at home -- tell us this, is the oil field sometimes 09:30:51 20 a rough place to work? 09:30:53 21 A. Very rough. 09:30:54 22 Q. Did you ever in the 40 years or 38 years that you knew Don 09:30:58 23 Schell -- ever see him either harm another person or threaten 09:31:04 24 to harm another person? 09:31:06 25 A. Never. And that was unusual in the oil field. 578 09:31:10 1 Q. Never saw him lose his temper? 09:31:12 2 A. Never. 09:31:12 3 Q. Never saw him get in a fight? 09:31:15 4 A. I'm sure that never happened. 09:31:19 5 Q. What was the nature of his relationship with his wife as 09:31:22 6 you observed them? What would you see? 09:31:27 7 A. Well, they were a very loving couple. They were both very 09:31:30 8 outgoing, had a lot of friends. They were really, really a 09:31:35 9 lot of fun to be around. 09:31:37 10 Q. Did you ever see them taking walks together? 09:31:41 11 A. Quite often. 09:31:42 12 Q. Did they hold hands? 09:31:43 13 A. Yes. 09:31:46 14 Q. Now, what about when Deb married Tim? Were you there for 09:31:49 15 the wedding? 09:31:50 16 A. No. 09:31:51 17 Q. Do you remember back when they were making plans for the 09:31:53 18 wedding? 09:31:56 19 A. Not really. I wasn't really involved in any part of that. 09:32:02 20 Q. Give us an idea of Don's relationship to his daughter Deb. 09:32:06 21 A. Oh, man. He gave me an example of -- they were going to 09:32:14 22 Rapid City to shop for a car for her, and on the way they 09:32:18 23 passed a dealership in Spearfish and he spotted a car, and he 09:32:24 24 said, "That is Debbie," and they bought the car. 09:32:27 25 Q. Okay. We all want to know now, what kind of car made him 579 09:32:31 1 say, "That's Debbie"? Was it red? 09:32:35 2 A. I don't know, it was a little red car and he just knew 09:32:38 3 that was her and so he bought it. He told me about that. 09:32:43 4 Q. Now, Mr. Smith, did you ever have a chance to see Don with 09:32:46 5 his granddaughter Alyssa? 09:32:49 6 A. No, I -- I only seen them together one time. I think it 09:32:55 7 was the 4th of July. 09:32:58 8 Q. She was born in May, so 4th of July she's just under two 09:33:04 9 months old, right? 09:33:05 10 A. Yes, I believe that's right. 09:33:07 11 Q. Tell us what you saw. 09:33:08 12 A. Well, we just had an outing at the Schells' home. They 09:33:13 13 had the barbecue and it was just a real pleasant afternoon. 09:33:20 14 Q. Did you see Don interacting with that baby? 09:33:24 15 A. He was cooking more -- not really. I don't think that 09:33:33 16 I -- on that occasion that I did. 09:33:36 17 Q. Did he ever say or do anything to indicate to you whether 09:33:39 18 he was a proud grandfather? 09:33:41 19 A. Oh, he was very proud, yes, I know that for a fact. 09:33:45 20 Q. Did there come a time when you stopped working in the oil 09:33:51 21 fields doing the kind of work you were doing and took up 09:33:53 22 something else? 09:33:54 23 A. Yes. 09:33:54 24 Q. And approximately when was that? 09:33:56 25 A. It was '85. 580 09:33:58 1 Q. And what kind of work did you take up after that? 09:34:02 2 A. Woodworking, custom woodworking and restoration. 09:34:07 3 Q. Did that give you more time at home? 09:34:10 4 A. Yes, quite a bit more time at home. 09:34:13 5 Q. Did Don go through that same transition? Did there come a 09:34:19 6 time for him when he changed the nature of his work so that 09:34:23 7 he had more free time at home? 09:34:26 8 A. Yes, but that happened real early on. He went into 09:34:29 9 production and I was in drilling. 09:34:34 10 Q. Do you cook? 09:34:35 11 A. Yes. I do most of it. 09:34:38 12 Q. Did Don cook? 09:34:39 13 A. Yes. 09:34:40 14 Q. Did you and Don ever discuss your roles as they had become 09:34:45 15 to be the cooks for the family? 09:34:49 16 A. We couldn't hardly believe it really happened to us but it 09:34:53 17 did. We were content with it. We enjoyed cooking, helping 09:34:57 18 out. 09:34:58 19 Q. What word did you use to describe yourselves, you and Don? 09:35:03 20 A. Kind of a housemother or whatever. 09:35:06 21 Q. Did you all laugh about that? 09:35:10 22 A. Oh, yeah. 09:35:11 23 Q. Mr. Smith, you knew the man for 38 years. Was there 09:35:14 24 anything about what you knew about him, what you observed 09:35:16 25 that would have ever caused you to believe that he was 581 09:35:19 1 capable of shooting his wife and his daughter and his 09:35:23 2 granddaughter? 09:35:24 3 MR. GORMAN: Object to the form of the question, Your 09:35:26 4 Honor. It is compound, it is leading and there's absolutely 09:35:30 5 no -- it is asking the witness to speculate. 09:35:33 6 THE COURT: I'll overrule. I think this witness can 09:35:36 7 testify according to the question. Mr. Smith may answer the 09:35:41 8 question. 09:35:41 9 A. I could not believe it ever happened. I'm still in shock 09:35:45 10 over it. 09:35:47 11 MR. VICKERY: Thank you, Mr. Smith. 09:35:49 12 I pass the witness. 09:36:02 13 MR. GORMAN: Good morning, ladies and gentlemen. 09:36:04 14 Good morning, Judge. 09:36:05 15 THE COURT: Good morning. 16 CROSS-EXAMINATION 09:36:06 17 Q. (BY MR. GORMAN) Mr. Smith, we haven't met before. My 09:36:08 18 name is Tom Gorman. It is nice to meet you. Thank you for 09:36:13 19 coming today. 09:36:14 20 A. It is nice to meet you. 09:36:15 21 Q. It would be true, I think, would it not, that Don was 09:36:21 22 probably one of your closest friends? 09:36:24 23 A. Yes, I was very close to him. 09:36:28 24 Q. And it is also true, as I think you've told us in the 09:36:33 25 deposition, that you weren't around Don Schell much, however, 582 09:36:38 1 in the last 15 years, true? 09:36:41 2 A. That's true. Like I said earlier, he was in production 09:36:44 3 and I was more in the drilling. 09:36:47 4 Q. And in the last 15 years you kind of lost contact with 09:36:53 5 each other, true? 09:36:54 6 A. Yes. We -- except when we ran into each other in the job. 09:37:07 7 Q. Did you know in the last 15 years about the mental 09:37:13 8 problems Don Schell was having? 09:37:17 9 A. Not really. Wife mentioned that he was having some 09:37:24 10 problems, but -- 09:37:28 11 Q. But you weren't -- as his friend he didn't come to you and 09:37:31 12 talk to you about those things? 09:37:33 13 A. No, I don't think I would have went to him either, though. 09:37:36 14 Q. Well, and that could be true. 09:37:38 15 Did Rita ever come to you and talk to you about 09:37:40 16 problems? 09:37:41 17 A. We did talk a little. I was doing a job in the Schell 09:37:45 18 home and we did discuss my personal problems and they were -- 09:37:52 19 Q. And I don't want to know about your personal problems. 09:37:55 20 A. I know this, but it was related to Don's problems. 09:37:58 21 Q. And so at least from Rita you had at least a superficial 09:38:03 22 understanding that Don in this last 15 years where you kind 09:38:06 23 of lost touch with him was having mental issues? 09:38:11 24 A. Well, she just wanted my opinion on what I had done. 09:38:21 25 Q. Is what I said, that you had at least a superficial 583 09:38:24 1 knowledge from Rita about Don's mental issues? 09:38:32 2 A. I suppose that would be correct. 09:38:33 3 Q. Did you know anything about Don Schell being treated for 09:38:41 4 depression and anger and stress in 1984? 09:38:47 5 A. No, I did not. 09:38:49 6 Q. Or that because of that he was out of work for a month or 09:38:54 7 more? 09:38:55 8 A. I did know he was out of work, yes. 09:38:57 9 Q. You just didn't know why? 09:39:00 10 A. Well, not at that time. It was later on. 09:39:03 11 Q. Okay. Did you have or do you have -- did you know that 09:39:12 12 Don Schell was again treated for some mental issues in 1988? 09:39:26 13 A. I'm afraid I didn't. 09:39:29 14 Q. And he was unable to work during that time again for 09:39:35 15 another month or six weeks? 09:39:37 16 A. There was only one instance that I knew, and I'm not sure 09:39:42 17 which date it was. 09:39:43 18 Q. So you're only aware of one time -- 09:39:46 19 A. That's correct. 09:39:46 20 Q. -- when Don Schell was out of work for some either -- some 09:39:50 21 mental problem? 09:39:51 22 A. That's correct. 09:39:57 23 Q. Do you remember ever the episode where Don Schell was 09:40:04 24 again having trouble with some major depression and became 09:40:09 25 impotent? 584 09:40:11 1 A. I had no knowledge of that. 09:40:21 2 Q. We have heard some comments in the court that since about 09:40:33 3 the 1984 time frame, Mr. Schell had five or six episodes of 09:40:43 4 bouts with rather serious depression. You weren't aware of 09:40:48 5 those? 09:40:49 6 MR. VICKERY: Excuse me, Counsel. I'm going to 09:40:51 7 object to that as misstating and assuming facts not in 09:40:53 8 evidence. There were no five or six bouts of major 09:40:57 9 depression, Your Honor. 09:40:59 10 THE COURT: Rephrase the question. 09:41:00 11 MR. GORMAN: I will, Your Honor. And I apologize. 09:41:09 12 Q. (BY MR. GORMAN) Are you aware of five or six episodes 09:41:09 13 where Don Schell was depressed and had to seek medical 09:41:12 14 attention for that? 09:41:13 15 A. The only one I was aware of is when he did miss work. 09:41:17 16 Q. And that was on one occasion and you don't know when that 09:41:19 17 was? 09:41:20 18 A. That's correct. I thought it was later on. I would 09:41:22 19 assume it was the later date. 09:41:24 20 Q. Later, like in the '90s? 09:41:28 21 A. The second instance you mentioned. 09:41:30 22 Q. Do you know of in 1994 -- are you aware of an instance 09:41:35 23 where -- and you worked in the oil field with Mr. -- 09:41:38 24 A. Not at that time. From '85 on I was not in the oil field. 09:41:45 25 Q. Are you aware of an instance where Don Schell had a 585 09:41:49 1 nervous breakdown? 09:41:53 2 MR. VICKERY: Objection, that assumes facts not in 09:41:55 3 evidence, Your Honor. No evidence of any nervous breakdown. 09:42:00 4 MR. GORMAN: I think Father Ogg talked about this 09:42:03 5 yesterday, Your Honor, in his deposition. 09:42:05 6 THE COURT: Well, he may have talked about it but I 09:42:07 7 don't know that there's any other proof. Objection sustained 09:42:10 8 as to the wording of that. 09:42:13 9 Q. (BY MR. GORMAN) Are you aware of an episode of major 09:42:18 10 depression in 1994? 09:42:26 11 A. As I said earlier, I was only knowledgeable of the one 09:42:29 12 instance. 09:42:46 13 Q. Tell us how you became aware of the one incident where Don 09:42:50 14 was having a problem that required him to be off work. 09:42:55 15 A. Rita and my wife had coffee and they discussed it and 09:43:00 16 that's how I found out about it. The wife came home and told 09:43:04 17 me that he had had problems. 09:43:10 18 Q. And you learned at that time that Don was not even able to 09:43:13 19 get out of bed, true? 09:43:14 20 A. I heard that one day he said he could not get out of bed. 09:43:20 21 That is what the wife told me. 09:43:22 22 Q. Okay. Are you aware of any occasions when Mr. Schell 09:43:26 23 because of problems he was having was uncertain whether he 09:43:32 24 could even drive home from his work in the oil fields? 09:43:36 25 A. Never. 586 09:43:42 1 Q. Now, shortly or sometime before Mr. and Mrs. Schell and 09:44:01 2 their daughter and granddaughter died are you aware of 09:44:08 3 problems during the time prior to these deaths where 09:44:12 4 Mr. Schell or Rita expressed some difficulty Don was having 09:44:18 5 in coping with the death of Gerald Reavis, Rita's father? 09:44:25 6 A. Yes, I had heard that through the wife. 09:44:29 7 Q. And I believe your wife told you that Rita was very upset 09:44:35 8 about comments that Don was making about Mr. Reavis, true? 09:44:39 9 A. That's true. 09:44:46 10 Q. And do you recall how long it was before this tragic event 09:44:50 11 took place, February of '98? Do you recall how long it was 09:44:53 12 before that that you learned about these things? 09:45:02 13 A. It was several months. I really don't recall exactly how 09:45:04 14 long. 09:45:05 15 Q. Okay. But it is your understanding that Rita was pretty 09:45:08 16 upset with Don at that time? 09:45:12 17 A. The remarks, yes, I'm sure she was. 09:45:15 18 Q. And it was your impression at that time that things 09:45:19 19 weren't very smooth in the Schell home during this time, 09:45:22 20 isn't that also true? 09:45:24 21 A. I don't believe that exactly. 09:45:27 22 Q. Is that the impression that you had? 09:45:30 23 A. I wasn't under the impression there was any problem at all 09:45:33 24 in the Schell home. 09:45:35 25 Q. Do you remember in your deposition about that issue, 587 09:45:40 1 Mr. Smith, telling us that it was your impression at that 09:45:45 2 time that things were not going on very smoothly in the 09:45:50 3 Schell home? 09:45:52 4 A. Well, over the remarks that were made, yes, but -- I mean, 09:45:59 5 to me, I didn't think it really created a big problem. 09:46:04 6 Q. Well, you weren't in the Schell home around this time, 09:46:06 7 were you? 09:46:10 8 A. They had been in our home and I believe that we had been 09:46:12 9 in their home. 09:46:17 10 Q. Did you give an interview, if you recall, to the 09:46:22 11 authorities at all after the events of February 13th? 09:46:29 12 A. Yes, I did. 09:46:31 13 Q. Did you -- at that time I assume you told the authorities 09:46:35 14 the truth, certainly, what you knew? 09:46:41 15 A. Well, really I didn't know anything. We had received a 09:46:46 16 call -- 09:46:47 17 Q. And I don't need to know about that. I just want to know 09:46:50 18 in response to the questions that were put to you, I assume 09:46:52 19 you told those folks the truth? 09:46:55 20 A. Yes. 09:46:55 21 Q. Did you tell them that you believed that Don Schell in 09:47:00 22 fact had some mental problems? 09:47:06 23 A. I don't believe that issue even came up with the 09:47:08 24 detectives. 09:47:16 25 MR. GORMAN: We don't have this turned on. I don't 588 09:47:18 1 know how long it takes. 09:47:20 2 May I approach, Your Honor? 09:47:25 3 THE COURT: Sure, you may. That doesn't take very 09:47:27 4 long. 09:47:32 5 MR. VICKERY: What's the exhibit number? 09:47:34 6 MR. GORMAN: This is the stipulated exhibits, 09:47:36 7 whatever the police report number is, and I can get that for 09:47:38 8 you, Andy. 09:47:43 9 THE COURT: Is this a joint exhibit? 09:47:45 10 MR. GORMAN: Yes, Your Honor, it is. Joint 09:47:59 11 Exhibit 243, Your Honor. 09:48:03 12 MR. VICKERY: What page number? 09:48:05 13 MR. GORMAN: They're not numbered but the report is 09:48:07 14 dated 2/24/98. 09:48:10 15 Q. (BY MR. GORMAN) Can you see that? 09:48:10 16 A. Yes, I can. 09:48:11 17 Q. You've got a little screen right there, too. We kind of 09:48:14 18 made it easy for you. 09:48:44 19 Mr. Smith, you see on your little monitor there, or 09:48:49 20 wherever you want -- do you see the material that I have 09:48:55 21 circled in pink there? 09:48:56 22 A. I certainly do. 09:48:57 23 Q. It says, "George Smith" -- that would be you, true? 09:49:01 24 A. That's correct. 09:49:02 25 Q. -- "did state he believed Donald Schell had some mental 589 09:49:06 1 problems; however, he did not know what they were." Do you 09:49:10 2 remember making that statement? 09:49:11 3 A. Not really, but all I had was that instance we talked 09:49:15 4 about earlier. That's all I knew about it. 09:49:18 5 MR. GORMAN: Could I have a minute, Your Honor? 09:49:19 6 THE COURT: Yes, you may. 09:49:31 7 MR. GORMAN: Mr. Smith, thank you very much. 09:49:33 8 I have nothing further, Your Honor. 09:49:37 9 THE COURT: Any redirect? 09:49:39 10 MR. VICKERY: Just very briefly. 11 REDIRECT EXAMINATION 09:49:52 12 Q. (BY MR. VICKERY) Tell us about that conversation with 09:49:54 13 Rita when she was concerned about Don and approached you for 09:49:57 14 your advice. 09:50:01 15 A. She knew I had been on an antidepressant. I had anxiety 09:50:05 16 attacks and I was unable to stay on any of the prescribed 09:50:08 17 medications. It just did not work for me at all. 09:50:13 18 Q. And was she seeking your advice because she was going to 09:50:17 19 try to get Don to take one? 09:50:19 20 A. No, I don't believe so. I think it was more probably just 09:50:24 21 comforting each other than anything else, consoling each 09:50:28 22 other. 09:50:28 23 Q. When did that happen? 09:50:30 24 A. It was when I was doing cabinet work in their home. 09:50:39 25 Q. And approximately how long before their death? 590 09:50:41 1 A. It was quite a while. 09:50:43 2 Q. Years before? 09:50:43 3 A. That could have been in '86 or '87. 09:50:49 4 Q. Mr. Gorman asked you about Don being off work for a 09:50:52 5 period. Was the nature of Don's job such that that 09:50:55 6 threatened his job or his career, or was he able to get cover 09:50:59 7 for it? 09:50:59 8 A. I don't think he was threatened at all. He was very, very 09:51:06 9 good at what he did and he managed the whole field out there 09:51:10 10 that produced thousands of barrels of oil. I was always 09:51:19 11 under the assumption that it was just the stress of the job 09:51:22 12 that might have caused problems with him because he had a 09:51:25 13 tremendous responsibility out there. 09:51:26 14 Q. How was it that you learned that he had to be off work for 09:51:30 15 a while? Did he tell you or -- 09:51:32 16 A. No, like I said, Bette came home and told me about it 09:51:36 17 after having coffee with Rita. 09:51:38 18 Q. I see. And did he lose his job because of that? 09:51:41 19 A. No, he did not. 09:51:43 20 MR. VICKERY: That's all I have, Your Honor. 09:51:45 21 MR. GORMAN: I have nothing further, Mr. Smith. 09:51:47 22 Thank you. 09:51:47 23 THE COURT: May Mr. Smith be permanently excused? 09:51:50 24 MR. VICKERY: Yes, he may. 09:51:51 25 THE COURT: Thank you, Mr. Smith. And you're excused 591 09:51:53 1 from further attendance at this trial. 09:51:55 2 MR. VICKERY: Let me get our next witness. 09:53:25 3 (Witness sworn.) 09:53:26 4 THE CLERK: Please state your name and spell it for 09:53:28 5 the record. 09:53:29 6 THE WITNESS: Bette Smith, B E T T E, S M I T H. 7 8 BETTE SMITH, 9 called as a witness on behalf of the Plaintiffs, being first 10 duly sworn, testified as follows: 11 DIRECT EXAMINATION 09:53:36 12 Q. (BY MR. VICKERY) Good morning, again. 09:53:38 13 A. Good morning. 09:53:40 14 Q. Mrs. Smith, the jury knows a little bit about your 09:53:43 15 acquaintance with Don and Rita from the testimony of your 09:53:46 16 husband. But tell us in your own words about you and Rita. 09:53:50 17 When did you all first meet? 09:53:52 18 A. Rita and I went to school together from the time she moved 09:53:55 19 to Gillette, I don't know, maybe her junior year, sophomore 09:54:01 20 year. 09:54:02 21 Q. In high school? 09:54:03 22 A. In high school. So we've known each other over 40 years 09:54:07 23 or so. 09:54:09 24 Q. What was the nature of your relationship with her when you 09:54:13 25 all were high school girls? 592 09:54:23 1 A. We were friends with a group of friends that all kind of 09:54:25 2 ran around together. 09:54:26 3 Q. Were you in the same class together? 09:54:28 4 A. Yes. 09:54:29 5 Q. Graduate together? 09:54:29 6 A. Yes. 09:54:30 7 Q. Now, your husband has told us that you all got acquainted, 09:54:36 8 all four of you, in about 1960. Which of these two couples 09:54:41 9 got together first in dating? 09:54:44 10 A. Rita and Don. 09:54:47 11 Q. How did Rita meet Don? 09:54:52 12 A. Well, Gillette was a pretty small town then. Don came to 09:54:58 13 town and the oil field was just starting and, you know, the 09:55:03 14 thing was to cruise Main. And so we just became acquainted 09:55:11 15 and they started dating. 09:55:16 16 Q. Did that couple introduce you to George or did you meet 09:55:22 17 him in a different way? 09:55:25 18 A. No, I don't think so. I think I met him -- 09:55:31 19 Q. In church, probably? 09:55:32 20 A. Yeah, right. In other circumstances, but they were all 09:55:37 21 connected working with the drilling rigs around. 09:55:42 22 Q. When you all were young couples, what kind of things would 09:55:45 23 you do together as couples? 09:55:48 24 A. Well, when we got married, I mean, as married couples? 09:55:54 25 Q. Right. 593 09:55:55 1 A. When we first got married, we used to do things like 09:55:59 2 fishing. Our birthdays and anniversaries were all in August 09:56:04 3 so we celebrated all of these things together. New Year's 09:56:10 4 was always a good time. 09:56:13 5 As we got older, I think it became more sometimes 09:56:17 6 going out to eat or having backyard barbecues and, you know, 09:56:21 7 come up to help you move some furniture or do something and 09:56:25 8 you have supper and that kind of thing. 09:56:32 9 Q. Okay. Do you recall an issue around the time that Don and 09:56:33 10 Rita got married regarding what faith they would choose in 09:56:37 11 terms of their religious life together? 09:56:43 12 A. Well, I don't know that it was an issue, but Rita did 09:56:46 13 switch to the Catholic religion. 09:56:50 14 Q. And was Don a devout Catholic? 09:56:53 15 A. I assume so is the reason she switched to that religion. 09:56:59 16 Q. Was there a brief period of time when they first got 09:57:02 17 married that Don and Rita's parents maybe had a little strife 09:57:07 18 over whether she would become Catholic or not, if you know? 09:57:17 19 A. I honestly don't remember it being an issue with her 09:57:21 20 parents. 09:57:21 21 Q. Do you remember when they had Michael and then 09:57:24 22 subsequently Deb? I mean, were you all socializing as 09:57:27 23 couples when they had young children? 09:57:29 24 A. Yes, and Deb and my son were about the same age. My son 09:57:34 25 was a little younger, but they went to school together all 594 09:57:39 1 through grade and high school. 09:57:41 2 Q. Did you have occasions when Deb was young and your son was 09:57:46 3 young where you would get together as families while the 09:57:50 4 adults were doing whatever adults were doing in Gillette 09:57:53 5 then, the children were playing together? 09:57:55 6 A. Oh, sure. 09:58:01 7 Q. Tell us about Don insofar as his relationship within his 09:58:04 8 family. How did he relate to his children, to Mike and to 09:58:07 9 Deb? 09:58:10 10 A. I don't remember that he related any differently than any 09:58:15 11 parent. I mean, the kids played and unless they were doing 09:58:19 12 something they weren't supposed to do -- 09:58:22 13 Q. Was he a loving father? 09:58:24 14 A. I always felt so. 09:58:26 15 Q. And how about as a husband to your friend Rita? What did 09:58:30 16 you see in terms of their interaction with one another? 09:58:36 17 A. I always thought they were very happy. They were together 09:58:41 18 doing things. I never saw them argue or anything like that. 09:58:48 19 Q. Did you ever see them taking a walk? 09:58:50 20 A. Frequently. They walked a lot, especially later years. 09:58:54 21 Q. Did they hold hands when they walked? 09:59:01 22 A. I think so. 09:59:04 23 Q. Was it kind of a ritual for them to take a walk late in 09:59:08 24 the afternoon after Rita got home from working at the real 09:59:12 25 estate office? 595 09:59:13 1 A. I don't know that they did it every night, but I met them 09:59:16 2 a lot of times when I would get off work. They would be 09:59:19 3 going for a walk. 09:59:21 4 Q. How close did you live to their house? Was that on your 09:59:25 5 route? 09:59:29 6 A. Well, the street that I went up to go home was pretty 09:59:33 7 close to their house and they would walk along that sidewalk, 09:59:37 8 so I saw them fairly often. 09:59:39 9 Q. Let's make sure we get the picture. You would be driving 09:59:42 10 home from work and you would be seeing them walking along 09:59:45 11 together? 09:59:45 12 A. Uh-huh. 09:59:50 13 Q. Were you and Rita sort of confidants? Did you talk to one 09:59:54 14 another privately about issues in your life? 09:59:57 15 A. Well, up when the kids were in high school we saw each 10:00:00 16 other a lot, several times a week, had coffee. She started 10:00:06 17 working and I was working more, we saw each other less. But 10:00:10 18 we would have coffee and talk. She was always a friend. No 10:00:14 19 matter how long it had been since you had seen her, you could 10:00:19 20 just resume your conversations. 10:00:21 21 Q. You said when she started working. Was that at some point 10:00:25 22 later after Deb was farther on in school? 10:00:27 23 A. Well, she had had some jobs she had worked at but really I 10:00:32 24 was thinking of her real estate work where she was probably 10:00:36 25 spending more hours. 596 10:00:39 1 Q. How long before her death did she take up real estate 10:00:41 2 work? 10:00:51 3 A. I am not sure. Several years. Time sort of gets away 10:00:54 4 from you. 10:00:55 5 Q. She did real well at it, didn't she? 10:00:58 6 A. I believe so, yes. 10:00:58 7 Q. Do you remember when she achieved that level of selling a 10:01:01 8 million dollars worth of property in a year, I think they 10:01:04 9 call it a million-dollar club or something like that? 10:01:06 10 A. I do. 10:01:07 11 Q. Tell us about that. What do you recall? 10:01:10 12 A. Well, we were kind of giving her a hard time about what 10:01:13 13 she was going to do with all of her money. She had had a 10:01:16 14 barbecue for me on my birthday about that time and, I don't 10:01:25 15 know, you know, it just came up in the conversation that she 10:01:28 16 had done this. 10:01:30 17 Q. You were kind of razzing her about making so much money? 10:01:34 18 A. Yes. 10:01:34 19 Q. And were you all razzing Don about maybe "Rita might make 10:01:39 20 more than you, Don"? 10:01:40 21 A. Yeah, we asked Don if he minded Rita making more money 10:01:44 22 than he did, and he just was like, "Have her get after it." 10:01:51 23 He was fine with that. 10:01:54 24 Q. Did Don -- did she ever say anything or did you ever see 10:01:57 25 anything that indicated to you that Don was in any way 597 10:02:00 1 resentful of Rita's career as a real estate saleswoman? 10:02:05 2 A. No. 10:02:09 3 Q. Did you ever discuss with her whether she had the 10:02:11 4 flexibility to arrange her hours from that kind of work to be 10:02:15 5 home in the afternoon to be with him? 10:02:21 6 A. Not really. I don't know that it was ever brought up as 10:02:24 7 an issue. 10:02:26 8 Q. Did you know Rita's parents, Flo -- she's not here 10:02:33 9 anymore -- Flo Reavis and her husband Gerald? 10:02:36 10 A. Yes. 10:02:37 11 Q. And did you know them when you and Rita were high school 10:02:40 12 girls together? 10:02:41 13 A. Yes. 10:02:41 14 Q. Tell us, if you would, what was the nature of the 10:02:44 15 relationship of Don with his father-in-law once he and Rita 10:02:47 16 got married. 10:02:52 17 A. They seemed like they got along fine. 10:02:54 18 Q. Did they go fishing together? 10:02:56 19 A. Fishing, the kids went water-skiing. Gerald had a boat 10:03:02 20 that they used. 10:03:06 21 Q. Do you remember when Gerald died and how Don responded to 10:03:10 22 Gerald's death? 10:03:12 23 A. Yeah, Don was really broken up, crying at the funeral. 10:03:16 24 Q. Did you see that? 10:03:17 25 A. Yes. 598 10:03:22 1 Q. And did you see or hear anything else at that time, at the 10:03:25 2 time of the funeral? 10:03:28 3 A. Regarding what? 10:03:29 4 Q. Regarding how Don was reacting to the loss of his 10:03:33 5 father-in-law, Gerald. 10:03:34 6 A. Well, he just kept apologizing for crying and breaking 10:03:37 7 down, but, you know, I don't know that I thought it was all 10:03:41 8 that strange. The families were pretty close, I thought. 10:03:48 9 Q. Did there come a subsequent time where you and Rita were 10:03:52 10 having coffee and she related to you some concern over Don 10:04:00 11 talking about Gerald? 10:04:03 12 A. Yeah. We had gone to have coffee and I don't remember 10:04:07 13 just what brought the conversation up, but Rita had started 10:04:15 14 having tears in her eyes and said that Don had said he never 10:04:24 15 liked him anyway and Rita couldn't understand why he would 10:04:28 16 say something like that because they always had seemed to get 10:04:31 17 along so well together. 10:04:37 18 And Rita didn't cry very often and so we didn't 10:04:40 19 pursue this conversation very long out in the restaurant. 10:04:45 20 Q. Were you in a public place? 10:04:47 21 A. We were in a restaurant. 10:04:48 22 Q. When she said that, did you interpret it to mean that Don 10:04:54 23 really didn't like Gerald anyway, or that he was just broken 10:04:57 24 up over his death? 10:04:59 25 MR. GORMAN: Object to the question, Your Honor, 599 10:05:00 1 asking the witness to speculate and I don't think her opinion 10:05:03 2 is relevant or her impression. 10:05:06 3 THE COURT: Well, it is also a leading question. If 10:05:08 4 you just ask the first part of it, I will let it go forward, 10:05:12 5 if she has any knowledge. 10:05:14 6 Q. (BY MR. VICKERY) What was your interpretation of -- if 10:05:17 7 you had one, of Rita's comment about Don talking about he 10:05:23 8 didn't like Gerald anyway? 10:05:25 9 MR. GORMAN: Same objection, Judge. 10:05:29 10 THE COURT: Sustained. 10:05:35 11 Q. (BY MR. VICKERY) When is the last time that you talked to 10:05:37 12 your friend Rita before her death? 10:05:45 13 A. Well, I don't know the exact date. We had made -- been 10:05:48 14 trying to make some arrangements in our busy lives to have 10:05:52 15 coffee with each other and so it was probably having coffee 10:05:57 16 at a restaurant. It was after that other episode, though. 10:06:03 17 Q. The one where she mentioned Gerald? 10:06:05 18 A. Yeah. 10:06:07 19 Q. Now, was your relationship with Rita such that if you had 10:06:14 20 private things that you wanted to share with someone or vice 10:06:20 21 versa that you all would share it with each other? 10:06:25 22 A. I think so. 10:06:27 23 Q. I mean, if there was ever anything troubling her, if she 10:06:30 24 had ever had, for example, any kind of marital problem or 10:06:33 25 anything like that, is your relationship such that she would 600 10:06:37 1 have shared that with you? 10:06:39 2 A. Well, she was a fairly private person. I don't know that 10:06:41 3 she spilled everything that went on, but we were close enough 10:06:45 4 that we discussed things like that. 10:06:48 5 Q. And, to your knowledge, did Rita ever have any kind of 10:06:54 6 problem in terms of her relationship to her husband? 10:06:58 7 A. No. 10:07:00 8 Q. Was she a fun-loving woman? 10:07:02 9 A. Oh, yeah. 10:07:05 10 Q. How about Don? What kind of adjectives would you use to 10:07:09 11 describe Don? 10:07:10 12 A. Well, he always seemed to be, too. Both of them could 10:07:14 13 remember every joke that had ever been told to them forever. 10:07:18 14 They were always very spontaneous, witty and funny and fun to 10:07:23 15 be with. 10:07:24 16 Q. Did you ever have occasion to see Don with his 10:07:28 17 granddaughter Alyssa? 10:07:31 18 A. No. 10:07:32 19 Q. Did you ever have occasion to talk to either Don or Rita 10:07:37 20 about how he felt about having this grandbaby? 10:07:41 21 A. Oh, we saw the pictures. I just never saw Alyssa. The 10:07:45 22 pictures always came out. He seemed very proud of her. 10:07:52 23 MR. VICKERY: Thank you. I will pass the witness. 24 CROSS-EXAMINATION 10:08:04 25 Q. (BY MR. GORMAN) Good morning, Mrs. Smith. How are you? 601 10:08:08 1 I'm Tom Gorman. It is nice to meet you. 10:08:12 2 A. Morning. 10:08:14 3 Q. Did Mrs. Schell ever in your friendship with her mention 10:08:27 4 to you any concerns that she had about her work at any time 10:08:31 5 prior to her death, that you recall? 10:08:32 6 A. No. 10:08:33 7 Q. Did she ever mention to you any problems or concerns she 10:08:38 8 had in her relationship with any of her coemployees at work, 10:08:45 9 to your knowledge? 10:08:48 10 A. No. 10:08:51 11 Q. Did she ever mention to you that it was because Don 10:08:58 12 insisted that she be home at 4:00 that that was the reason 10:09:02 13 why she came home every day? Did she ever tell you that? 10:09:07 14 A. No. 10:09:08 15 Q. You said Rita was a -- I think your words were a pretty 10:09:16 16 private person. Would that accurately describe her? 10:09:24 17 A. I think so. 10:09:24 18 Q. And is it also true because of that that if -- unless she 10:09:27 19 really -- unless something was really a problem, she kept 10:09:34 20 those things to herself? Would that be a fair 10:09:41 21 characterization? 10:09:43 22 A. I think she would have discussed it if there had been a 10:09:46 23 real problem. 10:09:47 24 Q. Okay. Did Rita -- let me back up. 10:09:50 25 Did Don Schell, Mr. Schell, ever discuss with you any 602 10:09:56 1 problems that he was having with depression or other mental 10:10:00 2 issues? 10:10:03 3 A. Did Don? No. 10:10:05 4 Q. Did Rita Schell ever discuss with you any issues about 10:10:10 5 Don's mental state? 10:10:17 6 A. Rita told me that he was having some trouble several years 10:10:31 7 ago. 10:10:31 8 Q. That's what I want to ask you. Do you remember -- when 10:10:35 9 you say several years ago, I assume you're talking several 10:10:39 10 years before their death? 10:10:40 11 A. Yes. 10:10:41 12 Q. Do you remember when that was? 10:10:44 13 A. The year, no. 10:10:48 14 Q. Tell me what Rita told you. 10:10:53 15 A. Well, Rita told me that he woke up one morning and said he 10:10:59 16 just couldn't go to work, and I think he didn't for a while. 10:11:09 17 Q. Okay. We're going to go through that in a minute. 10:11:14 18 That was maybe 10 or 13 years, I think, before his 10:11:21 19 death, true, that episode that you're talking about? 10:11:26 20 A. It could have been. Time goes by really fast. I don't -- 10:11:30 21 Q. Don't I know that. 10:11:32 22 Well, after Rita told you that there was a period in 10:11:37 23 Don's past where he couldn't get up and go to work, did Rita 10:11:44 24 prior to your conversation that you spoke with Mr. Vickery 10:11:49 25 about in the coffee shop where Rita got upset -- and we're 603 10:11:53 1 going to talk about that in a minute, but between the period 10:11:56 2 of time when she told you that Don couldn't get up and go to 10:12:00 3 work, until that conversation, it is true, is it not, that 10:12:03 4 Rita did not talk to you at any time during that 10- or 10:12:07 5 15-year period in between about Don's mental health? Is that 10:12:12 6 true? 10:12:17 7 A. You mean after the first time that we're just discussing? 10:12:19 8 Q. Yes, ma'am. 10:12:21 9 A. No, she didn't say anything more other than, you know, 10:12:24 10 that he wasn't working for a while. 10:12:30 11 Q. When Rita was not working, before she went back to the 10:12:35 12 real estate job or went into real estate, she stayed home, 10:12:39 13 true? 10:12:41 14 A. Well, she had had some other jobs. She worked in a 10:12:45 15 doctor's office for a while and -- I don't know just what all 10:12:53 16 she did, but not steadily. 10:12:55 17 Q. You're aware, because she talked to you about it, that 10:12:58 18 during the period of time before she went to real estate it 10:13:02 19 was Don who paid all of the bills and she pretty much -- Rita 10:13:08 20 pretty much didn't know anything about how the house ran; is 10:13:16 21 that true? 10:13:17 22 A. Early in their marriage it was. 10:13:19 23 Q. And that Don paid for everything and Rita didn't have a 10:13:22 24 clue; is that true? 10:13:28 25 A. Well, I think he pretty much paid the bills at first. 604 10:13:31 1 Q. Have you ever heard anyone describe Don as being 10:13:35 2 possessive of Rita? 10:13:37 3 A. No. 10:13:47 4 Q. Now, the event where you told us about Rita telling you 10:13:51 5 that Don couldn't get out of bed in the morning and he 10:13:54 6 couldn't go to work, and that was 10 or 15 years prior to his 10:14:00 7 death, do you know at that point in that event how long Don 10:14:05 8 was off work for this problem? 10:14:10 9 A. Well, I think I did at the time, but now I don't. 10:14:14 10 Q. Well, you do know it was in excess of a month he was off 10:14:18 11 work, true? 10:14:19 12 A. Yeah, it was a while. 10:14:25 13 Q. Now, did you know that Don was treated for depression, for 10:14:27 14 anger and for irritability in 1984? 10:14:37 15 A. Prior to this episode we're talking about now -- 10:14:41 16 Q. I just -- 10:14:42 17 A. -- or -- 10:14:42 18 Q. I just need to know, did you know that Don was treated for 10:14:45 19 depression, for anger and for irritability in 1984? 10:14:49 20 A. No. 10:14:55 21 Q. Did you know that Don was treated for nine months in 1989 10:15:00 22 for depression and was again off work for one month? 10:15:12 23 A. I'm not sure that I do, no. 10:15:14 24 Q. Did you know that Mr. Schell was treated by Dr. Suhany, a 10:15:17 25 psychiatrist, for the entire year in 1990 and was out of work 605 10:15:24 1 during that period for two months for depression? 10:15:34 2 A. No. 10:15:36 3 Q. Did you know that Mr. Schell was treated for four months 10:15:39 4 by three different doctors for depression in 1991 and was out 10:15:45 5 of work again for another month? 10:15:53 6 A. Well, I've known he hasn't worked at times, but about his 10:15:59 7 treatment, no. 10:16:00 8 Q. Did you know that Don, Mr. Schell, was treated for 10:16:04 9 depression by a psychiatrist and by a psychologist again in 10:16:09 10 1993 and was again out of work for another month or six 10:16:15 11 weeks? 10:16:18 12 A. No. 10:16:20 13 Q. Did you know that Don was seeking treatment and counseling 10:16:23 14 by Sister Agnes Claire of the Catholic church in Gillette? 10:16:33 15 A. No. 10:16:39 16 Q. Now, I want to visit with you about the occasion prior to 10:16:47 17 these deaths when you had coffee with Mrs. Schell where she 10:16:51 18 talked about Don's reaction to Mr. Reavis' death. Okay, are 10:16:58 19 you with me? 10:16:58 20 A. Uh-huh. 10:16:59 21 Q. Do you remember how long it was before their deaths that 10:17:02 22 this conversation took place? 10:17:10 23 A. I'm not sure. 10:17:12 24 Q. Okay. Was it within the six months immediately preceding 10:17:19 25 their deaths, if you recall? 606 10:17:23 1 A. It could have been six months to a year. 10:17:25 2 Q. Okay. Now, Don's reaction at Mr. Reavis' funeral was 10:17:40 3 something you had not seen Don -- it was an unusual reaction? 10:17:43 4 You had not seen Don react like that before, true? 10:17:46 5 A. I had not seen Don cry, no. 10:17:51 6 Q. And you told Rita that in your conversation with her in 10:17:57 7 the restaurant that morning when you and she discussed Don's 10:18:00 8 reaction, didn't you? 10:18:02 9 A. I think so. 10:18:04 10 Q. And during that discussion I think you told Mr. Vickery 10:18:09 11 that Rita cried during the time you and she were in the 10:18:12 12 restaurant? 10:18:13 13 A. Yes. 10:18:14 14 Q. And that's -- that was also unusual for you, to see Rita 10:18:21 15 cry? 10:18:22 16 A. Yes. 10:18:26 17 Q. Because Rita usually hid her feelings pretty well? 10:18:28 18 A. Yes. Well, I don't know about all of her feelings, but 10:18:36 19 she didn't cry often. 10:18:42 20 Q. And Mrs. Schell during that conversation told you that she 10:18:47 21 did not understand what was going on with Don, true? 10:18:53 22 A. I think so. 10:18:55 23 Q. And that Don was saying things like he never liked 10:18:59 24 Mr. Reavis, true? 10:19:01 25 A. Right. 607 10:19:06 1 Q. And that she didn't understand where Don was coming from, 10:19:10 2 true? 10:19:13 3 A. Well, she didn't understand it, no. 10:19:19 4 Q. And she told you then that Don was in a depression, did 10:19:26 5 she not? 10:19:27 6 A. No. 10:19:29 7 Q. Did she tell you that she didn't have to put up with this? 10:19:41 8 A. Yes. 10:19:46 9 Q. Did you talk to -- you talked to the authorities after Don 10:19:52 10 and Rita's death, true? 10:19:54 11 A. Right. 10:20:13 12 Q. Have you looked at the police report, Mrs. Smith? 10:20:18 13 A. No. 10:20:19 14 Q. Do you see the -- can you read -- there's a monitor right 10:20:23 15 there I think you can see right by you there. Is it on the 10:20:29 16 screen? 10:20:30 17 A. That's better, yes. 10:20:31 18 Q. Can you see that report? 10:20:36 19 THE COURT: You may want for the record to refer to 10:20:38 20 the exhibit number, Counsel, please. 10:20:41 21 MR. GORMAN: That's Joint Exhibit 243, Your Honor, 10:20:45 22 and again, it is the 2/24/98 report. 10:20:55 23 Q. (BY MR. GORMAN) Have you had a chance to look at that? 10:21:01 24 A. Yes. 10:21:02 25 Q. And I assume you told them the truth when they asked you 608 10:21:14 1 the questions about Mr. and Mrs. Schell's relationship? 10:21:17 2 A. Yes, but I don't remember saying that he was in a state of 10:21:20 3 depression. 10:21:21 4 Q. And we will get to that. But at least this report says 10:21:24 5 that, "She observed" -- you observed Rita was extremely upset 10:21:35 6 and at one time during their conversation she started crying. 10:21:39 7 You're talking about there the meeting that you and 10:21:45 8 Rita had in the coffee shop, true? 10:21:47 9 A. Yes. 10:21:47 10 Q. And report says, "Bette Smith found out from Rita that her 10:21:54 11 husband Don was having problems dealing with Rita Schell's 10:22:00 12 father passing away approximately one year ago." We're also 10:22:04 13 in the same meeting now between you and Rita, true? 10:22:08 14 A. I think this was a discussion we had about whether he was 10:22:11 15 just having problems dealing with it. 10:22:14 16 Q. And then it says, "Rita Schell did tell Bette Smith that 10:22:20 17 Donald Schell had been making negative comments about her 10:22:23 18 father passing away." 10:22:25 19 Is that true? 10:22:26 20 A. Yes. 10:22:27 21 Q. And then it says, "Rita Schell also indicated to Bette 10:22:31 22 Smith that prior to this Don appeared to have some type of 10:22:36 23 mental or medical problems as he could not get up and go to 10:22:41 24 work in the morning." 10:22:43 25 Is that true? 609 10:22:45 1 A. Well, I think we discussed this, that this was an earlier 10:22:49 2 episode, it wasn't at the restaurant. 10:22:54 3 Q. But is that information that you provided to the police, 10:22:57 4 the authorities? 10:22:58 5 A. I think so, uh-huh, but I didn't say that he was in a 10:23:01 6 state of depression. 10:23:02 7 Q. Okay. And I'm going to get to that. 10:23:05 8 So this says, "She told Bette Smith he was in a state 10:23:08 9 of depression." You don't recall telling the officers that? 10:23:13 10 A. No. 10:23:16 11 Q. Then -- 10:23:17 12 A. But I was pretty upset that night. 10:23:19 13 Q. So you could have, you just don't recall? 10:23:22 14 A. But I don't think I did. 10:23:24 15 Q. And then it says, "According to Bette Smith, Rita made the 10:23:28 16 comment that she didn't need this anymore, however." 10:23:31 17 Is that something that you recall telling the 10:23:33 18 authorities? 10:23:37 19 A. That's what she told me. 10:23:50 20 Q. You also knew that one of the reasons, in fact -- strike 10:23:50 21 that. 10:23:50 22 Before Rita and Don's death you knew Deborah and 10:24:03 23 Alyssa Tobin were in Gillette, true? Obviously they were in 10:24:08 24 Gillette. They were also killed in the same tragedy, true? 10:24:27 25 A. But I don't believe Rita told me this. I think the person 610 10:24:27 1 that called me told me this. 10:24:27 2 Q. I'm referring now to the second page of the police report 10:24:28 3 that's, again, part of a joint exhibit. And it says, "She 10:24:31 4 said it was decided by Deb Tobin and Rita Schell to have 10:24:37 5 Deborah and the granddaughter, who she identified as Alyssa, 10:24:41 6 come to Gillette to help Don Schell in dealing with the state 10:24:46 7 of depression he was in." 10:24:49 8 A. I didn't say that. 10:25:05 9 Q. You did not say that? 10:25:05 10 A. I did not say that. 10:25:05 11 Q. Do you know where the investigating officers got that 10:25:05 12 information? 10:25:05 13 A. I do not know. 10:25:14 14 MR. GORMAN: If I could have just a minute, Your 10:25:15 15 Honor, I think I'm about done. 10:25:32 16 THE COURT: Sure. 10:25:42 17 MR. GORMAN: Mrs. Smith, thank you. I don't have any 10:25:44 18 other questions. 10:25:45 19 THE COURT: Redirect? 10:25:47 20 MR. VICKERY: Very briefly, Your Honor. 21 REDIRECT EXAMINATION 10:26:08 22 Q. (BY MR. VICKERY) I want to look at another provision here 10:26:11 23 of your comments in the police report. This is Joint 10:26:16 24 Exhibit 243, for our record. 10:26:19 25 "Prior to concluding the interview with Bette Smith 611 10:26:23 1 I asked her if she could give us any information as to what 10:26:28 2 type of medication Donald Schell would be on. She stated she 10:26:31 3 was not sure if he was on any medication or not. However, 10:26:34 4 she and Rita talked about the possibility of Donald Schell 10:26:37 5 taking some medication identified as Prozac." 10:26:40 6 Now, do you recall first of all the police asking you 10:26:43 7 about the medications that Don might have been on? 10:26:59 8 A. I didn't know what kind of medication Don was on. 10:27:01 9 Q. You see the reference to maybe you and Rita talking about 10:27:05 10 the medications he might have been on. Do you recall any 10:27:08 11 discussion about that with either Rita or the police 10:27:12 12 officers? 10:27:12 13 A. Rita talked about maybe that he might need some medication 10:27:18 14 but I don't know the name of what he was on or for sure that 10:27:20 15 he had been put on any. 10:27:21 16 Q. You're an RN, right? 10:27:23 17 A. Right. 10:27:23 18 Q. So you have some knowledge of medications yourself, right? 10:27:27 19 A. Right. 10:27:27 20 Q. Did she talk to you about medications in the context of 10:27:30 21 soliciting your advice whether, A, he should take any; and B, 10:27:35 22 if so, what kind or class of medication? 10:27:39 23 A. No, that's not my scope of practice. 10:28:11 24 Q. I want to follow up on some other questions that 10:28:14 25 Mr. Gorman asked you. 612 10:28:16 1 Mr. Gorman talked about Don being possessive. Was 10:28:20 2 Rita the kind of woman -- how would she react to someone 10:28:24 3 being possessive, whatever that means? 10:28:27 4 A. Well, Rita kind of had a mind of her own. I have a little 10:28:31 5 trouble believing that, you know, she would take somebody 10:28:39 6 being totally possessive. I think they were very comfortable 10:28:42 7 with each other and they were together a lot, but possessive, 10:28:49 8 I don't know. 10:28:50 9 Q. Would you ever use -- I guess would you from what you saw 10:28:52 10 ever use a word like possessive to describe Don? 10:28:56 11 A. No. 10:28:56 12 Q. Would you from your relationship with them ever use a word 10:29:00 13 like submissive to describe Rita? 10:29:04 14 A. No. 10:30:02 15 Q. Mr. Gorman also asked you about Don getting some 10:30:02 16 counseling from Sister Agnes Claire. From what you know of 10:30:02 17 Don and the type of person he was, would he put more stock in 10:30:02 18 doctors or clergy people like Sister Agnes Claire? 10:30:02 19 MR. GORMAN: Objection. That's asking this witness 10:30:02 20 to speculate. 10:30:02 21 THE COURT: Sustained. 10:30:02 22 MR. VICKERY: I have nothing further. 10:30:02 23 THE COURT: Recross? 10:30:02 24 MR. GORMAN: Nothing further. 10:30:02 25 THE COURT: Thank you very much. 613 10:30:02 1 May this witness be permanently excused? 10:30:02 2 MR. VICKERY: Yes, Your Honor. 10:30:02 3 THE COURT: Thank you, Ms. Smith. You're excused 10:30:02 4 from further attendance at this trial. 10:30:02 5 Timing is exquisite. It is about 10:30. We will 10:30:02 6 recess for 15 minutes. 10:30:02 7 (Recess taken 10:30 a.m. until 10:45 a.m.) 10:50:06 8 MR. VICKERY: May I proceed, Your Honor? 10:50:07 9 THE COURT: Yes, you may. 10:50:08 10 MR. VICKERY: We call Miss Shirley Pettigrew. 10:50:44 11 (Witness sworn.) 10:50:46 12 THE CLERK: Please state your name and spell it for 10:50:47 13 the record. 10:50:49 14 THE WITNESS: Shirley Ann Pettigrew, S H I R L E Y, 10:50:54 15 A N N, P E T T I G R E W. 16 17 SHIRLEY PETTIGREW, 18 called as a witness on behalf of the Plaintiffs, being first 19 duly sworn, testified as follows: 20 DIRECT EXAMINATION 10:50:59 21 Q. (BY MR. VICKERY) Good morning. 10:51:00 22 A. Good morning, sir. 10:51:01 23 Q. Did you drive down from Gillette this morning? 10:51:04 24 A. Yes. 10:51:08 25 Q. Miss Pettigrew, if at any time you want and you feel like 614 10:51:11 1 you need water, that water is there for you as a witness. 10:51:15 2 Just help yourself. 10:51:17 3 A. Thank you. 10:51:18 4 Q. How long did you know Don and Rita Schell prior to their 10:51:21 5 deaths? 10:51:23 6 A. You know, Gillette is a small community. I think -- we 10:51:26 7 moved there in '69. I think we came in contact with them in 10:51:31 8 the early '70s and we just knew each other from then on. 10:51:36 9 Q. What was the nature of your initial contact? How did you 10:51:40 10 all get started together? 10:51:41 11 A. Through children. My husband and I have four children and 10:51:44 12 about the same ages as Don and Rita's babies. 10:51:50 13 Q. And so would you meet like at school functions and that 10:51:53 14 sort of thing? 10:51:54 15 A. Yes, sir. 10:51:55 16 Q. Did you have occasion to be with them in their home or 10:51:59 17 them in yours? 10:52:00 18 A. No, sir. 10:52:01 19 Q. Was it mainly as parents of children at school kinds of 10:52:06 20 functions? 10:52:07 21 A. Initially, yes, sir. 10:53:04 22 Q. Now, did you have occasion to work with Rita? 10:53:04 23 A. Yes, sir, I've been a realtor since 1974 and Rita and I 10:53:04 24 were not in the same office, but again, we're a small 10:53:04 25 community and so we did a lot of interacting through realtors 615 10:53:04 1 and things like that. 10:53:04 2 Q. Where maybe one of you would represent a buyer and the 10:53:04 3 other a seller and have to work a deal together? 10:53:04 4 A. Yes, sir. 10:53:04 5 Q. And did you do that with her many times over the years? 10:53:04 6 A. Not often. I think the last transaction she was -- I 10:53:04 7 talked with her the day, I think, before she passed away. 10:53:04 8 Q. Yes. We're going to come to that in a little bit. You're 10:53:04 9 really the last person to talk to Rita Schell alive. Did you 10:53:04 10 know that? 10:53:04 11 A. No, sir. 10:53:08 12 Q. We will talk about that conversation in a little bit. 10:53:08 13 But tell us, if you would, what you observed of Don 10:53:11 14 and Rita. How did they interact with one another? 10:53:14 15 A. Much the same as my husband and I do. 10:53:17 16 Q. Tell us then how you and your hubby relate. I know you 10:53:22 17 call him hubby, don't you? 10:53:23 18 A. Yes, sir, I do. We've been married nearly 40 years and 10:53:28 19 have four children and the kids tease us a little bit, I 10:53:34 20 guess, because we still think we're honeymooners. We walk 10:53:38 21 hand in hand and don't think a thing about it. 10:53:41 22 Q. Did you see Don and Rita doing that? 10:53:44 23 A. Yes, sir. 10:53:44 24 Q. If you go to a social function, a business function or 10:53:47 25 something like that, do you and your husband go your separate 616 10:53:50 1 ways throughout the party? 10:53:54 2 A. Oh, no, sir. We stick pretty much together. Gary isn't 10:53:58 3 real comfortable in crowds and yet he sits and visits with 10:54:01 4 people. We just stay together. 10:54:03 5 THE COURT: Let the record reflect who Gary is. 10:54:06 6 THE WITNESS: I'm sorry. That's my hubby. Thank 10:54:08 7 you. 10:54:09 8 Q. (BY MR. VICKERY) And was Don kind of like that? Did Rita 10:54:12 9 and her husband react in social situations much the same way 10:54:17 10 that you and your -- 10:54:18 11 A. Yes, sir, it seemed that way to us. 10:54:20 12 Q. All right. What kind of words would you use to describe 10:54:22 13 Don Schell? 10:54:53 14 A. Probably shy. He was always very gracious when we would 10:54:53 15 see him. He would sit and visit with Gary and I. 10:54:53 16 Q. Was he a funny man sometimes, joke teller, that kind of 10:54:53 17 thing? 10:54:53 18 A. No, not with us. We talked about kids. He and Gary would 10:54:53 19 talk about work. Just small town visiting, I guess. 10:54:56 20 Q. Did you go to church with them, too? 10:54:59 21 A. No, sir. 10:55:00 22 Q. From all of your contacts with them would you ever use a 10:55:03 23 word like controlling or possessive or anything like that to 10:55:08 24 describe Don Schell? 10:55:09 25 A. No, sir. 617 10:55:34 1 Q. Let me ask you this: At the time of their deaths were you 10:55:34 2 and Rita working some kind of deal together? 10:55:34 3 A. Yes, sir, I was representing a buyer and she was 10:55:34 4 representing the seller. 10:55:34 5 Q. At what stage was that deal? 10:55:34 6 A. We were in counteroffer stage trying to complete the 10:55:35 7 occupancy portion of the negotiation. 10:55:37 8 Q. Okay. And did you -- I mean, was there anything stressful 10:55:45 9 or awkward or unpleasant about that business deal? 10:55:52 10 A. Oh, no. 10:55:53 11 Q. Did you have occasion to call and talk to Rita that night? 10:55:57 12 A. I did. My young couple was most anxious to get in. They 10:56:02 13 had not owned a home in three years, so they were anxious to 10:56:05 14 get out of a rental. 10:56:08 15 And Rita's sellers were military and had been 10:56:12 16 transferred, I believe, to Virginia. And he was getting 10:56:15 17 ready to go out on maneuvers and so we were trying to get 10:56:19 18 everything done so he would have peace of mind knowing his 10:56:22 19 home was sold here. 10:56:25 20 Q. At what time of the evening did you call? 10:56:28 21 A. Probably 9:00 -- between 9:00 and 9:30, 9:15, somewhere in 10:56:37 22 there. 10:56:37 23 Q. Was that unusual for you when you were working a real 10:56:39 24 estate deal to call the other agent at home in the evening? 10:56:42 25 A. No. Obviously we like to do it as much during more 618 10:56:47 1 traditional business hours so we don't take away from family 10:56:51 2 life, but no, we kind of -- they call it now 24-7. We have 10:56:57 3 to accommodate other people's schedules and where Rita's 10:57:02 4 gentleman was getting ready to go out to sea for six weeks, 10:57:06 5 we thought we better complete it. 10:57:09 6 Q. Did you just call her on your own instance or did she know 10:57:13 7 ahead of time you would be calling her at home that evening? 10:57:16 8 A. We had talked back and forth most of day. I think she 10:57:22 9 knew I was calling. 10:57:23 10 Q. Approximately how many times had you talked to her during 10:57:26 11 that day? 10:57:30 12 A. Maybe three, four, possibly five. 10:57:33 13 Q. Did she seem focused on her business? 10:57:36 14 A. Yes. 10:57:36 15 Q. Did she say anything to you at that -- that day about Don 10:57:41 16 or his condition? 10:57:42 17 A. No. I knew her daughter was in town. 10:57:46 18 Q. How did you know that? 10:57:48 19 A. She had shared it with me. We always -- even when we were 10:57:51 20 doing business, we would always talk about our families. 10:57:57 21 Q. And what did she tell you about Deb being in town? 10:58:00 22 A. That she and the grandbaby had been there and had colds or 10:58:05 23 flu and that they had stayed an extra week. 10:58:13 24 Q. Did she say how either she or Don felt about the baby 10:58:18 25 staying an extra week? 619 10:58:19 1 A. I think she was a doting grandma. I think they enjoyed 10:58:22 2 having them. 10:58:23 3 Q. So when you had the last conversation of the business day, 10:58:27 4 how was it left? Was it left that you would call her in the 10:58:31 5 evening, or not? 10:58:32 6 A. Yes, sir, I believe it was. 10:58:33 7 Q. So when you called after 9:00 p.m. did you apologize in 10:58:39 8 any way for calling her at home in the evening time? 10:58:41 9 A. Yes, I did because I thought the buyer would be in from 10:58:44 10 the field a little earlier in the evening and I did apologize 10:58:47 11 for calling that late. I was afraid I had awakened the baby. 10:58:52 12 Q. What did she say? 10:58:53 13 A. Not a problem. In fact, we talked for quite a while again 10:58:57 14 about the kids, about the kids going home in the next day or 10:59:00 15 two. 10:59:00 16 Q. About how long did you talk to Rita Schell that evening? 10:59:06 17 A. I don't know, 10, 15, 20 minutes. 10:59:09 18 Q. And what kind of things did you all talk about? 10:59:12 19 A. Mostly grandbabies. By the way, a little business and 10:59:17 20 then back to the kids. 10:59:18 21 Q. Did you have any conversation sort of harkening back to 10:59:22 22 when her kids were young and yours were? 10:59:24 23 A. Yes. 10:59:25 24 Q. And what was that? 10:59:25 25 A. She told me how lucky I was to have -- at that time my 620 10:59:29 1 grandbabies were all still in Gillette. Now our youngest son 10:59:33 2 has moved to St. Louis, but we just laughed about how quickly 10:59:38 3 they grew up and talked about enjoying the grandchildren 10:59:43 4 because they, too, would grow up. 10:59:46 5 Q. Did you have any discussion with Rita about when both of 10:59:48 6 your boys were young and any of the things they had done? 10:59:51 7 A. We talked about the boys. We talked about the girls. 10:59:57 8 Because their son was about the same age as our boys and then 11:00:00 9 their daughter was close in age to our oldest daughter. 11:00:04 10 Q. So Michael, their son, was about the same age as your son? 11:00:09 11 A. Yeah. 11:00:10 12 Q. And did they do anything together as boys? 11:00:14 13 A. They both were -- our youngest son and Michael were in 11:00:19 14 Westside Elementary school together and I know I served as a 11:00:25 15 room mother and Rita was involved at the school as well. 11:00:31 16 Q. Were your boys in Scouts together? 11:00:35 17 A. I think they were. I know I was a den mother. I never -- 11:00:39 18 if Michael was in, I did not have him in my little den, but I 11:00:45 19 think they were at the little pinewood derby where they build 11:00:51 20 their own little racecars and that. Again, I just don't 11:00:55 21 remember for sure what all functions. 11:00:58 22 Q. Was there anything either that was said or in the tone of 11:01:01 23 Rita's voice that made you feel like you were intruding in 11:01:06 24 any way into their family time? 11:01:07 25 A. No, not at all. We visited for a while and then talked 621 11:01:11 1 business and then I said, "Well, maybe I should let you go." 11:01:15 2 And we ended up talking about kids again. So it didn't seem 11:01:18 3 that I was infringing at all. 11:01:21 4 Q. Okay. How did you leave the business deal that night? 11:01:45 5 A. Rita anticipated a call that evening from them yet or very 11:01:49 6 early in the morning. She thought probably early in the 11:01:51 7 morning because of the time difference between the East Coast 11:01:54 8 and Wyoming. She said she would call me by 8:00. 11:01:58 9 Q. Was she going to call you at home by 8:00? 11:02:01 10 A. No, I told her I would be at the office. 11:02:03 11 Q. And do you know whether she would be calling from her 11:02:05 12 office or from home? 11:02:07 13 A. I did not. 11:02:08 14 Q. Tell me this, just in terms of the way that you have 11:02:13 15 chosen to prioritize your life, does family come first or 11:02:18 16 real estate business? 11:02:19 17 A. Family is always first. 11:02:20 18 Q. How about Rita? 11:02:21 19 A. I believe it was with Rita as well. 11:02:30 20 Q. What happened the next day? Obviously you didn't hear 11:02:33 21 from her. 11:02:34 22 A. I had an appointment at 8:00. When I got back into the 11:02:37 23 office at 8:30 my secretary said she had not called yet and 11:02:40 24 so I called her office. She was not in. I called her home. 11:02:45 25 I did not receive an answer so I called her office back and 622 11:02:48 1 asked them to please let me know the minute I heard from 11:02:53 2 her -- or they heard from her. 11:03:00 3 Q. Was it later that day that you learned about the tragedy? 11:03:03 4 A. Much later, like late afternoon, early evening. I must 11:03:07 5 have called their office about eight times, and in fact the 11:03:10 6 secretary joked about, "Why don't you just get an office over 11:03:13 7 here and you won't have to call?" Everyone told me at her 11:03:18 8 office how out of character it was for her. She was always 11:03:22 9 in there promptly but then she left promptly. 11:03:26 10 Q. What real estate agency were you working with at that 11:03:28 11 time? 11:03:29 12 A. At that time I was with Coldwell Banker. 11:03:31 13 Q. Was she with ERA Boardwalk? 11:03:34 14 A. Yes, sir. 11:03:34 15 Q. Who do you work for now? 11:03:36 16 A. I work for ERA Boardwalk. Coldwell Banker closed the 11:03:40 17 Gillette franchise. 11:03:41 18 Q. And who is the owner of that business, your boss now? 11:03:43 19 A. The owner of ERA Boardwalk is Sherry McGrath. 11:03:48 20 Q. If you need to be home at 4:00 to do something with your 11:03:51 21 family, do you do it? 11:03:53 22 A. Yes, sir. 11:03:54 23 Q. Is there any problem insofar as your employment with your 11:03:56 24 doing that? 11:03:58 25 A. No. If you ask me to look at a home at 4:00, I'll tell 623 11:04:02 1 you I have an appointment, perhaps, and see if 5:00 or 6:00 11:04:06 2 would work for you. If you're -- you know, that is the only 11:04:10 3 time that would work for you, I would work around that. But 11:04:16 4 99 percent of the time I've never had a client feel slighted 11:04:21 5 because my 4:00 appointment may be my grandson's little 11:04:25 6 league game or something. 11:04:28 7 Q. Are real estate sales folks at ERA Boardwalk where you 11:04:33 8 work commissioned salesmen? 11:04:35 9 A. Yes, sir. 11:04:35 10 Q. And do they get paid by the hour or by the houses and 11:04:39 11 property they sell? 11:04:40 12 A. By the transaction and only when it closes. 11:04:44 13 MR. VICKERY: Thank you. I appreciate your coming 11:04:46 14 down from Gillette today. 11:04:47 15 I pass the witness. 16 CROSS-EXAMINATION 11:04:56 17 Q. (BY MR. GORMAN) Mrs. Pettigrew, nice to meet you 11:04:59 18 officially. We met a little bit before and I also thank you 11:05:02 19 for coming down from Gillette today. At least the weather 11:05:08 20 was good. 11:05:08 21 A. Yes, sir. 11:05:09 22 Q. Okay. You have known Don and Rita, at least in a business 11:05:18 23 sense since, I think you said, the 1970s? 11:05:22 24 A. The early '70s. 11:05:24 25 Q. Okay. In that connection did -- are you aware of Don's 624 11:05:32 1 mental health history during the time you first met them up 11:05:39 2 until the time of his death? 11:05:41 3 A. No, sir. 11:05:43 4 Q. Never talked to Rita about that? 11:05:45 5 A. No, sir. 11:05:47 6 Q. Don't know anything about the episodes of depression that 11:05:50 7 he had? 11:05:51 8 A. No, sir. 11:05:52 9 Q. Or the times that he was off work for depression? 11:05:55 10 A. No, sir. 11:06:06 11 Q. The call that you had with Mrs. Schell, that was on 11:06:09 12 February 12th, I believe, of 1998, true? 11:06:13 13 A. I guess. I'm not sure of the dates. 11:06:17 14 Q. Mr. and Mrs. Schell either died late that night or early 11:06:20 15 the morning of the 13th. 11:06:22 16 A. Yes, sir. 11:06:30 17 Q. There's some investigation from the police in the case 11:06:32 18 that indicates that Mrs. Schell arrived home from work the 11:06:38 19 night of the 12th at about 9:15 p.m. 11:06:45 20 You called Mrs. Schell at home, true? 11:06:53 21 A. Yes, sir. 11:06:53 22 Q. We can assume it was sometime after 9:15 if that's when 11:06:58 23 she got home? 11:07:02 24 A. Yes, sir. 11:07:02 25 Q. Do you know, based upon your association with Mrs. Schell 625 11:07:06 1 in real estate, whether or not it was unusual for her to get 11:07:16 2 home from work at 9:15 p.m.? Do you know anything about 11:07:21 3 that? 11:07:21 4 A. No, sir, I do not. 11:07:23 5 Q. Do you know anything about a prohibition Mr. Schell had in 11:07:31 6 the Schell family residence about not taking -- or not 11:07:36 7 encouraging people to call their home after 9:00? Do you 11:07:39 8 know anything about that? 11:07:41 9 MR. VICKERY: Objection, that assumes facts not in 11:07:43 10 evidence. 11:07:45 11 MR. GORMAN: I'm just asking if she knows anything 11:07:47 12 about that, Judge. If she doesn't, I guess she'll tell me. 11:07:50 13 THE COURT: The witness can answer if she knows. 11:07:53 14 A. No, sir, I did not. 11:07:57 15 Q. (BY MR. GORMAN) Do you know Vernon Brown, Mrs. Schell's 11:08:01 16 neighbor? 11:08:02 17 A. Yes, uh-huh. 11:08:11 18 Q. Do you know or have you talked to him at all about any of 11:08:14 19 the events surrounding this tragedy? 11:08:16 20 A. No, sir. 11:08:22 21 MR. GORMAN: Could I have a minute, Judge? 11:08:24 22 THE COURT: Yes, you may. 11:08:25 23 MR. GORMAN: Mrs. Pettigrew, thank you very much. I 11:08:29 24 have nothing further. 11:08:29 25 THE COURT: Any redirect? 626 11:08:30 1 MR. VICKERY: No, Your Honor. 11:08:31 2 THE COURT: May this witness be permanently excused? 11:08:34 3 MR. VICKERY: Yes, sir. 11:08:34 4 MR. GORMAN: Yes, sir. 11:08:35 5 THE COURT: Thank you very much, Mrs. Pettigrew. 11:08:36 6 You're excused from further attendance in this court. 11:08:40 7 THE WITNESS: Thank you. 11:08:44 8 MR. VICKERY: Your Honor, at this time we're going to 11:08:45 9 offer the testimony by deposition of Dr. Patrick Buchanan. 11:08:51 10 Miss Westby is going to read the answers. 11:09:15 11 MR. VICKERY: Let's start on page 3, line 9. 11:09:17 12 Q. "Dr. Buchanan, please state your full name and address for 11:09:20 13 the record. 11:09:21 14 A. Patrick Henry Buchanan, 319 South Gillette Avenue, 11:09:26 15 Number 302, Gillette, Wyoming, 82716. 11:09:30 16 Q. And what is your profession? 11:09:31 17 A. Psychiatrist. 11:09:39 18 Q. Are you currently practicing? 11:09:39 19 A. Yes. 11:09:39 20 Q. How long have you been in practice? 11:09:39 21 A. Little over 30 years. 11:09:40 22 Q. Okay." 11:09:41 23 MR. VICKERY: Unless you want something in between 11:09:42 24 there, Miss Westby, why don't we go to page 5, line 8? 11:09:52 25 MR. GORMAN: I think we should read the whole 627 11:09:54 1 deposition since it was offered. 11:09:57 2 MR. VICKERY: There's colloquies between counsel. 11:10:07 3 Q. "Please, for purposes of making sure that we understand 11:10:10 4 what these records say, will you just read these, read your 11:10:13 5 notes into the record, starting with the first page of the 11:10:15 6 handwritten notes that's identified with March 15, 1993 on 11:10:19 7 top. 11:10:21 8 A. Well, his date of birth of 10/17/37; and I have his 11:10:26 9 address there, Box 1956, Gillette, 82717; has his phone 11:10:33 10 number; and I have referred by Piedmont which was a 11:10:37 11 psychological clinic at the time. 11:10:40 12 Q. Let me stop you there, Doctor. Do you know who he was 11:10:43 13 seeing or being treated by at Piedmont? 11:10:45 14 A. I do not. 11:10:47 15 Q. Okay. Go ahead. 11:10:48 16 A. And I have his recent history: Anxiety, severe, and sleep 11:10:52 17 difficulty. He had a mid-cycle and terminal sleep 11:10:55 18 disturbance for two weeks. 11:10:58 19 Q. And speak slowly. Whenever you read from a document, you 11:11:02 20 tend to talk faster and the court reporter has to take down 11:11:06 21 every word you say. 11:11:07 22 A. His appetite was decreased. He had lost ten pounds over 11:11:11 23 the -- it looks like -- I'm not sure how long. Ten-pound 11:11:17 24 weight loss is what I have. Probably over the previous month 11:11:19 25 is what I usually ask for. 628 11:11:21 1 He denied crying spells and had consistent feelings 11:11:24 2 of depression for the previous two weeks. He had been 11:11:27 3 feeling helpless but denied any feelings of hopelessness and 11:11:32 4 he denied any loss of enthusiasm of life in general. 11:11:36 5 He denied any -- he acknowledged some loss of 11:11:39 6 pleasure in the things he usually enjoyed. He'd had some 11:11:46 7 psychomotor agitation, he had had some decreased energy and 11:11:49 8 had some feelings of worthlessness. He also had a decreased 11:11:54 9 ability to concentrate and at the time he denied any suicidal 11:11:58 10 or homicidal ideation or intent. 11:12:03 11 Q. Continue, please. 11:12:04 12 A. He denied any history of alcohol abuse. He denied any 11:12:07 13 history of drug abuse. He was taking no medications at the 11:12:11 14 time I saw him. He was allergic to codeine, and under 11:12:15 15 serious medical or surgical illnesses, he had pterygium. I 11:12:20 16 don't know how to spell that -- P T E R Y G I U M. It is a 11:12:24 17 little blip on your eyelid. 11:12:26 18 He essentially had a negative past history and he 11:12:30 19 denied any previous medical illness, and he had a past 11:12:34 20 psychiatric history and had seen a psychiatrist in 1989 and 11:12:39 21 1991. And I got his sheet here. 11:12:44 22 And on the back he said, "I've had no real moments of 11:12:47 23 anxiety or depression." The first time was in December of 11:12:51 24 1989 and the second was September or October of 1991. 11:12:58 25 Q. Do you remember if he told you who he had treated with 629 11:13:01 1 during those bouts of depression? 11:13:04 2 A. I do not. And I have a social history. At the time I saw 11:13:07 3 him he was married to his wife, Rita, who was 50 at the time 11:13:12 4 and that was 8/14/1961 they were married. And he had two 11:13:16 5 children, Mike and Deb, who were 26 and 30, respectively. 11:13:22 6 And his family history, it looks like to me his 11:13:25 7 father was 84 at the time and his mother died at the age of 11:13:28 8 62 in 1969 from myocardial infarction, and I have a list of 11:13:36 9 his family members. 11:13:38 10 And it looks like he had an older brother Leonard who 11:13:40 11 was deceased. I can't read the next line. He had an older 11:13:44 12 sister, and an older brother, and then there was -- oh, it 11:13:49 13 was him. And then he had a sister Doris who was 53. Eileen 11:13:54 14 was 51 and Roger, his younger brother, was 47. 11:13:59 15 His religion was Catholic. He graduated from high 11:14:02 16 school in North Dakota and post-high school age work in the 11:14:06 17 oil field. Military in United States Army, 1979 -- I'm 11:14:13 18 sorry -- 1957 to 1959. 11:14:16 19 Q. And let me ask you while you're on the military history, 11:14:18 20 did he mention any psychiatric history that had occurred 11:14:22 21 during the time he was in the military? 11:14:23 22 A. I don't have it down. I don't recall that he did. 11:14:27 23 Q. If he would have told you about that, do you think that's 11:14:30 24 something you would have noted? 11:14:32 25 A. Well, yes, I would have. 630 11:14:36 1 Q. Okay. Go ahead, Doctor. 11:14:38 2 A. Well, where was I? He said he did contract work in the 11:14:42 3 oil fields and he denied any physical or sexual abuse growing 11:14:46 4 up. And my mental status exam is next. I put he was 11:14:54 5 appropriately dressed. His speech was C and L, 11:14:58 6 conversational and logical. His attitude was cooperative. 11:15:01 7 His mood I thought was moderately depressed. His affect was 11:15:06 8 flat which means not much expression. His associations were 11:15:09 9 intact. He was thinking logically. He denied any suicidal 11:15:12 10 or homicidal ideation or intent. He denied any 11:15:15 11 hallucinations. He had some depersonalization symptoms. His 11:15:22 12 head was occasionally floating off his shoulders. 11:15:25 13 Q. And let me stop you there. You describe that as a 11:15:27 14 depersonalization symptom; is that correct? 11:15:31 15 A. Yes, ma'am. 11:15:31 16 Q. And can you elaborate on what you meant by that? 11:15:35 17 A. I put the question in because it tells you how much stress 11:15:38 18 the person is under. If they happen to have these symptoms, 11:15:42 19 it doesn't mean anything significant. When your head feels 11:15:45 20 like it is floating off your shoulders, these people are 11:15:49 21 usually trying to get away from the stress they're enduring. 11:15:53 22 Q. Did that indicate to you anything in terms of anxiety or 11:15:57 23 psychosis? 11:15:58 24 A. Yes, he was under significant stress. 11:16:00 25 Q. Okay. 631 11:16:01 1 A. And then I have he denied any repetitive thoughts or 11:16:05 2 recurrent thoughts that come back day after day. I did not 11:16:08 3 think he was delusional. And he was fully oriented as to 11:16:11 4 time, place, person, situation. His recent memory, his 11:16:16 5 remote memory, his recall, his IQ I thought were within 11:16:19 6 normal limits. His judgment and insight I thought was fair. 11:16:24 7 Q. Just continuing there, line 6, okay, Dr. Buchanan, now if 11:16:30 8 you will go to the other page of handwritten notes that 11:16:33 9 starts with March 15, 1993 at the top. If you would, just 11:16:36 10 read those notes into the record as well. 11:16:40 11 A. Well, at that time I put my impression as major 11:16:42 12 depression, recurrent. And I put treatment: Patient 11:16:46 13 previously on imipramine and lorazepam with good results. 11:16:53 14 Q. Okay. Let me stop you really quickly. When you're 11:16:56 15 talking about major depression, recurrent, describe for me 11:16:59 16 what that means to you. 11:17:01 17 A. Well, what that means is that you have these constellation 11:17:05 18 of symptoms that you've had for two weeks, either depressed 11:17:08 19 mood or a lack of enjoyment of life in general and plus more 11:17:11 20 of the symptoms which is those symptoms. You want me to 11:17:16 21 enumerate the symptoms? 11:17:18 22 Q. Please, yes. 11:17:20 23 A. Well, let's see what he had. He had had a loss of 11:17:22 24 pleasure in his life. He had had psychomotor agitation. He 11:17:27 25 had feelings of worthlessness and decreased energy and 632 11:17:31 1 difficulty concentrating. 11:17:32 2 Q. And were you talking about the medications he was on and 11:17:34 3 the fact that you put him back on imipramine? Did you also 11:17:38 4 put him back on lorazepam? 11:17:41 5 A. Yes, I did. 11:17:42 6 Q. So go ahead and continue with your records, if you would. 11:17:45 7 A. I do not think patient is suicidal and had -- I put I did 11:17:48 8 not think he was suicidal and I put down when he was 11:17:51 9 returning in August for his next appointment. 11:17:54 10 Q. And continue on with the records. 11:17:56 11 A. Well, at that time I had a stamp and I put patient -- he 11:18:00 12 came back on March 29. This patient's mood was improving, 11:18:04 13 denied suicidal ideation. I continued him on the medication 11:18:08 14 and I gave him another appointment in another month. 11:18:11 15 Q. And the next appointment is April 27 of 1993? 11:18:15 16 A. Yes. 11:18:15 17 Q. Please read. 11:18:16 18 A. I put doing well and I continued his medication, and he 11:18:20 19 was returned to see me WCFRA, which is will call for return 11:18:27 20 appointment, within eight weeks, which he never did. 11:18:32 21 Q. Okay. So it is my understanding from your records and 11:18:35 22 notes and the things you said here today that you had 11:18:38 23 documented agitation and severe anxiety that were present 11:18:41 24 before you put him on the medication, is that correct, or put 11:18:48 25 him back? 633 11:18:49 1 A. That's correct. 11:18:49 2 Q. You also have in here some description of his work 11:18:52 3 history. Did he mention anything to you about problems at 11:18:54 4 work, being off work because of his depression? 11:18:56 5 A. I do not recall that. 11:18:58 6 Q. Is that something that would have been in these records if 11:19:00 7 he would have told you something like that? 11:19:01 8 A. Yes. I would have put it down most likely because that 11:19:08 9 would have been part of the stress that he was enduring. 11:19:13 10 Q. Can you tell me how long this episode of depression 11:19:16 11 lasted? 11:19:16 12 A. I cannot do that. 11:19:19 13 Q. Do you have any indication from your records how long it 11:19:21 14 appeared that it had lasted? Go ahead and answer if you can. 11:19:26 15 A. Well, the presumption would be they continued since his -- 11:19:30 16 1989 and 1991 when he had been treated previously. 11:19:36 17 Q. But the last time you saw him was on April 27 of 1993, 11:19:42 18 correct? 11:19:43 19 A. That is correct. 11:19:43 20 Q. And if I understood you correctly, then you told him to 11:19:49 21 call within two months and he never did that? 11:19:49 22 A. He never did that. 11:19:49 23 Q. Okay. Where is Piedmont? Is that a clinic here in town? 11:19:51 24 A. It was at the time. And it was down the street. But it 11:19:53 25 is gone now. 634 11:19:54 1 Q. Do you know what happened to the clinic? Did they join 11:19:58 2 some other facility or did they just -- 11:20:00 3 A. To my recall, I believe they moved out of town and just 11:20:03 4 left. 11:20:04 5 Q. Do you remember if Don Schell's wife was present during 11:20:06 6 any of the visits? 11:20:08 7 A. I don't recall. If she had been, if I had seen them 11:20:11 8 together, I would have put that down. 11:20:13 9 Q. And you don't recall ever meeting her? 11:20:16 10 A. I do not. 11:20:17 11 Q. Do you have an independent recollection of treating Don 11:20:19 12 Schell? 11:20:20 13 A. I think I do vaguely, but not anything concrete. 11:20:24 14 Q. Was there anything unusual or extraordinary that sticks in 11:20:28 15 your mind, sticks out in your mind that makes you recall him 11:20:31 16 specifically? 11:20:32 17 A. Not really. 11:20:37 18 Q. Continuing down on line 18, Doctor, sometimes in medicine 11:20:43 19 there are terms like "denied" that have a particular meaning. 11:20:47 20 Let me direct your attention to the March 15, 1993 note, and 11:20:51 21 as you reviewed it earlier here you said that Mr. Schell 11:20:54 22 denied suicidal ideation or intent. 11:20:56 23 The question is denied has a particular meaning in 11:20:59 24 your field, does it not? 11:21:01 25 A. I assume. 635 11:21:03 1 Q. I mean, you didn't say, 'Well, I think you've got suicidal 11:21:07 2 ideation,' and he denied it, right? 11:21:09 3 A. No. 11:21:09 4 Q. It is different than, you know, if you and I were talking 11:21:13 5 on the phone or in a conversation over a cup of coffee and 11:21:16 6 you were describing something to me that had nothing to do 11:21:19 7 with medicine, you might use the term 'denied' to say you 11:21:22 8 thought it but he denied it, right? 11:21:25 9 A. I don't believe that's correct. 11:21:27 10 Q. So when you noted on March 15, 1993 that he denied 11:21:32 11 suicidal ideation or intent, you didn't have any feeling at 11:21:35 12 that point that he had it but he was denying it, correct? 11:21:39 13 A. You mean -- are you asking if I was making an 11:21:41 14 interpretation of what he felt? 11:21:43 15 Q. No, what I'm talking about -- and I'm sorry, it may not be 11:21:47 16 so clear. When you say he denied suicidal ideation or 11:21:50 17 intent, you're not suggesting that he had it but he was 11:21:54 18 denying it, are you? 11:21:57 19 A. No, sir, I'm not. Point blank I asked the question 'Have 11:22:01 20 you ever had thoughts about killing yourself or anyone else?' 11:22:04 21 I always have and I always do and that's denied when they say 11:22:07 22 no. 11:22:07 23 Q. Right, okay. So it is used as a term of art in the field 11:22:11 24 of medicine for the process you just described, right? 11:22:14 25 A. I'm sorry. I missed what you said, term of art? 636 11:22:18 1 Q. The word "denied" is used -- it has a little different 11:22:21 2 meaning in medical records and the medical field than it does 11:22:24 3 in ordinary conversation, doesn't it? 11:22:29 4 A. To my way of thinking it means no. 11:22:31 5 Q. So you inquired about it and he said no and were you 11:22:34 6 satisfied with that answer? 11:22:35 7 A. Yes, sir, I was. 11:22:38 8 Q. Later on you went into some other references in these 11:22:41 9 records to, you know, denied suicidal ideation. For example, 11:22:45 10 on March 29, March 29, 1993 -- I don't mean to go through all 11:22:50 11 of these same questions again. Your answer would be the same 11:22:53 12 about that visit, too, and the meaning of that suicidal 11:22:56 13 ideation, correct? 11:22:57 14 A. No, sir." 11:23:09 15 MR. VICKERY: Do you want the next colloquy about the 11:23:11 16 plans during the trial? 11:23:14 17 MS. WESTBY: No, that's fine. 11:23:17 18 MR. VICKERY: Go to page 17, line 16. Agreed? 11:23:21 19 MS. WESTBY: Right. 11:23:22 20 Q. "You were asked about having any independent recollection 11:23:24 21 and I think we can appreciate the fact this was some time ago 11:23:28 22 and you're relying on your notes. Did I understand it right 11:23:32 23 that you said you didn't have any independent recollection of 11:23:34 24 meeting with Mr. Schell? 11:23:37 25 A. That's correct. I just have a vague recollection of how 637 11:23:39 1 the man may have looked, but I'm not -- don't know that it is 11:23:43 2 correct. 11:23:44 3 Q. In terms of meeting with his wife, Rita, you said you did 11:23:47 4 not recall that. Are you saying you recall definitely that 11:23:51 5 she wasn't there or you don't recall one way or the other? 11:23:55 6 A. I don't recall, but I think I would have put it on my 11:23:58 7 notes if she would have been with him. 11:24:01 8 Q. I also may have wrote down a reference on March 15, 1993. 11:24:06 9 If I have this right, you noted then that you did not think 11:24:09 10 the patient is suicidal; is that correct? 11:24:12 11 A. That is correct. 11:24:14 12 Q. That's something you would look for in any of your visits, 11:24:16 13 correct? 11:24:17 14 A. Always. 11:24:18 15 Q. And if he were suicidal, you would note that on any visit 11:24:22 16 in which he was suicidal, correct? 11:24:25 17 A. Certainly. 11:24:26 18 Q. And the answer would be the same if he had -- if he were 11:24:28 19 homicidal, in your view, correct? 11:24:30 20 A. Certainly." 11:24:40 21 MR. VICKERY: Top of 19, line 2. 11:24:42 22 Q. "I have some other questions for you, Doctor. Am I 11:24:48 23 correct that you have essentially four -- you have exactly 11:24:48 24 four pages of records on this patient? 11:24:48 25 A. I believe it is three. 638 11:24:49 1 Q. Yes, you're right. I'm sorry. They begin March 15, 1993 11:24:53 2 and the last entry is April 27, 1993, correct? 11:24:58 3 A. That is correct. 11:24:58 4 Q. Could you point to the place in the record where you used 11:25:01 5 the word "agitated" or "agitation"? 11:25:05 6 A. Well, that was -- that's part of my routine evaluation. 11:25:08 7 It is up at the top there where psychomotor retardation or 11:25:12 8 agitation, and I put yes for the agitation. 11:25:15 9 Q. In terms of any notes that follow that, you do not repeat 11:25:21 10 the term "agitation" throughout the rest of your records, do 11:25:24 11 you? 11:25:25 12 A. I don't believe I do. 11:25:26 13 Q. Doctor, if I have it right here then you must have seen 11:25:28 14 Mr. Schell on March 15, March 29 and April 27, 1993, correct? 11:25:34 15 A. Yes, sir. 11:25:35 16 Q. And is that all three of the visits? 11:25:37 17 A. Yes, sir. 11:25:39 18 Q. There are no other visits? 11:25:40 19 A. Not to my knowledge. 11:25:47 20 Q. You treated Don Schell with imipramine and lorazepam; is 11:25:51 21 that correct? 11:25:52 22 A. That is correct. 11:25:53 23 Q. And he told you he had previously been treated with those 11:25:55 24 two drugs; is that correct? 11:25:56 25 A. With good results. 639 11:25:59 1 Q. With good results? And did he have -- what kind of drugs 11:26:02 2 did he have with this treatment on those two drugs?" 11:26:09 3 MS. WESTBY: Mr. Vickery, I think you stated what 11:26:12 4 kind of drugs instead of what kind of results. 11:26:15 5 MR. VICKERY: Let me reread it. 11:26:17 6 Q. "What kind of results did he have with this treatment of 11:26:20 7 these two drugs? 11:26:21 8 A. He responded to the medication when I saw him. I don't 11:26:24 9 know what the ultimate outcome was because I didn't see him. 11:26:28 10 Q. You said he had responded? 11:26:30 11 A. Well, I put improved and I would assume he responded and 11:26:33 12 then doing well to me means he was calm, his mood was 11:26:36 13 improving. 11:26:37 14 Q. So by your records does it appear that he had good results 11:26:40 15 on these drugs at this time? 11:26:43 16 A. At that time when I was seeing him." 11:26:47 17 MR. VICKERY: That concludes the offer of this 11:26:48 18 deposition, Your Honor. 11:26:49 19 THE COURT: Thank you. 11:27:35 20 MR. VICKERY: Mr. Fitzgerald will get our next 11:27:37 21 witness. 11:28:00 22 (Witness sworn.) 11:28:00 23 THE CLERK: Please state your name and spell it for 11:28:02 24 the record. 11:28:04 25 THE WITNESS: My name is Patrick Tobin, T O B I N. 640 1 PATRICK TOBIN, 2 called as a witness on behalf of the Plaintiffs, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 11:28:08 5 Q. (BY MR. FITZGERALD) Where do you live, Mr. Tobin? 11:28:10 6 A. I live in Long Beach, California. 11:28:12 7 Q. And you're Tim's brother? 11:28:14 8 A. Yes. 11:28:15 9 Q. You are the older brother? 11:28:18 10 A. Yes. 11:28:19 11 Q. What is it like being the older brother to Tim Tobin? 11:28:23 12 A. Great, you know. As a kid I was definitely the evil older 11:28:27 13 brother. I was like -- you know, would tease him and get him 11:28:33 14 in trouble, was kind of one of my specialties. 11:28:38 15 Q. Has he forgiven you for that? 11:28:40 16 A. Yeah, definitely. I think after we got out of high school 11:28:43 17 we became really good friends and just enjoyed each other's 11:28:47 18 company. 11:28:48 19 Q. Okay. So we want to focus in on a couple of points here. 11:28:53 20 One of the issues in this case is the loss of care, the loss 11:28:57 21 of comfort and the loss of society that Tim has gone through. 11:29:02 22 So from your perspective we want to bring out some things 11:29:05 23 about what you saw about the relationship between Tim and 11:29:08 24 Deb. 11:29:08 25 A. Okay. 641 11:29:09 1 Q. Let me direct your attention to that first. 11:29:11 2 A. Okay. 11:29:12 3 Q. When did you meet Deb? 11:29:18 4 A. I think they had started dating in '89 and had been dating 11:29:23 5 for about six months, and I finally came up to Billings and 11:29:26 6 got to meet her then. I had been hearing a lot about her 11:29:33 7 which was great because usually, you know, Tim was dating and 11:29:37 8 he would say, "Oh, yeah, I'm dating," and then there was 11:29:43 9 suddenly Deb and there was more about her so I was anxious to 11:29:48 10 meet her. 11:29:49 11 Q. He started telling you about this new relationship he was 11:29:51 12 in? 11:29:52 13 A. Yeah. 11:29:52 14 Q. On the phone or how did he convey this stuff? 11:29:55 15 A. Oh, yeah. We would usually talk at least once a week and 11:30:01 16 so we would catch up. And you start to hear this particular 11:30:03 17 name over and over. "So what's going on with Deb?" And they 11:30:08 18 had met at school and, you know, so it was nice to hear that 11:30:13 19 he had met somebody and was getting serious about her. 11:30:18 20 Q. How did you like her when you met her? 11:30:21 21 A. Oh, I loved her. She was utterly charming. You know, she 11:30:27 22 really went out of her way to make me feel comfortable. And 11:30:33 23 I went out of my way to make her feel comfortable and we 11:30:37 24 really just hit it off right away. 11:30:39 25 Q. All right. They get married. You're at the wedding? 642 11:30:43 1 A. Yeah. 11:30:44 2 Q. What was your role at the wedding? 11:30:45 3 A. I was the best man. 11:30:55 4 Q. What we need to know about is from what you saw and heard, 11:31:02 5 what Tim got out of having this marriage to Deb. 11:31:09 6 A. Well -- 11:31:09 7 Q. Can you tell us about that. 11:31:09 8 A. Yeah. I think, you know, she was -- brought so much -- 11:31:27 9 she really grounded Tim. He -- before he met her he had just 11:31:35 10 been having, I think, the usual what I'm doing with my life, 11:31:40 11 whatever. And she brought a lot of fun and, you know, got 11:31:46 12 him focused. 11:31:48 13 He finished his degree and then they got married in 11:31:52 14 '92 and it just seemed like, you know, they were so 11:31:56 15 supportive of each other. I mean, she, you know, encouraged 11:32:00 16 him in everything he did. And it went both ways. I mean, 11:32:05 17 they moved back up to Billings from Denver so she could 11:32:08 18 finish her degree and, you know, they were -- they did 11:32:16 19 everything together. They went on trips. 11:32:20 20 We would get together -- they would get together with 11:32:22 21 me quite often. We would get together at least a couple 11:32:25 22 times a year. But then they were always doing trips, like 11:32:29 23 just get in the car and go, you know. 11:32:32 24 Q. Okay. I'll ask you about that in just a moment. Before I 11:32:35 25 get too far away, would you describe her as having a positive 643 11:32:39 1 attitude? 11:32:40 2 A. She was the most positive person I know, without a doubt. 11:32:50 3 Q. So you took some trips with them yourself, did you not? 11:32:53 4 A. Yeah. 11:32:54 5 Q. Okay. Well, on a trip sometimes it brings out the best 11:32:58 6 and the worst of us. What did you see? 11:33:03 7 A. Well, we went to Vegas one time and I met them in Vegas 11:33:10 8 and just from the minute we hooked up until, you know, we 11:33:15 9 said good-bye we just had a completely enjoyable experience. 11:33:21 10 You know, they were -- what was great about their 11:33:26 11 relationship is they just appreciated each other's sense of 11:33:29 12 humor and there was a lot of laughter always. 11:33:35 13 Somebody would say, "Hey, let's play blackjack," and 11:33:42 14 we would all go do that. And we would go down to the 11:33:45 15 oriental themed hotel -- I forget the name of it -- because 11:33:49 16 they have 99 cent drinks. We would head down there. It was 11:33:54 17 just really fun and there was not any tension or problems 11:34:20 18 that would come out. Usually when you're traveling with your 11:34:20 19 spouse, there's the inevitable. And they would drive 11:34:22 20 everywhere and I would say most relationships if you're 11:34:27 21 driving together for more than half an hour there's usually 11:34:33 22 some cross words, but there was never any of that with them. 11:34:40 23 Q. They get married in '92 and then Alyssa comes along, 11:34:44 24 right? 11:34:45 25 A. Right. 644 11:34:45 1 Q. And did that change things for them? 11:34:47 2 A. Yeah, they -- Alyssa was born in '97. They were 11:35:22 3 completely excited. They were going to do everything by the 11:35:22 4 book. They were going to do the Lamaze and that book that's 11:35:22 5 What to Expect, Deb was following that. And Tim was 11:35:22 6 definitely a big part of that. They did that, everything 11:35:22 7 together, you know, doctor visits and the Lamaze. 11:35:24 8 Q. You were living in California then, right? 11:35:26 9 A. Right. 11:35:26 10 Q. When Alyssa was due, did you go up to Montana? 11:35:30 11 A. Yeah, I was -- you know, I was -- Tim and I were best 11:35:37 12 friends, besides me and my brother and sister-in-law, so they 11:35:43 13 figured out what the due date was so I was up there the week 11:35:49 14 before she was born. And then I was there, you know, when 11:35:52 15 she was born and I was actually the first person that got to 11:35:57 16 see her besides Tim and Deb. 11:36:00 17 Q. Did you see her with Tim? 11:36:02 18 A. Yeah. 11:36:03 19 Q. Can you tell us about that, please? 11:36:11 20 A. He was so excited. Just completely in love with her from 11:36:14 21 the first minute, you know. You could just tell. You know, 11:36:20 22 when I got in there they were both so happy because, you 11:36:25 23 know, they would take the baby away -- I guess the nurses, 11:36:29 24 you know, would take her off to the side to weigh her or 11:36:33 25 whatever, and they -- I guess she had been fussing and Tim 645 11:36:37 1 had said something like, "Hey, Pooh Bear," and she just got 11:36:43 2 quiet and turned to look where Tim was. It was really -- 11:36:49 3 they were just, you know, so happy. 11:36:52 4 Q. Okay. Later she's christened? 11:37:06 5 A. Can I have some water? 11:37:08 6 Q. Sure. Patrick, what was your role in the christening? 11:37:33 7 A. I was Alyssa's godfather and I had gone up for that. And 11:37:39 8 I think I was up there for like a week and they had -- when 11:37:45 9 Alyssa had been born they had just bought this beautiful 11:37:49 10 house out on the west side of Billings and they hadn't moved 11:37:53 11 into that yet, so when I came back up they had, you know, 11:37:57 12 moved in. 11:37:58 13 The house looked beautiful and they had just settled 11:38:05 14 into, you know, family life. It was just a really, really 11:38:10 15 fun time. We had her -- the christening was great and Deb's 11:38:16 16 good friend Kristy was the godmother. We were just both so 11:38:23 17 happy for Tim and Deb. Alyssa was just so beautiful and they 11:38:31 18 were both really great with her. 11:38:35 19 Q. Did they fix up a room for her in this new house? 11:38:39 20 A. Yeah, they had done up a room for her and, you know, the 11:38:44 21 big theme was Winnie the Pooh. 11:38:47 22 Q. Can you take us to that room? Can we describe that? 11:38:54 23 A. Yeah. It was -- 11:38:58 24 Q. Let me ask you a couple questions about it. You said a 11:39:01 25 Winnie the Pooh theme. What did you mean? 646 11:39:04 1 A. Well, they had done -- there was the night light and they 11:39:10 2 got some artwork that had, you know, Tigger, one of the 11:39:17 3 characters. I'm sort of blanking. 11:39:19 4 Q. Yes, Tigger is one of the characters? 11:39:21 5 A. And Winnie and Piglet and there's -- 11:39:32 6 Q. What color is this room? 11:39:34 7 A. It was painted white and they had gotten -- because she 11:39:40 8 was, you know, an infant, they had gotten all of these toys 11:39:46 9 that -- I guess they say that babies respond to black and 11:39:50 10 white the best, so they had gotten all of these sort of cute, 11:39:54 11 you know, mobiles and things that were hanging over the crib. 11:39:59 12 And they picked this room -- it is like on the corner that 11:40:06 13 got a lot of light during the day so that -- it had windows 11:40:11 14 on both sides, just filled with a lot of light. 11:40:17 15 There was like a little rocking chair, I think, that 11:40:21 16 was from Deb's side of the family, like some -- I don't know 11:40:25 17 if it was a grandmother's or -- there was some 11:40:28 18 significance -- there was some connection to her family. 11:40:33 19 Q. Can you see Tim in the room with his daughter? 11:40:36 20 A. Yeah, I mean, he was definitely totally involved with 11:40:40 21 everything. He would feed her and change her. He was just 11:40:47 22 incredibly gentle with her. Called her Pooh Bear. That was 11:40:51 23 his nickname for her. 11:41:05 24 There was the room and then the big downstairs in the 11:41:07 25 den there was -- they would watch TV and there was a green 647 11:41:12 1 chair that they had bought for Deb during her pregnancy 11:41:16 2 because she was really uncomfortable, so they got her a 11:41:19 3 recliner, and they spent a lot of time down there. And Tim 11:41:25 4 would just have her on the ground just rolling around with 11:41:28 5 her and picking her up and putting her on his stomach. 11:41:35 6 Q. Doesn't have that anymore, does he? 11:41:37 7 A. No. 11:41:42 8 Q. You have been very brave. Thank you. 11:41:51 9 MR. GORMAN: Your Honor, we have no questions for 11:41:53 10 Patrick. 11:41:54 11 Patrick, thank you for coming and testifying. 11:41:58 12 THE COURT: Counsel agree to excuse Mr. Tobin from 11:42:00 13 further attendance? 11:42:03 14 MR. VICKERY: Yes. 11:42:04 15 MR. GORMAN: Yes. 11:42:06 16 THE COURT: Thank you, Mr. Tobin. You're excused 11:42:08 17 from further attendance. 11:42:15 18 MR. VICKERY: May I have a minute, Your Honor? 11:42:16 19 THE COURT: Sure. 11:42:37 20 MR. VICKERY: May we confer with opposing counsel 11:42:39 21 about a scheduling matter, Your Honor? 11:42:41 22 THE COURT: Sure, you may. 11:43:24 23 MR. VICKERY: Your Honor, I was discussing with 11:43:25 24 counsel a logistical question and if the Court will permit 11:43:29 25 it, we have another witness who is driving from Gillette and 648 11:43:31 1 will be right after lunch and wants to get through and go 11:43:34 2 back. So we can start now with Dr. Marks and then interrupt 11:43:40 3 his testimony to put on that other witness. 11:43:42 4 THE COURT: I think that's good use of the jury's 11:43:44 5 time. 11:43:47 6 MR. VICKERY: Very well. We call Dr. Don Marks. 11:43:50 7 (Witness sworn.) 11:44:28 8 THE CLERK: Please state your name and spell it for 11:44:30 9 the record. 11:44:35 10 THE WITNESS: Donald Marks, M A R K S. 11 12 DONALD MARKS, M.D., Ph.D., 13 called as a witness on behalf of the Plaintiffs, being first 14 duly sworn, testified as follows: 15 DIRECT EXAMINATION 11:44:47 16 Q. (BY MR. VICKERY) I said Dr. Marks. Do you have a 11:44:49 17 doctorate degree? 11:44:51 18 A. Yes, I have a doctorate degree. I've a doctorate in 11:44:54 19 medicine and I also have a doctorate in philosophy. I have a 11:44:58 20 Ph.D. in microbiology. 11:45:02 21 Q. So I guess it is Dr. Dr. Marks? 11:45:05 22 A. Yes. 11:45:06 23 Q. Tell us about your educational background. Where did you 11:45:10 24 go to college? 11:45:11 25 A. Yes. I was an undergraduate in California at the state 649 11:45:15 1 university in California, and then I went to graduate school 11:45:18 2 at UCLA and received my Ph.D. in microbiology, immunology in 11:45:25 3 1977. And I also went to medical school at UCLA from 1976 to 11:45:31 4 1980, from which I was graduated with my medical degree. 11:45:36 5 Q. How is it that you decided to do both the Ph.D. in 11:45:39 6 microbiology and the M.D. degree? 11:45:44 7 A. Well, I've always had a very strong interest in medical 11:45:47 8 research, and I felt that it would be helpful to me in my 11:45:51 9 research activities if I obtained the medical degree along 11:45:57 10 with the Ph.D. so that I had both a good understanding of the 11:45:59 11 human body and how it functioned on a theoretical and a 11:46:03 12 practical basis, and also I needed my research degree for 11:46:07 13 training and conducting my medical research. 11:46:10 14 Q. Dr. Marks, did you pursue -- when you started out pursuing 11:46:13 15 those two degree plans did you have a certain career path in 11:46:18 16 mind at that point in time? 11:46:20 17 A. Yes, I've always intended to be involved in medical 11:46:24 18 research, and that has directed my career. In medical school 11:46:28 19 I was actively involved in medical research and 11:46:34 20 transportation, and during my internship and residency I was 11:46:36 21 involved very strongly in research and blood substitutes and 11:46:41 22 sepsis. And then in my four years after my residency, I was 11:46:48 23 working with the Army on blood substitutes and sepsis at an 11:46:55 24 Army research facility. 11:46:57 25 Q. Were you actually in the Army? 650 11:46:58 1 A. I was actually in the Air Force but I was assigned to the 11:47:01 2 Army at that point. And then after that I obtained a 11:47:07 3 position, associate director of research, at Hoffmann LaRoche 11:47:14 4 which is a pharmaceutical company. 11:47:16 5 Q. We'll get there in a minute. First, this residency that 11:47:19 6 you mentioned and your period in the Service, what kind of 11:47:22 7 residency did you do? 11:47:24 8 A. I did a straight internal medicine residency, so that was 11:47:28 9 three years in length and it was required in order to become 11:47:31 10 a board certified internist. During that time I was also 11:47:36 11 affiliated with the Clinical Research Laboratory at the Air 11:47:41 12 Force -- at that Air Force base and I did clinical research. 11:47:45 13 Q. Now, board certified in internal medicine, would you 11:47:49 14 explain to the jury what it means to be board certified in 11:47:51 15 internal medicine? 11:47:53 16 A. Yes. What it means to become board certified, you have to 11:47:57 17 complete first medical school and then go through a 11:47:59 18 three-year program involving all phases of internal medicine 11:48:04 19 which is adult medicine, so you would become proficient in 11:48:08 20 cardiac disease, infectious disease, in general care, and 11:48:16 21 also in some of the specialty areas where we would do 11:48:18 22 rotations, including we did rotations in the psych ward. 11:48:23 23 So at that point after that you complete a series of 11:48:25 24 exams culminating in an exam between one and three years 11:48:30 25 after the residency which is a national exam that all 651 11:48:33 1 internists take and then as a result of passing that exam, 11:48:39 2 you're then certified in the specialty of internal medicine. 11:48:42 3 Q. Now, internist, is that what someone who has completed a 11:48:49 4 residency in internal medicine would call themselves? 11:48:53 5 A. Yes. 11:48:53 6 Q. And was Dr. Patel who prescribed Paxil for Mr. Schell an 7 internist? 11:48:58 8 A. I believe he was, yes. 11:48:59 9 Q. And during the time you were doing your residency and 11:49:03 10 during the years you were in the Air Force did you do any 11:49:06 11 hands-on clinical practice? 11:49:08 12 A. Oh, yes, I did. When I -- as a resident I was required to 11:49:13 13 see patients and manage their care, both as outpatients and 11:49:17 14 also in the hospital, including the intensive care and 11:49:20 15 cardiac units. 11:49:22 16 And then during my four years of research with the 11:49:24 17 Army, I did see clinic on a regular basis and I did also work 11:49:30 18 occasionally in the emergency room at the Army hospital. 11:49:33 19 Q. When did you get out of the Air Force? 11:49:36 20 A. Well, I completed my obligation to them in 1987, but I 11:49:46 21 remained affiliated with the Air Force for at least four more 11:49:51 22 years as a reserve officer, so that would be sometime in the 11:49:54 23 early '80s when I completed my affiliation with them. 11:49:57 24 Q. In those years that you were a reserve officer did you do 11:50:00 25 two weeks of active duty every year? 652 11:50:05 1 A. Yes, I did as a reserve officer two years of duty -- 11:50:09 2 Q. Two years or two weeks? 11:50:10 3 A. Two weeks of duty. It seemed like two years at the time. 11:50:13 4 I did two weeks of duty on a regular basis. I also did 11:50:17 5 rotations with them and other activities. 11:50:21 6 Q. Air Force ever send you to Francis E. Warren airfield in 11:50:25 7 Cheyenne? 11:50:26 8 A. No, but they did send me to Minot, North Dakota once. 11:50:32 9 Q. Now, you mentioned already when you got out of the Air 11:50:35 10 Force you went to work for a pharmaceutical company? 11:50:37 11 A. Yes. 11:50:38 12 Q. Hoffmann LaRoche? 11:50:40 13 A. Yes. 11:50:40 14 Q. Where are they headquartered? 11:50:42 15 A. In Nutley, New Jersey. 11:50:43 16 Q. And did that company at that time have any antidepressant 11:50:48 17 drugs? 11:50:48 18 A. They had Valium which is an anxiolytic medicine. 11:50:56 19 Q. That's a big, tenpenny word and I am the tenpenny police. 11:51:01 20 A. It is a medicine used for treatment of anxiety. 11:51:04 21 Q. How is it you happened to get the job with Hoffmann 11:51:10 22 LaRoche? 11:51:10 23 A. Well, I have a very strong background in medical research 11:51:11 24 and I contacted one of their vice-presidents and asked them 11:51:14 25 if they would be interested in having me conduct -- have a 653 11:51:18 1 position conducting clinical studies in their antibacterial 11:51:23 2 department, so that's the department I went into. 11:51:26 3 Q. You said conducting clinical studies. Give us an idea, 11:51:30 4 just explain in terms that we can all understand, what a 11:51:34 5 physician who works for a pharmaceutical company like 11:51:37 6 yourself does if you're conducting a clinical study. 11:51:41 7 A. Sure. Well, first of all, to actually conduct a clinical 11:51:45 8 study requires a lot of training and research. It is not 11:51:48 9 something a physician would do even if they were board 11:51:51 10 certified in internal medicine. You have to have a 11:51:53 11 background in research. 11:51:55 12 But to conduct a clinical study, you would take a 11:51:59 13 problem that the company would like you to look at, for 11:52:02 14 example, evaluating the effectiveness or the safety of an 11:52:05 15 antibiotic, which is a lot of what I did, and then you would 11:52:08 16 actually design a study, write a protocol that defined who is 11:52:13 17 going to be in the study, how you were going to test the drug 11:52:16 18 on them, what were the markers for the effectiveness of the 11:52:20 19 drug and how the -- what kind of safety issues you would want 11:52:24 20 to look for in the drug. 11:52:26 21 I would have a team of people that worked for me that 11:52:28 22 were mostly nurses and various other assistants and doctors 11:52:33 23 that located physicians' offices where we could test the 11:52:38 24 drug, design report forms that could capture the data and 11:52:42 25 then put together the data in a format that was useful to 654 11:52:46 1 present to the FDA so that we could get approval of our drug 11:52:49 2 or approval for a new indication for our drug. 11:52:52 3 Q. Now, Dr. Marks, when you say you were going to conduct 11:52:55 4 studies, are you talking about prospective studies? 11:53:01 5 A. Well, for the most part they were prospective studies, but 11:53:04 6 sometimes we did retrospective data reviews. For the most 11:53:08 7 part what I did was we would conduct prospective studies 11:53:11 8 which are studies that go forward from a time point and 11:53:15 9 collect data to be obtained in the future. 11:53:20 10 Q. Distinguish that for us, if you would, from retrospective 11:53:24 11 studies. 11:53:24 12 A. Retrospective study means if you would go back and collect 11:53:28 13 data on patients that had already been seen and treated. For 11:53:32 14 example, if you were looking at an antibiotic's 11:53:34 15 effectiveness, what you might do is go to ten VA hospitals in 11:53:41 16 your area and pull the records of all of the patients that 11:53:45 17 had been treated with an antibiotic or different antibiotics, 11:53:48 18 if you were studying antibiotics, for example, and look at 11:53:52 19 the outcomes and adverse events experience from the charts. 11:53:55 20 Q. In designing prospective studies, how important was it for 11:53:59 21 you to define the goals of the study up front? 11:54:03 22 A. Well, you have to define the goals of the study up front 11:54:06 23 because, first of all, defining the goals before you go -- 11:54:11 24 before you start the study reduces a lot of bias. If you 11:54:15 25 have a clear understanding of what it is that you're trying 655 11:54:18 1 to do, it will help you define the criterion for the 11:54:22 2 effectiveness of the drug and also define exactly what it is 11:54:26 3 that you're looking for for safety. 11:54:28 4 And also, since you're experimenting with humans, the 11:54:31 5 FDA really doesn't take -- does not favorably look at doing a 11:54:38 6 study unless you really know what you want to do and what 11:54:41 7 you're looking for to begin with. So it is really important 11:54:45 8 to do that. 11:54:45 9 Q. Do you employ in the design of the studies rating 11:54:48 10 instruments? 11:54:51 11 A. Well, all studies have, I think, a rating instrument of 11:54:54 12 some kind. For antibiotic studies the rating is determining 11:55:00 13 the severity of the disease, the underlying conditions that 11:55:03 14 the patient has and their response to treatment. 11:55:07 15 But also there are rating incidents for adverse 11:55:10 16 events and these are generally rating instruments used 11:55:14 17 throughout the pharmaceutical industry. They're defined 11:55:18 18 strictly for adverse events. They're pretty much defined by 11:55:23 19 the FDA. 11:55:24 20 Q. How many years did you work at Hoffmann LaRoche? 11:55:27 21 A. Between three and four. 11:55:28 22 Q. And other than designing studies, what else did you have 11:55:31 23 to do there? What did your job encompass? 11:55:35 24 A. I was also the safety officer for a number of medicines so 11:55:39 25 when adverse events came in on principally the antibiotics 656 11:55:43 1 that I was studying experimentally but also on drugs which 11:55:47 2 had been licensed but that were under my responsibility for 11:55:55 3 which an adverse event occurred, I was responsible for 11:55:55 4 investigating the adverse event, preparing the forms and 11:55:57 5 forwarding that information to the regulatory department so 11:56:00 6 it could be sent to the FDA. 11:56:02 7 Q. When you say investigating, can you just explain for us a 11:56:05 8 little what that entails? 11:56:07 9 A. Sure. Well, a lot of times you get a report of an adverse 11:56:11 10 event that's occurred on a marketed medication or in an 11:56:16 11 experimental application, and the report will have some 11:56:20 12 information but it won't be sufficient to make a real 11:56:23 13 interpretation of what happened. 11:56:25 14 So part of our training at LaRoche, and Hoffmann 11:56:31 15 LaRoche's policy as a pharmaceutical company, and my 11:56:36 16 familiarity with pharmaceutical companies in general is that 11:56:40 17 this is pretty standard throughout the industry, is that if 11:56:43 18 there's an adverse event, particularly if it pertains to the 11:56:47 19 core safety or efficacy of the drug, that there's interest on 11:56:52 20 the part of the company to investigate the adverse event. 11:56:56 21 And this would involve either -- it could involve 11:56:59 22 requesting records or -- from the patient or their doctor, or 11:57:03 23 it could involve calling the doctor, different things like 11:57:07 24 that. 11:57:08 25 Q. As part of that process, Dr. Marks, would you try to grade 657 11:57:12 1 or rate the severity of the adverse event? 11:57:16 2 A. We could rate the severity. The severity often was 11:57:20 3 evident from the report and often the reporting doctor or 11:57:26 4 study nurse would give us a severity rating. And there isn't 11:57:30 5 a lot of disagreement with that. Sometimes there's 11:57:33 6 disagreement about the relatedness. 11:57:35 7 Q. That's where I was going to take you and let's do it on a 11:57:37 8 question and answer here. 11:57:39 9 In addition to rating the severity, would you try to 11:57:43 10 determine whether or not the incident, the adverse event that 11:57:47 11 the patient had, was -- had been caused by the drug? 11:57:52 12 A. Yes. Well, in general I found in my experience that 11:57:59 13 physicians that are treating with a drug, whether it is 11:58:01 14 licensed or unlicensed, are not -- don't always adhere very 11:58:12 15 strongly to the exact definitions of the words that 11:58:16 16 pharmaceutical companies and the FDA usually like to use. 11:58:21 17 It is important to have kind of a standard language 11:58:23 18 of communication so that everybody knows what they're talking 11:58:25 19 about in the same words. So when we say a drug is -- adverse 11:58:29 20 event is related or it is probably related or it is possibly 11:58:32 21 related, that means one thing to a drug company and to the 11:58:35 22 FDA, but it doesn't always mean the same thing to a treating 11:58:40 23 physician, even if they're studying a drug under a protocol 11:58:43 24 and have it defined. 11:58:44 25 So we want -- we're supposed to, and part of our 658 11:58:50 1 responsibility was to make sure that when a doctor said that 11:58:52 2 a drug's adverse events were related, unrelated or possibly 11:58:56 3 or probably related, that they really were using the correct 11:58:59 4 terminology. 11:59:00 5 So even though we were obligated to report to the FDA 11:59:06 6 the original term used by the doctor in describing the 11:59:09 7 relationship of an adverse event to a drug, we also had the 11:59:13 8 opportunity to use our own rating if it was significantly 11:59:18 9 different. 11:59:20 10 Q. Would you go through the process and determine, as the 11:59:26 11 pharmaceutical company, was this event related to our drug, 11:59:29 12 was it caused by our drug or not? Is that something you 11:59:32 13 would do? 11:59:32 14 A. Yes. 11:59:33 15 Q. Did you ever have any instance where you flat couldn't do 11:59:38 16 it, where it was just impossible? 11:59:41 17 A. There were times where I couldn't make a determination. 11:59:47 18 Sometimes it was because there was totally inadequate 11:59:50 19 information. Sometimes the case just didn't lend itself to 11:59:53 20 that kind of analysis. 11:59:54 21 Q. Did you always try? 11:59:56 22 A. I didn't always try because we didn't investigate every 11:59:59 23 adverse event that came in. Many adverse events were of a 12:00:05 24 nature that wasn't serious, severe or unexpected. But for an 12:00:09 25 adverse event which was serious or it was severe in intensity 659 12:00:15 1 or it was unexpected in its frequency or appearance, then we 12:00:18 2 usually went after those. 12:00:21 3 Q. Those are kind of terms of art, aren't they? 12:00:23 4 A. Yes. 12:00:26 5 THE COURT: This a good place to break? 12:00:28 6 MR. VICKERY: This is an excellent place. We will 12:00:29 7 talk about those terms of art later. 12:00:31 8 THE COURT: You're going to call another witness when 12:00:33 9 we resume and then we'll recall Dr. Marks; is that correct? 12:00:36 10 MR. VICKERY: That's exactly right. It is a fairly 12:00:38 11 short fact witness. 12:00:40 12 THE COURT: Very well. We will take our noon recess. 12:00:43 13 Ladies and gentlemen of the jury, please remember the 12:00:44 14 admonition of the Court and we will stand in recess until 12:00:48 15 1:15 p.m. 12:00:50 16 (Trial proceedings recessed 12:00 p.m. 12:00:53 17 and reconvened 1:15 p.m., May 24, 2001.) 13:16:40 18 THE COURT: Mr. Vickery. 13:16:41 19 MR. VICKERY: If we may proceed, we'll call Nita 13:17:08 20 Rienits. 13:17:10 21 (Witness sworn.) 13:17:11 22 THE CLERK: Please state your name and spell it for 13:17:13 23 the record. 13:17:15 24 THE WITNESS: Nita Rienits, first name 13:17:18 25 N I T A, Rienits, R I E N I T S. 660 1 NITA RIENITS, 2 called as a witness on behalf of the Plaintiffs, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 13:17:25 5 Q. (BY MR. VICKERY) We all know how to spell your name. 13:17:28 6 We've misspelled your name. Where do you live? 13:17:31 7 A. Gillette, Wyoming. 13:17:32 8 Q. Did you drive down this morning at my request? 13:17:35 9 A. Yes, I did. 13:17:36 10 Q. Thank you very much. Tell us, if you would, in what 13:17:40 11 context you knew Don and Rita Schell. 13:17:44 12 A. On a professional basis. They were clients of mine. 13:17:47 13 Q. What kind of work do you do, Miss Rienits? 13:17:51 14 A. I'm a financial planner. 13:17:53 15 Q. Can you explain for us generally what range of services 13:17:55 16 you offer? 13:17:56 17 A. I do everything from mutual funds, stocks, bonds, estate 13:18:02 18 planning, retirement planning. 13:18:03 19 Q. Do you actually help your clients invest their money? 13:18:06 20 A. Yes, I do. 13:18:07 21 Q. And did you help Don and Rita invest their money? 13:18:10 22 A. Yes. 13:18:10 23 Q. For how long a period of time before their deaths? 13:18:15 24 A. Approximately -- they became clients around '93, I think, 13:18:21 25 1993. 661 13:18:22 1 Q. So maybe five years? 13:18:23 2 A. Yeah, over five years. Yeah. 13:18:25 3 Q. How did they become your clients? 13:18:27 4 A. They -- at that point I was working for a broker/dealer 13:18:33 5 across the street from where I am now and they were 13:18:37 6 introduced to me, I believe, from one of the people within 13:18:39 7 the institution I was working at. 13:18:41 8 Q. And can you explain for us when you start to work with a 13:18:44 9 couple what you do in terms of defining the goals and 13:18:48 10 objectives of the couple? 13:18:51 11 A. Well, basically determining what it is that they're trying 13:18:56 12 to achieve. In this situation, he was retiring. He had a 13:19:01 13 retirement rollover; going through their risks, rewards, 13:19:06 14 objectives, time frame of their investments. 13:19:11 15 Q. All right. Was Rita actively involved in real estate at 13:19:16 16 the time she first became your client? 13:19:18 17 A. I believe she was. I believe she was. 13:19:20 18 Q. Miss Rienits, in your business do you kind of have varied 13:19:26 19 experiences insofar as whether husbands and wives share 13:19:32 20 common financial goals and attitudes? 13:19:34 21 A. Yes. I mean, they don't always have the same goals and 13:19:37 22 attitudes, yes. 13:19:39 23 Q. Do you sometimes have them where a husband might have one 13:19:43 24 whole idea and the wife completely different? 13:19:45 25 A. Oh, yes. 662 13:19:46 1 Q. And where one of them might be more financially astute, as 13:19:49 2 my wife is, and the spouse may be not quite so much, as her 13:19:55 3 spouse isn't? 13:19:56 4 A. Yes, uh-huh. 13:19:57 5 Q. Tell us, if you would, kind of how Don and Rita fell into 13:20:01 6 that pattern with you. I mean, how would you describe their 13:20:06 7 common financial approaches and goals? 13:20:09 8 A. Well, actually Don and Rita were pretty compatible that 13:20:12 9 way. I mean, they had very similar goals. I mean, one 13:20:16 10 wasn't real aggressive and one wasn't real conservative. 13:20:20 11 They were very comfortable with joint decisions. 13:20:24 12 Q. Did you meet with them jointly? 13:20:26 13 A. On occasion I did. 13:20:28 14 Q. And in those kinds of meetings would one or the other take 13:20:32 15 charge more, if you will? 13:20:35 16 A. In this situation Don did. It was his IRA account, so it 13:20:39 17 really was his decision. Rita, you know, was there as his 13:20:43 18 partner, but he more or less took charge of that. 13:20:47 19 Q. How about in the ensuing five years? How many occasions 13:20:49 20 did you have to sit down with them together over the next 13:20:52 21 five years and consider their finances? 13:20:55 22 A. Well, basically we try to do reviews at least every six 13:21:01 23 months so over that five-year period of time, at least a 13:21:04 24 couple times of year. Could have been more; it could have 13:21:07 25 been less. 663 13:21:08 1 Q. When you say try to do reviews, is this a deal where you 13:21:10 2 schedule for them to come into your office together and sit 13:21:13 3 down? 13:21:13 4 A. Yes. 13:21:14 5 Q. And in that five-year period with those semiannual 13:21:19 6 reviews, how did they interact insofar as who spoke or took 13:21:24 7 charge of the financial planning? 13:21:26 8 A. Actually, they both interacted. I mean, it wasn't just 13:21:29 9 one. I mean, primarily we took care of the business which 13:21:34 10 was Don's retirement, asking about any problems, that sort of 13:21:39 11 thing. But as far as asking questions, Rita was very free to 13:21:42 12 interact. 13:21:46 13 Q. Did they have any financial problems? 13:21:48 14 A. Not to my knowledge. 13:21:49 15 Q. Were they financially secure? 13:21:50 16 A. I feel they were. 13:21:51 17 Q. And were you the person that was investing their money? 13:21:54 18 A. Yes. 13:21:54 19 Q. And did they have adequate resources for their retirement? 13:21:57 20 A. Yes. 13:21:58 21 Q. Was there ever any occasion in the five years that you 13:22:01 22 handled their finances where there was any worry or strife 13:22:05 23 over money? 13:22:06 24 A. Never in front of me, no. 13:23:08 25 Q. Did you have occasion to see them in any different 664 13:23:08 1 context, social, church? 13:23:08 2 A. Yes. 13:23:08 3 Q. Where? 13:23:08 4 A. Few social occasions. The institution that I rent space 13:23:08 5 from, First National Bank, holds an annual client 13:23:08 6 appreciation dinner and I would always invite them as my 13:23:08 7 clients to come to that and I would see them at that 13:23:08 8 function. 13:23:08 9 And then occasionally probably just out and about, 13:23:08 10 but primarily a social occasion would have been that. 13:23:08 11 Q. And if you were to close your eyes and try to picture Don 13:23:08 12 and Rita in any context other than in your office, what kind 13:23:08 13 of picture jumps to mind? 13:23:08 14 A. Just a very pleasant couple. I mean, very nice couple. 13:23:08 15 They both interacted. They were always very -- seemed very 13:23:08 16 happy, very loving to each other. I've never seen anything 13:23:08 17 else. 13:23:08 18 Q. Were they jokesters or joke tellers or anything like that? 13:23:13 19 A. Yeah, they were. They would talk about their childhood 13:23:13 20 and growing up and they -- yeah, they were. Don liked to 13:23:17 21 joke around. 13:23:18 22 Q. These events that your company or the people next to you 13:23:21 23 sponsored every year where you would invite them, were these 13:23:25 24 large social gatherings? 13:23:26 25 A. Yes, very large. 665 13:23:27 1 Q. And how did Don and Rita do in that context? 13:23:30 2 A. They're very social. 13:23:31 3 Q. They get along well with other people? 13:23:33 4 A. Oh, yes. 13:23:33 5 Q. I mean, did you make it a point to kind of seat some of 13:23:36 6 your clients with other of your clients? 13:23:39 7 A. No, this was something very open, everybody could kind 13:23:41 8 of -- well, a lot of people knew each other. You sat with 13:23:45 9 whoever. It wasn't where I had to hand deliver to a certain 13:23:49 10 table or anything. They just kind of -- we visited a little 13:23:53 11 bit. They kind of went on and visited with other people. 13:24:01 12 Q. The week they died you had some contact with Don, correct? 13:24:05 13 A. Yes. 13:24:05 14 Q. At the time your deposition was taken a few weeks ago, you 13:24:08 15 weren't able to pinpoint whether it was on Tuesday or 13:24:10 16 Wednesday, Thursday, right? 13:24:13 17 A. Yeah, kind of forgot the exact days after a few years. 13:24:16 18 Q. Were you able subsequently to pinpoint it? 13:24:18 19 A. Yes. 13:24:18 20 Q. And what night was it? 13:24:20 21 A. Tuesday night that I spoke with him. 13:24:24 22 Q. That would be the -- 13:24:28 23 A. 10th, I believe. 13:24:29 24 Q. 10th? All right. On that Tuesday night the 10th were you 13:24:32 25 at home when you spoke with him? 666 13:24:34 1 A. Yes. 13:24:34 2 Q. And were you alerted that he was going to call you at home 13:24:37 3 before he did? 13:24:38 4 A. Yes. 13:24:38 5 Q. Did someone at your office alert you to that? 13:24:40 6 A. Yes, my secretary. 13:24:41 7 Q. Had Don ever had occasion to call you at home before? 13:24:44 8 A. Never. 13:24:45 9 Q. So was there some problem that precipitated him calling 13:24:49 10 you? 13:24:49 11 A. Yes. 13:24:50 12 Q. What was it? 13:24:51 13 A. He had received his monthly statement from our firm and 13:24:57 14 the statement -- for whatever reason, there was a problem 13:25:01 15 with the balance on his account. It didn't show a balance 13:25:04 16 and he was very concerned about what happened to his money. 13:25:07 17 Q. And let me stop you right there. Are you saying there was 13:25:09 18 a legitimate problem with the account statement? 13:25:12 19 A. Yes. 13:25:13 20 Q. And I don't want to get too personal about it, but, I 13:25:16 21 mean, should it have been a five-figure number, six figure? 13:25:21 22 Give us a ballpark of how much money. 13:25:24 23 A. It was a high five-figure number. 13:25:28 24 Q. And it showed up zero? 13:25:30 25 A. I believe it was zero, yes. 667 13:25:31 1 Q. Well, was he a little upset? 13:25:34 2 A. Well, by the time I called him back he didn't seem that 13:25:38 3 upset because he had first talked to my secretary and then 13:25:41 4 she had called me and I had called him right back and by that 13:25:45 5 time I explained I'm sure it was just a computer problem, we 13:25:49 6 would take care of it, call him in the morning and he seemed 13:25:52 7 like it was fine, call me in the morning. 13:25:57 8 Q. Was it unusual or untoward to you for a man who got a 13:26:02 9 statement about his retirement money that said it was zero to 13:26:06 10 want to talk to you right away about that? 13:26:08 11 A. No, I felt that was very reasonable. It was -- yeah, I 13:26:15 12 guess I would have done the same thing. 13:26:17 13 Q. Did you, in fact, verify that all of his money was safe? 13:26:20 14 A. Yes. 13:26:21 15 Q. Did your office call the next morning? 13:26:24 16 A. Promptly the next morning, uh-huh. 13:26:26 17 Q. And did you all leave word with him that -- 13:26:29 18 A. Talked to him, yes. My secretary talked to him 13:26:32 19 personally. I don't want to speak for her but basically what 13:26:37 20 she told me is, "Don, this is what your balance is. It won't 13:26:40 21 happen again," type of thing and he was just fine, no 13:26:44 22 problem. And it was less than a 30-second conversation. 13:26:49 23 Q. Did you ever have any other occasion to talk to Don or 13:26:52 24 Rita before their deaths? 13:26:54 25 A. No. 668 13:26:55 1 Q. When and how did you learn that they had died? 13:27:00 2 A. I was trying to remember if it was on the radio or -- I 13:27:03 3 think it was on the radio I had heard it. 13:27:06 4 Q. And what was your first reaction when you heard it? 13:27:14 5 MR. GORMAN: Object to that, Your Honor. That's not 13:27:14 6 relevant. 13:27:14 7 THE COURT: Sustained. 13:27:15 8 MR. VICKERY: Nothing further. I'll pass the 13:27:16 9 witness. 10 CROSS-EXAMINATION 13:27:33 11 Q. (BY MR. GORMAN) Mrs. Rienits, my name is Tom Gorman. We 13:27:37 12 met a little bit before you testified. It is nice to meet 13:27:41 13 you and thank you for coming down from Gillette. 13:27:44 14 The -- this meeting or this phone call that you got 13:27:49 15 from your secretary, your secretary is Vicky Sandau? 13:27:54 16 A. Haines now. 13:27:55 17 Q. It is Vicky Haines now? 13:27:59 18 A. Yes. 13:28:00 19 Q. It used to be Vicky Sandau? 13:28:03 20 A. At the time, yes. 13:28:04 21 Q. This would be Tuesday night, the 10th. Do you recall what 13:28:07 22 time she called you? 13:28:09 23 A. My best guess, it was early evening. It was still 13:28:15 24 daylight, if I recall right. 13:28:16 25 Q. And Don was -- Don was very upset and very angry, wasn't 669 13:28:23 1 he? 13:28:24 2 A. By the time he talked to me, no. 13:28:28 3 Q. When he talked to your secretary he was very upset and 13:28:30 4 very angry? 13:28:31 5 A. That's what she told me, yes. 13:28:34 6 Q. Now, I believe you told Mr. Vickery that Mr. Schell had 13:29:27 7 never called with this type of demeanor before? 13:29:27 8 A. No, not that I recall. 13:29:27 9 Q. Was this after business that he called your secretary? 13:29:27 10 A. Yes, it was at her home. 13:29:27 11 Q. Had Mr. Schell, Your Honor, ever called your secretary or 13:29:27 12 you at your respective homes with questions about his 13:29:27 13 investments? 13:29:27 14 A. Never before, no. 13:29:27 15 Q. So it was very unusual that he was calling you or Miss 13:29:27 16 Haines at home and not during business hours? 13:29:27 17 A. In that circumstance, I guess. 13:29:30 18 Q. Now, this would be two days before Mr. and Mrs. Schell 13:29:34 19 died? 13:29:35 20 A. Yeah, depending, of course. 13:29:39 21 Q. Had you ever seen Don upset or angry like that before? 13:29:42 22 A. No. 13:30:09 23 Q. It is true -- strike that. 13:30:09 24 During the period of time you have known Mr. and 13:30:09 25 Mrs. Schell were you ever aware of Mr. Schell's problems with 670 13:30:09 1 depression? 13:30:10 2 A. No, I did not. 13:30:32 3 Q. When you talked to Mr. Schell, then, the evening of the 13:30:34 4 10th, after your secretary had called you, when you talked to 13:30:38 5 him it is true that your impression of him at that time was 13:30:42 6 that he seemed very down? 13:30:43 7 A. Yes. 13:30:44 8 Q. And he was distant, I think your words were, kind of 13:30:48 9 inside of himself. Is that accurate? 13:30:51 10 A. That's how I described it, yes. 13:31:02 11 Q. Now, you also visited with the law enforcement folks after 13:31:13 12 Mr. and Mrs. Schell died, true? 13:31:15 13 A. Yes. 13:31:16 14 MR. GORMAN: Judge, I'm going to show again a part of 13:31:19 15 Joint Exhibit 243. For your reference and the Court's 13:31:28 16 reference it is page 16 of the 4/16/98 report which makes it 13:31:35 17 the thirty-sixth page in the joint exhibit. 13:31:42 18 Q. (BY MR. GORMAN) You have a little monitor right there, 13:31:45 19 whichever makes it easier to read. Can you read either the 13:32:07 20 monitor by you or -- can you read that? Is that clear? 13:32:11 21 A. Yes. 13:32:13 22 Q. And this is a report that the police filed after their 13:32:21 23 interview with you. Can you read that -- did you read that 13:32:25 24 account? 13:32:27 25 A. Yes. 671 13:32:29 1 Q. Did you tell the authorities the information that's in 13:32:34 2 there? 13:32:43 3 A. Yes. 13:32:43 4 Q. Did you tell them that Mr. Schell had called your 13:32:46 5 secretary and that Don was upset, that's true? 13:32:49 6 A. Uh-huh. 13:32:50 7 Q. Yes? 13:32:50 8 A. Yes. I'm sorry. 13:32:52 9 Q. That he was upset about his account and that when you 13:33:00 10 talked to him he seemed somewhat distracted, would that be 13:33:07 11 accurate? 13:33:07 12 A. Yes. 13:33:07 13 Q. I put an arrow in the bottom sentence that's highlighted. 13:33:11 14 It says, "She," meaning you, "was very surprised by this 13:33:15 15 whole thing." Is that true? 13:33:16 16 A. Yes. 13:33:25 17 Q. You said you had the feeling when talking to Don that he 13:33:28 18 was more upset about something else rather than the condition 13:33:31 19 of his account. Can you tell us what you meant by he 13:33:41 20 appeared to be more upset about something else? 13:33:43 21 A. Just got a sense that there was -- I mean, he was upset 13:33:48 22 about the account. That was -- I understood that. But it 13:33:51 23 seemed like just knowing Don and the conversations I've had 13:33:55 24 with him in the past, I just sensed there was something else 13:33:58 25 but I couldn't tell you what. I just sensed it. 672 13:34:02 1 Q. And that's an impression you formed based upon your prior 13:34:09 2 contacts with Mr. Schell? 13:34:10 3 A. Yeah, my prior dealings with him and then this particular 13:34:15 4 evening and kind of how things developed and the fact that -- 13:34:18 5 I mean, it was okay for him to be upset, but it just seemed 13:34:22 6 like it wasn't Don. 13:34:24 7 MR. GORMAN: Could I have a minute, Your Honor? 13:34:26 8 THE COURT: Yes, you may. 13:34:36 9 MR. GORMAN: Thank you, Mrs. Rienits. I appreciate 13:34:39 10 it. 13:34:42 11 THE COURT: Redirect? 13:34:43 12 MR. VICKERY: About three things. 13 REDIRECT EXAMINATION 13:34:44 14 Q. (BY MR. VICKERY) When you talked to the police there, it 13:34:47 15 says she was very surprised by this whole thing. Why? 13:34:51 16 A. Surprised about the murder, you mean? 13:34:53 17 Q. Yeah, why were you surprised? 13:34:56 18 A. Because there was no indication there was any problems 13:34:58 19 with Rita and Don ever, not to me. 13:35:00 20 Q. Did they ever talk to you about their love for their 13:35:08 21 daughter and their grandchild? 13:35:08 22 A. Oh, yes. 13:35:12 23 Q. Two other things. Mr. Gorman asked you whether or not you 13:35:16 24 were aware of whatever history he may have had with 13:35:20 25 depression. Is it common in your business for people to 673 13:35:25 1 discuss their personal medical or emotional issues with you? 13:35:28 2 A. No, it is not common. 13:35:32 3 Q. Was Don Schell upset or angry by the end of your 13:35:40 4 conversation with him on Tuesday evening? 13:35:41 5 A. No, I didn't sense he was. 13:35:43 6 Q. And based on the report you got from Vicky Sandow, was he 13:35:47 7 upset the following morning when she called and confirmed his 13:35:51 8 money was safe? 13:35:53 9 A. No. 13:35:54 10 Q. Thank you. 13:35:55 11 MR. VICKERY: That's all I have, Your Honor. 13:35:56 12 MR. GORMAN: One other area, Your Honor. 13:35:58 13 THE COURT: Sure. 14 RECROSS-EXAMINATION 13:36:00 15 Q. (BY MR. GORMAN) After your visit with Mr. Schell the 13:36:03 16 evening of the 12th -- the 10th, excuse me -- the 10th of 13:36:11 17 February, he appeared to you to be very down, true? 13:36:14 18 A. Yes. 13:36:15 19 MR. GORMAN: That's all I have. Thank you very much. 13:36:18 20 THE COURT: May this witness be permanently excused? 13:36:21 21 MR. VICKERY: Yes, she may. 13:36:23 22 MR. GORMAN: Yes, Your Honor. Thank you. 13:36:25 23 THE COURT: Thank you very much, Miss Rienits. 13:36:28 24 You're permanently excused from further attendance at this 13:36:30 25 trial and are free to return to your home. 674 13:36:33 1 THE WITNESS: Thank you. 13:36:44 2 MR. VICKERY: Your Honor, with the Court's permission 13:36:45 3 we will continue with the examination of Dr. Marks. 13:36:48 4 THE COURT: Very well. 5 6 DONALD MARKS, M.D., Ph.D., 7 called as a witness on behalf of the Plaintiffs, being 8 previously duly sworn, testified further as follows: 9 CONTINUED DIRECT EXAMINATION 13:37:26 10 Q. (BY MR. VICKERY) Dr. Marks, before the lunch hour you 13:37:26 11 were talking about some terms relating to adverse events and 13:37:26 12 I would like to get those down here. 13:37:30 13 What is it when you were working with Hoffmann 13:37:38 14 LaRoche, talking about your background, that you had to 13:37:43 15 decide with respect to each adverse event? 13:37:48 16 A. At Hoffmann LaRoche and Connaught Pasteur Merieux where I 17 was the director of clinical research, and Immunomedics where 13:37:52 18 I was the vice-president of this area, we looked at issues of 13:38:00 19 causation and we looked at issues of relatedness, whether the 13:38:09 20 adverse events that would come in were related in time. Did 13:38:13 21 they occur around the time they took the pill or got the 13:38:16 22 vaccine, and whether there was a causal relationship known, 13:38:20 23 whether the adverse event has been seen before. 13:38:23 24 So, for example, with aspirin you would -- it 13:38:27 25 wouldn't be unexpected that somebody would have an upset 675 13:38:31 1 stomach with aspirin, so that would be a known causal event. 13:38:35 2 Whether they had any underlying illnesses, that could 13:38:38 3 also explain it; whether they were taking any other medicines 13:38:41 4 that were also noted to cause the same adverse event. 13:38:45 5 Q. Is relatedness the buzzword you would use for talking 13:38:49 6 about causation? 13:38:50 7 A. Yes. 13:39:19 8 Q. Are there degrees of relatedness? 13:39:19 9 A. Yes, there are. 13:39:19 10 Q. What would they be? 13:39:19 11 A. They range from unrelated to possibly related, probably 13:39:22 12 related and definitely related. And those are actually 13:39:25 13 definitions for these terms so that when a prescribing or 13:39:31 14 reporting physician or health care worker says probably 13:39:34 15 related, that if they're speaking the same language that the 13:39:38 16 FDA and the pharmaceutical companies speak, that everybody 13:39:41 17 will know exactly what they're saying. 13:39:44 18 Q. Now, in addition to determining the relatedness, what else 13:39:46 19 did you have to determine? 13:39:52 20 A. The severity, seriousness and expectedness. 13:39:55 21 Q. Are those three distinct things? 13:39:57 22 A. Yes. 13:39:57 23 Q. Let's take severity first. 13:41:11 24 A. Severity relates to generally intensity. If an adverse 13:41:11 25 event is mild, moderate or severe, like a headache, would it 676 13:41:11 1 be mild, moderate or severe. That would be the intensity or 13:41:11 2 the severity. That's a description of the adverse event. 13:41:11 3 Q. Okay. And what was the next one you said, seriousness? 13:41:11 4 A. Seriousness. And generally -- 13:41:11 5 Q. Let me stop you right there because seriousness sounds 13:41:11 6 like severity to me. Is there a distinction? 13:41:11 7 A. They're completely different terms. 13:41:11 8 Q. Let me write this down first and then tell us. 13:41:11 9 A. That's why it is really important that everybody that is 13:41:11 10 involved in evaluating an adverse event use the same 13:41:11 11 terminology because it eliminates confusion. 13:41:11 12 Seriousness, or what is generally referred to as 13:41:11 13 serious adverse event, SAE, inside the pharmaceutical 13:41:11 14 industry and the FDA, everybody knows what that means: An 13:41:11 15 adverse event is fatal, life threatening, requires prolonged 13:41:11 16 hospitalization. And there are several other things that 13:41:11 17 deal with seriousness, but those are the top three. 13:41:17 18 Q. Seriousness then would include fatal, life threatening? 13:41:18 19 A. Fatal, life threatening, prolongation of hospitalization, 13:41:21 20 birth defect; several other different categories under that 13:41:29 21 term. 13:41:36 22 Q. I believe you said you had to make a decision about 13:41:39 23 whether something was expected or unexpected. What's the 13:41:42 24 buzzword there? 13:41:43 25 A. It is expectedness or -- expectedness, whether an adverse 677 13:41:53 1 event is expected. If it is -- if you're studying a drug, 13:41:53 2 then the information you have on the drug's performance in an 13:41:57 3 animal or in early human studies will tell you whether the 13:42:01 4 adverse event is something you might expect. 13:42:04 5 So, for example, if you were studying a drug treating 13:42:07 6 hypertension and in animals you knew that it caused a change 13:42:12 7 in their blood chemistries, and then you saw that in early 13:42:17 8 animal studies, if you were studying it further and you saw 13:42:22 9 it in humans, you would say it is expected, it is not 13:42:25 10 unexpected. So it would affect your influence. 13:42:28 11 Whereas, if something completely out of the blue came 13:42:30 12 in, that would be unexpected. 13:42:33 13 Similarly, for an expected adverse event for a 13:42:36 14 marketed drug like -- well, like Paxil, the way you would 13:42:41 15 determine whether it is expected or not would be from the 13:42:43 16 adverse events that are listed in the package insert which is 13:42:48 17 the pamphlet that comes with the drug and is available to all 13:42:52 18 doctors in a large book called the PDR. 13:42:55 19 Q. Let me stop right there and let me get that word 13:43:02 20 "expectedness" down. 13:43:14 21 You mentioned a couple companies after Hoffmann 13:43:16 22 LaRoche. Are those both pharmaceutical companies? 13:43:19 23 A. Well, Connaught Pasteur Merieux was primarily a vaccine 13:43:22 24 company and Immunomedics is a company that makes radioactive 13:43:27 25 antibodies for -- that are injected into persons and used in 678 13:43:31 1 diagnosis of cancer and infectious diseases. 13:43:34 2 Q. Dr. Marks, what labeling would you use to describe what 13:43:38 3 you have done in the pharmaceutical industry? 13:43:43 4 A. Clinical research and regulatory affairs, clinical 13:43:46 5 research being the study of drugs and vaccines in persons for 13:43:50 6 efficacy and safety and regulatory affairs is a term that 13:43:54 7 refers to those people in the pharmaceutical industry that 13:43:56 8 deal with the FDA. 13:44:02 9 Q. Would it be fair to call you a research scientist? 13:44:05 10 A. Yes. 13:44:22 11 Q. Let's get to your opinions in this case. They involve two 13:44:25 12 areas, right? 13:44:26 13 A. Yes. 13:44:27 14 Q. Is one of them testing? 13:44:31 15 A. Testing. 13:44:32 16 Q. And is one of them warnings? 13:44:33 17 A. Yes. 13:44:33 18 Q. And tell us, if you would, what is your opinion about 13:44:36 19 warnings? 13:44:39 20 MR. PREUSS: Your Honor, I will object for the record 13:44:43 21 and the grounds raised in the Daubert motion reasserted at 13:44:47 22 this time and reserve any questioning to my cross. 13:44:51 23 THE COURT: Very well. 13:44:53 24 Q. (BY MR. VICKERY) You may answer now. What is your 13:44:56 25 opinion about warnings? 679 13:44:57 1 A. Well, based on my experience in constructing package 13:45:01 2 inserts, analyzing adverse event patterns for drugs and in 13:45:09 3 presenting that information to the FDA, my opinion is that 13:45:12 4 the warnings for this particular drug were inadequate. 13:45:20 5 Q. Are there, in fact, any warnings about the drug leading 13:45:23 6 to -- 13:45:24 7 A. There are no warnings at all that the drug could 13:45:26 8 potentially cause suicide. 13:45:29 9 Q. You have never testified before in a court of law with a 13:45:31 10 jury and everything? 13:45:32 11 A. Never. 13:45:33 12 Q. Housekeeping rule. You see this nice lady right here. 13:45:35 13 She's going to make a nice clean record if you and I don't 13:45:39 14 talk at the same time. I know you can tell halfway through 13:45:44 15 the question what I'm asking, so please wait until I'm 13:45:47 16 through, okay. 13:45:48 17 A. Okay. 13:45:48 18 Q. With respect to testing, what is your opinion about 13:45:52 19 testing or the lack thereof? 13:45:55 20 A. My opinion is that SmithKline did not test the hypothesis 13:46:00 21 that the drug was capable of causing suicidal or homicidal 13:46:05 22 ideation in persons that took it. 13:46:07 23 Q. Should they have? 13:46:08 24 A. Yes. 13:46:09 25 Q. Now let's talk about the bases of those opinions. 680 13:46:12 1 First, with respect to the warnings issue, we're 13:46:16 2 going to need to look at an exhibit in evidence. 13:46:20 3 MR. VICKERY: Your Honor, we have not yet handed out 13:46:22 4 the jurors' exhibit notebooks for the joint exhibits. May I 13:46:26 5 do that at this time? 13:46:28 6 THE COURT: Any objection? 13:46:31 7 MR. GORMAN: No, Your Honor, except we've got the 13:46:33 8 screen. 13:46:33 9 THE COURT: You can hand them out if you wish. 13:46:36 10 MR. GORMAN: I have no objection. 13:46:43 11 MR. VICKERY: A little light reading for each of you. 13:47:16 12 MR. GORMAN: I apologize, Judge. This isn't my 13:47:18 13 witness. I shouldn't have been answering the Court. I 13:47:22 14 apologize. 13:47:23 15 THE COURT: That's all right. 13:47:29 16 Q. (BY MR. VICKERY) Okay. Dr. Marks, Exhibit 244 is a 13:47:38 17 document right near the end of these notebooks and it is 13:47:42 18 called aggression. What do you understand this document -- 13:47:45 19 you don't have one, do you? 13:48:10 20 MR. VICKERY: Let's give everone a chance to get on 13:48:13 21 the same page. 13:48:14 22 A JUROR: What was the number? 13:48:16 23 MR. VICKERY: 244. It says aggression on the front. 13:48:20 24 Q. (BY MR. VICKERY) What do you understand this report to 13:48:23 25 be? 681 13:48:25 1 A. My understanding is that this is an internal report 13:48:29 2 prepared by SmithKline analyzing a database that they have 13:48:38 3 for certain specific terms. Maybe I should explain what a 13:48:38 4 database is. 13:48:39 5 Q. That's a good idea. Tell us, what is one? 13:48:42 6 A. Okay. In the pharmaceutical industry we have large 13:48:47 7 computer files that are registries of certain types of data 13:48:55 8 like adverse events so you can call up on a computer, like a 13:48:58 9 Lotus spreadsheet, for example, if you know that, contains a 13:49:02 10 listing of all of the adverse events, a number so you can 13:49:07 11 find it and any information known about the person like their 13:49:10 12 sex, their age, where it occurred, what was any kind of 13:49:14 13 information on relatedness. So it is a huge computer 13:49:16 14 database. 13:49:18 15 And it is the kind you can query. Query is a term 13:49:21 16 used in computer work where you can ask the computer a 13:49:25 17 question. You can make a query. Like if SmithKline had a 13:49:30 18 database of 10,000 adverse events, which is possible, you 13:49:34 19 could say to the computer, "Show me all the adverse events 13:49:39 20 that had the word in it suicide," or, "Show me all the 13:49:46 21 adverse events with homicide, suicide in it." And that's 13:49:50 22 what they did to make this report. 13:49:52 23 Q. I know you weren't here yesterday afternoon or this 13:49:54 24 morning when the deposition of Dr. Ian Hudson was played, but 13:50:00 25 have you read his deposition before rendering your reports in 682 13:50:03 1 this case? 13:50:04 2 A. Yes, I did. I did read it. 13:50:13 3 Q. He says this document was never filed with the FDA. What 13:50:16 4 do you think about that? 13:50:17 5 A. I think that -- I have a problem with that because even 13:50:20 6 though the document was created internally to answer internal 13:50:24 7 issues such as what is the reporting incidence of these 13:50:33 8 terms, still, the significance of the report when it came 13:50:36 9 back showed so many suicides and homicides that, taken 13:50:40 10 together, they have a special significance of their own. 13:50:45 11 The preponderance of data, the mass of information is 13:50:48 12 such that as an isolated event, independent of the individual 13:50:53 13 events, the mass of the information should have been released 13:50:56 14 to the FDA so that they could have made their own 13:51:02 15 interpretation of the data when it was presented as a group 13:51:05 16 rather than individually. 13:51:06 17 Q. Dr. Hudson also said that this internal report on 13:51:09 18 aggression is not subject to publication, peer review, in 13:51:14 19 other words, not in the public domain in any way. What do 13:51:16 20 you think about that? 13:51:19 21 A. Well, I have a problem with that also because as a 13:51:21 22 treating physician, treating physicians rely on the 13:51:25 23 information disclosed to them by the pharmaceutical company 13:51:29 24 to make appropriate treatment decisions for the care of their 13:51:33 25 patients. 683 13:51:34 1 So as a treating physician, you would -- your 13:51:39 2 principal sources of information would be the information on 13:51:41 3 the package insert that comes with the drug and it is also 13:51:45 4 available in the PDR which you all have probably seen, a big 13:51:48 5 book available in the library and so on, and also contacts 13:51:52 6 from the drug reps that come by to hand you out information 13:51:56 7 and information that you read in medical journals. 13:51:58 8 But if that information isn't available, particularly 13:52:01 9 the kind of information in here, it would be impossible for 13:52:03 10 someone to be aware of these types of adverse events, to 13:52:08 11 watch for them on an appropriate basis in their patients and 13:52:11 12 to learn appropriately how to manage them if they looked like 13:52:14 13 they were happening. 13:52:15 14 Q. Okay. What is it in this report that you found important 13:52:23 15 to your opinion that they should have warned about suicide or 13:52:25 16 violence? 13:52:26 17 A. Well, their tabulation of the data, even without their 13:52:31 18 determination of relatedness, just the sheer numbers that 13:52:34 19 they found, were very significant. 13:52:37 20 For example, on table 2 which is on page, looks like, 13:52:51 21 15 or 18 -- yeah, page 18 -- 13:52:53 22 Q. Does your copy have a little par number on the bottom? 13:52:57 23 A. Yes. 13:52:59 24 Q. What's the par number? 13:53:00 25 A. 5537. 684 13:53:10 1 Q. What's significant about the data on that table? 13:53:12 2 A. Well, again, what they did, they had a database of the 13:53:14 3 adverse events that they were aware of, so that these are 13:53:18 4 primarily reports that have gotten back from physicians or 13:53:21 5 from the FDA. 13:53:23 6 And in this report they've gone -- they looked for 13:53:26 7 certain key words. They looked for words like hostility, 13:53:30 8 aggression, combativeness reaction, murder and violence, and 13:53:38 9 they came up with the table in the lower right-hand corner 13:53:41 10 showing 457 cases. 13:53:44 11 Now, they found of those cases that one -- in the 13:53:49 12 first column labeled Fail there is one death during their 13:53:55 13 clinical studies. During their post-marketing surveillance, 13:54:01 14 which is their network of gaining information on drugs that 13:54:04 15 they've marketed, they didn't find any fatalities, but they 13:54:08 16 got ten reports from -- spontaneous reports from physicians 13:54:14 17 in the field and one report from regulatory, so apparently 13:54:14 18 the FDA told them of one. That left a total of 12 deaths. 13:54:24 19 Q. Let me ask you about the spontaneous reporting business. 13:54:27 20 What would prompt a doctor in the field to report an incident 13:54:30 21 like this to the FDA or to the company? 13:54:38 22 A. That's an interesting question because in treating 13:54:40 23 depression suicide itself can be -- 13:54:43 24 MR. PREUSS: Objection, Your Honor, no foundation 13:54:45 25 this witness knows anything about depression or its 685 13:54:48 1 treatment. 13:54:51 2 MR. VICKERY: That's probably a good objection. Let 13:54:53 3 me rephrase. 13:54:54 4 Q. (BY MR. VICKERY) Just in general, without making it 13:54:56 5 specific to depression, what would prompt any physician to 13:54:59 6 report to the company or to the FDA about an adverse event 13:55:03 7 that happened after they gave somebody a pill? 13:55:07 8 A. In general a physician would report an adverse event to 13:55:11 9 the FDA or to the company, either one, if the adverse event 13:55:16 10 seemed unusual, unusually severe, unusually serious or 13:55:24 11 totally unexpected from the information they've had on the 13:55:26 12 adverse event either from their own experience giving the 13:55:29 13 drug or from information they had been given about the drug 13:55:32 14 from the company. 13:55:33 15 Q. Let me ask you this: When you've worked on the company 13:55:36 16 side with your company hat on in your past and you had a 13:55:41 17 report from a physician, just the fact that that physician 13:55:44 18 makes the report, did that lead you to think that the 13:55:47 19 physician suspected the drug, some involvement of the drug? 13:55:52 20 A. Yes, because if the -- if someone experiences an adverse 13:56:26 21 event and you know it isn't related to the drug, there's 13:56:26 22 really no point to going to the trouble of filing an adverse 13:56:26 23 event report. 13:56:26 24 Q. What's the conventional wisdom in the industry about the 13:56:26 25 percentage of adverse events that happen that are picked up 686 13:56:26 1 by the system? 13:56:26 2 MR. PREUSS: Objection, no foundation. 13:56:26 3 THE COURT: Let's find out how this witness would 13:56:26 4 know that. 13:56:26 5 Q. (BY MR. VICKERY) Have you had extensive experience in the 13:56:26 6 past as a company safety officer working for a pharmaceutical 13:56:29 7 company? 13:56:29 8 A. Yes. 13:56:29 9 Q. And in such capacity have you had interaction with the FDA 13:56:33 10 and discussions with them about how effective the adverse 13:56:36 11 event reporting system is in picking up real events? 13:56:39 12 A. Yes. 13:56:40 13 Q. Okay. Let me ask my question again, then. What's the 13:56:43 14 conventional wisdom as to the percentage of real adverse 13:56:47 15 events that are actually picked up by the FDA's system? 13:56:51 16 MR. PREUSS: Objection, Your Honor. That's pure 13:56:55 17 hearsay. 13:56:55 18 THE COURT: Let's find out if the witness -- yes or 13:56:57 19 no, if he knows the answer, and then how he knows it. 13:57:00 20 Q. (BY MR. VICKERY) Do you know the answer? 13:57:01 21 A. Yes. My understanding from information I received from 13:57:04 22 the FDA, which is actually available on FDA websites and from 13:57:10 23 FDA's Office of Information would be that they would say and 13:57:12 24 have said, both on their website and in public meetings at 13:57:17 25 the FDA, that the rate of reporting is less than 10 percent. 687 13:57:21 1 My experience is actually that it is closer to 1 13:57:25 2 percent, but it is definitely in the 1 to 10 percent area. 13:57:30 3 Q. So when we look at figures like this, do we assume that 13:57:32 4 the real incidence of adverse events that's going out is 13:57:37 5 anywhere from 10 to 100 times higher? 13:57:41 6 A. Yes. 13:57:42 7 Q. Okay. What else is there, then, on Table 2 that caused 13:57:46 8 you to believe that SmithKline Beecham should be warning 13:57:49 9 about violence or suicide? 13:57:51 10 A. Well, first of all, they refer to 12 fatalities but then 13:57:57 11 they go on in the report in the second paragraph starting 13:58:00 12 with the remaining -- because they did start off by excluding 13:58:03 13 53 cases. They threw out 53 cases right off the bat -- 13:58:09 14 Q. Wait a minute. Why did they do that? 13:58:10 15 A. Well, they said that the patients didn't fit their 13:58:14 16 criteria for review or they had other reasons why they were 13:58:18 17 excluding them. For example, in two of the reports they said 13:58:22 18 that the adverse events were really a manic reaction, which 13:58:29 19 is a term for psychological manifestation, and in 53 reports 13:58:34 20 the reported event did not refer to aggression. For example, 13:58:37 21 there were reports of feelings of anger or shouting so they 13:58:41 22 felt they weren't significant. 13:58:43 23 Q. Let's focus on that for a minute, Dr. Marks. Are you 13:58:46 24 saying they were excluded because somebody in inputting the 13:58:50 25 data in the computer did not use the word "aggression"? 688 13:58:54 1 MR. PREUSS: Objection, Your Honor, no foundation. 13:58:56 2 THE COURT: Sustained. 13:58:58 3 Q. (BY MR. VICKERY) All right. Let me ask you this: This 13:58:59 4 here says that the reported events did not refer to 13:59:05 5 aggression ("feelings of anger, shouting"). 13:59:12 6 Now, if I were to shout at you, would you view that 13:59:20 7 as potentially aggressive? 13:59:20 8 A. Yes. So these were terms that -- these were cases that 13:59:22 9 actually popped up when they looked for certain key words. 13:59:25 10 But then they went back and looked at the cases and decided 13:59:29 11 that at least 53 of the 55 cases didn't fit what they were 13:59:33 12 looking for so they excluded them from the analysis. 13:59:36 13 Q. How about the analysis on the remaining 396 reports? 13:59:39 14 A. Well, first of all, they found 25 homicides, so that 13:59:46 15 doesn't go with 12 fatalities, if a homicide is a fatality. 13:59:51 16 And then on top of the 25 homicides they found 22 homicidal 13:59:56 17 ideations, and 27 reports of attempted homicide or severe 14:00:03 18 physical violence. So totalling that all up that comes to 74 14:00:09 19 cases of either homicide or near homicide in their database 14:00:13 20 that they were aware of. 14:00:15 21 This is separate from suicide. It is a separate 14:00:17 22 issue from suicide, that they were aware of 74 cases of 14:00:20 23 homicide that were not -- that information was not made 14:00:25 24 available to the FDA or to physicians prescribing their drug. 14:00:29 25 Q. And if we just follow the FDA's 10 percent rule, if there 689 14:00:34 1 was 74 cases that they were aware of homicide, does that 14:00:39 2 translate to there being actually 740 victims of homicide out 14:00:44 3 there? 14:00:45 4 A. My -- 14:00:46 5 MR. PREUSS: Objection, pure speculation. There's no 14:00:48 6 foundation from this witness. 14:00:50 7 THE COURT: I think that's going far afield. 14:00:52 8 Sustained. 14:00:53 9 Q. (BY MR. VICKERY) Dr. Marks, is there anything else on 14:00:55 10 Table 2 of significance to your opinion about their failure 14:00:57 11 to warn? 14:00:59 12 A. Well, there, looking at the 25 homicides, there's a 14:01:54 13 breakdown of the age distribution and 20 of the homicides 14:01:54 14 were in persons less than 40 years old and 5 of them were 14:01:54 15 less than 20 years of age at the time of homicide. These are 14:01:54 16 homicides. I'm not talking about suicides now. 14:01:54 17 And of those 25 that they refer to in their second 14:01:54 18 paragraph, 10 of the 25 occurred within the first month of 14:01:54 19 therapy, 3 were immediately posttherapy, 1 was within one to 14:01:54 20 two days of therapy, one within six days and one within two 14:01:54 21 weeks of starting therapy. 14:01:54 22 So it seemed like some of the homicides that they had 14:01:54 23 in the database occurred on individuals that were on Paxil 14:01:54 24 for a very short amount of time. 14:01:54 25 Q. Let me just read this sentence to you starting on the 690 14:01:54 1 bottom of page 5537, the last sentence, "14 of the patients 14:01:58 2 were reported to be receiving paroxetine therapy at the time 14:02:01 3 of the event. Where known, the time to onset ranged from a 14:02:06 4 few hours to approximately 14 months after starting 14:02:11 5 paroxetine therapy and in 10 reports the events occurred 14:02:15 6 within the first month of therapy." 14:02:18 7 Was it significant to you that 10 of the 14 14:02:22 8 instances where there were homicides occurred within the 14:02:25 9 first month that the people were getting that pill? 14:02:28 10 A. It is significant because it raises issues of monitoring 14:02:34 11 the patients receiving the drug if there's a relatedness 14:02:38 12 between the homicide and the Paxil. 14:02:40 13 Q. Was it significant to you that in at least one instance 14:02:43 14 there was someone who had this homicide within hours of 14:02:47 15 taking the pill? 14:02:51 16 A. Yes, it is significant. 14:02:53 17 Q. Now, is there anything else about this table or the 14:02:56 18 explanatory materials of Table 2 that were important to your 14:03:00 19 opinion with respect to their failure to warn? 14:03:12 20 A. Just in terms of the homicides that we've discussed, that 14:03:18 21 was very significant. Of course there were also suicides 14:03:21 22 that weren't homicides and the homicides that didn't involve 14:03:26 23 suicides. 14:03:27 24 Q. Is there a Table 3 here as well that you found 14:03:29 25 significant? 691 14:03:40 1 A. Yes. 14:03:40 2 Q. Can you direct us to the page? 14:03:41 3 A. The number at the bottom is 5569. 14:04:13 4 Q. This table on 5569 says, "Reports of aggression retrieved 14:04:13 5 from the ADROIT database." What did you find significant 14:04:13 6 about this? 14:04:14 7 A. This is another database that's not a SmithKline database 14:04:18 8 but for another database in this case belonging to the 14:04:23 9 Medicine Control Agency in England. And they found in this 14:04:27 10 report a total of 16,785 events involving paroxetine, 14:04:39 11 including 80 reports of aggression and one report of violent 14:04:45 12 thought. 14:04:50 13 So using another database separate from their own 14:04:53 14 internal database they were able to find evidence of 14:04:57 15 potential problems with the drug in this area. 14:05:00 16 Q. Well, all of the drugs up here have chemical names? 14:05:09 17 A. Yes. 14:05:09 18 Q. We've heard some of them already. Paroxetine, you know 14:05:11 19 what that is, the brand name? 14:05:13 20 A. Paxil. 14:05:14 21 Q. Fluoxetine, what's the brand name for that? 14:05:17 22 A. Prozac. 14:05:17 23 Q. How about sertraline? 14:05:19 24 A. Zoloft. 14:05:20 25 Q. And are the other drugs listed there SSRI drugs? 692 14:05:29 1 A. To my knowledge, they are. 14:05:47 2 Q. Dr. Marks, have you for years worked within the framework 14:05:50 3 of the FDA regulations with respect to warnings? 14:05:53 4 A. Yes, I have. 14:05:54 5 Q. And are there two that are particularly significant to 14:05:57 6 your opinions in this case? 14:06:00 7 A. Yes, I think so. 14:06:01 8 Q. What are they? 14:06:02 9 A. Well, first of all, I think you're referring to the FDA 14:06:08 10 regulations that govern in general the warnings issue and 14:06:12 11 these are all contained in 21 CFR, which is a large 14:06:16 12 collection of rules. 14:06:18 13 And in these collection of rules there's one rule in 14:06:21 14 particular called 201.57. These are all rules that 14:06:26 15 pharmaceutical companies operate under. These are FDA rules 14:06:33 16 and all pharmaceutical companies are required to follow the 14:06:37 17 rules in preparation of their warns. 14:06:39 18 This particular rule, it is a well-known rule, 14:06:42 19 everyone in the pharmaceutical industry knows this that's 14:06:45 20 involved in preparing warnings. This is a specific rule 14:06:47 21 requiring content and format of warnings in package inserts. 14:06:54 22 And in this rule it says that under this heading, "The 14:07:00 23 labels," meaning the package insert labels that you see with 14:07:04 24 the drug, "shall describe serious adverse events which are 14:07:12 25 adverse events that are fatal, life threatening or requiring 693 14:07:17 1 prolonged hospitalization and potential safety hazards, 14:07:20 2 limitations in use imposed by them and steps that should be 14:07:22 3 taken if they occur." 14:07:25 4 The labeling should be revised to include a warning 14:07:27 5 as soon as there is reasonable evidence of an association of 14:07:31 6 a serious hazard with the drug and a causal connection need 14:07:37 7 not have been shown. 14:07:38 8 Q. Let me stop and follow up on that. In your experience 14:07:41 9 working for pharmaceutical companies, do they implement 14:07:51 10 warnings before waiting to do a randomized clinical trial to 14:07:56 11 prove whether they exist or not? 14:07:58 12 A. You can do that. You can actually issue a dear doctor 14:08:02 13 letter which is a letter sent to all prescribing doctors. It 14:08:06 14 is kind of a set way to do it. It is a way to communicate 14:08:09 15 with doctors. 14:08:10 16 You can make a change in the package insert without 14:08:14 17 the FDA's permission as long as you're increasing the 14:08:17 18 warnings about an adverse event or potential adverse event if 14:08:22 19 it is thought to help the doctor in prescribing the 14:08:25 20 medication. 14:08:25 21 Q. Is there an FDA regulation that says that? 14:08:28 22 A. Yeah, there is another regulation that says that, 14:08:29 23 actually. There's a regulation called 314.70. 14:08:33 24 Q. Tell us what that one provides. 14:08:35 25 A. That regulation, which is also well-known inside the 694 14:08:38 1 pharmaceutical industry, particularly the people that prepare 14:08:40 2 package inserts, says that a change in the warning label that 14:08:43 3 adds or strengthens a contraindication, warning, precaution 14:08:49 4 or adverse reaction may be made by the company before FDA 14:08:53 5 approval. 14:08:54 6 So you don't have to wait for FDA approval. If you 14:08:58 7 think there's a problem, you can make the change. 14:09:00 8 Q. Dr. Marks, does the label for Paxil contain anything to 14:09:05 9 alert a physician that's prescribing this drug that the pill 14:09:10 10 they're about to prescribe might for some people precipitate 14:09:13 11 violent or suicidal behavior? 14:09:15 12 A. There's no such warning in the package insert. 14:09:19 13 Q. Do you believe that there should be one? 14:09:20 14 A. Yes, based on the information that I've seen. 14:09:24 15 Q. Should it appear in bold-faced type, say? 14:09:27 16 A. I think it should be bold warning because -- what is known 14:09:31 17 as a black box warning or a bold warning because the 14:09:34 18 potential adverse event is so serious, potentially fatal for 14:09:41 19 either the person taking the drug, or for the victim of the 14:09:45 20 person taking the drug if you're talking about homicide. 14:09:49 21 Q. Let's change gears for a minute and talk briefly about 14:09:51 22 your opinion with respect to the failure to test item. 14:09:57 23 Do you think that SmithKline Beecham should have done 14:10:01 24 some more investigation or testing -- or some? 14:10:06 25 A. I think that there was a lot of room for additional 695 14:10:09 1 testing that obviously would have been undertaken. 14:10:14 2 Q. Now, we said additional, and of course the jury has 14:10:17 3 already heard the testimony from the -- from four of the five 14:10:21 4 in-house people there. 14:10:23 5 Do you recall reading in the depositions that you 14:10:27 6 read prior to formulating your report that they've never done 14:10:31 7 a prospective study to look into this issue? 14:10:34 8 A. It is correct, they have not. 14:10:36 9 Q. Well, what kind of prospective study could they do? 14:10:39 10 A. Well, they could have done -- 14:10:41 11 MR. PREUSS: No foundation, Your Honor. It is beyond 14:10:43 12 the expert designation in this case. 14:10:47 13 I will be glad to read to the Court from the expert 14:10:50 14 designation on page 5. 14:10:52 15 THE COURT: Hold on a minute, please. I will follow 14:10:54 16 along with you. 14:10:55 17 MR. VICKERY: Okay. 14:11:00 18 THE COURT: Page 5? 14:11:02 19 MR. VICKERY: Yes, Your Honor. Under Testing 14:11:03 20 Investigation, second paragraph, begins, "Although it would 14:11:07 21 be difficult to study the question of whether or not Paxil 14:11:15 22 causes suicide or homicide by means of an RCT, it is not 14:11:15 23 entirely impossible to use similar methodology. Indeed, I've 14:11:17 24 reviewed a study protocol written by Dr. Charles Beasley at 14:11:21 25 Eli Lilly concerning the proper method to test concerning 696 14:11:24 1 whether Prozac induced suicidality in some patients. Beasley 14:11:29 2 considered three alternative possibilities." 14:11:31 3 I could read on, but it is covered squarely in his 14:11:34 4 report. 14:11:36 5 THE COURT: Ask your question again. 14:11:38 6 Q. (BY MR. VICKERY) What method could they have used to 14:11:40 7 conduct a prospective study to investigate this question? 14:11:45 8 A. Well, the most common or obvious protocol that they could 14:11:52 9 have implemented would be a challenge, rechallenge or 14:11:56 10 challenge, dechallenge protocol where you have persons that 14:12:00 11 have -- either are at risk of having this adverse event or 14:12:05 12 have experienced it in some way in the past, either with 14:12:07 13 Paxil or with another SSRI and then exposed them to the drug 14:12:10 14 and seen what adverse events they experienced. 14:12:15 15 Q. Bear with me just a minute. 14:12:29 16 The one you referenced in your report, the one 14:12:31 17 drafted by Charles Beasley at Lilly, have you looked at that 14:12:35 18 study protocol? 14:12:36 19 A. I've looked at it, yes. 14:12:38 20 Q. Is that the kind of document that you in your career at 14:12:43 21 Hoffmann LaRoche wrote? 14:12:45 22 A. Yes. Actually, in my career I have been -- and this 14:12:51 23 happens very typically in the pharmaceutical industry. I've 14:12:54 24 been responsible for drugs within my specialty area and also 14:12:57 25 for drugs that are not within my specialty area, and that is 697 14:13:01 1 a type of protocol I could very well have written or been 14:13:05 2 involved with. 14:13:06 3 Q. Are you aware from reading Dr. Wheadon's deposition in 14:13:09 4 this case that when he was working over at Lilly he's one of 14:13:12 5 the people that worked with Dr. Beasley in designing this 14:13:15 6 protocol? 14:13:16 7 A. Yes. 14:13:16 8 Q. Is there any reason that you know of why SmithKline 14:13:20 9 Beecham could not have used this or a similar protocol to 14:13:23 10 study this issue? 14:13:25 11 MR. PREUSS: Objection, no foundation, Your Honor. 14:13:27 12 THE COURT: I think he can answer that question. 14:13:29 13 He's in a position to do so. Objection overruled. 14:13:32 14 A. I know of no reason. 14:13:34 15 Q. (BY MR. VICKERY) Now, in addition to that, in your report 14:13:37 16 you mention that they could have done something else with 14:13:40 17 respect to looking at or analyzing suicides that had already 14:13:45 18 happened. 14:13:46 19 A. Yes. 14:13:46 20 Q. What is it that you believe they could or should have done 14:13:51 21 in that regard? 14:13:52 22 A. Well, I think that -- let's just take away the issue of 14:13:57 23 suicide or any particular type of adverse event and just go 14:14:00 24 into the general area of looking at an adverse event that 14:14:03 25 comes in that's serious and severe. I think that one -- my 698 14:14:08 1 experience with the pharmaceutical companies I've worked 14:14:13 2 with, and also that I've come in contact with in my 14:14:15 3 professional career -- because I'm a member of several 14:14:19 4 professional societies of pharmaceutical physicians and 14:14:22 5 regulatory professionals -- so I know how other people at 14:14:26 6 other companies handle this, if the adverse event is serious, 14:14:30 7 severe or unexpected, very often you can request information 14:14:34 8 from the treating physician or you can ask for the medical 14:14:37 9 records. 14:14:39 10 If the person is still alive, you can go and talk to 14:14:41 11 the person or their physician or their nurses. There are a 14:14:44 12 lot of different ways that if you need information, you can 14:14:47 13 get it, you can get additional information. It isn't always 14:14:51 14 that hard to get. 14:14:52 15 Q. Now, have you been in the position of doing that? 14:14:55 16 A. Yes, I've been in the position of going out and getting 14:14:58 17 adverse event information on cases that were reported to me 14:15:01 18 that were not involved in studies I was doing. 14:15:05 19 Q. When you say going out to get, are you talking about 14:15:07 20 getting on the telephone or have you actually physically had 14:15:09 21 to get out and go somewhere to investigate an adverse event? 14:15:13 22 A. Well, typically what I would do is I would call the 14:15:16 23 physician that reported it or the family that reported it or 14:15:20 24 the patient, if they're still alive, and ask them questions. 14:15:23 25 Or I would have people that work for me do that and then 699 14:15:25 1 review the results with them. 14:15:27 2 But sometimes I would actually physically go out and 14:15:30 3 do it. I know there's one case I went to a hospital in 14:15:33 4 Pittsburgh and went and actually spoke with the doctor that 14:15:37 5 had some serious adverse events. 14:15:40 6 And in another case, a company I worked for had an 14:15:42 7 adverse event, actually a death on a vaccine, and they sent 14:15:46 8 me to Okinawa. 14:15:49 9 Q. You went all the way to Okinawa just to investigate that 14:15:53 10 adverse event? 14:15:54 11 A. For one adverse event. I interviewed the doctor, looked 14:15:58 12 at the medical records, was involved in the autopsy and saw 14:16:04 13 everything there is to see. 14:16:04 14 So, you know, if it is really important to a company, 14:16:05 15 they will send you out there. They will send their people 14:16:07 16 out there. 14:16:08 17 Q. Is the company generally able, if they try, to determine 14:16:13 18 whether this event is related to the drug or not? 14:16:16 19 A. It depends how they get the information. For example, if 14:16:18 20 the information comes from a third party like a family member 14:16:22 21 or a nurse or, you know, an attorney sometimes will tell the 14:16:27 22 FDA about cases. Sometimes there isn't enough information to 14:16:30 23 go back and see who is the person, who is the doctor. 14:16:35 24 A lot of adverse events you do have all of that 14:16:38 25 information, it is right on the adverse event report, and you 700 14:16:41 1 can make that query. You can actually talk to the doctor. 14:16:43 2 There are ways to do it. It is not always available, but 14:16:46 3 many times it is. 14:16:55 4 Q. Do you believe that SmithKline Beecham should have done 14:16:57 5 psychological autopsies on the various adverse events that 14:17:00 6 were listed in this aggression report, the homicides and the 14:17:04 7 suicides? 14:17:05 8 A. I think that SmithKline should have used whatever 14:17:09 9 resources they had available and whatever experts they had 14:17:15 10 available to help them to determine the etiology of these 14:17:19 11 adverse events. 14:17:22 12 Q. Etiology? Tenpenny police will get you. 14:17:25 13 A. Etiology means the cause of the adverse events, what 14:17:28 14 caused it, whether it was the drug or not. 14:17:30 15 Q. Dr. Marks, how many of the incidents reflected in that 14:17:35 16 aggression study involve situations like we have in this case 14:17:39 17 where someone committed homicide and then took their own 14:17:42 18 life? 14:17:42 19 A. I have the number here. I think I have the number. But 14:17:45 20 there were -- of the 25 homicides that they reported, either 14:17:51 21 7 or 8, depending on how you count their numbers, also 14:17:55 22 committed suicide during the homicide. 14:18:00 23 MR. VICKERY: Thank you. I pass the witness. 24 CROSS-EXAMINATION 14:18:35 25 Q. (BY MR. PREUSS) Good afternoon, Dr. Marks. 701 14:18:37 1 A. Afternoon. 14:18:37 2 Q. We haven't met before, have we? 14:18:39 3 A. No. 14:18:40 4 Q. How you doing this afternoon? 14:18:42 5 A. Okay, thank you. 14:18:43 6 Q. Now, your medical training is in internal medicine, 14:18:49 7 correct? 14:18:49 8 A. Yes. 14:18:50 9 Q. And have you had any training in psychiatry, sir? 14:18:53 10 A. No. 14:18:54 11 Q. None at all? 14:18:55 12 A. No training in psychiatry. I've done rotations in 14:18:58 13 psychiatry for parts of my training, but my training is not 14:19:03 14 really in that area. 14:19:04 15 Q. And when you were at Hoffmann LaRoche, you mentioned 14:19:09 16 Valium was a drug that you -- that the company had there, 14:19:14 17 right? 14:19:14 18 A. Yes. 14:19:15 19 Q. Is that an antidepressant, sir? 20 A. I'm sorry? 14:19:18 21 Q. Is it an antidepressant? 14:19:22 22 A. It is an anxiolytic. It is used for anxiety. 14:19:26 23 Q. It is not an antidepressant, is it? 14:19:28 24 A. No. 14:19:29 25 Q. Did you work on any drug there that was an antidepressant, 702 14:19:33 1 sir? 14:19:33 2 A. No. 14:19:34 3 Q. Have you ever in your medical career? 14:19:35 4 A. Not in the pharmaceutical industry, no. 14:19:41 5 Q. And you indicated you were a safety officer for Hoffmann 14:19:44 6 LaRoche? 14:19:44 7 A. I was, yes. 14:19:45 8 Q. For how long, sir? 14:19:46 9 A. For close to four years. 14:19:47 10 Q. And any antidepressant drugs you were responsible for 14:19:54 11 there? 14:19:55 12 A. No. 14:19:55 13 Q. Any drugs that you were responsible for there that had 14:19:58 14 suicide or homicide alleged as a potential association with 14:20:03 15 the product? 14:20:04 16 A. No. 14:20:13 17 Q. Did you work with Hoffmann LaRoche in the regulatory 14:20:18 18 affairs or the safety department? 14:20:20 19 A. I was in the clinical research department, and I was 14:20:24 20 responsible for the clinical research and safety for the 14:20:27 21 antibiotics I was working on. 14:20:29 22 Q. You don't hold yourself out as an expert in suicidology, 14:20:33 23 do you? 14:20:33 24 A. No. 14:20:33 25 Q. Or psychology? 703 14:20:34 1 A. No. 14:20:34 2 Q. Or psychiatry? 14:20:36 3 A. No. 14:20:36 4 Q. Or SSRIs? 14:20:37 5 A. No. 14:20:40 6 Q. And you're not an expert on akathisia or suicide, right? 14:20:43 7 A. Correct. 14:20:46 8 Q. And you're not an epidemiologist, right? 14:20:49 9 A. No. 14:20:50 10 Q. Not an expert in psychopharmacology? 14:20:53 11 A. No. 14:20:54 12 Q. Or neuropsychopharmacology? 14:20:57 13 A. No. 14:20:58 14 Q. And you're not a biostatistician, are you? 14:21:02 15 A. No. 14:21:02 16 Q. With respect to the Paxil label, sir, the only people that 14:21:05 17 you've talked to about the Paxil label at the time you were 14:21:09 18 deposed in this case was Dr. Maltsberger and Dr. Healy, 14:21:13 19 correct? 14:21:15 20 A. Yes, correct. 14:21:26 21 Q. And the only person that has ever asked you to determine 14:21:29 22 whether or not a warning should be changed on a particular 14:21:32 23 product have been plaintiff attorneys; isn't that right? 14:21:44 24 A. I am involved in a defense action in which warnings are an 14:21:51 25 issue, but I don't think that that involves package inserts 704 14:21:55 1 so I think in general the answer to your question is yes. 14:21:59 2 Q. And this isn't the first time you've been engaged by 14:22:02 3 Mr. Vickery? 14:22:04 4 A. He has asked me for help on another case. 14:22:07 5 Q. I see. In that other case is Dr. Healy involved? 14:22:11 6 A. I don't think so. 14:22:12 7 Q. Dr. Maltsberger? 14:22:14 8 A. I don't think so. 14:22:15 9 Q. Do you know? 14:22:16 10 A. No. They were not involved -- they were not involved with 14:22:19 11 me. I didn't meet with them or discuss with them. 14:22:26 12 Q. So you don't know whether they've been involved by 14:22:26 13 Mr. Vickery or not? 14:22:27 14 A. No. 14:22:32 15 Q. Now, when you were a safety officer at Hoffmann LaRoche, 14:22:36 16 sir, you pursued information on adverse experience reports 14:22:40 17 that were reported to you, right? 14:22:42 18 A. Yes. 14:22:42 19 Q. Sometimes you were able to get the information, sometimes 14:22:45 20 you were not, right? 14:22:46 21 A. Yes. 14:22:48 22 Q. You did your best job to get it done, right? 14:22:51 23 A. Yes. 14:22:51 24 Q. And you had no personal knowledge that your counterparts 14:22:54 25 at SmithKline didn't do the same thing with respect to these 705 14:22:57 1 reports that you've been discussing here; isn't that right? 14:23:01 2 A. I have no knowledge either way. 14:23:09 3 Q. And you felt that you did your job to the best of your 14:23:11 4 ability when you were at Hoffmann LaRoche, didn't you? 14:23:15 5 A. Yes. 14:23:15 6 Q. Did you ever do any internal audits, sir? 14:23:20 7 A. Do you mean to produce a study such as this with key 14:23:24 8 words? 14:23:25 9 Q. That's correct? 14:23:26 10 A. We did. 14:23:26 11 Q. And did you send that to the FDA? 14:23:29 12 A. If the reports were appropriate, we did notify the FDA. 14:23:32 13 Q. But not all reports went to the FDA, did they? 14:23:35 14 A. Not all reports, no. 14:23:39 15 Q. Sometimes they're just to make sure that everything is in 14:23:42 16 order in your own shop and that's why you did internal 14:23:45 17 reports, right? 14:23:46 18 A. Yes. 14:23:58 19 Q. When you were deposed you said when you were pursuing 14:24:00 20 adverse experience reports at Hoffman LaRoche you said you 14:24:04 21 never had occasion to get records from a doctor. Is that 14:24:09 22 testimony correct? 14:24:09 23 A. I don't recall saying that because we did for adverse 14:24:12 24 events reported to us go back and get source data. That 14:24:17 25 would include the medical records from the doctor, the 706 14:24:20 1 hospital, the prescribing information, so on. So we did go 14:24:24 2 back and get source data. 14:24:27 3 Q. Let's look at your deposition, please. 14:24:46 4 MR. PREUSS: May I approach? 14:24:47 5 THE COURT: Yes, you may. 14:24:49 6 Q. (BY MR. PREUSS) Page 53, lines 8 through 11. 14:25:02 7 A. Page 53, lines 8 through 11? 14:25:05 8 Q. Yes, sir. 14:25:07 9 A. "As I said, did you ever request medical records?" 14:25:10 10 "I don't think so. I don't recall doing so." 14:25:14 11 Well, in thinking about it more since then, I can 14:25:16 12 remember a few instances where I actually did request 14:25:19 13 records. 14:25:19 14 Q. But you didn't remember when you were deposed? 14:25:21 15 A. I didn't remember at that time. 14:25:22 16 Q. And you remember that you were deposed based upon your 14:25:25 17 expert report? 14:25:26 18 A. Yes. 14:25:27 19 Q. And don't you feel that we had a right to rely upon your 14:25:30 20 testimony at that time when you were under oath giving that 14:25:33 21 deposition, sir? 14:25:34 22 A. Yes. 14:25:45 23 Q. You said that SmithKline should have done appropriate 14:25:47 24 clinical trials with respect to the issue of suicide and 14:25:50 25 homicide as it relates to Paxil? 707 14:25:52 1 A. I don't think I said clinical trials. I think they should 14:25:55 2 have investigated it further, and one way to do so would have 14:25:57 3 been clinical trials, but there are other ways to do so. 14:26:01 4 Q. You have not reviewed any data, have you, sir, from 14:26:04 5 SmithKline with respect to preclinical or clinical data that 14:26:09 6 SmithKline has accumulated on this product; isn't that right? 14:26:12 7 A. I have reviewed data I've been presented on the SmithKline 14:26:19 8 program with relation to Paxil, but I have not reviewed their 14:26:23 9 NDA, their IND or any integrated summary of safety and 14:26:29 10 efficacy or any other data they have on this issue, no. 14:26:32 11 Q. Right. The only thing you reviewed was this aggression 14:26:35 12 report which we'll get to later, right? 14:26:37 13 A. Yes. That's not the only thing I've reviewed but -- 14:26:40 14 Q. That came from SmithKline, right? 14:26:43 15 A. Yes, I think so. 14:26:44 16 Q. And the package insert? 14:26:46 17 A. Yes. 14:26:52 18 Q. You were talking about a psychological autopsy, right? 14:26:55 19 A. The question to me was whether a psychological autopsy 14:26:58 20 would be an appropriate way to proceed, and rather than 14:27:02 21 specifically answering a psychological autopsy, since I'm not 14:27:05 22 a psychiatrist, as you pointed out, I said that the company 14:27:09 23 should have used appropriate methodologies for that type of 14:27:13 24 adverse event to investigate it. I didn't get specific to 14:27:17 25 answer that particular technique since it is not a technique 708 14:27:21 1 that I'm really expert in. 14:27:23 2 Q. And you told us in your deposition that you weren't an 14:27:25 3 expert in that, right? 14:27:26 4 A. That I was not -- I said in my deposition that I'm not a 14:27:29 5 psychiatrist or psychologist. 14:27:31 6 Q. And that you were not -- didn't have the expertise as to 14:27:36 7 what would be involved in an appropriate psychological 14:27:38 8 autopsy, isn't that what you said? 14:27:41 9 A. I don't recall saying that, but if you can point it out to 14:27:44 10 me, I'm willing to concede that because it is true. 14:27:47 11 Q. Okay. Now, did you do psychological autopsies when you 14:27:53 12 were at Hoffmann LaRoche? 14:27:55 13 A. I didn't deal with psychotropic medication at Hoffmann 14:28:00 14 LaRoche. 14:28:00 15 Q. You're talking about doing a good faith investigation to 14:28:02 16 try to get as much information as you can on an adverse 14:28:06 17 experience report that comes to your attention, right? 14:28:09 18 A. Precisely, that's the point, yes. 14:28:11 19 Q. And you have no personal knowledge that your counterparts, 14:28:20 20 if you will, in SmithKline didn't do exactly that with 14:28:20 21 respect to this information contained in the aggression 14:28:21 22 report and all other adverse experience reports with respect 14:28:26 23 to its products, right? 14:28:27 24 A. The information I have that was presented to me by the 14:28:33 25 doctor that gave his testimony this morning and yesterday 709 14:28:37 1 afternoon, other documents that I've looked at from 14:28:39 2 SmithKline, the package insert all in totality tell me that 14:28:43 3 that information was not tested, it wasn't -- this 14:28:45 4 information was not related to the FDA and the package insert 14:28:50 5 wasn't appended to reflect what they knew. 14:28:55 6 Q. My question, Doctor, was you have no personal knowledge, 14:28:58 7 do you, that people that were responsible for safety in 14:29:00 8 SmithKline, just as you had responsibility for certain 14:29:04 9 products in Hoffmann LaRoche, did not do the type of job that 14:29:09 10 you have described here for us today to get the information 14:29:12 11 that it could and analyze it as it has in this report, do 14:29:20 12 you? 14:29:20 13 A. I have no information that SmithKline pursued individual 14:29:25 14 cases at all. I have no information on that. 14:29:28 15 Q. One way or the other, right? 14:29:29 16 A. One way or the other. 14:30:40 17 Q. And one of the steps that you can take is to analyze all 14:30:40 18 of your adverse experience reports, right? 14:30:40 19 A. Yes. Actually in reference to your last question, I do 14:30:40 20 recall that the doctor who spoke this morning and yesterday 14:30:40 21 afternoon named -- I can't remember his name. The doctor 14:30:40 22 that spoke this morning -- 14:30:40 23 Q. Dr. Hudson? 14:30:40 24 A. Dr. Hudson. Thank you. He has said in his report that 14:30:40 25 SmithKline didn't investigate individual cases of -- 710 14:30:40 1 individual cases for causation. 14:30:40 2 Q. You bring up an interesting point. I think what the 14:30:40 3 subject of the question matter was whether he could determine 14:30:40 4 causation from a single case report or make a causation 14:30:40 5 assessment from a single adverse experience report. And can 14:30:44 6 that be done, sir? 14:30:44 7 A. I think there are definitely instances known in the 14:30:45 8 pharmaceutical industry wherein causation can be determined 14:30:47 9 from a single case report. 14:30:50 10 Q. Can you do that when the various side effect you're 14:30:52 11 looking at is a normal manifestation of the disease process 14:30:56 12 itself? 14:30:56 13 A. I think in a case that you're -- the kinds of cases you're 14:31:00 14 referring to, the totality of evidence, scientific, is 14:31:05 15 important. But individual case reports can be important 14:31:07 16 factors, particularly when it would be difficult to do a 14:31:11 17 randomized, double-blind, controlled clinical study or a 14:31:15 18 challenge, dechallenge study with which is very risky to do 14:31:20 19 in this type of situation. Sometimes all you can rely on are 14:31:23 20 case reports. 14:31:23 21 Q. Let's take a single case report in which Paxil was used 14:31:27 22 and a suicide resulted and the individual was depressed. 14:31:38 23 Now, you know from your medical background that suicide is 14:31:41 24 associated with depression, correct? 14:31:43 25 A. Yes. 711 14:31:44 1 Q. So you if get that adverse experience report is it your 14:31:47 2 testimony that you can determine from that single case report 14:31:50 3 a causation between the drug, Paxil, and the suicide? 14:31:56 4 A. Well, first of all, I couldn't make that determination but 14:32:00 5 I think that someone skilled in the art of diagnosing and 14:32:04 6 treating patients on a regular basis for suicide and homicide 14:32:07 7 should be able to look at a set, particularly -- 14:32:10 8 Q. No, a single one we're talking about. 14:32:12 9 A. I'm not talking about a single one. I don't think that a 14:32:14 10 single one is appropriate. 14:32:16 11 Q. Thank you. 14:32:18 12 A. You're welcome. 14:32:30 13 Q. Now, you mentioned, I think, in your direct examination 14:32:32 14 when you're dealing with adverse experience reports it is 14:32:35 15 important to have terminology straight, isn't that right, so 14:32:39 16 that everybody is talking from the same frame of reference? 14:32:42 17 A. Yes. 14:32:42 18 Q. And it gets more difficult if words are used loosely, 14:32:47 19 right? 14:32:48 20 A. Yes. 14:32:50 21 Q. And it is more difficult to classify it? Some people say 14:32:53 22 akathisia is one thing and some people say akathisia is 14:32:57 23 another thing; isn't that right? 14:32:58 24 A. Well, that is a particular case that's different than 14:33:01 25 other types of adverse event terms because the term itself, 712 14:33:04 1 there's some disagreement on what is the definition of the 14:33:07 2 term. 14:33:08 3 Q. It is an ill-defined term, right? 14:33:10 4 A. If you were to say rash or headache, it would be easier to 14:33:13 5 get agreement among all individuals involved. But it is a 14:33:17 6 little more difficult with something like that. 14:33:29 7 Q. By the way, how did you get contacted by Mr. Vickery? Was 14:33:34 8 it through the Internet? 14:33:38 9 A. I don't remember how Mr. Vickery contacted me. 14:33:41 10 Q. You don't? Are you sure? 14:33:47 11 A. I don't remember at this point, no. 14:33:49 12 Q. Well, let's go to page 8, then, if you would, of your 14:33:52 13 deposition. 14:34:06 14 MR. VICKERY: Did you say 8? 14:34:07 15 MR. PREUSS: I did, lines 14 through 21. 14:34:10 16 THE WITNESS: Page 8? I'm at page 8. 14:34:19 17 MR. PREUSS: I'm sorry. I made a mistake. It is the 14:34:22 18 Miller deposition. My apologies. 14:34:49 19 MR. PREUSS: May I approach? 14:34:50 20 THE COURT: Counsel, you don't need to ask to 14:34:51 21 approach the witness. If you invade their territory, I will 14:34:54 22 let you know. 14:34:55 23 MR. PREUSS: I will make sure not to do that. 14:35:10 24 A. Okay, so I said that Mr. Vickery found me by having my 14:35:14 25 name on -- my having my name on the Internet. 713 14:35:18 1 Q. (BY MR. PREUSS) Then you advertise on the Internet, do 14:35:20 2 you not -- 14:35:20 3 A. Yes, I do. 14:35:21 4 Q. -- for your services? 14:35:22 5 A. Yes. 14:35:23 6 Q. Okay. Let's go to the aggression memo, please. 14:35:33 7 A. The aggression study? 14:35:35 8 Q. Yeah, right. Now, in your expert report in this case you 14:35:55 9 reported on this database, didn't you? Do you have that with 14:35:59 10 you, by the way, your expert report in this case that you 14:36:02 11 submitted? If you didn't bring it with you, you probably 14:36:09 12 don't have it. I can get you a copy if you would like. 14:36:13 13 A. You will have to get me a copy. 14:36:36 14 Q. Turn to page 9. 14:36:47 15 A. Yes. 14:36:47 16 Q. How much time did you spend working on this report, sir? 14:36:56 17 A. It was a considerable amount of time. I don't know the 14:36:58 18 exact number of hours, but it was considerable. 14:37:00 19 Q. And on page 9 there you're making a reference to Table 3, 14:37:06 20 are you not, that you alluded to a few moments ago? 14:37:10 21 A. Yeah. 14:37:12 22 Q. And after spending all of this time on this report you 14:37:17 23 indicated that there were 16,785 reports of incidents of 14:37:22 24 aggression for Paxil? 14:37:25 25 A. Yes, that is an error which I pointed out previously. I 714 14:37:31 1 have erred on that. 14:37:32 2 Q. That was your mistake, right? 14:37:35 3 A. Yes. 14:37:35 4 Q. Instead of 16,785 reports of aggression as you stated, in 14:37:40 5 fact there are only 80, right? 14:37:42 6 A. There were 80 reports in that database, yes. 14:37:45 7 Q. That's a pretty big difference, isn't it? 14:37:47 8 A. There is. It is a typo on my part. 14:37:51 9 Q. It is a typo? 14:37:52 10 A. It is an error in the way I constructed the sentence and 14:37:55 11 the way it took the numbers in. 14:37:57 12 Q. You copied the whole column there, the whole line 14:38:00 13 incorrectly, didn't you? 14:38:03 14 A. I made an error in the way I put the numbers in the 14:38:07 15 sentence, yeah. 14:38:18 16 Q. Let's go back to page 5537 of the aggression report, 14:38:23 17 please. 14:38:34 18 A. 5537? Yes. 14:38:36 19 Q. Now, I didn't understand you there when you were talking 14:38:38 20 about something to do with the fatal line and then comparing 14:38:42 21 it to something else. What was your testimony in that 14:38:46 22 regard? 14:38:47 23 A. Well, I'm puzzled about the listing of 12 fatalities in 14:38:52 24 Table 2, but then the paragraph 2 on that page referring to 14:38:58 25 25 homicides. 715 14:38:59 1 Q. Well, Doctor, if you take a look at the column on the 14:39:04 2 right under total it is 457, right? 14:39:07 3 A. Yes. 14:39:07 4 Q. You see that? And you get 457 by adding 12, 214 and 231, 14:39:14 5 right? 14:39:15 6 A. Yes. 14:39:16 7 Q. Okay. And then it says 61 of the 457 were excluded. Do 14:39:23 8 you see that? 14:39:24 9 A. All right. 14:39:25 10 Q. And what number do you come out with, 396, right? 14:39:30 11 A. Yes. 14:39:30 12 Q. And then out of those 396, there are 25 homicide reports? 14:39:35 13 A. Yes. 14:39:35 14 Q. Now do you understand it? 14:39:39 15 A. Still, 25 is different than 12. I don't understand the 14:39:42 16 discrepancy in numbers. 14:39:43 17 Q. There is no discrepancy in numbers. If you take a look at 14:39:46 18 it, the 12, Doctor, is all on the same total line. If you 14:39:49 19 add the 12 and the 214 and the 231 you come to 457. That's 14:39:56 20 your total group you're looking in? 14:39:58 21 A. Yes. 14:39:58 22 Q. You then take out the 61 that are excluded and that comes 14:40:02 23 down to 396, and of the 396 you're now dealing with 25 of 14:40:09 24 those are homicides, right? Now do you understand? 14:40:15 25 A. I may be missing something here but the 12 fatalities -- 716 14:40:17 1 the 12 refers to the total on the column above it which is 14:40:21 2 fatalities so it includes 1 clinical, 10 spontaneous and 1 14:40:26 3 regulatory, so that's 12. 14:40:28 4 Q. You're absolutely right. 14:40:29 5 A. They report 25 homicides, so there's 25 fatalities there. 14:40:37 6 Why are the numbers not the same? 14:40:39 7 Q. You're taking your total 457 -- 14:40:42 8 A. You don't need the total of 457. All you need to look at 14:40:46 9 is they describe 12 facilities in Table 2. 14:40:50 10 Q. Let's move on, Doctor. Take a look at next page. Of the 14:40:54 11 25 homicides, right there was a concomitant or alcohol/ 14:41:04 12 illicit drug intoxication or abuse at the time of the event, 14:41:09 13 do you see that, midway down? 14:41:14 14 A. That's the fourth paragraph, yes. 14:41:19 15 Q. Five of the 25 of the aggression occurred in connection 14:41:23 16 with psychosis, right? 14:41:31 17 A. Yes. 14:41:31 18 Q. In another report there was no evidence of Paxil in the 14:41:31 19 blood? 14:41:31 20 A. Yes. 14:41:32 21 Q. And three reports, they were unable to get documentation 14:41:38 22 that provided enough information on onset, dose, concomitant 14:41:43 23 medication or concurrent clinical conditions or medical 14:41:47 24 history? 14:41:48 25 A. I am not a treating psychiatrist, but I can say that from 717 14:41:51 1 looking at it strictly from the rules of determining 14:41:53 2 causation, working up adverse events in the pharmaceutical 14:41:57 3 industry which is independent of adverse event -- independent 14:42:00 4 of the drug, the eight that had a concomitant alcohol or 14:42:05 5 illicit drug, whether we're working on an antibiotic or some 14:42:09 6 other type of drug, are confounding factors but they don't 14:42:14 7 necessarily exclude Paxil. 14:42:16 8 And similarly, 5 of the 25 reports report aggression 14:42:21 9 and associated psychosis by the rules of causation and 14:42:24 10 determination don't exclude Paxil. 14:42:27 11 In addition to the 25 there's the 27 and 22 others of 14:42:31 12 near homicides, so there's a lot of cases here that they 14:42:34 13 could have done the determination on, even taking the ones 14:42:36 14 that they threw out or excluded. There's a lot of 14:42:40 15 opportunities. 14:42:42 16 Q. I don't believe I asked you a question, did I? 14:42:45 17 A. No. 14:42:46 18 Q. I would like you to turn to page 55, please, of this 14:42:54 19 report. The number on the bottom is 574. 14:43:05 20 A. Yes. 14:43:06 21 Q. Well, actually, before we do that, just kind of hold that, 14:43:09 22 if you would. 14:43:10 23 Would you go to the front of that where we're talking 14:43:14 24 about the table of contents? This whole thing is about a 14:43:30 25 64-page document, right? 718 14:43:34 1 A. Yes. 14:43:34 2 Q. You can see by looking at it it represented a good deal of 14:43:37 3 work, can't you? 14:43:38 4 A. Yes. 14:43:39 5 Q. And information was drawn from preclinical studies, right? 14:43:44 6 A. Yes. 14:43:45 7 Q. Completed clinical trials, right? 14:43:49 8 A. Yes. 14:43:49 9 Q. Published literature? 14:43:51 10 A. Yes. 14:43:53 11 Q. And the SmithKline clinical safety database, right? 14:43:59 12 A. Yes. 14:44:00 13 Q. All of those you haven't reviewed? 14:44:02 14 A. I have not reviewed any of those. 14:44:05 15 Q. And then it breaks it down to homicide, attempted 14:44:10 16 homicide, homicidal ideation, aggression occurring on 14:44:13 17 treatment, report aggression known to involve physical 14:44:17 18 violence, aggression not further defined, reports focusing on 14:44:23 19 rage or anger, aggression occurring post-treatment, some 14:44:27 20 subsets under there, prescribing information, and then a 14:44:32 21 discussion. 14:44:35 22 And now, if you would, turn to the discussion 14:44:37 23 section, and particularly on page 574 and you will see about 14:44:45 24 midway down the paragraph that starts, "With regard..." 14:44:51 25 A. Yes. 719 14:44:52 1 Q. "With regard to a possible association between paroxetine 14:44:55 2 treatment and aggressive behavior, data from preclinical 14:45:01 3 (animal) studies in rats showed that paroxetine either 14:45:06 4 suppressed or had no effect on rat muricide." 14:45:10 5 That's not a term I'm familiar with but maybe you can 14:45:13 6 help me. That means animals killing other animals? 14:45:16 7 A. Yes. 14:45:18 8 Q. And then they looked at data from clinical trials and it 14:45:24 9 says, "Furthermore, data obtained from completed clinical 14:45:27 10 trials for depression, obsessive-compulsive disorder, social 14:45:30 11 phobia, panic and generalized anxiety disorder did not show 14:45:34 12 the incidence of hostile reactions reported with paroxetine 14:45:38 13 to be greater than that reported with placebo." 14:45:42 14 A. Well, I think that that's a misleading statement. 14:45:46 15 Q. Is that what it says? 14:45:48 16 A. I think that that statement is misleading and inaccurate 14:45:55 17 because the clinical studies were not designed to capture 14:45:57 18 that kind of data and that adverse event occurred with such 14:46:01 19 low frequency it wouldn't have occurred in general safety and 14:46:04 20 efficacy studies. It wouldn't have been picked up. 14:46:08 21 Q. Doctor, you haven't looked at any of the clinical data. 14:46:14 22 Then it goes into -- 14:46:15 23 MR. VICKERY: Excuse me, Your Honor. I'm going to 14:46:17 24 object to that as a side-bar remark. If Mr. Preuss has a 14:46:22 25 question... 720 14:46:22 1 Q. (BY MR. PREUSS) Comma, have you? 14:46:25 2 A. I looked at clinical data. I've looked at published data 14:46:29 3 from the company on their drugs in articles that they've had 14:46:33 4 published for them and the structure of the studies that I've 14:46:36 5 seen, and the publications they've had were not shown that 14:46:40 6 they were designed to collect data on suicide or homicide. 14:46:43 7 Q. Doctor, I don't know what you've reviewed but you have not 14:46:45 8 reported that in your expert report or deposition, have you? 14:46:48 9 A. These are articles available to all physicians everywhere 14:46:51 10 in the medical literature. 14:46:57 11 Q. None of which you reported in your expert report which you 14:47:04 12 were required to do under the order of this court; isn't that 14:47:04 13 right? 14:47:04 14 A. I don't really know what I reported that I have read in 14:47:06 15 that expert report. 14:47:10 16 Q. Let's go to the postmarketing spontaneous reporting, if we 14:47:15 17 could, please. 14:47:17 18 A. Where is that? 14:47:17 19 Q. Right where we were, I'm sorry. 574. 14:47:20 20 A. The next paragraph. 14:47:22 21 Q. And I apologize if I forgot to make that last one a 14:47:25 22 question. 14:47:26 23 A. Which paragraph are you on? 14:47:28 24 Q. I'll start -- I want to have you pick up on the bottom of 14:47:31 25 574 and move on if you will to the next page. 721 14:47:42 1 A. Where do you want me to look? 14:47:43 2 Q. Let's go to the second paragraph, please. 14:47:45 3 A. The one starting with "Alzheimer's disease..."? 14:47:50 4 Q. We must not be in sync here. Page 575. 14:47:54 5 A. 575? 14:47:55 6 Q. Yes. 14:47:56 7 A. Second paragraph, "In 63...," is that the one? 14:48:02 8 Q. That's the paragraph, talking about the postmarketing 14:48:05 9 reports and goes on with the sentence that says, "Review..." 14:48:10 10 A. Well, actually -- 14:48:11 11 Q. You see that? 14:48:15 12 A. Hold on just a second. Actually, they don't have 396 14:48:19 13 reports, they have 457 reports and the 396 reports that 14:48:24 14 they've chosen to analyze, that's what they really should 14:48:28 15 say. 14:48:30 16 Q. Doctor, I didn't ask you a question, did I? 14:48:34 17 A. You're asking me to comment on the sentence. 14:48:36 18 Q. No, I didn't. I hadn't started anything. 14:48:38 19 A. I'm sorry. 14:48:39 20 Q. But let's get down to it. Remember how the 396 got -- you 14:48:43 21 want to go over that again? 14:48:44 22 A. No, I know where it came from. They excluded a number of 14:48:47 23 cases. 14:48:48 24 Q. Right. We discussed that a moment ago. The following 14:48:54 25 medical evaluation, 65 of the 457 reports were excluded. 722 14:49:00 1 55 -- then it goes, if we're back -- do you want to go over 14:49:07 2 all of that, the exclusion? 14:49:08 3 A. No, no, I know that there were a number of cases that they 14:49:10 4 excluded. 14:49:11 5 Q. Right. And they felt they were not relevant for various 14:49:14 6 reasons because they weren't dealing with the aggression, 14:49:17 7 right, and that's what the paper is looking at is aggression? 14:49:22 8 A. I tell you, I really don't know whether the cases that 14:49:25 9 they excluded were appropriately excluded or not. 14:49:29 10 Q. You don't know, right? 14:49:30 11 A. No, I don't know. 14:49:31 12 Q. By the way, the FDA does have adverse experience reports 14:49:35 13 on these cases, right? What they don't have is the audit 14:49:39 14 report itself, right? 14:49:41 15 A. The FDA might not have all of these reports. If the 14:49:44 16 reports were directly reported to SmithKline and SmithKline 14:49:47 17 didn't forward those reports to the FDA, then the FDA 14:49:49 18 wouldn't have them. 14:49:50 19 Q. That's true. But you have no basis? 14:49:52 20 A. I have no basis. 14:49:53 21 Q. You know that SmithKline is required to do that. You have 14:49:55 22 no basis that they didn't do that, do you? 14:49:57 23 A. I have no basis for that. 14:50:00 24 Q. You certainly did it when you were at Hoffmann LaRoche, 14:50:04 25 didn't you, made sure you sent them all in? 723 14:50:07 1 A. Yes. 14:50:08 2 Q. All right. Could we go back to 575, please, sir? 14:50:15 3 A. Okay. 14:50:17 4 Q. And I want to read the sentence in the midway there, 14:50:21 5 "Review of these reports did not reveal any pattern with 14:50:24 6 regard to the nature, type or onset of aggressive behavior or 14:50:29 7 any subpopulation of patients at risk of developing 14:50:32 8 aggressive behavior. Considering these factors and in the 14:50:37 9 context after estimated worldwide patient exposure in excess 14:50:40 10 of 80 million patient-treatments of paroxetine, this small 14:50:44 11 number of reports do not provide evidence that the drug plays 14:50:47 12 a role in the development of aggressive behavior." 14:50:51 13 Do you see that? 14:50:52 14 A. Yes. 14:50:54 15 Q. And then it goes on in the next paragraph and talks about 14:50:57 16 drug-induced akathisia which could induce aggressive 14:51:01 17 behavior, all right? Then it goes down about midway and it 14:51:10 18 says, "Review of all reports of aggressive behavior following 14:51:14 19 paroxetine treatment reveal that SmithKline Beecham have not 14:51:17 20 received any reports in which akathisia was a reported event 14:51:20 21 preceding aggressive behavior." 14:51:22 22 And then it says, "This could be due to the fact that 14:51:26 23 akathisia has not been recognized by the reporter as its 14:51:29 24 symptoms must be distinguished from a number of other 14:51:31 25 disorders which produce similar subjective distress with or 724 14:51:36 1 without the motor features. Therefore, our data were 14:51:40 2 reviewed for any symptoms which could be suggestive of 14:51:44 3 akathisia...," and then they reference "as defined in 14:51:47 4 DSM-IV" -- you know what that is, right? 14:51:50 5 A. Yes. 14:51:50 6 Q. -- "including the following symptoms, continuous movement 14:51:52 7 of feet, compulsion to move legs, inner restlessness and 14:52:03 8 dysphoria." What is dysphoria, sir? 14:52:03 9 A. Dysphoria is a generalized mood disorder. 14:52:07 10 Q. Thank you. And then it goes on to say, "Review of the 14:52:10 11 data received from over 80 million patient-treatments 14:52:14 12 identified 16 reports of aggressive behavior in which the 14:52:18 13 symptoms which could be suggestive of akathisia were 14:52:20 14 present." 14:52:22 15 A. That's not a truthful statement because they haven't 14:52:25 16 received data on 80 million patients. They've had perhaps 80 14:52:29 17 million patients taking the drug, but they don't have any 14:52:33 18 idea what's happened to those 80 million patients. 14:52:35 19 And they've already said this morning they didn't 14:52:37 20 investigate any of these reports they got, so it is 14:52:40 21 impossible for them to say, like you read in the beginning of 14:52:42 22 that paragraph, that there's no causal relationship. It is 14:52:44 23 impossible for them to know because they didn't look. 14:52:49 24 Q. Then the report goes on, says, "There is no basis for 14:52:54 25 concluding from available data that these patients actually 725 14:52:56 1 had akathisia"; is that correct? 14:53:00 2 A. That's what the report says. 14:53:01 3 Q. And the conclusion, "Based on the data present in this 14:53:06 4 review, including SWP clinical data, clinical data obtained 14:53:12 5 in the paroxetine clinical development program and 14:53:14 6 postmarketing experience, it can be concluded that there is a 14:53:17 7 lack of reasonable scientific evidence that paroxetine is 14:53:19 8 associated with aggressive behavior. These events will 14:53:22 9 continue to be monitored." 14:53:24 10 A. They can't possibly conclude that. There's no basis for 14:53:27 11 their making that conclusion. 14:53:29 12 Q. You disagree with the conclusion, right? 14:53:32 13 A. It is impossible for them to make it because they didn't 14:53:35 14 investigate any of these adverse events. 14:53:37 15 Q. You have no knowledge of what was done on these events, do 14:53:40 16 you? 14:53:41 17 A. I know from what SmithKline said this morning through its 14:53:46 18 own representative that they didn't look. 14:53:48 19 Q. Now, Doctor, have you ever reviewed the April 1991 14:53:55 20 analysis that SmithKline did with respect to suicidality that 14:54:02 21 was submitted to the FDA? 14:54:03 22 A. I don't think I've reviewed that, no. 14:54:06 23 Q. Are you aware that the FDA responded to that information 14:54:08 24 and said there was no signal between suicidality and Paxil? 14:54:17 25 A. Yes, I actually am aware of that. 726 14:54:19 1 Q. And you are aware of the analysis in June of 1995 on 14:54:23 2 suicidality with respect to the OCD database that was sent to 14:54:28 3 the FDA? 14:54:32 4 A. Yes. 14:54:32 5 Q. And what is OCD? 14:54:33 6 A. Obsessive-compulsive disorder. 14:54:35 7 Q. And are you aware of an internal review done by SmithKline 14:54:39 8 of suicidal ideation and aggression in 1996? 14:54:44 9 A. I'm aware of its existence, but other than that, no. 14:54:48 10 Q. Are you aware of an internal review of aggression that 14:54:50 11 preceded this particular one in 1999? 14:54:53 12 A. No. 14:54:58 13 Q. You're aware of the 2000 one, the one we've been talking 14:55:02 14 about? 14:55:03 15 A. Yes. 14:55:03 16 Q. Are you aware of the healthy volunteer data that was 14:55:06 17 re-reviewed and reported to the FDA in August of 2000? 14:55:09 18 A. I know of it. 14:55:16 19 Q. Now, Doctor, you indicated that the FDA regulation 14:55:18 20 indicates that the labeling must be revised to include a 14:55:21 21 warning as soon as there is reasonable evidence of an 14:55:23 22 association of a serious hazard with the drug, a causal 14:55:27 23 relationship need not have been proven, right? 14:55:31 24 A. Yes, that's correct. 14:55:33 25 Q. And I know that you disagree with this report, but 727 14:55:38 1 assuming this report was done, as we believe it was, 14:55:45 2 according to this conclusion, then, a labeling change would 14:55:48 3 not be appropriate, right? 14:55:52 4 A. According to their conclusion -- I don't think you could 14:56:00 5 say that even according to their conclusion because they 14:56:03 6 enumerated inside that report alone 74 cases of homicide, 14:56:09 7 homicidal ideation or homicidal attempt. 14:56:12 8 So just on the basis of homicide plus the suicides 14:56:15 9 that are temporally related to the use of Paxil, regardless 14:56:20 10 of any causal relationship, there's enough temporal 14:56:24 11 relatedness to fit the definition of an association of a 14:56:28 12 serious hazard with the drug that could allow a package 14:56:32 13 insert change notifying physicians of its potential. 14:56:37 14 MR. PREUSS: One moment, Your Honor. 14:57:07 15 Nothing further. 14:57:07 16 THE COURT: Redirect? 14:57:08 17 MR. VICKERY: Three things. 18 REDIRECT EXAMINATION 14:57:08 19 Q. (BY MR. VICKERY) Mr. Preuss asked you a question about 14:57:11 20 good faith investigations. Do you consider it to be a good 14:57:15 21 faith investigation when a company gets a report and makes no 14:57:19 22 effort whatsoever to determine whether their drug caused or 14:57:22 23 contributed to the behavior that led to death? 14:57:25 24 A. That's not a good faith investigation. 14:57:50 25 Q. Second question. One of the things he asked you to read 728 14:57:50 1 out of that report showed that five of the suicides that 14:57:50 2 occurred occurred in connection with psychosis. 14:57:50 3 A. Yes. 14:57:50 4 Q. Now, are you aware of whether there is evidence or expert 14:57:52 5 opinion tending to indicate that Paxil causes some patients 14:58:03 6 to become psychotic? 14:58:03 7 A. I have heard that, yes. 14:58:03 8 Q. And finally, he was asking about the data collected in the 14:58:03 9 clinical trial base. Your report mentions that you read and 14:58:07 10 relied on the testimony of Dr. Christine Blumhardt. 14:58:11 11 A. Yes. 14:58:11 12 Q. Do you remember her? 14:58:12 13 A. Yes. 14:58:13 14 Q. And do you recall in her deposition her talking about the 14:58:17 15 fact that these tests -- their clinical trials simply were 14:58:22 16 not designed to look at this issue? 14:58:25 17 A. They were not designed to look at the issue and they also 14:58:29 18 weren't controlled against placebo so there's no way to 14:58:32 19 capture the data. If the events had occurred they wouldn't 14:58:35 20 have occurred in this population in a way that could have 14:58:39 21 been detected. 14:58:41 22 MR. VICKERY: Thank you. That's all I have, Your 14:58:42 23 Honor. 14:58:43 24 MR. PREUSS: Nothing further, Your Honor. 14:58:44 25 THE COURT: May Dr. Marks be permanently excused? 729 14:58:46 1 MR. VICKERY: Yes, he may. 14:58:47 2 MR. PREUSS: I believe so. 14:58:48 3 THE COURT: Thank you very much, Dr. Marks. You may 14:58:50 4 step down and are excused from further attendance at this 14:58:53 5 trial. 14:58:54 6 THE WITNESS: Thank you. 14:59:16 7 MR. FITZGERALD: We going on? 14:59:17 8 THE COURT: Who is your next witness and we'll start 14:59:19 9 with that after the recess. 14:59:20 10 MR. FITZGERALD: It is going to be a short witness. 14:59:22 11 I just didn't know what the Court wanted to do. 14:59:25 12 THE COURT: Let's take our recess now. 14:59:28 13 Who is your next witness? 14:59:30 14 MR. FITZGERALD: Michael Schell. 14:59:34 15 THE COURT: We will stand in recess for 15 minutes. 14:59:41 16 (Recess taken 2:59 p.m. until 3:25 p.m.) 15:26:48 17 THE COURT: Call your next witness. 15:26:50 18 MR. FITZGERALD: Yes, Your Honor. We would call 15:26:52 19 Michael Schell. 15:26:56 20 (Witness sworn.) 15:27:08 21 THE CLERK: State your name and spell it for the 15:27:10 22 record. 15:27:15 23 THE WITNESS: Michael G. Schell, M I C H A E L, G, 15:27:21 24 S C H E L L. 25 730 1 MICHAEL SCHELL, 2 called as a witness on behalf of the Plaintiffs, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 15:27:25 5 Q. (BY MR. FITZGERALD) Michael Schell, who were your mom and 15:27:32 6 dad? 15:27:32 7 A. Donald Jack Schell and Rita Charlotte Schell, Reavis 15:27:39 8 maiden name. 15:27:41 9 Q. Where do you live, sir? 15:27:43 10 A. Currently at 36 O'Neill Road in Rozet, Wyoming. 15:27:48 11 Q. And you're working on a ranch? 15:27:50 12 A. Yes, sir, a quarter horse ranch for room and board, 15:27:55 13 ranchhand kind of deal. It is out of town. 15:27:58 14 Q. Where were you living when your mom and dad died? 15:28:02 15 A. At Westminster, Colorado address. I can't remember the 15:28:08 16 name of the street. 15:28:09 17 Q. That's okay. The picture is you were living down in the 15:28:13 18 Denver area at the time they died? 15:28:15 19 A. Yes, sir. 15:28:22 20 Q. I need to ask you some questions, if it is all right with 15:28:25 21 you, what you got out of the relationship with your mother 15:28:28 22 and your father, okay? 15:28:30 23 A. Yes, sir. 15:28:31 24 Q. Okay. So you -- did you leave home after high school? 15:28:35 25 What did you do? 731 15:28:37 1 A. Yeah, pretty shortly after high school I had -- my 15:28:41 2 mother's brother moved down to Texas and had an offer to move 15:28:45 3 to Texas, so I did and found electrical work pretty quick 15:28:50 4 down there and stayed for a little while doing electrical 15:28:53 5 work. 15:28:54 6 Q. You know what you might do, Mr. Schell, is pull that mike 15:28:57 7 a little closer to you. Thank you. 15:29:04 8 So did you spend some time at home after that, after 15:29:09 9 you got out of high school? 15:29:11 10 A. At that time the oil field was booming rather good, you 15:29:15 11 might say, and I was lucky enough to find a good paying job 15:29:18 12 and I didn't necessarily ask them to stay at their home. 15:29:23 13 Almost right after I got out of high school I had found a 15:29:27 14 pretty fair job in Gillette there, and I worked two years in 15:29:31 15 Gillette and then moved on after my high school years. 15:29:35 16 Q. And did you ever live with them again or just come for 15:29:38 17 visits after that? 15:29:39 18 A. No, in fact, I never did live with them after that, just 15:29:43 19 visited. But I did visit quite frequently, every Christmas, 15:29:48 20 things like that. 15:29:49 21 Q. So you would be there for holidays, is that what you're 15:29:52 22 saying? 15:29:53 23 A. Just Christmas I made it back. I made a point to make it 15:29:57 24 back. 15:29:58 25 Q. What did you do with your folks at Christmastime? 732 15:30:01 1 A. Oh, they had a -- they were pretty religious and we would 15:30:05 2 go to the Catholic church and have somewhat of a Christmas 15:30:09 3 Eve dinner. And it was pretty simple. 15:30:13 4 Q. How about those visits? Were they meaningful to you? 15:30:16 5 A. Oh, yeah. I probably would have brought a girlfriend back 15:30:20 6 with me, but I tended to come alone because they didn't get 15:30:24 7 to visit alone with me too much so I tended to come back 15:30:27 8 alone and visit with them. But I did alone, actually, by 15:30:35 9 myself. 15:30:36 10 Q. What we're trying to show here is what, you know, this 15:30:40 11 loss has meant to you. So you're not going to see them at 15:30:43 12 Christmastime anymore, right? 15:30:46 13 A. No. In fact, I'm going to miss that conversation there. 15:30:49 14 I finally learned everything the hard way now. That's a 15:30:52 15 fact, you know. 15:30:53 16 Q. Your mom and dad used to give you some of their life 15:30:57 17 experience, is that what you're saying? 15:31:02 18 A. Oh, yeah, very good advice. As far as the conversation, I 15:31:03 19 could count on it. It was sure good for me. That is when I 15:31:12 20 called. 15:31:13 21 Q. You called, you say? 15:31:14 22 A. Probably twice a month for years and years I called just 15:31:19 23 to talk to my sister and my family and they would tell me how 15:31:23 24 they were doing. 15:31:24 25 Q. Was that true right up to the time of their death? 733 15:31:26 1 A. Yes, sir. 15:31:27 2 Q. You don't get to do that anymore, so how is it for you? 15:31:30 3 A. I do fine that I -- more than anything I find I have to go 15:31:34 4 to the library to research things or things like that. It is 15:31:38 5 harder to get a question answered about investments or my 15:31:42 6 retirement plans or things that they have already went 15:31:44 7 through or cars. I tended to ask him advice about 15:31:52 8 everything. 15:31:53 9 Q. Is that one of the ways that they showed their love for 15:31:55 10 you, is helping you out with advice? 15:31:58 11 A. They were sure willing to talk to me anytime I asked for 15:32:01 12 it and did. I don't believe they said anything that wasn't 15:32:08 13 true to me. 15:32:11 14 Q. Do you miss that? 15:32:12 15 A. Yes, sir, I do. In fact, even at my age I find it is kind 15:32:17 16 of a restart now and I'm trying to educate myself again, in 15:32:23 17 fact, the hard way, too, in a different town. It is a little 15:32:27 18 bit -- I do miss that, yeah. 15:32:30 19 MR. VICKERY: I have nothing further for you, 15:32:31 20 Mr. Schell. Thank you for coming here. 15:32:36 21 Somebody may ask you some questions after me so why 15:32:39 22 don't you sit there for a second until we find out. 15:32:43 23 THE WITNESS: Sure, you bet. 24 CROSS-EXAMINATION 15:32:49 25 Q. (BY MR. PREUSS) Afternoon, Mr. Schell. 734 15:32:51 1 A. Hello. 15:32:52 2 Q. Are you more comfortable if I call you Mike or Mr. Schell? 15:32:56 3 A. It doesn't particularly matter today. 15:32:59 4 Q. I'll call you Mike if that's all right. 15:33:01 5 A. Sure, you bet. 15:33:02 6 Q. You and I met when I took your deposition a while ago? 15:33:05 7 A. Yes, sir. 15:33:06 8 Q. And I know it is a difficult time for you, and I'm going 15:33:09 9 to ask you questions, but they're pretty much the same thing 15:33:13 10 that I asked you at your deposition, all right? 15:33:17 11 And did you have a chance to take a look at it before 15:33:21 12 today? 15:33:21 13 A. No, in fact I haven't. 15:33:23 14 Q. Well, if you need it at any time, let me know and I might 15:33:26 15 give it to you if the need arises. 15:33:32 16 As I understand, when you grew up your father was the 15:33:34 17 disciplinary figure in the household? 15:33:43 18 A. Well, my mom would tend to say when I was in trouble, 15:33:46 19 "Just wait until your father gets home," but all he would 15:33:50 20 mainly do is just give me a hard time. He never really got 15:33:53 21 physical with me. 15:33:54 22 Q. Didn't you tell me at your deposition that he slapped you 15:33:58 23 a couple times, once at the dinner table? 15:34:01 24 A. Yeah, in fact he did with the back of his hand. Yeah. As 15:34:08 25 a high schooler I can say I probably did ask for trouble in 735 15:34:13 1 them years. That was a pretty young age. 15:34:16 2 Q. And then after high school you kind of lived in various 15:34:18 3 spots, have you, New Mexico, Texas and quite a bit in Denver, 15:34:23 4 as I understand it? 15:34:24 5 A. Yes, sir. 15:34:25 6 Q. After high school you remember me talking to you about 15:34:29 7 whether or not you had any father-son activity that was just 15:34:32 8 you and your father and you told me you hadn't had any; is 15:34:35 9 that right? 15:34:36 10 A. No, not particular because I hadn't lived around there for 15:34:40 11 quite some time. 15:34:41 12 Q. The same would be true for just an activity that involved 15:34:43 13 you and your mom, right? 15:34:45 14 A. No, sir. 15:34:46 15 Q. The same would be true with respect to your sister Deb and 15:34:48 16 yourself doing anything just special between the two of you? 15:34:52 17 A. Other than at Christmas, holidays, none in particular. 15:34:56 18 Q. And as I understand, as of the time of your parents' 15:35:01 19 death, the seven years previous you were living in Denver? 15:35:06 20 A. Yes, sir. 15:35:06 21 Q. Is that right? 15:35:07 22 A. Yes. 15:35:08 23 Q. And you saw your parents at Christmastime? 15:35:11 24 A. Yes, sir. 15:35:12 25 Q. And you didn't have a chance to visit either Debbie or Tim 736 15:35:18 1 after they moved to Billings; is that correct? 15:35:21 2 A. That's correct. 15:35:21 3 Q. All right. And you hadn't seen Deb and Tim for about two 15:35:27 4 years prior to Debbie's death; isn't that right? 15:35:29 5 A. Yeah. 15:35:30 6 Q. And you never did see the baby, did you? 15:35:32 7 A. No, that's why I was calling, to ask about her too, once 15:35:39 8 in a while there at the end, I told you. 15:35:42 9 Q. I think in Denver you told me at your deposition that you 15:35:46 10 were living in New Mexico? 15:35:52 11 A. Yes. 15:35:53 12 Q. And at some time you were staying with your relatives? 15:35:56 13 A. I was working for them, not staying with them. 15:35:59 14 Q. That's right. 15:36:00 15 A. The electrical contractor. 15:36:02 16 Q. That's right. And you received a phone call from your mom 15:36:05 17 at some time when you were down there telling you that your 15:36:08 18 dad was depressed and that he had gone to see a doctor, 15:36:12 19 right? 15:36:15 20 A. Very seldom, yes, but he did that once, I believe. But 15:36:21 21 that was after -- it was like after the fact that he had 15:36:21 22 already went in, and then she brought it up to my attention 15:36:24 23 once. 15:36:25 24 Q. And that's the only time that you had ever heard about 15:36:27 25 your dad being depressed until after you come up for the 737 15:36:32 1 funerals; isn't that right? 15:36:34 2 A. Yes, sir. It was not brought to my attention a lot. 15:36:37 3 Q. Nobody else in the family mentioned to you that your dad 15:36:39 4 had had some problems with depression? 15:36:42 5 A. No, sir. 15:36:42 6 Q. And while you were in high school nothing that you could 15:36:48 7 see seemed to indicate that he had any problem with 15:36:52 8 depression, right? 15:36:52 9 A. No, sir. 15:36:54 10 Q. And he felt -- at least you interpreted that he was a very 15:37:00 11 strong figure for you and he liked to hold himself that way, 15:37:05 12 right? 15:37:06 13 A. Yes, I believe so. 15:37:10 14 Q. Now, after you left after high school, do you know what 15:37:18 15 your dad did during his free time? 15:37:22 16 A. They mentioned going gambling once in a while to me on the 15:37:25 17 telephone, but not a whole heck of a lot of their personal 15:37:29 18 life. 15:37:29 19 Q. And do you know what your mom's hobbies were? 15:37:34 20 A. They mainly just spoke to me about their jobs, too, and 15:37:37 21 how things were going or Deb and Tim and how things were 15:37:40 22 going in Billings, but not necessarily about -- a whole lot 15:37:44 23 about them. They were just kind of curious about me, what I 15:37:48 24 was up to. 15:37:49 25 Q. Your dad never talked to you about your mom's working in 738 15:37:51 1 the real estate business either, did he? 15:37:54 2 A. I don't think he had a problem with it, but he never did 15:37:57 3 mention much to me either way. 15:38:00 4 Q. And I think you indicated that at the deposition that when 15:38:04 5 your dad's brother died, that that was something you could 15:38:08 6 tell your dad was upset about? 15:38:10 7 A. That was the second time that depression was brought to my 15:38:13 8 attention, yes, when one of his brothers died there. 15:38:17 9 Q. And then shortly thereafter your grandfather died? 15:38:24 10 A. Yeah, but -- 15:38:25 11 Q. And your father cried at the funeral? 15:38:28 12 A. Yep. 15:38:28 13 Q. And that was really pretty unusual for you to see, wasn't 15:38:32 14 it? 15:38:32 15 A. Well, Uncle Cleve was pretty close to them. He was close 15:38:37 16 to the family. 15:38:38 17 Q. And one of the things I think you told me is your father 15:38:41 18 took pride in not crying in front of you? 15:38:46 19 A. When I said cried, he got a little red eyed. 15:38:49 20 Q. Teary eyed? 15:38:50 21 A. Crying is a different thing. 15:38:51 22 Q. You sensed he wanted to be a strong figure for you to look 15:38:54 23 up to, right? 15:38:55 24 A. Yes. 15:39:05 25 Q. You told me on one or two occasions your father shaved his 739 15:39:08 1 head in the summertime to keep cool; is that right? 15:39:11 2 A. For why, I don't know, but yes, he did shave his head a 15:39:14 3 time or two. 15:39:17 4 Q. And he had a .22 pistol, did he not, when you were in high 15:39:20 5 school, that he stored upstairs in the master bedroom? 15:39:23 6 A. Yes, sir. I don't know where for sure, but it was an 15:39:26 7 old -- I know it was probably an older one that he had as a 15:39:29 8 youngster. 15:39:32 9 Q. And after you left after high school, you weren't aware 15:39:36 10 that your dad had a sleeping problem, not being able to sleep 15:39:40 11 or waking up early in the mornings? 15:39:42 12 A. No, sir, I didn't. 15:39:45 13 Q. And you are not aware, were you, that your dad was off 15:39:49 14 work for periods of time from time to time? 15:39:50 15 A. No. And to tell you the truth, that did come -- I 15:39:55 16 realized how uninformed I was after I came back here of their 15:39:59 17 lives. That's why I'm still educating myself, in fact, too. 15:40:13 18 Q. When you heard of that terrible night when your parents 15:40:16 19 died you were notified, you were in Denver, as I understand 15:40:21 20 it, right? 15:40:21 21 A. Yes, sir. 15:40:23 22 Q. And you had to get all of your stuff together, took you 15:40:26 23 about a week to get back to Gillette? 15:40:28 24 A. Yes, sir. 15:40:28 25 Q. And initially you stayed with your grandma, right? 740 15:40:31 1 A. Yes, sir. 15:40:32 2 Q. And then -- I guess the first night you said you stayed at 15:40:35 3 the Holiday Inn? 15:40:37 4 A. Yes, sir. 15:40:37 5 Q. And then you went to your grandma's house? 15:40:40 6 A. Yes, sir. 15:40:40 7 Q. And then after a couple months you moved into your 15:40:43 8 parents' house? 15:40:45 9 A. Yes, sir. 15:40:45 10 Q. And you lived in the downstairs area? 15:40:47 11 A. For a little while. 15:40:49 12 Q. And it was only after you came back under those terrible 15:40:57 13 circumstances that you learned your dad had some problems 15:41:00 14 with depression and he was taking some medication; is that 15:41:03 15 right? 15:41:03 16 A. Yes, sir. 15:41:12 17 Q. After you came back you also learned about a real estate 15:41:14 18 transaction where a house was sold to your dad's boss and 15:41:17 19 your mom was involved on behalf of the seller? 15:41:20 20 A. Yeah, due to the paperwork I was digging through, yeah, I 15:41:24 21 found a paper on that subject, too. 15:41:27 22 Q. And that was a little tense situation, wasn't it? 15:41:29 23 A. Yeah. 15:41:33 24 Q. And as of the time that you and I had a chance to speak 15:41:37 25 earlier up in Gillette at the deposition, you were unemployed 741 15:41:43 1 and you hadn't sought a permanent job since your parents' 15:41:46 2 death; is that right? 15:41:47 3 A. Well, what I am intending to do is set up trailers, old 15:41:56 4 trailer or two to rent out, and I've rented -- managed to 15:41:56 5 rent out that whole house so I'm kind of edging toward 15:42:00 6 managing rentals for an income between two trailers and a 15:42:04 7 house there. It has been taking me time to set up them and 15:42:09 8 maintain them. 15:42:10 9 Q. I see. And you said since you've been on your own a lot 15:42:17 10 since high school you've pretty much relied on yourself to 15:42:22 11 hold yourself together? 15:42:23 12 A. Yes. I've just had my health and my -- and I have been 15:42:30 13 able to keep a job and I feel pretty fortunate for that, 15:42:34 14 yeah. 15:42:35 15 MR. PREUSS: Thank you very much, Mike. I appreciate 15:42:36 16 your time. 17 REDIRECT EXAMINATION 15:42:51 18 Q. (BY MR. FITZGERALD) You're sitting at the dinner table 15:42:53 19 and you say something disrespectful to your mom and you get 15:42:57 20 the back of your dad's hand, isn't that what happened? 15:43:01 21 A. I was reminded to get my mom a card on every holiday and 15:43:04 22 presents and I was told very much to respect my mother. 15:43:09 23 Q. This gambling you mentioned, are you talking about folks 15:43:12 24 from Gillette, like your parents, going over to Deadwood, 15:43:15 25 South Dakota? 742 15:43:16 1 A. Yeah. In fact, I liked to go over there with them so I 15:43:21 2 tried to get them to go with me when I would come and visit 15:43:25 3 and they would. 15:43:26 4 Q. Was it like a family outing for you? 15:43:28 5 A. Just for me. 15:43:29 6 Q. How did they treat it? 15:43:30 7 A. My parents liked to get out too a little bit and we ate a 15:43:35 8 meal there. They weren't big gamblers but they liked to eat 15:43:39 9 and travel a little bit. 15:43:42 10 MR. FITZGERALD: Thank you, sir. 15:43:43 11 THE COURT: Anything else? 15:43:43 12 MR. PREUSS: Nothing further, Your Honor. 15:43:44 13 THE COURT: May Mr. Schell be permanently excused? 15:43:47 14 MR. FITZGERALD: Yes, Your Honor. 15:43:48 15 THE COURT: Thank you, Mr. Schell. You're 15:43:49 16 permanently excused from further attendance at this trial and 15:43:53 17 you may stick around or return to your home. 15:43:55 18 THE WITNESS: Thank you. 15:44:27 19 MR. FITZGERALD: Neva Hardy. 15:44:41 20 (Witness sworn.) 15:44:42 21 THE CLERK: Please state your name and spell it for 15:44:43 22 the record. 15:44:44 23 THE WITNESS: Neva, N E V A, Hardy, 15:44:47 24 H A R D Y. 25 743 1 NEVA HARDY, 2 called as a witness on behalf of the Plaintiffs, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 15:44:51 5 Q. (BY MR. FITZGERALD) Mrs. Hardy, you've sat here all week 15:44:59 6 but haven't had a chance to say anything to the jury, so 15:45:02 7 here's your chance. We want to discuss a few things. 15:45:05 8 THE COURT: Mr. Fitzgerald, if you wouldn't mind 15:45:08 9 turning that microphone a little towards you. 15:45:11 10 MR. FITZGERALD: Yes, sir. 15:45:12 11 THE COURT: Thank you. 15:45:14 12 Q. (BY MR. FITZGERALD) How has it been to sit here? How has 15:45:17 13 it felt? 15:45:18 14 A. Over there? 15:45:19 15 Q. Yes, sir. 15:45:20 16 A. Quite a bit more comfortable than here. 15:45:22 17 Q. No one likes to be on the witness stand. Really kind of 15:45:26 18 on display. 15:45:30 19 Let me ask you a few things. You've been here and 15:45:32 20 heard the testimony and you know certain facts and I want to 15:45:35 21 key in on certain things. We've had a lot of testimony about 15:45:39 22 the basic facts and so forth. We've heard discussion about 15:45:43 23 Don Schell's depression and I have a question for you. 15:45:47 24 What other mental problems did he have? 15:45:52 25 A. He had none. 744 15:45:53 1 Q. How about physical problems? 15:45:56 2 A. None. 15:45:59 3 Q. Now, we've heard considerable testimony about Don's 15:46:06 4 relationship with your father. 15:46:10 5 A. Yes, he had a close relationship with my father. 15:46:13 6 Q. What was so close about it? 15:46:17 7 A. They had camaraderie. They went fishing together. They 15:46:22 8 worked -- they had a lot of things in common. They both 15:46:29 9 loved to fish. They both worked in the oil field. He was 15:46:39 10 like a brother to me. He was a part of the family. And I 15:46:43 11 know in my heart that that's the way my dad felt, he was a 15:46:46 12 son. 15:46:46 13 Q. In other words, between Don and your dad it was kind of a 15:46:49 14 bonding relationship? 15:46:51 15 A. They were definitely bonded, yes. 15:46:53 16 Q. Okay, all right. So did it surprise you when he was teary 15:47:00 17 or more -- 15:47:02 18 A. He was more than teary. He broke down and cried. He was 15:47:05 19 very upset and it did not surprise me at all. It would 15:47:09 20 surprise me more if he hadn't. 15:47:12 21 Q. And it didn't surprise you because they were close? 15:47:15 22 A. No, it didn't surprise me at all. Don was a very likable 15:47:19 23 person. Actually, the whole members of the family were 15:47:21 24 close. 15:47:22 25 Q. Okay. Let's turn to the last time that you saw Don 745 15:47:26 1 Schell. When was that? 15:47:28 2 A. The last time I saw Don was on my husband's birthday, Bob 15:47:33 3 Hardy. It was December 29th, 1997. Him and Rita came over 15:47:39 4 for a birthday cake. And there was, I believe, my 15:47:43 5 mother-in-law and Don and Rita and myself and my husband 15:47:53 6 and -- I don't recall anyone else being there. There could 15:47:57 7 have been. 15:47:58 8 Q. How was Don then? 15:47:59 9 A. Don was -- he was just normal Don. He was joking and 15:48:04 10 laughing and I did not see any problem. He was -- 15:48:11 11 camaraderie. We had a good time and he was his usual joking, 15:48:16 12 teasing self. 15:48:18 13 Q. How often would you get together on occasions like that? 15:48:28 14 A. We would get together on all holidays and then in between 15:48:28 15 we would go fishing together. We had backyard picnics or 15:48:32 16 barbecues together. It was -- we would go to Deadwood 15:48:41 17 together, all of us. My mother had the Suburban. We used to 15:48:47 18 call it the Deadwood bus. 15:48:53 19 Q. Now, did Don have some -- certainly not in December but 15:48:59 20 did he have some outdoor pastimes or activities he enjoyed? 15:49:03 21 A. Yes, Don loved to work in the yard. He took a lot of 15:49:07 22 pride in his yard and his trees and he would always take care 15:49:12 23 of the plants, the flowers outside. And he put the sidewalk 15:49:20 24 in. In the summertime he was working continually outside. 15:49:27 25 Q. Now, there was a suggestion earlier in the week I want to 746 15:49:30 1 direct your attention to and find out what you know about it, 15:49:36 2 that Don was so proud that he wouldn't seek help when he 15:49:42 3 needed it and I'm speaking of help with his depression. 15:49:46 4 Can you shed some light on that from the perspective 15:49:50 5 of someone where you were? 15:49:52 6 A. That's absolutely not true. 15:49:58 7 Q. I also want to direct your attention to this issue of the 15:50:03 8 being possessive or whatever and it ties into this issue of 15:50:07 9 holding hands and Don having his arms around Rita and so 15:50:12 10 forth frequently. He did hold hands and had his arms around 15:50:15 11 her frequently, right? 15:50:17 12 A. Yes, he did. And it was not just Don, it was equal 15:50:23 13 sharing of love. I mean, it wasn't Don being possessive. It 15:50:28 14 wasn't him being overpowering. They were a very loving 15:50:32 15 couple and they weren't ashamed to hide it. They walked, 15:50:41 16 they held hands. I mean, I was envious. There was nothing 15:50:44 17 possessive about it or nothing overpowering about it. 15:50:47 18 They were married for 37 years and they still shared 15:50:50 19 in that, and I thought that was a wonderful thing. 15:50:55 20 Q. You were wishing maybe Bob would hold your hand, is that 15:50:57 21 what you're saying? 15:51:00 22 A. Yes, I did. 15:51:02 23 Q. Well, how about the topic of antisocial -- being 15:51:07 24 antisocial. What light can you shed on that? 15:51:12 25 A. I cannot shed any light on Don being antisocial or Rita. 747 15:51:19 1 They were social people. They loved people. They enjoyed 15:51:22 2 being around people. They went to parties. They went to all 15:51:24 3 of their company parties on both sides and they were always 15:51:28 4 out to dinner with other couples. They invited other couples 15:51:32 5 over to their home. They went over to other couples' homes 15:51:39 6 for dinners, et cetera. 15:51:40 7 Q. All right. So what acceptance did they have of visitors 15:51:45 8 into their own home? 15:51:47 9 A. Pardon me? 15:51:48 10 Q. Did they accept visitors into their own home? 15:51:51 11 A. Absolutely they did. 15:51:53 12 Q. What about this issue of a rule not to call after a 15:51:55 13 certain time of night? What did you know about that? 15:51:58 14 A. I have no idea. I had never heard of that before. 15:52:07 15 Q. How about friends dropping in, did that happen? 15:52:10 16 A. Yes, they had friends drop in and I would say that 15:52:12 17 probably Don had a lot of his friends from work to drop in. 15:52:15 18 They would come by and ask him for advice. 15:52:21 19 Don was very much respected by the people that worked 15:52:24 20 occasionally for him or with him. And that was not unusual 15:52:28 21 at all for them to have friends to stop by. I would stop by. 15:52:32 22 The family would stop by. 15:52:37 23 Q. And when you did stop by, what kind of feeling did you 15:52:40 24 get? Were you welcomed or were you in the way or what? 15:52:44 25 A. No, it was just like another home. It was my, you know, 748 15:52:47 1 family. 15:52:53 2 Q. Could he be accurately described as a person who was angry 15:52:56 3 a lot? 15:52:56 4 A. No, absolutely not. 15:52:59 5 Q. How about fighting? What did you see of that? 15:53:01 6 A. I never seen any fighting. 15:53:05 7 Q. Who was the more powerful personality in this marriage, 15:53:08 8 really? 15:53:09 9 A. Really? 15:53:11 10 Q. Yeah. 15:53:12 11 A. My sister. 15:53:13 12 Q. And your sister, of course, is Rita? 15:53:15 13 A. Yes. 15:53:16 14 Q. Now, is this two sisters sticking together or you got 15:53:22 15 something objective you can point out to us? 15:53:24 16 A. No, I'm saying that because my sister had a mind of her 15:53:27 17 own. She was an extremely intelligent woman and she never 15:53:35 18 let anyone push her around. 15:53:41 19 Q. All right. Let me ask you this question and then we'll go 15:53:44 20 into something else. On this depression issue and the anger 15:53:48 21 issue and so forth, when, if ever, did you see or hear about 15:53:54 22 Don going into any sort of a frenzy before -- 15:53:59 23 A. I cannot tell you the exact year, but I recall Rita 15:54:04 24 calling me. Rita was my sister, my friend, my confidant, and 15:54:10 25 Rita calling me and said, "I need to talk to you, Neva." We 749 15:54:16 1 went to a restaurant and at that point she was talking about 15:54:23 2 all of the different things that Don would be going through 15:54:25 3 and she was so terribly concerned. 15:54:27 4 And I'm sorry, I cannot remember -- I can't even 15:54:31 5 remember the year, but it was -- I don't believe it was 15:54:35 6 past -- any earlier than 1990. 15:54:41 7 Q. Was the gist of that meeting that you had with your sister 15:54:43 8 that she broke down and she told you that Don was depressed? 15:54:47 9 A. She broke down -- actually, she didn't break down, she was 15:54:53 10 just upset. And she explained to me, yeah, that Don was 15:54:56 11 upset and she was really worried about him. 15:54:58 12 Q. So she was expressing some concern to you for his health? 15:55:02 13 A. She was -- yes, she was. And she also -- I had a feeling 15:55:07 14 that she was flustrated in the fact that she couldn't do more 15:55:11 15 and she didn't know what to do to help him. 15:55:14 16 Q. Was this coming out of love, in your perception? 15:55:17 17 A. Definitely. 15:55:18 18 Q. Okay. Now, I made the mistake of mixing up two topics 15:55:22 19 here and you've answered one of them, I think, on the issue 15:55:25 20 of depression. 15:55:26 21 How about this issue of being in a frenzy. Was there 15:55:33 22 any of that that you saw or heard of? 15:55:35 23 A. I never really saw Don in a frenzy. When she spoke about 15:55:42 24 Don it was more like he was -- he would open up to her and he 15:55:46 25 would talk for hours and hours and hours. 750 15:55:55 1 Q. Well, sounds like a love story. Was it? 15:55:58 2 A. Theirs? 15:55:58 3 Q. Yes. 15:56:00 4 A. Extremely so, for 37 years. 15:56:07 5 Q. We talked about Rita being a strong and intelligent person 15:56:10 6 and we all know that she spent some time working outside the 15:56:14 7 home and worked in addition to working at home at a real 15:56:21 8 estate company. I want to key in on a couple of things about 15:56:27 9 that. We don't have to go over it all again. We've heard 15:56:31 10 about it. 15:56:32 11 What was her priority, was it family or work? 15:56:35 12 A. Absolutely family. 15:56:37 13 Q. Now, this whole issue about some insistence that Rita be 15:56:42 14 home at 4:00 and so forth, what do you know about her choice 15:56:50 15 in that and what she said about Don in relation to that 15:56:54 16 choice? 15:56:56 17 A. I know that if Rita wanted to leave at 4:00, she would 15:57:00 18 leave at 4:00 and if she might have made a mention that Don 15:57:06 19 wanted her to be home at 4:00 she would be saying that 15:57:09 20 probably on her way out, "I've got to go, Don wants me home 15:57:14 21 at 4:00." Rita went home if she wanted to go home. 15:57:23 22 Q. Did you see or in any of the conversations that you had 15:57:25 23 with your sister any marital discord? 15:57:32 24 A. I absolutely did not. I never seen any discord. 15:57:38 25 Q. Well, now, I need to ask you a few things about some of 751 15:57:45 1 the issues here on this point of lost care, comfort and 15:57:49 2 society. We have heard about Tim's loss. I just want to ask 15:57:56 3 you one question in that area. 15:58:01 4 From what you saw, how did Rita and Don feel about 15:58:04 5 Tim? 15:58:05 6 A. Oh, they adored Tim. 15:58:09 7 Q. You're fond of him yourself, aren't you? 15:58:12 8 A. We all are. 15:58:13 9 Q. All right. So let's turn to the issue of this lost care, 15:58:21 10 comfort and society in relation to a few people. I mean, we 15:58:28 11 just had Michael up here. 15:58:31 12 THE COURT: Counsel, I think for all of you, we need 15:58:33 13 to start using some last names to preserve the record 15:58:37 14 appropriately. And although it is our fourth day of trial, 15:58:40 15 maybe we ought to start now. 15:58:45 16 Q. (BY MR. FITZGERALD) Michael Schell? 15:58:46 17 A. Yes. 15:58:47 18 Q. Now, he talked about some of his own loss there. Can you 15:58:55 19 add anything to what he said about his loss? 15:58:59 20 A. You mean about what he has lost? 15:59:01 21 Q. Yes, ma'am. 15:59:02 22 A. Michael lost his entire family, his entire family. 15:59:08 23 Michael has seemed to be -- after this happened he was lost. 15:59:21 24 He had a very hard time dealing with this and I think Mike 15:59:29 25 has a hard time explaining because the loss is so deep. I 752 15:59:37 1 don't think anyone would know that better than my mother when 15:59:42 2 he stayed with her. 15:59:48 3 Q. And that was -- he stayed with her after? 15:59:51 4 A. Yes, he did. 15:59:54 5 Q. Well, you have another sister, Peggy? 16:00:00 6 A. Yes, I do. 16:00:00 7 Q. Who is scheduled to be here next week? 16:00:03 8 A. Yes, sir. 16:00:04 9 Q. Can you fill us in on from your perspective what she has 16:00:09 10 lost in the way of care, comfort and society, companionship? 16:00:14 11 A. She has lost a sister, a friend, a confidant. She has 16:00:18 12 lost a family that she truly, truly adored. Everything, 16:00:26 13 every part of our lives have totally changed, every one of 16:00:30 14 us. It will never be the same. 16:00:38 15 Q. Well, let me ask you in this way: We have to work with 16:00:42 16 these words of care, comfort and society, and so what can you 16:00:49 17 tell us about Peggy's loss in those particular areas, the 16:00:55 18 care, comfort and society. She's lost her family. What did 16:00:59 19 she lose? What of their care, comfort or companionship did 16:01:04 20 she lose? 16:01:06 21 A. Rita (sic) communicated with Debbie a lot and she 16:01:09 22 communicated with Rita a lot. She lost -- I don't know 16:01:18 23 exactly how to put it. How would you put it? 16:01:22 24 Q. It is hard, isn't it? 16:01:23 25 A. Yes, it is hard to put into words. She's lost -- like I 753 16:01:29 1 felt for Rita, Rita and I would grow old together, and I'm 16:01:33 2 sure Peggy felt the same way. We've lost a part of us. We 16:01:43 3 all have lost a part of us and she's lost -- I don't know. 16:01:53 4 She's lost them. I've lost them. I don't know how to put 16:01:56 5 that in words. 16:01:58 6 Q. What has Flo lost? 16:02:04 7 A. My mother has lost her daughter, her friend, her best 16:02:12 8 friend. Don, she looked at like her son. She lost -- she 16:02:23 9 lost their comfort. When my father died they were especially 16:02:28 10 right there beside her and they both helped her to get 16:02:31 11 through her life, to try to live on. And they helped her 16:02:43 12 come out of it. 16:02:45 13 And she was just beginning to when this happened to 16:02:48 14 Don and Rita. So she lost a comforting part of her life that 16:02:53 15 she will never have back. She's lost -- she's probably lost 16:03:02 16 only God knows. 16:03:06 17 Q. And that's Flo Reavis? 16:03:08 18 A. That's Flo Reavis. 16:03:14 19 Q. Now, I need to turn our attention to you. Is that okay 16:03:17 20 with you? 16:03:18 21 A. Certainly. 16:03:19 22 Q. Okay. What have you lost? 16:03:22 23 A. I've lost my sister, my friend, my best friend, my 16:03:26 24 confidant. I lost my brother whom I loved deeply. I lost my 16:03:33 25 beautiful, sweet niece and beautiful loving baby that was so 754 16:03:44 1 precious that there's an emptiness in our hearts, our world 16:03:47 2 and in our everyday living that we will never, never get 16:03:54 3 back. 16:03:54 4 Rita and I were extremely close. We had lunch at 16:03:59 5 least once or twice a month and I could talk to her, she 16:04:04 6 could talk to me. We had a real bond. We had a sense of 16:04:16 7 humor you can't share with anybody else. I will never have 16:04:19 8 that back again. 16:04:20 9 Q. Did you ever find yourself afterwards picking up the phone 16:04:23 10 to make a lunch date and remembering they're not there? 16:04:27 11 A. Yes, I absolutely did. In fact, to this day it is just 16:04:31 12 still constant. 16:04:35 13 MR. FITZGERALD: May I have a moment? 16:04:36 14 THE COURT: Yes, you may. 16:04:50 15 MR. FITZGERALD: I will pass the witness. 16:04:54 16 THE COURT: Cross. 17 CROSS-EXAMINATION 16:04:57 18 Q. (BY MR. GORMAN) Neva -- 16:04:59 19 MR. GORMAN: Thank you, Judge, for reminding me. 16:05:02 20 Mrs. Hardy. 16:05:04 21 Q. (BY MR. GORMAN) There are some things I need to ask you 16:05:05 22 and I know this is difficult so try to bear with me, would 16:05:08 23 you, please? 16:05:09 24 A. Sure. 16:05:20 25 Q. Prior to your sister's marriage -- strike that. 755 16:05:22 1 When did your sister Rita Schell and Don Schell 16:05:27 2 marry? 16:05:28 3 A. In '61. 16:05:30 4 Q. Did you know anything about Don's mental or psychiatric 16:05:37 5 history from 1961 until this event you told the ladies and 16:05:44 6 gentlemen of the jury about with Mr. Fitzgerald in 1991, you 16:05:47 7 thought, that 30-year period? 16:05:50 8 A. It was between '91 and '93. It was -- 16:05:56 9 Q. I think I didn't ask a very good question. Let me 16:05:59 10 apologize. I don't want to interrupt you. 16:06:02 11 Between 1961 when your sister married Mr. Schell and 16:06:05 12 1991, this event that you told us about today, do you know 16:06:09 13 anything in that 30-year period about your brother-in-law's 16:06:14 14 mental or psychiatric history? 16:06:18 15 A. Between 1961 and 1990? 16:06:22 16 Q. '91. 16:06:22 17 A. '91? 16:06:23 18 Q. Yes, that 30-year period. 16:06:26 19 A. I knew nothing of any type of mental problem, absolutely 16:06:30 20 none. 16:06:33 21 Q. Okay. The first time I think you became aware of a 16:06:36 22 problem that Don was having a psychiatric or mental problem 16:06:40 23 was this event you told us about that you thought occurred 16:06:44 24 1991, '92, in that time frame? 16:06:48 25 A. I wouldn't call it a mental problem. I would call it a 756 16:06:53 1 mild depression possibly. 16:06:55 2 Q. Let me ask you a few questions. Did you know Don Schell 16:06:58 3 was treated for depression, anger and irritability in 1984? 16:07:02 4 A. I was not aware of that. 16:07:04 5 Q. Did you know that Mr. Schell was treated for five months 16:07:09 6 in 1989 for anger and depression and was off work for one 16:07:16 7 month? 16:07:30 8 A. You know, I can't recall if it was '89, '91 or '93. 16:07:35 9 Q. Do you recall an episode in '89? 16:07:38 10 MR. FITZGERALD: Asked and answered. 16:07:40 11 THE COURT: Overruled. Ask again. 16:07:47 12 Q. (BY MR. GORMAN) Do you recall -- 16:07:47 13 A. I do not remember the year. I'm sorry. 16:07:47 14 Q. And that's fine. And I understand that. 16:07:49 15 Do you or did you know that Mr. Schell was treated by 16:07:52 16 Dr. Suhany for an entire year in 1990 and was out of work 16:08:00 17 during this period for as much as two months? 16:08:04 18 A. I don't recall Rita telling me the name of the person he 16:08:08 19 was seeing. 16:08:12 20 Q. Do you know that Mr. Schell was treated for four months by 16:08:16 21 three different doctors for depression in 1991 and was out of 16:08:24 22 work for about one month? 16:08:26 23 A. I was aware when he was seeing -- had seen Dr. Buchanan. 16:08:33 24 Q. Okay. Is it the 1991 episode where Don in his depression 16:08:41 25 was also impotent for a period of time? 757 16:08:46 1 A. I believe it was when he was seeing Dr. Buchanan. 16:08:55 2 Q. Did you know that Don was treated for depression by 16:09:01 3 physicians in 1993? 16:09:05 4 A. I believe that was Dr. Buchanan. 16:09:07 5 Q. Is that the time you think it was? 16:09:09 6 A. Yes, sir. 16:09:13 7 Q. Did you know that Don was counseling on a fairly 16:09:16 8 consistent basis with Sister Agnes Claire at the church? 16:09:20 9 A. At the time I thought he was -- I knew he was counseling 16:09:25 10 at the church. I thought it was Father Ogg and I just 16:09:28 11 recently learned that it was Sister Agnes. 16:09:31 12 Q. Okay. Did Don ever talk about his -- Don Schell -- 16:09:38 13 MR. GORMAN: Excuse me, Your Honor. 16:09:40 14 Q. (BY MR. GORMAN) -- ever talk about his mental or 16:09:43 15 psychiatric issues with you? 16:09:44 16 A. No, he never talked with me personally. 16:09:49 17 Q. Do you know if Don Schell ever talked about his mental or 16:09:54 18 psychiatric issues with your husband, Bob Hardy? 16:09:58 19 A. No, he did not. 16:10:08 20 Q. Now, I believe Dr. Buchanan -- the episode that you're 16:10:11 21 aware of, Dr. Buchanan was treating Don Schell in 1993. You 16:10:23 22 were correct. And is that the only episode that you recall? 16:10:26 23 A. I don't recall specifically. 16:10:28 24 Q. Okay. Now, in some records that are in evidence in the 16:10:32 25 joint exhibits here Dr. Buchanan's reference diagnosing Don 758 16:10:42 1 as having major depression, recurrent, which means it is 16:10:46 2 something that's happened over and over again. 16:10:48 3 Were you aware of that? 16:10:54 4 A. I was aware he had been depressed. 16:10:56 5 Q. And was it this event when Don was treating with 16:11:00 6 Dr. Buchanan for major depression, recurrent -- is that the 16:11:05 7 time then you and your sister, Rita Schell, had this 16:11:08 8 conversation where she called you up and went to lunch with 16:11:11 9 you? 16:11:12 10 A. I believe it was. 16:11:21 11 Q. You do know that this particular period of depression in 16:11:25 12 1993 that Mr. Schell experienced lasted several months? 16:11:31 13 A. Yes, I'm aware of that. 16:11:43 14 Q. Now, the Monday before Mr. and Mrs. Schell died -- okay, 16:11:47 15 so this is going to be, I think, February 9th of 1998 -- 16:11:52 16 A. Yes, sir. 16:11:53 17 Q. -- you had a discussion with your sister about Don's 16:12:00 18 depression, did you not? 16:12:02 19 A. No, sir, I did not. 16:12:06 20 Q. Let me show you -- do you even remember talking to the 16:12:09 21 police -- 16:12:15 22 A. Are you talking about Monday, the 9th of February? 16:12:21 23 Q. Yes, ma'am. 16:12:22 24 A. No, she did not tell me he was depressed. 16:12:25 25 Q. You and I talked about this issue in your deposition, do 759 16:12:30 1 you remember? On your screen there, Mrs. Hardy, is a report 16:12:37 2 from Joint Exhibit 243. It is page 8 of the 2/19/98 Gillette 16:12:55 3 Police Department case report into this tragedy. 16:13:02 4 And you and I discussed this police report during 16:13:04 5 your deposition, do you recall, Mrs. Hardy? 16:13:07 6 A. Yes, I do. 16:13:08 7 Q. And you told me then, and I think it is what you're 16:13:13 8 telling me now, you just don't recall talking to the police? 16:13:18 9 You may have given this information to -- 16:13:21 10 A. I certainly didn't talk to them at all on Monday. 16:13:24 11 Q. And you're right. I'm not -- I'm talking about you spoke 16:13:28 12 with your sister on Monday? 16:13:30 13 A. I spoke with my sister on Monday morning. 16:13:32 14 Q. And that's what we're into now. 16:13:35 15 A. Okay. 16:13:35 16 Q. And then you talked to the police then the evening or 16:13:41 17 the -- yeah, the evening of February 13th of '98, the day of 16:13:50 18 or immediately after the tragedy? Yes? 16:13:54 19 A. Yes, I did. 16:13:56 20 Q. And that is what this document on the screen is purporting 16:14:01 21 to discuss, true? 16:14:03 22 A. Yes, sir. Yes, sir. 16:14:04 23 Q. And as I recall, do you remember talking to the 16:14:08 24 authorities? 16:14:11 25 A. Very vaguely. 760 16:14:15 1 Q. Well, let's look at this statement. And I have some of it 16:14:19 2 highlighted. It says, "The investigator asked her, Neva, if 16:14:24 3 she knew any of the medical history with Don, and she told me 16:14:29 4 that she knew Don had bouts of what she described as 16:14:34 5 depression in the past." Is that true? 16:14:37 6 A. That is true. 16:14:38 7 Q. "She believed the last time Don went through an episode of 16:14:41 8 depression was approximately a year ago and mentioned 16:14:45 9 something about the fact that Don had shaved his head at that 16:14:54 10 time and believed he was seen by a doctor and was on 16:14:54 11 medication for this occurrence." 16:14:56 12 Do you remember telling the authorities that? 16:15:00 13 A. Excuse me. This doesn't even make sense. Him shaving his 16:15:06 14 head had nothing to do with his medication. 16:15:08 15 Q. And I don't know if it makes sense or not. I'm just 16:15:11 16 reading it. Do you remember -- 16:15:14 17 A. I don't remember -- 16:15:15 18 Q. Do you remember talking to the police? 16:15:16 19 A. I vaguely remember talking to them. 16:15:19 20 Q. Do you know where they could have gotten that information? 16:15:29 21 Do you know where they got that information if it was not 16:15:31 22 from you? 16:15:32 23 A. I probably had told them or someone that he had shaved his 16:15:35 24 head because Rita shaved it for him. 16:15:38 25 Q. And then it says, "Neva then told me that approximately a 761 16:15:42 1 week ago" -- excuse me. "Neva then told me approximately a 16:15:52 2 week ago she was speaking with Rita and Rita told her that 16:15:56 3 Don was going into a deep depression." 16:16:01 4 Do you remember telling the authorities that? 16:16:03 5 A. I do not. I can tell you exactly the conversation Rita 16:16:08 6 and I had Monday morning. It had nothing to do with 16:16:13 7 depression. 16:16:14 8 Q. You don't recall telling the officers that? 16:16:16 9 A. No, sir, I don't. 16:16:17 10 Q. Do you know where they could have gotten that information 16:16:19 11 but for you? 16:16:26 12 A. No, sir, I don't. If that was immediately after the 16:16:51 13 police and I was talking to the police immediately after I 16:16:54 14 discovered the deaths, I'm not saying I couldn't have said it 16:16:59 15 but I certainly don't recall saying it. 16:17:01 16 Q. You could have, you just don't recall saying it? 16:17:09 17 A. I don't recall saying that. 16:17:40 18 Q. Prior to hearing it in this courtroom were you aware one 16:17:42 19 of the reasons why Debra Tobin and Alyssa Tobin came to 16:17:47 20 Gillette on this occasion was to help Don with his 16:17:54 21 depression? 16:17:55 22 A. No, I was not aware of that. 16:18:05 23 Q. Do you understand that Mr. Schell and your sister Rita 16:18:11 24 Schell went to see Dr. Patel prior to their deaths on 16:18:16 25 February 11th of '98? 762 16:18:18 1 A. I'm aware of that. 16:18:20 2 Q. Were you aware on the 10th, the day before, of this 16:18:26 3 communication that Mr. Schell had with Nita Rienits' 16:18:34 4 secretary about his investments? 16:18:36 5 A. No, sir. 16:18:37 6 Q. Until you heard it in the courtroom? 16:18:38 7 A. Yes, sir. 16:18:48 8 Q. Do you know if Mr. and Mrs. Schell, Don and Rita Schell, 16:18:52 9 were scheduled to return to Dr. Patel on the morning of 13 16:18:56 10 February 1998? 16:19:03 11 A. I do not know that. 16:19:08 12 Q. Were you aware prior to hearing material in this 16:19:14 13 courtroom -- were you aware of Mr. Schell, because of mental 16:19:22 14 or psychiatric issues, having to have other persons cover his 16:19:27 15 job responsibilities for him? 16:19:33 16 A. You mean this last time? 16:19:35 17 Q. Anytime. 16:19:38 18 A. I was aware that he was off of work in the earlier period 16:19:43 19 I spoke of that I was aware of. 16:19:45 20 Q. Do you know Kevin Nelson? 16:19:47 21 A. No, I do not. 16:19:49 22 Q. You have heard some testimony in this case that also on 16:19:52 23 the 10th your brother-in-law asked Mr. Nelson to cover his 16:19:59 24 wells for him because he was having some problems. 16:20:01 25 Were you aware of that before hearing it in this 763 16:20:04 1 courtroom? 16:20:04 2 A. Not before hearing it. 16:20:12 3 MR. GORMAN: Mrs. Hardy, I know this is hard for you. 16:20:14 4 Thank you very much. I am sorry. You know that. 16:20:17 5 THE WITNESS: Yes, I know that. 16:20:19 6 MR. GORMAN: Thank you, Judge. 16:20:20 7 THE COURT: Mr. Fitzgerald. 8 REDIRECT EXAMINATION 16:20:26 9 Q. (BY MR. FITZGERALD) Did you know that Don Schell suffered 16:20:31 10 that impotence that Mr. Gorman asked about due to the side 16:20:35 11 effects of Prozac? 16:20:37 12 A. Yes, Rita told me that. 16:20:41 13 Q. Now, you were explaining that it doesn't make sense about 16:20:44 14 the head shaving in relation to the issue of medication. And 16:20:48 15 you said Rita shaved Don's head for him? 16:20:53 16 A. Yes, she did. 16:20:54 17 Q. What can you tell us about that? 16:20:58 18 A. Don felt he was much cooler in the summertime with his 16:21:01 19 head shaved and my sister agreed with him. She shaved his 16:21:06 20 head for him. 16:21:08 21 Q. Had that happened more than once? 16:21:11 22 A. Yes, it happened several summers in a row. After the 16:21:15 23 first initial time we all saw nothing particular wrong with 16:21:19 24 it. 16:21:20 25 Q. There was this police report put up on the screen and I 764 16:21:23 1 want to make sure we're clear on this. And the gist of it 16:21:31 2 was that approximately a week before you were interviewed by 16:21:34 3 the police -- and you were interviewed sometime Friday, 16:21:38 4 right? 16:21:39 5 A. Uh-huh. 16:21:40 6 Q. The police interviewed you sometime on a Friday right 16:21:42 7 after these deaths? 16:21:43 8 A. Right after the deaths. 16:21:45 9 Q. Yeah, okay. And so the gist of this was that 16:21:48 10 approximately a week before -- the gist of the report was 16:21:53 11 that approximately a week before that you were speaking with 16:21:57 12 Rita and that Don was going into a deep depression and had 16:22:02 13 been to a doctor and had gotten new medications. You 16:22:07 14 understand that's the gist of what that report says, right? 16:22:13 15 A. Uh-huh. 16:22:14 16 Q. No matter what you might have said at that time, was that 16:22:24 17 accurate? 16:22:24 18 A. No, absolutely not. 16:22:24 19 Q. What is inaccurate about it? 16:22:24 20 A. Well, he had been to the doctor -- it happened on the 16:22:25 21 13th. He had been to the doctor on the 11th and it was not a 16:22:30 22 week ago and he was not, to my knowledge, on medication a 16:22:35 23 week before it happened. 16:22:42 24 Q. You have been here all week and seen displays of medical 16:22:45 25 records in detail, for example, in the opening statement and 765 16:22:47 1 so forth. There's been no evidence of any such medication a 16:22:54 2 week before? 16:22:56 3 A. Right. 16:22:57 4 MR. GORMAN: Judge, I object to that, about what is 16:22:59 5 and isn't in evidence and what she saw. I believe there is 16:23:03 6 evidence. It is argumentative and not relevant. 16:23:06 7 MR. FITZGERALD: I'm calling her attention to the 16:23:08 8 topic. I will have a question in a moment. 16:23:10 9 THE COURT: Go ahead. 16:23:12 10 MR. FITZGERALD: Yes. 16:23:14 11 Q. (BY MR. FITZGERALD) So what have you seen here or what do 16:23:16 12 you know about him being medicated a week before? 16:23:19 13 A. I know nothing about that. 16:23:30 14 Q. When the policemen came and interviewed you, they were 16:23:34 15 doing lots of -- they were talking to a number of you, am I 16:23:38 16 right? I mean, they didn't just come and talk to Neva Hardy, 16:23:43 17 did they? 16:23:44 18 A. I don't recall who all they talked to. 16:23:45 19 Q. I mean, at the house there when you were there, didn't 16:23:49 20 they come to Flo Reavis' house? 16:23:51 21 A. Yes, they did. I don't believe I let them talk to mother. 16:23:54 22 Q. Okay. She was upset? 16:23:57 23 A. Well, yes, she certainly was, as we all were. 16:24:00 24 Q. Okay. So whatever they wrote down, you're clear that the 16:24:08 25 information you gave them was what you have earlier described 766 16:24:11 1 a few minutes ago about the medication earlier that week but 16:24:15 2 not a week ago, am I right? 16:24:17 3 A. Yeah, it was earlier that week. 16:24:22 4 MR. FITZGERALD: May I have just a moment? 16:24:23 5 THE COURT: Sure, you may. 16:24:27 6 MR. FITZGERALD: I will pass the witness. 16:24:29 7 THE COURT: Anything else? 16:24:30 8 MR. GORMAN: Nothing further, Your Honor. 16:24:31 9 THE COURT: Thank you, Mrs. Hardy. You may step 16:24:34 10 down. 16:24:35 11 THE WITNESS: Thank you. 16:24:36 12 THE COURT: Counsel, do you need to talk together for 16:24:38 13 a minute? 16:24:45 14 MR. FITZGERALD: We will do it tomorrow, Your Honor. 16:24:47 15 THE COURT: Very well. Ladies and gentlemen, Counsel 16:24:50 16 have informed me earlier that they're running out of 16:24:56 17 witnesses and it has moved so quickly that counsel are not 16:25:02 18 quite ready to be prepared to call the next witness which 16:25:06 19 we'll do first thing tomorrow morning. 16:25:09 20 And I think that's by agreement of counsel; is that 16:25:12 21 right? 16:25:13 22 MR. VICKERY: Yes, it is, Judge. 16:25:14 23 MR. PREUSS: Yes, Your Honor. 16:25:15 24 THE COURT: You're going to get a 35-minute reprieve, 16:25:21 25 I guess. We will recommence tomorrow at 9:00. We will 767 16:25:25 1 adjourn now, and please remember the admonition of the Court. 16:25:29 2 Don't discuss this among yourselves or with others. Please 16:25:33 3 do not view or listen to any media coverage and have a good 16:25:37 4 evening. 16:25:38 5 The court will stand in recess until 9:00 a.m. 16:25:41 6 tomorrow morning. 7 (Trial proceedings recessed 8 4:25 p.m., May 24, 2001.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 768 1 C E R T I F I C A T E 2 3 I, JANET DEW-HARRIS, a Registered Professional 4 Reporter, and Federal Certified Realtime Reporter, do hereby 5 certify that I reported by machine shorthand the trial 6 proceedings, Volume IV, contained herein, and that the 7 foregoing 200 pages constitute a full, true and correct 8 transcript. 9 Dated this 26th day of July, 2001. 10 11 12 JANET DEW-HARRIS Registered Professional Reporter 13 Federal Certified Realtime Reporter 14 15 16 17 18 19 20 21 22 23 24 25