1 1 NO. 90-CI-06033 JEFFERSON CIRCUIT COURT DIVISION ONE 2 3 4 JOYCE FENTRESS, et al PLAINTIFFS 5 6 VS TRANSCRIPT_OF_THE_PROCEEDINGS __________ __ ___ ___________ 7 8 9 SHEA COMMUNICATIONS, et al DEFENDANTS 10 11 *** 12 13 14 FRIDAY, SEPTEMBER 30, 1994 15 VOLUME V 16 17 * * * 18 19 20 _____________________________________________________________ 21 REPORTER: JULIA K. McBRIDE Coulter, Shay, McBride & Rice 22 1221 Starks Building 455 South Fourth Avenue 23 Louisville, Kentucky 40202 (502) 582-1627 24 FAX: (502) 587-6299 25 2 1 2 I_N_D_E_X _ _ _ _ _ 3 4 Conference............................................... 5 Opening Statement by Mr. Smith........................... 6 Opening Statement by Mr. Stopher......................... 7 Opening Statement by Mr. Freeman......................... 8 Conference............................................... 9 Reporter's Certificate................................... 10 11 * * * 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 FOR THE PLAINTIFFS: 4 PAUL L. SMITH 5 Suite 745 Campbell Center II 6 8150 North Central Expressway Dallas, Texas 75206 7 NANCY ZETTLER 8 1405 West Norwell Lane Schaumburg, Illinois 60193 9 IRVIN D. FOLEY 10 Rubin, Hays & Foley Third Floor South 11 First Trust Centre 200 South Fifth Street 12 Louisville, Kentucky 40202 13 FOR THE DEFENDANT: 14 EDWARD H. STOPHER 15 Boehl, Stopher & Graves 2300 Providian Center 16 Louisville, Kentucky 40202 17 JOE C. FREEMAN, JR. LAWRENCE J. MYERS 18 Freeman & Hawkins 4000 One Peachtree Center 19 303 Peachtree Street, N.E. Atlanta, Georgia 30308 20 21 ALSO PRESENT: 22 DR. W. LEIGH THOMPSON 23 24 25 4 1 The Transcript of the Proceedings, taken before 2 The Honorable John Potter in the Multipurpose Courtroom, Old 3 Jail Office Building, Louisville, Kentucky, commencing on 4 Friday, September 30, 1994, at approximately 9:30 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (THE FOLLOWING PROCEEDINGS OCCURRED IN ROOM 148) 10 JUDGE POTTER: Mr. Higgs, I've talked about your 11 situation with the attorneys and they have agreed that you can 12 be excused. I take it your situation has not changed since 13 yesterday? 14 JUROR HIGGS: I felt when I left yesterday that 15 I wasn't going to be released and I talked to my employers and 16 I have something worked out to where I'm just going to work 17 the weekends and work nights. 18 JUDGE POTTER: Okay. Now, that leaves one 19 question. Is this going to put you -- and, again, I said it 20 was my decision and I told you yesterday if the lawyers had 21 agreed on something -- and this is an important case and, 22 obviously, because you're here, this is a case in which both 23 sides said you're an acceptable juror to them. 24 JUROR HIGGS: I understand, Your Honor. 25 JUDGE POTTER: And you just have to answer a 5 1 question. And maybe I shouldn't have told you what they'd 2 agreed on first. But is this a situation where because you're 3 working at night you're going to be so tired -- are you going 4 to just work a couple hours at night or what are we talking 5 about? 6 JUROR HIGGS: I'm going to leave from the 7 courtroom and work till midnight. 8 JUDGE POTTER: What you have to tell me, is this 9 going to put you in a situation -- first of all, sir, let me 10 say I admire you and I think if I had known about your 11 rehabbing your house I would have done something before today. 12 Do you understand what I mean? 13 JUROR HIGGS: Yes, Your Honor. 14 JUDGE POTTER: I knew your income. I knew you 15 would lose it, but I don't believe that a jury -- I think we 16 try and get as many different people as we can. So what I'm 17 trying to ask you, sir, is we accept you as a juror if you 18 believe that, A, working at night won't put you in such a 19 sleep-deprived situation that you can't give this case your 20 attention or that you're going to try and take it out on 21 somebody because you've been put in this situation, and you 22 just have to tell me what the answer is. I know what the easy 23 answer for you is, but I want to know what you really -- 24 JUROR HIGGS: In all honesty, I believe that I 25 probably could give the case full attention. Yesterday I 6 1 think you felt I was upset. 2 JUDGE POTTER: And you were, and you probably 3 had a right to be. 4 JUROR HIGGS: Well, Your Honor, I believe you 5 were mistaking upset from being scared. 6 JUDGE POTTER: I would have been upset in your 7 case. 8 JUROR HIGGS: I was upset for my family. I've 9 made other arrangements. And to be perfectly honest with you, 10 yes, I believe I could. 11 JUDGE POTTER: Thank you very much, sir. We 12 will seat you as a juror. 13 (JUROR HIGGS LEAVES THE ROOM) 14 JUDGE POTTER: Let me bring up two things. One, 15 Ms. McBride needs to talk to you-all sometime today about the 16 rent on the room she's using up there. You-all just need to 17 get it straight whether she's responsible or it comes out of 18 the total fee or whether, you know, you-all are responsible, 19 and I mentioned it to her and she said it wouldn't be any 20 problem; you-all would resolve it one way or another. But 21 it's just those rooms up there I didn't get involved with, but 22 somebody from the County or something called me and said -- 23 talked to people and got different stories. You need to get 24 that set. 25 MR. FREEMAN: As far as I'm concerned, charge 7 1 the expense and we can split it. 2 MR. SMITH: That's fine. 3 JUDGE POTTER: And I didn't mean to push you 4 into a decision today. 5 I tell you what happened with him and me. I do 6 fine on decisions if there's a right or wrong or I can see a 7 logical decision, but when it comes to discretionary 8 decisions, I have an awfully bad habit of if I see something 9 is too easy or the popular way out or something, I resist it, 10 and that's what happened with some of these excuses. And it's 11 gotten me in a lot of trouble other times, and I guess it's 12 what we all have a calvinist background or whatever it is, and 13 I should have like a stall light or something when I see 14 myself going into that. I came that close, you know, when you 15 had four of them that couldn't do it, of letting them all go 16 because it was an even bag and I should have done that. Some 17 were good for one or the other. I still could kick myself. 18 Putting in six was just troubling people to make me feel safe. 19 The plan for today: up to two and one-half 20 hours. Let me -- per side. Let me know if you want to break. 21 The way you do that: "Judge, I think this would be a good 22 time to take a break." Okay? I'll leave it up to you. One 23 break per side. We'll take 15 minutes. Obviously, we will 24 take lunch. Obviously, you're not obligated to take two and a 25 half hours. We will take lunch between the two of you. We'll 8 1 start our routine at one and a half. We will finish that 2 today. I think we need to have a meeting, you know, like 3 after it's all over, have people sort of calm down, and we'll 4 have a meeting this afternoon to find out about your witnesses 5 and to talk about some other things to get it planned out for 6 next week. 7 MR. SMITH: Judge, I'm going to be making the 8 entire argument for our side. Obviously, two and a half hours 9 is a long time to talk. And, you know, I don't know whether 10 I'm going to get winded or not. I'm just wondering if maybe 11 after 30 minutes I might be able to sit down and reshuffle my 12 notes or something just to get off my feet a little bit. 13 Could I say, "Judge, may I have two minutes to confer with co- 14 counsel"? 15 JUDGE POTTER: And I'll have them stand in the 16 jury box and stretch. We'll do that. And if you want a real 17 break, say it, and we'll take 15 minutes. 18 MR. SMITH: I don't think I could talk about 19 anything for two and a half hours. 20 JUDGE POTTER: You go to the seminars and they 21 tell you everything over 20 minutes is lost. But this is a 22 long trial and you said you didn't want two hours. They said 23 they wanted two and a half. And so that's as long as we keep 24 it, to two and a half. And whoever -- who's going first on 25 your side, Mr. Stopher? 9 1 MR. STOPHER: I will, Judge. 2 JUDGE POTTER: Okay. Mr. Freeman, I will remind 3 you, you know, if your time gets close to the end I will cut 4 you off, because I'm assuming you're going to take a great 5 deal more time than Mr. Smith. The other thing is I'm not 6 saying there can't be a little overlap, but it's not going to 7 be repeated twice. You're drug and you're Wesbecker; is that 8 where we are? 9 MR. STOPHER: That's where we are. 10 MR. FREEMAN: And I just have some conclusionary 11 remarks to make about what Ed said. 12 13 * * * 14 15 SHERIFF CECIL: All rise. Silence is commanded 16 while the Honorable Judge John Potter is now presiding. Court 17 is now in session. Please be seated and remain silent. 18 JUDGE POTTER: I'm going to move over here 19 because it is this first part; it's important or not 20 important, but I would like to see the jury. Let me make a -- 21 I tell you what. Can I get someone to move the easel just for 22 this time being? Okay. 23 Good morning, ladies and gentlemen. Let me 24 start and give you kind of some information about how this is 25 going to go. I think all of the parties here think you know a 10 1 lot more about what's going on than you actually do because 2 we've talked to each of you, you know, 10 minutes or so apiece 3 and in our mind that adds up to 160 minutes. So we feel like 4 we've spent an hour or two with you where, really, from your 5 point of view, we've only spent 10 minutes. So I think all of 6 us kind of have a feeling you know a lot more about what's 7 going on down here than actually is. So let me start with 8 what our daily routine will be. We're going to start at 9:30 9 on Monday mornings and then on Tuesday, Wednesday, Thursday 10 and Friday, we start at 9:00. The reason for that is that I 11 have a commitment every Monday morning at 8:30. The judges in 12 Division One have to do something at 8:30. I can tell you 13 there will be a judge doing that 8:30 six years from now every 14 Monday morning. So I have that commitment, and that's why 15 we'll start a little late on Monday morning. 16 We will stop at 5:00, Monday through Thursday. 17 It will actually be probably 4:30 to 5:30, depending on 18 whether there's a good break between the witnesses. Is there 19 anybody here because of child-care commitments or any other 20 commitments could not stay till 5:30 if that's what it 21 happened to be? Okay. 22 On Friday we will have a half a day. And the 23 reason for that is there's some out-of-town attorneys and that 24 allows them to do some things that they couldn't do otherwise. 25 And, also, it gives the Court and the Counsel an opportunity 11 1 to take up some things that maybe we need to deal with outside 2 of your presence, and we make sure the next week goes 3 smoothly. 4 So, we will take an hour and a half for lunch 5 each day. I know you'd rather probably have a shorter lunch 6 break and go home a little earlier. The reason we're taking 7 an hour and a half is two reasons: As you might guess, some 8 of these attorneys have more than one client or more than one 9 case, and it gives them an opportunity to return a phone call 10 or something like that during the lunch breaks. It also gives 11 them and me an opportunity to take up something if it needs to 12 be taken up outside of the presence of the jury. We'll try 13 and take two breaks a day; one in the morning and one in the 14 afternoon. So to kind of summarize the schedule, I guess you 15 could think of it as nine to five, five days a week, except on 16 Mondays we start a half hour late, and on Fridays we'll have a 17 half a day. 18 Let me go over some dates with you. We will not 19 try the case Friday, November 4th. And the reason for that is 20 it is the Breeders' Cup and there are no hotel rooms available 21 Thursday night. Okay. I mean, that's the reason for that. 22 It's anticipated that we will finish this before Thanksgiving, 23 but if for some reason we don't, there would be no Court the 24 week of Thanksgiving. You know, if you need to check that 25 schedule or anything, let me know and let my sheriff know and 12 1 she'll give it to you again. I know this is information 2 that's flowing over you kind of fast. 3 Let me talk a little bit about your conduct 4 during this trial. I'm going to ask you all to follow my 5 admonition, of course, and that I give it to you every time we 6 recess. And the reason I do that is because it's important, 7 and if I don't do that, I'm afraid you'll kind of forget about 8 it. So when I give it to you all the time, I do it because 9 it's important, and I will ask you-all periodically as a group 10 or perhaps individually if you've had any problems obeying 11 that admonition. Has anyone had any problem abiding by my 12 admonition about the newspaper and talking to people about it 13 over last night's break? Just to pick on somebody, Mr. Fitch, 14 since you're in the first row, have you had any problems with 15 it? 16 JUROR FITCH: I don't have a problem; no, sir. 17 JUDGE POTTER: Okay. I'm going to ask you-all 18 to wear your juror badges, and the reason for that is so we'll 19 know who you are. And not just in the courtroom. Actually, 20 in the courtroom we know who you are because we look at what 21 seat you're sitting in; right? It's so when you're waiting 22 for your bus -- you can take it off once you get on the bus 23 and start going home -- or if you're over in the park enjoying 24 a pretty day on a break or walking around, people will know 25 that you're a juror, and a lawyer won't come up to you or talk 13 1 to you by mistake or somebody that's an old friend that's 2 going to be a witness in this case won't come up and talk to 3 you by mistake. It's just important that we know who you are. 4 I'm going to ask you-all to come and go through 5 this rear door that you've used as much as you can and to use 6 the jury room as much as possible. And the reason for that is 7 to keep you separate from the witnesses and the parties in the 8 case. I'm going to try to get a little refrigerator and have 9 them put it in the jury room so you can bring a lunch if you 10 want to or have Cokes or whatever. And that's to separate you 11 from the witnesses and the parties. 12 You-all don't realize it that you-all have -- 13 everybody wants to do the right thing and you-all have little 14 antennae out to pick up absolutely every clue. All right. 15 And why we try and separate you is not because somebody will 16 do something improper so much as these little antennae would 17 be trying to get clues. And you're supposed to decide the 18 case on what happens here in the courtroom, not because of 19 what you see out in the hallways. Do you understand what I'm 20 saying? And I'll tell you 99.9 percent of the clues you get 21 that way are going to be wrong. Okay. 22 One of the things you're not supposed to do is 23 try and read this case by what I do. Okay. If I come in here 24 in a bad mood, it's not because the case is going badly or 25 somebody didn't do well, it's because my cat got sick the 14 1 night before. All right. And you-all will be sitting there 2 looking for clues and put some significance in that. And you 3 don't realize that now, but each one of you wants desperately 4 to do the right thing, and that's fine, and you're trying to 5 get help every way you can. And one of the ways you're not 6 supposed to get help is because of how I'm acting that day or 7 how one of the plaintiffs is acting that day or whether a 8 plaintiff is here or absent that day. You base it on what the 9 lawyers do -- well, you don't even base it on what the lawyers 10 do; you base it on what the witnesses say and the evidence 11 that comes in. If you have any concerns about, you know, 12 something, you can talk to my sheriff. 13 Let me talk about my conduct, the parties' 14 conduct, the attorneys' conduct. I really won't speak to 15 you-all very much except nod or say "Good Morning" or I'll 16 talk to you with everybody present, with the lawyers and 17 everybody present. And the reason I do it with everybody 18 present because I just don't know what you-all are going to 19 say. I've had many times a juror says, "Judge, can I talk to 20 you." Get the lawyers up here, get the Court Reporter in, and 21 they want to know if they can get a back brace to put in their 22 chair because a pillow is bothering them or something. We 23 just never know what it is. Anytime I talk to you-all beside 24 "Good Morning," we'll get all the lawyers together and the 25 Court Reporter. 15 1 The attorneys will treat you the same way except 2 they won't even -- they'll just say "Good Morning" and they 3 won't even be able to get you together and talk to you if they 4 wanted to. Okay. So they'll just nod. So don't think 5 they're being rude, don't think they aren't concerned about 6 you; that's just we try and separate you from things happening 7 outside the courtroom. If you want to talk to me, let my 8 sheriff know and we'll get everybody together. What I'd like 9 to strike on that is kind of a balance. I don't want to be in 10 the position of carrying on a conversation with you-all 11 throughout this trial. Okay. So I would say if you want to 12 talk to me, kind of use that "contact my sheriff" sparingly. 13 Now, you can contact her about -- it seems to be a little 14 cooler in here today, doesn't it -- about the temperature, 15 asking her about what time things are going to start; do you 16 have time to go get something out of your car before we start, 17 all that kind of stuff. But I don't want you to feel like you 18 can't ask me a question. In other words, I don't want one of 19 you sitting there not able to concentrate on this case because 20 you've got some question in your mind that could be taken care 21 of like that if we could answer it. Maybe the question is a 22 simple answer; the answer may be we can't answer it, but at 23 least you could put it out of your mind instead of just 24 sitting there having to worry about it. 25 I know you-all are going to be a little lonely 16 1 throughout this trial. My suggestion is for you to bring a 2 book and read, talk to each other on anything but this case 3 and enjoy yourself as much as you can. 4 There are two questions jurors often ask, and I 5 think I'll just go ahead and answer them because I bet out of 6 the group at least one of you has got these questions. The 7 first one is: Can you take notes, and the answer is yes, but 8 I want to say a couple of things about that. And before we 9 start this trial, my sheriff has got 16 tablets and pencils, 10 and if anybody wants them you can have them. But let me say 11 something about notes. Let me first talk to those of you that 12 take notes. And there's no preferred way to do it. Some 13 people feel better concentrating and listening to things, 14 other people feel better taking notes when they hear things. 15 But those of you who take it, don't let it distract you 16 because it can happen that you're taking notes on Point A and 17 you totally miss what comes next. Okay. So don't let the 18 notes become sort of all consuming for you to the point where 19 you perhaps miss some things. And then also don't be a slave 20 to your notes. Don't refuse to change your mind because 21 something is or is not in your notes. Okay. Your notes are 22 merely an aid to help you and they can be wrong, just like 23 anything else. 24 Let me say something to those of you who don't 25 take notes. Do not be intimidated by somebody that takes 17 1 notes. Okay. Don't fail to put your opinion or your view 2 through forcefully simply because somebody has a piece of 3 paper or had a piece of paper with something written down on 4 it. Okay. 5 With that -- oh, another point, to kind of keep 6 things orderly, for those of you that have notes, what I'm 7 going to do is -- the tablets you're going to be given are 8 spiral binders, you know, it's a spiral wire, not a three-ring 9 binder, with front and a back. If you'll put your name on it, 10 close it. Whenever we go on breaks, leave it in your seat, 11 and just to kind of keep things orderly, my sheriff will 12 collect them up -- you know, leave them in your seat, she will 13 collect them up at the end of each day, put them in a folder, 14 put them in a secure place and have them there for you 15 tomorrow. No one is going to read them. No one is going to 16 look at them. That's just kind of a housekeeping measure. 17 Also, you-all are not getting paid enough to where you need to 18 work overtime by going home and studying your notes and adding 19 to them and subtracting to them. Okay. Does anybody have any 20 problem with that procedure on the notes? Okay. Do you have 21 the pads here? 22 SHERIFF CECIL: Yes. 23 JUDGE POTTER: Okay. Is there anyone here that 24 would like a pad or a pencil? 25 JUDGE POTTER: Okay. Why don't you bring them 18 1 all out and pass them around. Let me say this. Just because 2 you take the pad now doesn't mean you're committed to taking 3 notes the whole time, and if you don't take a pad it doesn't 4 mean that you can't change your mind and get one tomorrow. 5 All right? 6 (SHERIFF CECIL PASSES OUT TABLETS) 7 JUDGE POTTER: And the first thing you'll do, 8 please, is write your name on the front of it so you don't 9 pick up somebody else's. I think she has a couple of types of 10 pens, so if you've got a ballpoint fetish, she can take care 11 of you; if you've got a felt tip, she can take care of you. 12 Everybody set on that? And, again, I remind you if you didn't 13 take a tablet feel free to pick one up later, and if you get 14 tired of taking notes you're not obligated, really. 15 Another thought that jurors often have is 16 whether or not they can ask questions. The answer is yes, but 17 let me say a few things. First of all, let me tell you how to 18 do it. Okay. If you want to ask it orally in Court, wait 19 till the witness is absolutely through and about to leave the 20 witness stand. Okay. The reason for that is I'm sure when a 21 witness first takes the stand you've got a couple of 22 questions, and the person will probably answer them while 23 they're on the stand. Okay? So wait until the split second 24 before the witness is ready to leave. The other way you may 25 do it, if you want, is to write it down, give it to my sheriff 19 1 during one of the breaks and then -- if you want to ask a 2 question, I'll call you up to the Bench and it's a question we 3 may not ask for one reason or another, but we'll ask you to 4 state it up here and then it may or may not get asked. 5 Another way to do it is to write it down, give it to my 6 sheriff, and during a break -- you can do it with or without 7 your name on it, or whatever -- she will bring it to us and, 8 if it's a proper question, we'll try and see that it gets 9 asked. But before you exercise that right, let me say a few 10 things. The lawyers know a great deal about this case and 11 they have done a lot of time trying to figure out how the best 12 way to present it. The whole case does not have to come in 13 through the first witness, the second witness or any 14 particular witness, and the odds are that any questions you 15 have about this particular witness is going to be asked and 16 cleared up at a later witness. Do you understand what I'm 17 saying? The first witness is not going to be the whole case. 18 And I'm sure after the first witness you're going to have 19 thousands of questions, okay, or even before the first 20 witness. But the whole case does not have to come in through 21 that witness, so the fact that something is unanswered does 22 not mean it is not going to be answered. 23 Also, as far as maybe not remembering a 24 particular point, when you finally get back to the jury room, 25 you will have 11 other people to help you reconstruct what 20 1 went on. And my experience has been that a jury of 12 people 2 almost has a tape-recorder-like memory. I've had juries come 3 out and -- the question after they're deliberating -- and say, 4 "Judge, would you tell us what Mr. Smith said right after he 5 said this and right before he said that," and everyone is 6 sitting there scratching their head, not really remembering 7 the testimony, but we get it and look it up and, by George, 8 Mr. Smith said exactly what the jury said before and exactly 9 what the jury said he said afterwards. So I remind you that 10 you will have 11 people back there to help you reconstruct 11 what went on in here. 12 Also, the lawyers may intentionally leave 13 something out. It's not so much I think they're trying to 14 hide something from you. It's a lot of times something that's 15 not that important. If it comes in then leads to this 16 explanation which leads to that explanation which leads to 17 this explanation, and you end up being distracted, sort of 18 chasing some rabbits. So a lot of times there is something 19 that might have some relevance that they intentionally leave 20 out, and that's a decision they make. So before you decide to 21 exercise your right to ask a question, I would ask that you 22 keep those thoughts in mind. 23 Let me go over the sequence of the trial, how it 24 will proceed. Are you-all picking up kind of a whaaa? I 25 don't know where it's coming from. I think it's coming from 21 1 here; maybe if I move something a little bit. No. That makes 2 it worse, doesn't it? Well, we'll get that fixed before 3 Monday. 4 The trial will begin with opening statements. 5 This is a statement by the lawyer of what that lawyer thinks 6 the evidence is going to be. You will hear people refer to it 7 sometimes as a road map. The contents of the -- table of 8 contents in a book is an analogy. The picture on a jigsaw 9 puzzle box, you know, this is what they're hoping the picture 10 will look like when they put all the pieces together. The 11 purpose of it is to help you understand from that person's 12 point of view what the case is all about so you'll have a 13 better chance of fitting the pieces together, as that person 14 wants you to, as they come in throughout the trial. 15 I will emphasize that the opening statement is not 16 evidence. Okay. It is what the lawyers anticipate or hope to 17 prove. Obviously, at the end of the case, one side or the 18 other picture on the jigsaw puzzle is not going to look like 19 they thought it was. Okay. So I emphasize the opening 20 statement is a very helpful tool for you. It will orient you 21 from each side's point of view as to what this case is going 22 to be all about, but it's not evidence. What we're going to 23 do is each side is going to be allowed up to two and a half 24 hours to make their opening statement. We will have the 25 plaintiffs' opening statement today, we will take a lunch 22 1 break, we will have the defendants' opening statement, and 2 then we will recess until Monday morning. So that's the plan 3 for today. People may or may not take breaks during their 4 opening statement. 5 Starting with Monday, the plaintiffs will call 6 the witnesses they wish to call and then each witness -- when 7 you hear me describe this, it's going to sound like they're 8 all equal pieces but, I tell you, the opening statement will 9 take a day, the evidence is going to take about six or seven 10 weeks, and then the closing part is going to take about a day, 11 so just because it takes me two minutes to explain each 12 section doesn't mean they're going to take the same length of 13 time to go through. The plaintiffs will call any witnesses 14 that they want to call and each witness that the plaintiff 15 calls, the defendant will get a chance to examine or 16 cross-examine that witness. After the plaintiff has called 17 all the witnesses they want to call, the defendant will call 18 additional witnesses. If they want to, each witness the 19 defendant calls the plaintiff will get to examine or 20 cross-examine that witness. That's pretty much the way it 21 proceeds on TV; one side calls the witness, they 22 cross-examine, and then the other side calls it. 23 Let me point out one thing about witnesses. No 24 one owns the evidence that a witness brings in, and just 25 because the plaintiff calls a witness or the defendant calls a 23 1 witness, doesn't mean that witness can't be helpful to the 2 other person's side of the case. I've had many cases by the 3 time the plaintiff gets through calling witnesses the 4 defendant doesn't call any witness because everybody that knew 5 anything about it has already testified. Do you understand 6 what I mean? And so just because the plaintiff calls somebody 7 or the defendant calls somebody, you don't put that witness, 8 well, in a certain category and say he or she can't help the 9 other side. All right. It may well be that some of the 10 plaintiffs' important evidence will come in through 11 defendant -- a witness the defendant calls and vice versa. 12 Some of the evidence very important to the defendant will come 13 in through a witness that the plaintiffs call. 14 After all the evidence is in, I will read you 15 some instructions or some rules of law you'll use to decide 16 the case. These will be in writing. They'll be given to you 17 to read while the trial -- you know, the final closing 18 argument, you'll be allowed to take them in writing back with 19 you to the jury room. You-all will also be allowed to take 20 any exhibits that are introduced back with you to the jury 21 room. 22 After that, each side will make a closing 23 argument. Again, this is a statement by the attorney of what 24 that attorney thinks you ought to decide or the side of the 25 case that that attorney represents. It's not evidence. It is 24 1 argument. After that, if there are still more than 12 of you, 2 your cars have started, your children have stayed healthy, 3 there will be a random draw to determine the alternate jurors. 4 At this point does anybody have any questions of me? We've 5 kind of put you in the box in alphabetical order, and I notice 6 that we've got an awfully big person in the middle row. Do 7 you think it might be good if I moved him to the back row and 8 asked one of the -- somebody on the back row to move up a 9 seat? Do you mind, sir? Who would like to move up? Okay. 10 Why don't you-all just swap seats there. That's the kind of 11 important question I could figure you-all sitting there 12 worried about; can we change seats in the jury box. And if 13 you want to make any other adjustments you can. Is there 14 anybody else that wants to -- anybody else in the back row 15 feel that they would like to move up a row or move one of 16 the... 17 JUROR WHITEHOUSE: I can see you fine. 18 JUDGE POTTER: Well, I'm not important. How 19 about over here? Can you see over there all right? 20 JUROR WHITEHOUSE: Yes. 21 JUDGE POTTER: Okay. Does anybody else have any 22 questions of me? Okay. We'll have opening statements. 23 Mr. Smith? 24 MR. SMITH: May it please the Court. 25 JUDGE POTTER: Mr. Smith. 25 1 MR. SMITH: Counsel. As Judge Potter told you, 2 this is the opportunity that the lawyers have to tell you what 3 they expect to prove in this case. This case involves a 4 complicated medication. This case involves a complicated 5 illness. This case involves complicated factual matters. I 6 first started working in connection with investigating the 7 facts surrounding this drug back in early 1991. As those 8 three years have progressed, I have spent more and more and 9 more time in connection with the investigation of this drug. 10 In those few years, Ms. Zettler and I have probably spent more 11 time with each other than we have with our respective spouses. 12 We've traveled from Boston to Florida, from Seattle to Chicago 13 and back to Texas. The evidence that we intend to present in 14 this case is going to be somewhat tedious, somewhat difficult 15 to follow at some times. What I'm going to try to do this 16 morning is briefly summarize and visit with you a little bit 17 about what we found in connection with our travels and our 18 time, in connection with this drug. You should know that this 19 drug is named Prozac. Prozac is a trade name. Prozac is 20 manufactured by Eli Lilly and Company. Eli Lilly and Company 21 is located in Indianapolis, Indiana. The chemical name for 22 Prozac is called fluoxetine hydrochloride. That's what you'll 23 see a lot of scientists refer Prozac to is fluoxetine 24 hydrochloride. Prozac is an antidepressant. Prozac doesn't 25 grow on trees; it's not extracted from berries; it's not 26 1 derived from animal products. Prozac is a synthesized drug. 2 It was specifically made in a laboratory. Prozac is a 3 powerful psychotropic medication. Prozac is an 4 antidepressant. Prozac's use on September 14th, 1989, was for 5 antidepressant treatment. Now, let me back up with you a 6 little bit and tell you what we've learned about depression. 7 Depression is a term that we laypeople and 8 physicians use that encompass a lot of things. We've all 9 gotten up and feel -- and felt like, you know, I feel a little 10 blue today. We've all had periods where we were sad. We've 11 all gone through periods of relationships with other people 12 that were rocky where we felt sad. We've all lost loved ones 13 where we felt sad. We've dealt with that, in most instances, 14 fortunately. These are periods of just feeling blue, just 15 down a little bit. Most of us have the ability, with time, to 16 get through this sad feeling. The depression that you're 17 going to hear about in this trial, the depression that Joseph 18 Wesbecker suffered from is far different. That depression is 19 called clinical depression or major depressive disorder. It 20 is a specific psychiatric term for a specific mental illness. 21 Major depressive disorder is a serious mental illness that 22 affects people. It affects some people dramatically. It 23 causes these people to lose their productivity. It causes 24 these people to lose their happiness. It's beyond the 25 ordinary "just feeling down." People who are clinically 27 1 depressed spend a lot of time in bed. People who are 2 clinically depressed have difficulty having fun, having 3 pleasure at anything. They can't bring themselves out of this 4 clinical depression, it seems like, regardless of what 5 happens. People could give them a lot of money. People could 6 change their circumstances, but it wouldn't change their 7 depression. I believe there are eight different symptoms of 8 depression to fit this psychiatric disorder and I believe the 9 psychiatrists say if you fit a certain number of these 10 symptoms, that you fall within this disorder. Depression is a 11 common illness treated by a number of psychiatrists. 12 Depression is also treated to some extent by general 13 practitioners, by people who -- doctors who have different 14 specialties. The fact is, though, that this is a significant 15 mental illness. People who suffer from major depression are 16 not weak; they're not lazy; they haven't lost their drive. 17 They are mentally ill. Scientists believe that the cause of 18 this type of depression may be a result of an imbalance of the 19 chemicals in our brain. Apparently, what we've learned, all 20 of our thoughts are really the result of chemical electrical 21 reactions in our brain. Our brain has many chemicals and is 22 made up of a bunch of nerves and a bunch of fibers, and 23 apparently these chemicals help in the transmission of these 24 thoughts from one nerve to the other. This is called 25 neurotransmission. It's extremely complicated. I don't 28 1 understand it and, believe me, you won't understand it when we 2 get completely finished, so don't feel bad about that. I 3 think you'll be able to learn a lot about it. I think the 4 scientists will tell you that there are many, many, many 5 unanswered questions in connection with neurochemistry, 6 neurobiology and the science of thought. 7 The neurotransmitters, that is, the specific 8 neurochemicals that aid in thought are -- there are several of 9 them, there's dopamine, norepinephrine, epinephrine and 10 serotonin. These chemicals act in different ways on different 11 parts of the brain. The neurotransmitter that we're going to 12 be talking about is serotonin. And I have some charts that 13 I'm going to show that -- to hopefully make it a little easier 14 to tell you what we're talking about. 15 I practiced my speech, but I didn't practice 16 unboxing the box. Now, can everybody see this? Anybody 17 having any difficulty seeing this? I can move -- no, I can't. 18 Can everybody see it, at least to some extent? 19 Serotonin is a chemical but there are specific 20 nerve cells in the brain that make this chemical, and there 21 are specific nerve cells in the brain that receive this 22 chemical. Apparently, the serotonin system goes almost 23 completely throughout the brain. This one neurotransmitter 24 transmitting thought, serotonin, only picks up particular 25 electrical nerve impulses. The point is -- it's difficult to 29 1 understand. The point is that this serotonin system 2 encompasses and affects an individual's entire brain. The 3 thought is that this clinical depression that we see so much 4 about, that we hear so much about that Joseph Wesbecker 5 suffered from is a result of an imbalance in the serotonin 6 system in depressed individuals' brains. The theory so far, 7 is that if the serotonin system, the serotonin level is 8 decreased, that mood will be decreased and you're more likely 9 to be depressed. If you increase the serotonin level, it 10 should increase your mood; therefore, make you less likely to 11 be depressed. It's as simple as that. The theory is, is that 12 depression is a result in many cases of the chemical imbalance 13 of serotonin. Specifically what the problem is, according to 14 the scientists, the serotonin level is too low. Again, I'm 15 just giving you a preview of the evidence. There's going to 16 be a lot of details here. 17 Now, serotonin just doesn't float around in our 18 brain, apparently. This serotonin has to act with nerves. 19 And what this chart depicts is what's called a presynaptic 20 nerve end and a postsynaptic nerve end. These little circles 21 with arrows marked "S" indicate serotonin. Now, remember, 22 there's other neurochemicals surrounding this, within this, 23 and around this, but this is just a depiction of serotonin 24 neurotransmission. Here's how it works and we'll have 25 experts, believe me, that hopefully will be able to explain it 30 1 in more clarity, but let me give you a preview of what I know 2 about it and what I expect the evidence to show. You have a 3 presynaptic nerve end and you have a postsynaptic nerve end. 4 There is in fact a space, an empty space, between the two 5 nerve ends of the two neurons. They're called neurons. And 6 the -- you've got -- it's like a bridge or a string or 7 something and you've got a gap there. And what you have is, 8 you have an electrical impulse with thought; thought being 9 transmited via electrical impulses that are picked up by these 10 serotonin cells. The serotonin cells then -- it's not cells. 11 The serotonin molecules are free here in this space, 12 absolutely free. The point is, is to get the thought from 13 this side to this side, and the way serotonin does it is by 14 traveling across -- the thought travels across here and it 15 falls into a receptor side. All right. Once the impulse gets 16 here, it connects and the molecule fires across. So you have 17 the serotonin impulse going across the serotonin synapse. 18 This is called the synaptic cleft, this open space. 19 What Prozac does, is it works right here on this 20 reuptake port. This is a constantly moving process. There's 21 more serotonin being produced and there's got to be some way 22 for the serotonin to be regulated, so this port right here is 23 reabsorbing serotonin, so it's trying to maintain the same 24 level. What Prozac does, it's a specific molecule that stops 25 it up right here. It stops the reuptake of serotonin. The 31 1 effect of that is to leave more serotonin in the synaptic 2 cleft because there is still being serotonin manufactured by 3 this presynaptic nerve. The thought is by increasing the 4 amount of available serotonin in this area that you're going 5 to increase neurotransmission; you're going to make the 6 serotonin system work better, more smoothly. Now, I know this 7 is difficult for me to explain, but the point is, is that 8 Prozac -- this has been -- remember, this is the theory that 9 depression is caused by there being a low serotonin level. 10 The theory is, is if you increase the amount of serotonin in 11 the synaptic cleft, then you will improve neurotransmission. 12 The way you do that is by stopping up the reuptake of it. 13 It's like you have a bucket and you've got a constant stream 14 in that bucket and you've got a hole in the bottom of the 15 bucket. There is a smaller hole at the end, so you've always 16 got a level of liquid in that bucket, but if you stop up the 17 hole and have the same amount of fluid coming in, you're going 18 to increase the level, or if you reduce that hole you're going 19 to increase the level of serotonin; the theory being if you 20 increase the level of serotonin you increase mood. 21 The problem with this is, is that no one knows 22 exactly what anybody's serotonin level is. It can't be 23 measured. We can't go into a doctor's office and get a 24 serotonin level of our brain chemistry. We can go in and get 25 a serotonin level of our blood chemistry, but that won't do 32 1 any good because the important factor is how much serotonin 2 there is in the synaptic cleft. This is a microscopic detail 3 that you see. It can't be determined at all what the 4 serotonin level is of an individual. The theory that 5 decreased mood is a result of decreased serotonin is just 6 that, a theory. You can't measure directly what an 7 individual's serotonin level is at their synaptic cleft. What 8 we do know is that it varies, probably all 16 of you, as you 9 sit here today, have a different serotonin level right now; in 10 other words, not a one of you that has the same serotonin 11 level. The fact is, when you walked in and you sat down, you 12 each probably had a different serotonin level when you came 13 in. Your level of serotonin is fluctuating daily, and my 14 level of serotonin isn't the same as yours, and my level may 15 not be the same tonight when I go to bed, but the theory is 16 that you can generally increase the level of serotonin. You 17 can generally increase mood. Again, that's a theory. 18 With this theory in mind that if you could 19 increase serotonin levels you could reduce depression, the 20 Lilly scientists set out to invent a chemical that would 21 increase serotonin, and they invented Prozac. As I said, 22 Prozac is not something that occurs naturally; it is a 23 synthetic, synthesized medication. It was physically invented 24 and developed in the Lilly laboratories in Indianapolis, 25 Indiana, two and a half hours up Interstate 65. After the 33 1 Lilly scientists invented Prozac, the first thing they did was 2 get a patent on it. It is an invention that was patentable, 3 it was a peculiar product and they got a patent on it to make 4 sure it was theirs. Prozac was invented by the Lilly 5 scientists for Lilly to sell to the public to treat 6 depression. The goal from the outset by Lilly in developing 7 this product was to sell it for treatment of their depression. 8 It was invented back in the '70s, it was developed in the late 9 '70s. The clinical trials occurred in the late '70s and early 10 '80s. 11 Remember, throughout this case, that the theory, 12 the basis for how Prozac works is in fact a theory. It's 13 never been proven conclusively that increasing the level of 14 serotonin will improve mood. 15 When Lilly got the patent on Prozac, fluoxetine 16 hydrochloride, that meant nobody else could do anything with 17 it; it was their product. But being their product didn't do 18 them any good. In order to justify their product, they had to 19 be able to sell it. In order to sell it, they had to get Food 20 and Drug Administration approval. What the Food and Drug 21 Administration requires is that they test it. This is what's 22 called the clinical trials, the testing phase of Prozac. 23 I believed when I started this case that FDA 24 approval meant that a drug had been tested by the Food and 25 Drug Administration in Washington. I believed that physically 34 1 the FDA in Washington took that product, put it under a 2 microscope, did whatever they do with it and tested it. I 3 believed that they had actually gotten their scientists, their 4 doctors, their chemists and their people, the FDA people to do 5 the testing on this drug. I bet that you aren't any different 6 than me in your belief that I started out with, that the FDA 7 actually tested this drug. That's not true. The FDA itself 8 doesn't test pharmaceutical products in this country. The FDA 9 didn't test Prozac. Food and Drug Administration didn't test 10 Prozac, the National Institute of Mental Health didn't test 11 Prozac. The Centers for Disease Control didn't test Prozac. 12 Eli Lilly and Company tested Prozac. The inventor of the 13 drug, the proponent of the application for food and drug 14 approval tested the drug. What I mean by that is that Lilly 15 invented the drug, Lilly designed the test that would be 16 performed on the drug. Lilly chose the investigators who 17 would test the drug. Lilly chose the sites where the drug 18 would be tested. Lilly set up the rules and guidelines for 19 what people could be included in the test. The tests were 20 conducted exclusively by Eli Lilly. The trial process was 21 done by Lilly at their guidance, direction and control. 22 The first thing they did was they gave the 23 product to animals. They just injected Prozac into rats and 24 mice and monkeys and things of that nature. They did tests on 25 them. But Lilly did that in their animal laboratories in 35 1 Indianapolis, Indiana. The Food and Drug Administration 2 didn't do that. Lilly then reported that data to the FDA in 3 Washington, but remember, the FDA didn't kill any rats. These 4 were all Lilly rats that died in the clinical trial, clinical 5 trial process on animals. 6 When the human trials started, what Lilly did first was give 7 that medication, Prozac, fluoxetine hydrochloride to normal, 8 healthy humans. But they did that in their clinic in 9 Indianapolis, Indiana; the Food and Drug Administration 10 doctors didn't give Prozac to people in Washington. It wasn't 11 given at the Centers for Disease Control in Atlanta. It 12 wasn't given at the National Institute of Mental Health in 13 Bethesda, Maryland. The normal human trials were performed by 14 Eli Lilly on people under Eli's control by people under Eli 15 Lilly's control. Then that data was reported to the Food and 16 Drug Administration in Washington. 17 After the drug was given to human subjects who 18 weren't depressed, the drug was given to individuals that were 19 depressed. That wasn't done in Washington, D.C. First of 20 all, Eli Lilly and Company designed those tests. They're 21 called protocols. And what they are is they're a guideline of 22 how to do the test. But that was done, those protocols were 23 drawn up in Indianapolis, Indiana. That's not something 24 that's prescribed by the Food and Drug Administration. Once 25 the protocols or guidelines were drawn up, Eli Lilly and 36 1 Company went out and hired investigators to administer these 2 tests and they hired people, psychiatrists over the country, 3 and they chose them because they had been involved in other 4 clinical trials for Eli Lilly and for other pharmaceutical 5 manufacturers, and because they had a particular expertise in 6 testing psychotropic medication. They paid those 7 investigators and they paid them based on the number of 8 patients that they enrolled in the studies. They gave to the 9 investigators the rules of the test. 10 Those rules of the clinical trials prescribed 11 who could be in the test and who could not be in the test. 12 They prescribed how the test was to be done and what scales 13 were to be used. Obviously, they were testing the drug to see 14 whether or not it had any effect in treating depression. So 15 what they do is they administer a lot of scales. You'll hear 16 stuff like the Hamilton Depression Rating Scale. You'll hear 17 Ham and Ham D and Ham D3. They administered the Clinical 18 Global Impression, so you'll hear CGI. You'll be masters of 19 these terms by the time we finish. The point is is those 20 scales, what scales they used were prescribed by Lilly. The 21 investigators didn't have any discretion, then, in how to test 22 the people. 23 The investigators were given case report forms 24 to fill out on these patients. These case report forms were 25 filled out by the investigator or their assistants, but those 37 1 investigators didn't send those case report forms to 2 Washington to the Food and Drug Administration; those 3 investigators sent those case report forms to the people that 4 were paying them, Eli Lilly and Company in Indianapolis, 5 Indiana. Then when those case report forms came to Lilly in 6 Indianapolis, that data was put on computers and that data was 7 defined and categorized in many different ways and was 8 summarized and was capsulized and was crystallized and was 9 compartmentalized. Then Lilly sent data to the FDA, but the 10 data that Lilly sent to the FDA was their summaries, their 11 capsulizations and their crystallizations of what the results 12 of the clinical trial were. Lilly will tell you in this case, 13 "Oh, we submitted to the Food and Drug Administration all the 14 data we had on Prozac, fluoxetine hydrochloride. They didn't. 15 They did not. But they're going to say we sent every case 16 report form that we had to them. What they did is they put it 17 in a microfiche and sent it off to Washington. Well, the FDA 18 and many other governmental agencies are understaffed, 19 underpaid and overworked. Believe me, the Lilly scientists 20 themselves will tell you that the FDA relied not on the 21 individual case report forms but simply on the summaries and 22 the characterizations of that data that were sent in by Eli 23 Lilly. 24 The fact of the matter, ladies and gentlemen, 25 is, is that we are at the mercy; Joseph Wesbecker was at their 38 1 mercy and these plaintiffs in this case all are at the mercy 2 of the inventor and the seller of the drug that tests the 3 drug. You're going to be able to make your own 4 characterization and your own impression as to whether or not 5 that's good or bad or not, but the clear truth of the matter 6 is we're all at the mercy of people that invented the drug and 7 the people that are going to profit from the drug, and with 8 Prozac it was Eli Lilly and Company. 9 The first that Lilly did in connection with 10 these clinical trials was they gave the drug to animals in the 11 late '70s. When they gave the drug to cats back in the late 12 '70s -- this is the early clinical trials, they found that 13 that drug was interfering with REM sleep, R-E-M, rapid eye 14 movement. That apparently is a significant type of sleep that 15 we all need to stay mentally stable. Psychotropic medication 16 was affecting the brains of cats. It was interfering with 17 their REM sleep. We'll show you the scientific paper. We'll 18 read to you from the scientists about when they gave Prozac to 19 the cats in pretty healthy doses, healthy cats, they found 20 that those cats that had otherwise been friends, started 21 growling, hissing and fighting. They actually reported that 22 in a scientific paper. Lilly didn't tell the Food and Drug 23 Administration that this had happened. 24 The first few clinical trials didn't show that 25 Prozac was any good in treating depression. In fact, it 39 1 indicated that it was not good at treating depression because 2 it was, in some people, making them agitated, nervous, 3 irritable and psychotic. In 1978, the clinical trials on 4 Prozac were stopped, discontinued because Prozac couldn't be 5 found to be effective -- it's called efficacious and because 6 the side-effect profile on Prozac was pretty scary. But the 7 supervisor that stopped the clinical trials was overridden by 8 the inventors of the drug. They went to the supervisor's 9 boss. They went to a vice-president, and they said, "Give us 10 one more chance to prove that this drug works." And so they 11 decided that what they would do is that they would give Prozac 12 one more year. And what they did is they assigned Prozac to a 13 gentleman who had one year left before retirement, and they 14 said, "During your last year, we want you to run some trials 15 to see simply if Prozac works. You're limited to looking at 16 one thing. Can you prove that Prozac is efficacious." 17 The results of Doctor Slater's testing was 18 borderline at best. There was very minimal efficacy shown, 19 but the agitation, anxiety, nervousness, psychotic profile of 20 the drug was still recognized. Doctor Slater indicated that 21 20 milligrams was worthless and that people were going off the 22 wall at 60 milligrams. Doctor Slater indicated that maybe 23 there ought to be some combination of this drug with some 24 other drug that would reduce this agitating factor that this 25 drug produced. The problem with that is, is that these people 40 1 that invented the drug, Doctor Fuller, Doctor Wahl, who were 2 proud of the drug because this was something they had 3 synthesized and it was important to them because it only 4 worked in the serotonin system. It purportedly didn't work on 5 any other parts of neurotransmission. It didn't affect 6 dopamine. It didn't affect epinephrine. It didn't affect 7 norepinephrine. It was a pure drug. They didn't want to 8 contaminate this drug with any other type of medication that 9 would reduce the dangerous property of this drug that was 10 emerging. 11 Nobody at Lilly told the Food and Drug 12 Administration that this drug was beginning to present this 13 profile. Nobody at Lilly told the FDA that the product was 14 worthless at 20 milligrams and that people were going up the 15 walls on 60 milligrams. Nobody told Lilly -- told the FDA 16 that the Lilly clinical trials had been canceled. 17 Early on, back in '79 and '80, after this 18 problem began to arise, the Lilly scientists decided what they 19 better do is do something about this problem. So they did 20 something about this problem in a few ways: They directed the 21 course of the clinical trials so that they could get a 22 favorable outcome so they could sell the medication. The die 23 was cast by Lilly themselves. Number One, what they did to 24 control the result of the clinical trials was to design the 25 trials in such a way that they would exclude individuals with 41 1 serious suicidal risk. In other words, they took a depressed 2 population and they reduced it automatically, and they reduced 3 those people in the clinical trials who were probably the most 4 depressed, those people with serious suicidal risk. 5 In excluding those individuals with serious 6 suicidal risk, they certainly excluded a significant body of 7 information concerning the safety and efficacy of this drug. 8 Because Lilly themselves are going to get up and say it's 9 important to understand that suicidality is a real significant 10 factor in depressed individuals. And then they say, well, our 11 clinical trials didn't show any increase in suicidality. The 12 reason they didn't is because they excluded them. 13 Secondly, the way they directed the clinical 14 trials in their favor was somehow, some way, to give Prozac to 15 individuals who were less depressed than people on placebo or 16 people on comparative drugs. How they did this, we don't 17 know. We didn't learn this until we had our statistician look 18 at the statistics from the baseline scores on these tests. 19 And he looked at the people that started out the test and 20 found that the people that started out the test had lower 21 baseline scores than the people on Prozac and the people on -- 22 the people on Prozac had lower baseline scores than the people 23 on placebo, which is no drug, or comparative drug which is 24 another kind of existing antidepressant. Somehow it ended up, 25 whether it was by chance or by purpose, that the people who 42 1 were taking Prozac in the clinical trials weren't as sick as 2 the people with whom Prozac was being compared. 3 Thirdly, and probably most significantly in 4 connection with what happened to these people and their loved 5 ones is, is that Lilly allowed their clinical investigators to 6 administer what's called contaminant medication. That means 7 that if you're in a test on a clinical trial and you're being 8 given Prozac, that you can get another medicine along with 9 your treatment. What occurred was that the people in the 10 Prozac clinical trials got sedatives. They got sedatives 11 because Prozac causes insomnia in a number of people. You 12 know what else the people in the Prozac clinical trials got? 13 They got tranquilizers because Prozac was making them 14 agitated. In effect, what you had in the Prozac clinical 15 trials were not clinical trials of Prozac at all, but clinical 16 trials of Prozac in combination with sleeping pills and 17 tranquilizers. You're going to hear the terms chlorhydrate 18 and benzodiazepines in this lawsuit. Those are -- 19 chlorhydrate is a sleeping pill and benzodiazepines are 20 tranquilizers, like Valium. They're psychotropic medications. 21 Chlorhydrates are called hypnotics; benzodiazepines are called 22 anti-anxiety agents, tranquilizers. So when the Prozac was 23 making the people in the clinical trial nervous or jumpy or 24 anxious or when the Prozac in the clinical trial population 25 was causing the people not to be able to sleep, the 43 1 investigators were giving the clinical trial subjects 2 medication. And so what you found was these other medications 3 reduced the insomnia and reduced the anxiety, agitation, 4 nervousness, irritability because they were getting 5 tranquilizers, and you had people whom were actually being 6 tested on two medications. 7 Well, the FDA got wind of that, and they wanted 8 some kind of report as to how much psychotropic medication was 9 being given to the clinical trial subjects, and they finally 10 got it after some time out of Lilly, but that data is 11 relatively obscure and relatively incomplete. But what you're 12 going to find is that a significant number of people in the 13 Prozac clinical trial didn't get just Prozac. They got other 14 drugs that were affecting their behavior, and Prozac, 15 remember, is supposed to affect your behavior. 16 Now, let me step aside a second and talk to you 17 a little bit about something else, another line of evidence 18 that you're going to be seeing in this case; that's suicide 19 and attempted suicide. Well, Joseph Wesbecker, after he shot 20 and murdered these people, committed suicide himself, but our 21 claim in this case isn't that Prozac caused Joseph Wesbecker 22 to just commit suicide; our claim here is that Prozac caused 23 Joseph Wesbecker to injure them. It caused violent, 24 aggressive, homicidal behavior. 25 I thought when I started this lawsuit that you 44 1 shouldn't be able to get any information about whether or not 2 Prozac caused Joseph Wesbecker to shoot somebody by looking at 3 information as to whether or not Prozac causes somebody to be 4 suicidal, but apparently that's not the case. Apparently, the 5 concept of suicide, attempted suicide and violent, aggressive, 6 homicidal behavior are all linked, and apparently the question 7 is violence. And it doesn't make any difference whether that 8 violence is outward directed, which would be violence toward 9 others, or inward directed, which would be suicide. 10 Complicated. 11 You think, well, if I'm mad at somebody that 12 doesn't necessarily mean I'm going to commit suicide, or if I 13 commit suicide that doesn't necessarily mean that I'm likely 14 to go out and shoot somebody else. But the psychologists -- 15 all of the psychologists, even the Lilly psychologists, say it 16 comes from the same biological marker, a biological marker of 17 violence, aggressive behavior. Guess what biological marker. 18 Take a guess at what biological marker is associated with 19 suicide and violent behavior. You guessed it. Serotonin. 20 Lilly said -- Lilly says that the scientific data is that by 21 taking Prozac you increase your serotonin and, therefore, 22 you'd be less likely to attempt suicide, you'd be less likely 23 to become violent and aggressive. Remember, the theory is 24 only a theory. What in effect occurs is that when you stop 25 this port up, when you prevent reuptake, you get a flood of 45 1 serotonin. It's like stopping the hole in a bucket and you 2 still got the faucet running in. Something's got to give. 3 That is a real crude example, believe me, but it's basically 4 the same thing. 5 What happens, we think, in part is when there 6 gets a lot of serotonin in here, it messes the system up. It 7 messes the system up because reuptake is plugged up. When 8 there gets to be a lot of serotonin in, this postsynaptic 9 neuron has to do something. What it has to do is make these 10 receptor sites here less sensitive. It dulls them. Also what 11 it does is it makes these sites that make the serotonin shut 12 down. They quit making serotonin because they sense there's 13 an increased level of serotonin in this synaptic cleft. So 14 you start getting, we think, and Lilly agrees, a lot of 15 compensatory mechanisms here. But, remember, nobody has ever 16 been able to measure it at the synaptic cleft. Nobody knows 17 what it is to start with. The only evidence Lilly had to 18 submit to the Food and Drug Administration as to whether or 19 not the theory worked, Number One, and whether or not by doing 20 that increased the serotonin you might have a bad effect 21 instead of a good effect was the clinical trials. And that's 22 why you're going to hear a lot about these clinical trials 23 because the clinical trials didn't accurately present the 24 dangers and safety of Prozac, and what happened in the 25 clinical trials is that this danger for Joseph Wesbecker was 46 1 obscured by virtue of the design, implementation and reporting 2 of the clinical trials to the Food and Drug Administration. 3 The reason Joseph Wesbecker did what he did, in part, in part, 4 was because Eli Lilly didn't accurately design the trial, 5 conduct the trials and report the data that they learned in 6 the trials to the FDA. I'm out of breath. I think I've been 7 going how long, Your Honor? 8 JUDGE POTTER: Approximately an hour. You want 9 to take a break? 10 MR. SMITH: You-all want to take a quick break? 11 JUDGE POTTER: Ladies and gentlemen, I hope you 12 can all hear me; not too many of you can see me. What we're 13 going to do is take a 15-minute recess. As I've mentioned to 14 you-all before, do not permit anybody to speak to you on any 15 topic connected with this trial and any attempt to do so 16 should be reported to me. Do not express opinions on this 17 case or form any opinions about it until it is finally 18 submitted for your determination. With that admonition we'll 19 stand in recess for 15 minutes. 20 (RECESS) 21 JUDGE POTTER: Mr. Smith, I hope we've done a 22 little better with the microphones there. If we haven't and 23 you want to take a stop and try and work on it, please feel 24 free to do so. 25 JUDGE POTTER: If there's anybody in the jury 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 1 there that can't hear Mr. Smith -- I know lawyers raise and 2 lower their voices for effect, but if he does that and you 3 can't hear him, the effect isn't doing any good. 4 MR. SMITH: Have you-all been able to hear me 5 all right? Otherwise, I'll just repeat what I said. I'm 6 going to try and move a little quicker because I, believe it 7 or not, have a lot more to say about this drug and what its 8 effect on Joseph Wesbecker was. 9 I want to go back with you to the clinical 10 trials. By the early 1980s the Lilly trials were in full 11 progress. They had clinical trials going in multiple sites 12 all over the country and they were getting clinical trial 13 report forms in. They were designing more and more trials 14 with more and more guidelines. They were still excluding 15 serious suicidal risk of patients in the clinical trials. 16 They were still administering psychotropic tranquilizers and 17 sleeping pills to get rid of this stimulating, activating 18 effect that was being seen with Prozac. But by September 19 1983, Lilly had collected what they thought was enough support 20 and enough data to warrant approval by the Food and Drug 21 Administration of Prozac; in other words, they thought they 22 had enough proof of safety and efficacy to get FDA approval of 23 the product, and so they submitted what's called an NDA. Up 24 to that time they had been operating under an IND. A lot of 25 initials, but IND simply means that they were investigating 48 1 the drug; NDA means that they were continuing to investigate 2 the drug but they thought they had enough data to support the 3 safety and the efficacy of the product. 4 In the NDA -- and NDA is one document with 5 thousands of documents behind it, but the first page of that 6 document says -- I want you to remember this throughout this 7 trial. The first page of that document is Lilly's promise and 8 warranty and guaranty that the data they're submitting to the 9 Food and Drug Administration is all the scientific data that 10 there is, pro or con, good or bad or indifferent, regarding 11 what the scientific knowledge of the product is and how it 12 affects human beings, because the product now is being treated 13 and being used for the people that need it, depressed people. 14 Remember, Lilly has promised to the Food and Drug 15 Administration and to you and me and everybody that by 1983 16 this is all the science, all the data, good or bad, pro or 17 con, in connection with this product. That promise is a 18 continuing promise that they will continue to give them 19 documents and information and science on this drug. 20 By submitting the NDA you don't get overnight 21 approval from the FDA. The FDA begins a review process. 22 Remember, it's a review process. You've got thousands of 23 people in the clinical trials, according to Lilly. You've got 24 hundreds of investigators, hundreds of Lilly employees working 25 on the product, and you've got millions of Lilly dollars in 49 1 the product, and they're continuing to spend more money at 2 this time on the product, but they hadn't made a dime off the 3 product. 4 By September 1983, all the data that they had 5 collected from the different investigator sites wasn't really 6 too good. If you look at the data individually, what it 7 showed was that it wasn't any better than other existing 8 antidepressants. If you looked at the data individually, many 9 of those trials showed that Prozac wasn't any better, wasn't 10 as good as existing antidepressants. The only way Lilly could 11 get data that they wanted to support efficacy was by pooling 12 all of their data and using the raw numbers together. 13 We don't live in the only country in the world. 14 And there's not a market -- this is not the only market in the 15 world for an antidepressant. People are suffering from 16 depression worldwide. So Lilly made application for the 17 approval process in countries throughout the world, including 18 Europe. So they submitted this same data, same data that they 19 submitted to the FDA to a lot of other governments. They 20 submitted it to Germany; they submitted it to Italy; they 21 submitted it to France; they submitted it to Spain. What 22 those governments did was the same thing the FDA did; they 23 were looking for efficacy and safety of the drug. Now, they 24 looked at it in several different ways, but the final analysis 25 is, is this drug safe. Lilly felt like they needed to sell 50 1 this drug worldwide. Lilly saw a potential for this drug 2 worldwide, so they submitted applications and let other 3 governments review this data that they submitted to the Food 4 and Drug Administration. Big mistake. Big mistake for Lilly. 5 The governmental authority in Germany that's 6 charged with making sure products are safe for German citizens 7 is called the BGA. When the BGA looked at this data they saw 8 some real problems with this drug. The BGA has a different 9 review process from the FDA. The BGA has the governmental 10 body itself that approves the product, but they also have 11 what's called a Commission A. What the Commission A is, is a 12 group of independent scientists that review the safety and 13 efficacy of this drug, along with the BGA. So back in 1984, 14 they had -- the BGA had finished their review of this product. 15 Same data, remember; same controlled Lilly clinical trial data 16 that the FDA had seen. Look what they found. 17 This is a document. This is an interoffice 18 Lilly document. This first page says, "Yesterday we 19 unofficially received a copy of the medical comment on 20 fluoxetine application. A translation is attached." 21 Remember, fluoxetine is the chemical name for Prozac. This 22 letter was sent to the Lilly employees in Indianapolis, to 23 Lilly employees throughout the country, and to Doctor Leigh 24 Thompson in Indianapolis, this man sitting right here at the 25 end of this table. It was sent May 25th, 1984. Here's what 51 1 it says. This is what the German government is saying about 2 their review of this data. This is their comment on the 3 clinical documentation. 4 Number One, it says, "In the studies, up to 17 5 criteria for exclusion were stated." In other words, these 6 rules about who could be in the trials and who couldn't be in 7 the trials, there were 17 different criteria for exclusions. 8 "Of the 46 attached study protocols, in 25, the note is to be 9 found that these studies are not completed." This is the same 10 data that the FDA got. "The comparison studies with standard 11 antidepressants and with placebo gave most variable results. 12 In three studies, the preparation showed no efficacy; in 13 others, it was equally effective. Only in the Imipramine 14 study, the preparation showed itself to be more effective in 15 individuals of the studied parameters." Not too good a report 16 about the efficacy of this drug. 17 Now look what they say: "The frequency of side 18 effects was very high, partly more than 90 percent, and the 19 side effects resulted nearly in each study in dropouts. The 20 frequency of side effects depended on the dose, the age and 21 the duration of therapy. Deciding for the clinical 22 significance of side effects is not only the frequency of 23 their occurrence but of their safety. In 15 to 20 percent of 24 the cases, side effects occur which involve the central 25 nervous system," that's the brain and the nerves. "As most of 52 1 them vary, assemble the clinical picture from underlying 2 disease. Even from theoretic aspects one has to expect an 3 intensification and not an improvement of symptoms." In other 4 words, the side effects were getting worse. 5 Summarizing the opinion, "Considering the 6 benefit and the risk, we think this preparation totally 7 unsuitable for the treatment of depression." Totally 8 unsuitable for the treatment of depression. May 1984. That's 9 the medical comment from the German regulatory authority. 10 Side effect profile, 90 percent. Do you know when the Food 11 and Drug Administration learned of this? Never was it said to 12 them in that form. You know when it was sent? It was sent 13 over two and a half years later to the FDA only in summary 14 form. 15 What else did the German government have to say 16 about this? Well, in fact, the German government told Lilly 17 that they were going to reject the product and that you either 18 get your application withdrawn or get us some more data. Here 19 is the official correspondence from the German government. 20 This is the official intent-to-reject letter 21 from the BGA. "The drugs concerned are not sufficiently 22 tested to the secure state of scientific knowledge, and the 23 therapeutic efficacy which is claimed for them is 24 insufficiently substantiated. The promoted studies do not 25 allow a judgment on the efficacy and safety in long-term use. 53 1 For the drug's concern, there is, according to their specific 2 profile of adverse effects, the justified suspicion that they 3 have unacceptable damaging effects. The use of the 4 preparation seems objectionable, as the increase in agitating 5 effect occurs earlier than the mood-elevating effect and, 6 therefore, an increased risk of suicide. During treatment 7 with the drug, some symptoms of the underlying disease, 8 anxiety, insomnia, agitation increase, which, as adverse 9 effects, exceed those which are considered acceptable by 10 medical standards. We give you a chance to correct this or 11 your product is not going to be approved." 12 You know when Lilly told the Food and Drug 13 Administration, even though they learned it in September '83, 14 that they would make them aware of the scientific state of the 15 knowledge of this drug? They told them in October 1987, years 16 later. And when they told them, they obscured it, summarized 17 it, and hid it. It was too late. 18 When it became apparent that Lilly wasn't going 19 to get approval in Germany without some serious help, they 20 called in the scientific cavalry in Germany; they didn't help 21 them. And they said, their experts, their own experts told 22 them that the suicide rate was way too high; that this product 23 was creating activation and agitation and that this 24 side-effect profile of increased suicide would continue to 25 exist. And it lingered and lingered and lingered in Germany. 54 1 Apparently, Lilly sent volumes of information to 2 Germany to try to correct this problem. Apparently, they did 3 more studies to try to correct this problem. It didn't help. 4 The only way Lilly could get approval of Prozac in Germany was 5 to use the drug, recommend use of the drug in the package 6 insert in a way differently than it is here. The only way the 7 German government lets Prozac be sold in Germany is by a 8 warning in the package insert concerning these particular 9 risks and hazards. 10 On December 6, 1989, when this product was 11 already been approved in the United States, it was still under 12 consideration in Germany. On December 6, 1989, when a lot of 13 these people were still in the hospital, when a lot of these 14 people were still in the process of terminating their loved 15 one's estate, Prozac hadn't been approved in Germany. When 16 Joseph Wesbecker killed and maimed these people, Prozac wasn't 17 allowed to be prescribed in Germany at all. 18 Here's what the proposed package insert said in 19 Germany that was under application at the time concerning 20 people with Joseph Wesbecker's risk. It says, "Fluoxetine. 21 Does not act generally sedating. Until the 22 onset of depressive-alleviating effect, the patients have to 23 be observed adequately. In patients with suicidal risk, 24 continuous observation and/or a generally-sedating additional 25 therapy may be necessary. In patients suffering from 55 1 agitation or marked sleep disturbance, fluoxetine has to be 2 used with special care." 3 Let me read that to you again, because I can't 4 read that very well, and I think it's significant to know what 5 Lilly was recommending to the German government. This is a 6 Lilly document. This is not a German government document; 7 this is what Lilly proposed that the people of Germany know 8 about this product. I'm going to read it again because this 9 is December 6, 1989, two, almost three months after what 10 happened here in Louisville happened. "Fluoxetine does not 11 act generally sedating. Until the onset of depression- 12 alleviating effect, the patients have to be observed 13 adequately. In patients with suicidal risk, continuous 14 observation and/or a generally sedating additional therapy can 15 be necessary. In patients suffering from agitation or marked 16 sleep disturbances, fluoxetine has to be used with special 17 care." 18 This is what doctors in the United States got 19 and get (indicating). Not a word. Doctor Lee Coleman, 20 psychiatrist here in Prozac -- psychiatrist here in 21 Louisville, never got that information. Doctor Lee Coleman 22 never got this final -- this is what finally appeared in the 23 Prozac -- Fluctin -- it's called Fluctin in Germany. Prozac. 24 Fluoxetine hydrochloride, Fluctin. It's called Fluctin in 25 Germany. This is what the German people are told about this 56 1 product; this is what you're not told about this product. 2 Risk of suicide. Fluctin does not have a general sedative 3 effect on the central nervous system; therefore, for his or 4 her own safety the patient must be sufficiently observed until 5 the antidepressant effect of Fluctin kicks in. This also 6 applies in cases of extreme sleep disturbances or 7 excitability. Ask yourself in this case why don't the people 8 in Louisville, Kentucky, get the same information that people 9 in Bonn, Hamburg or Berlin, Germany, get concerning the risk 10 of this drug. Ask yourself that throughout this case. 11 You want to hear something else? You want to 12 see something else concerning what was going on with Lilly 13 concerning this drug? This is back in 1984. 1984 is when the 14 BGA sent that original letter out saying here's our list of 15 concerns, here's our intent to reject. What Lilly did was 16 they did this two-volume, four-volume study and sent it to 17 them, and here's a draft of the reply to the medical opinion 18 within the list of concerns, 1984. This was done not part by 19 the FDA, not by the BGA, but by Lilly scientists in Germany. 20 You know what they said about this problem that was raised in 21 the list of concerns, this increased agitating effect, the 22 problem of increased suicide? You know what they said about 23 it? Lilly's own people were telling Germany. They said if 24 the drug is used according to the revised package literature, 25 that's in agitated and suicidal patients only, together with 57 1 concomitant sedative drugs, there should be no doubt of 2 fluoxetine positive benefit/risk ratio in the treatment of 3 depression. Lilly's own people. Lilly's own people. This is 4 a Lilly document, confidential, own people saying if the drug 5 is used according to the package insert with concomitant 6 sedatives it will be safe, only together with concomitant 7 sedative drugs. You know when Eli Lilly and Company told the 8 Food and Drug Administration that they had made this 9 recommendation for use of Prozac in Germany? Do you know when 10 they told them that they had said this about this risk with 11 this drug? They still haven't. You've heard it, but the FDA 12 hasn't heard it. 13 In effect, what you have is Lilly applying two 14 different standards to two different countries. 15 Unfortunately, for you and I and most unfortunately for these 16 people in these first four rows, we're the ones who get the 17 short end of that study. Lilly says, well, you know, these 18 people are depressed. We did that because that's the only way 19 we could get it marketed there. That's simply a regulatory 20 matter. You don't have to worry about that regulatory matter 21 in foreign countries. We have the chairman of the board of 22 Eli Lilly and Company on videotape, a videotaped deposition, 23 and he'll tell you, you view him and you see what his attitude 24 is concerning this product. It's simply a foreign regulatory 25 problem. Is it a foreign regulatory problem? If that were 58 1 the end of it that would be bad enough, but we've got more 2 evidence concerning the danger of this drug. Fortunately, 3 since the FDA itself doesn't independently test the drug; 4 fortunately, since the FDA relies on the manufacturer of the 5 drug to test the drug and report to them the test of the drug, 6 they want some information about what happens to the drug 7 after the drug goes to market. This is called postmarketing 8 experience data. 9 The reason for this postmarketing experience 10 data is simple. The clinical trial data is very limited 11 because you're just studying, Number One, a limited amount of 12 people and, Number Two, it's given during the clinical trials 13 under controlled regulatory regulated circumstances; that is, 14 Lilly has selected only certain people. Once you start 15 selling the product to the public, you're going to be exposing 16 the product to many more people. You're going to get a great 17 wider variety and a broader data base of the experience with 18 the drug. So if something comes up with the drug, the FDA can 19 monitor it, and they do this by means of some regulations. 20 You can file, any doctor, anybody can file with 21 the FDA an adverse experience report. It's called a 1639. 22 The doctors aren't required to do this, but Lilly is required 23 to, if they learn of an adverse experience with a drug, report 24 it to the FDA. Lilly keeps their own computer data base 25 concerning adverse experiences with a drug. That's called the 59 1 DEN system; Drug Experience Network. But the FDA's data base 2 system is called the SRS system. Do the clinical trials, does 3 FDA approval, even according to the FDA, mean that Prozac is 4 safe? Let me tell you what the FDA says about that. This is 5 an FDA document: "When a drug goes to market, we know 6 everything about its safety. Wrong. Call 1-800-FDA." 7 The FDA is telling you two things here. They're 8 telling you, Number One, simply our approval of the drug 9 doesn't mean the drug is safe and, Number Two, we want to know 10 about adverse experiences in connection with this drug. Well, 11 there's more information. More information. 12 There has -- this product's been on the market 13 since 1987 in this country, so there is a data base concerning 14 this drug. Lilly scientists categorize the agitation syndrome 15 and the potential of this drug to cause problems, and they 16 categorized it in several different ways. I'll read these off 17 in connection with -- we have the computer data base. You can 18 write the Food and Drug Administration, make a request and get 19 information about it through a computer, the experience of the 20 drug. This is through July 1993. This is computer printouts 21 of adverse experiences in connection with this drug that are 22 related to the problems of Joseph Wesbecker, violence towards 23 self, suicide, attempted suicide. 24 Depression with suicidal ideation, 933 cases; 25 psychotic depression, 114 cases; Overdose, 897 cases; suicide 60 1 attempts, 1,889 reports, in black and white, hard computer 2 data. Through July 1993, there were a total of 4,830 reports 3 of self-directed violence in connection with this drug. Now, 4 other directed violence, what are the numbers on that? 5 Here's subjects that Lilly scientists agree is 6 what you look at. Here's the event turns you look at in that. 7 Aggravation reaction, 745; acute brain syndrome, 44; 8 agitation, 1,035; CNS stimulation, 49; confusion, 492; 9 delirium, 98; delusion, 71; depersonalization, 125; emotional 10 lability, 206; hostility -- hostility, 664 reports of 11 hostility on this drug; manic reaction, 477; manic depressive 12 reaction, 25; paranoid reaction, 139; personality disorder, 13 430; psychosis, 226; schizophrenic reaction, 16; thinking 14 abnormally, 497; irritability, 940; intentional injury, 373; 15 death, just the category of death, 120; abnormal dreams, 344; 16 insomnia, 1,073. These are categories Lilly scientists agree 17 are applicable to looking at this issue as to whether or not 18 Prozac causes violent aggressive behavior; anxiety, 928. 19 Total outward directed signs of violence, 7,177, along with 20 the eight or nine thousand of inward directed violence. 21 Shocking. Shocking. 22 Prozac is given to a lot of people. Shocking. 23 You know what else? The FDA literature themselves, the FDA 24 data itself indicates -- you know how many reports the FDA 25 actually gets of adverse events in connection with a drug? 61 1 Only 10 percent. This is the tip of the iceberg, apparently, 2 according to FDA data. So you can multiply this number times 3 10. Lilly says there is no causal connection. The adverse 4 event form itself says there's no causal connection here 5 presumed. Somebody -- the doctors on the line, the doctors 6 actually giving this medication thought there must be such a 7 causal relation that they reported it to the FDA. 8 Here's some more data on the postmarketing 9 experience for this drug. When you start looking at the 10 adverse event profiles, postmarketing and premarketing, this 11 compares fluoxetine, which is Prozac, with three other -- four 12 other commonly known, commonly prescribed antidepressants, and 13 the reason these numbers are 1982 to 1991, is that Prozac was 14 being manufactured -- being tested in 1982, so they put in all 15 the data. So these other antidepressants which were already 16 on the market had actually a seven-year head start on Prozac 17 in collecting adverse events. Look what happened. Suicide 18 attempt -- this is only through '91; that's data through '93. 19 Through '91. This is an FDA document, by the way. Through 20 '91, 519 suicide attempts and 468 overdoses and 321 instances 21 of psychotic depression. Compare those numbers. You know, if 22 you say, well, these numbers in a vacuum are worthless. Okay. 23 Maybe so. Here's a comparison. Look at them. Is the glare 24 too much for you? Look at the differences in the numbers. 25 There were 519 reports of suicide on Prozac; there was 4 on 62 1 Trazodone; 9 on Amitriptyline; 4 on Desipramine; and 0 on 2 Imipramine. We'll give these documents to you later. This is 3 a preview of the dangerous nature of this drug. 4 Inward directed violence, suicide, suicide 5 attempts, overdose, psychotic depression. Here's some other 6 statistics. Same period of time. Look at the difference in 7 numbers. But this gives you a percentage because it takes 8 into account the variety of the numbers of prescriptions and 9 people taking it. Look at the differences in percentages 10 here. This is over 9 percent. This doesn't equal 4 percent. 11 This doesn't equal 8 percent. Why is the experience with 12 Prozac so much greater than with other antidepressants? And 13 these other antidepressants in these years had a 7-year head 14 start. 15 Here's a head-to-head comparison over the same 16 years of Prozac with Trazodone, another well-known 17 antidepressant. And this head-to-head comparison compares it 18 on reports per minimum prescriptions, so this is head-to-head 19 equalized data. Well, in 1982 through 1987, Prozac wasn't on 20 the market so there wasn't any reports of Prozac psychotic 21 depression and suicide attempt. But look what happened in 22 1988, 1989, 1990 and 1991. The black numbers are Prozac. The 23 white numbers down here are Trazodone. Graphically look at 24 the difference in this particular side-effect syndrome. Well, 25 it's 15, 20 to 1. 63 1 Closer to home, closer to Louisville, closer to 2 these people, in my judgment, same years comparison of the 3 data of hostility and intentional injury between Prozac and 4 other antidepressants. Look at the difference. Look at the 5 difference. I mean, it's not -- almost not on the scale. How 6 could this be happening? 7 By the way, do you think Lilly's seeing this for 8 the first time? Do you see this number on the corner here? 9 That means they produced it in response to a request for 10 production. They've had it since it was created. 11 Here's a percentage of the totals. Look at the 12 difference in percentage of hostility and intentional injury 13 versus the other antidepressants. The comparisons are 14 startling. Here's maybe the most startling of the 15 comparisons. This is comparing hostility and intentional 16 injury with Prozac and Trazodone. It's equalized on a report 17 per million. Again, there's no Prozac before 1987, but look 18 what happens in 1988. Look what happens in 1989. This is 19 Trazodone and this is Prozac. Look what happens in 1990. 20 Look what happens in 1991. You know, is this drug capable of 21 producing hostility and intentional injury in people? Look at 22 the numbers and look at the comparisons. Again, Lilly is 23 going to say that this is postmarketing data and nobody has 24 investigated this to see if there's a real scientific 25 connection of these numbers. They're going to say there's a 64 1 lot of things that could have caused this. One of the things 2 that could have caused this is the fact that these people are 3 prone to do this. 4 Well, again, when Doctor Thompson here was 5 fixing to be making a presentation to the entire board of 6 directors at Eli Lilly and Company, he asked some of his 7 psychiatrist research associates to review a material in 1990 8 that he was going to produce to the board on this subject 9 because at that time it had come to light that this drug had 10 this problem. And he said in his -- well, I'll just quote it 11 to you. The document speaks for itself. What Doctor Thompson 12 had said on Verbatim 4 was -- here's how it reads. It says 13 -- the psychiatrists at Lilly themselves are saying -- "We 14 feel that caution should be exercised in a statement that 15 suicidality and hostile acts in patients taking Prozac reflect 16 the patients' disorders and not a causal relationship to 17 Prozac." Listen to this. This is their own psychiatrists 18 that are reviewing these marketing reports. 19 "Postmarketing reports are increasingly fuzzy 20 and we have assigned, 'yes, reasonable related', on several 21 reports." Lilly themselves, Lilly's psychiatrists themselves 22 have found on a number -- number of instances that the reports 23 of suicidality, hostility in connection with this drug were 24 indeed related to the drug. 25 We think that the evidence is clear, ladies and 65 1 gentlemen, this drug presents a real potential for a group of 2 people for serious, serious problems. We think that Lilly has 3 hidden that risk, Lilly has gone at length to prevent you 4 people from knowing about these risks, and they freely admit 5 in Germany that the product should be used in connection with 6 sedatives. 7 The next issue you've got to face, of course, is 8 this: Did this drug -- did these problems that we've been 9 talking about here, did this cause Joseph Wesbecker to do what 10 he did on September 14th, 1989. You know, I thought it was 11 curious that counsel for Lilly yesterday in talking about this 12 case in his voir dire, that he turned into an argument, 13 mentioned the word Prozac on only two occasions. What we 14 expect Lilly to do in this case is not defend their drug, 15 because we frankly think the evidence will show that this 16 problem with this drug is indefensible. What they're going to 17 try to do is attack. 18 MR. STOPHER: Objection, Your Honor, to 19 statements about what the other side is going to do. 20 JUDGE POTTER: He's just setting the stage for 21 his next statements about what he thinks the evidence is going 22 to be. Go ahead, Mr. Smith. 23 MR. SMITH: We think they are going to try to 24 introduce evidence that Joseph Wesbecker was so mentally ill 25 and was so sick that Prozac had no effect on him. Don't ever 66 1 lose sight of the fact that Lilly invented, tested, designed, 2 and marketed this drug for people like Joseph Wesbecker. 3 Joseph Wesbecker's mental illness was major depressive 4 disorder, bipolar disorder, schizo-affective disorder. It's 5 uncontradicted in this case by all parties, Eli Lilly, 6 experts, every one of them admit that Prozac was a drug that 7 was appropriate for Joe Wesbecker. 8 What they're doing here, because they can't 9 defend their drug, is they're attempting to convict the person 10 that their drug was supposed to treat. They would picture 11 Joseph Wesbecker as a Charles Manson or a Jeffrey Dahmer or 12 some sorry sociopath that was destined from the womb to commit 13 this act. We think, and we'll present evidence to present 14 Joseph Wesbecker as being no more or no less prior to August 15 1989, when he got this medication; that he was simply 16 depressed, major depressive disorder, psychotic depression. 17 Let me go over with you quickly some of the core 18 facts in connection with Mr. Wesbecker. He's been married 19 twice and had two children. Let me -- before I start this, 20 let me say I'm not defending the criminal act Joseph Wesbecker 21 committed, in doing what he did. What our case is about is 22 that Prozac caused him to do this. When he did this, he was 23 not under the influence of his mental illness and was not 24 under the influence of his past-life circumstances; what 25 caused him to do this was Prozac. He was married twice and 67 1 had two children. He hit his first wife once. He never hit 2 his second wife. He was in maybe a half dozen fistfights as a 3 teenager, and I'm giving that the best evidence I can. He was 4 in jail once as a juvenile but was never convicted of a crime 5 and never charged with a crime as an adult. Loved his sons 6 even though both of his sons -- both of his sons gave him 7 problems. He really didn't start to have serious psychiatric 8 problems until the mid 1980s. His psychiatric problems were 9 primarily centered around depression, which isn't ordinarily 10 associated with violence, unless you're taking Prozac, as you 11 can see. These problems at work that Mr. Stopher had talked 12 about were not such that would cause an individual to commit 13 this type of act. The fact of the matter is, when Mr. 14 Wesbecker was having these problems at work, he was relieved 15 of, as much as he could have been relieved, of the problem 16 that was causing him the most stress. More importantly, 17 Joseph Wesbecker had been away from Standard Gravure, off work 18 on long-term disability for over a year. That stressor had 19 been primarily taken out of his life. 20 You will see photographs of a large collection 21 of guns. Those guns were collected in 19 -- primarily in 1987 22 and 1988. They were some sports weapons, some assault 23 weapons. The facts are, in May 1989, before he got on Prozac, 24 Mr. Wesbecker took his AK-47 to a shooting range, not to 25 Standard Gravure, and discharged that rifle legally at a 68 1 shooting range or expended one or two thousand rounds playing 2 with the rifle. He was using the type of ammunition that 3 corrodes and jambs the mechanism, the working mechanism. 4 He took it back home and left it there. Didn't 5 get it fixed. Got it fixed September 6, 1989, well after he 6 started taking Prozac in August of 1989 and before Doctor 7 Coleman took him off Prozac. 8 Lilly's case is going to be centered around the 9 problems of Joseph Wesbecker. I think the evidence is going 10 to show that most of the problems that they point to in 11 connection with Joseph Wesbecker are problems that are 12 hearsay, not supported by the evidence. I'm not saying 13 he's -- I'm not trying to justify what Joseph Wesbecker did; 14 what I'm telling you, ladies and gentlemen, is he did it 15 because he was under the influence of Prozac. I think I have 16 some of the most dramatic evidence that there is to establish 17 that. I have evidence of the effect of this drug and its 18 medication by a psychiatrist Lee Coleman, and I have that 19 evidence that was recorded before this happened, before 20 anybody had an opportunity to look at the matter in hindsight. 21 Remember, Doctor Coleman was the psychiatrist who was best 22 able and most trained to observe Joseph Wesbecker in his 23 mental state and to observe the effects of medications on him. 24 He had been treating him for over two years. I have in black 25 and white what Doctor Coleman wrote when he prescribed Prozac 69 1 and after Mr. Wesbecker had taken the Prozac. Here's what it 2 says, 8-10-89: "Patient relates change of meds no specific 3 benefit. Still has morning lethargy, trouble initiating sleep 4 and trouble with memory. Talked about whether to accept 5 present level or try something different. Talked about 6 possibility of benefits of Prozac and patient agreeable to 7 trial of this. Most risk-free method seems to be to start 8 this and then gradually taper Trazodone. Plan, start Prozac, 9 20 milligrams, per day. 10 Thirty-two days later, look at the change. 11 9-11-1989, patient seems to have deteriorated, tangential 12 thoughts. Weeping in session. Increased level of agitation 13 and anger." Heard that before? "Question from Prozac. 14 Patient states he now remembers sexual abuse by co-workers and 15 called sex crimes division of police. Because of 16 deterioration, I encourage patient to go into the hospital for 17 stabilization, but he refused. Plan, discontinue Prozac, 18 which may be cause." 19 Here's the doctor that has the best ability to 20 see the man and to observe the medications. This is what he 21 wrote down before this happened. This is, in my judgment, 22 some of the best evidence we have concerning what Joseph 23 Wesbecker -- what caused Joseph Wesbecker to do what he did. 24 We're going to show you all of his medical records; I just 25 blew this up for you for purposes of the argument, but you'll 70 1 see two years' worth of treatment by Doctor Coleman, and you 2 won't see this kind of problem unless this came up. 3 Remember, throughout this case what the one 4 person that prescribed Prozac and observed its effects on 5 Joseph Wesbecker said, and that he said it before this 6 happened: "Prozac, which may be cause, discontinue. Patient 7 deteriorating, tangential thoughts, increased agitation and 8 anger." 9 Please listen, please listen to the evidence 10 presented by the defendant carefully. Then ask yourself with 11 each point they make, does this in and of itself or does this 12 even cumulatively mean that this man couldn't do this act? 13 The evidence is going to be hard. The evidence is going to be 14 emotionally taxing. I've just tipped the surface with the 15 evidence we have in connection with the dangers of this drug 16 and how it caused Joseph Wesbecker to do what he did. I guess 17 all I can ask you to do is do your best in looking at this 18 evidence and looking at it in a way with common sense and with 19 some insight into your own human experience. A lot of this 20 evidence that we have to present is evidence that came from 21 depositions. The depositions are written books that we got to 22 read to you because under the law we can't make the Lilly 23 scientists come down here and face you and testify. We've got 24 to, in putting on our case, read to you what they said. We 25 may play videotapes of what some of their depositions said 71 1 because it was videotaped, some of it, so you'll at least get 2 to see the demeanor of some of them, but it's never as good as 3 being able to get a witness subpoenaed and bring them right 4 down and testify in person. Most of these Lilly scientists 5 are in Indianapolis. They're beyond the subpoena power of the 6 Court. So we can't bring them down personally ourselves as 7 part of our case; maybe Lilly will ask them to bring them 8 down. Maybe they'll bring some of these psychiatrists that 9 were involved in the testing of this drug and investigated 10 whether or not this drug does indeed cause this type of 11 behavior, but that will be their decision. 12 You're going to hear from our experts -- our 13 experts are Doctor Peter Breggin from Bethesda, Maryland. 14 Doctor Breggin will tell you about his scientific opinion in 15 connection with this product and the problems related to that, 16 and how it caused Joseph Wesbecker to do what he did. We're 17 going to bring down Doctor Allen Brown, a psychologist, who is 18 an expert in statistical evaluations of psychological tests, 19 which is what we've got here. He's going to testify 20 concerning the problems with the clinical trials and the 21 problems with trying to reach any conclusions based on the 22 clinical trials that went on. We're going to bring in Doctor 23 Nancy Lord who will testify the negligence of Lilly in the 24 design and conduct of these clinical trials. 25 Lilly will also present evidence that Prozac had 72 1 double approval by the FDA; that in 1991 there was a committee 2 that was put together that reviewed the question of suicide 3 and violence, and they're going to wave this in front of you 4 as conclusive on this issue. Don't you fall into that trap. 5 We know that you will make your independent judgment of this. 6 If the FDA or this governing board was conclusive on this 7 matter, obviously you wouldn't be sitting here. 8 The safety of Prozac is at issue. Remember, 9 though, in connection with that government report, believe it 10 or not, Lilly never advised that committee that there was this 11 problem noticed by Germany, never advised them. The subject 12 that there's a difference package insert with a different 13 warning in Germany than there is here in the United States was 14 never mentioned. They had Lilly scientists that spoke that 15 didn't mention that they themselves had written in medical 16 journals that they in their practice prescribed concomitant 17 sedative and tranquilizer medications, as was done in the 18 clinical trials and as was done in Germany. 19 We intend to, in the presentation of the case, 20 to sort of be in this fashion. What I'm going to do is I'm 21 going to spend the first part of next week presenting to you 22 the people that were at the plant that morning and who saw 23 Joseph Wesbecker and who were injured as a result of Joseph 24 Wesbecker. That's going to include a bunch of my clients. 25 Angela Bowman, Mike Campbell and some others. Then we're 73 1 going to present to you testimony from a lot of people who 2 knew Joseph Wesbecker and give you some insight into what type 3 of fellow he was, because you're entitled to know that. Then 4 we're going to present some evidence concerning the dangers of 5 this drug in more detail than what I've given you here, 6 additional shocking data. I just selected this. Next, we'll 7 bring forth Doctor Peter Breggin to give you his scientific 8 opinions and insights in connection with this drug. Doctor 9 Lord and Doctor Brown, and then we'll probably present other 10 people who knew Joseph Wesbecker, other family members. We're 11 going to try to give you as good a picture as we can 12 concerning the dangers of this drug and the true nature of 13 Joseph Wesbecker's mental illness. 14 It's 12:40. I never thought I could talk this 15 long, but you know lawyers, they always do something like 16 this. I didn't think I could talk this long about any subject 17 at any time. Obviously, I can. I know that you're worn out. 18 I'm worn out. We've all had a long week. You know, let me 19 thank you for -- right now, from the plaintiffs for your 20 attention. I mean, I'm amazed at the attention that you've 21 given me, and I'm not even a witness in this case. I want to 22 thank you for your attention, but I want to tell you something 23 real important, and several of them mentioned it to me, and I 24 agree with them. Mr. Stopher, the lawyer for Lilly got up and 25 talked about the sympathy factor in this case and talked about 74 1 the tragedy and how he agreed that this was a tragic situation 2 and that these were nice people. These people don't want your 3 sympathy. That's not what they're asking for. That's not 4 what your job is. Fortunately, they have their own families 5 that have given them some support. They have to live with 6 their illness, their disabilities for the rest of their lives. 7 They have to live with their lost loved ones for the rest of 8 their lives. They've got to do it. They will do it. They 9 are not asking you for your sympathy. Your sympathetic 10 reactions are certainly appreciated. They're asking you for 11 your judgment; they're asking you for your intellect; they're 12 asking you to look at this evidence and render a true verdict 13 based on your view of the evidence here. Thank you. 14 JUDGE POTTER: Ladies and gentlemen, we're going 15 to take a lunch recess at this time. As I mentioned to 16 you-all before, do not permit anybody to speak to or 17 communicate with you on any topic concerning this trial, and 18 any attempt to do so should be reported to me. Do not discuss 19 the case among yourselves or form any opinions or 20 determinations about it until it is finally submitted for your 21 approval. Be back in the jury room at 2:00. We'll dismiss 22 for lunch. Thank you. 23 SHERIFF CECIL: The jurors are now entering. 24 JUDGE POTTER: Please be seated. 25 SHERIFF CECIL: All jurors present, Court is now 75 1 75 2 JUDGE POTTER: Mr. Stopher? 3 MR. STOPHER: May it please the Court. Mr. 4 Smith, Mr. Foley, Ms. Zettler. Ladies and gentlemen who are 5 the plaintiffs and ladies and gentlemen of the jury, good 6 afternoon. Joseph Wesbecker's attack on Standard Gravure on 7 September 14, 1989, was not the act of a man suddenly turned 8 mad by Prozac; rather, it was a vengeful and deliberate act 9 which had been carefully planned, discussed and even 10 threatened for months, even years, before Joseph Wesbecker 11 ever took Prozac at all. It was the final chapter in a very 12 complex life, filled with hostility, fueled by job stress. It 13 grew out of a life twisted by insidious mental illness. It 14 was generated out of a lifetime of estrangements and 15 isolation, and hostile withdrawals from spouses, parents, 16 children, friends, co-workers and bosses. It was the end 17 result of isolated frustration in which Standard Gravure was 18 viewed as the villain which had ruined his life, and his 19 carefully planned attack was viewed by him as the way to set 20 things right. 21 Joseph Wesbecker's attack on Standard Gravure 22 occurred on September 14, 1989. It was a Thursday. He took 23 Prozac from August 17, 1989, when he got the prescription 24 filled, until September 11, 1989. The shootings on September 25 14, 1989, were not caused by taking one pill per day for 26 76 1 days; rather, the facts which will be undisputed will 2 establish that Wesbecker systematically purchased two AK-47s, 3 three semiautomatic pistols, one .38 caliber revolver and over 4 a thousand bullets months before he ever took Prozac. 5 Before he took Prozac, Wesbecker threatened to 6 kill his stepdaughter, a young girl approximately 11 years of 7 age; his then wife, Brenda Wesbecker; Brenda's ex-husband, 8 Doctor William Beasley; and Wesbecker's first wife, Sue 9 Chesser. 10 Before Wesbecker ever took Prozac, he threatened 11 to kill people in authority at Standard Gravure or blow up the 12 plant and communicated those threats to 11 different people at 13 different times during the last several years of his life, and 14 before he ever took Prozac. 15 Before he ever took Prozac, Wesbecker deeded 16 away his house for nothing. He paid $58,000 for it and he 17 gave it to his ex-wife. He prepared for his own death by 18 transferring tens of thousands of dollars out of his name and 19 into his son's name. He wrote his will and he arranged for 20 his own cremation and paid for it in cash before he ever took 21 Prozac. 22 Before he ever took Prozac, Wesbecker 23 repetitively threatened to blow up Standard Gravure or kill 24 numerous individuals at the plant. 25 Before Wesbecker ever took Prozac, he had been 77 1 treated by six different psychiatrists and psychologists and 2 had been hospitalized at Highland Baptist psychiatric ward and 3 Our Lady of Peace Hospital on three separate occasions. On 4 September 14, 1989, he killed himself, but that was not his 5 first attempt. 6 Before he ever took Prozac, Joe Wesbecker had 7 attempted suicide some 12 to 15 different times by means of 8 drug overdose, hanging and carbon monoxide inhalation. All of 9 that occurred before he ever took Prozac. 10 Before he ever took Prozac, Wesbecker made a 11 written list of 11 different people at Standard Gravure who he 12 believed had wronged him in some way, and I'll show you that 13 list in just a minute. 14 It is undisputed that before Wesbecker ever took 15 Prozac, he had the motive to kill numerous people at Standard 16 Gravure. He had repetitively stated his intent to commit such 17 acts to many different people on many different occasions. It 18 is undisputed that before he ever took Prozac, he had 19 systematically acquired weapons and ammunition to execute an 20 assault on Standard Gravure. 21 It is undisputed that before Wesbecker ever took 22 Prozac, he had set his financial and property affairs in order 23 and had arranged and paid for his own cremation. This was a 24 premediated massacre that Wesbecker was going to commit 25 regardless of whether he took Prozac or not. 78 1 Prozac did not prevent him from doing the 2 inevitable. It did not prevent him from doing what he said he 3 was going to do. The last year of his life before he took 4 Prozac was not stress free. It's been indicated earlier that 5 he was not working at Standard Gravure and that all the stress 6 and the pressure was gone. The facts will indicate otherwise. 7 That last year, he sat in his home alone with no water, no 8 phone, with the drapes drawn, with his weapons there and 9 carefully planned his assault day after day and his own 10 suicide before he ever took Prozac. During that year, he 11 first bought the gun that he used to kill himself. He then 12 purchased a shotgun and an AK-47. He traded his AK-47 for 13 another one that was the top of the line for that assault 14 rifle. He purchased other semiautomatic weapons and 15 ammunition for a cost of over $3,500, before he ever took 16 Prozac. 17 During that last year and before he took Prozac, 18 he lived alone. He peed in a can in his bedroom, went to a 19 restaurant to have bowel movements and didn't shave or bathe. 20 During that last year when he was not on Prozac, he kept the 21 drapes drawn and he acquired written materials on mass murder, 22 mass murderers and assault rifles. He talked repetitively and 23 threateningly of getting even with Standard Gravure and of 24 killing himself, before he ever took Prozac. All of these 25 things occurred after he stopped working at Standard Gravure, 79 1 but before he ever took Prozac. 2 On September 14, 1989, the facts will show in 3 this case that Joseph Wesbecker did not become homicidal in 4 response to Prozac. He had been premeditating his massacre 5 for more than a year before he ever took that medication. His 6 actions on September 14, 1989, were the final steps in a 7 lifelong journey of disintegration, an extreme reflection of 8 alienation, hostility and mental illness which he had been 9 fighting all of his life. When he stepped off of the elevator 10 on the third floor in the offices of Standard Gravure that 11 morning, he did what he had been saying he was going to do; it 12 was not something that Prozac made him do. His intention was 13 to kill the company. 14 I want to describe for you now in some detail 15 and in chronological order the life progression of Joseph 16 Wesbecker. This may be the only time that you hear it in an 17 ordered fashion. The plaintiffs will bring in a witness here 18 and there and it will be weeks or months before we can put the 19 picture all together for you. I'm going to start at the very 20 beginning of his life. 21 Joseph Wesbecker was born in Louisville on April 22 27, 1942. At the time of these shootings, he was 47 years of 23 age. His mother, Martha Montgomery, was 15 years old when he 24 was born and his father was 24. But just days before his 25 first birthday, his father was killed when he fell off of a 80 1 roof on a job site and fractured his skull and died. His 2 mother was then only 16, and she moved with her young son back 3 into her parents' house with her nine brothers and sisters. 4 Martha Wesbecker, Joe Wesbecker's mother, was accepted by her 5 mother, Nancy Montgomery. And Nancy Montgomery, who was Joe 6 Wesbecker's grandmother, treated him as if he were her own 7 son. In fact, Joe Wesbecker frequently called his 8 grandmother, Mother, and did so all of his life. 9 Only one month after Joe Wesbecker and his 10 mother had moved into the household with the nine brothers and 11 sisters and his two grandparents, his grandfather, John 12 Montgomery, was killed in an accident with the K & I Railroad. 13 Wesbecker's aunt, Rebecca Ann Broome, has stated that Martha, 14 his mother, quote, was so young she just never did really grow 15 up an awful lot. She says Martha came and went and left Joe 16 Wesbecker in the care and the raising of her mother, his 17 grandmother, Nancy Montgomery. 18 Martha's sister, Joe Wesbecker's mother's 19 sister, Margaret Colleen, has testified and said that Joe 20 Wesbecker was angry with fits of temper from the beginning. 21 Quote, I was afraid of Joey. Joey was hard to handle. He was 22 very spoiled and he had a very bad temper. He mainly had 23 trouble with my sister Rosie. He was very jealous of Rosie, 24 and I do recall one incident where he had a knife after her, 25 threatening her, close quotes. 81 1 Another sister, Mary Jewel McCarty, remembered a 2 whipping Joe Wesbecker received from his Uncle John. Quote, 3 and Johnny would whip him and Joey would get up, and so Johnny 4 would stop after a while because Joey was laying on the floor. 5 And he'd get up and go kick Martha and Johnny would whip him 6 again. And Johnny just stopped and said, "I get so tired I 7 can't whip him anymore." And I wished he would have kicked 8 her out the back door, because no mother stands there and lets 9 her child get whipped like that. They're not a mother if they 10 do, close quotes. 11 In addition to problems at home, Joe Wesbecker 12 had difficulty at school. According to what Wesbecker told 13 his son James in later years, he hated going to school and 14 always found a way to get out of it. When Wesbecker was 12 15 years old and in the fifth grade at St. George School, Sister 16 Josephine told his mother that he needed to be taken out of 17 her home and put into an orphanage. From September 1954 to 18 June 1955, Joe Wesbecker was at St. Thomas Orphanage. 19 According to Wesbecker's aunt, Rebecca Ann Broome, he felt he 20 had been rejected when he was put in the orphanage. In 1955, 21 Joe Wesbecker returned from the orphanage and moved in with 22 his grandmother Nancy. He never lived with his mother again 23 before he married. 24 In the spring of 1958, Joe Wesbecker turned 16. 25 He bought his first car, a 1949 Red Ford convertible, from his 82 1 Uncle John Montgomery. According to one of his friends, Tim 2 Lattray, he would drive over 100 miles an hour on city 3 streets, sometimes with the lights out and on the wrong side 4 of the road to scare people. That fall of 1958, he entered 5 Flaget High School in the 9th grade, two years behind where he 6 should have been, and he soon quit. He transferred to 7 Parkland Junior High School, but quit after five days. 8 His uncle, John Montgomery, did not know that he 9 had dropped out of school for six months. After those few 10 days in the 9th grade, he never attended school again. 11 Wesbecker reported to a social worker that he was arrested 12 several times as a juvenile for disorderly conduct and 13 fighting. On another occasion, he was arrested for siphoning 14 gas from a truck at Mellwood Dairy and spent the night at the 15 juvenile detention center. On yet another occasion, he was 16 arrested for allegedly trying to steal a car from a parking 17 lot. Two of his aunts went down to take him home. 18 But his most serious problem was an accusation 19 of statutory rape involving two 15-year-old girls. Wesbecker 20 was jailed in the Old Jefferson County Jail, the building that 21 we are all in right now. And he was put in this building as a 22 young teenager with the adult male prisoners. According to a 23 friend, quote, they'd scare the hell out of you by telling you 24 that they're going to execute you and all kinds of other 25 stuff. And, of course, the prisoners don't help you any, 83 1 either. Especially when a little kid comes in there and tells 2 you that they're going to molest you and everything else, you 3 know. And while in this building, which was then the adult 4 male jail, Wesbecker said for the first time that he wanted to 5 kill himself by opening an artery in his leg. 6 In 1959, Wesbecker and a friend would ride down 7 to Shawnee High School and try to pick up girls, and on one 8 such occasion he met Sue White and he got serious about their 9 relationship. About a year later, Wesbecker got a job at the 10 old Fawcett Printing plant at 11th and Broadway, and he 11 started work there on December 5, 1960, as a fly-boy. On July 12 22, 1961, Wesbecker married Sue White and they lived in an 13 apartment at his Uncle John Montgomery's. On January 8, 1963, 14 they had their first son, Kevin Wesbecker was born, and May 9, 15 1967, Jimmy Wesbecker, the youngest son, or James as he's 16 sometimes called, was born. 17 At work at the printing plant, Fawcett or 18 Fawcett-Haynes, whatever it was called in those days, 19 Wesbecker became focused on working overtime and making big 20 money. He worked incredible amounts of overtime, as much as 21 12 hours a day, 7 days a week. Tim Lattray, who worked with 22 him there, says he was a perfectionist and when they would 23 speed up the presses he could not keep his stacks straight 24 which, quote, made him mad. He would get agitated and cuss. 25 It just really bothered him. Lattray says he also had a 84 1 get-even philosophy, such that if anyone cheated him out of 2 even a five-minute break, he would get back at them. 3 On May 14, 1971, Wesbecker was temporarily laid 4 off at Fawcett, and he thought it was wrong. He thought the 5 company had done him wrong. He talked a lot about it to 6 Lattray and Jackson and his other friends, and he told them 7 that he thought that if he had been there 10 years he should 8 never, ever be laid off. They should keep you on no matter 9 what, and 10 days later, on May 23, 1971, Wesbecker made an 10 application to work at Standard Gravure. 11 In the early 1970s at Standard Gravure, 12 Wesbecker was a good pressman. Charles Miller says about him, 13 quote, anything you needed done, you said, "Joe, I need this. 14 Go do this," and he would do it. You wouldn't have to follow 15 him around, make sure he did it. But working the folder job 16 became a serious problem for him in the 1970s because of 17 nerves and stress. The photo that I'm going to show you is a 18 photo of the presses -- one line of the presses at Standard 19 Gravure, and the folder job is a job in which one man controls 20 a long line of presses. This is approximately, if you saw the 21 whole line of presses it would be approximately a city block 22 long and three stories high. The paper is fed through these 23 units with blue, red, yellow and the other colors of the 24 rainbow at very high speeds, and the man who works the folder 25 is in charge of this block-long press, to make sure the colors 85 1 are right, that the colors are in the lines, that the pages 2 are spaced right and that everything is cut and perfect the 3 way it was supposed to be. The controls are up and down, 4 mainly in the middle, but they're not at one location where 5 you sit down at a control board. There's a lot of movement 6 around and running from control to control. It is such a 7 high-stress job to operate the folder that the men shift every 8 30 minutes. The folder job only paid 50 cents more an hour 9 than the other jobs on the press crew, and the foremen at 10 Standard Gravure had the right to assign anybody that he 11 wanted to work the folder. Anybody in the pressroom, he could 12 write down on his little list, "You, Stopher, today you work 13 the folder." And if he didn't like me, he could make me work 14 it every day. 15 In the mid 1970s, Wesbecker told his wife Sue 16 that he did not like working the folder because it made him 17 nervous. He told her that his supervisors would get on him 18 about the way he ran the folder. Charlie Miller says that he 19 would concentrate on trying to solve one problem so long that 20 there would be two more problems to fix when he got that one 21 fixed. It would make him nervous. Miller says that Wesbecker 22 was never able to do a good enough job to suit himself. 23 In the late 1970s when Jimmy Wesbecker, his 24 youngest son, was nine or ten years old, he began exposing 25 himself or flashing. The next-door neighbor's 86 1 granddaughter-in-law was the first to report it. Wesbecker 2 was extremely upset with his son and his behavior, and on more 3 than one occasion he whipped him with a belt. According to 4 John Montgomery, Joe Wesbecker's uncle, Wesbecker said that he 5 believed that his son had this problem with flashing because 6 the chemicals in the atmosphere at Standard Gravure had 7 altered Wesbecker's genes and that this showed up in his young 8 son James with this persistent exhibitionism and flashing to 9 women. 10 According to information that Wesbecker gave to 11 Doctor David Moore, his mental illness began not in the mid 12 1980s as you heard this morning, but it began in 1978. His 13 wife Sue wanted to go back to work and Wesbecker refused to 14 let her, since he wanted her to stay at home with his sons. 15 Then he told her that she could not get a job and to prove him 16 wrong, she went out and got a job. I asked Mrs. Chesser these 17 questions under oath in a deposition: 18 "Question: When he told you to either quit the 19 job or he was going to move out, he didn't do it in a mean or 20 menacing tone of voice? 21 "Answer: Not at all. 22 "Question: It was kind of a matter-of-fact 23 statement, if you don't quit I'm moving out? 24 "Answer: Yes. 25 "Question: Because he showed so little emotion 87 1 perhaps you didn't take him seriously? 2 "Answer: No. I really didn't take him 3 seriously. I thought he was, you know, I thought he was just 4 kind of joking. 5 "Question: And then he did it, didn't he? 6 "Answer: Yes, he did." 7 At about the time of the separation, Jimmy 8 Wesbecker exposed himself in the picture window of the family 9 home. Wesbecker himself began running around and barhopping 10 and bragging about his sexual exploits. One of his friends, 11 John Tingle, nicknamed him Sexpecker because he would chase 12 women and tell stories, and about the same time he got into a 13 fracas in a bar and he was nicknamed Rocky. Jim Lucas, 14 another pressman at Standard Gravure, has testified and he 15 said, quote, what really tore him up was the fact that divorce 16 had split the family. I think that's what tore him up more 17 than anything. He didn't spend much time with his boys. At 18 the same time, he terminated his membership at St. Clement's 19 Catholic Church. The stress and the work conditions also 20 began to take a heavy toll on him. One time Rodger Coffey 21 called him to come back into work, Wesbecker refused and 22 called Coffey's house numerous times that night and said, 23 quote, he was going to get even with me. 24 During the 1980s, the pressmen had to work a lot 25 of overtime, often being required to work 16-hour shifts 88 1 several days in a row. Charles Ganote has said that if you 2 complained, nothing happened, and you couldn't do anything bad 3 enough to get fired. If one person threatened another at 4 Standard Gravure, they didn't do anything about it. Andrew 5 Pointer observed Joe Wesbecker. He's one of the gentlemen 6 seated to my left, and he observed him frequently talking to 7 himself and gesturing with his hands. The hostility between 8 employees and foremen increased and William Van Gilden, one of 9 the supervisors, had a favorite expression that, quote, he was 10 the lawn mower and the pressmen were the grass. 11 In addition to the stress and the hostility 12 between management and employees, Charlie Miller has testified 13 that about 20 percent of the workers carried weapons into 14 Standard Gravure at work. They played games with a starter 15 pistol, firing it point-blank at another employee at Standard 16 Gravure, and no one was ever disciplined for having a weapon 17 or threatening somebody with a weapon. 18 While he was going through his divorce from Sue 19 Wesbecker, his first wife, Wesbecker started talking about 20 guns and weapons. Rodger Coffey says, quote, all he wanted to 21 tell you was the muzzle velocity of a nine-millimeter magnum 22 or how many rounds a banana clip of an AK-47 would hold. 23 Wesbecker was determined to get even with his ex-wife Sue and 24 he told Charlie Miller, quote, she ain't going to get 25 anything. I'll make sure Sue doesn't have a penny. 89 1 In May of 1980, Wesbecker was hospitalized with 2 a psychosomatic condition called torticollis. It was a 3 situation in which his head and his shoulder contracted so 4 involuntarily that he could not relax. He was taken off of 5 work and treated with anti-inflammatories and muscle 6 relaxants. But on May 28, 1980, Wesbecker went to Southwest 7 Jefferson Community Hospital with anxiety, nervousness, 8 agitation and depression. He was so agitated on this date 9 that they couldn't even take his vital signs. He couldn't sit 10 still so they could take his temperature, his blood pressure 11 or his pulse. 12 Three days later, he was admitted to Baptist 13 Hospital and he said he was bitter over his divorce. He said 14 he worked 16-hour days, barhopped at night, slept only two to 15 three hours and was driven mercilessly. He was depressed, 16 despondent and agitated. Wesbecker said he was anxious. He 17 said he couldn't sit still at work. He cried over nothing. 18 He felt sorry for people at work and himself, and he couldn't 19 sleep. Sue has testified that she went to the hospital to 20 visit him, but he refused to see her. 21 In the fall of 1980, Patricia Chastain was 22 dating Joe Wesbecker, a woman that he had met, and he told her 23 that there was a machine at work that he did not like to work 24 on, and that he lost his temper when he talked about the 25 foremen who put him on it. She says he was hyper, got red in 90 1 the face and that it made him extremely nervous. She says 2 that he indicated that the foremen put him on the machine 3 deliberately just to spite him. 4 In November of 1980, two weeks before 5 Thanksgiving at a Parents Without Partners Friday night dance, 6 Wesbecker met Brenda Beasley. Brenda was also going through a 7 divorce from Doctor William Beasley, a podiatrist, and after 8 they began to date, Wesbecker told Brenda that her ex-husband 9 was having him followed. Wesbecker focused a great deal of 10 anger, immediately, on Doctor Beasley. His reason was that he 11 felt that he was supporting Doctor Beasley's children. He 12 made obscene threatening remarks about Doctor Beasley and 13 about what he wanted done to him. 14 In March of 1981, Brenda and her children, Chris 15 and Melissa moved in with Wesbecker. Brenda says that he 16 paced and said that, quote, his idea to solve everything was 17 his work; that he could keep okay in life because of his work. 18 She says that he told her that without money he, quote, would 19 be defenseless. 20 In the summer of 1981, Brenda signed a 21 prenuptial agreement and she and Joe Wesbecker married. 22 Shortly after the marriage, though, the pressures of his job 23 at Standard Gravure became overwhelming. On September 14, 24 1981, eight years to the day before the shootings occurred, 25 Wesbecker visited a social worker at Standard Gravure, Pat 91 1 Lampton. Mr. Lampton has destroyed his records of his 2 counseling with Mr. Wesbecker but Brenda says, quote, he just 3 wanted someone to talk to. Brenda says she listened to him 4 and that Joe Wesbecker told her about his nervous breakdown, 5 his anger toward his mother, his fear that his dream of a 6 better future for his sons was disintegrating. In January of 7 1982, Wesbecker stopped speaking to his oldest son, Kevin. He 8 never spoke to him for seven years. Kevin said that his 9 father stopped speaking to him because he decided to sit out a 10 semester at school and to punish him, Joe Wesbecker cut him 11 off. 12 Shortly after he stopped speaking to Kevin, 13 Wesbecker tried to commit suicide. Brenda, his wife at the 14 time, says he gave no warning at all. Quote, he didn't talk 15 about it. He didn't seem upset that week. Nothing that I 16 could detect a change, close quotes. But when she woke up 17 that morning, quote, he's done made it from the car to the 18 bedroom and he's laying on the bed with melted tape on his 19 face. The hose is laying in the bedroom with him. The 20 Oldsmobile is parked out there still running with the keys in 21 it, close quotes. Brenda says the duct tape that he used to 22 tape the hose to his face is the same type of tape that he 23 used to tape magazines together for the weapons that he 24 carried into Standard Gravure on September 14, 1989. 25 In 1982, Wesbecker's divorce proceedings with 92 1 Sue continued in court. Sue filed for increases in child 2 support and six weeks of back support, back alimony. 3 Wesbecker told his friend John Tingle, quote, I'd just as soon 4 go out and kill her, that way I won't have to pay her for the 5 rest of my life. 6 In March of 1982, Kevin, the oldest son whom 7 he'd stopped speaking to, was admitted to Norton Hospital for 8 surgery on a severe scoliosis of the spine, or curvature of 9 the spine. Kevin decided against the surgery and Wesbecker 10 told John Montgomery that -- he thought Joe Wesbecker thought 11 that the chemicals in the air at Standard Gravure had once 12 again altered his genes and had caused his oldest son, Kevin, 13 to have the scoliosis and his youngest son, Jimmy, to be an 14 exhibitionist. 15 On July 12, 1982, the younger son, James 16 Wesbecker, was put in Boys Haven. James was being seen in the 17 early 1980s by Ann Detlefs, a social worker. Ms. Detlefs has 18 testified that, quote, Joe Wesbecker was at the time I had 19 contact with him, probably one of the angriest people I have 20 ever meet. His typical behavior was to get up in your face, 21 point his finger and curse at you. I recall one time him 22 calling me up on the phone and using lots of profanity and 23 cursing me out, threatening to have me fired from my job 24 because he did not like what I was recommending. He was just 25 very hostile and an angry person. 93 1 In May of 1983, Wesbecker returned to work and 2 at the same time he returned to a Doctor Hayes, a 3 psychiatrist. The letter I may not be able to get very well 4 in focus. I'll do the best I can. Doctor Hayes was told by 5 Wesbecker that he worried about his job, he worried about his 6 work on high-speed presses. And on November 22, 1983, Doctor 7 Hayes wrote this letter to whom it may concern. There were 8 copies to the attorney and to the judge, and the letter says 9 in part that Wesbecker had been depressed, worried and upset 10 over the conflict between his ex-wife and himself and has 11 recently been devastated by the acting-out behavior of his son 12 James Wesbecker. Hayes wrote that Joseph Wesbecker was, 13 quote, heartbroken and depressed over his son's exhibitionism. 14 In December of 1983, Wesbecker was given a 15 psychological test, you'll hear about these throughout this 16 case, called the Minnesota Multiphasic Inventory or MMPI, and 17 these are some of the answers that Joseph Wesbecker gave about 18 himself in December of 1983, just a little less than six years 19 before the shooting. 20 Quote, I am sure to get a raw deal from life. 21 Quote, I believe I am being plotted against. 22 Quote, my sleep is fitful and disturbed. 23 Quote, I have periods of such great restlessness 24 that I cannot sit long in a chair. I feel anxiety about 25 something or someone almost all the time. I am a high-strung 94 1 person. 2 Quote, I sometimes feel that I am about to go to 3 pieces. 4 Quote, when someone does me wrong, I feel I 5 should pay him back if I can, just for the principle of the 6 thing. 7 Later that same month, on New Year's Eve, 8 December 31, 1983, Joe Wesbecker and his wife, Brenda, were 9 driving on Bardstown Road. It was New Year's Eve and they 10 were going to a movie and Wesbecker began talking about 11 Brenda's daughter, little Melissa, and he said, quote, I hate 12 her, I ought to just kill her. Brenda took it as a serious 13 threat and immediately got out of the car and walked away from 14 him. 15 In February of 1984, custody of Melissa and 16 Chris, the two Beasley children that had been living with Joe 17 and Brenda, they were given to Doctor Beasley and taken out of 18 their home. Wesbecker told Brenda when Melissa left that he 19 never wanted to speak to her again. And whenever Melissa 20 visited in Joe Wesbecker's home, he would never allow her to 21 be in the same room with him. And Brenda will tell you how 22 she had to orchestrate her daughter's visits so she could go 23 from her bedroom to the bathroom and to the kitchen without 24 ever having been seen by Joe Wesbecker. He said, quote, keep 25 her away from me. I do not want her in the same room with me. 95 1 I do not want to look at her. 2 And about the same time, according to Brenda, 3 who will testify before you, he had a very bad hatred for his 4 mother. Quote, he just totally pretended she didn't live 5 anymore. Martha, his mother was not even allowed in his home, 6 and he didn't acknowledge her at Christmas or on her birthday 7 ever. That same year Brenda recalls that he said, quote, can 8 you imagine if you fly an airplane onto something with 9 dynamite on it, fly it in there and blow it up, you'd never be 10 involved. 11 In April of 1984, Wesbecker was going to another 12 psychiatrist, Doctor Vicdan Senler, and Doctor Senler was told 13 by Mr. Wesbecker -- and this record is extremely difficult to 14 read no matter how much I blow it up because of the 15 handwriting, but it will be made clear for you and copies 16 distributed. In April of 1984, four and a half years before 17 he killed himself, Wesbecker told Doctor Senler that he had 18 tried to kill himself twice, once on April 12, 1984, by an 19 overdose of pills, and later by poisoning himself with carbon 20 monoxide. Doctor Senler hospitalized him at Our Lady of Peace 21 Hospital and the nurses' notes there state that he was, quote, 22 agitated, tense, and worries about his job. Putting the blame 23 for all of his problems on Brenda's ex-husband, Doctor 24 Beasley, Wesbecker stated that, I thought, quote, of blowing 25 Doctor Beasley's brains out, but he always has a witness with 96 1 him, close quotes. That's from the hospital record at Our 2 Lady of Peace in the spring of 1984, four and a half years 3 before he killed himself and the others at Standard Gravure. 4 While hospitalized at Our Lady of Peace, 5 Wesbecker was again given psychological tests this time by 6 Doctor Leventhal, and Doctor Leventhal found that he was, 7 quote, the picture of a passive, dependent, rather paranoid, 8 somewhat schizoid man who perceives the world as threatening 9 and harbors a great deal of anger at what, quote, they have 10 done to him. Doctor Leventhal concluded, "I think he will be 11 a difficult person to treat and the potential for 12 self-destructive behavior still exists." 13 One week after Wesbecker was hospitalized at Our 14 Lady of Peace, he was discharged against the advice of Doctor 15 Senler. Shortly after he was released from Our Lady of Peace, 16 Wesbecker said to Brenda one morning, quote, I would love to 17 kill your ex-husband. It would be real simple to do. I'd 18 just watch him leave his Southern Parkway office someday. I'd 19 pull up beside him at a stoplight and blow his brains out. 20 Brenda was so concerned for her safety, the safety of her 21 ex-husband and her children that she asked Mr. Wesbecker for a 22 divorce. They separated, and in November of 1984, the divorce 23 became final. About this time, Wesbecker began to express 24 hostility towards Standard Gravure and the foremen that worked 25 there. Charles Ganote says, quote, they used naphtha which 97 1 contained toluene, these are solvents, and then they used xylo 2 or xylene as solvents, and there for a while the toluene 3 content got so extremely high and they didn't worry about it 4 until the men started passing out on the floor. 5 Don Frazier says that the men complained about 6 headaches, dizziness, disorientation, nausea and rashes, and 7 in 1985, Wesbecker was treated for a skin rash caused by his 8 exposure to the solvents. To his family members, Wesbecker 9 said the evil in my life is work. It's the chemicals at work, 10 and he began to blame all of his problems on Standard Gravure 11 and his inhalation of these solvent fumes. According to his 12 uncle, John Montgomery, Wesbecker said, quote, he thought that 13 working for a printing company and everything like that 14 altered certain genes. Montgomery says he saw a stack of 15 information about chemicals in Joe Wesbecker's house about 16 three or four feet high. 17 For Standard Gravure pressman Charles Ganote, 18 stress was the biggest problem at Standard Gravure. He says, 19 quote, there was quite a few of them on Valium, myself 20 included. He says one of those also had a drinking problem to 21 avoid the stress. They called it, quote, self medication. He 22 says the stress was caused by overtime that often amounted to 23 100 hours a week. Quote, you just became numb to everything. 24 On December 3, 1985, Wesbecker went to see his 25 psychiatrist, Doctor Senler, and he brought lots of research 98 1 papers about solvents. He told Doctor Senler that his mind 2 was working fast, his thoughts were racing and he had 3 difficulty sleeping. Doctor Senler found him suspicious with 4 a paranoid personality. Wesbecker took his articles on 5 toluene and the other solvents to another doctor, Doctor 6 Beanblossom, and expressed concern. 7 In the spring of 1985 -- excuse me. In the 8 summer of 1985, Mr. Wesbecker purchased a house. He paid 9 $58,000 in cash for this house on Nottoway Circle. He asked 10 Brenda, even though they had divorced, he asked Brenda to move 11 in with him or at least check on him from time to time, and 12 she eventually did. On the day that Wesbecker bought this 13 house and entered this home on Nottoway, a neighbor, Deidre 14 Meredith came over on behalf of the former owner to retrieve 15 some articles that the previous owner had left in the house. 16 Ms. Meredith has testified, quote, he went ballistic because 17 the former owner had given the movers a key to come back and 18 pick up some items. He was so upset over a missing telephone 19 switchplate that he said, quote, this house was left filthy 20 and she'll get nothing. 21 In the early part of 1986, Wesbecker went to the 22 pressroom superintendent, Bill Helm -- and you'll hear his 23 deposition -- on two occasions and asked Mr. Helm to take him 24 off of the folder. Helm said he wouldn't do it, that he 25 couldn't do it, but agreed that he would not put him on it 99 1 unless it was absolutely necessary. At about that time, 2 Wesbecker got so mad at one of the foremen, James Popham, that 3 he refused to talk to him. Wesbecker told another pressman, 4 Richard Keilman, quote, if Popham comes down here, I'm going 5 to shoot the son of a bitch. 6 In 1986, the Bingham family decided they would 7 split up the family holdings that they had held and developed 8 for generations, including Standard Gravure, and Standard 9 Gravure was auctioned off like The Courier and WHAS and their 10 other holdings, and a 37-year-old man from Atlanta, Mike Shea, 11 bought the company for 22 million dollars. The very first 12 thing that Mr. Shea did when he got the keys to Standard 13 Gravure, he took 11 million dollars in cash out of the 14 employees' pension plan. He replaced it with nothing. He 15 paid 22 million and pocketed 11 million for money that had 16 been targeted for the employees, and the anger and the 17 hostility in the pressroom where Joe Wesbecker worked 18 increased. Shea told the men in the pressroom when he went 19 down to make a speech to them the very first day he was there, 20 "I've got two rules, those of you that work in the pressroom: 21 Rule Number One is make a profit, Rule Number Two is don't 22 ever forget Rule Number One." 23 The pressure and the stress in the pressroom 24 increased. Charles Ganote says, quote, they wanted to run 25 80,000 copies an hour. They never got that far. They would 100 1 get about 65,000 before they really encountered problems due 2 to heat buildup. Charles Miller says the company tried to 3 increase speed by adding more toluene to the inks. "We was 4 running 98 percent toluene," he said, "and the fumes were 5 really bad. We had people pass out in the pressroom from the 6 fumes." 7 Shortly after Shea purchased Standard Gravure, 8 Donald Frazier was then an official with the union, the GCIU, 9 and he remembers that Joe Wesbecker told him that he was 10 bitter towards Shea; McCall, who was the vice-president under 11 Mr. Shea; supervisors and other foremen for not being 12 considerate enough of his problems to allow him to get off of 13 the folder. He told Mr. Frazier that he was a manic 14 depressive and as a result was very nervous and upset. 15 Wesbecker told him that, quote, the pressure of the folder 16 seems to overcome my medication. When I come in, I'm fairly 17 calm, and then I begin to fall apart again, and I just really, 18 really need to get off that folder, close quotes. Frazier 19 said that he observed him at that time in 1986 to be jittery, 20 nervous, uncommunicative, he would pace and be agitated when 21 he did not converse. 22 In October of 1986, Wesbecker was working with 23 another pressman, Mr. Sowders, and he complained that he 24 couldn't stand the pressure, that his nerves just couldn't 25 take it any longer. Wesbecker said they were making him work 101 1 the folder just to prove that they could make him do something 2 that he didn't want to do. 3 On November 18, 1986, Mr. Wesbecker went to a 4 new psychiatrist or a different one again. This time he went 5 to Doctor David Moore. And his chief complaint was agitation. 6 Let's see if I can get a little bit better focus on this. 7 Wesbecker told Doctor Moore about his depressed mood, 8 irritability, crying spells, agitation, pacing, racing 9 thoughts, fatigue, insomnia, poor memory and poor 10 concentration. At this time in 1986, Mr. Wesbecker told 11 Doctor Moore that he would have attacks, characterized by 12 greatly increased agitation and tearfulness lasting several 13 hours. 14 In early 1987, about two and a half years before 15 the shootings, Don Cox, the pressroom superintendent, noticed 16 that Wesbecker had become, quote, reclusive and withdrawn. He 17 would only talk to certain people and would not talk to Don 18 Cox, the pressroom superintendent. 19 On January 26, 1987, Wesbecker told Doctor Moore 20 that he was angry at his employer. Under Shea's ownership and 21 management, there was a rule prohibiting guns and firearms at 22 Standard Gravure, but it was never enforced or applied as to 23 anybody. One pressman, Charles Ganote, freely admits that he 24 regularly carried a gun into work in his pocket. Sometimes 25 there were incidents when pistols with blanks were drawn and 102 1 fired to scare other employees and foremen. Despite the fact 2 that pressman carried weapons into the pressroom, nothing was 3 ever done by management to stop the hostility and the threat 4 of weapons. No one was ever fired, disciplined or even 5 reprimanded for carrying a gun. The atmosphere of hostility 6 towards Shea and McCall, Cox and the other people in high 7 management at Standard Gravure was demonstrated by obscene 8 graffiti, which was photographed and will be shown. One of 9 the items was a hit list above the men's urinal with the names 10 of Cox, Shea and McCall on the hit list. Under Shea, the 11 foremen had absolute power in making job assignments. They 12 had what was known as power of the pencil, sometimes called 13 POP. A pressman could be assigned by a foreman to do any job. 14 There was no appeal, and there was no right to beg off. If 15 the man said he couldn't work the job, that it made him 16 nervous, as Joe Wesbecker did, no excuse and no review. 17 In 1986, Joe Wesbecker went back to the social 18 worker, Pat Lampton, who was employed by Standard Gravure to 19 assist. And he had a complaint. He said he wanted off of the 20 folder and Lampton said, "I'm sorry, I can't help you. Mr. 21 Shea won't pay me. I can't do a thing for you." Wesbecker 22 then went to the union president, Donald Frazier, and asked 23 him if he or the union could do something to get him off the 24 folder permanently. Frazier said he would speak to the people 25 on his behalf, but Frazier said, "There's nothing that I can 103 1 do because the union contract is clear and they can do it to 2 you." 3 In the spring of 1987, Joe Wesbecker began to 4 formulate a specific plan to get revenge at Standard Gravure. 5 On March 31, 1987, he went to see a psychiatrist, Doctor 6 Theodore Schramm. According to Doctor Schramm, Wesbecker 7 talked about being under a great deal of pressure. The 8 recurrent thing was that he was being harassed, picked on and 9 treated unfairly. Wesbecker thought that the office did it. 10 He did not want to work the folder job and asked to be taken 11 off of it and, when he wasn't, he felt that this was a further 12 indication of being harassed. Wesbecker felt that if he 13 returned to work he would be abused by management and Doctor 14 Schramm recommended that Wesbecker go to Our Lady of Peace, 15 and he went that next day. 16 Wesbecker was in Our Lady of Peace in 1987, the 17 spring of 1987, for about almost 30 days. And while he was 18 there -- this is one page out of those records, and I'll read 19 it for you here in just one moment, but the background to this 20 page is as follows: Wesbecker complained two and a half years 21 before the shootings occurred that he had been working with 22 toluene for 27 years and that it had caused him blurred 23 vision, headaches, blackouts and nervousness to the extent 24 that he could not function at work or at home. He felt that 25 unreasonable demands were being made of him at work and the 104 1 level of effort expected of him was too stressful. He 2 expressed anger and agitation toward his job. His face 3 reddened when he discussed his problems about job stressors, 4 and he said on this time that he was so agitated with his 5 co-workers, the other pressmen at Standard Gravure, that to 6 get back at them he would intentionally speed up the line of 7 the presses to get even. He reported that in 1982, he had 8 tried suicide with carbon monoxide, alcohol and pill 9 overdoses. Prior to that, he said he had made 12 to 15 10 suicidal attempts with these means, plus hanging. He said in 11 response to the questions on this form filled out by the 12 nurse, these questions regard suicide and the many attempts, 13 prior to that, made 12 to 15 attempts, but the one that I draw 14 your attention to is No. 4: "Have you ever felt like harming 15 someone else?" His answer was: "Yes." 16 "If yes, who?" His answer was: "My foreman." 17 "How?" His answer was: "Any way." 18 Job pressures and stressors were brought up 19 repetitively while he was hospitalized at Our Lady of Peace 20 two and a half years before these shootings. He said the 21 pressures were magnified by alcoholics in the pressroom who 22 did not admit their problem, but he said that he would, quote, 23 get back at them by speeding up the line. After he was in Our 24 Lady of Peace for nearly a month he was discharged, and 25 shortly after he got out of the hospital Wesbecker came in to 105 1 work one night with a pistol in a brown paper sack. And he 2 went down to the reel room in the basement of Standard Gravure 3 and one of his friends who you will hear testify in this case, 4 Jim Lucas, was down there. And he pulled the pistol out of 5 the bag right there in Standard Gravure and he told Mr. Lucas, 6 "I'm going to use this pistol and I'm going to kill Popham, 7 Cox, McKeown and the others." Mr. Lucas reported it. 8 Here's what Mr. Lucas said. Quote, he was going 9 to get him -- Popham. I'm going to get him. That's the exact 10 words he said. He also mentioned that he was going to kill 11 Donald Cox and Bill McKeown. Lucas warned Popham and 12 suggested that he call security at Standard Gravure. 13 On May 14, 1987, Wesbecker went to the 14 Louisville and Jefferson County Human Relations Commission and 15 he met with a big man there, and you'll see him testify, Don 16 Mattingly, big physically. He's a compliance officer at the 17 Louisville and Jefferson County Human Relations Commission, 18 and Wesbecker told Mr. Mattingly that he was a manic 19 depressive and because of his mental illness the company 20 psychologist had sent a statement saying that he should not 21 work on the folder but that his supervisors wouldn't pay any 22 attention. Wesbecker said that he thought the threat itself, 23 the threat that he might have to work on that job was as 24 frightful to him as if he had actually had to do it. He said 25 he would worry, fret and stew about the possibility of having 106 1 to do that job. Wesbecker gave a history to Mr. Mattingly of 2 mental illness and mental breakdown in 1978, and said that 3 foreman James Popham would say there was nothing wrong with 4 him and he was needed on the folder, and that another foreman, 5 Bill McKeown would say to him, quote, you have to learn to 6 tough it out. 7 On May 21, 1987, Mr. Wesbecker filed this 8 complaint against Standard Gravure. He alleged in that 9 complaint to the Human Relations Commission that Standard 10 Gravure was discriminating against him because of his mental 11 illness and his manic depressive disorder. Standard Gravure 12 denied the charges. 13 On June 16, 1987, Dan Mattingly of the 14 commission met with Paula Warman, another one of the ladies 15 seated over here to my left. She was at that time the 16 Standard Gravure personnel director. And Mr. Mattingly went 17 there to discuss Mr. Wesbecker's claim that you see here on 18 the screen in front of you. And Mr. Mattingly told Ms. Warman 19 that he had spent considerable time talking to Mr. Wesbecker 20 and warned Ms. Warman, quote, before they put him -- Mr. 21 Wesbecker -- on the folder, they ought to shut the place down, 22 because putting him on the folder was endangering his life and 23 the lives of the people around him, close quotes. Mr. 24 Mattingly says that Ms. Warman replied that, quote, we are 25 bound by the union contract and cannot make an exception, 107 1 close quotes. She said that Standard Gravure would not make 2 an exception for Wesbecker. 3 At about this same time, Brenda recalls going to 4 breakfast one morning and Joe Wesbecker was there in the 5 kitchen ahead of her. He turned to her out of the blue and 6 said, quote, how would you like to die. On another occasion 7 he told her, quote, everybody would be a lot better off if 8 just a bunch of people were shot. 9 On July 8, 1987, Wesbecker first went to see 10 Doctor Lee Coleman. He was irritable, anxious and pacing. He 11 told Doctor Coleman that his primary stress was his employer, 12 quote, jerking him around. He said he wanted to be moved off 13 of his present job but that his employer refused. Coleman 14 recalls that during the session Wesbecker mentioned having 15 attempted suicide previously. 16 During his last year working at Standard 17 Gravure, his friend David Fewell, who was a pressman, says you 18 didn't even want to start a conversation with him. He was 19 very focused on what he wanted to talk about. It was like he 20 had tunnel vision. His reactions were hostile. 21 Tom Gosling, another pressman who you will hear 22 testify, has said, quote, he always wanted to talk about 23 killing people. No matter what you wanted to talk to him 24 about, he just wanted to talk about killing people, close 25 quotes. He talked about killing Mike Shea, Don McCall, Paula 108 1 Warman, Don Cox and Bill McKeown. Gosling testified, quote, 2 he was scary. 3 On October 2, 1987, Wesbecker filed a complaint 4 this time with the United States Department of Labor, 5 Compliance Division, and he alleged that he was being 6 discriminated against because he was mentally ill. He claimed 7 demotion, harassment, retaliation and intimidation. He stated 8 that he had attempted suicide many times and that he was put 9 on the folder even after Doctor Moore had called Donald Cox to 10 discuss his problem. The complaint was not evaluated because 11 this agency of the government lacked any jurisdiction over his 12 case and it was dismissed. 13 In late 1987, Bill Helm, the former pressroom 14 superintendent, came back into the plant. Helm had quit 15 because he didn't agree with Shea's management philosophy and 16 he happened to run into Joe Wesbecker there in the pressroom 17 in the middle of the night. Wesbecker was upset, nervous, 18 jittery and stuttery. He said management was not treating him 19 right and he had been off sick and was on medication and 20 should not be back at work. He said they were trying to make 21 him pay back his long-term disability. He said that McKeown, 22 Popham and Cox were not doing him right because they put him 23 on the folder when they didn't have to. Wesbecker said he was 24 going to go meet with Mr. Shea, Mr. McCall and Ms. Warman. At 25 about this same time, Grady Throneberry had been employed as 109 1 the management of security at Standard Gravure, and he recalls 2 that Joe Wesbecker came to the office of Mike Shea to meet 3 with Mr. Shea alone, and that Mr. Shea was so afraid of Joe 4 Wesbecker that he asked Mr. Throneberry to stand right outside 5 the office door, right in a little kitchen and listen at the 6 door in the event there was any problem that Mr. Throneberry 7 could come in and control Mr. Wesbecker. 8 In early 1988, Mr. Wesbecker began to read 9 certain magazines and books on guns and assault rifles, which 10 were found at his home. Soldier of Fortune, Full Auto 11 Firearms, articles featuring the AK-47. These were documented 12 more than a year and a half before the shootings occurred. 13 On February 9, 1988, Wesbecker purchased a .38 14 Smith & Wesson revolver at Ray's Gun Shop. That same month, 15 Wesbecker went in and told Charles Metten that he wanted to 16 get Jim Popham, and Popham also confirmed this to Mr. Metten 17 that he had been threatened with a gun by Joe Wesbecker. That 18 same month, Jim Lucas told Don Cox that Wesbecker had 19 purchased the gun and was going to use it on Cox, McKeown and 20 Popham. Don Cox met with Grady Throneberry, the manager of 21 security at Standard Gravure; he met with Vernon Rothenburger, 22 the plant manager; and Don McCall, the executive 23 vice-president, and all of those men were told that Joe 24 Wesbecker had a weapon and that he was threatening to kill his 25 foremen and his supervisors at Standard Gravure, all the way 110 1 up to the second in command at Standard Gravure. They were 2 all so afraid of Joe Wesbecker at Standard Gravure in the 3 management that they offered to Don Cox, the superintendent of 4 the pressroom, "We'll put guards around your house, armed 5 off-duty police officers to protect you from Joe Wesbecker," 6 and this occurred in early 1988, more than a year and a half 7 before he ever took Prozac. 8 Mr. Throneberry will testify that he heard so 9 many threats from Joe Wesbecker and about Joe Wesbecker that 10 he created a file that he kept in his desk, threats of Joe 11 Wesbecker, which documented the date the person to whom he 12 made the threats, the person about whom he said he was going 13 to kill. That file was seen by Mr. Throneberry's successor, 14 Mr. Art Smithers, who came to work at Standard Gravure, but 15 now when we ask for it, Standard Gravure says it's been 16 destroyed. 17 During February of 1988, Charles Metten, another 18 pressman, saw Joe Wesbecker lash out at John Stein, another 19 one of the gentlemen seated over here. Wesbecker would cut 20 through a certain area of the plant and he recalls that 21 Wesbecker said to John Stein, quote, I'll take care of you if 22 you continue harassing me every time I come through here. 23 In the spring of 1988, Harry Mack, another 24 employee, had lunch with Wesbecker at Poodle Park. That was a 25 little area right outside the door of Standard Gravure. 111 1 Wesbecker told him that Don Cox was picking on him, trying to 2 get him to work the folder and expressed a definite dislike 3 for Mr. Cox. He mentioned that Paula Warman had been messing 4 with him and that others were messing with him all down the 5 line. 6 On May 31, 1988, Wesbecker had Brenda write a 7 note to a Mrs. Sweet or Sweat, and in that note he listed the 8 steps that he had taken to try to get off of the folder job 9 and no one would listen. In the spring and the summer of 10 1988, Wesbecker showed Danny Senters, another employee there, 11 a list with seven or eight names on it, including Shea, 12 McCall, McKeown and Rich. Wesbecker told Senters that he was 13 upset because he was not allowed to go on disability and that 14 he was going to get even. 15 On June 9, 1988, Wesbecker went back to Doctor 16 Coleman and said that his mood had not been good for three 17 years. He said he was irritable at home and at work, he slept 18 poorly. He continued to focus on work problems. Doctor 19 Coleman started him on Prozac. You weren't told this earlier 20 this morning. He took Prozac twice in his life. And on June 21 9, 1988, a year and three or four months before this shooting, 22 he took it at the prescription of Doctor Coleman. On June 29, 23 1988, 20 days later he returned to Doctor Coleman and said 24 that he had taken himself off of Prozac because it had made 25 him tired. He was fatigued. He had no reaction to Prozac 112 1 when he took it in the summer of 1988. 2 Later during the summer of 1988, though, 3 Wesbecker told Tom Gosling that he wanted to put a bomb beside 4 the fifth floor -- up on the fifth floor of The Courier- 5 Journal building actually where they had big tanks with 6 explosive solvents in them and that he wanted to detonate that 7 bomb and blow the place up, but then he said he didn't like 8 the idea because it was too expensive. Wesbecker told Don 9 Frazier about a plan to get a remote-controlled airplane, a 10 model airplane to put explosives on the wings of the airplane 11 or in the little airplane and fly it into the Standard Gravure 12 solvent recovery station and blow up that area of downtown. 13 At Hall's Cafeteria, George McMillan heard 14 Wesbecker say in the summer of 1988 that he had this model 15 airplane and planned to blow up Standard Gravure, and when the 16 other men there told him it wouldn't work, Wesbecker said, 17 quote, maybe I've got to plan something else. 18 In August of 1988, Wesbecker and his attorney 19 met with Donald McCall and another attorney for Standard 20 Gravure. According to McCall, Wesbecker said that he felt 21 that he had been mistreated by his foremen. He mentioned Jim 22 Popham, Don Cox and McKeown and McCall again would not agree 23 to exempt him from working on the folder. 24 On August 6, 1988, Standard Gravure finally 25 agreed that Mr. Wesbecker could go on disability because of 113 1 his mental illness, and he left work on August 6, 1988, a year 2 and one month before the shootings, and he never returned to 3 work. But two days after he stopped working at Standard 4 Gravure, Wesbecker went to Doctor Coleman and he said -- on 5 the telephone, actually, he didn't go, he called him on the 6 phone and said that he was having illusionary incidents; he 7 saw the floor and the ceiling moving. He told Doctor Coleman 8 that he on his own had increased his medication to four 9 Lithium and five Pamelor. Doctor Coleman told him to cut back 10 on both. 11 On August 9, 1988, just a few days after he had 12 stopped working at Standard Gravure, Wesbecker and Brenda 13 Wesbecker sat down and Wesbecker dictated a list; it's several 14 pages in length. It's a list of people and it's a list of 15 things that he thinks were done wrong to him by the people at 16 Standard Gravure. Most of it doesn't make sense but there is 17 detail after detail of distorted things where he claimed he 18 had been mistreated by various people over the years. 19 On August 10, 1988, he had been off work on 20 long-term disability. I thought I heard it said earlier today 21 that the stress had gone away. In fact, the proof will be 22 just the contrary. Wesbecker called Doctor Coleman and 23 reported an increased pressure at work. He wasn't even 24 working, but he called Doctor Coleman on August 10, 1988, and 25 said the pressure is worse at work than it's ever been and he 114 1 had increased depressive feelings. He complained to Doctor 2 Coleman of poor sleep, poor interpersonal relationships at 3 work and said he continued to have illusions. 4 On August 26, 1988, Mr. Wesbecker went out and 5 purchased a Sig Sauer nine-millimeter pistol. After he had 6 stopped working at Standard Gravure, he purchased the weapon 7 that he killed himself with on September 14, 1988. 8 On September 7, 1988, Wesbecker returned to 9 Doctor Coleman, and even though he had been off work for a 10 month, he told Doctor Coleman that he was, quote, focused on 11 anger at work. Wesbecker felt that he had a memory problem 12 and asked if Doctor Coleman had hypnotized him. 13 A few days later, Wesbecker went to the Owen 14 Funeral Home. He walked in off the street and walked up to 15 Jim Adams and filled out the forms to have his own body 16 cremated. He paid cash, $685, and told Mr. Adams that he 17 wanted his body burned so completely that there would be no 18 ashes left. 19 At the end of September 1988, Wesbecker deeded 20 his house to his wife Brenda and he told her, quote, well, I 21 guess if I'm in the mental hospital or I kill myself or I 22 don't make it, he said that's the least I can do for you, to 23 give you a roof over your head, close quotes. 24 On October 5, 1988, almost a year before the 25 shootings, Wesbecker told Doctor Coleman that he was worse, he 115 1 had increased delusions, decreased sleep, and that same month 2 he visited Jim Lucas at his home. Mr. Lucas says that 3 Wesbecker was nervous, he could not sit still and his 4 concentration was broken. 5 In November of 1988, Brenda moved out of the 6 house that he had just given to her. She went to live with 7 her father. 8 On November 10, 1988, there was a huge fire and 9 explosion at Standard Gravure. That same day, Wesbecker went 10 and purchased a Winchester pump-action shotgun. He went to 11 the hospital room of Jim Lucas who had been severely burned 12 and injured at that explosion, and he sat at Mr. Lucas's side 13 and he said, quote, it's a damn shame the place didn't blow up 14 where they could close it down. 15 On December 12, 1988, Wesbecker wrote out his 16 will and he cut out his son Kevin, specified that he was to 17 get nothing and left his money to Brenda and James. 18 On January 18, 1988, there was an article in The 19 Courier-Journal about a shooting that occurred in Stockton, 20 California, a man named Patrick Purdy took an AK-47, he went 21 to a school yard in California. He opened fire and killed 5 22 and wounded 29 innocent people. The next day, Joseph 23 Wesbecker, on January 19, 1989, went to Tilford's Gun Sales 24 here in Louisville and purchased an AK-47. Owner Jack Tilford 25 has testified, quote, he just came in and looked around and 116 1 wanted to see the ones standing up there on the shelf. I 2 showed it to him and he said I'll take it. He paid cash. 3 One of the questions on this form -- it is E. 4 Let me see if I can focus down on there specifics. "Have you 5 ever been adjudicated mentally defective or have you ever been 6 committed to a mental institution?" Wesbecker answered no. 7 On January 27, Wesbecker signed an agreement 8 with Standard Gravure. The agreement provided that he could 9 return to work if he got well but he couldn't get off of the 10 folder. 11 On February 1, Wesbecker went to Tilford's Gun 12 Shop again and he ordered two weapons identical, two MAC-11s. 13 He was not taking Prozac. 14 On the 2nd of February, Mr. Wesbecker withdrew 15 from the union, he quit, and according to his son, he said, 16 quote, I saw no reason to belong to the union when they won't 17 help me with my problems. 18 On February 6, 1989, Time Magazine had an 19 edition that had a cover page on it entitled Armed America. 20 And inside that February 6, 1989 edition of Time Magazine, 21 there is a story entitled "Senseless Killings," and pictured 22 on one of those pages is a photograph of an FBI agent holding 23 overhead the AK-47 that had been used by Patrick Purdy in 24 Stockton, California. 25 Mr. Wesbecker acquired this magazine. He kept 117 1 it until September 14, 1989. The date of that magazine is in 2 fact February 6, 1989. And on the day that he went to 3 Standard Gravure with his AK-47, Mr. Wesbecker carefully took 4 this magazine, six, eight months old at that time, and he 5 opened the magazine up to this page and he carefully laid it 6 down on the dishwasher in his kitchen of his home and left it 7 there where it was found by the police, as shown in this 8 photograph shortly after the shootings occurred. This 9 magazine was kept by him for eight months, detailing senseless 10 killings in America. 11 On February 7, 1989, eight months before the 12 shootings, Mr. Wesbecker voluntarily had the water shut off at 13 his house. The next day he terminated the phone service. He 14 was not taking Prozac. Brenda, his wife, has testified that 15 during this period he wouldn't answer my phone calls. Quote, 16 he wouldn't talk to me. He wouldn't eat. He wouldn't take a 17 bath. He cut off the water in that house. He cut off 18 telephone service, would pee in a can in the bedroom. It 19 would be all over the carpet of the floor. She says, quote, 20 it got animalistic and bizarre, close quotes. 21 Jim Lucas says, quote, he had it in his mind 22 someone was out to get him. It got to the point where he was 23 talking and I was scared, you know, just something is wrong 24 here, close quotes. According to Lucas, Wesbecker had the 25 curtains drawn shut because, quote, he had a fixation people 118 1 were watching him, you know, he couldn't make a move that 2 nobody would know. Everybody knew what he was doing, you 3 know, and that's what his conversation usually centered on. 4 Everyone was watching him. 5 On February 10, he picked up the two MAC-11s at 6 the gun shop. 7 On February 14 and 15, 1989, six months before 8 he took Prozac, Mr. Wesbecker hired a handyman to come in his 9 house and do some work regrouting some tile. Listen to what 10 the handyman said. He recalled that he needed water to do the 11 work, and Wesbecker would have to go out and get buckets of 12 water from someplace and carry them into the house. And he 13 told this workman that he had worked at Standard Gravure and 14 that they had done him wrong, and then he said, quote, but 15 that's all right because they're going to pay for it, close 16 quotes. Mr. Henry said the conversation came to a blunt end. 17 On February 7, 1989, he again went back to Mr. 18 Lucas's house; a repeat, he couldn't sit still, he stared out 19 of the window. He had no concept of time. He was not taking 20 Prozac. 21 On February 27, 1989, Paula Warman wrote a 22 letter to Mr. Wesbecker that was sent to his home, the home 23 that I just showed you the photograph of a moment ago. And in 24 this letter it provided that beginning October 1 and 25 continuing each month thereafter for the duration of your 119 1 disability or until age 65, your monthly income will be 2 $391.21. It specified that he was to get $1,420.94 but that 3 on October 1, 1989, two weeks exactly after the shootings 4 occurred, his payments were going from $1400 a month to $391 a 5 month. 6 On May 1, 1989 -- excuse me, let me go back to 7 that letter. He showed that letter to Tom Gosling, the union 8 chairman at that time, and he told Gosling, "My benefits are 9 being cut," and he asked what the union would do about it. 10 And Mr. Gosling said, nothing, go see your attorney. 11 On May 1, 1989, Joseph Wesbecker went back to 12 Tilford's Gun Sales and he traded in the AK-47 that he had 13 purchased back the day after the Purdy shootings in Stockton, 14 California. He traded in that AK-47 for this one, the AK-47S, 15 the Polytech, the top of the line, and a few days later he 16 returned in mid May and he purchased 1,000 rounds or 1100 17 rounds of ammunition for that AK-47. He was not taking 18 Prozac. 19 On May 31, he returned to Doctor Coleman and 20 said he was depressed, he was sleeping poorly. Depressed 21 motivation, no energy. He was more irritable. He said the 22 floor was still moving and he had those illusions. 23 On June 18, 1989, Wesbecker spoke to his oldest 24 son, Kevin, for the first time in seven years. It was 25 Father's Day. He told Kevin, quote, they're watching me like 120 1 a hawk because they don't know if I'm pulling tricks on them 2 or not. He told Kevin that he was really having problems and 3 that he was seeing things that just weren't there. 4 In July 1989, Wesbecker went back into the 5 Standard Gravure plant. He hadn't worked there since last 6 August, and he showed Don Frazier the letter from Paula Warman 7 saying that his long-term disability would be cut, and you'll 8 hear Mr. Frazier testify. According to James Croft, a man who 9 listened to this conversation, Wesbecker told Frazier that he 10 was, quote, going to come in and wipe the whole place out, 11 close quotes. Croft recalls that Frazier related the incident 12 to Don McCall, Number Two just under Mike Shea at Standard 13 Gravure, and that McCall, quote, shrugged his shoulders and 14 laughed. 15 On July 8, 1989, Nancy Montgomery, his 16 grandmother, the lady that had raised him, his confidant, had 17 a stroke. Wesbecker went to visit her in the hospital, and 18 the relatives there recall that he said that Standard Gravure 19 was trying to take away his benefits. 20 At the end of July, Wesbecker went back to visit 21 Jim Lucas. He told Lucas, "I can't see the light at the end 22 of the tunnel." He told Lucas that suicide was the only 23 answer. He suggested to Lucas that they each get a gun and 24 shoot each other in the head simultaneously. He told Lucas, 25 "I've got problems everywhere: My sons, my son's problem with 121 1 exhibitionism." He couldn't sit still. And he said that 2 Popham, Cheatham (sic) and McKeown, all men at Standard 3 Gravure, should be eliminated. 4 On August 8, 1989, his grandmother died. 5 Wesbecker went to her funeral on August 9, 1989, and while he 6 was there he spoke to a relative and said, "They're still 7 messing me around; they're trying to take my benefits." His 8 aunt recalls that Wesbecker said, quote, but they got another 9 thing coming if they think I'm coming back in there to work, 10 close quotes. 11 The next day, August 10, 1989, Wesbecker 12 returned to Doctor Coleman. He complained of lethargy or 13 fatigue in the morning. He said he had trouble getting to 14 sleep and trouble with his memory. They discussed the 15 possibility of him starting on Prozac. Wesbecker agreed to a 16 trial of Prozac with gradual tapering of Restoril over the 17 next two to three weeks. And on August 17, Wesbecker filled 18 the Prozac prescription for 20 tablets, he also filled a 19 prescription for 100 tablets of Lithobid and 30 tablets of 20 Restoril. 21 On August 26, 1989, Wesbecker went home to the 22 home of his friend Lucas and told him not to return to work. 23 Lucas was still off work from that terrible explosion and 24 Wesbecker said don't return to work because, quote, I've got a 25 plan that will result in eliminating that -- blanking -- 122 1 place. Here's what else Lucas says: Quote, then he went on 2 to say, well, the reason he didn't want me to go back to work, 3 he had plans of blowing the place up. He decided to go to a 4 plan which was to purchase a remote-controlled model airplane, 5 and he was capable of doing that because me and him had spent 6 a lot of times down at the Greenwood boat docks, watched 7 people fly model airplanes. He was quite interested in them. 8 He said he was going to strap the explosives to the model 9 airplane and have this fly into the naphtha recovery system on 10 the top of The Courier-Journal building and wipe the damn 11 place out altogether. And I told him he didn't know what he 12 was saying and that it meant killing a lot of people that 13 hadn't done anything to him, and he said you're right. He 14 said, besides, I'll have to come up with another plan, which 15 he said plan B, but he said, quote, I guess I'll have to go to 16 plan B, being as you're back to work. I wouldn't hurt you for 17 anything. He went on and said that he and old AK-AK would 18 take care of things. 19 When Lucas went back to work a few days later, 20 Lucas went into the pressroom and told them that Wesbecker was 21 coming. He told them that he had a plan to commit great 22 violence against the people at Standard Gravure. He told the 23 supervisors; he recalls it. And Gerald Griffin, another 24 pressman there, remembers Jim Lucas giving them the warnings. 25 Lucas will testify that he reported those threats to the 123 1 manager of security at Standard Gravure and to Don McCall, the 2 vice-president. 3 On September 11, 1989, Wesbecker went back to 4 Doctor Coleman. You saw the note about it this morning. 5 Wesbecker on this occasion told Doctor Coleman that he had 6 stopped taking the Prozac -- excuse me. That Doctor Coleman 7 told him to stop taking the Prozac because of deterioration. 8 In his deposition, Doctor Coleman was asked by the plaintiffs' 9 attorneys, quote, what signs did you point out to Mr. 10 Wesbecker that you felt showed that his condition was 11 deteriorating? 12 "Answer: I don't know my exact words. I can 13 only summarize the context of what happened was that he seemed 14 to be more anxious. He certainly was not sleeping well; that 15 his emotions seemed to be up and down a lot, those were the 16 main things. And I told him that I, you know, wanted to take 17 him off the Prozac because I wondered if that might be part of 18 this condition. I think that's when he said, well, I think 19 it's helped me." 20 Doctor Coleman has said that the deterioration 21 that he saw was problems with sleeping, with anxiety and his 22 emotions being up and down. The same exact problems that I've 23 now detailed for you with agitation, sleeplessness, anxiety, 24 paranoia, illusions, going back some seven to eight years 25 before he ever took Prozac. 124 1 Now let me just speak with you for a few moments 2 about two other final topics and then I will be quiet and Mr. 3 Freeman will talk with you about Prozac. I want to speak 4 briefly with you about Standard Gravure. It is undisputed in 5 this case that Joe Wesbecker directly told nine people at 6 Standard Gravure that he was going to commit violent acts at 7 Standard Gravure before he ever took Prozac: Tom Gosling, 8 Richard Keilman, Jim Lucas, Donald Frazier, Charles Metten, 9 James Popham, George McMillan, Danny Senters and James Croft. 10 Wesbecker's threats to come in to Standard Gravure and either 11 blow it up or kill people and gun them down was communicated 12 to the very highest officials at Standard Gravure. Don Cox, 13 the press room superintendent, admits that he knew about these 14 threats. He went and told the manager of security, Grady 15 Throneberry. Grady Throneberry admits that he knew about Joe 16 Wesbecker and these threats. Vernon Rothenburger, the plant 17 superintendent was told. He says he doesn't remember them. 18 Don McCall, the Number Two man, was told twice. He says he 19 doesn't remember them. 20 But in spite of these repetitive threats, let me 21 tell you about Standard Gravure. They never, ever once called 22 the police. They never, ever took any action to put out this 23 fire of hostility in Joe Wesbecker's mind. They never went to 24 his psychiatrists. They never went to him. They did nothing 25 with his threats. Wesbecker did everything but stand on top 125 1 of the building and wave a red flag saying I'm coming to get 2 you, and Standard Gravure did nothing. 3 Not only did they not act with regard to Joe 4 Wesbecker, the police and otherwise, let me tell you about 5 their security for their employees. The entrance that Joe 6 Wesbecker used to get into the building on that day was the 7 very same entrance that I just showed you earlier. It was a 8 door on the Sixth Street entrance. The policeman is standing 9 in the door. It was unlocked. There was no guard. There was 10 no video camera, no way to block ingress and egress, getting 11 in and out of that building at that door. He could have 12 walked in with a bazooka. 13 And when he walked in on that date and went up 14 to the third floor on an elevator, he carried with him a cache 15 of arms shown here. This is the actual police photograph of 16 what he had with him. And when he stepped off of the elevator 17 on the third floor and began shooting, he stepped off of this 18 elevator and fired point-blank at Angela Bowman, who was 19 seated defenseless behind this desk. The video camera that 20 had a monitor on the receptionist's desk for years under the 21 Binghams had gone the way of all flesh with Mike Shea, and 22 despite repetitive requests from employees and the security 23 guards for cameras and locks on that door or guards, Shea and 24 his people did nothing. That entrance was entirely 25 vulnerable, despite the years of threats by Joseph Wesbecker 126 1 and the weapons that came into and out of that plant. 2 Secondly, I want to talk with you just finally 3 for just a moment about what Joseph Wesbecker did on September 4 14, 1989. He entered the building with this arsenal of 5 weapons and ammunition, and once he began firing he stayed to 6 a plan. He had two target areas. It was not random. It was 7 not indiscrimate. He went down the long hallway of the 8 administrative offices at Standard Gravure where Shea and 9 McCall had their offices down this long hallway. Fortunately 10 for them, they were out of town, but after killing and 11 wounding many people, he moved on very efficiently, stalking 12 toward his second area. The second place that he wanted to 13 get was to the pressroom and to the foreman's office where the 14 men were gathering. It was a long way. He went up and down 15 several flights of stairs, as you'll see, up and down several 16 elevators. He walked almost an eighth of a mile, very 17 deliberately, very carefully, and very under control, and 18 along the way, he spared certain people and eliminated and 19 wounded others in his plan to get revenge. 20 One of the most interesting -- and you'll hear 21 about all of them, but one of the most interesting instances 22 of his decision making on that day was approximately in the 23 middle of this shooting. He had killed some people and 24 wounded many others and he was yet to do many more killings 25 and woundings, including his own. But he ran into, in the 127 1 middle of this walk, John Tingle, a long-time friend of his. 2 Tingle walked up to him and he had the AK-47 across his chest 3 and here's what Tingle has said. Tingle spoke first, he said, 4 quote, Rocky, how's it going. 5 Wesbecker said, quote, stop right there. I told 6 them; now I'm going to show them. 7 Tingle said, "What, man?" 8 He said, "John, get all the way back to the 9 wall. Stay out of my way." He had the barrel of that AK-47 10 across his chest and he had a couple of clips of ammo in his 11 hand. He dropped the bag and had hidden it earlier. Tingle 12 saw the butt of a pistol sticking out of one of Wesbecker's 13 pockets. Wesbecker started bouncing, and so Tingle looked at 14 him and said, quote, okay, man; go for it, because he thought 15 it was just a kind of a show. 16 Shortly after that, Tingle realized it was not a 17 show and he ran with Luke Stephens. He was not shot. Shortly 18 after that, Wesbecker opened fire on Richard Barger, who was 19 coming down a set of stairs, and he killed him. And as he 20 stepped over or around his body, Wesbecker said, "I'm sorry, 21 Dickie." He then went on to commit those other tragic acts 22 that we unfortunately will hear more about on that date. 23 It is undisputed that he had acquired every gun, 24 every bullet that you see on that photograph before he ever 25 took Prozac. He wrote lists. He said, "I'm coming." He 128 1 said, "I'm going to kill and I'm going to blow up" before he 2 ever took Prozac. He didn't do any of those things because he 3 took Prozac; he did them without Prozac. And when he entered 4 Standard Gravure on September 14, 1989, on that occasion also, 5 he did what he said he was going to do. 6 I thank you for your attention. I also have 7 talked longer than I wanted to or had intended to. There is a 8 great deal to say. There are things that I have not been able 9 to communicate to you in the amount of time that I have used. 10 They will come out during this trial. It is a painful story 11 to everyone in this room, most especially these good people to 12 my left, but it is a story that began long before Prozac. It 13 is not a story that is causily related to Prozac but it is 14 related to a man of vengeance, a man of hostility, a man of 15 anger and a man of deterioration not caused by the medication. 16 Thank you very much. 17 JUDGE POTTER: Okay. Ladies and gentlemen, 18 we'll take a 15-minute recess. As I've mentioned to you-all 19 before, do not permit anybody to talk to you about this case 20 or communicate with you about this case; any attempt to do so 21 should be reported to me. Do not discuss the case among 22 yourselves or form or express opinions about it. We'll take a 23 15-minute recess. 24 (RECESS) 25 SHERIFF CECIL: All jurors are present. Court 129 1 is back in session. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 129 1 JUDGE POTTER: Please be seated. Mr. Freeman. 2 MR. FREEMAN: Ladies and gentlemen of the jury, 3 as you know by now, my name is Joe Freeman, and I along with 4 Ed Stopher represent the defendant, Eli Lilly and Company, in 5 connection with the lawsuit that you are here as trier of the 6 facts or finders of the truth. Earlier on in the case you 7 were introduced to our chief medical officer, Doctor Leigh 8 Thompson, who will be here during the trial as much as his 9 schedule will permit. I thought it might be of some interest 10 to you to see what we believe that the issues will be in 11 connection with the facts that you will have to decide in 12 finding the truth of this case. 13 Now, the first question that we believe you'll 14 have to decide is, is Prozac defective, unreasonably 15 dangerous. And in finding that, you can decide that one way 16 or the other by looking at its design, by looking at its 17 manufacture, by looking at its marketing, by looking at its 18 labeling and so forth. 19 The question that you will have to decide is was 20 Eli Lilly and Company negligent in the design, manufacture and 21 labeling of the compound. And the third question you will 22 have to decide is was Prozac a substantial -- substantial 23 cause in causing Joe Wesbecker to selectively kill and wound 24 co-employees that he perceived had something against him and 25 let his friends go. Now, that basically is what you need to 130 1 decide at coming to the truth of the case. 2 In connection with making that decision, Lilly 3 believes that it might be useful for us to explain during the 4 course of the evidence of this case what depression is and 5 what Prozac was founded or discovered or selected to do in 6 connection with this serious question of depression. 7 What is depression? Depression is a mental 8 state that becomes a disease, and it is so disabling and 9 disarming that people from time to time have it so bad that 10 they can't get up out of the bed in the morning, they can't go 11 see about themselves, they can't do anything. And it's 12 described in the medical literature, as the evidence will show 13 you here, as feeling that you are worthless when you are not; 14 in feeling that you are inadequate, when you are not; in 15 having no ability to enjoy or feel pleasure, that is, enjoy 16 something when one of your children or your wife or husband 17 does something well or simply go to a movie or enjoy a 18 television show. It's the kind of thing of having the thought 19 that life is not worth living and it's dragging on forever to 20 the extent that I believe I am going to consider killing 21 myself. 22 Eight out of ten depressed patients think about 23 killing themselves; four out of ten patients try it; and as an 24 outcome or result of depression, one person out of every six 25 kills himself or herself. Over 30,000 people a year in the 131 1 United States alone successfully commit this act and bring 2 about their own destruction. 3 Now, when doctors have a patient come in, they 4 look for certain things. For example, you may go in to the 5 doctor and say, you know, there's the flu been going around 6 here. You may say, "Doctor, my chest is tight," and they look 7 at that and they listen to your chest. "My nose and my head 8 is stuffed up; I'm coughing and I've got a fever," and the 9 doctor will look at all these things and say, ma'am or sir, 10 "It looks like to me you've got the flu, the virus that's 11 going around here, and those are all symptoms of that disease 12 process." 13 Now, let's make one thing absolutely plain and 14 clear here. The doctor is going to try to give you something 15 for that influenza that is going to correct those symptoms. 16 When you go in for depression you have certain symptoms that 17 are a part and parcel of the disease process, and the doctor 18 will look for these things which are symptoms of the disease 19 or condition or state they'll look to see if your mood is 20 depressed. If you've got diminished interest in normal 21 activities. If you have gained significant weight or lost 22 significant weight. In that connection they'll ask you about 23 your appetite: Mr. Jones, are you able to eat like you 24 normally are; has your appetite fallen off. They will ask you 25 if you're tired. That's part of being sick with depression. 132 1 They'll ask you if you can't sleep, if you're -- if you have 2 insomnia, or they'll ask you if you're hypersomnia, which 3 means that you sleep all the time. They want to know if 4 you're walking up and down and back and forth and agitated and 5 can't hardly stand yourself and want to jump out of your skin 6 all the time; a symptom of the disease. They'll ask you if 7 you have feelings of worthlessness and excessive or 8 inappropriate guilt. They'll ask you if you have racing 9 thoughts or diminished ability to think and concentrate. 10 They'll ask you if you have recurrent thoughts of suicide, if 11 you have any plan for suicide, if you made any suicidal 12 attempt. And if they look at it after the fact, like some of 13 these psychiatrists investigate accidents and things after 14 they occurred, they will look and see if the outcome of your 15 particular disease was a successful suicide. 16 Prozac was discovered and designed to treat 17 depression. Now, how does it work. We have had one of our 18 chief scientists who knows more about this perhaps than 19 anybody else in the world today, and I say that modestly 20 because he's worked in it all of his life, Doctor Ray Fuller, 21 and he at his direction has caused a videotape to be made and 22 he's written out the script and he has it as part of his 23 testimony that will show you precisely how the medication 24 works when it is metabolized, that is digested, metabolized 25 into your system and what it does to your mood or feelings 133 1 with respect to depression. I'd like to sort of liken it to a 2 complex telephone system with lines and messages going back 3 and forth being received and sent. The brain is made up of 4 many neurons or we might call major lines through which 5 messages are sent and received by what we call 6 neurotransmitters. Now, there are a lot of them. There are 7 many, many, many neurons and there are many, many 8 neurotransmitters and they are of different shapes and kinds 9 in terms of being received by the proper neuron. As the 10 message is received and the answer is given, the 11 neurotransmitter is subject to reuptake -- that's like being 12 reabsorbed by a pump and is returned to its origin. Now, 13 serotonin is one such neurotransmitter. Scientists have 14 determined -- not a matter of guess -- scientists have 15 determined that low levels of serotonin for use in sending 16 these messages affects mood and causes depression. 17 Now, what did Lilly scientists set out to do? 18 Now, I told you a little bit about there being many, many of 19 these, you remember that, the neurons and the 20 neurotransmitters? Lilly back in the early '70s, its 21 scientists decided that they were going to find, if they 22 possibly could, a clean -- now, listen to this -- a clean 23 compound and a selective compound that would affect only 24 serotonin and bring the system of the depressed person back 25 into balance. It is a balancing agent, like a homeostatic, a 134 1 homeopathic agent. It is a balancing of the system. So they 2 went to work back in the early '70s and they looked at 3 thousands of compounds and they came up after years and years 4 of study with a compound that they thought would be best. I 5 think there were three of them to start with, for this ability 6 to balance serotonin in the system and the brain. And they 7 wanted it to be clean and selective because they didn't want a 8 compound that would affect the other neurons and 9 neurotransmitters in the brain because what would happen if 10 that occurred. 11 First of all, you would get an increase in the 12 side effects that the compound would cause and, secondly of 13 all, because it's not selective it's just shooting all over 14 the lot, you would get a compound that would not specifically 15 and selectively treat the condition that they were trying to 16 complete -- trying to treat; i.e., balancing the serotonin 17 out. And remember me talking about the pump? That, I like to 18 think about as the mother neuron or the neuron that creates 19 the serotonin chemical that sends these messages to start 20 with. They figured out a way to inhibit that pump from 21 reuptake of the serotonin that was sending these messages and 22 to balance out the system, but they left in place the sense 23 like a mother has when a child is full, the sense that that 24 neuron, a presynaptic neuron had or that mother had when there 25 was enough out there for her baby to eat or to get those 135 1 messages she stopped sending them food. She stopped sending 2 more neurons. And over here on the other side they stopped 3 demanding more because there was enough there and there was a 4 balance there and there was a help there for those people who 5 had been so drastically sick. 6 Now, at the time Prozac was introduced -- and 7 I'm getting a little bit ahead of myself, but at the time 8 Prozac was introduced, the main drugs that were out there were 9 MAIOs and tricyclic medications which affected several 10 neurons, several neurotransmitters, causing serious side 11 effects and mixed therapeutic effect. Some of these drugs 12 were even life threatening. And let's keep this in mind when 13 they want to start talking about Prozac not being safe. With 14 any of the others that were in place at the time, the patient 15 could go home with the medicine that the doctor gave them to 16 correct the condition and do what; kill themselves. With 17 Prozac, that is impossible because it is a balancing agent. 18 Now, when the compound was found -- Mr. Smith 19 wants to make out like the FDA is a bunch of halfwits that are 20 sitting up in Washington doing nothing depending on what Lilly 21 says. That is absolutely the furthest thing from the truth, 22 and we will demonstrate that to you beyond a shadow of a 23 doubt. They fight you every step of the way. Overlook 24 everything that you do and second-guess everything that you 25 do. And you have to dot every I and cross every T or they are 136 1 down your throat every two or three seconds. 2 After we found the compound, the FDA permitted 3 us to have it checked to see if it was toxic, and they said, 4 Lilly, we require -- you do not have an option -- we require 5 that you test this in animals. This went on for years, oh, 6 God, up till 1983, September of 1983, and afterwards, for 10 7 to 15 years for longevity studies, et cetera, where they have 8 had us test Prozac in animals to determine is it toxic or 9 poisonous, does it affect any major organ system and can it be 10 some kind of, though it's not always -- can it be some kind of 11 a predictor -- that's all they're looking for is a predictor. 12 After that extensive testing was done, in September of 1983, 13 the new drug application was filed along with some clinical 14 trials. Now, the FDA does not sit there in Washington and do 15 nothing. They say, Mr. Lilly, if you want to do a test at 16 Harvard University you would have -- the plaintiff's statement 17 would have you think we had somebody out here at Lilly doing 18 all the testing; that was not the case at all. We did the 19 animal testing and the first phase of testing only, and that 20 was only to determine if it was poison or affected any major 21 organ groups. Mr. Lilly, if you want to test this in humans, 22 you send us a plan for doing that every time you want to do it 23 in absolute detail, and we will either tell you whether that 24 plan is acceptable to determine whether it's safe or 25 efficacious or whatever, but you send it to us first. And 137 1 after the plan was approved and the plan was sent to these 2 various universities, that I'll talk to you about in a minute 3 and medical centers, they would do quality checks with the 4 data precisely as the clinical investigator had sent it in and 5 the exact same language, the exact same data went to the FDA 6 in the fullest form. 7 Before that was accepted, they'd have an 8 investigator drop in on the Harvard University McGill Hospital 9 and see if the nurse and the administrator knew what they were 10 doing, see if the forms were being filled out right, see to it 11 that it was being done right according to the plan or 12 protocol, and they made these quality checks at many 13 locations. They themselves took the data from the trials and 14 analyzed it themselves. They didn't take our word for it. 15 They knew what medications they were on and what medications 16 they were not on at the time they went forward, and they 17 monitored the trials and assigned categories to the data as 18 FDA saw fit. They approved of all of the data, that is, they 19 went into it and looked at it to see that it was accurate, and 20 they approved of the packaging materials, that is, how it was 21 put in a bottle. They approved of everything that was said 22 about it from the promotional materials that went to doctors 23 to the package inserts that went with the medicine to the 24 doctors. 25 Now, as a matter of illustration, Lilly did not 138 1 use some fly-by-night affair that was going to put a stamp on 2 whatever they wanted them to put a stamp on. These 3 universities are only representative of 140 sites in the 4 United States, and you will see that the leading places in the 5 country are on it: Johns Hopkins, Mayo Clinic, Yale 6 University, Harvard University, Mass General, McLean Hospital 7 Brigham and Women's Hospital, Memorial Slone-Kettering, UCLA, 8 Vanderbilt, Cincinnati Medical Research, Rush Presbyterian 9 Center in Chicago. They cover several miles and blocks. 10 University of Texas where Mr. Smith is from, National 11 Institute of Mental Health, the University of Louisville and 12 others, here in this own place it was tested. Over 200 13 clinical trials were done throughout the world, and they were 14 divided into four phases. Phase One was given to normal 15 humans to determine if it had any toxic effect on them or 16 poisonous effect on any of their organs. Number Two was a 17 open-label and somewhat closed-label or blinded-label study, 18 and let me tell you the difference between the two. 19 An open-label study would be like one of us, you 20 came to Doctor Thompson and they would say to you, now, ma'am, 21 today, I'm going to put you on Prozac a certain day. I'm 22 going to put you on Prozac and see how you do. I want you to 23 take 20 milligrams a day, and Doctor Thompson and you both 24 know what's going on, and you either report to him that you're 25 feeling better or that you've got a skin rash or something 139 1 else and he makes a determination as to whether or not what he 2 thinks about it. So that you, wanting to get well, or I, 3 wanting to get well, might overstate it to Doctor Thompson by 4 saying, Doctor Thompson, I want to get well. This is a new 5 drug, so I believe that I'm getting better when I'm really 6 not. Or I don't tell him about this reaction because I'm 7 feeling better, and I think it's because of the drug when it's 8 really not. 9 So Lilly and the FDA set up double- and 10 triple-blinded studies where they would take 30 people, for 11 example, who were depressed and they would have them in and 12 they would have a random drawing. The doctor would not know 13 that Juror No. 1 was getting a sugar pill and that Juror No. 3 14 was getting Prozac and that Juror No. 2 and Juror No. 13 was 15 getting a sugar pill and 15 and 9 were getting Prozac. And 16 this was blinded so that when a person came in and said to the 17 doctor, I'm more agitated, I can't sit still, I don't feel 18 right, I've got a skin rash; when that got back to Lilly in 19 Indianapolis and to the FDA they were able to tell that the 20 person that had been on the sugar pill had those feelings or 21 that the person that had been on Prozac had had a loss of 22 appetite. And after they got a statistical significant 23 number, they could tell a couple of things about it. They 24 could tell -- after not looking at just one patient but after 25 looking at thousands of patients, they could tell what in 140 1 their judgment was a likely side effect, what was a part of 2 the disease process and whether or not the drug could be said 3 and predicted to help depressed people. 4 They did another thing. They had it triple 5 blinded, just one, two, three, sugar pill, Prozac and a 6 comparator; that is, another antidepressant. And they 7 compared how these people did on all three blinded so that the 8 doctor and the patient did not know. And at the conclusion of 9 the patient's treatment they were able to determine whether it 10 had been safe and efficacious for groups of patients. 11 Now, that is important that they be blinded and 12 double blinded so that you won't be influenced by knowing what 13 you know, whether you're taking a sugar pill or a medication, 14 because if you had a side effect from the sugar pill you'd be 15 embarrassed probably to say so. And so the FDA and Lilly and 16 other drug companies have agreed that this is the best way to 17 go about scientifically determining what happens. 18 Another thing that was done in the clinical 19 trials was the effort to determine what the right dose is. 20 Now, up until Prozac came along they did what in the old days 21 were called titrating a drug, that is, giving you a dose today 22 of five milligrams and then ten and then fifteen and then 23 twenty and so forth. So Lilly went through exhaustive testing 24 both in the U. S. and worldwide, in which it decided that it 25 was going to try in every way that it could to keep people 141 1 from being, what, undertreated. Undertreated. Now, why did 2 they want a person not to be undertreated? Because if a 3 person is thinking about killing themselves, they wanted that 4 patient to have the maximum therapeutic effect as soon as 5 possible and it was determined that the maximum therapeutic 6 effect was 20 milligrams. And while 5 milligrams had some 7 therapeutic effect, its side effect profile was almost 8 identical. 9 At the time Prozac or fluoxetine hydrochloride 10 -- you'll hear that word; that's the chemical name -- was 11 approved by the Food and Drug Administration, it had been over 12 22 years since work had begun on the compound. It had been I 13 believe since 1976? 14 DOCTOR THOMPSON: May 11, '76. 15 MR. FREEMAN: Let me see what that date is. I 16 think that date's about right. 17 DOCTOR THOMPSON: May 11, 1976. 18 MR. FREEMAN: 1976 when the IND was sent in. It 19 took till December 29th, nearly the last day of the year of 20 1987, for the FDA to approve it for physicians to prescribe to 21 patients who they determined to be depressed. At the time, it 22 was the most thoroughly tested medicine for mental disease in 23 the history of the United States or any country in the entire 24 world. It has been said by officials of the FDA that it was 25 the best testing program ever devised by any company for a 142 1 psychoactive drug. Today it is approved as safe and effective 2 in 75 countries, and most of the 75 countries, that is, those 3 from Germany to England to China to Taiwan, et cetera, have 4 had questions that they wanted to have independently answered 5 or tests that they wanted to have done within their borders. 6 And such was the case with the Germans that we'll talk about a 7 little bit later. 8 In 1993 -- now, this defies all anybody ever 9 heard of. In 1993 alone, doctors in the United States of 10 America had such confidence in the drug Prozac for the 11 treatment of depression that they wrote over 11,300,000 12 prescriptions. Now, it will be the contention of the 13 Defendant that a doctor is not going to write a prescription 14 for a patient that has the slightest possibility of doing 15 anything like happened in this case or that is not helpful to 16 the patient or that is unsafe for the patient. They don't 17 want the patient coming back in and saying this makes me feel 18 like I'm going to kill somebody. That's not the case. It 19 doesn't make you feel that way. They want a patient that is 20 being happy with them and happy with the medicine that they 21 gave him, not somebody that's coming and belly aching all the 22 time. 23 MR. SMITH: Your Honor, we're going to have to 24 object to the argumentative nature of Counsel's comments. 25 JUDGE POTTER: Okay. Sustained. 143 1 MR. FREEMAN: Now, more than 12 to 15 million -- 2 I believe the latest figure is 15,000,001 -- patients, not 3 prescriptions, because you may take the medication as you can 4 see several months or several times. Over 15 million patients 5 have taken the medication and in the vast majority of them it 6 has helped. 7 Now, when Lilly put this out on the market they 8 didn't just say forget it. We have a system of our own where 9 we ask doctors and physicians and medical groups and everybody 10 else to call us or to send in a form which is called a drug 11 experience report. And on this drug experience report it 12 doesn't try to assign causation; for example, symptoms of the 13 disease, suicidal thoughts, agitation, pacing, irritability, 14 all of those things are reported, symptoms of the disease, 15 along with things like patient was struck by lightning; 16 patient hit by car. And also there are those where there are 17 reports of people stumbling. 18 Now, if you got a large number of people 19 stumbling, the FDA would say to you we want you to go back and 20 look, Doctor Thompson, at whether or not there should be an 21 additional study done on whether it has something to do with 22 your ability to walk or your ability to see, and then you 23 would have another clinical trial that would go specifically 24 to that issue. But the point of all of this is that the 25 system that Mr. Smith criticizes, that is, the clinical 144 1 trials, accurately predicted that the drug would be safe, as 2 it has been, and that it would be helpful in the treatment of 3 depression. 4 Now, in 1991 and '90, there was a lot of 5 publicity stirred up by some groups about Prozac, and so the 6 FDA decided these are the kinds of things that would be 7 reported that are a part of the symptoms of the disease on the 8 1639s. The FDA decided that it would have a distinguished 9 group comprise an advisory committee which would look at the 10 safety and efficacy of the medication, and they assembled this 11 group after they had studied them out after some weeks or 12 months in Washington, and they had a long discussion with a 13 day's hearing with people from the plaintiffs' bar, people 14 that had sued Lilly, patients that appeared there, mental 15 health consultants; for example, the head of the Mental Health 16 -- depressive disorder, whatever that organization is called, 17 the chairman was there of that that testified about various 18 and sundry matters concerning effication and they had a 19 roundtable discussion and they determined for the third time 20 that it was safe; that it was efficacious, and that the 21 package literature that we had out was very good and adequate 22 and no changes needed to be named. Now, there were people 23 also from the FDA and also some consultants that cleared that, 24 some of which had written articles about the medication. 25 Now, I want to deal with this rather quickly. 145 1 Mr. Smith has made a big deal about Germany. Now, I want 2 you-all to listen to this because it will cut through about 3 two weeks of talk about it. They're going to put on evidence, 4 I judge, for five or six days about Germany and I'm going to 5 put up on the board the warning that goes to the German 6 patient and the warning that has gone to the doctor and then 7 we're going to talk about proximate cause. What does it have 8 to do with this case, I'm going to ask each of you. What does 9 it have to do with it. 10 First of all, the American statement says in the 11 package insert, which is simply a reminder to the doctor, the 12 doctors know this. It's like saying you don't know a person 13 that has a cold may cough. "Suicide, the possibility of 14 suicide is inherent in depression and may persist until 15 significant remission occurs. Close supervision of high-risk 16 patients should accompany initial drug therapy." 17 In the German warning, if you look down there 18 it's got risk patients. A risk patient can be a person that 19 has a dysfunctional liver, has diabetes, who has simultaneous 20 treatment with Lithium or has expressed that I may kill 21 myself, has a risk of suicide, has indicated to the doctor I 22 may kill myself. And it simply says about the same thing 23 about observing and then until **Flukten or Prozac sets in. 24 And then it says, "Taking an additional sedative may be 25 necessary. This also applies to extreme sleep disturbances 146 1 and excitability." 2 The first thing I want to point out to you is 3 that it was approved in Germany in January of 1990. Second 4 thing I want to point out to you is Mr. Wesbecker at the time 5 of the shooting was on a sedative which he had been taking for 6 over a year, prescribed by Doctor Coleman and continued by him 7 for that period. The medication in his chart shows that he 8 was taking Restoril, a sedative. What on earth does it have 9 to do with this case to talk two or three weeks about what 10 happened in Germany when the doctor treating the man here knew 11 it, as every other doctor did. Now they want to make a big 12 deal about treating with concomitant medication. 13 Let me tell you something what the evidence is 14 going to be. When you have a patient come into a clinical 15 trial and that patient is depressed and that patient cannot 16 sleep, are you going to tell them that they cannot take their 17 medication that they have been on all along for sleeping? No, 18 you are not. They have to continue on some sort of reasonable 19 regime. You are not going to shock their system to here and 20 back by taking them off of everything and just leaving them on 21 Prozac. 22 MR. SMITH: Again, Your Honor, I'm going to have 23 to object to the argumentative nature of Counsel's comment. 24 This is opening statement. 25 JUDGE POTTER: Sustained. 147 1 MR. FREEMAN: This is going to be the evidence. 2 So in connection with that, Lilly did allow some of their 3 patients -- did allow some of the patients -- as the FDA knew 4 from the first day. They saw all of those studies. Nothing 5 was hidden from them about anything. This has been an open 6 book for them. 7 MR. SMITH: Again, we're going to have to object 8 to Counsel's comments. 9 JUDGE POTTER: Well, you've got, what, five 10 minutes more, Mr. Freeman? 11 MR. FREEMAN: Yes. Now, the second contention 12 of the plaintiff that I want to reply to briefly is they said 13 we never tested seriously ill-depressed persons. Another 14 ethical consideration is whether you're going to take a person 15 home that's going to say I'm going to kill myself. No. We 16 expect the evidence to be that we conducted those studies of 17 the seriously mentally ill in multi-sited hospital locations 18 where the patient could be overseen by a doctor every day and 19 every minute because they were suicidal. We did that both in 20 Germany and the U. S., and those people were dramatically 21 helped. 22 Now I want to return just for a very few minutes 23 to point out that Mr. Wesbecker was not just depressed. Mr. 24 Wesbecker was secretive, he wouldn't tell his doctors who he 25 had been to see before, and he was deceptive. He had been 148 1 diagnosed with depressive disorder/adult adjustment reaction 2 in 1980. He had a major recurrent depressive reorder in 1984. 3 He had agitation in 1984. He had atypical bipolar disorder in 4 '86. He had, in '87, outbreaks of hostility, dysthymiac 5 disorder and paranoid personality. Prozac is not designed to 6 treat that. 7 He had 12 to 15 reported suicides. When he went 8 to Doctor Coleman, Doctor Coleman diagnosed him as being 9 schizo-affective disorder, which has all kinds of hostile 10 overtones. The number of times that Mr. Stopher mentioned in 11 his opening statement hostility, threats, it must have been 12 more than 50 or 60 to 100 times that it's expressed in the 13 record before Mr. Wesbecker ever took the first pill of Prozac 14 in June of 1988. He was on it twice. That didn't make him go 15 out and do anything. He was mad as hell then. He was furious 16 with these people. He had been buying weapons and everything 17 else. When he got off of it, they wrote him this mean letter, 18 and they said not only are we going to cut you to $391, if you 19 want to keep your insurance, we're going to take out on you 20 $78. We don't give a dern if your grandmother just died, the 21 only person that ever cared a thing on earth about you. You 22 are a thing and we do not care. 23 And the plaintiffs in this case I believe will 24 not make any connection or any -- make any proof that the drug 25 was defective by way of design or manufacture but will only 149 1 claim that something was wrong with the market warning or they 2 may try to shotgun it. But when you get down to it, ladies 3 and gentlemen, I respectfully suggest to each of you, and it's 4 your decision, but I suggest to you that the verdict in this 5 case should be "we, the jury, find in favor of the defendant, 6 Eli Lilly and Company," and that I ask each of you so to do. 7 Thank you for your kind attention. 8 JUDGE POTTER: Okay. Ladies and gentlemen, have 9 you gotten the labels for your thing? My sheriff has some -- 10 why don't you go ahead and collect them up -- some folders 11 there; you can just pass it down the aisle. There's one 12 folder for each aisle has got your names on the front and 13 she's got a drawer with a lock on it and she'll -- so she can 14 put them all in there. 15 Let me mention a couple of things that may have 16 been curious to you. When the TV cameras are in the courtroom 17 their one rule is they do not show the jury. So if any of you 18 are worried that you're going to appear on television, it's 19 kind of one of the ground rules. They might show your feet or 20 something when you're walking in or out, but you're not going 21 to yourselves appear on television. I don't know if that's 22 good or bad for you. 23 The questionnaires that you-all filled out along 24 with the other questionnaires of the other jurors that weren't 25 selected are not part of the public record. I probably should 150 1 have mentioned all of that to you yesterday, but it just 2 occurred to me that something might be nagging in your mind. 3 In keeping with our announced schedule, we're 4 going to stand in recess till 9:30 Monday morning. I'm going 5 to give you the same admonition that I've given you before: 6 Do not permit anyone to speak to or communicate with you on 7 any topic connected with this trial, and any attempt to do so 8 should be reported to me. Do not discuss the case among 9 yourselves or form or express opinions about it until it is 10 finally submitted to you for your determination. 11 We'll stand in recess till 9:30 Monday morning. 12 (JURORS EXCUSED AT 4:55 P.M.; 13 THE FOLLOWING OCCURRED IN ROOM 148) 14 JUDGE POTTER: I think at some time previously 15 in this case I said I feel like I have a feeling for a case -- 16 I never really feel like I have a feeling for a case until 17 after the opening statements. And I think I have a feeling 18 for the case, and I think the jury paid attention and they do, 19 too. You-all have got your battle lines drawn and each side 20 has more than just something to sell. Ms. Zettler and Mr. 21 Smith have given the first witness list how they're going to 22 start off next week, and it's all their clients. And they're 23 going to try the best they can to try to follow it in the 24 order in which they met Mr. Wesbecker on that day. Are they 25 going to have exhibits next week or do you think they'll be 151 1 mostly without exhibits? 2 MS. ZETTLER: Not many, if any. 3 JUDGE POTTER: How do you-all want me to handle 4 the admonition on Fentress? I notice I guess it was Lilly or 5 something wanted me to say something to the jury about 6 Fentress. My suggestion is you type up something on a 7 three-by-five card, have it here, and 9:15 Monday, I'm 8 assuming if it's anything short of unreasonable, I'll probably 9 read it to them that this is put on there and they should 10 ignore it and you-all don't have any problems with it, 11 provided it's reasonable. 12 MS. ZETTLER: Oh, the stamp. 13 JUDGE POTTER: The big confidential Fentress 14 across it. And if you want to include the ones that have some 15 other stamp... I think you-all mentioned today that there are 16 lots of lawsuits. I don't think -- I mean, you know. I don't 17 think that's going to be a surprise to the jury. 18 MR. FREEMAN: I didn't say lots of lawsuits; I 19 said lawsuits. Lots may be five. 20 JUDGE POTTER: So, anyway, that it has another 21 name on it. It's not like a doctor in a malpractice case 22 where the jury would be surprised to find there were another 23 one. Again, the secrecy of the documents, I guess it doesn't 24 really come up next week because they aren't going to have 25 very many exhibits. 152 1 And the other things I had on my list were 2 exhibit copies. Someone in their opening mentioned you ladies 3 and gentlemen of the jury will have copies of these to look 4 at, or I don't know what was said but it indicated to me that 5 somebody may pass out copies of exhibits. 6 MR. STOPHER: I think I'm the one that said it. 7 What I intended by that, that they will be shown a copy and 8 distributed to them. We discussed earlier the question of 9 whether or not to give them notebooks, and I don't think we've 10 really decided. 11 JUDGE POTTER: We haven't. And the day before 12 that starts to happen let's take it up at the morning 13 conference so nobody says, hey, Judge, what's happening. And 14 you also understand it's available to both sides. I don't 15 want you-all to finish your proof and then say they can't pass 16 out copies because we didn't. You-all have got pretty good 17 audiovisual gimmicks, and I assume, Mr. Stopher, that your 18 document displayer is the top of the line; is that right? 19 MS. ZETTLER: Ours? 20 JUDGE POTTER: I couldn't see what it was 21 showing to the jury. 22 MS. ZETTLER: It pops up on the TV. 23 MR. FOLEY: It's real nice, Judge. 24 MR. SMITH: I don't know if it's top of the 25 line; state of the art. 153 1 JUDGE POTTER: I'm sure Mr. Stopher has offered 2 it to you-all and so you-all will have to decide whether you 3 want to accept his offer or not, and you-all can decide where 4 you want to put it in the room and whether you leave it there. 5 That's really all I had. I just wanted to touch base. I'll 6 see you at 9:15 on Monday. 7 MR. SMITH: Let me ask one question. When 8 you're talking about giving copies of the exhibits to the 9 jury, are you talking about 12 individual copies? 10 JUDGE POTTER: Sixteen. Yes. Individual Xerox 11 copies that they can sit there and hold with them. Then you 12 have an idea of whether you collect them up at the end of the 13 day or they get some kind of notebook where they can keep 14 their stuff. Those are your options. See you-all Monday at 15 9:15. 16 (PROCEEDINGS TERMINATED THIS DATE AT 5:05 P.M.) 17 * * * 18 19 20 21 22 23 24 25 154 1 STATE OF KENTUCKY )( )( Sct. 2 COUNTY OF JEFFERSON )( 3 I, JULIA K. McBRIDE, Notary Public, State of 4 Kentucky at Large, hereby certify that the foregoing 5 Transcript of the Proceedings was taken at the time and place 6 stated in the caption; that the appearances were as set forth 7 in the caption; that said proceeding was taken down by me in 8 stenographic notes and thereafter reduced under my supervision 9 to the foregoing typewritten pages and that said typewritten 10 transcript is a true, accurate and complete record of my 11 stenographic notes so taken. 12 I further certify that I am not related by blood 13 or marriage to any of the parties hereto and that I have no 14 interest in the outcome of captioned case. 15 My commission as Notary Public expires 16 December 21, 1996. 17 Given under my hand this the__________day of 18 ______________________, 1994, at Louisville, Kentucky. 19 20 21 22 23 _____________________________ 24 NOTARY PUBLIC 25