1817 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. June 4, 2001 Volume X 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 Judge, and a jury of eight, at Cheyenne, Wyoming, commencing 19 on the 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 1818 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 21 22 23 24 25 1819 1 INDEX TO WITNESSES DEFENDANT'S PAGE 2 ARTHUR MERRELL, M.D. Continued Direct - Mr. Gorman 1820 3 Cross - Mr. Vickery 1887 Redirect - Mr. Gorman 1949 4 5 PLAINTIFFS' PARTIAL DEPOSITION OF 6 DAVID WHEADON, M.D. READ 1953 7 TERRY MALTSBERGER, M.D. Rebuttal - Mr. Vickery 1955 8 Cross - Mr. Preuss 1957 9 INDEX TO EXHIBITS 10 DEFENDANT'S RECEIVED SB-00 1904 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1820 1 P R O C E E D I N G S 09:09:45 2 (Trial proceedings reconvened 09:09:45 3 9:10 a.m., June 4, 2001.) 4 THE COURT: I believe we still have 5 Dr. Merrell on the stand. 09:10:00 6 Doctor, once again I remind you you're still under 09:10:05 7 oath. 8 9 ARTHUR MERRELL, M.D., 10 called as a witness on behalf of the Defendant, being 11 previously duly sworn, testified further as follows: 12 CONTINUED DIRECT EXAMINATION 09:10:05 13 Q. (BY MR. GORMAN) We've put where we left off on your 09:10:10 14 screen. Can you see that a little better, Dr. Merrell? 09:10:14 15 A. My bifocals don't quite hit it, but I've got it. 09:10:22 16 Q. I have a little bring-us-up-to-date chart I would like to 09:10:27 17 work with you on. 09:10:29 18 MR. GORMAN: Can everybody see that? Dr. Merrell? 09:10:36 19 Judge, is this okay? 09:10:38 20 THE COURT: Yes, I can. 09:10:39 21 Q. (BY MR. GORMAN) I've put a time frame on there of 09:10:41 22 December 1988 to April 1993 which represents four years, four 09:10:47 23 months time frame. The December '88, if I understood and 09:10:52 24 remembered your testimony from Friday, that was the time 09:10:55 25 frame when Mr. Schell had his first in the record, documented 1821 09:11:05 1 major depressive episode, true? 09:11:07 2 A. That's correct. That's the first time, by the way, that 09:11:09 3 he used Prozac. 09:11:12 4 Q. And 4/93, if I understood your testimony, was that the end 09:11:19 5 of the fifth depressive episode, major depressive episode 09:11:24 6 where Mr. Schell discontinued all psychiatric treatment? 09:11:27 7 A. Yes, that's the episode with Dr. Buchanan. That involves 09:11:31 8 three visits, a period of six weeks treatment at the last 09:11:37 9 one. 09:11:37 10 Q. Okay. Now, during that four-year, four-month period, 09:11:45 11 relate to the ladies and gentlemen of the jury again or just 09:11:50 12 refresh the ladies and gentlemen of the jury how many 09:11:52 13 psychiatrists Mr. Schell saw during that four-year, 09:11:56 14 four-month period. 09:11:57 15 A. There were four. 09:12:14 16 Q. How many psychologists did Mr. Schell see during that 09:12:18 17 four-year, four-month period? 09:12:20 18 A. Probably say three. There were two psychologists that had 09:12:23 19 professional degrees and Sister Agnes who left Gillette in 09:12:28 20 1986 and then died in 1990 had some counseling experience, 09:12:34 21 and I think that was significant that he saw her for a period 09:12:37 22 of time. I don't know what her credentials might have been. 09:12:40 23 I think certainly she was well versed in counseling. 09:12:48 24 Q. How many internists did Mr. Schell see in that four-year, 09:12:52 25 four-month period? 1822 09:13:00 1 A. At least two, unless I'm forgetting someone, Hemphill, 09:13:07 2 Bagnarello. Bagnarello, by the way, did a very good job as 09:13:13 3 an internist. His documentation on one of these episodes is 09:13:18 4 outstanding. He had five visits for a period of a few weeks. 09:13:22 5 He tried real hard before he referred Mr. Schell for 09:13:25 6 psychiatric treatment. 09:13:29 7 Q. In that four-year, four-month period I wrote he had seen 09:13:32 8 at least nine helpers? 09:13:34 9 A. Yes, if you total that up, that's at least that. 09:13:39 10 Q. Now, we also briefly talked in reviewing the material 09:13:45 11 during that same four-year period he was on -- the 09:13:49 12 medications that he was on, you mentioned Desyrel. Desyrel 09:14:08 13 is again what kind of medication? 09:14:08 14 A. Desyrel is an antidepressant medication that is -- that is 09:14:09 15 not a very good antidepressant. It is much better to help 09:14:13 16 people with sleep. As I mentioned before, it was a very 09:14:17 17 popular beginning with Prozac, Prozac and Desyrel. We still 09:14:25 18 use that medication. It is excellent medicine for sleep. I 09:14:29 19 have a lot of people on Desyrel. It is an excellent medicine 09:14:32 20 for sleep. It is one of the best. 09:14:34 21 Q. He was on Desyrel twice, I think you indicated, in that 09:14:37 22 four-year period? 09:14:38 23 A. At least twice, yes. 09:14:41 24 Q. He was on, you told us, Prozac. Prozac, of course, we've 09:14:46 25 heard is an SSRI medication? 1823 09:14:50 1 A. That's correct. 09:14:51 2 Q. He was on Prozac, I understand, two times, at least? 09:14:55 3 A. At least twice and the first episode actually was with 09:14:59 4 Prozac. And if you do a careful review of the records, you 09:15:02 5 find that you cannot tell exactly how long he was on it. It 09:15:06 6 was a minimum of around two months, perhaps as long as six or 09:15:09 7 seven months if he took his medication. 09:15:13 8 Q. You've heard about Ativan. He was on Ativan. How many 09:16:12 9 times? 09:16:12 10 A. At least twice. 09:16:12 11 Q. My notes reflect four times. 09:16:12 12 A. Well, let's see, number -- you're right, because even 09:16:12 13 Dr. Buchanan towards the end used Ativan and -- yes, at least 09:16:12 14 threee to four times on Ativan. 09:16:12 15 Q. And we've heard Ativan prescribed as a tranquilizer, 09:16:12 16 benzodiazepine? 09:16:12 17 A. That's correct. By the way, Ativan -- I don't know if 09:16:12 18 this would be useful, but Ativan is not a terrific medication 09:16:12 19 if you're using this on a long term. It is very short-acting 09:16:12 20 medication. It is great for acute anxiety, but if somebody 09:16:12 21 has to be maintained on this particular medication or 09:16:15 22 tranquilizer medication, the practitioners would generally 09:16:19 23 favor using a much longer-acting medication. You don't get 09:16:24 24 as many peaks and valleys. 09:16:25 25 Ativan is prone to getting peaks and valleys. It has 1824 09:16:33 1 a very short half-life, cleared in the system very quickly, 09:16:33 2 and so you're always coming down from Ativan. 09:16:36 3 Q. My notes reflect you also talked about a period of time 09:16:39 4 during this four-year, four-month period that Mr. Schell was 09:16:43 5 on imipramine? 09:16:45 6 A. That's correct. 09:16:45 7 Q. And I'm not going to take credit for how I spell these, so 09:16:48 8 if they're wrong, that's not your fault. 09:16:50 9 Imipramine is what kind of medication and what do you 09:16:53 10 recall or how many times was he on imipramine? 09:16:55 11 A. He was on imipramine a lot. It is an antidepressant. It 09:17:00 12 is an older generation antidepressant medication. It has 09:17:03 13 been around for a long, long time. 09:17:05 14 Q. It is a tricyclic? 09:17:07 15 A. It is a tricyclic. 09:17:09 16 Q. He was on that at least three times, I think, wasn't he? 09:17:13 17 A. At least. 09:17:14 18 Q. For extended periods of time? 09:17:16 19 A. That's correct. 09:17:16 20 Q. We also have a medication you mentioned Friday, 09:17:21 21 amitriptyline? 09:17:23 22 A. Amitriptyline. 09:17:24 23 Q. What is amitriptyline? 09:17:26 24 A. Amitriptyline is also known as Elavil, an excellent 09:17:31 25 medication. We still use that medication a fair amount. It 1825 09:17:35 1 is great -- it is interesting to use Elavil, and this was 09:17:40 2 Bagnarello who did this. Even though he had a prior history 09:17:45 3 of using imipramine Dr. Bagnarello, I believe, was responding 09:17:50 4 to the amount of agitation that he had and oftentimes Elavil 09:17:55 5 is more helpful for real agitated patients. It is a sedating 09:18:01 6 medication. A lot of people can't take that unless they take 09:18:05 7 it at night. He was only on this two weeks, so he really 09:18:09 8 didn't get a benefit. It was low dose. 09:18:12 9 Q. One time for two weeks? 09:18:13 10 A. Yes, that's the only time I can see Elavil or 09:18:17 11 amitriptyline. 09:18:18 12 Q. You also mentioned a medication I think was new to us on 09:18:22 13 Friday, BuSpar. What kind of medication is that? I 09:18:26 14 understand he was on it once. What does that medication do 09:18:29 15 or what is it supposed to do? 09:18:32 16 A. That medication is an anxiety-blocking agent. It is not 09:18:36 17 addictive. It is not a tremendous medication, actually, in 09:18:41 18 general practice. You have to be very selective of the 09:18:44 19 patients that use this. 09:18:45 20 He was only on it one week and the benefit of that 09:18:49 21 particular medication takes about two weeks to work, so he 09:18:52 22 never achieved any benefit. He was on it so briefly that it 09:18:55 23 is a nonissue, really. 09:18:57 24 Q. And lastly I think you mentioned Restoril. I believe you 09:19:33 25 said he was on that medication one time. What kind of 1826 09:19:33 1 medication is Restoril? 09:19:33 2 A. The time he was on Restoril is when he was referred to 09:19:33 3 Dr. Lucas. This was the psychiatrist before Dr. Buchanan. 09:19:33 4 And the interesting thing about Restoril, it is only a sleep 09:19:33 5 medicine. It is an excellent sleep medicine. 09:19:33 6 But the use of Restoril at that time is sort of 09:19:38 7 interesting to note. Even at this time he had been on both 09:19:42 8 imipramine and Ativan. He wasn't doing terrific with that 09:19:46 9 medicine so they added a sleep medicine. 09:19:51 10 Q. I'm going to get into this a little bit more in a minute, 09:19:55 11 but isn't it correct that Mr. Schell discontinued his 09:19:57 12 treatment, his psychiatric treatment, after April of 1993? 09:20:21 13 A. That's correct. 09:20:21 14 Q. Now, of course, your opinions that you have already given 09:20:21 15 and will give this morning are based, I think, a great deal 09:20:23 16 on the timing issues concerning Mr. Schell's depression, 09:20:28 17 true? 09:20:29 18 A. That's correct. 09:21:23 19 Q. Now, you told us last week that Dr. Suhany treated 09:21:23 20 Mr. Schell in his third major episode which was December of 09:21:23 21 '89 through February of '91, a little over a year? 09:21:23 22 A. That's correct. 09:21:23 23 Q. And you said Dr. Suhany's chart or Dr. Suhany's treatment 09:21:23 24 was "good treatment," I think were your words? 09:21:23 25 A. Yes. Could I correct one thing I think you misstated? 1827 09:21:23 1 Q. Please. 09:21:23 2 A. You had mentioned through February. Actually, the last 09:21:23 3 session with Dr. Suhany was December. We believe he was 09:21:23 4 given enough medication to continue into February, but -- 09:21:23 5 Q. December of '90, then? 09:21:23 6 A. Correct. 09:21:23 7 Q. I misspoke. 09:21:23 8 Now, can you using Dr. Suhany's period of time give 09:21:29 9 us or give the ladies and gentlemen of the jury a little more 09:21:39 10 detail what you're talking about in terms of timing issues? 09:21:47 11 A. I would be glad to. 09:21:53 12 MR. GORMAN: Your Honor, may he go to the board? 09:21:55 13 THE COURT: As long as everybody can hear him. 14 MR. GORMAN: If you would step to the board and don't 15 turn your back to the reporter and keep your voice up or 09:22:17 16 we'll both be in trouble. 09:22:42 17 THE WITNESS: Can everybody hear me or should I grab 09:22:45 18 the microphone? 09:22:46 19 THE COURT: So far so good. 09:22:53 20 A. This is depression number 3 and this is Dr. Suhany. And 09:22:53 21 before I start this I do want to emphasize that this is the 09:22:54 22 most complete depression that we have on record because 09:22:59 23 Dr. Suhany -- and you've heard his deposition -- I think you 09:23:06 24 may lose the quality through the deposition, but these are 09:23:09 25 one-hour sessions. He is doing both the counseling and the 1828 09:23:12 1 medication monitoring. 09:23:14 2 And if you look at this record, and I've reviewed it 09:23:17 3 a number of times, there is nothing in this record that 09:23:23 4 Dr. Suhany did that anybody could really take much exception 09:23:26 5 with. And I never knew Dr. Suhany when he was in Wyoming, 09:23:30 6 but I can assure you from reading the records Wyoming lost a 09:23:34 7 good psychiatrist when he left. He really did a good job. 09:23:39 8 This kind of treatment here, this is the gold standard of 09:23:44 9 psychiatric treatment and I'll show you as we go along. 09:23:47 10 But if you plot these sessions, you start at zero and 09:23:54 11 this would be January 16, 1990, and if we put up here 09:24:06 12 remission -- 09:24:13 13 Q. (BY MR. GORMAN) Remission meaning what? 09:24:15 14 A. This is where he is well. This is where he's well. And 09:24:17 15 I'm just trying to illustrate what happened here. So if we 09:24:21 16 choose a point when Dr. Suhany started treating him, let's 09:24:25 17 call this the baseline -- and I'm kind of arbitrarily putting 09:24:38 18 this in here. There's no way to rate this, but I want to 09:24:41 19 illustrate the flow of the treatment. 09:24:43 20 Q. Keep your voice up as you're going through this. 09:24:45 21 A. And these under here would be weeks. I might also say the 09:24:52 22 analysis of this is nice because Dr. Suhany saw Mr. Schell 09:24:57 23 every week for 11 weeks. Very intensive. So we can really 09:25:03 24 plot how he was doing and then he lengthened the sessions. 09:25:07 25 Way out here at the end of treatment he was getting down to 1829 09:25:12 1 six weeks between sessions. That's about the longest he went 09:25:17 2 between sessions. 09:25:23 3 I have hope I can get all of this in here. But the 09:25:26 4 baseline, he came -- Dr. Suhany, and he was on Desyrel and 09:25:31 5 Ativan, so I'll try to get Desyrel and Ativan in here. 09:25:35 6 Q. You put a D for Desyrel on the exhibit and an A for 09:25:40 7 Ativan? 09:25:41 8 A. I can barely get it on. He was on those two medications. 09:25:45 9 And what Dr. Suhany did was initially try to work with those 09:25:48 10 two medications. There's significant agitation. These were 09:25:57 11 not bad medications to deal with agitation, so he increased 09:26:01 12 the dose and was on exactly 150 milligrams when he came in. 09:26:05 13 He increased the dose and he got worse, put it down to here. 09:26:12 14 Q. So at first week after the baseline -- 09:26:17 15 A. He's worse. 09:26:19 16 Q. -- he's worse? 09:26:21 17 A. This is the point where he actually -- I put under here 09:26:29 18 Prozac, Ativan and Desyrel. This is where Prozac is started. 09:26:33 19 Q. We're at the first week, then? 09:26:36 20 A. First week. These are weeks. Maybe I could put the 09:26:41 21 numbers above it. 09:26:45 22 Q. I should have gotten Dr. Merrell a taller easel. 09:26:50 23 A. I'm too tall. 09:26:53 24 He adds 20 milligrams of Prozac and in the first week 09:26:57 25 there's more deterioration. 1830 09:26:59 1 Q. And you're plotting there what, his depression? 09:27:01 2 A. His overall level of functioning, primarily depression. 09:27:05 3 Q. Okay. 09:27:10 4 A. So by week two he's a little more depressed and Dr. Suhany 09:27:13 5 is working with this. He's adjusting the dose of the Ativan 09:27:17 6 and over the next four sessions there is a note of continued 09:27:22 7 improvement. If you look in the note, although it is a rocky 09:27:29 8 course, there is steady improvement. 09:27:50 9 Q. During this period where he's improving now is he taking 09:27:53 10 the SSRI medication? 09:27:55 11 A. Yes. 09:27:58 12 Q. Is there a way, using a different color, you can plot 09:28:02 13 along there the period of time or the blood levels of Prozac 09:28:10 14 that he had in his system? 09:28:13 15 A. It might be better to plot that a little later. 09:28:16 16 Q. Or you can come back to that. That's fine. Go ahead, 09:28:19 17 then, and plot the depression. 09:28:21 18 A. At week 6 he develops some tremors and Dr. Suhany 09:28:25 19 decides -- by the way, the Desyrel drops off over this time 09:28:35 20 so he's just on the two medicines. 09:28:38 21 At week six Dr. Suhany adds a medication. Rather 09:28:49 22 than use Inderal, an "I" here -- it is going to confuse 09:28:54 23 later -- can I use P, propranolol? 09:28:59 24 Q. Except we've got a P for Prozac. 09:29:01 25 A. What number would you like? 1831 09:29:03 1 Q. You pick one just so we can distinguish it. 09:29:07 2 A. There might be two Ps, so let's call it PI because that's 09:29:17 3 both so there's no confusion. 09:29:17 4 Q. And PI now means what? 09:29:19 5 A. It is -- and I'll put it in parentheses, propranolol or 09:29:25 6 Inderal, the medicine he's trying to control the tremors 09:29:28 7 with. 09:29:29 8 And he does that for a week. Things are a little 09:30:06 9 rough in this point but basically it's like his depression 09:30:06 10 level, at least, is stable. 09:30:06 11 Q. What happens after week seven? 09:30:06 12 A. After week seven he decides to stop the medication. 09:30:06 13 Q. What medication? 09:30:06 14 A. The Prozac, so I am going to put an arrow stopping. This 09:30:10 15 is when it was stopped, week seven. And he starts 09:30:13 16 imipramine. This is the older generation antidepressant and 09:30:22 17 he continues the Ativan, so at this point he's no longer on 09:30:26 18 Prozac. 09:30:27 19 Q. And what happens? 09:30:35 20 A. We see a dramatic improvement, going to week eight, fairly 09:30:41 21 significant improvement. 09:30:42 22 Q. Why? 09:30:44 23 A. Can I get to that later? 09:30:45 24 Q. You can. Make sure I cover it. 09:30:50 25 A. All right. 1832 09:30:51 1 Q. Continue, then, with your diagram of his depression, plot 09:30:54 2 his depression. 09:30:55 3 A. Okay. By week eight this is actually plateauing. 09:31:44 4 At the same time I would like to put in something 09:31:44 5 about work because the issues around work are important. He 09:31:44 6 was off work sometime beginning about here. By the way, all 09:31:47 7 of his depressions, every single one of them, he was off work 09:31:51 8 for a long period of time. 09:31:53 9 He was off work, anyway, and he tries to go back to 09:31:57 10 work somewhere in this stage. 09:32:13 11 Q. And that was part-time work he was doing, actually? 09:32:16 12 A. Actually, the part time comes later. He tries to do some 09:32:20 13 kind of work, was unable to do it and he's back off work for 09:32:23 14 this period of time. And there's a period where he does part 09:32:40 15 time here. So we're at this stage here, about week nine or 09:32:44 16 so, and work issues are coming in and there's deterioration. 09:33:01 17 Q. By week ten, then, what do you see in his depression 09:33:04 18 state? 09:33:04 19 A. He is losing ground, losing ground by week ten. And 09:33:24 20 there's been no change in medication, he's still on 09:33:28 21 imipramine, low dose, low dose. This is 50 to 75. 09:33:32 22 By week 11 -- between 10 and 11 weeks, there's an 09:33:36 23 interesting thing that happens. He undergoes a problem. Deb 09:33:44 24 is leaving -- 09:33:46 25 Q. Deb being his daughter? 1833 09:33:47 1 A. His daughter is leaving. There's a dip because of Deb. 09:33:53 2 Q. Now, is this something you've seen consistent throughout 09:33:56 3 his course in terms -- and I think you mentioned that last 09:33:59 4 Friday -- that the loss, at least Mr. Schell felt, around Deb 09:34:06 5 leaving several times caused him problems, is that 09:34:11 6 consistent? 09:34:12 7 A. Leaving -- is the first time we hear her leaving but 09:34:15 8 there's also references to her illness where she is 09:34:18 9 undergoing some workup for some Pap problems where it 09:34:24 10 aggravates his depression. 09:34:26 11 Q. Continue then plotting his depression. 09:34:32 12 A. Okay. So we're at week 11, and actually, he goes back to 09:34:36 13 work, I believe, here. So he is now working about this time 09:34:51 14 and he goes down again. Dr. Suhany doesn't see him at this 09:34:56 15 point at week 12. I mentioned this was 11 but there's a 09:34:59 16 deterioration down to week 13. 09:35:03 17 One thing else that Dr. Suhany did was he increased 09:35:07 18 the dose of the imipramine at this point. 09:35:17 19 Q. Week 11? 09:35:19 20 A. Week 11. 09:35:20 21 Q. To 100 milligrams? 09:35:21 22 A. That's still not a high dose of imipramine. A lot of 09:35:24 23 people believe you've got to get to 150 milligrams to really 09:35:28 24 get the benefit of that medication. 09:35:30 25 Q. Now, if I understand the chart so far, Mr. Schell is on 1834 09:35:34 1 imipramine from week 7 now through week 13? 09:35:38 2 A. That's correct. 09:35:39 3 Q. He's not taking Prozac during that period of time? 09:35:43 4 A. No Prozac. 09:35:44 5 Q. Okay. 09:35:45 6 A. At least that he's taking. Now, week 13, this is where 09:35:51 7 Dr. Suhany does the blood levels. 09:35:54 8 Q. And tell the jury what you're talking about, does the 09:35:58 9 blood levels. 09:36:04 10 A. Dr. Suhany is concerned. This man is slipping. He's on 09:36:08 11 antidepressant medication. What is going on? And he does 09:36:11 12 something that is gold standard. He does a blood test of the 09:36:15 13 imipramine. The whole issue of blood levels is a topic of 09:36:21 14 discussion, but for whatever reason, it was low. And we 09:36:25 15 would expect it to be low at these levels. So he increases 09:36:33 16 it to 150 milligrams at this point. 09:36:37 17 Q. And what happens when he does that? 09:36:40 18 A. This is where recovery begins and really continues. Now, 09:36:54 19 if you look at records real closely, there's a couple of 09:37:03 20 times where he really hits remission and the remission -- you 09:37:05 21 know, this is where we want to get people. I want to get 09:37:12 22 people well, I want to keep them well. I don't want them to 09:37:16 23 slide. I want to get to this point. This is my job with 09:37:19 24 patients, to get them to remission. And once I get them 09:37:22 25 there, I want to keep them there. 1835 09:37:27 1 Well, it took -- he did get there, and there's two 09:37:30 2 notes in September of '90 and October of '90 where remission 09:37:39 3 happens. The first note says, "You know, I'm even better now 09:37:49 4 than when I last recovered from Prozac." Well, his prior 09:37:56 5 Prozac use was only months. He was only in remission six 09:37:59 6 months before all of this happened. 09:38:01 7 Q. The Prozac use prior to January 16th, 1990 -- 09:38:05 8 A. That's correct. 09:38:05 9 Q. Did he get a beneficial effect from the Prozac back in 09:38:09 10 the -- that was the treatment involving which physician? 09:38:13 11 A. That was Dr. Bresnahan and Hemphill. 09:38:21 12 There aren't a lot of records. There's two sessions 09:38:24 13 from Dr. Bresnahan. Those records are hard to read. They're 09:38:28 14 real large handwriting. But it does indicate that he was 09:38:34 15 improved. Actually, Dr. Bresnahan, one of the things I 09:38:39 16 mentioned on Friday was that he underlines "is good." 09:38:43 17 Q. He's on Prozac at that time? 09:38:45 18 A. He's on Prozac. I don't think he's even on Ativan. I'm 09:38:53 19 going to have to remember, but I don't think he's on Ativan 09:38:59 20 at that point. 09:39:00 21 Q. That's the December '89 time frame? 09:39:03 22 A. That's six months before this. 09:39:04 23 Q. Would you label your line there so we will know what 09:39:08 24 you're talking about. That's the depression scale? 09:39:13 25 A. This is overall depression and it is an arbitrary thing. 1836 09:39:16 1 It is not rated. I don't have a rating instrument that I 09:39:26 2 could say -- you could put this baseline a little bit up or 09:39:30 3 down. It doesn't really matter. It is the relative flow of 09:39:34 4 what's happening. 09:39:35 5 Q. Would you label the line, then, depression? 09:39:37 6 A. I'll just say baseline depression. 09:39:40 7 Q. That's fine. 09:39:48 8 A. And the important thing is he gets out here to remission, 09:39:53 9 in this time frame -- actually, probably closer to October. 09:39:56 10 You can tell this is remission by the way he talks. He says 09:40:01 11 the first time, as I mentioned, "I'm even better than the 09:40:04 12 last time I recovered from Prozac." 09:40:05 13 The second session says something I hear a lot, what 09:40:10 14 I really look for -- this is why I love psychiatry -- "I'm 09:40:14 15 even better than I thought I could be. I am even better than 09:40:19 16 I thought I could be." This blows him away. 09:40:21 17 Q. This is October '90? 09:40:23 18 A. This is October '90 saying this is amazing. 09:40:26 19 Now, the other thing that's interesting, if you look 09:40:29 20 out here, that's when he can begin to identify the stressors, 09:40:36 21 the problems. He's really more suitable for psychotherapy at 09:40:40 22 that point. He can begin to identify what led me into this. 09:40:44 23 Q. What were the things that led him into that? 09:40:48 24 A. Loss, working through the loss. He hadn't grieved some 09:40:52 25 reactions. He was now able to put together some of that, the 1837 09:40:58 1 grief and see how work was impacting. 09:41:01 2 Q. Now -- 09:41:02 3 A. And he says during this process, "I can even be better 09:41:05 4 because of what I've been through," is another thing he says. 09:41:08 5 And he also says another important thing. He says, "My mind 09:41:11 6 is better now. I'm thinking clearly." He's looking back on 09:41:20 7 this and saying, "Man, I was in a fog." 09:41:23 8 Q. When you get a patient like Mr. Schell to the point where 09:41:26 9 he or she can now take a look back and see these things, is 09:41:33 10 that important? 09:41:34 11 A. Very important. When I'm treating somebody, and I get 09:41:46 12 them here, I want to keep them here. I don't want to lose 09:41:50 13 this. I've been through this many, many times with patients. 09:41:53 14 It is very gratifying. 09:41:55 15 Some people describe this as coming out of a fog, the 09:41:58 16 lights come on, you're back living again, enjoying life 09:42:02 17 again. I don't want them to lose that and I want to educate 09:42:05 18 them about this process. 09:42:07 19 Q. What I would like you to do, can you now plot the Prozac 09:42:12 20 usage and the imipramine usage on the chart? I've got a 09:42:21 21 green one and here's a red pen. If you can plot, first of 09:42:32 22 all, the Prozac usage and we will come back and explain how 09:42:35 23 it relates to the baseline depression. 09:42:37 24 A. Plot first? 09:42:39 25 Q. Plot first, if you would, please. And write on that for 1838 09:43:06 1 me, if you would, please, write Prozac. 09:43:15 2 Then if you could use a different color, use the 09:43:17 3 green, if you could, to plot the two occasions that 09:43:20 4 Mr. Schell then was given imipramine by Dr. Suhany. And 09:44:12 5 label that for us, imipramine. 09:44:14 6 A. I have to do this with two graphs. Prozac interferes -- 09:44:19 7 or augments the effect of imipramine blood levels. 09:44:27 8 Q. It enhances, or they work together? 09:44:32 9 A. It enhances. It is a potential problem in some cases and 09:44:35 10 in some cases an advantage. In any case, this is assuming he 09:44:39 11 was not on Prozac. 09:44:42 12 Q. The green graph? 09:44:42 13 A. The green graph. It would start when he did it, take two 09:44:45 14 weeks to get to the plateau, he would be at the plateau until 09:44:50 15 he was on the higher dose of -- this would push his plateau 09:44:53 16 up a little bit more, and then when he was on the higher 09:44:57 17 dose, he would get reasonably close to the maximum of 09:45:02 18 imipramine, actually use of imipramine up to 300 milligrams. 09:45:06 19 Q. So 150 milligrams is still a -- 09:45:09 20 A. Average. 09:45:10 21 Q. -- average dose? 09:45:12 22 Now, take the ladies and gentlemen of the jury and 09:45:17 23 relate for them how, then, the Prozac usage, the imipramine 09:45:24 24 usage -- how that relates to his baseline depression? 09:45:27 25 A. Okay. Let me put one other little thing in here. Now 1839 09:45:32 1 this curve is going to be up some because of, as I said, the 09:45:36 2 Prozac is increasing that imipramine. 09:45:40 3 So let me put a dotted line a little higher. Nobody 09:45:45 4 can actually say how much higher this was. We don't know 09:45:50 5 enough. It is going to be higher, but don't hold me -- and 09:45:53 6 I'm not a neuropharmacologist, so if you ask a 09:45:59 7 neuropharmacologist, he might draw something slightly 09:46:02 8 different, but most psychiatrists' understanding would be 09:46:09 9 this is where it is at. 09:46:10 10 Q. Draw your dotted line. 09:46:14 11 A. The line sort of goes up and comes back down. As the 09:46:17 12 Prozac is out of his system, it returns to how it is without 09:46:21 13 the Prozac. 09:46:25 14 Q. Can we label that somewhere on our chart, then, like 09:46:30 15 Prozac effect? 09:46:32 16 A. So this is imipramine without Prozac, and -- I've done 09:46:53 17 imipramine without Prozac effect and imipramine with Prozac 09:46:57 18 effect. 09:46:58 19 Q. Okay. Now, tell the ladies and gentlemen of the jury how 09:47:07 20 the Prozac charting, the depression charting, how the 09:47:13 21 imipramine all come together and relate. 09:47:16 22 A. Well, the improvement from here to here -- well, the 09:47:26 23 improvement -- and I'll just put an arrow here -- is due to 09:47:31 24 the Prozac. 09:47:32 25 Q. He is improving his depression -- his depression is 1840 09:47:36 1 improving on the SSRI medication? 09:47:38 2 A. It is improving. It goes right along with what we expect 09:47:41 3 from Prozac and he's improving. 09:47:45 4 Now, the thing that's important to note here is 09:47:47 5 really the discontinuation at this particular point where 09:47:55 6 Prozac is stopped. 09:47:57 7 Q. What happens? 09:47:58 8 A. It is there. Prozac is in the system. As you can see 09:48:02 9 here, it is taking a month to get out of the system. This is 09:48:06 10 why Prozac has now come out with the twice-a-week dose of 09:48:10 11 Prozac. They've come out with a medicine that you only take 09:48:17 12 twice a week. It has a long action and you can take it twice 09:48:26 13 a week because of this type of curve. 09:48:29 14 But this is very dramatic, this curve here. This 09:48:43 15 improvement is largely Prozac. 09:48:45 16 Q. Why is that? 09:48:47 17 A. Look at the level of imipramine. He has very little level 09:48:52 18 of imipramine. His Prozac is still high. It is dropping off 09:48:55 19 slowly. This Prozac isn't crashing. That Prozac doesn't go 09:49:00 20 to zero. That's a month of Prozac in his system. 09:49:05 21 Now, there have been people because of this long 09:49:08 22 half-life, dangerous things happen way out here if you start 09:49:12 23 a different medication, even way out here it can be a problem 09:49:16 24 because Prozac is still there and it can interfere with other 09:49:19 25 medications. 1841 09:49:20 1 The classic example is the group of medicine called 09:49:24 2 the MAO inhibitors. 09:49:28 3 Q. Which I think the ladies and gentlemen have heard about. 09:49:32 4 A. Have you heard about those? 09:49:33 5 Q. Yes. 09:49:33 6 A. There have been fatalities out here using MAO inhibitors 09:49:39 7 because the Prozac is so long in action. 09:49:41 8 Q. First of all, are you done with your graphic analysis? 09:49:44 9 A. Well, there's one other thing that's interesting. You see 09:49:46 10 the improvement with the Prozac, but what do you also see 09:49:50 11 with his depression? To me he's starting to slide. Prozac 09:49:55 12 is coming out of the system, he's having some work issues 09:50:04 13 that are contributing to this. Going back to work is 09:50:04 14 aggravating the problems, so that is a factor. But also he's 09:50:10 15 really not protected much with medication and he's 09:50:13 16 deteriorating. 09:50:14 17 Q. As the Prozac goes out of his system? 09:50:17 18 A. As the Prozac goes out. 09:50:19 19 Q. Now, does this chart then demonstrate during the course of 09:50:24 20 Dr. Suhany's treatment that the SSRI therapy in relation to 09:50:29 21 Mr. Schell's depression was good? 09:50:36 22 A. It is possible that if he had continued on Prozac that he 09:50:41 23 might have gotten into remission. We don't know, but he was 09:50:47 24 beginning and the reason for the change in Mr. Suhany's 09:50:52 25 deposition and records was lack of complete effectiveness. 1842 09:50:57 1 Unfortunately for Mr. Schell it takes a long time to 09:51:02 2 get to remission. This is not a process -- if you look at 09:51:05 3 how long it took -- can I use this? 09:51:09 4 Q. Sure. 09:51:10 5 A. It was -- it took remission -- where should I put that, 09:51:15 6 underneath here? 09:51:17 7 Q. That's fine. Wherever is -- 09:51:19 8 A. It took nine months of total treatment to get to 09:51:23 9 remission, everything. 09:51:26 10 It took seven months with imipramine once it was 09:51:31 11 started here, and with a maximum benefit of imipramine which 09:51:37 12 is over here, week 13 it took five and a half months. 09:51:45 13 So we're not talking about -- five and a half months 09:51:49 14 with max dose. We're not talking about a guy who responds 09:51:58 15 real quickly to the antidepressants. 09:52:01 16 Q. Dr. Suhany -- and we're going to go into this a little 09:52:05 17 bit -- made a recommendation for Mr. Schell to continue his 09:52:08 18 treatment, true? 09:52:09 19 A. True. 09:52:10 20 Q. Mr. Schell -- 09:52:12 21 MR. VICKERY: I object to that, Your Honor. That's 09:52:13 22 just simply not supported by Dr. Suhany's records or his 09:52:17 23 deposition. It assumes facts not in evidence. 09:52:23 24 MR. GORMAN: I disagree. I think Dr. Suhany 09:52:26 25 testified about this in the deposition that we read, Judge. 1843 09:52:28 1 But I will ask Dr. Merrell what he understands. 09:52:33 2 THE COURT: All right. 09:52:34 3 Q. (BY MR. GORMAN) When did Mr. Schell discontinue treating 09:52:38 4 with Dr. Suhany? 09:52:39 5 A. It was December of '90, his termination, I think 16th or 09:52:58 6 18th, somewhere along in there. 09:53:01 7 Q. Based on your review of the record, did Dr. Suhany 09:53:04 8 recommend to Mr. Schell that he follow up after that date? 09:53:08 9 A. I believe the record reflects return in two months. 09:53:13 10 Q. Do the records reflect that Mr. Schell ever returned in 09:53:16 11 two months? 09:53:17 12 A. No. 09:53:19 13 Q. Are you done with your chart? 09:53:20 14 A. Yes. 09:53:22 15 MR. GORMAN: Your Honor, at this point we would offer 09:53:25 16 Defendant's Exhibit SB-00. 09:53:32 17 MR. VICKERY: I would like to hold on that offer 09:53:34 18 until after the cross-examination, Your Honor. 09:53:36 19 THE COURT: That's fine. 09:53:40 20 MR. GORMAN: Just remind me to reoffer it. 09:53:46 21 Q. (BY MR. GORMAN) Okay. Let's pick up -- are you now 09:53:54 22 ready, then, to talk about the final depression, major 09:54:02 23 depression, depression number six? 09:54:05 24 A. I think we're ready to go there, but if we -- you know, 09:54:09 25 there's two depressions after this. I think it is maybe 1844 09:54:12 1 important to talk about what are some of the characteristics 09:54:17 2 as he goes into this major depression. 09:54:19 3 Q. As we move him, then, forward from Dr. Suhany in through 09:54:23 4 the two depressions and the last. Tell us what you're 09:54:26 5 talking about, the characteristics of the depression. 09:54:30 6 A. Okay. Some of the things that we see is a man who goes up 09:54:42 7 and gets better and as soon as he gets better, he 09:54:46 8 discontinues the medication. At least with this one he was 09:54:49 9 in remission. The next two I'm not sure he even reached 09:54:52 10 remission. 09:54:53 11 For example, number four depression after this, he 09:54:59 12 was given a maximum dose of medication probably for about 09:55:06 13 five months. And the last one, Dr. Buchanan, if you look at 09:55:09 14 his records, he gave a total of 400 tablets of imipramine. 09:55:15 15 Now, he was getting imipramine, 50 milligrams, three a day. 09:55:22 16 If you divide 3 into 400 tablets you get 130 days, roughly. 09:55:29 17 Follow me? 09:55:36 18 Q. Yes. 09:55:36 19 A. So the most medication he had available is slightly over 09:55:39 20 four months. Did he really achieve remission with 09:55:42 21 Dr. Buchanan? I don't know. And if he did, as soon as he 09:55:46 22 got better he was out of medicine. He was on a roller 09:55:53 23 coaster. That is very destructive, to get better and to fall 09:55:58 24 off. That's an important factor. 09:56:00 25 And the other thing is that, as I mentioned before, 1845 09:56:03 1 another characteristic of this is as a person gets more and 09:56:07 2 more of these depressed episodes, their risk of relapse, 09:56:10 3 getting another one, increases. With the first one, 50 to 60 09:56:18 4 percent chance of a second. With the second, higher. Third, 09:56:23 5 higher. If you take this out, you get up into the 95 percent 09:56:30 6 chance of getting a depression if you have enough episodes. 09:56:32 7 So he puts himself at an extreme amount of risk with 09:56:36 8 these recurrent depressions. He doesn't maintain remission. 09:56:43 9 Very dangerous. 09:56:44 10 There's also an element here that I think is 09:56:47 11 important to note that we see in the record and that's his 09:56:50 12 cognitive impairment. He loses his ability to think clearly 09:56:55 13 and to work through issues. That's a background of it. And 09:57:00 14 I will come back to that. And he gains that cognitive 09:57:03 15 improvement after treatment. 09:57:06 16 Q. And then -- 09:57:07 17 A. That's another important thing. 09:57:08 18 Q. And then loses it when he quits treatment? 09:57:11 19 A. That's right. 09:57:11 20 Q. Now, is this a point where we should talk about his -- 09:57:17 21 Mr. Vickery objected here -- his failure to follow doctor's 09:57:22 22 recommendations? 09:57:23 23 A. I think it is a good place. 09:57:25 24 Q. Let's put up the slide. And tell us, then, using the 09:57:33 25 slide what it is, based upon your review of the records, that 1846 09:57:43 1 Mr. Schell didn't do in terms of his physicians' 09:57:49 2 recommendations. If my technical expert can get it on the 09:57:54 3 screen. 09:57:58 4 Okay, you notice -- and this was just what we were 09:58:01 5 talking about just a minute ago about Dr. Suhany. Tell the 09:58:10 6 ladies and gentlemen of the jury, then, again -- and 09:58:15 7 Mr. Vickery again what it was about the recommendation of 09:58:19 8 Dr. Suhany that Mr. Schell did not follow up on. 09:58:23 9 A. Continued treatment in two months. And, you know, this is 09:58:30 10 shocking. If I were in as bad a shape as he was and a doctor 09:58:38 11 had made me that much better, would I have said, "Okay, I'm 09:58:43 12 done with this"? Dr. Suhany also gave him education about 09:58:48 13 the illness. 09:58:49 14 Now, I haven't seen anything indicating how much 09:58:52 15 education he needed to be -- how much guidance, how long he 09:58:59 16 should be on antidepressants, but if I went through a major 09:59:05 17 depression and recovered and to discontinue those 09:59:09 18 medications, I find that a little hard to believe that that 09:59:17 19 was an easy decision for him to do. 09:59:20 20 Q. Last Friday you mentioned about the second depressive 09:59:23 21 episode, and I'm going one back from this, the -- and I 09:59:29 22 believe your words were, "That's where the clock started 09:59:36 23 running." 09:59:37 24 A. Yes. 09:59:37 25 Q. What did you mean by that and how does that relate now to 1847 09:59:40 1 Dr. Suhany's treatment and recommendation for follow-up that 09:59:43 2 was not followed by Mr. Schell? 09:59:46 3 A. This is where beginning of the risk comes in. There's a 09:59:50 4 50 to 60 percent chance of a second one of these. 09:59:54 5 Now, he did have one before this which I didn't have 09:59:59 6 enough documentation to say, well, the clock ought to start 10:00:02 7 running there. I was generous and said the clock ran here. 10:00:06 8 Some psychiatrists might have said well, the clock started 10:00:11 9 running before this. 10:00:12 10 Q. In 1989, though, in 1988-'89, the one before this one 10:00:19 11 that's on the board, Mr. Schell was on an SSRI medication for 10:00:23 12 a period of time, true? 10:00:24 13 A. Prozac. 10:00:25 14 Q. And Mr. Schell received significant benefits in his 10:00:29 15 depression during that time, true? 10:00:31 16 A. That's true. 10:00:34 17 Q. Now, were there other occasions, then, where Mr. Schell 10:00:37 18 did not follow his doctor's recommendations as we move into 10:00:42 19 the January, February '98 episode. And we've put on the 10:00:49 20 board the fourth depressive episode in the '91-'92 time 10:00:54 21 frame. 10:00:55 22 Tell the ladies and gentlemen of the jury about that 10:00:57 23 episode, the recommendations that were made and whether or 10:01:06 24 not Mr. Schell followed those recommendations. 10:01:08 25 A. This is the point in time where Dr. Bagnarello has treated 1848 10:01:12 1 him several visits. Dr. Lucas is only involved in two 10:01:16 2 visits. He writes a letter back to Dr. Bagnarello saying he 10:01:19 3 needs to be on medications for one year -- "I'm referring him 10:01:24 4 back for ongoing treatment with you" -- and Dr. Lucas' last 10:01:30 5 session indicated that that was going to be the follow-up. 10:01:39 6 Q. Did Mr. Schell follow that recommendation -- 10:01:41 7 A. No, no. 10:01:41 8 Q. -- based upon your review of the records? 10:01:44 9 A. No. 10:01:44 10 Q. Is there another indication then as we move into '98 where 10:01:48 11 Mr. Schell received a recommendation that he did not follow? 10:01:52 12 A. Yes. This is with Dr. Buchanan, the last documented 10:01:56 13 depressive episode. There are only three sessions with 10:02:01 14 Dr. Buchanan. There's a six-week period of time. 10:02:04 15 Dr. Buchanan put him on high-dose medicine, imipramine, the 10:02:12 16 dose that he responded well to before, and he saw him two 10:02:23 17 weeks and then a month later and recommended return in -- I 10:02:23 18 can't remember if it was two or three months. 10:02:24 19 Q. He didn't return? 10:02:24 20 A. He did not return. 10:02:25 21 Q. And I believe you've told the ladies and gentlemen of the 10:02:29 22 jury now this is April 27th, 1993. This is where Mr. Schell 10:02:35 23 ceased all psychiatric treatment for his illness? 10:02:40 24 A. In terms of medication, this is the last documented 10:02:44 25 material that's out there. 1849 10:03:02 1 Q. Are we ready to move into the final episode? 10:03:06 2 A. Yes, I believe so. 10:03:07 3 Q. Let's put that slide up and move through it fairly 10:03:09 4 quickly, if we can. 10:03:11 5 Do we know some things about the final episode, the 10:03:14 6 January, February 1998 episode, in terms of stressors or 10:03:24 7 precipitating factors that we have or that you were able to 10:03:27 8 identify on prior occasion that caused Mr. Schell to fall off 10:03:31 9 into a depressed state? 10:03:33 10 A. Yes. We have two losses that are very close together and 10:03:39 11 significant losses. A brother from the leukemia, cancer. As 10:03:49 12 you recall, Mr. Schell was evaluated for a possible 10:03:52 13 transplant, did not work out, and brother dies. Very 10:03:59 14 important relationship. 10:04:00 15 Father-in-law dies. And we see major depressions 10:04:07 16 very frequently having a trigger of a loss a few months 10:04:12 17 before when a person is going through grief. 10:04:18 18 Q. Now, you told us back in October of '90 when Dr. Suhany 10:04:24 19 got Mr. Schell to a point where I think you said he felt 10:04:27 20 better than he's ever felt, and at that point he was able to 10:04:31 21 look back into his past and identify some of these things 10:04:36 22 that had caused him to get in the situation that he then 10:04:41 23 found himself in. 10:04:43 24 Are losses like the two you've identified here, the 10:04:45 25 loss of his youngest brother and the loss of his 1850 10:04:49 1 father-in-law -- are those things that in your review of the 10:04:52 2 records have been consistent triggers for Mr. Schell and his 10:04:57 3 depression? 10:04:57 4 A. Yeah, those are consistent triggers. A loss of any type, 10:05:01 5 I have patients that lose their pets and I hadn't thought of 10:05:05 6 that until now, but they get very -- and this can trigger off 10:05:10 7 tremendous depression. People get very attached to even a 10:05:12 8 pet. And I treat people that have an aggravation of their 10:05:17 9 depression with that amount of loss. 10:05:21 10 Q. In '97, then, in addition to those two losses, late '97, 10:05:27 11 are there additional unusual events that occur in 10:05:34 12 Mr. Schell's life as we move him into this February '98 10:05:40 13 depression? 10:05:40 14 A. Yes, you see some rather unusual types of behavior 10:05:44 15 happening, making unkind remarks about Rita's father and also 10:05:52 16 the development of a very conflicting or stressful issue over 10:06:01 17 a sale of a house that didn't go through and there's a 10:06:04 18 threatened lawsuit. And those add to his stress. 10:06:12 19 Q. Let's move now into February, then, February of '98, and 10:06:19 20 we're coming into the month where the tragedy occurs, then. 10:06:22 21 What, if anything, happens on February 1st of '98 10:06:26 22 that is significant to you in your analysis here? 10:06:29 23 A. Well, Deb comes to visit and brings Alyssa, and in part 10:06:38 24 that's done to help with his depression. 10:06:41 25 Q. So we know at this point his depression is coming in 1851 10:06:47 1 around him? 10:06:51 2 A. I'm not sure how much documentation -- we see the 10:07:00 3 beginning signs of him having more trouble. A lot of his 10:07:04 4 depressions have deteriorated rapidly. Some of these you see 10:07:07 5 the deterioration rapidly frequently even after he gets into 10:07:12 6 treatment. 10:07:13 7 Q. What happens in February a week or so later that is 10:07:15 8 significant to you? 10:07:17 9 A. Ron Wagner is contacted about needing time off work. He 10:07:28 10 notes he's depressed. 10:07:30 11 Q. Now you mentioned -- 10:07:31 12 A. Every depression that he's had has been manifested by work 10:07:34 13 problems. Not one where he's been able to work. And we're 10:07:38 14 not talking about work of a day or two. We're talking about 10:07:42 15 a month. Can you imagine if I had to be off of work a month? 10:07:46 16 That's pretty significant. 10:07:49 17 Q. In your tracing his history back to 1984, as far as you've 10:07:53 18 ever been able to go, is that always a factor that is 10:07:59 19 involved with Don Schell's episodes of depression, the amount 10:08:03 20 of time off work? 10:08:07 21 A. Let's put it the other way. He has never been through a 10:08:10 22 depressive episode where work was not affected, never. 10:08:15 23 Q. February 10th, three days before the events, some other 10:08:22 24 events happen in Don Schell's life that are significant, 10:08:27 25 true? 1852 10:08:36 1 A. A number of things are happening. And again, along with 10:08:39 2 work he finds himself unable to drive from the site and 10:08:45 3 wondering about it. 10:08:46 4 Q. Why is that important? 10:08:47 5 A. Well, can you imagine if you cannot find your way from 10:08:56 6 your work to home? This is even more than ability to work. 10:08:57 7 If I can't find my way to my office, I'm in trouble. 10:09:02 8 Q. We're going to talk about this a little bit in terms of 10:09:04 9 cognitive impairment. Is that an indication of cognitive 10:09:09 10 impairment? 10:09:10 11 A. Yes. 10:09:10 12 Q. What other things happened, then, during this 10:09:14 13 February 10th time frame? 10:09:16 14 A. Well, he begins to transfer the books to Kevin Nelson. 10:09:23 15 He's noted to be pale and shaky. And another significant 10:09:27 16 call is that he makes a call to his investment counselor 10:09:32 17 talking about being bankrupt. 10:09:39 18 Now, there was a trigger here. He had a statement 10:09:42 19 that indicated that he didn't have money or his money was 10:09:45 20 less. In any event -- and I've looked at those financial 10:09:51 21 statements -- his reaction to that is really dramatic and he 10:09:58 22 panics. He calls and then when he is called back and 10:10:02 23 reassured, it is as if he's, "Oh, okay." It is a very bland 10:10:11 24 reaction as if he doesn't really kind of understand what has 10:10:14 25 all happened. He doesn't apologize and say, "I'm sorry, I 1853 10:10:18 1 got panicked." 10:10:21 2 The reassurance doesn't make a dramatic effect. I 10:10:27 3 think he's having trouble now, I think, with his cognitive 10:10:31 4 ability. 10:10:32 5 Q. All right. There's one other note on that chart. On 10:10:35 6 February 10th it says, "Rita Schell calls Dr. Patel's office 10:10:40 7 to request sleeping pills because Mr. Schell's nerves are 10:10:45 8 shot." Do you see that? 10:10:47 9 A. Correct. 10:10:49 10 Q. Is there some significance to you -- and we're going to go 10:10:54 11 through this in a little bit, but is there some significance 10:10:58 12 to you at this point in time, first of all, about the nature 10:11:01 13 of the call that was made and who was making it, Mrs. Schell 10:11:05 14 and not Mr. Schell? 10:11:12 15 A. I'm not sure I could say it is significant between who 10:11:15 16 makes the call as much. I think the thing that strikes you 10:11:19 17 as you look at that is it looks like a rather panicked call, 10:11:24 18 but there's also an element of -- the first call is "I need 10:11:30 19 sleeping pills. Can you give sleeping medication?" Then as 10:11:32 20 the note is enlarged, the number of symptoms are noted on the 10:11:41 21 note. Do you want me to refer to it? 10:11:45 22 Q. Well, just a minute. We talked a little bit Friday about 10:11:48 23 a stigma, that Mr. Schell had a stigma as it related going 10:11:53 24 to -- I think the records say he had a problem going to 10:11:58 25 shrinks. And I apologize, Dr. Merrell, for that. 1854 10:12:05 1 A. That's okay. 10:12:05 2 Q. Is the fact that Rita Schell makes this call on February 10:12:08 3 10th -- does it relate at all to this stigma issue that 10:12:12 4 you've talked about Friday? 10:12:13 5 A. Yes, I think stigma is -- Dr. Buchanan is still there. A 10:12:18 6 lot of these psychiatrists, three out of four, have left that 10:12:25 7 community. Dr. Buchanan has remained there. He treated 10:12:28 8 Mr. Schell somewhat successfully. There was improvement. 10:12:34 9 Why didn't he go back to Dr. Buchanan? Here's a man that 10:12:38 10 knew him, helped him right away. Why did he choose a GP or 10:12:42 11 an internist that didn't know him? 10:12:57 12 Q. Are we ready to talk about Dr. Patel's visit? 10:13:00 13 A. I would like to mention, before you look at some of the 10:13:04 14 information from that visit, about the reliability issues. 10:13:07 15 Q. What do you mean, reliability issues? 10:13:09 16 A. Well, the information that -- we're to the point where 10:13:11 17 he's going to come in and talk to Dr. Patel about his 10:13:14 18 problems, and how reliable is some of that information that 10:13:19 19 we're getting and that is available to Dr. Patel. 10:13:25 20 Q. What do you mean by that? 10:13:28 21 A. Well, I think as you will look in Dr. Patel's note, there 10:13:33 22 are some things that just simply aren't reliable, aren't 10:13:36 23 accurate. There's minimization. If you look at the record 10:13:43 24 when he talks -- and I guess we can get into his visit and 10:13:47 25 talk about it -- he says his depressions are generally a 1855 10:13:50 1 month and a half or two months long. 10:13:53 2 Well, the thing -- I'm not sure what is interacting 10:13:56 3 here. Is it his cognitive impairment? This is a year 10:14:01 4 treatment. Now, he doesn't even mention Dr. Suhany's name in 10:14:04 5 the record. He says something like, "I saw a psychiatrist on 10:14:08 6 Lakewood," or something. I don't know if he even remembered 10:14:12 7 Dr. Suhany. 10:14:18 8 Q. Let's talk about those a little bit. And we will come 10:14:22 9 back to this slide, but let's talk about -- we have another 10:14:25 10 slide, then, about the things that you saw from the record 10:14:35 11 that were significant to you that he did not tell Dr. Patel, 10:14:35 12 true? 10:14:35 13 A. Correct. 10:14:36 14 Q. Let's -- 10:14:37 15 A. And some of those things he told Dr. Patel were really 10:14:40 16 distorted, inaccurate information. So if you're saying that 10:14:43 17 some of this information in the interview is inaccurate, then 10:14:48 18 can we say what is accurate? That's my question. 10:14:52 19 Q. We put on the board now another slide that's in evidence 10:14:58 20 and it is entitled What Dr. Patel Was Not Told About Donald 10:15:05 21 Schell. First thing, unable to work. We've talked about 10:15:10 22 that. That's an important issue? 10:15:12 23 A. Important issue. That's the trigger of depressions. Once 10:15:15 24 somebody is educated on major depressions with a patient and 10:15:18 25 their spouse, they see signals like this. I don't have to go 1856 10:15:22 1 and grab them. They're in my office saying, "Doc, it is 10:15:26 2 coming on again and we want to do something about it." 10:15:30 3 Q. The record does not reflect that Dr. Patel was told about 10:15:33 4 Mr. Schell's inability to work? 10:15:35 5 A. No. I mean, of the signals that there would be, this 10:15:39 6 signal is like a lightning bolt. 10:15:44 7 Q. Was Dr. Patel told whether -- that Mr. Schell was unsure 10:15:49 8 if he could drive himself home from the oil field? 10:15:54 9 A. I don't believe so. 10:15:54 10 Q. Is that important? 10:15:57 11 A. Very important. If I saw a patient that I did not know 10:16:01 12 and they were telling me that I was -- they were having 10:16:04 13 trouble finding their way back from the oil field, you're 10:16:07 14 beginning to think what is their mental functioning. And 10:16:11 15 this is a time where a psychiatrist might do a detailed 10:16:14 16 mental status examination. 10:16:18 17 I mentioned pseudodementia. Now, pseudodementia is a 10:16:28 18 term that applies to someone that has a major depression, 10:16:30 19 that gets so depressed that they become much like an 10:16:43 20 Alzheimer's patient. The term is pseudodementia and if you 10:16:47 21 don't know these patients and one of these people comes and 10:16:51 22 sees you, you may think -- because they're really lost and 10:16:54 23 having trouble, you may think this is really an Alzheimer's 10:16:59 24 problem. 10:16:59 25 You treat them with antidepressants and the people 1857 10:17:03 1 that have this problem from depression get better. It is one 10:17:07 2 of the diagnostic signs of how to discriminate between these 10:17:11 3 two problems. 10:17:12 4 I'm saying if you're beginning to get an indication 10:17:14 5 that it is that bad, you start doing a detailed mental status 10:17:18 6 examination. You begin asking questions. 10:17:20 7 Now, a couple of these were done over the years and 10:17:23 8 they weren't really very detailed. Dr. Buchanan did one and 10:17:27 9 Dr. Suhany did a brief one, only two records, very brief 10:17:31 10 ones. If you're suspicious you do a more detailed mental 10:17:35 11 status examination. You ask questions about how is your 10:17:38 12 memory? How is your concentration? How is your ability to 10:17:42 13 deal with math? How is your ability to do various judgment 10:17:46 14 situations? There's a whole series of questions that gives 10:17:49 15 you a picture of what their mental functioning is. 10:17:52 16 You also ask them questions about their ability to 10:17:56 17 think through and determine, ability to abstract, which is 10:18:00 18 one of the higher executive functions of the brain. If a 10:18:05 19 detailed mental status examination -- that would have been 10:18:12 20 the most helpful thing at that particular time, to really see 10:18:15 21 what a detailed mental status examination might have 10:18:19 22 indicated. 10:18:20 23 Q. In order to do a detailed mental status examination you 10:18:22 24 have to get the information from the patient or his family, 10:18:26 25 true? 1858 10:18:26 1 A. That's true. And not only that, you're not going to get a 10:18:29 2 detailed mental information from an internist. This is where 10:18:33 3 psychiatry training will come into the picture. 10:18:37 4 Q. He was upset about his financial investment statement. We 10:18:40 5 have talked about that? 10:18:42 6 A. That's correct, you know. And there was never a statement 10:18:45 7 saying, "Doc, you know, they called -- I got the statement. 10:18:50 8 I thought I was bankrupt and I called the person. I really 10:18:55 9 feel kind of embarrassed about it. It is not normally the 10:18:59 10 way I behave." 10:19:03 11 Q. His daughter, Deb Tobin, was planning to leave in two 10:19:08 12 days. Again, is that, in your analysis of Mr. Schell's 10:19:15 13 history, always been an event that triggered depression? 10:19:19 14 A. It has been an event a number of times. It has been 10:19:22 15 identified and he's been able to get insight, but this has 10:19:25 16 been things that can add to his depression. And it is kind 10:19:30 17 of a trigger that may happen as she leaves. And as he loses 10:19:36 18 his awareness and his insight, he really loses his ability to 10:19:41 19 say, "Now, my daughter leaving was a big thing several years 10:19:46 20 ago. Dr. Suhany and I talked about it. My daughter's 10:19:50 21 medical problems was also an important thing and that was 10:19:57 22 years ago. My daughter's leaving is a potential trauma for 10:20:02 23 me." He wasn't able to make those kinds of connections. 10:20:05 24 Q. You have a note on here, "Abandon his daily routine." 10:20:08 25 What do you mean by that and what effect does that have on 1859 10:20:11 1 this situation? 10:20:13 2 A. Again, I think that represents how much depression he was 10:20:16 3 having and his style of moving his vehicles, very proud of 10:20:24 4 how he moved his vehicles, very proud of how he kept his 10:20:27 5 vehicles. 10:20:32 6 And that's a change. That is a change in his normal 10:20:38 7 way of functioning, so much that people noticed, so much that 10:20:41 8 neighbors noticed. 10:20:43 9 Q. You have Mrs. Schell was working longer hours and becoming 10:20:47 10 a more successful real estate agent. I want to ask you a 10:20:51 11 question there because we had some testimony in the courtroom 10:20:54 12 that in reality Mrs. Schell was not that successful in her 10:21:04 13 real estate career. 10:21:05 14 And I want to ask you about -- in connection with 10:21:09 15 this material that Dr. Patel was not told about, I want to 10:21:14 16 talk -- I want you to relate to the jury a little bit about 10:21:18 17 Mr. Schell's perception of these -- this event versus reality 10:21:24 18 and how those interact, if you can. 10:21:29 19 A. Well, my understanding of how it worked was that she was 10:21:35 20 home early and that's the way they had worked this out 10:21:38 21 between the two of them, that she came home early. 10:21:41 22 And I've seen information indicating that if she was 10:21:44 23 available longer hours, could respond to customers longer 10:21:49 24 hours, that she would be more successful. Now, that did not 10:21:55 25 happen so the success was never realized. 1860 10:21:58 1 Q. In reality? 10:21:59 2 A. In reality. 10:22:00 3 Q. But what was Mr. Schell's perception based upon your 10:22:03 4 review of the records? 10:22:05 5 A. I think his perception goes beyond the reality of it. He 10:22:18 6 feels more and more worthless. That's how depression 10:22:22 7 progresses. If you're married to somebody that is 10:22:24 8 functioning okay, that affects you. You're going down and 10:22:27 9 you see them going up. 10:22:32 10 Q. We had the threatened lawsuit over the sale of the house. 10:22:35 11 We talked about that? 10:22:36 12 A. We talked about that. 10:22:37 13 Q. And that involved his boss, true? 10:22:39 14 A. True. 10:22:39 15 Q. He didn't tell that to Dr. Patel? 10:22:41 16 A. No. 10:22:42 17 Q. He had at least five prior depressive episodes. Did he 10:22:47 18 tell Dr. Patel that? 10:22:50 19 A. No, he describes them briefly. He describes them in a 10:22:54 20 style that sounds pretty minor. And that's probably a 10:23:02 21 combination both of stigma and cognitive defect. If you walk 10:23:09 22 into an internist in Cheyenne here -- and we have a lot of 10:23:12 23 good doctors in internal medicine -- if you were to tell them 10:23:15 24 all of this material, they would no way begin treatment. 10:23:18 25 Somebody that has seen a psychiatrist four times, had such a 1861 10:23:21 1 complicated course, they're not going to do treatment. 10:23:24 2 They're going to get a psychiatric involvement. They're 10:23:28 3 going to know they're over their head right from the 10:23:31 4 beginning. 10:23:31 5 Q. Did Mr. Schell tell Dr. Suhany -- strike that -- Dr. Patel 10:23:36 6 at this time that up until now he had been treated by four 10:23:41 7 psychiatrists, two psychologists and a religious counselor? 10:23:44 8 A. No. That goes right along with the depressive episodes. 10:23:47 9 Q. Did Mr. Schell tell Dr. Patel that his treatment in these 10:23:53 10 five previous major depressive episodes lasted longer than 10:23:57 11 one to two months? 10:23:58 12 A. No, he made it sound like they're very easy, he gets 10:24:02 13 through them fairly easily, feels better and gets on 10:24:07 14 medications and is back to the normal state. So it sounds 10:24:12 15 good on the surface, but that is not factual. That is not 10:24:15 16 factual. That one fact alone there questions that whole 10:24:18 17 interview. 10:24:19 18 If somebody tells me something that is that 10:24:22 19 untypical -- now, there was maybe one or two episodes where 10:24:27 20 it was briefer, but that's a mischaracterization of what 10:24:38 21 happened. 10:24:38 22 Q. Lastly we put up was there any way based on the 10:24:41 23 information Mr. Schell gave Dr. Patel to know that, as you've 10:24:47 24 indicated, Mr. Schell did not follow up as recommended by 10:24:50 25 three different psychiatrists? 1862 10:24:56 1 A. No. And that would require a lot of maturity and you have 10:25:03 2 to be in a pretty good place to be able to say that and say, 10:25:06 3 "You know, I didn't follow the treatment." You think that's 10:25:11 4 the kind of statement you tell a doctor and they say, "Here, 10:25:16 5 let's give you more medication"? That's a red flag for a 10:25:20 6 doctor. 10:25:21 7 Q. There's one other area that Peggy Deans told the ladies 10:25:31 8 and gentlemen of the jury last week about an event in 10:25:32 9 Mr. Schell's past where he was on some medication and he told 10:25:35 10 his family that he was seeing things, okay. 10:25:40 11 Let me tell you that that was some testimony that 10:25:42 12 these folks heard last week. 10:25:46 13 Certainly as you reviewed any of the records that 10:25:54 14 were made available to you for Mr. Schell back to 1984, is 10:25:55 15 there any indication in any of the records to any of the 10:25:59 16 doctors, psychiatrists, psychologists, anyone, that 10:26:03 17 Mr. Schell while on medication was seeing things? 10:26:11 18 A. No, I don't think there's any evidence of clear 10:26:13 19 hallucinations, but you see cognitive impairment, memory 10:26:17 20 impairment, and those things are also involved in the 10:26:23 21 beginning process of developing psychosis. 10:26:27 22 You know, we don't -- psychosis builds slowly. It 10:26:31 23 doesn't just happen as a stroke of lightning. As people 10:26:35 24 deteriorate, they lose more and more function. 10:26:38 25 Q. Did Mr. Schell tell Dr. Patel about any hallucinations? 1863 10:26:42 1 A. Not to my knowledge. 10:26:48 2 Q. What does that fact add, Mr. Schell's telling his family 10:26:51 3 that for a period of time he was seeing things? What would 10:26:54 4 that mean to you as a psychiatrist as it relates to 10:27:00 5 Mr. Schell? 10:27:00 6 A. As we get on a little later, that would indicate a major 10:27:04 7 depression that has psychotic features and that's a 10:27:08 8 depression that progresses, becomes more severe and is now 10:27:13 9 psychotic. 10:27:14 10 Q. Would that cause you as a psychiatrist looking at this 10:27:17 11 case to believe Mr. Schell was probably even sicker than what 10:27:20 12 you thought? 10:27:21 13 A. Yes. If there was evidence before that he had developed 10:27:25 14 any perceptual disturbances like that, then that would put 10:27:31 15 him into possibly a category of major depression with 10:27:35 16 psychosis. 10:27:36 17 Q. Now, the distortions or the inaccuracies we've talked 10:27:39 18 about in his history with Dr. Patel, what significance are 10:27:43 19 those to you? 10:27:51 20 A. I think I've covered that a little bit and that's the 10:27:54 21 issues of both stigma and cognitive impairment. Those are 10:27:58 22 the big ones. 10:27:59 23 Q. Stigma we've talked about: Mr. Schell didn't want to go 10:28:02 24 to a psychiatrist? 10:28:05 25 A. True. 1864 10:28:05 1 Q. When you say cognitive impairment or cognitive decline, 10:28:09 2 what does that mean and why is it important in this case? 10:28:12 3 A. There's a couple of issues on his cognitive decline that I 10:28:17 4 think are important. He has that cognitive impairment on 10:28:20 5 most of the documented depressions. His depression affects 10:28:26 6 his memory and his concentration. It affects him. 10:28:31 7 The other thing is it gets better with treatment. 10:28:35 8 Those go away with treatment. That is related to the 10:28:38 9 depression, the cognitive impairment. 10:28:45 10 Q. Based upon your review of the record, do you believe that 10:28:47 11 Mr. Schell was minimizing his past history to Dr. Patel? 10:28:59 12 A. Yes, and I may have used the word "minimization," and I 10:29:03 13 think that was a combination of stigma and how much did he 10:29:08 14 really remember about his treatment. 10:29:13 15 Q. We've heard about the answer -- a questionnaire that 10:29:15 16 Dr. Patel administered or had Mr. Schell fill out. You're 10:29:20 17 aware of what I'm talking about? 10:29:21 18 A. Yes. 10:29:22 19 Q. Do you believe that given your review of the records 10:29:25 20 Mr. Schell -- what he didn't tell Dr. Patel in the history, 10:29:33 21 do you believe Mr. Schell minimized his answers on that 10:29:36 22 questionnaire? 10:29:37 23 A. Yes. From a psychiatric perspective, his assessment of a 10:29:42 24 mild depression is more concerning, it is more out of touch 10:29:45 25 with where he is than if he had been at the bottom. 1865 10:29:52 1 You know, some of these questions -- and there's two 10:29:55 2 or three that strike me. "I find it easy to make decisions 10:30:00 3 some of the time. Well, I don't know if I'm going to be able 10:30:06 4 to find my way to work or not. I can't do my job." Is that 10:30:12 5 responsive to really where he's at? 10:30:15 6 There's a couple other here. "My mind is as clear as 10:30:22 7 it used to be some of the time." That's not responsive. 10:30:27 8 That's not responsive to where he's at. 10:30:31 9 "I find it easy to do the things I used to." That's 10:30:37 10 not responsive. He can't move the cars like he normally 10:30:40 11 does. That's not valid. Those answers are not valid, in my 10:30:47 12 opinion. 10:30:48 13 Q. Now, we've talked about treatment compliance, and we saw a 10:30:54 14 slide on what he didn't do. 10:31:00 15 A. True. 10:31:01 16 Q. And you talked about cognitive changes or cognitive 10:31:08 17 impairment and you believe there's some evidence of this. 10:31:11 18 I want to ask you if Mr. Schell, in fact, was having 10:31:14 19 cognitive impairments around this time, what are the 10:31:19 20 implications of that? What are the evidence and implications 10:31:24 21 of mental confusion? 10:31:26 22 A. Okay. I think I kind of covered that before in terms of 10:31:29 23 some of the things causing his confusion. 10:31:41 24 Q. The unusual, unkind statements about the father-in-law, 10:31:41 25 those things? 1866 10:31:41 1 A. Yeah, and that goes way back. 10:31:41 2 Q. Okay. 10:31:42 3 A. And in addition to the things we talked about here more 10:31:47 4 recently. 10:31:52 5 Q. Okay. In -- 10:31:56 6 A. Could I add one other thing that just occurred to me about 10:31:59 7 that visit? 10:32:00 8 Q. Certainly. 10:32:05 9 A. The impact of Rita. 10:32:07 10 Q. That was going to be my next question. 10:32:10 11 A. Your next question, okay. 10:32:14 12 Q. We talked about Rita calling on the 9th or 10th asking for 10:32:18 13 sleeping pills. It wasn't Don calling, it was Rita. 10:32:22 14 What involvement or lack thereof at this meeting with 10:32:26 15 Dr. Patel did Mrs. Schell have and what significance is that 10:32:29 16 to you? 10:32:31 17 A. Okay. Now, if I go back and talk about how I educate 10:32:38 18 patients when they get better, it is an open-door policy of 10:32:40 19 mine to have the spouse or family member involved, and I 10:32:45 20 would say that close to 100 percent of the time family 10:32:49 21 members will come in, and more often in some families than 10:32:56 22 others. It is unusual where I do not have the spouse at 10:33:01 23 least meet me, talk to me and work with me. I want an 10:33:04 24 alliance with that spouse. 10:33:06 25 And part of the reason I want an alliance is if 1867 10:33:11 1 things start to go bad and somebody begins to slip into one 10:33:15 2 of these episodes, I don't want it to happen. I want to stop 10:33:19 3 this process. So I want the spouse involved and educated. I 10:33:23 4 can't tell you how many times where in the process of 10:33:26 5 treating a depression a spouse or a family member has 10:33:28 6 returned to me and said, "It is back again." They grab their 10:33:34 7 spouse by the ear, bring them in. 10:33:37 8 I have already set the stage for that to happen, and 10:33:39 9 I empower them with the ability to help their loved one. 10:33:44 10 They are empowered by having them in the session. I give 10:33:50 11 them a little bit of my power as a physician to help treat 10:33:53 12 this illness. This is a chronic life-long illness and I want 10:33:58 13 everybody's working together to get better. 10:34:01 14 There's no indication how much Rita was involved in 10:34:04 15 the treatment and how much she understood about his 10:34:08 16 depression. I think Dr. Suhany mentioned that he is not sure 10:34:14 17 if she ever came into the sessions and I don't see any 10:34:17 18 evidence that she was really involved with the other doctors. 10:34:24 19 And this is problematic. It is problematic because 10:34:29 20 what she is getting is only what Don is telling her. She is 10:34:35 21 never seeing the doctor directly, right? That's problematic 10:34:40 22 because what she's hearing is only what is being communicated 10:34:44 23 through the person with the illness. 10:34:49 24 So Rita was not allowed to be really an advocate for 10:34:53 25 Don. She came in, she was supportive, but she could not, 1868 10:34:59 1 because of the setting, be the kind of hard-nosed person that 10:35:04 2 needed to be done at that time. 10:35:06 3 If you were hard-nosed at this point, you would say, 10:35:11 4 "He is falling apart. He has been through this several times 10:35:14 5 before. Every one of these start with a work problem. He 10:35:18 6 can't drive to and from the site." 10:35:22 7 She would be telling. She would be an advocate for 10:35:25 8 him. Because of the setting, she was supportive, she was 10:35:30 9 there, she really wanted to help, but her hands were tied. I 10:35:34 10 don't think she had the information and things that were 10:35:41 11 available to be the advocate. 10:35:45 12 THE COURT: We will take our morning recess at this 10:35:47 13 time. We will stand in recess for 15 minutes. 10:35:52 14 (Recess taken 10:35 a.m. until 10:50 a.m.) 10:55:13 15 Q. (BY MR. GORMAN) Dr. Merrell, at the break we were talking 10:55:16 16 about your reaction or your thoughts about Mrs. Schell's lack 10:55:27 17 of participation, at least in this process with Dr. Patel, is 10:55:32 18 where we left off. 10:55:33 19 A. Yes, and also her lack of really being able to be educated 10:55:38 20 through the other treatments. 10:55:46 21 Q. Is that fact an indication of -- we've heard some 10:55:53 22 testimony in this courtroom that Mr. Schell was possessive 10:55:56 23 and controlling in his life. The fact that Rita could not 10:56:02 24 participate in his treatment, is that an indication of his 10:56:09 25 possessiveness and controlling? 1869 10:56:12 1 A. Yes. I would like to talk a little bit about that in my 10:56:19 2 experience. You know, when I treated people with major 10:56:22 3 depressive disorders that have been off work, the spouse does 10:56:28 4 not make herself unavailable. They're at my office saying, 10:56:34 5 "What's going on?" and being somewhat demanding, which they 10:56:39 6 should be. 10:56:40 7 If I had somebody that was sick in my family and they 10:56:43 8 were off work for a month or more, I would want to talk with 10:56:46 9 the doctor. I would want to say, "Doc, what is going on 10:56:52 10 here?" And to go through this three and four and five times 10:56:57 11 and never be involved with the treating physicians directly 10:57:01 12 blows me away. Think about that. Blows me away. 10:57:09 13 Q. What do you believe Don Schell's diagnosis was on 10:57:14 14 February -- when he saw Dr. Patel in February of '98? 10:57:19 15 A. I believe his diagnosis was major depression, recurrent. 10:57:25 16 Q. And what does that mean and how did you come up with that? 10:57:31 17 A. Well, I don't think that there should be any dispute. I 10:57:36 18 don't think there should be any dispute about the diagnosis. 10:57:39 19 If there's any dispute about the diagnosis, you have to say 10:57:42 20 that three different psychiatrists over a several-year period 10:57:45 21 of time were making the wrong diagnosis. 10:57:48 22 And, you know, the Diagnostic and Statistical Manual 10:57:54 23 is our Bible for psychiatrists. This is how we come up with 10:57:59 24 our diagnoses. There are criteria listed in there that 10:58:05 25 mention and indicate the diagnosis of major depression. 1870 10:58:11 1 Those criteria are in there. I think it is personally a 10:58:18 2 waste of time to go over those criteria. 10:58:20 3 Three psychiatrists -- if you want to go over them, I 10:58:24 4 can do it. Three psychiatrists, I'm the fourth one. Three 10:58:30 5 physicians, the fourth one was treating for major depression 10:58:34 6 although he didn't make the diagnosis. 10:58:39 7 Q. I don't feel the need to go through the criterion. Let me 10:58:43 8 just ask you this question: The criterion that are in the 10:58:48 9 DSM-IV for major depression, recurrent, did Don Schell meet 10:58:53 10 all of those criteria? 10:58:55 11 A. Yes, I believe he met those criteria. And moreover, the 10:59:01 12 people on the scene when he was going through this, treating 10:59:04 13 physicians felt he met the criteria. There was no lawsuit. 10:59:13 14 They made their diagnosis based on what was presented to 10:59:16 15 them. 10:59:18 16 Q. Now, what about the severity of the depression? We put up 10:59:21 17 another slide, a severity of major depressive episode. And 10:59:26 18 can you go through this slide and relate this, if you could, 10:59:42 19 to Mr. Schell's depression? 10:59:43 20 A. This is out of this textbook and this is a way to rate 10:59:46 21 just how bad this depression is. It is a rating scale from 10:59:49 22 mild, moderate to severe. Farther out on the right side is 10:59:55 23 severe with psychotic features. It begins to develop 10:59:59 24 psychosis as a severe part of this depression. 11:00:01 25 But you can read this and say a mild depression is 1871 11:00:25 1 fairly well able to function without too much trouble. That 11:00:25 2 doesn't apply to somebody that can't go to work for a month 11:00:25 3 or more. Absolutely not. 11:00:28 4 Intermediate is in between mild and severe. Let's 11:00:30 5 look at severe. Meets most of the criteria symptoms, that's 11:00:33 6 the list of symptoms in DSM-IV; clear-cut, observable 11:00:39 7 disability, inability to work. There is no clearer 11:00:44 8 determination of inability -- of severity than inability to 11:00:49 9 work, no clearer indication. 11:00:57 10 Q. Did Mr. Schell meet the criteria for symptoms in the 11:01:00 11 clear-cut observable disability, i.e., inability to work, to 11:01:04 12 meet the diagnosis of severe major depressive episode? 11:01:14 13 A. In my diagnosis I came up with a diagnosis of between 11:01:17 14 moderate and severe. You can really argue that he falls 11:01:20 15 closer to severe than he does to moderate. I don't see many 11:01:24 16 patients -- as a matter of fact, I don't know if I've ever 11:01:27 17 seen a patient who has been unable to work this many episodes 11:01:32 18 and this number of episodes. 11:01:34 19 He could get on Social Security disability. If this 11:01:39 20 man was in a -- and I also do Social Security disability 11:01:44 21 exams and this is for disability -- now, the disability exams 11:01:50 22 require a disability to last for a year, and hopefully if he 11:01:56 23 has a positive response he may not be disabled for a year, 11:01:59 24 but at the time that he is undergoing his depressions he 11:02:03 25 would be able to get on Social Security disability. He can't 1872 11:02:06 1 work. 11:02:12 2 Q. I believe you've told the ladies and gentlemen of the jury 11:02:15 3 this morning -- did you see any signs of major depression 11:02:18 4 with psychotic features developing in Mr. Schell around the 11:02:21 5 time of these events? 11:02:29 6 A. There's the evidence I've mentioned with the cognitive 11:02:32 7 decline and the problems happening there. And I guess I 11:02:34 8 would like to mention one other issue right at the end that 11:02:37 9 has to do with Rita. 11:02:39 10 It is significant that on the night -- evening before 11:02:44 11 this terrible, terrible tragedy -- terrible, terrible 11:02:48 12 tragedies and the outcome that Rita comes home late and also 11:02:53 13 gets a phone call. So untypical for her to be there -- at 11:03:00 14 4:00 like clockwork generally -- to get home at 9:00 at 11:03:06 15 night. 11:03:13 16 His reaction when he is in terrific shape is one 11:03:16 17 thing. His reaction to that series of events when he's 11:03:23 18 impaired by major depression, he's down, losing his cognitive 11:03:25 19 ability, one can only speculate as to what was his reaction 11:03:29 20 and how was he able to cope with that. It has got to be a 11:03:34 21 factor. 11:03:35 22 Q. Now, let me ask you this: Mr. Vickery called some 11:03:41 23 physicians in this case that told the ladies and gentlemen of 11:03:48 24 the jury that Mr. Schell only suffered from mild depression. 11:03:56 25 I think one physician even said garden-type variety or very 1873 11:04:01 1 insignificant episodes of depression. 11:04:05 2 A. Did they say -- did they call this a major depression or 11:04:08 3 did they -- 11:04:09 4 Q. Mild depression. 11:04:10 5 A. They never said major depressive disorder? 11:04:13 6 Q. No. In fact, just garden variety type that we all go 11:04:18 7 through. 11:04:21 8 A. There -- look in here. There's no garden variety 11:04:26 9 depression in here. 11:04:26 10 Q. Let me stop you right there. Do you agree if that's the 11:04:29 11 testimony that they've heard? 11:04:34 12 A. If they heard that testimony, and if the psychiatrist did 11:04:37 13 not come up with a diagnosis of major depressive disorder, 11:04:42 14 I'm blown away. You have three different psychiatrists 11:04:45 15 coming up with this diagnosis, much before any of this 11:04:49 16 happened. And if that isn't acknowledged up front that this 11:04:53 17 man had a major depressive disorder, it really blows me away. 11:04:58 18 I can't conceive of that. 11:05:01 19 Q. Now, when were you provided, just generally, with the 11:05:12 20 records that you were able to look at to do the forensic 11:05:18 21 analysis or psychiatric autopsy or however you want to call 11:05:22 22 it? When were you provided with those records, if you 11:05:26 23 recall? 11:05:26 24 A. That was a series and it kind of came over a period of 11:05:29 25 time. The first records I really got were Dr. Patel's 1874 11:05:34 1 records and the expert designations. 11:05:37 2 Q. Now, let me stop you right there. The expert designations 11:05:39 3 of expert witnesses who testified for Mr. Vickery? 11:05:43 4 A. Yes. Healy, Maltsberger. 11:05:48 5 Q. At the time you saw -- when you saw Dr. Maltsberger's, 11:05:52 6 Dr. Healy's expert witness reports in this case had all of 11:06:01 7 the medical records, physician records, hospital records 11:06:06 8 about Mr. Schell's psychiatric history been accumulated by 11:06:12 9 that point? 11:06:13 10 MR. VICKERY: Objection. This is repetitive, Your 11:06:15 11 Honor. We heard this all on Friday afternoon. 11:06:20 12 THE COURT: Well, I think we did, but we'll let him 11:06:23 13 answer one more time. 11:06:25 14 A. I don't believe they had all of the records. 11:06:28 15 Q. (BY MR. GORMAN) In doing -- 11:06:29 16 A. I believe they had very little of the records because I 11:06:31 17 didn't have the records either. And they weren't developed. 11:06:34 18 They were developed by depositions and other strategies. 11:06:38 19 Q. That came after the expert reports? 11:06:40 20 A. Yes. 11:06:47 21 Q. In your work do you believe it is appropriate to form 11:06:51 22 opinions and conclusions about a case when the records and 11:06:57 23 the materials are not or had not by that time been fully 11:07:01 24 developed? 11:07:02 25 MR. VICKERY: Objection, there's no Rule 26 1875 11:07:06 1 designation that this gentleman was going to come in here 11:07:09 2 giving opinions denigrating the opinions of other doctors. 11:07:13 3 His Rule 26 report says he's going to come and talk about 11:07:17 4 depression and not cast aspersions at other experts. 11:07:20 5 MR. GORMAN: I'm not asking him to cast aspersions at 11:07:23 6 other experts. I'm asking if it is appropriate to reach 11:07:27 7 opinions about a psychiatric autopsy without having the 11:07:30 8 materials to reach that opinion. 11:07:31 9 THE COURT: Let's ask the witness how he would do it. 11:07:34 10 Q. (BY MR. GORMAN) How would you do it? 11:07:35 11 A. How would I do it? I've been in this situation many times 11:07:38 12 in legal cases involving criminal matters. I would never 11:07:41 13 think of reaching an opinion regarding the emotional status 11:07:49 14 of an individual, whether civil or criminal, if I did not 11:07:56 15 have all the psychiatric records. I would never reach an 11:07:59 16 opinion. 11:08:00 17 Q. Okay. Let me talk to you about Paxil. 11:08:04 18 A. Okay. 11:08:04 19 Q. Have you had occasions to use Paxil over the years of your 11:08:07 20 experience? 11:08:08 21 A. Yes. 11:08:08 22 Q. How often do you use Paxil? 11:08:13 23 A. Okay. I've used Paxil beginning when it first came out, 11:08:19 24 beginning back in 1992, and I've used it over the years quite 11:08:27 25 a bit. Paxil has been a good medication in my hands and I 1876 11:08:34 1 use it for a variety of problems from agitated depressions, 11:08:46 2 to phobias, where people are really falling apart; 11:08:49 3 generalized anxiety disorders; PTSD, which is posttraumatic 11:08:58 4 disorder; obsessive-compulsive disorder. I use it for 11:09:03 5 bipolar disorder, an illness we haven't talked about, but a 11:09:09 6 major depressive disorder with cyclical features. 11:09:12 7 I have groups of patients where you have to use mood 11:09:16 8 stabilizers. But I've used it in settings across the board. 11:09:22 9 This is a variety of patients. This is, you know -- these 11:09:25 10 are mental health center patients, these are VA patients, 11:09:31 11 these are prisoners that I've seen at the prison, they've 11:09:36 12 been patients at the Air Force base, every setting that I can 11:09:43 13 think of where I've used Paxil. 11:09:46 14 Just last week this case is kind of fresh in my 11:09:50 15 memory and I was seeing my normal patient load and it kind of 11:09:53 16 occurred to me, you know, I had seen four or five patients 11:09:56 17 that day on Paxil and I thought, geez, I ought to start 11:10:00 18 counting how many people I'm seeing totally because it is so 11:10:04 19 common that, you know, there's no need to count. It is just 11:10:09 20 a day-in-and-day-out standard practice. 11:10:13 21 Q. Would it be fair to say you've seen hundreds of patients? 11:10:16 22 A. Hundreds of patients. 11:10:17 23 Q. During your use of Paxil have you ever encountered any 11:10:22 24 situation where there has been any violence by patients on 11:10:26 25 Paxil? 1877 11:10:27 1 A. Never. I've never encountered a situation of a dramatic 11:10:31 2 crisis with Paxil itself. Never, never. 11:10:36 3 Q. Have you -- 11:10:36 4 A. I'm trying to think back, even the most risky situation I 11:10:41 5 can think of, which is a bipolar depression that -- this is a 11:10:46 6 manic depressive illness where people are very unstable and 11:10:52 7 they need to be treated with particular caution. And 11:10:55 8 there's an area in which any antidepressant, any 11:11:00 9 antidepressant can trigger off a manic episode, can make this 11:11:06 10 cyclical pattern more unstable. 11:11:10 11 Even in that area -- which all antidepressants can do 11:11:13 12 this, any one -- I can't remember specifically Paxil ever 11:11:18 13 triggering any of these. I've had triggers. I've had 11:11:24 14 triggers -- the other day actually from Celexa, which the 11:11:29 15 lady had been on Prozac, high doses, 60 milligrams for two or 11:11:33 16 three years, had done well, was sliding, and I finally had to 11:11:37 17 change the medication. And, again, like I said, Prozac takes 11:11:41 18 a long time to get out. I added a new medication. She got 11:11:45 19 somewhat manic. We discovered that she was undiagnosed 11:11:51 20 bipolar. We put her on lithium right away, did that on the 11:11:56 21 phone and it was kind of a blessing in disguise because she 11:11:59 22 ended up being very stable. She's done well. This is only 11:12:03 23 three or four weeks ago. 11:12:04 24 Q. Have you ever in your patients in which you have used 11:12:10 25 Paxil -- have you ever been made aware of any successful 1878 11:12:14 1 suicides or suicide attempts by any of your patients on 11:12:18 2 Paxil? 11:12:26 3 A. No. I mean, I cannot remember specifically any suicide 11:12:31 4 attempts at all. If you go back to the days where we had to 11:12:34 5 practice with the tricyclics, life was not fun back then. 11:12:38 6 When would I write a prescription for medication in the '80s, 11:12:42 7 I was giving people a lethal dose of antidepressants if they 11:12:46 8 decided to take them all. Oftentimes I would have to write 11:12:50 9 two or three days of an antidepressant with refills because 11:12:54 10 those drugs were so dangerous. 11:12:57 11 Even if somebody tries to commit suicide, it is 11:13:00 12 impossible, really, to do with Paxil or any of the SSRIs. So 11:13:05 13 it gives you a feeling of safety. 11:13:08 14 Now, I can't remember -- my success with patients is 11:13:12 15 pretty good. I'm committed to this field. I like 11:13:15 16 psychiatry. I'm lucky I'm in it. I do a good job with it. 11:13:20 17 My patients get better. 11:13:22 18 Q. You mentioned you treat patients with Paxil for 11:13:25 19 posttraumatic stress disorder, generalized anxiety disorder, 11:13:31 20 I think you mentioned, social anxiety disorder, major 11:13:34 21 depression with significant anxiety, true? 11:13:36 22 A. True. 11:13:37 23 Q. In your practice has Paxil been helpful in reducing 11:13:44 24 anxiety? 11:13:45 25 A. Yes. I mean, we're putting patients -- putting Paxil 1879 11:13:50 1 patients -- we're putting patients who have tremendous 11:13:55 2 anxiety on Paxil, phobias and fears, people that panic. You 11:14:02 3 can't think of much more anxiety if you have a panic 11:14:05 4 reaction, and that's pretty bad. And I have people who will 11:14:10 5 have panic anxieties in various settings. There's no more 11:14:14 6 challenging population. If they're likely to get anxious, 11:14:19 7 give it to a panic patient. 11:14:21 8 Q. Let me -- you mentioned your -- the psychiatric care that 11:14:25 9 you've provided to inmates at our Wyoming women's prison and 11:14:31 10 inmates at our Wyoming men's prison. And I assume the people 11:14:38 11 that are in those facilities are there for a reason, true? 11:14:41 12 A. True. 11:14:42 13 Q. Do you use Paxil with regard to the inmates at both the 11:14:48 14 women's prison in Lusk and the men's prison in Rawlins? 11:14:57 15 A. I don't go there anymore. I changed visits over there, I 11:15:02 16 guess it has been a year or so ago. 11:15:06 17 But in my experience of doing that for a period of 11:15:08 18 four years at one place and nine years at the other place, it 11:15:12 19 is kind of interesting. That is a place where medical costs 11:15:17 20 are very critical. Most of the people in that institution, 11:15:20 21 both institutions, were given the older generation medicines 11:15:24 22 and this is because of cost. The cost of a tricyclic 11:15:29 23 compared to Paxil, Prozac, any of the new ones is really 11:15:33 24 different. 11:15:35 25 So to keep costs down there was an interesting time 1880 11:15:41 1 where the only SSRI they had available was Zoloft and there 11:15:45 2 were a number of patients -- and we're talking I see a lot of 11:15:49 3 depressions there, a number of patients on Zoloft. 11:16:00 4 When that particular provider -- this was a 11:16:03 5 privatized system where they hired the people in private 11:16:06 6 channels to provide care for those inmates. And it changed 11:16:10 7 from one -- from Wexford to Correctional Medical. During 11:16:16 8 that change the formulary was different and suddenly 11:16:20 9 overnight everyone that was on Zoloft was suddenly on Paxil. 11:16:28 10 We're not talking about a taper. We're talking about a 11:16:31 11 change overnight. 11:16:38 12 Q. With that change did you see an increase in violence with 11:16:46 13 the inmates at the -- in the penal institution? 11:16:55 14 A. No, there did not seem to be any significant major 11:16:58 15 differences after the change. I might -- also it is 11:17:01 16 important, though, you cannot get the tranquilizers over in 11:17:04 17 the prison. 11:17:05 18 Q. That's what I was going to ask you. Were these drugs in 11:17:08 19 the prison, the SSRIs in the prison, given with what 11:17:12 20 Mr. Vickery has called a tranquilizer or medication to take 11:17:16 21 the edge off? 11:18:36 22 A. No. It is very difficult to get tranquilizers and you 11:18:36 23 have patients that had issues with addictions, so maybe one 11:18:36 24 or two of those patients were on some tranquilizer, but boy, 11:18:36 25 it was very few, if at all. 1881 11:18:36 1 Q. We've also had some discussion here -- very briefly we'll 11:18:36 2 cover this -- in use about -- about Paxil about titrating the 11:18:36 3 dose or cutting the pill in half. 11:18:36 4 When you use Paxil do you titrate the dose? 11:18:36 5 A. No. I think the standard procedure is to start with 20 11:18:36 6 milligrams of Paxil, and I'm pretty aggressive. People with 11:18:36 7 the depressions I see, I want to get them better quickly, so 11:18:36 8 I quickly go to 30. If they will tolerate this within a 11:18:36 9 close time, I want to get to 30. I want to get this person 11:18:36 10 up to this point as soon as possible. I don't want to wait 11:18:36 11 around too long. 11:18:36 12 Q. Now, Mr. Schell got a 20-milligram dose? 11:18:36 13 A. That's true. 11:18:36 14 Q. Is that the standard dose? 11:18:36 15 A. That's the standard. 11:18:36 16 Q. We've also heard some testimony and we touched on it a 11:18:36 17 little bit here with the inmates in our prison system about 11:18:36 18 using a concomitant medication to the Paxil to, quote, take 11:18:42 19 the edge off, a benzodiazepine, for example. Do you do that? 11:18:45 20 A. No. You know, if I'm starting a medication and I'm 11:18:57 21 beginning somebody on Paxil or any SSRI, if I add another 11:19:01 22 medicine to that, it really clouds a lot in terms of what is 11:19:05 23 happening, not only if a person doesn't react well to one of 11:19:10 24 those medications, I don't know what it is. I have two 11:19:13 25 medicines. 1882 11:19:14 1 The other issue that is important is that adding a 11:19:17 2 benzodiazepine tranquilizer, even if somebody is anxious, is 11:19:24 3 potentially dangerous for depression. There are people out 11:19:27 4 there, if you give them a tranquilizer, it can intensify 11:19:32 5 their depression. 11:19:33 6 Now, this is particularly true of people who are not 11:19:36 7 anxious, depressed people, people who are more on the 11:19:40 8 retarded side of depression or more low energy. 11:19:45 9 Can you imagine a worse thing with a person like 11:19:48 10 that, they're already having trouble being energetic, getting 11:19:53 11 out on their own, if I make that worse? A benzodiazepine has 11:19:56 12 that possibility to make that worse. 11:19:59 13 Q. Okay. Based on your experience and your years of use with 11:20:03 14 Paxil and your analysis of the facts of this case, do you 11:20:07 15 believe that Paxil caused Mr. Schell to kill his family and 11:20:15 16 then to commit suicide? 11:20:17 17 MR. VICKERY: Objection. Nothing designated in the 11:20:20 18 Rule 26 report about that. 11:20:22 19 MR. GORMAN: Your Honor, we had this objection last 11:20:24 20 week and you overruled the objection and said I needed to lay 11:20:27 21 the foundation. And I think I've laid the foundation. 11:20:31 22 THE COURT: Is it an opinion set forth in his 11:20:33 23 designation? If it is, point it out to me. If it is not, 11:20:42 24 I'll sustain the objection. 11:20:42 25 MR. GORMAN: His opinion is that this man's 1883 11:20:45 1 depression caused this and that's what his opinion is. 11:20:48 2 THE COURT: And where is it in here? Mr. Vickery is 11:20:53 3 challenging that, so I need to see it. 11:20:56 4 MR. GORMAN: The conclusion and ultimate opinion are 11:20:57 5 on the last page of his designation, Judge. I don't have the 11:21:00 6 page number with me. 11:21:09 7 MR. VICKERY: Page 14. 11:21:09 8 THE COURT: He can sure testify to that if that 11:21:12 9 question is asked. 11:21:18 10 MR. GORMAN: I don't understand the Court's ruling, 11:21:19 11 Your Honor. And we will get to that. I'm asking this 11:21:22 12 question -- 11:21:24 13 THE COURT: The question you asked is different than 11:21:26 14 the opinion set forth here. He's welcome to give whatever 11:21:30 15 this opinion is that he has in this designation, but the 11:21:33 16 objection was made and that was a different question and a 11:21:36 17 little different subject matter. 11:21:38 18 MR. GORMAN: I understand and I will get to that, 11:21:40 19 then. 11:21:40 20 Q. (BY MR. GORMAN) Tell the ladies and gentlemen of the 11:21:42 21 jury, then -- before we get to that, we've had a lot of talk 11:21:45 22 in this case about the scientific stuff. I want you to tell 11:21:48 23 the ladies and gentlemen of the jury the human experience of 11:21:53 24 depression. 11:22:03 25 A. This is an area that people need to experience. To sit 1884 11:22:06 1 with somebody that's experiencing the agony and the problems 11:22:08 2 that a person has with major depression is one of the -- it 11:22:12 3 is one of the most painful, wrenching things you can do. It 11:22:18 4 tears at you. There's a feeling of things beyond their 11:22:22 5 control. There's a feeling of -- it can get to hopelessness, 11:22:26 6 and it is just -- it is an agony. And if you get any idea of 11:22:30 7 how the person is suffering with this illness, there is 11:22:36 8 suffering that is beyond belief. 11:22:38 9 One author had this and described it -- it has always 11:22:42 10 run in my memory -- despair beyond despair. And when you 11:22:47 11 come out of this, the same people can describe emerging into 11:22:50 12 the light. It is as if the lights are turned on and off, 11:22:53 13 that this type of depression -- this is not a mild thing. 11:22:58 14 This is a severe problem, something that cripples people. It 11:23:07 15 is -- it tears at us. It is a deep -- we're deeply affected 11:23:11 16 by this. I'm deeply affected whenever I spend time with 11:23:14 17 someone that's in this process. It wears you down. It has 11:23:17 18 to. It is very deep stuff. 11:23:22 19 Q. I want to move to the 13th of February. Do you know what 11:23:24 20 caused these tragic deaths, Dr. Merrell? 11:23:32 21 A. I don't think anyone knows exactly what happened, no. 11:23:40 22 Q. Were there some things -- do you know if there were some 11:23:44 23 things that were escalating that give us some clues as to 11:23:48 24 what happened? 11:23:57 25 A. There's escalation in terms of his depression, his 1885 11:24:01 1 cognitive loss, his ability to handle changes around him. 11:24:05 2 And I believe there are probably three possibilities for what 11:24:07 3 happened as things escalated. 11:24:10 4 The number one possibility is progression of this 11:24:14 5 depression into psychotic features where he's unable to 11:24:18 6 really handle things that are happening. I think Rita came 11:24:25 7 home late that night. And as I mentioned before, it is one 11:24:29 8 thing to handle this when he's in good shape. It is another 11:24:32 9 thing to handle this when this is one more thing, one more 11:24:36 10 problem and what that represents to him. So I can see his 11:24:40 11 really losing touch with reality. 11:24:43 12 The second possibility that I think needs to be 11:24:47 13 considered is an accidental one, the possibility that as he 11:24:54 14 develops this depression -- and, you know, people get 11:24:59 15 suicidal when they haven't talked about it. I had a patient 11:25:04 16 just a month or two ago which had a suicide attempt. I was 11:25:08 17 in treatment with this man and had a good relationship and he 11:25:11 18 wouldn't tell me about the suicide attempt until one or two 11:25:14 19 months later. 11:25:15 20 People can get into this type of state with no 11:25:20 21 mention of it. And we know that this type of depression 11:25:24 22 carries high rate, up to 15 percent suicide. And he's in a 11:25:29 23 risk that is 55 and older which is four times the death rate 11:25:35 24 than the average. So high risk. And plus the risk of