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 -- can 11:25:41 25 you imagine a more roller coaster ride than to get better and 1886 11:25:45 1 to come off of that repeatedly? 11:25:48 2 In any event, I can imagine a situation where he's 11:25:51 3 becoming suicidal and people are trying to help him and being 11:25:54 4 unable to do so, somebody gets hurt, causing an escalation 11:25:58 5 and a crescendo leading to a terrible outcome. 11:26:06 6 And then I can foresee perhaps a third alternative 11:26:09 7 where something unexpected happens that none of us know that 11:26:12 8 adds to the scenario of events, but whatever is added, the 11:26:18 9 extra, I think, needs to be evaluated on the basis of this is 11:26:24 10 a man who wasn't able to really cope with the kinds of 11:26:25 11 stressors. He was in a weakened state with this kind of 11:26:31 12 depression. Whatever came along, he had less ability to deal 11:26:36 13 with it. His resiliency was gone, his ability to bounce 11:26:40 14 back. 11:26:41 15 Q. Dr. Merrell, do you have an opinion within a reasonable 11:26:44 16 degree of medical certainty about what caused the 11:26:50 17 murder/suicides involving Don Schell, Rita Schell, Deb Tobin 11:26:55 18 and Alyssa Tobin the night of February 13th of 1998 -- 11:27:00 19 February 12th or February 13th? Do you have an opinion, 11:27:03 20 first of all? 11:27:04 21 A. Yes. 11:27:04 22 Q. What is your opinion, sir? 11:27:06 23 A. In my opinion it is clear to me, and I have a reasonable 11:27:17 24 degree of medical certainty, I believe is the way to say 11:27:19 25 this, that the events happening in February 1998 were really 1887 11:27:26 1 the direct result of a major depression, recurrent that was 11:27:33 2 essentially untreated and progressive. 11:27:38 3 Q. In reaching that opinion and conclusion did you also 11:27:42 4 consider the effects of Paxil, if any? 11:27:47 5 A. Yes. 11:27:50 6 Q. What did you conclude? 11:27:53 7 A. The effects of Paxil -- Paxil had nothing to do with this. 11:27:58 8 Paxil is a red herring in this whole thing. There's no other 11:28:03 9 way I can say that. It had absolutely no effect on these 11:28:07 10 events. 11:28:08 11 Q. Is, in your opinion, Paxil a safe and effective drug for 11:28:12 12 the treatment of depression? 11:28:14 13 A. It is a safe and effective drug. In my hands it is 11:28:18 14 helping a tremendous number of patients. 11:28:19 15 MR. GORMAN: Could I have a minute, Your Honor? 11:28:21 16 THE COURT: Yes, you may. 11:28:41 17 MR. GORMAN: Thank you. I have nothing further, 11:28:43 18 Dr. Merrell. 11:28:48 19 MR. VICKERY: May I proceed, Your Honor? 11:28:49 20 THE COURT: Yes, you may, Mr. Vickery. 21 CROSS-`EXAMINATION 11:28:51 22 Q. (BY MR. VICKERY) Is this your report we're looking at on 11:29:07 23 the board? 11:29:08 24 A. Yes, sir. 11:29:11 25 Q. Do you have that laser pointer up there? 1888 11:29:15 1 A. Yes, right here. 11:29:16 2 Q. Thank you. Your signature right here at the bottom? 11:29:26 3 A. Yes. 11:29:26 4 Q. Read with me: "There have been some situations where 11:29:30 5 patients have had an increase in anxiety symptoms with the 11:29:33 6 use of Paxil, but this has been an infrequent event. The 11:29:37 7 intensity of such anxiety in my experience has never been so 11:29:40 8 severe as to lead to severe or suicidal or assaultive 11:29:48 9 behavior. If anxiety occurs, I have sometimes switched from 11:29:51 10 the Paxil to another medication or added a benzodiazepine 11:29:55 11 medication to the Paxil to also help control the anxiety that 11:29:58 12 accompanies those conditions." 11:30:00 13 Didn't you just say a few minutes ago you don't use 11:30:03 14 benzodiazepines with Paxil? 11:30:04 15 A. I believe I said I don't regularly use any of the 11:30:07 16 tranquilizers on a regular basis. There may be situations in 11:30:12 17 which anxiety is increasing, and if it is, it is generally 11:30:19 18 mild. If I use it, a benzodiazepine, I may do it for a short 11:30:24 19 time. I may wait for the anxiety to dissipate. Sometimes 11:30:28 20 these will go away on their own. 11:30:32 21 Q. Where did you learn to do that? 11:30:34 22 A. Well, I think in residency and 23 years of practice. 11:30:37 23 Q. You surely didn't learn from the Paxil label to add a 11:30:40 24 benzodiazepine or any other kind of sedative to control 11:30:44 25 anxiety, did you? 1889 11:30:45 1 A. From the label? 11:30:46 2 Q. Yes, sir, the package insert from the company. 11:30:50 3 A. Well, there's nothing in there indicating the need for a 11:30:53 4 tranquilizer. 11:30:57 5 Q. Right. 11:30:58 6 A. Right. 11:30:58 7 Q. Do you read German, Dr. Merrell? 11:31:01 8 A. German? No, sir, I don't. 11:31:02 9 Q. Have you ever read the English translation of the German 11:31:05 10 label for Paxil? 11:31:07 11 A. No, I never have. 11:31:15 12 Q. I didn't know that that was that funny. Did you know 11:31:18 13 that -- 11:31:20 14 A. I know that it is. I'm sorry that I laughed at that, but 11:31:24 15 I don't know any psychiatrist that read the German label on 11:31:29 16 anything, sir. 11:31:30 17 Q. Okay. Well, I mean, you've been so critical of 11:31:33 18 Dr. Maltsberger and Dr. Healy for not reviewing everything 11:31:38 19 you have reviewed, I thought surely you must have at least 11:31:41 20 reviewed all of the documents in evidence in this case. Is 11:31:43 21 that not true? 11:31:44 22 A. I have reviewed their expert designations, yes. 11:31:48 23 Q. I'm talking about the evidence in this case. The 11:31:51 24 documents that the jury will consider, have you reviewed all 11:31:54 25 of those? 1890 11:31:56 1 A. Well, I don't know if I've reviewed everything the jury 11:31:59 2 has considered. I have actually -- I was here or was shown 11:32:03 3 something about the German -- if you bring the German label 11:32:07 4 out, I would like to comment on that. 11:32:09 5 Q. Well -- 11:32:11 6 A. Show it to me. 11:32:12 7 Q. I'm sure if Mr. Gorman wants you to comment on it he'll 11:32:15 8 ask you on redirect. 11:32:16 9 A. Well, I would be glad to look at it and comment for you. 11:32:25 10 Q. Dr. Merrell, my copy of your report, the cover letter 11:32:25 11 references fees, but I guess my copy didn't come with any 11:32:29 12 kind of fee schedule. Do you have a standard fee schedule 11:32:32 13 for forensic matters such as this? 11:32:35 14 A. I generally do. 11:32:36 15 Q. What is it? 11:32:37 16 A. It is in the ballpark of what I've seen your experts 11:32:41 17 charging. 11:32:42 18 Q. Well, what is it? 11:32:43 19 A. It is 350 an hour. 11:32:45 20 Q. $350 an hour? And approximately how many hours have you 11:32:50 21 spent up to this point where we're at right now? 11:32:55 22 A. A lot. 11:32:56 23 Q. Over a hundred? 11:32:57 24 A. No, I think more hours than I would like to have. I think 11:33:04 25 I've got a fairly big practice and this has taken a big part 1891 11:33:08 1 out of my practice. So, no, I'm not happy with -- I'm not 11:33:12 2 happy with building up more hours. I want to do a good job 11:33:17 3 with this and have it complete. 11:33:19 4 Q. How much time, approximately, have you spent? 11:33:21 5 A. It may end up to be -- let's see. It may be around 80 11:33:28 6 hours by the time we're done. 11:33:31 7 Q. 80 hours? Okay. So 80 hours would be, what, about 11:33:34 8 $28,000? 11:33:36 9 A. Something like that. 11:33:36 10 Q. Now, you did list all of the times you've testified in the 11:33:41 11 last four years. 11:33:44 12 A. True. 11:33:45 13 Q. And I counted 41 times. Does that comport with your -- 11:33:50 14 A. If you counted that, that's probably accurate. 11:33:52 15 Q. In four years, 48 months, 41 times, it is almost once a 11:33:57 16 month you would be doing this type of work, right? 11:34:00 17 A. I do a lot of work for the public defender and in those 11:34:03 18 cases I do not charge this rate. They have enough trouble 11:34:06 19 getting people to help out and I do a reduced rate for those 11:34:10 20 folks. 11:34:11 21 Q. That's admirable. Did you do a reduced rate the last time 11:34:14 22 you testified for Mr. Gorman's law firm? 11:34:18 23 A. I don't believe I've testified -- I can't remember the 11:34:23 24 last time I testified for their firm. 11:34:25 25 Q. Do you have your report there? 1892 11:34:27 1 A. My report? 11:34:27 2 Q. Yes, sir. 11:34:28 3 A. This report? 11:34:30 4 Q. Yes, sir. 11:34:31 5 A. Yes. 11:34:32 6 Q. It is attached to your report, isn't it, the list of cases 11:34:35 7 you've testified in? 11:34:36 8 A. I believe it is on there. Let's look at it. 11:34:38 9 Q. Well, look at the second one on the list. 11:34:54 10 A. I don't think I have it. Can I look at your copy? 11:34:56 11 Q. Sure. I will put it right here on the screen so we can 11:34:59 12 all see it together. 11:35:15 13 Looks like 1996 for Hirst and Applegate, you 11:35:18 14 testified for the defense. That's Mr. Gorman's firm, isn't 11:35:21 15 it? 11:35:27 16 A. Yes. 11:35:28 17 Q. Okay. Now, one of the things that you spent time doing is 11:35:31 18 reviewing a bunch of things -- 11:35:34 19 A. That was, by the way, 1996. 11:35:37 20 Q. That's what I said. 11:35:39 21 One of the things that you spent a lot of time doing 11:35:42 22 was reviewing things that form the basis of your opinions, 11:35:48 23 correct? 11:35:51 24 A. Oh, yes, they weren't -- they didn't seem to be 11:35:55 25 significant for an opinion. 1893 11:35:56 1 Q. I mean, there are 18 different items on pages 4 and 5 of 11:36:02 2 your report that you reviewed at $350 an hour for SmithKline 11:36:06 3 Beecham that really weren't relevant to your opinion at all, 11:36:09 4 correct? 11:36:11 5 A. Well, I didn't know that until I got into it. 11:36:14 6 Q. So you thought, for example, that the Gillette news 11:36:17 7 reports might be relevant? 11:36:24 8 A. Well, I would rather review something and decide whether 11:36:30 9 or not it is relevant than not look at some material. 11:36:32 10 Q. How about Deb Tobin's life insurance policy? Did you 11:36:35 11 think that might be relevant to what happened on this 11:36:38 12 evening? 11:36:38 13 A. Some of these records I breezed through. I mean, there 11:36:44 14 are records that -- I think this is a record for records. I 11:36:48 15 have a box of records that is about this long that I did not 11:36:51 16 go through every page to kind of gouge fees or anything like 11:36:55 17 that. You know, if they were life insurance records or 11:36:59 18 something that was fairly easy to go through, I would whip 11:37:02 19 through that. I'm not going to waste time looking at bank 11:37:06 20 statements. Another one was bank statements. I went through 11:37:09 21 those rapidly. I didn't think there was anything there. 11:37:12 22 Q. Telephone records, you went through those quickly? 11:37:15 23 A. What telephone -- yeah, yeah. 11:37:18 24 Q. The U S WEST telephone records? 11:37:21 25 A. Yes. 1894 11:37:22 1 Q. You and I know we're both going to get in trouble with 11:37:24 2 this lady right here if we talk at the same time. Thank you. 11:37:28 3 You've done this 41 times in the last four years. I'll wait 11:37:31 4 for you if you wait for me, okay? 11:37:33 5 A. Yes. 11:37:35 6 Q. Deb Tobin's medical records, did you ask to see those or 11:37:39 7 did they just provide -- the lawyers just provide them to 11:37:43 8 you? 11:37:44 9 A. No, I think they were provided. I did not ask for those. 11:37:48 10 Q. Dr. Merrell, I note that, you know, you have given an 11:37:53 11 opinion today that you don't think Paxil had anything to do 11:37:56 12 with this, but I don't see anything in your report about 11:38:03 13 reviewing any scientific literature whatsoever regarding 11:38:07 14 Paxil or any of the SSRI drugs. 11:38:10 15 A. That's correct. 11:38:11 16 Q. So you did not review any of it? 11:38:14 17 A. Well, in the context of my practice I go to meetings 11:38:17 18 regularly, I read papers, I do a number of things that help 11:38:21 19 me in my clinical experience, but I did not go through a 11:38:24 20 literature search for this case, no. 11:38:27 21 Q. Let me -- are you aware, for example, that there was an 11:38:32 22 article, one article, written six months before this by 11:38:37 23 Dr. Lane at Phizer that sort of summarized the state of 11:38:41 24 scientific knowledge as of that point in time, reviewed 50 11:38:45 25 different articles, so, in other words, you could just go to 1895 11:38:48 1 one place, read one article and you would have a fairly good 11:38:51 2 picture of the state of scientific literature? 11:38:54 3 A. I have not reviewed that in depth, no. 11:38:57 4 Q. In depth or at all? 11:38:59 5 A. I have not reviewed that at all. 11:39:01 6 Q. All right. Now, your report indicates, item 15, that you 11:39:07 7 did review an index of SB Paxil documents. Do you have that 11:39:14 8 with you up there on the stand? 11:39:15 9 A. No. 11:39:16 10 Q. Do you have it with you in the courtroom? 11:39:18 11 A. No. 11:39:19 12 Q. What is it? 11:39:24 13 A. You know, I honestly can't remember and I think I put that 11:39:27 14 in information I didn't even use to reach an opinion. 11:39:30 15 Q. Yes, you did. It is item 15. 11:39:34 16 A. 15? 11:39:34 17 Q. You reviewed SB Paxil documents. 11:39:57 18 A. I cannot recall -- wait a minute. Are you sure 15? 11:40:00 19 Q. Right there on page 4, item 15. 11:40:03 20 MR. GORMAN: That's materials not considered in 11:40:04 21 review. 11:40:05 22 Q. (BY MR. VICKERY) Information you reviewed but that you 11:40:07 23 did not rely on? 11:40:08 24 A. Right. 11:40:09 25 Q. Item 15, does it say index of SB Paxil documents? 1896 11:40:14 1 A. Yes, index of Paxil documents. And I do not recall even 11:40:18 2 what that was. 11:40:19 3 Q. Well, the reason I ask that is you have said that the most 11:40:23 4 likely thing that happened on the evening of February 13th or 11:40:28 5 the wee hours of the morning on February 13th was that Don 11:40:34 6 Schell's depression progressed into psychosis, right? 11:40:38 7 A. That's true. 11:40:40 8 Q. Now, do you know whether the internal Paxil documents that 11:40:43 9 were filed way back in 1989 document instances in which 11:40:50 10 SmithKline Beecham themselves said this drug has caused 11:40:55 11 someone to become psychotic or have hallucinations or 11:40:58 12 delusions, and we think the drug did it? Do you know whether 11:41:03 13 or not there are any documents that indicate that? 11:41:08 14 MR. GORMAN: Object to the question. I think it 11:41:10 15 assumes facts that are not in evidence, Your Honor. 11:41:14 16 MR. VICKERY: I will show them to him in just a 11:41:15 17 minute, Your Honor. 11:41:16 18 THE COURT: You can ask the question. 11:41:18 19 Q. (BY MR. VICKERY) If it is true that there are documents 11:41:20 20 where SmithKline Beecham has said there's hallucinations, 11:41:25 21 delusions, psychosis occurring to people on the drug and it 11:41:29 22 is either definitely caused or probably caused or at least 11:41:32 23 possibly caused by Paxil -- if that's true, would you be 11:41:36 24 willing today if I show it to you to change your opinion 11:41:39 25 about whether Paxil also contributed to these deaths? 1897 11:41:46 1 A. I'm not willing to change my opinion. You can show me all 11:41:49 2 the evidence you want. I have had experience with this 11:41:52 3 medication for a long time and if something comes out that 11:41:56 4 eventually ends up in scientific circles, that is discussed, 11:42:03 5 let's look at it. But producing one bit of information, a 11:42:08 6 case report or something else is not going to change my 11:42:12 7 opinion. Paxil is a safe medication. 11:42:16 8 Q. Let me be sure you and I are communicating. I'm not 11:42:19 9 talking about some case report where some Dr. Joe Blow says, 11:42:23 10 "I think Paxil caused this." I'm talking about something 11:42:27 11 where SmithKline Beecham says, "Our drug has precipitated 11:42:30 12 psychosis, hallucinations or delusions." 11:42:34 13 Do I understand your testimony to be even if I showed 11:42:37 14 you such a thing you would not consider changing your 11:42:40 15 opinion? 11:42:42 16 A. You know, as a physician I'm not going to -- I'm going to 11:42:46 17 answer that if something were to come out that something is 11:42:50 18 risky, as a practicing doctor, I'm not going to -- I'm going 11:42:54 19 to listen to that. I'm going to listen to something that's 11:42:57 20 risky. I can't ignore anything that would hurt my patients. 11:43:05 21 Q. Well, I'm not talking about as a practicing doctor. I'm 11:43:07 22 talking about as a testifying expert in this case and so my 11:43:11 23 question is -- and if you want to stick with the same answer, 11:43:15 24 that's fine with me. Just tell me truthfully, if I show you 11:43:18 25 where they have said Paxil causes psychosis or hallucinations 1898 11:43:22 1 or delusions -- 11:43:24 2 MR. GORMAN: Objection, Your Honor. It is 11:43:26 3 argumentative and it has been asked and answered. 11:43:29 4 THE COURT: It has. Let's show it to him. If we're 11:43:39 5 going to go around and around like this, let's get it out and 11:43:39 6 get the answer. We're using up a lot of time. 11:43:54 7 Q. (BY MR. VICKERY) I'll show you a couple, Doctor, and 11:43:57 8 let's see if these change your view. 11:44:01 9 THE COURT: These are what? 11:44:02 10 MR. VICKERY: These are from Exhibit 12, Your Honor. 11:44:04 11 MR. GORMAN: I think we need to establish some 11:44:06 12 foundation, first, Judge, that Dr. Merrell has ever seen 11:44:10 13 these documents. So I -- 11:44:12 14 MR. VICKERY: I'm sure he probably hasn't. 11:44:15 15 Q. (BY MR. VICKERY) You've never seen these documents, have 11:44:16 16 you? 11:44:16 17 A. No, sir. 11:44:18 18 Q. I didn't think so. 11:44:19 19 MR. GORMAN: I would object on foundation, Judge, 11:44:22 20 before showing the document. 11:44:24 21 THE COURT: Overruled. 11:44:25 22 Q. (BY MR. VICKERY) Okay. You see here there was a 11:44:26 23 46-year-old male who attempted suicide on day 18 of Paxil and 11:44:31 24 in drug relatedness they gave it a 5. 11:44:34 25 Now, I have to zoom down here at the bottom here to 1899 11:44:37 1 show you what a 5 means. 5 means the relationship is 11:44:47 2 definitely related to the study drug. Does that change your 11:44:51 3 mind? 11:44:51 4 A. No, I would like to see more detail on this case. If this 11:44:54 5 is to be listed, I would like to see the kind of detailed 11:44:57 6 analysis, I guess, that I did here. I would like to see more 11:45:01 7 detail than one line indicating that one -- indicates that 11:45:04 8 that is definitely related. 11:45:07 9 That to me is no evidence. That is a report. I 11:45:11 10 mean, I don't know what to make of this data. 11:45:14 11 Q. Do you understand this is the data filed by SmithKline 11:45:17 12 Beecham with the FDA? 11:45:19 13 A. Sure. So it was filed with the FDA. There's not much 11:45:24 14 detail there. Attempted suicides happen day in and day out. 11:45:28 15 I mean, I deal with people that have suicide ideas on a daily 11:45:33 16 basis. 11:45:34 17 Q. Okay. Let me try one more on you here. I don't have the 11:45:55 18 hallucination one here. Let me move on to something else 11:45:59 19 because I don't have that one handy. 11:46:08 20 Dr. Merrell, having testified 41 times in the last -- 11:46:14 21 I'm sorry. 11:46:22 22 MR. VICKERY: Yes, thank you. Let me highlight it. 11:46:24 23 Someone has come to my aid. 11:46:27 24 MR. FITZGERALD: It is an exhibit. I don't think you 11:46:29 25 want to highlight it. 1900 11:46:36 1 For the record, Your Honor, this is Exhibit 12, page 11:46:40 2 156. 11:46:50 3 MR. VICKERY: Here we go. 11:46:52 4 Q. (BY MR. VICKERY) Let's look at this one here. We see 11:46:55 5 here's someone on paroxetine. That's Paxil, right? 11:46:59 6 A. Right. 11:47:01 7 Q. 31-year-old female, has hallucinations on day one of the 11:47:09 8 drug and they say definitely related to the study drug. Does 11:47:13 9 that change your mind or is it in the same category as the 11:47:16 10 other? 11:47:17 11 A. Really, this is too little of detail to make anything out 11:47:20 12 of. The context of hallucinations and when that developed, 11:47:25 13 what's the context of the illness, what's the underlying 11:47:28 14 illness? Major depression can have hallucinations, as I 11:47:32 15 mentioned before. 11:47:33 16 How do we know this is not hallucinations from some 11:47:36 17 other thing? I don't know to what degree these people really 11:47:40 18 investigated this. When they say it is definitely related, 11:47:43 19 do they do a detailed kind of forensic analysis like I've 11:47:48 20 done here? 11:47:49 21 I don't think so. I don't think you could find a 11:47:51 22 report on each of those cases that would be similar to this 11:47:54 23 type of report. 11:47:55 24 Q. Are you saying you don't think that SmithKline Beecham did 11:47:57 25 that kind of thorough analysis of those cases? 1901 11:48:01 1 A. I don't think they did a forensic psychiatric on all of 11:48:04 2 these cases, no, I don't. 11:48:05 3 Q. Should they have? 11:48:06 4 A. Should they have? I can't tell SmithKline Beecham what 11:48:10 5 they should do. 11:48:12 6 Q. Well, I mean, do you believe that where there are 11:48:16 7 instances with attempted suicide and hallucinations where 11:48:20 8 somebody has made the judgment the drug is definitely causing 11:48:22 9 it, should they do this kind of detailed analysis? 11:48:28 10 A. Well, I don't know. It is not -- it is going to be a 11:48:34 11 timely process. Where do you draw the line? Do you do a 11:48:38 12 detailed forensic psychoanalysis with hallucinations? 11:48:46 13 Hallucinations are pretty common. Do you do it with a 11:48:49 14 suicide thought? Do you do it with a suicide attempt? With 11:48:54 15 a successful suicide? Do you do it with every side effect 11:48:59 16 there is? I don't know. 11:49:00 17 Q. Could we agree that certainly suicide is more serious 11:49:04 18 than, say, a stomachache or sexual dysfunction? 11:49:09 19 A. Sure. 11:49:09 20 Q. If you were going to do that type of thorough analysis, 11:49:12 21 you should do it with something that would be life 11:49:15 22 threatening? 11:49:17 23 A. Probably, yes. 11:49:18 24 Q. Let's change subjects because basically, without really 11:49:21 25 being this blunt about it, you've told the jury that Don 1902 11:49:24 1 Schell was a liar? 11:49:25 2 A. I'm sorry. I correct you. I never used that word. 11:49:29 3 Q. Didn't you say he withheld information from his doctor? 11:49:37 4 A. I never said he was a liar. 11:49:37 5 Q. Didn't you say he gave wrong answers to his doctor? 11:49:37 6 A. I said that he was unable because of his illness to really 11:49:41 7 be as forthright and he had an issue of stigma. There is no 11:49:46 8 evidence at all -- I'm not calling that gentleman a liar. 11:49:50 9 Q. Which of these 20 answers that he filled out do you say 11:49:55 10 are false? 11:49:59 11 A. Well, I'm not sure -- I think it is misstating it to say 11:50:03 12 it is false. I said that the reliability of that 11:50:06 13 information -- I don't know how somebody can rely on the 11:50:10 14 reliability when he says, "I find it easy to make decisions 11:50:17 15 some of the time," and has the other symptoms, number 16 -- 11:50:21 16 Q. Number 16, uh-huh. 11:50:24 17 A. Or if you add to that number 12, "I find it easy to do the 11:50:28 18 things I used to," that's simply -- I mean, he used to change 11:50:34 19 his cars and he can't change his cars. He can't go to work, 11:50:39 20 back and forth to work. He can't find his way there. 11:50:43 21 Q. Dr. Merrell, he did. He said he had trouble driving home 11:50:47 22 the day before but he did drive home, didn't he? 11:50:50 23 A. He found his way back, but then he stopped. I believe 11:50:53 24 that he even called Rita for help, if the information is 11:50:56 25 correct. 1903 11:50:56 1 Q. Where? Show me where you find that. The only thing I 11:51:03 2 remember in the records is, "I thought I would have some 11:51:06 3 trouble getting home yesterday, thought I might not be able 11:51:10 4 to drive myself home, but I did." Where is the evidence that 11:51:13 5 he stopped or called Rita for help? 11:51:15 6 A. I may not be able to produce that. I seem to remember it 11:51:17 7 someplace. But notwithstanding calling Rita or not, he was 11:51:23 8 at that point -- at that point he was saying I can't go back. 11:51:28 9 He's calling to turn the books over. He can't go back. He's 11:51:32 10 having enough trouble getting home that he can't go back, and 11:51:38 11 that's one of the signs of his depression, work. 11:51:40 12 Q. We're going to talk about work. I promise we'll do that. 11:51:44 13 Before we do that, though, let's see if we can finish 11:51:48 14 this chart so that I can remind my colleague, Mr. Gorman, and 11:51:53 15 we will get it in evidence. 11:52:00 16 In reading Dr. Suhany's deposition did he say that 11:52:05 17 Don Schell was compliant? 11:52:06 18 A. Yes, I believe that's noted. 11:52:08 19 Q. Would you write that down on the chart, please? 11:52:12 20 A. If I write it down it is not my words, it is your words. 11:52:16 21 Q. Well, it is Dr. Suhany's words, isn't it? 11:52:19 22 A. Well, I can write it down. You want me to? 11:52:21 23 Q. Isn't this chart here supposed to chronicle Dr. Suhany's 11:52:27 24 treatment? 11:52:27 25 A. It is my document. I'm trying to document what happened 1904 11:52:30 1 during that period of treatment. 11:52:32 2 Q. Are you trying to accurately illustrate what Dr. Suhany 11:52:35 3 did when he treated him? 11:52:37 4 A. Yes. 11:52:38 5 Q. And did Dr. Suhany swear under oath that this man was a 11:52:41 6 compliant patient? 11:52:42 7 A. Yes. 11:52:42 8 Q. Then please write compliant down on the chart. 11:52:47 9 A. Okay. 11:52:57 10 MR. GORMAN: Could we have the record reflect that 11:52:59 11 this is not Dr. Merrell's words, he's writing it at 11:53:03 12 Mr. Vickery's request? 11:53:05 13 THE COURT: The record will speak for itself. 11:53:08 14 MR. GORMAN: Thank you, Judge. 11:53:08 15 Q. (BY MR. VICKERY) Did the record also reflect that he had 11:53:11 16 a good therapeutic alliance with Mr. Schell? 11:53:15 17 A. Good thing to write. 11:53:32 18 MR. VICKERY: I will now join in Mr. Gorman's offer 11:53:35 19 of SB-OO, Your Honor. 11:53:37 20 MR. GORMAN: I certainly have no objection. 11:53:39 21 THE COURT: Very well. Defendant's Exhibit OO; is 11:53:41 22 that right? 11:53:42 23 MR. VICKERY: That's correct. 11:53:43 24 THE COURT: It may be received in evidence. 11:53:45 25 (Defendant's Exhibit SB-OO received in evidence.) 1905 11:53:46 1 Q. (BY MR. VICKERY) What does it mean to be compliant? 11:53:49 2 A. That means you're cooperating with treatment. 11:53:51 3 Q. Okay. And, of course, Dr. Suhany saw him anywhere from 18 11:54:01 4 to 21 times? 11:54:04 5 A. I think there was a question of the exact number, but I 11:54:08 6 think it is closer to 21. 11:54:10 7 Q. When you have 21 hour-long sessions, a good psychiatrist 11:54:16 8 like Dr. Suhany would certainly get a good feel for the man, 11:54:20 9 wouldn't he? 11:54:21 10 A. True. 11:54:22 11 Q. I asked if the deposition -- when he said compliant, I 11:54:25 12 asked are you saying this man was seeking help, are you 11:54:28 13 saying he wanted to get help and he said that was correct? 11:54:31 14 A. That's correct. 11:54:32 15 Q. What is a good therapeutic alliance? What does that mean? 11:54:36 16 A. That's something we aim for. We want our patients to work 11:54:40 17 with us. And during this course of treatment he worked for 11:54:43 18 him. There was not a single no-show. He was compliant. He 11:54:47 19 went along with the treatment as long as the treatment was 11:54:51 20 progressing. 11:54:51 21 Q. Took his medications as the doctor prescribed? 11:54:54 22 A. That's a different question. 11:54:55 23 Q. Well, did he or not? 11:55:03 24 A. I think the whole issue of whether he was taking the total 11:55:12 25 dose of medications is questionable. 1906 11:55:12 1 Q. Based on -- 11:55:12 2 A. He certainly -- 11:55:12 3 Q. Based on what? The proof is in the pudding. If there's 11:55:14 4 something in Dr. Suhany's records that say this man is not 11:55:17 5 compliant with his medication, then please show it to us. 11:55:24 6 A. Well, I think there's a question. I don't think you can 11:55:26 7 automatically assume that he did everything. He took all of 11:55:29 8 the medications that were ordered here, and you can see 11:55:33 9 evidence of that in his visit with Dr. Patel where he says, 11:55:39 10 "I've been on medicine only one and a half to two months." 11:55:43 11 And I commented on this. I don't know if that's 11:55:46 12 accurate or not, but that indicates that he was being 11:55:48 13 undertreated, that he stopped his medications prematurely. 11:55:52 14 So I don't know whether he took all of those meds. 11:55:56 15 Q. Listen to me very carefully, please. I don't want to know 11:55:59 16 what happened seven years later. I want to know if you saw 11:56:01 17 anything in the records of Dr. Suhany in 1990 throughout the 11:56:06 18 year that he was treating Mr. Schell that indicated 11:56:09 19 Mr. Schell was not compliant with the medications as 11:56:13 20 prescribed by Dr. Suhany. 11:56:16 21 A. I did not see anything in the records that indicated he 11:56:20 22 was noncompliant. 11:56:22 23 Q. Okay. In forming a therapeutic alliance and in doing -- 11:56:28 24 do you do psychotherapy? 11:56:31 25 A. Sometimes, yes. 1907 11:56:32 1 Q. And what's your goal when you spent time just talking to 11:56:37 2 someone in psychotherapy? 11:56:39 3 A. Well, you know, I do a combination of psychotherapy and 11:56:43 4 medication management. When I see patients, I see a lot of 11:56:46 5 patients for medication that have no other counselors, so I 11:56:49 6 do some of the counseling, I work with them, I talk with them 11:56:52 7 and try to get a good relationship so that we can work 11:56:55 8 together on their illness. 11:56:56 9 Q. Do you try to teach them some coping skills that they will 11:57:00 10 be able to carry forward to help them deal with psychosocial 11:57:04 11 stressors when they're no longer seeing you on a regular 11:57:07 12 basis? 11:57:08 13 A. Among other things, yes. 11:57:10 14 Q. That's one of the reasons you use hypnosis, isn't it? 11:57:12 15 A. I really haven't used hypnosis for a lot of years. 11:57:16 16 Q. How about relaxation therapy? 11:57:18 17 A. I will sometimes use that. 11:57:20 18 Now, to teach people to relax when they have anxiety, 11:57:24 19 if somebody is having an anxious condition, I would like them 11:57:29 20 to learn techniques so they didn't have to use medication. 11:57:35 21 I know some techniques I could share with them about 11:57:39 22 how to retrain their body to be more relaxed. 11:57:43 23 Q. And these are biofeedback and hypnosis and relaxation 11:57:48 24 therapies, aren't they? 11:57:50 25 A. Not really. They're relaxation techniques. There's 1908 11:57:54 1 nothing magical about those. I've had a broad experience so 11:57:57 2 I've done some hypnosis in the past, I've done biofeedback in 11:58:02 3 the past. And biofeedback is a great way to teach people -- 11:58:06 4 if you want to help somebody and minimize medications, use 11:58:10 5 biofeedback. Teach them to learn to relax their body on 11:58:14 6 their own. I would much rather do that than give somebody a 11:58:18 7 lot of medication or drugs. 11:58:21 8 Q. Dr. Merrell, what we're looking at here is page 5 of your 11:58:24 9 curriculum vita from July of the year 2000, correct? 11:58:31 10 A. Yes. 11:58:32 11 Q. One of the things you list is you do hypnosis, biofeedback 11:58:35 12 and relaxation therapy, you have experience in that. And, 11:58:38 13 for example, biofeedback you said you've done from 1974 to 11:58:42 14 present, right? 11:58:44 15 A. That's true. 11:58:44 16 Q. And under hypnosis, you said you don't do this anymore but 11:58:48 17 in July of last year you said you've used hypnosis from 1968 11:58:52 18 to the present. That would be July of 2000, right? 11:58:57 19 A. I think the last time I really worked with -- you know, 11:59:01 20 hypnosis and biofeedback, relaxation therapies all have some 11:59:07 21 similarities. The last patient I probably worked on with 11:59:15 22 that was a year or so ago. Not extensively, maybe one 11:59:20 23 session or so. 11:59:21 24 Q. Do you believe in the 21 hours of psychotherapy with Don 11:59:25 25 Schell that Dr. Suhany probably educated him about some 1909 11:59:28 1 coping skills of how to deal with life's bumps and bruises as 11:59:33 2 they occurred in the future? 11:59:35 3 A. There's some notes in there in particular after he begins 11:59:58 4 to discover that some education was done. It does not 11:59:58 5 explain -- it implies that it has more to do with educating 11:59:58 6 about depression and how to cope with depression, and there's 11:59:58 7 also information about coping techniques with work. 12:00:01 8 Dr. Suhany is reinforcing them, by the way, when he learns 12:00:08 9 how to cope with work better. And there's several notes of 12:00:08 10 that. 12:00:09 11 Q. And do you think that he probably augmented that with the 12:00:14 12 spiritual counseling he got from Sister Mary Agnes from 1993 12:00:21 13 to 1996? 12:00:22 14 A. He augmented that with -- I don't understand your 12:00:27 15 question. 12:00:27 16 Q. Do you think that whatever coping skills he gained from a 12:00:30 17 year of psychotherapy were supplemented by the spiritual 12:00:37 18 counseling he got from Sister Agnes? 12:00:43 19 A. I don't have a clear understanding of what Sister Agnes 12:00:45 20 provided to him. I would love to know that. I would love to 12:00:49 21 know that information. 12:00:50 22 Q. What is this you've got with you up there at the stand? 12:00:53 23 A. Sure, just my case -- you want to look at it? 12:00:56 24 Q. Is that your file? 12:00:58 25 A. Yeah. 1910 12:00:58 1 Q. I thought I would. It is noon now so I thought I would do 12:01:01 2 it over the noon hour, if you don't mind. 12:01:04 3 A. Sure. You can have the whole thing. 12:01:23 4 THE COURT: We will take our noon recess now. If I 12:01:25 5 could have you, Mr. Vickery, and counsel for the defendant 12:01:28 6 come up here without the court reporter. 12:01:32 7 (Discussion held out of the hearing 12:01:33 8 of the reporter and the jury.) 12:03:36 9 THE COURT: Ladies and gentlemen of the jury, we will 12:03:37 10 stand in recess until 1:15. We will come back and at 1:15 we 12:03:43 11 will work for half an hour, 40 minutes. I have another court 12:03:48 12 responsibility at 2:00 that may take me until potentially 12:03:54 13 3:00, so you're going to have a little downtime and that's my 12:03:58 14 fault and that's what I was telling the attorneys about, to 12:04:00 15 let them know. 12:04:02 16 Please remember the usual admonition of the Court, 12:04:05 17 and again we will resume at 1:15 p.m. this date. 12:04:12 18 (Trial proceedings recessed 12:05 p.m. 12:04:17 19 and reconvened 1:20 p.m., June 4, 2001.) 13:21:20 20 THE COURT: Mr. Vickery. 13:21:21 21 MR. VICKERY: Thank you, Your Honor. 13:21:22 22 Q. (BY MR. VICKERY) Dr. Merrell, have you ever treated 13:21:24 23 suicidal patients? 13:21:26 24 A. Oh, man, I don't know how many thousands of suicide 13:21:30 25 patients I've seen over the years. 1911 13:21:31 1 Q. Ever lost one to suicide? 13:21:33 2 A. You know, I know for sure I had one suicide successful. 13:21:38 3 It was way back in my residency. It was a lady, young lady 13:21:43 4 who took an overdose of Darvon. And I think it was only 13:21:48 5 about 20 tablets and had made a gesture really, I don't think 13:21:52 6 she was that serious, but miscalculated the effect of the 13:21:57 7 medications. 13:21:58 8 Over that time I've been lucky. There have been 13:22:01 9 patients I've known about that I maybe have seen for 13:22:04 10 medications, but no direct suicides. I've been lucky. 13:22:09 11 Q. Good, good. You were talking about Dr. Suhany and we 13:22:12 12 discussed the therapeutic alliance. You know from 13:22:16 13 Dr. Suhany's deposition that he left town in 1991, don't you? 13:22:22 14 A. That's correct. 13:22:22 15 Q. So unfortunately, this physician with whom Mr. Schell had 13:22:26 16 developed a good rapport was no longer available to treat him 13:22:30 17 there? 13:22:31 18 A. That's true. 13:22:32 19 Q. And we don't know -- and same is true with Dr. Lucas and 13:22:36 20 Dr. Bagnarello, correct, that they were not available? 13:22:39 21 A. That's true. 13:22:40 22 Q. And we just don't know whether Mr. Schell got along well 13:22:43 23 with Dr. Buchanan or not, do we? 13:22:49 24 A. Yeah, we don't have information one way or another. He 13:22:51 25 showed up for appointments. He had those three appointments 1912 13:22:55 1 and he was responding well, so things were in place for a 13:22:58 2 good therapeutic alliance. 13:23:00 3 Q. But it could be either that he thought he was getting 13:23:02 4 better or that he maybe didn't like this guy, maybe he 13:23:06 5 preferred to get his talking therapy, if you will, from 13:23:09 6 Sister Mary Agnes or elsewhere? 13:23:16 7 A. I have no argument with somebody getting talking therapy 13:23:18 8 from wherever they want. But people with this type of 13:23:22 9 depression need to be with some doctor that can supply them 13:23:25 10 medication on an ongoing basis. 13:23:28 11 Q. You know from Dr. Suhany's deposition that as of December 13:23:31 12 1990 the plan was for Mr. Schell to remain on the imipramine 13:23:38 13 through the winter and sort of taper off if he seemed able 13:23:43 14 to, right? 13:23:44 15 A. I think the taper off is the question. Now, there are a 13:23:49 16 couple of things about the winter -- and I didn't mention the 13:23:53 17 seasonal issues about -- there's a seasonal factor that goes 13:23:57 18 through some of these depressions, but the proper way to 13:24:00 19 taper this kind of medication is really to have follow-up. 13:24:05 20 When I'm tapering somebody with these medications, I 13:24:09 21 do it gently. When I get them lower or even to zero, I may 13:24:15 22 taper somebody off of medications and I may follow them from 13:24:18 23 nine months to a year after this. Those are very important 13:24:21 24 times. 13:24:22 25 Q. Of course Dr. Suhany couldn't do it if he wasn't in town 1913 13:24:24 1 anymore? 13:24:25 2 A. That's true. 13:24:26 3 Q. So it is approximately eight or nine months, I think, 13:24:29 4 before Mr. Schell goes to see another physician, 13:24:31 5 Dr. Bagnarello, right, September of '91? 13:24:36 6 A. That's true. 13:24:37 7 Q. Now, all of these physicians gave him, along with 13:24:40 8 imipramine, which seemed to work best for him than 13:24:44 9 anything -- they gave him Ativan? 13:24:47 10 A. True. 13:24:47 11 Q. Right? 13:24:48 12 A. True. 13:24:48 13 Q. In fact, when he had a bad reaction to Prozac, Dr. Suhany 13:24:52 14 increased his dose of Ativan, right? 13:24:55 15 A. I never said he had a bad reaction to Prozac. 13:24:59 16 Q. Did you see where Dr. Suhany testified that he had, quote, 13:25:02 17 obvious somatic anxiety today, which he attributed as a side 13:25:07 18 effect of Prozac and gave him an increased dose of Ativan to 13:25:11 19 counteract? 13:25:13 20 A. Well, he mentioned obvious somatic anxiety and I think in 13:25:17 21 the deposition he talks further about that. I think there's 13:25:20 22 still a question as to how much of that was really due to the 13:25:23 23 Prozac and how much was due to the agitated depression. 13:25:31 24 Q. I put my Suhany deposition aside. Don't you recall him 13:25:34 25 saying that he thought it was a side effect of the Prozac? 1914 13:25:38 1 A. He was not totally sure. He considered that as a 13:25:43 2 possibility. 13:25:44 3 Q. And he increased the Ativan, didn't he? 13:25:46 4 A. Well, see, the Ativan dosage though on the chart here -- 13:25:50 5 he was varying this Ativan dosage, if you recall. Originally 13:25:54 6 he really increased the Ativan to control the anxiety and he 13:25:57 7 got worse. And then the dose of Ativan was sort of tailored 13:26:02 8 as he got better on the upgoing slope. So this Ativan usage 13:26:12 9 was variable. 13:26:12 10 Q. Right. But it was always given by all of these doctors in 13:26:12 11 conjunction with whichever antidepressant he was using, 13:26:16 12 whether it was imipramine or Desyrel or Prozac, right? 13:26:21 13 A. Well, when you say all of these doctors -- 13:26:23 14 Q. The psychiatrists. 13:26:27 15 A. He was given that, yes. And the goal, though, was to 13:26:30 16 taper him off the medication. If you look at the records, 13:26:33 17 they're trying to taper back the Ativan. 13:26:36 18 Q. Well, there's a good reason for that, isn't there? 13:26:39 19 A. Sure. 13:26:39 20 Q. Tell the folks what it is. 13:26:41 21 A. Dependence. 13:26:42 22 Q. It is addictive, isn't it? 13:26:44 23 A. Ativan is the most addictive of the benzodiazepines 13:26:50 24 because it has such a short half-life and I tend to use the 13:26:53 25 longer-acting tranquilizers because they have less addiction. 1915 13:26:57 1 If you're on Ativan for a long period of time, you're more 13:27:01 2 likely to get it. It creates an up and down. 13:27:03 3 Ativan, as I mentioned, is a great medicine for acute 13:27:07 4 anxiety but if you have it ongoing, you get on a roller 13:27:12 5 coaster with Ativan. It goes out of your system within four 13:27:16 6 to six hours and you notice it, you feel it. You can go into 13:27:20 7 Ativan withdrawal on a day-to-day basis. This Ativan is like 13:27:24 8 a roller coaster. 13:27:26 9 Q. Right. What you have done here on this chart is try to 13:27:29 10 give us your assessment of Mr. Schell's overall condition, 13:27:44 11 how he was doing, right? 13:27:46 12 A. I think it is more of a chronological view of his 13:27:49 13 depression and a chronological timing of how he's reacting to 13:27:55 14 medications. I suppose you could say it is an overview. 13:27:58 15 Q. Are you trying to give us an overall feel for how this man 13:28:02 16 is doing vis-a-vis his depression over time? 13:28:06 17 A. For depression, yes. 13:28:07 18 Q. Is there in that gray book sitting in front of you 13:28:11 19 something called an Axis V diagnosis? 13:28:15 20 A. You mean GAF function? 13:28:18 21 Q. That's exactly what I mean. 13:28:21 22 A. Sure. 13:28:21 23 Q. Would you tell the jury what that is? 13:28:23 24 A. That's Global Assessment of Functioning. The DSM-IV has a 13:28:29 25 very long diagnosis. It has five components. The first 1916 13:28:32 1 component is Axis I. Axis I is what I'm talking about with 13:28:36 2 major depression, and the other Axis I diagnosis that was 13:28:40 3 made here has been general anxiety disorder by Dr. Lucas. 13:28:47 4 Those are both Axis I. 13:28:49 5 Axis II is personality problems, and that gives you a 13:28:52 6 diagnosis of personality. 13:28:55 7 Q. Did anyone -- 13:28:56 8 A. Axis III -- 13:28:57 9 Q. Let me interrupt you there, if I may. Did anyone ever 13:29:01 10 make an Axis II diagnosis for Don Schell? 13:29:04 11 A. No. 13:29:05 12 Q. And that would include something like a personality, like 13:29:08 13 he was a controlling and possessive person? That might lead 13:29:12 14 you to make some Axis II diagnosis, might it not? 13:29:20 15 A. Yes. 13:29:21 16 Q. Did you know Dr. Suhany never made an Axis II diagnosis 13:29:25 17 even though he treated the man for a year? 13:29:27 18 A. He never made a formal diagnosis of Axis II, no. 13:29:31 19 Q. Sorry to interrupt you. Please continue. What was 13:29:34 20 Axis III? 13:29:35 21 A. Axis III has to do with medical and physical. That has to 13:29:39 22 do with if someone is having a heart attack, diabetes, 13:29:43 23 hypertension, something along those lines. 13:29:46 24 Axis IV -- 13:29:47 25 Q. Let me stop you there, if I may, and ask a question about 1917 13:29:49 1 that. Can Axis III physical condition sometimes dovetail 13:29:54 2 with your Axis I mental disorder? 13:29:56 3 A. Definitely. 13:29:57 4 Q. Like thyroid? Is that a good example? 13:30:01 5 A. Sure, hypothyroidism. 13:30:04 6 Q. Explain that. 13:30:05 7 A. Another good example is a heart attack. People with major 13:30:10 8 depression have a higher incidence of heart attack and the 13:30:13 9 mortality rate if you're depressed -- I hope if I get a heart 13:30:16 10 attack I'm not depressed because my mortality rate is going 13:30:20 11 to be a lot higher if I'm depressed. 13:30:22 12 And you mentioned thyroid? 13:30:24 13 Q. Doesn't hypothyroidism affect depression? 13:30:27 14 A. Hypothyroidism is a critically important thing for 13:30:33 15 depressions. We have learned that thyroid problems can mimic 13:30:39 16 depression. Somebody who is low on the thyroid also does not 13:30:44 17 respond well to antidepressant therapy. 13:30:47 18 There is a whole line of thinking about using thyroid 13:30:51 19 medications to either augment the effect of the 13:30:53 20 antidepressants or at least make sure someone is not 13:30:57 21 hypothyroid. I see this day in and day out where thyroid is 13:31:01 22 a critically important thing to make sure it is all right. 13:31:04 23 Q. Let me ask you a follow-up there, Dr. Merrell. There's no 13:31:14 24 indication in any of the records of any of the physicians 13:31:14 25 that Don Schell had any kind of physical problem, 1918 13:31:14 1 hypothyroidism or any other physical problem that would 13:31:18 2 contribute to the depression, is there? 13:31:19 3 A. No. He had some glaucoma problems and I believe a 13:31:22 4 reaction to codeine, but nothing that he was under ongoing 13:31:26 5 treatment for which is fortunate, because if he -- this would 13:31:29 6 be complicated if he was on medication, for example, for high 13:31:32 7 blood pressure or diabetes. And there's no indication of 13:31:35 8 that. 13:31:35 9 Q. Perfectly healthy man physically except for the glaucoma? 13:31:40 10 A. Reasonably. He had a good cholesterol, 170. 13:31:46 11 Q. Axis IV, what's that? 13:31:48 12 A. That's the category for psychosocial stressors, and this 13:31:52 13 is a useful category often because this allows us to list 13:31:57 14 those things that are attributing to the progression of the 13:32:01 15 illness. 13:32:02 16 Now, the things that I mentioned on the board that 13:32:05 17 were developing -- the losses, the inability to work -- those 13:32:10 18 would be listed under Axis IV if you were making a formal 13:32:14 19 diagnosis or trying to make report. You could list those as 13:32:18 20 stressors. 13:32:19 21 Q. And did Dr. Suhany, who I agree with you was gold standard 13:32:24 22 care from a psychiatrist and treated him for a year -- did 13:32:27 23 Dr. Suhany ever make any Axis IV diagnoses in his records? 13:32:31 24 A. No, he never formally listed it. He implied that. I 13:32:37 25 think if you were to ask him the question -- and that 1919 13:32:40 1 question was never asked him, Dr. Suhany, what would you 13:32:45 2 consider to be Axis IV, I think it is clear he would respond 13:32:48 3 by losses and work difficulties and so forth. He would be 13:32:54 4 able to list those had you asked him. 13:32:57 5 Q. Okay. Finally there's Axis V, the Global Assessment of 13:33:01 6 Functioning? 13:33:02 7 A. Yes. 13:33:02 8 Q. And that is sort of a catch-all overview of the doctor 13:33:07 9 sort of rating how the patient is doing, right? 13:33:12 10 A. That's a pretty good assessment of it. It is a scale that 13:33:14 11 goes from 0 to 100, and 100 is as good as you can get. And 13:33:19 12 it goes down, if a person is functioning at a 20 or 30 level, 13:33:25 13 they're having massive difficulties and I'll give you that 13:33:29 14 extreme. If somebody is functioning at 80 to 100 level, 13:33:32 15 they're doing pretty well. 13:33:34 16 Q. If, for example, Dr. Suhany had done an Axis V diagnosis 13:33:38 17 and he had repeated that diagnosis at each weekly interval, 13:33:42 18 then we could plot this -- we could plot the Global 13:33:47 19 Assessment of Function on this line right here and have exact 13:33:50 20 numbers, right? 13:33:54 21 A. Yeah, that would not be a bad idea. It is not -- it is 13:33:56 22 not much different than this -- this is kind of what I'm 13:34:01 23 taking into account, the Global Assessment of Functioning 13:34:04 24 when I plot the baseline of the depression. 13:34:06 25 Q. I thought that's what you were doing. That's why I wanted 1920 13:34:09 1 to go over this. 13:34:11 2 What you have done is looked at the handwritten 13:34:13 3 notes -- 13:34:14 4 A. Yes. 13:34:14 5 Q. -- and Dr. Suhany's testimony -- 13:34:16 6 A. Yes. 13:34:16 7 Q. -- and just made your own assessment of the Global 13:34:19 8 Assessment of Functioning, true? 13:34:26 9 A. Not really. I don't -- this really applies to his 13:34:29 10 depression and the level of his depression. I think there's 13:34:33 11 some correlations with the Global Assessment of Functioning. 13:34:37 12 Certainly when he goes into remission in December of 13:34:39 13 1990, his GAF scores are going to be right around probably 90 13:34:44 14 or so. Now, what score you want to get in here at the 13:34:49 15 beginning -- and I don't know, Dr. Suhany was there, he could 13:34:53 16 come up with some score. 13:34:58 17 GAF functioning is not an absolute tool. It is a 13:35:01 18 clinician's guide. They'll come up with a guess. I have to 13:35:04 19 tell you that when you get into GAF functioning that is 13:35:07 20 inability to work, this is going to be low. This is not 13:35:10 21 going to be a high GAF functioning. This is going to be low 13:35:14 22 because of work there. 13:35:55 23 Q. Show me in the bible. 13:35:56 24 THE COURT: Have the witness refer to what he's 13:35:58 25 looking at and the page number, please. 1921 13:36:01 1 Q. (BY MR. VICKERY) Would you do that for us, please, 13:36:03 2 Doctor? 13:36:03 3 A. Sure. 13:36:04 4 Q. What is this book? 13:36:05 5 A. This is the Diagnostic Statistical Manual IV. 13:36:10 6 Q. What page are you looking at? 13:36:12 7 A. Page 34. 13:36:13 8 Q. May I see it? 13:36:14 9 A. Sure. 13:36:23 10 Q. Show me what it says for occupational problems, at what 13:36:26 11 level in the Global Assessment of Functioning. 13:36:29 12 A. Between 21 and 30 it says, "Behavior is influenced by 13:36:33 13 delusions or hallucination or serious impairment in 13:36:40 14 communication or judgment or inability to function in almost 13:36:43 15 all areas. Stays in bed all day, no job, home or friends." 13:36:49 16 Q. You're not suggesting that that was Don Schell, are you? 13:36:56 17 A. Well, let me read the level that is slightly better. 13:36:58 18 Q. Why don't you read the 60? What does the level 60 say 13:37:03 19 about occupational problems? 13:37:04 20 A. It says, "Moderate difficulty in social, occupation or 13:37:08 21 school functioning. This applies to some conflicts with 13:37:12 22 co-workers, for example." 13:37:15 23 Q. Moderate difficulty with occupational functioning could be 13:37:18 24 calling in someone to look after your wells for a period of 13:37:22 25 time while you're taking off work, couldn't it? 1922 13:37:28 1 A. Calling in the wells -- no, the way I read this is that 13:37:33 2 serious symptoms -- if you look at between 40 and 50, it 13:37:36 3 says, any serious impairment, any serious impairment, social, 13:37:41 4 occupational or school functioning. 13:37:48 5 Q. That's between 40 and 50. And what level is it where 13:37:50 6 there's a danger of suicide? 13:37:58 7 A. It starts at around a 30. 13:38:00 8 Q. What does a 30 say? 13:38:02 9 A. 30 is "Behavior considerably influenced by delusions or 13:38:07 10 hallucinations or serious impairment in communication or 13:38:12 11 judgment." Suicidal preoccupation is listed there. 13:38:18 12 Q. Now, if he had had suicidal preoccupation don't you 13:38:21 13 believe that Dr. Patel would have found it? 13:38:24 14 A. No. 13:38:25 15 Q. He said he asked about it. 13:38:27 16 A. Sure, but there's so much in that information that is 13:38:30 17 distorted and also not accurate, I don't know how you could 13:38:35 18 say that the other information is accurate and the suicide is 13:38:39 19 inaccurate. It is a hodgepodge. 13:38:42 20 Q. Let's talk about work then. 13:38:44 21 A. Okay. 13:38:44 22 Q. You know from the records that Mr. Schell retired from his 13:38:47 23 career with Occidental in 1993, don't you? 13:38:50 24 A. True. 13:38:50 25 Q. And after that he had a contract job where he was paid on 1923 13:38:56 1 a per-well basis to oversee pumping? 13:39:00 2 A. True. 13:39:00 3 Q. And you know that that is 365 days a year work, don't you? 13:39:04 4 A. It is a tough job. 13:39:05 5 Q. Now, how many days a year do you work, Dr. Merrell? 13:39:11 6 A. How many days do I work? 13:39:13 7 Q. Yes, out of 365 days a year would you work in a normal 13:39:18 8 work year? 13:39:19 9 A. This year? 13:39:20 10 Q. Sure. 13:39:22 11 A. It varies. There has been some years where I've done a 13:39:26 12 lot of hospital work, and I'm doing a lot more. This case 13:39:29 13 has been a lot. Normally I'll put in 50, 60 hours a week. 13:39:35 14 Q. I'm not talking hours a week. I'm talking days a year. 13:39:40 15 A. Days a year? Let's say five and a half times 52 weeks. 13:39:45 16 Q. So you don't take vacations? 13:39:47 17 A. Well, I'm figuring that in. I will be gone some of that. 13:39:52 18 Q. If you take off -- 13:39:53 19 A. Do we consider it work that when I went with the Guard, 13:39:56 20 you know? I guess that's work, but in a way it was 13:39:59 21 rejuvenating so I don't know where to list that. 13:40:03 22 Q. A normal human being in a normal workweek works five days 13:40:08 23 a week, right? 13:40:11 24 A. Normal -- a lot of us -- a lot of people do. 13:40:15 25 Q. And then a normal human being would take off at least two 1924 13:40:19 1 weeks for vacation a year, wouldn't they? 13:40:22 2 A. Sure. 13:40:23 3 Q. So they would be off 35, 40 days a year, wouldn't they? 13:40:29 4 A. Probably. 13:40:30 5 Q. Now, what is so amazing about this man who worked 365 days 13:40:35 6 a year taking off a month and getting somebody to cover his 13:40:39 7 wells for him? 13:40:40 8 A. I don't have any objection at all to taking off time from 13:40:43 9 work. You know, it is the nature of taking off. It is one 13:40:47 10 thing to take off work to enjoy yourself, and I think he 13:40:51 11 needed to enjoy himself. He was working too hard. If I 13:40:54 12 would have been treating him I would have said that. And 13:40:57 13 actually, that's mentioned by Suhany several times; you need 13:41:03 14 to take better care of yourself. 13:41:05 15 Q. He was encouraged by his doctor to take time off? 13:41:09 16 A. He was encouraged to reorganize his job and do the best he 13:41:12 17 can, sure. 13:41:13 18 Q. Three things I want to cover with you. 13:41:16 19 One thing you mentioned there was a cost differential 13:41:18 20 between the SSRI drugs and the older tricyclics? 13:41:24 21 A. Yes. 13:41:25 22 Q. Which are most expensive? 13:41:27 23 A. Of all of them? 13:41:28 24 Q. The SSRIs are much more expensive than the tricyclics? 13:41:32 25 A. Yes, significantly, because they're still under patent. 1925 13:41:37 1 Q. And so the drug companies can charge more for them? 13:41:42 2 A. My understanding and the way I view that is that there's a 13:41:46 3 lot of money that gets involved with producing one of these. 13:41:49 4 Coming out with one of these medications is not a cheap 13:41:52 5 process. 13:41:53 6 Q. Second thing I wanted to ask you concerns the materials 13:41:56 7 there that you have. I looked through them over the lunch 13:42:00 8 hour, and if I may, you have the reports of all of the 13:42:03 9 experts in here, don't you? 13:42:10 10 A. I don't have all of them. My notebook wasn't big enough. 13:42:10 11 I think I have the last ones, but I'm not sure. 13:42:11 12 Q. I marked one here. I had it with a paper clip. Did 13:42:28 13 someone take my paper clip out? 13:42:31 14 A. I can help you. 13:42:35 15 THE COURT: There's a paper clip on the top. 13:42:39 16 MR. VICKERY: I had it marked on the side, Your 13:42:40 17 Honor. That's okay. I can find it again. 13:43:30 18 Q. (BY MR. VICKERY) Did you do the red underlining on the 13:43:30 19 reports? 13:43:30 20 A. Yes. 13:43:30 21 Q. What did you choose to underline? 13:43:30 22 A. I don't know that I chose anything specifically. I didn't 13:43:30 23 do much. There isn't much underlined in there. There might 13:43:30 24 be some. 13:43:30 25 Q. I want to show you page 6 of Dr. Maltsberger's report and 1926 13:43:30 1 specifically some red underlining you did there. He says in 13:44:12 2 this case, "I can identify only one factor which triggered 13:44:16 3 the murders and subsequent suicides, Paxil. It is most 13:44:19 4 likely that Mr. Schell lost control in a state of intolerable 13:44:24 5 akathisia. It is possible that the Paxil caused a switch 13:44:26 6 into a mixed state in which irresistible manic excitement 13:44:31 7 coupled with an intense anxiety and psychosis led to the 13:44:35 8 tragic outcome. I'm not certain which of these events 13:44:38 9 occurred. It may be that both were present. Though we lack 13:44:42 10 details of what exactly Mr. Schell's mental state was on the 13:44:46 11 fatal night, it is clear to me that it was Paxil that drove 13:44:50 12 him out of control." 13:44:51 13 Why did you underline in red this whole sentence 13:44:53 14 about switching into a mixed state? 13:44:58 15 THE COURT: Would you tell the Court and jury what 13:45:00 16 we're looking at here before he answers? 13:45:03 17 MR. VICKERY: I'm sorry. I thought I did. It is 13:45:05 18 page 6 of Dr. Maltsberger's report. 13:45:08 19 THE COURT: Thank you. 13:45:09 20 Q. (BY MR. VICKERY) Why did you underline those in red? 13:45:12 21 A. It is some pretty wild, speculative statements. 13:45:15 22 Q. You just disagreed with them? 13:45:17 23 A. Well, yes, I disagree with that. 13:45:19 24 Q. Didn't you just yourself just a week or so ago throw a 13:45:23 25 patient into a mixed state by superimposing Celexa, which is 1927 13:45:28 1 an SSRI, on top of another SSRI, Paxil? 13:45:32 2 A. No, that wasn't a mixed state. That patient was an 13:45:35 3 undiagnosed manic depressive patient who did go into some 13:45:41 4 manic behavior and a good outcome, we were able to treat it 13:45:47 5 quickly. 13:45:47 6 This has to do with akathisia. Akathisia I haven't 13:45:51 7 even talked about, but akathisia is a medication -- sorry. 13:46:01 8 Akathisia is a very common illness that I've seen with the 13:46:05 9 neuroleptics. The antipsychotics can produce akathisia. 13:46:12 10 Years ago I don't know how many patients with akathisia I've 13:46:14 11 seen. Hundreds. 13:46:15 12 You know, there used to be a thought -- and akathisia 13:46:18 13 is something that comes from Haldol predominantly, and there 13:46:22 14 used to be a theory we had about akathisia in which we 13:46:28 15 weren't sure we were getting benefit of the medicine unless 13:46:31 16 they were a little akathisic. I've seen so many people with 13:46:37 17 akathisia due to neuroleptics that it is -- and when I read 13:46:41 18 this I said I haven't had a single patient with akathisia 13:46:46 19 that has done anything other than we've adjusted things and 13:46:50 20 taken care of it. 13:46:51 21 Q. Adjusted things? You mean like give them a benzodiazepine 13:46:54 22 to counteract the akathisia? 13:46:57 23 A. No, benzodiazepines aren't that good. I think the 13:46:59 24 anti-Parkinsonian agents are a lot better for akathisia. You 13:47:04 25 have to be a little careful with giving somebody that's 1928 13:47:07 1 psychotic tranquilizer medications. Sometimes I would use 13:47:11 2 weak doses of benzodiazepines, but I think it is not as good 13:47:15 3 a choice as really the -- I don't know -- the agents that 13:47:19 4 treat side effects like akathisia. 13:47:21 5 Q. Let's look at the other thing you underlined. He said, "I 13:47:26 6 think it very unlikely that a spontaneous psychotic episode 13:47:31 7 intervened on February 12-13 independent of Paxil. An acute 13:47:35 8 psychotic state in a 60-year-old man with no previous 13:47:39 9 psychotic history is almost always caused by an organic 13:47:42 10 factor. In this instance that factor would be Paxil 13:47:46 11 intoxication." 13:47:47 12 Have you ever seen a 60-year-old man go wild, as 13:47:52 13 Mr. Schell did, do the kinds of things he did, where there 13:47:55 14 was not some organic or biological trigger? 13:47:59 15 A. I've seen 60-year-old people who develop severe depression 13:48:04 16 slide into terrible illness. It is not like the switch 13:48:09 17 suddenly gets turned on. People deteriorate rapidly if they 13:48:15 18 get into a major depression. I kind of mentioned that 13:48:18 19 before. 13:48:19 20 Q. Have you ever seen one do this kind of thing, a violent 13:48:23 21 homicide/suicide? 13:48:25 22 A. No, I have never had a case where somebody went this long. 13:48:35 23 But also, like I said, my patients stick with me and I keep 13:48:35 24 treating them and we monitor the medications. And that's why 13:48:36 25 I said that if he had maintained on medicines from the time 1929 13:48:40 1 of Suhany on I don't think we would be here. 13:48:43 2 Q. He just needed to be on psychoactive drugs for the rest of 13:48:47 3 his life? 13:48:47 4 A. He needed to be on antidepressant treatment. And I'm 13:48:50 5 really sad that that guy -- that guy didn't make it, because 13:48:57 6 I have a lot of people that make it and that's my goal in 13:48:59 7 this thing is to have people get better. 13:49:04 8 Q. Doctor, you've testified he had a sense of loss of his 13:49:24 9 daughter leaving? 13:49:25 10 A. Yes, that's true. 13:49:26 11 Q. You're a father? 13:49:27 12 A. Yes. 13:49:27 13 Q. You have a daughter? 13:49:28 14 A. One daughter, three sons. 13:49:29 15 Q. Your daughter married yet? 13:49:30 16 A. Yes. 13:49:31 17 Q. Did you give her away? 13:49:32 18 A. Yes. 13:49:34 19 Q. Well, I'm giving mine away on November 17th and what 13:49:37 20 greater time is there for a father in a sense to feel a sense 13:49:43 21 of loss than to give away his daughter in marriage to the 13:49:46 22 hand of another man. 13:49:47 23 A. It is a beautiful experience. 13:49:49 24 Q. He wasn't depressed in August of 1992 when Deborah married 13:49:55 25 this young man, was he? 1930 13:49:57 1 A. August of '92 is -- I would have to pinpoint that with the 13:50:03 2 episodes of depression. He may have been in the middle of a 13:50:06 3 depressive cycle. 13:50:08 4 Q. Do you really believe that the fact that Tim Tobin was 13:51:37 5 going to pick up his wife and daughter and go back home after 13:51:37 6 they had had an extended visit with her parents -- that the 13:51:37 7 fact she was going home with her husband to their house 13:51:37 8 triggered this man to shoot her? 13:51:37 9 MR. GORMAN: Objection, Your Honor. That's 13:51:37 10 argumentative. 13:51:37 11 THE COURT: The witness may answer if he has an 13:51:37 12 opinion. Overruled. 13:51:37 13 A. Well, it is one of the factors. When he was in a position 13:51:37 14 where he was not able to think straight and he was affected 13:51:37 15 by this depression, it doesn't take much. People in this 13:51:37 16 kind of position are fragile. They're not strong. They 13:51:37 17 can't handle the same things that they can handle when 13:51:37 18 they're strong. 13:51:37 19 Q. (BY MR. VICKERY) And one of your theories is that he was 13:51:37 20 going to hurt himself and he accidentally shot one of his 13:51:37 21 loved ones and -- is that right? 13:51:37 22 A. I said that's one of the possibilities. I didn't say 13:51:37 23 necessarily I believed it. 13:51:37 24 Q. And so after accidentally shooting one of them, then he 13:51:37 25 shoots five more times with a .22 pistol and goes and gets a 1931 13:51:37 1 different gun and shoots each of them again with a 13:51:37 2 large-caliber pistol? Do you believe that happened, sir? 13:51:37 3 MR. GORMAN: Objection, Your Honor, it is 13:51:37 4 argumentative. 13:51:37 5 THE COURT: Sustained. 13:51:37 6 MR. VICKERY: No further questions of this witness. 13:51:45 7 THE COURT: Mr. Gorman, maybe we better indulge my 13:51:45 8 other court engagement at this time. 13:51:45 9 As I told you, ladies and gentlemen, I have other 13:51:47 10 court proceedings to take care of. I'll go through those 13:51:50 11 absolutely as fast as I can and be back here with you 13:51:54 12 hopefully by 3:00 or earlier. Sorry you have this standby 13:51:59 13 time. We've done pretty good. This is my fault, not the 13:52:02 14 attorneys' fault. I didn't reschedule these matters so 13:52:05 15 you're going to have some idle few minutes. 13:52:11 16 You're going to redirect Dr. Merrell for a little 13:52:14 17 bit? 13:52:15 18 MR. GORMAN: Yes, Your Honor. 13:52:16 19 THE COURT: We will stand in recess. 20 (Recess taken 1:50 p.m. until 3:00 p.m.) 15:39:17 21 (Following out of the presence of the jury in chambers.) 15:39:17 22 THE COURT: The record should reflect that counsel 15:39:17 23 have represented to the Court that they have an issue with 15:39:17 24 regard to rebuttal witnesses and so I need somebody to lead 15:39:17 25 off for me and let us know what the issue is. 1932 15:39:17 1 MR. GORMAN: It is our issue. 15:39:17 2 We think, Your Honor -- we got an e-mail from Andy 15:39:17 3 telling us that he thought he was going to call three 15:39:17 4 basically rebuttal witnesses, one in the form of 15:39:17 5 Dr. Wheadon's -- part of Dr. Wheadon's deposition, that he 15:39:17 6 thought he was going to call Dr. Maltsberger, and he may call 15:39:17 7 Neva Hardy and/or Tim Tobin to address the, quote, dog lady. 15:39:17 8 I don't know what they have planned, but with respect 15:39:17 9 to using Dr. Wheadon's deposition testimony in this case as 15:39:17 10 rebuttal I think would be inappropriate for two reasons. 15:39:17 11 Number one, certainly Dr. Wheadon's testimony by 15:39:17 12 deposition couldn't add or couldn't relate to anything new 15:39:17 13 that came up in the defense case that could not or should not 15:39:17 14 have been put on in the plaintiffs' case in chief. That's 15:39:17 15 number one. 15:39:17 16 Number two, the Court's order, I think, on the final 15:39:17 17 pretrial indicated very clearly that before any rebuttal 15:39:17 18 testimony would be authorized, you would have to get the 15:39:17 19 prior permission of the Court, which I don't think has been 15:39:17 20 done. 15:39:17 21 With respect to Dr. Maltsberger, he is a rebuttal 15:39:17 22 expert witness that I think also should have been -- the 15:39:17 23 Court should have been advised about, but more importantly, 15:39:17 24 the Court here was very careful to keep all of the expert 15:39:17 25 witnesses in this case within the four corners of their 1933 15:39:17 1 Rule 26 disclosures. So it would be exceedingly doubtful 15:39:17 2 that there would be anything new in the way of true rebuttal 15:39:17 3 testimony that Mr. Maltsberger could offer. 15:39:17 4 So from that standpoint we thought instead of 15:39:17 5 bringing -- and I'm going to apologize to the Court. I now 15:39:17 6 have just a very short redirect of Dr. Merrell that I could 15:39:17 7 have done and probably not interrupted the Court's 2:00 15:39:17 8 thing. So I could have had that done. And so I apologize 15:39:17 9 that I didn't -- I didn't weed this down quicker. 15:39:17 10 THE COURT: I didn't think about it either. 15:39:17 11 MR. GORMAN: But instead of at that point finishing 15:39:17 12 Dr. Merrell, resting, doing whatever motion -- doing whatever 15:39:17 13 rebuttal at that point and dismissing the jury again to talk 15:39:35 14 about the rebuttal issue we thought we better do it now so 15:39:35 15 that we don't inconvenience those folks any more than we have 15:39:35 16 to. 15:39:35 17 THE COURT: Mr. Vickery. 15:39:35 18 MR. VICKERY: Okay, Judge. First of all, I'm not 15:39:35 19 going to call Neva Hardy to mess with the dog lady issue. 15:39:35 20 Secondly, with respect to Dr. Wheadon, I e-mailed the 15:39:35 21 page and line reference -- actually, a document, about a six- 15:39:35 22 or seven-page document, take five minutes to read, and it is 15:39:35 23 excerpts from the deposition of Dr. Wheadon to offer. I 15:39:35 24 offer them because the Court allowed Dr. Mann to testify over 15:39:35 25 my objection that it was not in his Rule 26 report about 1934 15:39:35 1 testing. There was nothing in his Rule 26 that said, "I 15:39:35 2 think they have adequately tested," and yet he went on and on 15:39:35 3 about the testing that has been done and creating the 15:39:35 4 impression that they have done adequate testing. 15:39:35 5 So what these excerpts go to, and there's only three 15:39:35 6 or four excerpts from his testimony, is his frank admissions 15:39:35 7 that they've never done any prospective testing. So that's 15:39:35 8 why it is there. 15:39:35 9 THE COURT: Let me interrupt there. Do either 15:39:35 10 counsel have any authority for me one way or the other about 15:39:35 11 the allowance of calling an expert -- a witness who has 15:39:35 12 testified in person at a trial as a rebuttal witness through 15:39:35 13 deposition testimony where that witness has been permanently 15:39:35 14 excused from further attendance? 15:39:35 15 MR. VICKERY: I think Mr. Fitzgerald will probably 15:39:35 16 find it. I think what he's going to find, Your Honor, is the 15:39:35 17 rule authorizing use of deposition where it is a party 15:39:35 18 witness, 30(b)(6) witness, which Dr. Wheadon was in any 15:39:35 19 circumstance. 15:39:35 20 So I think the decision whether to allow the rebuttal 15:39:35 21 at all is clearly a discretionary one. Whether it is live or 15:39:35 22 by deposition, though, I think the rule makes abundantly 15:39:35 23 clear that you can use a deposition. 15:39:35 24 THE COURT: Why don't you talk about something else 15:39:35 25 while Mr. Fitzgerald looks for that? 1935 15:39:35 1 MR. VICKERY: All right. The second -- 15:39:35 2 MR. PREUSS: May I comment on Dr. Wheadon, Your 15:39:35 3 Honor? I mean, Dr. Wheadon was here for a full day. That 15:39:35 4 was a subject that Mr. Vickery had foremost in his mind from 15:39:35 5 day one. He had ample opportunity to deal with that issue at 15:39:35 6 that time and Dr. Mann didn't add anything new to the 15:39:35 7 ingredient. 15:39:49 8 MR. VICKERY: He did in my judgment, Judge, because, 15:39:49 9 you know, they're the ones that scheduled when they wanted 15:39:49 10 Dr. Wheadon in and when they wanted Dr. Mann in. I didn't 15:39:49 11 have any control over that. I had no subpoena. And I'm sure 15:39:49 12 the Court would recall vividly from the pretrial, I wanted to 15:39:49 13 begin my case with Dr. Wheadon and thought I had a deal with 15:39:49 14 Mr. Zvoleff to do it. They had Dr. Wheadon in and out before 15:39:49 15 Dr. Mann came in. When the Court allowed Dr. Mann to testify 15:39:49 16 about testing over my objection, that's what precipitated it. 15:39:49 17 It is five minutes of testimony. 15:39:49 18 MR. PREUSS: With respect to that, the offer of proof 15:39:49 19 is still the same. He wanted Dr. Wheadon as the first 15:39:49 20 witness and he definitely got him before Dr. Mann, so I'm not 15:39:49 21 sure I understand the logic of that argument. 15:39:49 22 MR. GORMAN: Before we go on, I think you need to 15:39:49 23 take a look at the testimony designated. Andy says it talks 15:39:49 24 about testing. He talks about on page 159, "Do you recognize 15:39:49 25 this document?" 1936 15:39:49 1 "It is a trip report concerning my visits with 15:39:49 2 several European consultants during my employment with 15:39:49 3 Lilly." 15:39:49 4 "Who wrote it?" 15:39:49 5 "It is over my name." 15:39:49 6 "What does it mean?" 15:39:49 7 That stuff was in there and you cross-examined 15:39:49 8 Dr. Wheadon for three hours about that. 15:39:49 9 MR. VICKERY: That's true. The only reason I put 15:39:49 10 that in here -- and I'll be glad to take that out. I was 15:39:49 11 trying to put that part into context. 15:39:49 12 MR. GORMAN: Well, then you go over again to the 15:39:49 13 issue of the Beck scale, the scale you put on the board. I 15:39:49 14 don't know what page of the document it is on but it is two 15:39:49 15 pages after the European visit and we go into another 15:39:49 16 discussion about Beck and HAM-D which we had about two and a 15:39:49 17 half hours on, and the MADRS, Montgomery-Asburg Depression 15:39:49 18 Rating Scale. 15:39:49 19 I think if the Court takes a look at what Andy is 15:39:49 20 proposing, it is nothing new and is stuff that he covered in 15:39:49 21 considerable detail during Dr. Wheadon's four hours of cross. 15:39:49 22 THE COURT: Where is the testimony about testing? 15:39:49 23 MR. VICKERY: Volume 1, page 42, the first page of 15:39:49 24 this document, neither of these companies ever done 15:39:49 25 randomized control, I'm not aware of such, none. 1937 15:39:49 1 The next excerpt from page 44 of his deposition, have 15:39:49 2 you ever seen the protocol drafted? I've not seen one. 15:40:07 3 It would suit me, then, to just skip from there to -- 15:40:07 4 all the way over to page 160, the third page over from there 15:40:07 5 where it says, "Okay, now we've already established that 15:40:07 6 neither Lilly nor SmithKline has ever done a prospective 15:40:07 7 study," and from there until -- the three questions and 15:40:07 8 answers, I would be glad to stop after that. I was trying to 15:40:07 9 put them in -- 15:40:07 10 THE COURT: What three questions and answers? 15:40:07 11 MR. VICKERY: Three questions and answers would be -- 15:40:07 12 THE COURT: We're on page 160? 15:40:07 13 MR. VICKERY: Page 160, that question and then the 15:40:07 14 answer on line 4 of 161, question on line 5 and question on 15:40:07 15 line 10 and the answers, so stopping at line 13 on 161. 15:40:07 16 THE COURT: Wait a minute. Go back to 160. What 15:40:07 17 line of the question? 15:40:07 18 MR. VICKERY: Starting on line 22. 15:40:07 19 THE COURT: Okay. 15:40:07 20 MR. VICKERY: Down to 13; 161, 13. 15:40:07 21 THE COURT: All right. 15:40:07 22 MR. VICKERY: And then finally, Judge, just drop down 15:40:07 23 to Volume II, page 436, question starting on line 25 through 15:40:07 24 line 20 on the next page. That's all I really need. 15:40:07 25 MR. GORMAN: My comments to that would be this. If 1938 15:40:07 1 we asked our court reporter to search her record from 15:40:07 2 Dr. Wheadon's testimony, all of this stuff was read in, 15:40:07 3 talked about, discussed with Dr. Wheadon during his 15:40:07 4 cross-examination, every page, line number of this was the 15:40:07 5 subject of cross-examination. 15:40:07 6 MR. PREUSS: It certainly was. 15:40:07 7 MR. GORMAN: It is absolutely nothing new and is 15:40:07 8 certainly not proper rebuttal. 15:40:07 9 THE COURT: Well, if it is nothing new, it isn't 15:40:07 10 rebuttal, is it? 15:40:07 11 MR. VICKERY: If it is nothing new, it is not 15:40:07 12 rebuttal. I don't believe this was covered this way. You 15:40:07 13 know, Dr. Wheadon did not give me the sort of succinct 15:40:07 14 answers on the witness stand that he gave in his deposition. 15:40:07 15 THE COURT: Let me say this, I don't think we've had 15:40:07 16 one psychologist, psychiatrist, expert that gave a direct 15:40:07 17 answer to anything, whether they testified for the plaintiff 15:40:07 18 or defendant. I've never seen a group of people testify like 15:40:07 19 that in my life. That's interesting. 15:40:07 20 MR. FITZGERALD: The rule is Rule 32, Your Honor, and 15:40:07 21 it says that at the trial -- I'll paraphrase -- so far -- at 15:40:07 22 the trial a party may read any part or all of a deposition so 15:40:07 23 far as admissible under the rules of evidence applied as 15:40:07 24 though the witness were then present and testifying. 15:40:07 25 And it says specifically -- that was 32(a). As to 1939 15:40:21 1 32(a)(2), it says specifically the deposition of anyone who 15:40:21 2 at the time of taking of the deposition was an officer of the 15:40:21 3 corporation may be used by an adverse party for any purpose. 15:40:21 4 And I borrowed your rule book. It is 32 here. 15:40:21 5 MR. GORMAN: I think that's true if those people 15:40:21 6 aren't there to testify live, and this man was here live. 15:40:21 7 THE COURT: There's two issues with regard to calling 15:40:21 8 Dr. Wheadon's testimony by deposition in rebuttal. Number 15:40:21 9 one, is it really proper when he was here as a live witness? 15:40:21 10 And my understanding -- and I'm not the most experienced 15:40:21 11 judge in the world, but I have some and I always thought that 15:40:21 12 when a witness testifies live, that does away with the 15:40:21 13 deposition other than to refresh recollection or for 15:40:21 14 impeachment purposes. And this man was ultimately excused 15:40:21 15 permanently, even though he was a 30(b)(6) witness. 15:40:21 16 Secondly, we have an issue here of whether this is 15:40:21 17 redundant testimony which rebuttal is not supposed to be. 15:40:21 18 Rebuttal evidence is supposed to be something new or 15:40:21 19 relatively new. 15:40:21 20 So we have two issues with regard to this particular 15:40:21 21 matter. I have heard all of your arguments on this and I 15:40:21 22 don't think it is helpful one way or the other. With the 15:40:21 23 limitations we have, I'm going to allow you to do this. It 15:40:21 24 may be a mistake, but I don't think it is one of that much 15:40:21 25 import in my view. 1940 15:40:21 1 Now, when you interview the juries with the exit 15:40:21 2 questionnaires and they say, "By God, we did this because we 15:40:21 3 remember what Dr. Wheadon said on rebuttal," then I guess you 15:40:21 4 have me to blame and you have another issue for the 15:40:21 5 obligatory appeal. My sense and my judgment at this point is 15:40:21 6 to allow this very limited amount of testimony that 15:40:21 7 Mr. Vickery has identified for us here today to go forward as 15:40:21 8 rebuttal testimony, and that's it. 15:40:21 9 MR. VICKERY: Thank you, Your Honor. I appreciate 15:40:21 10 that. 15:40:21 11 The other issue is with regard to Dr. Maltsberger, 15:40:21 12 and I would like to call him on rebuttal for two reasons. 15:40:21 13 One is to respond to the testimony of both Dr. Wang and 15:40:21 14 Dr. Mann regarding the consequences of giving a warning. 15:40:21 15 Now, neither of their reports really talked about 15:40:21 16 this, but it has been a defensive theme that's been developed 15:40:21 17 in the trial that oh, if you have a warning when it is not 15:40:37 18 warranted, people will be committing suicide because they 15:40:37 19 won't be getting this life-saving medication. I want to call 15:40:37 20 Mr. Maltsberger to ask him about that issue. 15:40:37 21 The second issue is just to respond very briefly to 15:40:37 22 the testimony of Dr. Merrell regarding the significance of 15:40:37 23 Don Schell's history of depression. 15:40:37 24 Mr. Gorman says, "Well, you know, you had our reports 15:40:37 25 and we had yours." The problem, of course, is when the 1941 15:40:37 1 Rule 26 reports are sequenced in the way that they were and 15:40:37 2 they, in effect, are cast in stone, the plaintiffs' are cast 15:40:37 3 in stone first, then the defendants give us theirs, and so 15:40:37 4 every time that I tried to really address something that I 15:40:37 5 anticipated that was in their Rule 26 reports I got an 15:40:37 6 objection, "Well, that's not in your Rule 26 reports," and 15:40:37 7 the Court sustained it. 15:40:37 8 The only way for a plaintiff to ever come in and 15:40:37 9 respond when they don't even get the expert reports from the 15:40:37 10 defendant until theirs are set in stone is to ask the Court, 15:40:37 11 "I need to supplement my Rule 26 again so I can do this in my 15:40:37 12 case-in-chief," and it would be a never-ending process. The 15:40:37 13 whole reason that the law gives us a right to put any 15:40:37 14 rebuttal testimony on is the law imposes upon us the burden 15:40:37 15 of proof. 15:40:37 16 I don't anticipate it is more than ten minutes of 15:40:37 17 testimony from Dr. Maltsberger. And those are the two 15:40:37 18 issues. 15:40:37 19 THE COURT: Mr. Gorman. 15:40:37 20 MR. GORMAN: Our position is, again, Judge -- and the 15:40:37 21 way this sequence is, naturally plaintiffs give the expert 15:40:37 22 witness reports. Defendants depose the plaintiffs' expert 15:40:37 23 witnesses. Defendants give their expert witness reports and 15:40:37 24 the plaintiffs depose the defense experts. The process was 15:40:37 25 followed through the defendants giving their reports that 1942 15:40:37 1 talked about the warning issue. Dr. Mann's Rule 26 properly 15:40:37 2 did discuss the warning issue and the terrible impact such a 15:40:37 3 warning like Dr. Maltsberger's would have on Paxil usage in 15:40:37 4 this country. 15:40:37 5 For whatever reason, Andy chose not to depose any of 15:40:37 6 our experts other than a very brief deposition of Mr. Mann. 15:40:37 7 Didn't depose Dr. Merrell, didn't depose Dr. Wang. And so to 15:40:37 8 cry foul, that well, I didn't have any reason to supplement 15:40:37 9 or to know about these things I think falls on deaf ears. 15:40:37 10 I think again the materials or the reasons that he 15:40:37 11 wants to talk to Dr. Maltsberger about are nothing new. They 15:40:51 12 have been in the reports and they were testified to and I 15:40:51 13 think it is material that has been on the table since day one 15:40:51 14 and should have been in his case-in-chief. 15:40:51 15 THE COURT: Counsel, I don't have as much problem 15:40:51 16 with Dr. Maltsberger's testimony as I did with the deposition 15:40:51 17 testimony of Dr. Wheadon. I think that under the 15:40:51 18 circumstances, in a limited way, so long as we don't get 15:40:51 19 repetitive and not trying to remake a point again because you 15:40:51 20 had five witnesses that refuted things that have been put on 15:40:51 21 before -- that's not the purpose of rebuttal -- so long as 15:40:51 22 we're not getting into that. You're going to touch on it a 15:40:51 23 little bit, but I don't think enough to make it improper to 15:40:51 24 recall Dr. Maltsberger. 15:40:51 25 And since he is the expert who testified in chief and 1943 15:40:51 1 not anybody new, I think it is going to be all right, so long 15:40:51 2 as it stays limited like we're talking about. If I find it 15:40:51 3 is continuing to go over subject matters over and over again, 15:40:51 4 I will get an objection and I'll sustain it. 15:40:51 5 MR. VICKERY: I understand. Thank you, Your Honor. 15:40:51 6 THE COURT: I'm going to give the plaintiff every 15:40:51 7 opportunity as I think I can in my discretion to try their 15:40:51 8 case because they have to carry the burden. 15:40:51 9 MR. VICKERY: Appreciate that. 15:40:51 10 THE COURT: And I've mostly done that with some 15:40:51 11 things here and there where I thought they were going too 15:40:51 12 far. 15:40:51 13 MR. VICKERY: Thank you, Your Honor. 15:40:51 14 MR. GORMAN: Thank you, Judge. 15:40:51 15 MR. VICKERY: Your Honor, we would ask the Court to 15:40:51 16 take judicial notice of vital statistics of the United 15:40:51 17 States. Specifically, the Wyoming jury instruction and this 15:40:51 18 Court's draft instruction number 50 that was provided to us 15:40:51 19 earlier today contemplates the introduction of mortality 15:40:51 20 tables. 15:40:51 21 The simplest way to do it, we have the most recent 15:40:51 22 ones which are the 1990 ones and for a white male aged 60, 15:40:51 23 which Don Schell was, the life expectancy is 19.1 years. And 15:40:51 24 for a white female aged 55, which Rita Schell was, the life 15:40:51 25 expectancy is 27.5 years. Rather than put this into 1944 15:40:51 1 evidence, we would ask the Court to take judicial notice of 15:40:51 2 it and incorporate those numbers into number 50. 15:40:51 3 THE COURT: I anticipated that. 15:40:51 4 MR. GORMAN: I don't think -- I think we can work out 15:40:51 5 the appropriate mortality numbers. 15:40:51 6 THE COURT: And you're still going to call Mr. Tobin? 15:40:51 7 MR. VICKERY: No, I am. 15:40:51 8 THE COURT: You dropped both Mrs. Hardy and 15:40:51 9 Mr. Tobin? 15:40:51 10 MR. VICKERY: Right. Just Dr. Maltsberger and these 15:41:08 11 two short sequences from Wheadon and we're done. 15:41:08 12 MR. FITZGERALD: Closing argument time. 15:41:08 13 MR. GORMAN: We have 22 hours left, Judge. 15:41:08 14 THE COURT: We do. If you all can talk that long and 15:41:08 15 you can get juror number one to stay awake longer than a 15:41:08 16 nannosecond, go for it. 15:41:08 17 In all seriousness, I am open to reasonable 15:41:08 18 suggestions by counsel. 15:41:08 19 MR. GORMAN: We were thinking max hour and a half, 15:41:08 20 maybe. 15:41:08 21 THE COURT: Per side? Let the plaintiff carve out as 15:41:08 22 much of that as they want for rebuttal? 15:41:08 23 MR. GORMAN: Yes. 15:41:08 24 THE COURT: I don't think that's unreasonable on a 15:41:08 25 trial that took this long. 1945 15:41:08 1 MR. VICKERY: Suits me. 15:41:08 2 THE COURT: Don't have to use it all. 15:41:08 3 MR. VICKERY: Your Honor, I assume in closing 15:41:08 4 arguments, but I want to clear it first with the Court, where 15:41:08 5 there have been things like -- some of us have daily 15:41:08 6 transcripts and I'm sure there will be blowups from the court 15:41:08 7 reporter's transcripts of that. The video depositions, 15:41:08 8 though, will the Court permit me to play a short segment of 15:41:08 9 those in the closing arguments? 15:41:08 10 THE COURT: I don't think so. If you want to put up 15:41:08 11 the written testimony, that's fine, but that's almost like 15:41:08 12 recalling a witness so I'm not in favor of that. I didn't 15:41:08 13 hear any objection from the defendant, but it is -- here's my 15:41:08 14 discretion again: I don't think I like that. 15:41:08 15 MR. VICKERY: Well, I wanted to clear it. I didn't 15:41:08 16 want to start doing it in front of the jury. 15:41:08 17 THE COURT: It is one thing to put up the testimony. 15:41:08 18 It is another one to have them there testifying again, so to 15:41:08 19 speak. It is almost like recalling them: And now during my 15:41:08 20 closing I want you to hear again from Dr. Maltsberger. 15:41:08 21 MR. VICKERY: Fair enough. We're ready. 15:41:08 22 MR. FITZGERALD: I have a logistical question. I 15:41:08 23 don't ask necessarily that it be on the record, I just want 15:41:08 24 to talk about tomorrow's schedule and today's schedule, 15:41:08 25 frankly, and find out when we're going to argue. That's the 1946 15:41:08 1 real question. 15:41:08 2 THE COURT: Well, at this point I was contemplating 15:41:08 3 an instruction conference now first thing in the morning. By 15:41:08 4 the time we're done with that, if you can give me some idea 15:41:08 5 if we could -- I have to sign a search warrant at 8:30 but as 15:41:08 6 soon after that as possible, and I was telling the security 15:41:08 7 people at noon today that whenever we're done with the 15:41:08 8 conference, if we can get a pretty good idea when to get the 15:41:08 9 jury back here, 10:00 or 11:00 and start then, or we could 15:41:08 10 start at 1:15 just automatically. 15:41:22 11 MR. VICKERY: Judge, could we not have the charge 15:41:22 12 conference at 4:30 today so we could bring the jury in in the 15:41:22 13 morning ready to go? 15:41:22 14 THE COURT: Well, I have a court reporter to 15:41:22 15 consider. Whether she's capable of doing that -- and I don't 15:41:22 16 know what kind of an instruction conference we're going to 15:41:22 17 have. If it is going to be one where we're going to dissect 15:41:22 18 every word like I've been involved in before, or there will 15:41:22 19 be four or five instructions or parts of instructions where 15:41:22 20 each side has a problem and we're going to go over those, 15:41:22 21 that's one thing. But if we're going to get into huge 15:41:22 22 arguments over theories and claims and things like that, then 15:41:22 23 I don't think we can do that tonight. 15:41:22 24 MR. GORMAN: Well, I have not even had a chance to 15:41:22 25 look at the instructions yet, Your Honor, so I would 1947 15:41:22 1 appreciate tomorrow morning. 15:41:22 2 MR. FITZGERALD: We did meet. We spent the time 15:41:22 3 while you were taking care of other business talking about 15:41:22 4 the instructions and met with the defense counsel, so we're 15:41:22 5 going to do our best to get through them and know where the 15:41:22 6 disputes are. We've actually reached an agreement on a 15:41:22 7 couple of them. 15:41:22 8 THE COURT: The one thing I want you to concentrate 15:41:22 9 on is the verdict form. I want you to be sure that, you 15:41:22 10 know -- I want to be sure that we don't have a chance for any 15:41:22 11 inconsistent verdict. I don't think so, the way it is 15:41:22 12 written up, but take another look at that, all of you 15:41:22 13 together, and kind of come to a conclusion on that as it is 15:41:22 14 written now because it took some time to figure that out. 15:41:22 15 Well, here's the thing then, what I need to know is 15:41:22 16 when to tell the jury to be back. We will have the 15:41:22 17 instruction conference soon after 8:30 and it will take 10 or 15:41:22 18 15 minutes to do the search warrant. 15:41:22 19 Want to call them back at 1:15 or have a lunch break 15:41:22 20 to interrupt them? 15:41:22 21 MR. VICKERY: 1:15. 15:41:22 22 MR. GORMAN: I'm only concerned about 1:15, an hour 15:41:22 23 and a half, that's three hours. 15:41:22 24 MR. FITZGERALD: Be 3:15. 15:41:22 25 THE COURT: No, it won't, 4:15. They will get the 1948 15:41:22 1 case about 5:30, 5:00, 5:30. I read these kind of slow, so 15:41:22 2 it will be 5:00, 5:30 and then I'll have to let them go home. 15:41:22 3 MR. GORMAN: So they wouldn't perhaps start 15:41:22 4 deliberating until Wednesday. 15:41:22 5 THE COURT: I can ask them if they want to start 15:41:37 6 deliberating and offer them dinner, but I don't know as I 15:41:37 7 want to do that. 15:41:37 8 MR. GORMAN: We can do that. 15:41:37 9 THE COURT: The only way to avoid that is get the 15:41:37 10 instructions out earlier. I'm not going to rush you on that 15:41:37 11 since I know you didn't get them until the noon hour. We're 15:41:37 12 in trial still, although you have lots of resources to look 15:41:37 13 over the instructions. 15:41:37 14 MR. GORMAN: I haven't had a chance to look at them. 15:41:37 15 THE COURT: Let's do it that way. I think it is 15:41:37 16 easiest for everybody. I'm not particularly pleased with 15:41:37 17 giving the jury the case and sending them home immediately 15:41:37 18 unless we delay into Wednesday, and that's just not 15:41:37 19 appropriate. 15:41:37 20 MR. GORMAN: One scheduling problem, so the Court is 15:41:37 21 aware, I'm probably not going to be here Wednesday, but that 15:41:37 22 is just when the jury is deliberating. 15:41:37 23 THE COURT: You're gone for the rest of the week? 15:41:37 24 That's what I thought. You said something about that before. 15:41:37 25 MR. GORMAN: I will talk to -- I am going to my son's 1949 15:41:37 1 graduation. 15:41:37 2 THE COURT: I don't think it is fair, you give up the 15:41:37 3 ship for something like that. 15:41:37 4 MR. GORMAN: I think that's what Chuck is saying he 15:41:37 5 wants to talk to me about. 15:41:37 6 THE COURT: Very well. Anything else while -- 15:41:37 7 MR. VICKERY: No, sir, we're ready to go. 15:41:37 8 THE COURT: Can we get this done tonight? 15:41:37 9 MR. GORMAN: I got a very short redirect. I 15:41:37 10 apologize. I could have gotten it done. 15:41:37 11 THE COURT: We could have gotten it done and saved 15:41:37 12 you another $700. 15:41:37 13 (Recess taken 3:35 p.m. until 3:40 p.m.) 15:41:37 14 THE COURT: Ladies and gentlemen, it has to do with 15:41:37 15 my fault and my poor scheduling that we've lost some time 15:41:37 16 here. The attorneys are ready to go to work and we'll 15:41:37 17 proceed. 15:41:37 18 Do you have redirect, Mr. Gorman? 15:41:37 19 MR. GORMAN: I do, very briefly, Your Honor. 20 REDIRECT EXAMINATION 15:41:37 21 Q. (BY MR. GORMAN) Dr. Merrell, Mr. Vickery talked to you 15:41:37 22 about the 41 cases that you have worked on. Remember that 15:41:37 23 discussion you had with Mr. Vickery? 15:41:37 24 A. Yes. Was that 41 in five years is what he's saying? 15:41:37 25 Q. He said 41 in four years. There aren't 41 cases in four 1950 15:41:37 1 years, I don't believe, are there? 15:41:37 2 A. I probably have evaluated that many patients in the four 15:41:37 3 years. 15:41:37 4 Q. Tell me what those cases were about. Were they a case 15:41:37 5 like this where you come into court and testify or were there 15:41:37 6 other activities on your part? 15:41:37 7 A. Most of those have been evaluations that have been settled 15:41:37 8 out of court. The last time I think I was actually in court 15:41:50 9 was quite a while back. It has been months, maybe six months 15:41:50 10 or a year even. 15:41:50 11 Q. How many times a year do you testify, actually come into a 15:41:50 12 court like this and talk to the ladies and gentlemen like 15:41:50 13 these folks? 15:41:50 14 A. I don't know, maybe twice a year, three times a year at 15:41:50 15 the most. 15:41:50 16 Q. Mr. Vickery also talked to you a lot about your 15:41:50 17 compensation? 15:41:50 18 A. True. 15:41:50 19 Q. You said $350 an hour. You told these folks last Friday 15:41:50 20 that you were the medical director for Southeast Wyoming 15:41:50 21 Mental Health services, true? 15:41:50 22 A. That's correct. 15:41:50 23 Q. Tell the ladies and gentlemen of the jury how you charge 15:41:50 24 for patients for those services. 15:41:50 25 A. I am on salary at the mental health center. I've been on 1951 15:41:50 1 salary for the last 27 years with them, stayed with them. 15:41:50 2 You know, that's a nonprofit firm. The fees there are based 15:41:50 3 from ability to pay down to zero. I see a lot of patients 15:41:50 4 that don't pay me anything. And furthermore, I give them 15:41:50 5 free medication, so there is no problem in people getting 15:41:50 6 treatment. If they need treatment, they get treatment. 15:41:50 7 Q. Whether or not they can pay? 15:41:50 8 A. Whether or not they can pay. That's immaterial. 15:41:56 9 Q. We talked about Defendant's Exhibit 00, your depression -- 15:41:56 10 baseline depression chart. And Mr. Vickery had you write, 15:42:03 11 "Compliant," and, "Good therapeutic alliance," on that chart. 15:42:12 12 Do you see that? 15:42:13 13 A. Yes. 15:42:13 14 Q. Let me ask you this. If Mr. Schell had remained compliant 15:42:18 15 and maintained a good therapeutic alliance after the time he 15:42:22 16 saw Dr. Suhany, do you believe we would be here today? 15:42:30 17 A. No. 15:42:32 18 Q. Now, Mr. Vickery pointed out that Dr. Suhany left Gillette 15:42:37 19 in early '91. 15:42:41 20 A. Early '91. 15:42:42 21 Q. Dr. Buchanan -- was Dr. Buchanan still in Gillette? 15:42:47 22 A. Yes. Dr. Buchanan is still there, to my knowledge. 15:42:51 23 Q. Still practices psychiatry today? 15:42:54 24 A. To my knowledge, yes. 15:42:54 25 Q. Is Paxil a safe medicine? 1952 15:42:56 1 A. Yes. 15:42:58 2 Q. Is Paxil an effective medicine for treating major 15:43:01 3 depression? 15:43:02 4 A. Very effective. 15:43:04 5 Q. Does Paxil save lives? 15:43:14 6 A. Yes, not only lives in terms of morbidity and functioning, 15:43:17 7 it is a day-to-day medicine I use. It is very helpful to a 15:43:21 8 lot of patients. 15:43:21 9 Q. Did Paxil cause these tragic events? 15:43:24 10 A. No. 15:43:25 11 MR. GORMAN: Your Honor, nothing further for 15:43:26 12 Dr. Merrell. Thank you, Dr. Merrell. 15:43:30 13 THE COURT: Anything else for this witness? 15:43:33 14 MR. VICKERY: No, Your Honor. 15:43:34 15 THE COURT: May be he permanently excused? 15:43:38 16 MR. VICKERY: Yes. 15:43:38 17 MR. GORMAN: We would request so. 15:43:40 18 THE COURT: Thank you, Dr. Merrell. You're 15:43:41 19 permanently excused from further attendance at this trial. 15:43:46 20 MR. GORMAN: May we have just a moment, Your Honor? 15:43:50 21 THE COURT: Yes, you may. 15:43:54 22 MR. PREUSS: Defendant will rest at this time, 15:43:55 23 subject to making sure we have the same list of exhibits as 15:43:58 24 the clerk does. 15:44:00 25 THE COURT: Very well. The defendant rests. 1953 15:44:03 1 I would like to see one counsel each up at the bench. 15:44:08 2 I don't need the court reporter. And also Mr. Mathes, my law 15:44:13 3 clerk, please. 15:44:14 4 (Discussion out of the hearing 15:44:16 5 of the reporter and the jury.) 15:45:33 6 THE COURT: Ladies and gentlemen, the defendant has 15:45:34 7 rested its case. Under the law the plaintiff has the burden 15:45:39 8 of proof, and therefore, they're entitled under the law to 15:45:41 9 present rebuttal evidence. 15:45:44 10 And I'm going to make that offer to Mr. Vickery, if 15:45:46 11 he wishes to offer any rebuttal evidence. 15:45:49 12 MR. VICKERY: I do, Your Honor, two very short items, 15:45:51 13 as discussed with the Court in chambers. 15:45:54 14 First, we would make an offer from the deposition 15:45:56 15 testimony of Dr. David Wheadon, vice-president of SmithKline 15:46:09 16 Beecham. Mr. Fitzgerald, if you would be so kind as to read 15:46:13 17 the answers. 15:46:18 18 From Volume I, page 42: "So neither of these 15:46:22 19 companies, to your knowledge, has ever conducted a 15:46:24 20 prospective, randomized control trial to determine whether or 15:46:29 21 not those drugs cause some patients to become violent or 15:46:32 22 suicidal, is that true? 15:46:34 23 "I'm not aware of such, no." 15:46:42 24 MR. VICKERY: Stopping line 24, picking up page 160, 15:46:44 25 line 22. 1954 15:46:52 1 "Okay, now. We've already established that neither 15:46:54 2 Eli Lilly nor SmithKline Beecham has ever done a prospective 15:46:58 3 study to specifically measure the potential relationship 15:47:01 4 between their drug and suicidal ideation as a primary outcome 15:47:06 5 of measure, right? 15:47:08 6 "That is correct. 15:47:09 7 "Have either of them, to your knowledge, ever done a 15:47:11 8 large-scale epidemiological study focusing on that? 15:47:16 9 "I can only speak for SmithKline in terms of the 15:47:19 10 recent situation. 15:47:20 11 "Has SmithKline ever, to your knowledge, done a 15:47:22 12 large-scale epidemiological study to look at that issue? 15:47:27 13 Not that I am aware of, no." 15:47:30 14 MR. VICKERY: Stopping 161, line 13. 15:47:37 15 And finally, picking up at page 436 on line 25. 15:47:40 16 "All right. Do you agree that the best way or the 15:47:44 17 most definitive assessment of this issue of a potential 15:47:47 18 relationship between fluoxetine treatment and suicidal 15:47:51 19 ideation and/or behavior would be an assessment of the 15:47:54 20 potential relationship by some sort of prospective study? 15:47:59 21 "Would you read the answer you gave there, please? 15:48:02 22 "I agree that the most definitive assessment of the 15:48:05 23 question is a prospective study." 15:48:10 24 "Was that testimony truthful when you gave it? 15:48:13 25 "At the time I gave it, that is correct. 1955 15:48:14 1 "And is it truthful today? 15:48:18 2 "The most definitive assessment is a prospective 15:48:20 3 study. 15:48:22 4 "Which SmithKline Beecham has never done? 15:48:24 5 "We have not done a prospective study, that is 15:48:28 6 correct." 15:48:29 7 MR. VICKERY: Stopping on line 20, and that concludes 15:48:31 8 the offer from that deposition, Your Honor. 15:48:33 9 THE COURT: Thank you very much. 15:48:33 10 MR. VICKERY: We would call Dr. Terry Maltsberger to 15:48:37 11 the stand. 15:48:52 12 THE COURT: I don't remember if we permanently 15:48:54 13 excused Dr. Maltsberger. To be on the safe side, I would ask 15:48:58 14 the clerk to swear him again. 15 16 TERRY MALTSBERGER, M.D., 17 called as a witness on behalf of the Plaintiffs, being first 18 duly sworn, testified as follows: 19 REBUTTAL EXAMINATION 15:49:16 20 Q. (BY MR. VICKERY) Good afternoon, sir. 15:49:17 21 A. Mr. Vickery. 15:49:18 22 Q. I just have a couple of things to ask you, 15:49:20 23 Dr. Maltsberger. 15:49:21 24 The jury has heard testimony from Dr. Wang and from 15:49:25 25 Dr. Mann about what they said would be the consequences of 1956 15:49:32 1 giving your warning or some similar warning. 15:49:36 2 Can you tell us, in your opinion what would be the 15:49:38 3 consequences to patient care in this country if such a 15:49:41 4 warning were given? 15:49:43 5 A. I think that patient care would be considerably improved. 15:49:48 6 The argument has been made if this warning were put on that 15:49:53 7 it would so frighten the doctors and so frighten the patients 15:49:57 8 that nobody would want to take SSRI compounds, including 15:50:01 9 Paxil, and as a result of that, there would be unnecessary 15:50:05 10 suicides. 15:50:06 11 I think that the medical profession in this country 15:50:09 12 is very well aware for the vast majority of patients Paxil 15:50:17 13 and other drugs like it are valuable and worthwhile. 15:50:23 14 The problem is that for a small subpopulation they're 15:50:26 15 terrible. Putting a warning on will alert doctors so that, 15:50:33 16 in Dr. Merrell's language, the families could be empowered to 15:50:37 17 work better with the doctors to watch out for bad side 15:50:40 18 effects. 15:50:44 19 Q. Okay. Thank you. 15:50:44 20 Let me ask you about Dr. Merrell. You have been here 15:50:47 21 for his testimony yesterday and today, correct? 15:50:50 22 A. That's right. 15:50:50 23 Q. And just give us, if you would, your impression about Don 15:50:56 24 Schell vis-a-vis the significance of this history of 15:51:02 25 depression that he had. 1957 15:51:03 1 I mean, was he at risk for the kind of violent and 15:51:06 2 suicidal behavior that we have seen here before he got the 15:51:10 3 Paxil? 15:51:23 4 A. In all honesty I don't think so. I think that Dr. Merrell 15:51:23 5 is correct that he had a so-called major depressive episode 15:51:26 6 or series of recurrent episodes, but of not very great 15:51:30 7 severity. 15:51:32 8 They were mild to moderate in severity. And as I 15:51:39 9 said to the jury and to His Honor before, never in my 40 15:51:45 10 years of experience have I ever seen a patient who was 60 15:51:52 11 years old who had this kind of depression but who never 15:51:58 12 before had had a psychotic blowout, who had never before been 15:52:06 13 violent or aggressive suddenly out of the blue go berserk. 15:52:11 14 I am strongly of the opinion that Paxil triggered -- 15:52:17 15 MR. PREUSS: Your Honor, I will object. This is 15:52:18 16 repetitious of his prior testimony. 15:52:20 17 THE COURT: Let him finish this question and we'll 15:52:23 18 move on to something else. 15:52:24 19 A. I'm strongly of the opinion that the Paxil was the match 15:52:28 20 that set this thing on fire. 15:52:32 21 MR. VICKERY: Thank you, Dr. Maltsberger. 15:52:33 22 I pass the witness. 15:52:39 23 THE COURT: Mr. Preuss. 24 CROSS-EXAMINATION 15:52:41 25 Q. (BY MR. PREUSS) Dr. Maltsberger, you're aware that the 1958 15:52:43 1 suicidality labeling has been constant since 1991? 15:52:47 2 A. I will take your word for it. 15:52:48 3 Q. And you're aware that the FDA advisory committee addressed 15:52:52 4 the issue at that time when the ACNP task force issued their 15:52:59 5 report and at or about that time in 1991 that the FDA 15:53:03 6 advisory committee approved the warning at that time? 15:53:07 7 A. Well, I heard Dr. Mann's testimony and he said, if I 15:53:13 8 understood him correctly, that their recommendation was based 15:53:18 9 on tables, not on an inspection of the raw data, which showed 15:53:26 10 psychosis, which showed hallucinations, which showed suicide 15:53:31 11 attempts, all by the SmithKline Beecham personnel said to be 15:53:37 12 directly related. But the FDA recommendation by Dr. Mann and 15:53:44 13 colleagues, they didn't see the raw data, Mr. Preuss. 15:53:56 14 Q. My question was, Dr. Maltsberger, you're aware that the 15:53:56 15 labeling was approved by the FDA advisory committee in 1991 15:53:56 16 and has remained constant since that time? 15:53:58 17 A. Yes, I'm aware of that. 15:54:00 18 Q. And you're aware that the data provided on Paxil showed 15:54:04 19 less risk of suicide, suicidal thoughts with Paxil than 15:54:09 20 against the placebo that was reported in that task force 15:54:13 21 report? 15:54:13 22 A. Yes, I believe that for most people Paxil is a good drug. 15:54:17 23 Q. And you're aware that since 1992 that there have been a 15:54:20 24 number of studies discussed both by Dr. Wang and by Dr. Mann 15:54:24 25 in this courtroom, correct? 1959 15:54:26 1 A. Yes. 15:54:26 2 Q. And you would certainly want any label that you look up in 15:54:31 3 the PDR to be based on sound science, would you not, Doctor? 15:54:36 4 A. Let me answer this. I can't give you an answer. But 15:54:39 5 there are two kinds of scientific community. Now, one kind 15:54:42 6 is the scientific community represented by researchers, 15:54:46 7 epidemiologists, people who have degrees in public health. I 15:54:53 8 have the greatest of respect for these people. 15:54:56 9 And this group of people is a scientific community 15:54:59 10 and they say that without randomized, double-blind, 15:55:04 11 placebo-control trials there is no evidence that these things 15:55:09 12 are harmful, these SSRI drugs. 15:55:13 13 Now, there's another scientific community. It is 15:55:16 14 doctors like me -- 15:55:20 15 Q. And Dr. Merrell? 15:55:21 16 A. -- and Dr. Merrell, we have the responsibility for 15:55:25 17 treating these people and we have the right to full 15:55:27 18 information so that we can make our own minds up about the 15:55:30 19 risks and the benefits of these drugs. We're not getting 15:55:35 20 that information as it is now. 15:55:38 21 Q. And if the science indicates that there is no suicidality 15:55:43 22 or homicidal behavior with Paxil, would you want that to be 15:55:49 23 in the label nevertheless? Is that your testimony? 15:55:55 24 A. The labeling -- for the label to be altered the FDA 15:56:01 25 regulations say that there doesn't have to be rock solid 1960 15:56:04 1 proof of causality. The FDA rules say there has to be good 15:56:09 2 reason to suspect that the drugs can have a bad or deadly 15:56:15 3 effect. And if the scientific community of practitioners has 15:56:19 4 good reason to suspect that that's the case, then the label 15:56:23 5 can be changed and it should be. 15:56:25 6 Q. So you disagree with Dr. Mann's review of the science, 15:56:29 7 then, I take it? 15:56:30 8 A. I agree with his review of his own kind of science, but he 15:56:34 9 said very little about clinical science and what we have to 15:56:38 10 deal with in the front lines. 15:56:40 11 Q. And what Dr. Merrell has to deal with in the front lines 15:56:44 12 as well? 15:56:45 13 A. Absolutely. 15:56:46 14 MR. PREUSS: Thank you, sir. 15:56:47 15 THE COURT: Anything else? 15:56:48 16 MR. VICKERY: No, Your Honor. 15:56:49 17 THE COURT: May Dr. Maltsberger be excused? 15:56:51 18 MR. VICKERY: He may indeed. 15:56:52 19 THE COURT: Thank you very much. 15:56:53 20 THE WITNESS: Thank you. 15:56:55 21 THE COURT: Plaintiff rests? 15:56:56 22 MR. VICKERY: We do, Your Honor. 15:56:57 23 THE COURT: Very well. Ladies and gentlemen of the 15:57:01 24 jury, the hour has come where all of the evidence in this 15:57:04 25 case has finally been presented to you. Let me tell you what 1961 15:57:10 1 we're going to do next. The attorneys and the Court need to 15:57:17 2 get together and have what we call an instruction conference. 15:57:20 3 And we go over together the instructions, and the Court then 15:57:28 4 finalizes the instructions that it intends to give you. 15:57:34 5 We're going to do that tomorrow morning. When we've 15:57:37 6 finished with that we'll come back. I will ask you people to 15:57:40 7 come back again and we'll resume court at 10:00 a.m. tomorrow 15:57:44 8 morning. The attorneys have agreed to a maximum of one hour 15:57:48 9 and a half per side to argue their cases to you; in other 15:57:52 10 words, the plaintiff gets one hour and a half and the 15:57:55 11 defendant gets one hour and a half. 15:57:57 12 The Court will allow the plaintiff to reserve any 15:58:00 13 part of their one hour 30 minutes for rebuttal, which they're 15:58:04 14 entitled to do. For instance, if they take 20 minutes out, 15:58:11 15 they use an hour and 10 minutes of their time, they have 20 15:58:16 16 minutes after the defendant has argued to give rebuttal. 15:58:19 17 When all of that is completed, then the Court will 15:58:23 18 read the instructions to you. Some people call it charging 15:58:26 19 the jury. And then the case will be yours. 15:58:28 20 We expect we will start at 10:00 a.m. in the morning. 15:58:32 21 The plaintiff will present their arguments. We will recess 15:58:36 22 for lunch, we will probably send you to lunch, maybe a little 15:58:40 23 better than we did earlier this week, better place, and then 15:58:43 24 we'll come back. 15:58:44 25 Afterwards, after lunch, the defendant will make its 1962 15:58:48 1 arguments to you. The plaintiff will present rebuttal 15:58:52 2 arguments and then I will give you the instructions. That's 15:58:54 3 kind of what you can expect tomorrow. And after that it will 15:58:57 4 be yours. 15:58:58 5 You will not be sequestered. That is, when evening 15:59:06 6 comes you get to go home, or if you're staying here in 15:59:06 7 Cheyenne, you get to go to the place where you're staying. 15:59:08 8 But at this point it is -- if it ever was important, it is 15:59:13 9 certainly important now that you still refrain from talking 15:59:16 10 about this with one another or certainly with anybody else, 15:59:20 11 that you avoid any kind of media information. We don't want 15:59:25 12 to have a mistrial because somebody made a comment to you and 15:59:30 13 we have to start this all over again. I don't think anybody 15:59:33 14 wants to have to do that. We want a good, clean, fair case. 15:59:38 15 I know you will do that. I just want you to keep 15:59:40 16 that in mind. 15:59:41 17 In any event, we have some things to do. We're going 15:59:44 18 to excuse you and you can go about your way and we'll see you 15:59:48 19 at 10:00 tomorrow morning. Court will remain in session. 15:59:53 20 (Following out of the presence of the jury.) 16:00:40 21 THE COURT: I asked Mr. Mathes to close that door in 16:00:44 22 case the jurors wander the hallway and might hear something. 16:00:48 23 At this time does the defendant have a motion to the 16:00:51 24 Court? 16:01:00 25 MR. ZVOLEFF: Good afternoon, Your Honor. 1963 16:01:01 1 THE COURT: Mr. Zvoleff. 16:01:05 2 MR. ZVOLEFF: At this time we would like to renew our 16:01:06 3 Rule 50 motion for judgment as a matter of law. The first 16:01:10 4 grounds for it is the one we have addressed before the Court 16:01:12 5 in the past and that cutting across all three of plaintiffs' 16:01:16 6 theories is the requirement of causation, and as part of 16:01:20 7 that, the requirement that they prove general causation, that 16:01:26 8 is here, that Paxil can cause suicide and homicide. 16:01:34 9 As this has been briefed extensively in the Daubert 16:01:37 10 hearings, I won't go through the cases cited to the Court 16:01:40 11 previously, but I think it is even clearer now than it was at 16:01:44 12 the end of the Daubert hearing that there's simply no 16:01:48 13 scientific evidence that Paxil can cause either of these two 16:01:52 14 phenomena. First, there's been no evidence presented by 16:01:56 15 plaintiffs' experts with respect to Paxil itself. 16:02:00 16 And secondly, I would say that Dr. Wang particularly 16:02:06 17 in his testimony has made it abundantly clear why the Donovan 16:02:10 18 article that was so heavily relied upon does not support what 16:02:14 19 the plaintiffs are arguing here. 16:02:16 20 We would also like to move under Rule 50 with respect 16:02:19 21 to plaintiffs' claims for misrepresentation, as briefed in 16:02:24 22 our opposition to plaintiffs' jury instructions, in order to 16:02:28 23 support a misrepresentation claim in this case, plaintiffs 16:02:32 24 would have had to have advanced both evidence of affirmative 16:02:36 25 misrepresentations and also of reliance on affirmative 1964 16:02:41 1 misrepresentations. Neither of those two elements of that 16:02:46 2 claim has been supported by any evidence before the Court. 16:02:49 3 Again, this is briefed in our jury instruction brief. 16:02:54 4 There in particular, and I would note that in plaintiffs' own 16:02:59 5 brief in support of their jury instructions I would say that 16:03:02 6 they acknowledge that reliance is required under the 16:03:06 7 Restatement Second. They argue in effect that this Court 16:03:11 8 should adopt the Restatement Third which is not the law of 16:03:14 9 Wyoming and that that would do away with the reliance 16:03:18 10 requirement, but since that's not happened, reliance is still 16:03:21 11 required. 16:03:22 12 The English versus Suzuki case that we cited in our 16:03:28 13 brief in opposition to the jury instructions discusses the 16:03:32 14 issue of the requirement of both affirmative 16:03:35 15 misrepresentations and also reliance and makes the point that 16:03:38 16 without affirmative misrepresentations what you really have 16:03:43 17 is a warnings case; that is, an argument that there's been an 16:03:48 18 omission to warning about something. 16:03:50 19 So we think we should be granted judgment as a matter 16:03:53 20 of law on the misrepresentations claim. It is not supported 16:03:57 21 by evidence, and it is also just confusing in this context. 16:04:05 22 Really what this is and what their claim is is the warnings 16:04:09 23 claim. 16:04:09 24 We would also move under Rule 50 on the punitive 16:04:12 25 damage claim of plaintiffs. There's simply been no evidence 1965 16:04:15 1 of willful and wanton conduct under Wyoming law to support 16:04:20 2 punitive damages here. 16:04:23 3 Finally, with respect to the testing theory, again, 16:04:29 4 this is addressed in our opposition to the jury instructions 16:04:32 5 and briefed there, our position is there's no liability under 16:04:39 6 a theory of lack of testing unless there is shown an actual 16:04:42 7 risk that the test would have found. And again, that actual 16:04:47 8 risk here would have to be that Paxil can cause suicide and 16:04:51 9 homicide. 16:04:52 10 There is no evidence of that. What plaintiffs' 16:04:55 11 argument is at best is that there were some tests that should 16:04:59 12 not have been done. They then assume that the results of 16:05:04 13 these tests would have supported the proposition that Paxil 16:05:08 14 can cause homicide and suicide, but there's no evidence of 16:05:16 15 that here. 16:05:16 16 And unless the Court has any questions, those are the 16:05:16 17 motions we would make at this time, Your Honor. 16:05:18 18 THE COURT: Thank you very much. 16:05:20 19 Mr. Vickery. 16:05:23 20 MR. VICKERY: Your Honor, I will be brief. There are 16:05:26 21 four grounds raised. The first is the scientific evidence 16:05:29 22 ground, and as Mr. Zvoleff says, that's been briefed 16:05:34 23 extensively and the Court has written extensively on it 16:05:37 24 already. 16:05:38 25 I would merely add that in addition to the expert 1966 16:05:41 1 testimony, there's documentary evidence, specifically 16:05:44 2 Exhibits 10 through 16, Plaintiffs' 10 through 16, which 16:05:48 3 indicate that SmithKline Beecham itself has found that Paxil 16:05:53 4 has indeed caused attempted suicides and hallucinations and 16:05:58 5 psychoses and all of those sorts of things. So there's ample 16:06:02 6 evidence of causation. 16:06:04 7 The second ground was the misrepresentation theory. 16:06:07 8 It is true that we urge the Court to make an Erie prediction 16:06:15 9 that the Wyoming courts would embrace. The Statement of 16:06:18 10 Torts, Section 9, Restatement Third, Section 9 which restates 16:06:26 11 the elements. 16:06:27 12 Even there I think it is clear from the testimony of 16:06:29 13 the salesman and Dr. Patel that this drug has been pitched to 16:06:32 14 him as safer than Prozac, cleaner, fewer side effects, no 16:06:37 15 problems with suicide and that the dose, the recommended dose 16:06:42 16 in Exhibit 200-B, which is the Paxil package insert, is an 16:06:49 17 appropriate dose even though the salesman himself said he's 16:06:52 18 told by the company to recommend it be titrated for anxious 16:06:57 19 patients. 16:07:03 20 Dr. Patel did testify that obviously he looks to the 16:07:09 21 PDR and that contains their representations. He was somewhat 16:07:13 22 equivocal in his deposition testimony, but I think his 16:07:16 23 in-court testimony reflected his reliance. Even if that is 16:07:19 24 an element, we don't think it is a proper element. The 16:07:23 25 Restatement Third was cited in the Phillips versus Duralast 1967 16:07:27 1 case which we cited in the trial brief regarding the Court's 16:07:31 2 instructions. 16:07:32 3 MR. FITZGERALD: It was the other way around. 16:07:34 4 Phillips versus Duralast was cited by the Restatement Third. 16:07:39 5 MR. VICKERY: He handed me a note and I looked and 16:07:41 6 read too fast, Judge. The Restatement Third in its 16:07:44 7 annotations cites the Wyoming Supreme Court case in Phillips 16:07:49 8 versus Duralast with respect to the viability of the 16:07:51 9 misrepresentation theory. So we submit that it is viable and 16:07:55 10 we urge the Court to make the Erie prediction and reformulate 16:08:01 11 the jury instruction in that way. 16:08:03 12 Third, with respect to the punitive damages, Your 16:08:07 13 Honor, I think the burden of proof under Wyoming law and 16:08:11 14 under the pattern jury instructions is for willful and wanton 16:08:18 15 conduct to be proved by a preponderance of the evidence; not 16:08:20 16 clear and convincing evidence but by a preponderance. 16:08:23 17 During the course of this trial that has become 16:08:26 18 particularly more apropos. The Court may recall that early 16:08:30 19 on we indicated if the defendant took the position that clear 16:08:33 20 and convincing was the standard required by federal due 16:08:36 21 process, and moreover, that that standard would be 16:08:41 22 satisfied -- would satisfy concerns of due process, then we 16:08:45 23 would likely in effect toss in the towel on the pattern jury 16:08:49 24 instructions and assume a burden greater than that Wyoming 16:08:54 25 plaintiffs have had before. 1968 16:08:57 1 During the pendency of this case, however, the United 16:09:01 2 States Supreme Court has decided Cooper Industries versus 16:09:03 3 Leatherman Tools, in effect holding that there is de novo 16:09:08 4 review both by the trial court as well as by an appellate 16:09:12 5 court with respect to any award of punitive damages. 16:09:16 6 Given that, I think it is abundantly clear that you 16:09:19 7 don't need a clear and convincing evidence standard. We look 16:09:23 8 at the preponderance of the evidence to see if there's been 16:09:25 9 willful and wanton conduct as defined in the Wyoming pattern 16:09:29 10 jury instructions, and I submit that there has been. 16:09:33 11 It is very clear from these Exhibits 10 to 16 that 16:09:37 12 SmithKline Beecham has made internal determinations of 16:09:41 13 causation with respect to attempted suicides, psychosis, 16:09:48 14 hallucinations, life-threatening things. They obviously did 16:09:55 15 that knowingly. It is their own work product and their own 16:09:58 16 admissions. 16:09:59 17 For them to have done that knowingly and failed 16:10:02 18 steadfastly here for over a decade to implement any kind of 16:10:07 19 warnings and to do the testing which would in effect show 16:10:10 20 that there is no problem if they're right I think is willful 16:10:15 21 conduct, it is wanton conduct. And we would urge the Court 16:10:19 22 not to grant that JMOL but to submit the willful and wanton 16:10:24 23 question to the jury on a preponderance of the evidence 16:10:27 24 standard. If the jury says yes, then we can go to the second 16:10:34 25 phase. If the jury says no, it is taken care of. 1969 16:10:34 1 And finally, with respect to the testing, this has 16:10:38 2 been the law in Wyoming a long time. The instructions which 16:10:43 3 we tendered and which the Court has adopted in the draft 16:10:47 4 instructions that have been given to us come right out of the 16:10:50 5 Wyoming pattern jury instructions. There's ample case law 16:10:53 6 that supports them. It is a viable theory under the law and 16:10:56 7 there's abundant evidence of it. Thank you very much. 16:11:02 8 THE COURT: Thank you very much. 16:11:04 9 Mr. Zvoleff. 16:11:06 10 MR. ZVOLEFF: May I respond briefly? 16:11:07 11 THE COURT: Sure you can. 16:11:08 12 MR. ZVOLEFF: With respect to Plaintiffs' Exhibits 10 16:11:11 13 through 16 where he says SmithKline has found that Paxil 16:11:16 14 caused, what those are -- and they've certainly been on the 16:11:19 15 screen numerous times -- are excerpts from the NDA; that is, 16:11:24 16 the new drug application that's filed with the FDA. So all 16:11:27 17 of that information was filed with the FDA. 16:11:32 18 And the attributions that show up in the column of 16:11:38 19 relatedness that's been referred to so many times were made 16:11:41 20 by clinical investigators, those tables make it clear those 16:11:44 21 are coming out of clinical trials. They're single case 16:11:48 22 instances. In effect, they're a single adverse event or 16:11:52 23 single case report. 16:11:55 24 And for all of the reasons that the experts have 16:11:59 25 testified to, one cannot determine causation, the question 1970 16:12:02 1 here of general causation, from such single case reports. 16:12:06 2 And it is really a misrepresentation of what those exhibits 16:12:11 3 are to characterize them as being some sort of internal 16:12:14 4 finding by SmithKline that Paxil caused whatever the event 16:12:20 5 was that was being pointed to at the various times. 16:12:23 6 And if there's any doubt about who placed those 16:12:26 7 characterizations on there, protocols are in evidence, as 16:12:32 8 among the Defendant's joint exhibits and portions of those 16:12:35 9 protocols make it clear who makes those attributions. Thank 16:12:43 10 you, Your Honor. 16:12:44 11 THE COURT: Thank you, Mr. Zvoleff. 16:12:47 12 With regard to the renewal of the Rule 50 motion as 16:12:50 13 to causation, this Court is going to deny that motion based 16:12:55 14 upon the fact the Court believes that sufficient evidence has 16:12:58 15 been presented by the plaintiff to overcome that motion under 16:13:01 16 Rule 50 and to submit those matters to the jury. 16:13:08 17 With regard to the Rule 50 motion concerning the 16:13:10 18 misrepresentation claim under at least right now Rule 402(B), 16:13:16 19 the Restatement Second, the Court is going to take that under 16:13:19 20 advisement. 16:13:21 21 As to the motion for punitive damages, this Court 16:13:24 22 finds that the plaintiffs have failed to present evidence 16:13:32 23 under either standard of clear and convincing or a standard 16:13:36 24 of by a preponderance of the evidence that this matter should 16:13:38 25 be submitted to the jury on the issue of punitive damages. 1971 16:13:42 1 I'm clearly convinced of that. I was actually of 16:13:46 2 that thought at the close of the plaintiffs' case and was 16:13:51 3 only more convinced after hearing the defendant's evidence. 16:13:54 4 So I grant that motion with regard to punitives. 16:14:05 5 As to the Rule 50 motion on the theory of failure to 16:14:10 6 test as negligence, this Court finds that sufficient evidence 16:14:14 7 has been presented to overcome that motion and to submit that 16:14:18 8 issue to the jury, and I hereby deny that motion. 16:14:22 9 Did I forget anything? 16:14:26 10 MR. VICKERY: I don't think so. 16:14:26 11 MR. ZVOLEFF: I don't believe so, Your Honor. Thank 16:14:27 12 you. 16:14:27 13 THE COURT: Very well. 8:30 tomorrow, Counsel, my 16:14:33 14 chambers. 16:14:36 15 MR. VICKERY: We will be there. 16:14:37 16 THE COURT: Court reporter will be there and we'll 16:14:41 17 see you there. 16:14:41 18 There being nothing further, court will stand in 16:14:44 19 recess until 8:30 tomorrow morning. 20 (Trial proceedings recessed 21 4:30 p.m., June 4, 2001.) 22 23 24 25 1972 1 C E R T I F I C A T E 2 3 I, JANET DEW-HARRIS, a Registered Professional 4 Reporter, and Federal Certified Realtime Reporter, do hereby 5 certify that I reported by machine shorthand the trial 6 proceedings, Volume X, contained herein, and that the 7 foregoing 155 pages constitute a full, true and correct 8 transcript. 9 Dated this 3rd day of September, 2001. 10 11 12 JANET DEW-HARRIS Registered Professional Reporter 13 Federal Certified Realtime Reporter 14 15 16 17 18 19 20 21 22 23 24 25