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 cha