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 THURSDAY, OCTOBER 27, 1994 15 VOLUME XXIV 16 17 * * * 18 19 20 21 _____________________________________________________________ REPORTER: JULIA K. McBRIDE 22 Coulter, Shay, McBride & Rice 1221 Starks Building 23 455 South Fourth Avenue Louisville, Kentucky 40202 24 (502) 582-1627 FAX: (502) 587-6299 25 2 1 2 I_N_D_E_X _ _ _ _ _ 3 4 Hearing in Chambers regarding Heiligenstein testimony.... 4 5 Hearing in Chambers regarding Coleman testimony.......... 23 6 * * * 7 WITNESS: DOCTOR_LEE_A._COLEMAN (Continued) _______ ______ ___ __ _______ 8 By Mr. Stopher........................................... 30 By Mr. Smith............................................. 97 9 * * * 10 Hearing in Chambers......................................154 11 Reporter's Certificate...................................161 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 4 FOR THE PLAINTIFFS: 5 PAUL L. SMITH Suite 745 6 Campbell Center II 8150 North Central Expressway 7 Dallas, Texas 75206 8 NANCY ZETTLER 1405 West Norwell Lane 9 Schaumburg, Illinois 60193 10 IRVIN D. FOLEY Rubin, Hays & Foley 11 300 South, First Trust Centre Louisville, Kentucky 40202 12 13 FOR THE DEFENDANT: 14 EDWARD H. STOPHER Boehl, Stopher & Graves 15 2300 Providian Center Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. 17 LAWRENCE J. MYERS Freeman & Hawkins 18 4000 One Peachtree Center 303 Peachtree Street, N.E. 19 Atlanta, Georgia 30308 20 * * * 21 22 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 Thursday, October 27, 1994, at approximately 7:35 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS WITH MS. ZETTLER AND 10 MR. MYERS PRESENT) 11 JUDGE POTTER: We had gotten through -- we were 12 starting at Page 252; is that right? 13 MS. ZETTLER: No, I'm sorry. You got through 14 that, Judge. We're at 281. 15 MR. MYERS: I'll waive 281 through 287. 16 JUDGE POTTER: Now we're looking at 291. 17 MS. ZETTLER: This is another thing they want to 18 read in. 19 MR. MYERS: I also won't insist on 291 through 20 293. I may read that at some point but not as part of theirs. 21 JUDGE POTTER: All right. 340. Now we're into 22 the second volume. 23 MS. ZETTLER: I'm sorry. What one are we on 24 here? 25 MR. MYERS: 340. 5 1 MS. ZETTLER: Okay. 2 JUDGE POTTER: What are we talking about, Ms. 3 Zettler? 4 MS. ZETTLER: Let me get my brain going here, 5 Judge. We're back to the -- we're back to the aggression 6 study here. I'm not sure what point we're getting to here. 7 This is a couple of terms that were pulled under one of their 8 event terms Antisocial Behavior, and we're talking about how 9 neither one of those terms include violent behavior towards 10 others and they still included them in the... 11 MR. MYERS: And our point is simply they're 12 going to read from 330 to 347 almost inclusively. 13 JUDGE POTTER: Okay. I don't have to -- I mean, 14 that's just one question in a big long thing. Mr. Myers, it's 15 a false start, so we'll leave in 9 through 21. 16 MS. ZETTLER: Our point is we took all the stuff 17 about blinding the study out and this kind of gets confusing. 18 JUDGE POTTER: All right. 356 -- she gave you 19 350. 356 and 357. 20 MS. ZETTLER: Now, the blue is what I want in if 21 you let the other stuff in. 22 JUDGE POTTER: Okay. I think we switched to a 23 different subject on that one. That's what I'm trying to see. 24 MS. ZETTLER: Yeah. 25 MR. MYERS: Actually, just while you're looking, 6 1 Judge, the things on 356, 357, 361 through 363 that we've 2 marked are all the same subject matter. 3 JUDGE POTTER: Okay. It looks like if you read 4 that, Ms. Zettler wants to read it as a block. 5 MS. ZETTLER: You know, I just object to him 6 taking pieces out of that section. 7 MR. MYERS: How far do you want to read? 8 JUDGE POTTER: She wants to read from 356 to 9 365. 10 MS. ZETTLER: Okay. But I ask that they read 11 that in their part, Judge. 12 JUDGE POTTER: Give me some more background. 13 What topic are we talking about? This is the composition 14 of -- 15 MS. ZETTLER: Their psychiatry advisory panel. 16 This is -- it's not something that comes out in any other part 17 of the deposition that we've pulled out. 18 MR. MYERS: While some of these people are on 19 our psychiatric advisory counsel, the question is what did you 20 do on the question of suicide and who did you consult with. 21 The guy's been questioned about what did you do about violence 22 and suicide, and this is who did you consult with. 23 JUDGE POTTER: Let me back up just a second. 24 Doctor Heiligenstein did -- we're dealing with something that 25 was done in '91? 7 1 MR. MYERS: The paper, yes, sir. 2 JUDGE POTTER: And it went to the people -- I 3 keep calling them ad hoc committee, but they're not, they're 4 an established FDA committee. This is an in-house paper? 5 MR. MYERS: This is a published paper done by 6 Lilly. 7 MS. ZETTLER: I think he's asking whether it 8 went to the PDAC, the advisory committee. 9 JUDGE POTTER: It was part of Lilly's 10 presentation in 1991? 11 MS. ZETTLER: And then it was subsequently 12 published. 13 MR. MYERS: The data was but the paper wasn't. 14 We agree to that. 15 JUDGE POTTER: The data went to the advisory 16 committee? 17 MR. MYERS: The date and conclusions went to the 18 advisory committee. The paper was published later. 19 JUDGE POTTER: When we say data, we're really 20 meaning organized data that tells you what the conclusions 21 will be when you look at it. 22 MS. ZETTLER: This is not the advisory panel, 23 though, Judge. These are outside consultants that form their 24 psychiatric advisory panel for Lilly. This is not the PDAC. 25 JUDGE POTTER: But they were the people that put 8 1 together the -- or Doctor Heiligenstein was -- 2 MR. MYERS: They consulted with us on the 3 subject. And my concern is that the plaintiffs -- it's their 4 case -- are going to criticize the way we did it, but we just 5 want to show that we looked at it with other people. 6 MS. ZETTLER: They didn't look at the 7 violent-aggressive behavior study. These people looked at 8 another analysis on suicide. That's why I'm saying this is 9 confusing, because it makes it look like these people looked 10 at the violent-aggressive behavior study; they didn't. 11 MR. MYERS: If they're going to contend that 12 suicide and violence are the same, then I think we're entitled 13 to show who we consulted with on this subject. 14 JUDGE POTTER: The mysterious Doctor Fawcett. 15 MS. ZETTLER: He's from Chicago. You should see 16 this guy, judge. He's their Doctor Breggin. 17 MR. MYERS: That might be actionable if that got 18 taken down by the Court Reporter. 19 MS. ZETTLER: A lot of times he's there on the 20 same Oprah show as Doctor Breggin, and he ain't there by 21 chance. 22 MR. MYERS: That's quite a social commentary, 23 being on the Oprah show. 24 JUDGE POTTER: What I'm going to do is sustain 25 the 56 through 63 with Plaintiffs' additions, which basically 9 1 makes it the whole ball of wax. Now if you-all read, you've 2 got to read that. 3 MS. ZETTLER: So you're making us read that, 4 even though it's going to be confusing to read it in the 5 context of the violent-aggressive behavior study? 6 JUDGE POTTER: Well, you put in the thing, you 7 said suicidality. 8 MR. MYERS: I'll withdraw 452 to 455. 9 JUDGE POTTER: So 470, 471? 10 MR. MYERS: Yes. And actually our designations 11 through 476 are on the same general subject matter, I think. 12 MS. ZETTLER: Let me see what it is. 13 JUDGE POTTER: I'm trying to figure out what the 14 last thing she read before that. Is this completeness for 15 something coming up or something in the past? 16 MR. MYERS: Something in the past with respect 17 to this review of violence that he did and aggression. 18 JUDGE POTTER: All right. I'm going to do that 19 as one that if you-all want to read separately. 20 MS. ZETTLER: Okay. But can I lodge an 21 objection here? This man has not been designated as an 22 expert. He's giving opinions on the Wesbecker case that are 23 unsubstantiated. He admits that he knows very little about 24 the case and all he knows is what he's read in the newspaper. 25 This is highly prejudicial. If they want to bring him in to 10 1 testify, that's one thing. 2 JUDGE POTTER: Let me read it again with that 3 objection in mind. 4 MR. MYERS: I don't think he took a case- 5 specific position in this excerpt. 6 MS. ZETTLER: Well, at the beginning of it he 7 asks if he had an opinion about Wesbecker, and then he backs 8 it up with all this other crap. Excuse my French. 9 JUDGE POTTER: Well, I don't know what he backs 10 it up with. 11 MS. ZETTLER: He admits he had experience but he 12 admits he never reviewed anything in detail other than 13 newspaper articles. It's highly prejudicial. 14 JUDGE POTTER: I'm going to overrule that. 15 She gives you 484. I'll sustain 488. 16 MS. ZETTLER: Our objection to that, just for 17 the record, is that it's nonresponsive and gratuitous. 18 MR. MYERS: Is 489 sustained? 19 MS. ZETTLER: I gave you that. 20 MR. MYERS: Oh, you did? Thank you. 21 JUDGE POTTER: 492 through 497 are a block? 22 MR. MYERS: Yes, sir. 23 JUDGE POTTER: What is Exhibit 7? 24 MR. MYERS: It's a draft of the paper that he 25 had been examined about for the first couple hundred pages. 11 1 MS. ZETTLER: It's like the second or third or 2 fourth draft. A couple other drafts have been admitted in the 3 other deposition. Again, the blue is what we would like you 4 to read. 5 JUDGE POTTER: I'm afraid I don't understand all 6 this stuff you want to add, Ms. Zettler, to 492. 7 MS. ZETTLER: Part of the problem is they pulled 8 this right out of the middle of a bunch of testimony about 9 other things. He talks about all these patients and then goes 10 back and admits that a lot of these are people from other 11 indications other than depression, so it's a whole group of 12 different people that are included in the study. They're 13 trying to bolster it by saying there are 3,000-some-odd people 14 in the analysis, and we're saying they're including obesity, 15 and other things, and it wasn't just mental illness. 16 MR. MYERS: Our position is if the theory is 17 that the drug makes you do it, then it should appear in these 18 indications other than depression and it doesn't, and that's 19 what we put it in for. 20 MS. ZETTLER: The theory is if you have a 21 dysfunctional serotonin system, that's when it's going to 22 happen. And they've made a huge point throughout this case to 23 say these other indications have nothing to do with 24 depression. 25 JUDGE POTTER: This is a draft of the thing; 12 1 right? 2 MR. MYERS: And there are several that are 3 exhibits and I think one that's included in the testimony that 4 they're going to read already. 5 JUDGE POTTER: I agree this summing up for their 6 side is putting forth the good part. I mean, doesn't that 7 happen somewhere else on a later copy? I mean, I just have a 8 feeling that this series here, 492 to 497 is going to 9 happen -- this is the only time it happens where he gives 10 his -- 11 MS. ZETTLER: Wrap-up numbers, yeah. But the 12 problem is it's taken out of context, Judge. He's going to 13 another exhibit and trying to bootstrap everything onto that 14 exhibit. 15 MR. MYERS: He was examined at great length over 16 the methodology he used in putting this paper together, and I 17 suspect they are going to be and have been critical of it. 18 And he's entitled to say what they came up with and how they 19 did it. If you're going to go through what the methodology 20 is, if you're going to do that, you have to put in the 21 beginning what was the methodology and the end result. 22 MS. ZETTLER: But then you should include the 23 entire data that was looked at, not just the part that was 24 applied to depression. 25 JUDGE POTTER: You-all have convinced me that if 13 1 Lilly wants to put in your part then you put in their part. 2 MR. MYERS: But you're not going to put it in 3 when you read the deposition? 4 MS. ZETTLER: No. But I'm just saying if you 5 read it, you should read the entire section not just that one 6 spot. 7 JUDGE POTTER: I'm saying Lilly can read 492 to 8 497, but then she has like -- where does your addition stop? 9 I mean, you-all are talking about stuff about prison wards. 10 MS. ZETTLER: Right. But he's saying there's so 11 few people -- 12 JUDGE POTTER: Well, let's just... 13 MS. ZETTLER: I think at least to -- what did 14 you say, 497, Larry? And then we start to a whole new thing. 15 MR. MYERS: My request that it be read for 16 completeness is overruled, but I can read it, and then if I 17 read it, Ms. Zettler can read her part? 18 JUDGE POTTER: I think if it's read it ought to 19 be read together. 20 And, Ms. Zettler, tell me again why this 21 shouldn't be represented as part of your case. You've put in 22 dozens of criticisms of the survey and it's just a draft of 23 the survey. 24 MS. ZETTLER: It's just another draft. If they 25 want to bring this out, I mean, there's 3,000 people and we 14 1 went through the whole **rigamarole. We didn't get into 2 numbers in the other part. We were talking about what was 3 included as types of data, and they bring out the numbers and 4 trying to imply that it's depression and it's not. The reason 5 I didn't include it, frankly, is this thing is confusing 6 enough. 7 JUDGE POTTER: It can be read by Lilly but if it 8 is, then she lets her completeness stuff in on yours because 9 basically it's filling in the gaps from 492 to 507. 10 MR. MYERS: I probably won't read it, then. 11 I'll likely not read it. 12 JUDGE POTTER: I'm not criticizing you or her; 13 it's just unless we get another Penthouse cover at this point 14 the jury is not going to -- 15 MS. ZETTLER: We can throw one in, if you want, 16 Judge. 17 MR. MYERS: So you had marked to go how far? 18 MS. ZETTLER: I think the subject changes at 19 507. 20 JUDGE POTTER: She had the changing at Page 507, 21 Line 10. 22 MS. ZETTLER: If they want to get the stuff in 23 through this guy, they should bring him down. 24 JUDGE POTTER: Is this one of the 25 unpresentables? 15 1 MS. ZETTLER: Yes. 2 MR. MYERS: He's very presentable. 3 JUDGE POTTER: All I know from the four of 4 you-all, there are some unpresentables up there. 5 MR. MYERS: He's a very nice man. 6 JUDGE POTTER: I'm not saying they aren't good 7 men or good fathers or good scientists. 8 MS. ZETTLER: In all fairness, Doctor 9 Heiligenstein did not sweat through his jacket like Doctor 10 Beasley did. 11 MR. MYERS: So does that take us down -- 12 JUDGE POTTER: 507, Line 10. And shouldn't this 13 be in it, too. 14 MS. ZETTLER: It might be, now that I'm looking 15 at it, too. I'm sorry. I think you're right, Judge. I think 16 it ends up going to 508 instead of that whole line, and then 17 we switch subjects there. Actually I think it switches here. 18 MR. MYERS: So it goes through 508, Line 8. 19 MS. ZETTLER: And then we wanted through Line 19 20 if you do that. 21 MR. MYERS: If I read it? 22 JUDGE POTTER: If you read it. 23 MR. MYERS: All right. And I'll withdraw to 24 509, so we move on to something else. 25 JUDGE POTTER: 512 and 513. 16 1 MS. ZETTLER: That goes back to opinions about 2 Wesbecker. 3 JUDGE POTTER: Let me take a quick look. 4 MR. MYERS: It precedes something, though, that 5 they were reading on 513 to 518. 6 JUDGE POTTER: The blue is what you want added 7 if he reads his; is that right? 8 MS. ZETTLER: Uh-huh. 9 MR. MYERS: Then I'll withdraw 512 and -13. 10 JUDGE POTTER: Because it does start off with a 11 "he." 12 MR. MYERS: Otherwise, we'll be reading forever. 13 JUDGE POTTER: 526. 14 MR. MYERS: I'll withdraw that. 15 JUDGE POTTER: 538. 16 MS. ZETTLER: I don't care about that one either 17 way, frankly. 18 JUDGE POTTER: All right. She gave you that 19 one. Are they all run together? 20 MR. MYERS: Yeah. The second version does. 21 MS. ZETTLER: Then that's the beginning of it, 22 Judge. I frankly don't know what they want that in there for. 23 JUDGE POTTER: You want to look at 562? 24 MR. MYERS: Yes, sir. Yeah. I'll withdraw 25 that. 17 1 JUDGE POTTER: 567 through 569. 2 MR. MYERS: This is a discussion about a 3 possible event that he looked at at one point. It would be 4 like going into the details of 139. 5 JUDGE POTTER: I'll go along with that. I'll 6 susstain the objection. 7 MS. ZETTLER: Just for the record, the reason 8 that is offered is that they had said the Wesbecker incident 9 was the only incident that had been reported to Lilly and that 10 wasn't true. Doctor Heiligenstein admitted that that was 11 something that was reported prior to the Wesbecker situation. 12 I'm just making an objection for the record. 13 JUDGE POTTER: I understand. But this part of 14 it really has to do -- okay. Thank you. All right. 604 15 through 606. 16 MS. ZETTLER: You're right, Judge. We're going 17 to be here till 8:30. 18 JUDGE POTTER: 604 just starts a whole new topic 19 because the last time she talks about anything was way back on 20 540? 21 MS. ZETTLER: Uh-huh. 22 JUDGE POTTER: Because I dropped that out. You 23 did put in 562, so this is the last time you're reading. I'm 24 going to overrule. I mean, you know, if you-all want to read 25 it as part of yours; it's kind of an out of the blue. 18 1 MR. MYERS: All right. 2 JUDGE POTTER: 630. That's another kind of out 3 of the blue. You can read it if you want but... 4 MS. ZETTLER: Then you want the parts that are 5 marked, also, Judge? 6 MR. MYERS: How far does that go? 7 JUDGE POTTER: Before it, 1 through 7. 8 MR. MYERS: What about 629, because there's a 9 question I think that starts on the other page. 10 MS. ZETTLER: No. 11 MR. MYERS: Oh, all right. 12 JUDGE POTTER: 658. I thought everybody thought 13 there was a therapeutic level in the blood. 14 MS. ZETTLER: At the time I think this simply is 15 becoming established. Does it say Prozac? I thought we were 16 talking about serotonin here. 17 MR. MYERS: You start at 657, Line 10. 18 MS. ZETTLER: This is an attempt by Paul to -- 19 Joe says there's a dose relationship to the number of adverse 20 events. 21 JUDGE POTTER: I was just reading it. I was 22 under the impression that everybody agreed that there was a 23 therapeutic level in the blood and this guy says no. I'm 24 going to sustain 658. And then you want the blue admitted if 25 they do that? 19 1 MS. ZETTLER: Uh-huh. 2 MR. MYERS: Where is that? 3 JUDGE POTTER: Through 659, Line 17. 4 MR. MYERS: Okay. 5 JUDGE POTTER: 672. 6 MS. ZETTLER: This is another gentleman who had 7 a med mal case with Paul and he's asking him this from his 8 perspective in his case. It goes back to the opinion thing 9 whether or not this guy can testify in a deposition as an 10 expert. It comes out of the blue because he just asks five 11 questions at the end of Paul's. 12 JUDGE POTTER: Who is Mr. Harris? 13 MS. ZETTLER: He is the attorney for one of the 14 people that used to be in Paul's case. 15 JUDGE POTTER: He's from Mr. Smith's office; is 16 that right? 17 MS. ZETTLER: No. No. No. He's a defense 18 lawyer representing a doctor in another of Paul's cases. 19 MR. MYERS: He is a case. 20 MR. HARRIS: Yeah. You wouldn't believe this 21 guy. Off the record. 22 (OFF THE RECORD) 23 JUDGE POTTER: Okay. I'm going to overrule 24 that. 672 is overruled. 25 MR. MYERS: Actually, their designation on 701, 20 1 702, this is all this subject about being activating or not. 2 And, actually, I've said 703, 12 to 23. I think it should 3 be -- because 12 is in the middle of something, I think it's 4 actually -- 5 JUDGE POTTER: Page 702? 6 MR. MYERS: 703. They're reading on 701. 7 JUDGE POTTER: No. I'm thinking it should be 8 702, 12 through 23. 9 MR. MYERS: Yes. That's right. 10 MS. ZETTLER: Okay. Let me see that. That's 11 fine. 12 JUDGE POTTER: That's harmless. I don't know 13 what activating -- I know what sedating means, but I'm not 14 quite sure about activating. 15 MS. ZETTLER: Stimulating. 16 MR. MYERS: Per Doctor Breggin. 17 JUDGE POTTER: Apparently they're words, if you 18 pulled a psychiatrist in, "Are some drugs activating and some 19 drugs sedating," they would say yes; they might argue about 20 which drugs? 21 MR. MYERS: That's fair. 22 JUDGE POTTER: Is that all it is is activating 23 pumps up and sedating slows you down? 24 MR. MYERS: There's a question of how far does 25 it go on the spectrum. 21 1 MS. ZETTLER: A lot of psychiatrists mean when 2 you say activating, while it hasn't started, you're still 3 technically depressed, you have more energy which then can 4 allow you the energy to do something, even though you're still 5 depressed, like kill yourself or somebody else. 6 JUDGE POTTER: Okay. We solved 702, sustained. 7 717, 15 through 24. And 718, 1 through 12. What is all this? 8 MS. ZETTLER: This goes in with the activation 9 stuff, Judge. Doctor Beasley did his activation study on 10 Protocol 27, which was a multicenter study with 6 or 7 arms to 11 it. One of the studies was discontinued; another study was 12 dropped because the FDA thought the results were too good. 13 I'm just trying to establish whether or not the study that was 14 dropped because it was too good was included in his analysis. 15 MR. MYERS: The questioning goes, "Do you know 16 who the investigator was," there was a redaction. 17 "I don't know. 18 "Was it Doctor Cohen? 19 "I don't know. It could have been." It's 20 neither here nor there. 21 JUDGE POTTER: I'm going to sustain it. 743, 22 I'm going to overrule 743 and 744. 762. 23 MR. MYERS: Your Honor, this is so irrelevant 24 and out in left field as to be beyond belief. 25 MS. ZETTLER: First of all, I think he's on the 22 1 wrong page. 2 JUDGE POTTER: Yeah. I was on the wrong page. 3 MS. ZETTLER: It ties into that other block of 4 testimony that was in this before. They're saying it's so 5 wonderful. If this stuff is so great, why don't you give it 6 to people in prison? 7 JUDGE POTTER: The other stuff was out, so this 8 is sustained. That whole block went out. All right. 764. 9 MS. ZETTLER: So you're saying the whole stuff 10 about -- 11 JUDGE POTTER: Yeah. We took that out, that 12 whole argument about -- 13 MR. MYERS: I said I wasn't going to read it. 14 MS. ZETTLER: As long as you're not going to sit 15 there and say this is the miracle drug of the '90s for 16 reducing violent behavior, that's fine. I mean, that's why 17 that was in. 18 JUDGE POTTER: I'm going to overrule 764. 19 Mr. Myers, would you do me a favor at some point? 20 MR. MYERS: Yes, sir. 21 JUDGE POTTER: Find out -- on your CFRs there's 22 a little thing that says this must be reproduced. It's like 23 the thing on blankets that says do not take this tag off. 24 Will you find out the purpose for that? 25 MR. MYERS: Yes, sir. 23 1 (RECESS; HEARING IN CHAMBERS WITH 2 MS. PREWITT PRESENT) 3 JUDGE POTTER: Let's take care of two quick sort 4 of small pieces of business. Ms. Prewitt, I think this is on 5 the record, but if it's not I think it ought to be on the 6 record, is that Ms. Prewitt had been told by me that she has 7 no standing in this proceeding. She represents a witness; if 8 that witness at any time wants to take a recess, to talk to 9 his attorney, I'll certainly consider that request, but at 10 least my ruling has been so far -- and, Ms. Prewitt, if you've 11 got some other authority or something you want me to 12 consider -- that she does not have the right to say, "Judge, I 13 object to that question," or "Judge, I want to stop the 14 proceedings so I can talk to my client," or anything like 15 that. Ms. Prewitt, what else? 16 MS. PREWITT: Your Honor, just for the record, 17 Doctor Coleman still is a party to this action, although it's 18 not particularly in this trial, and we're concerned that if I 19 am not allowed to object to questions, particularly which 20 would -- where his answer would waive the attorney-client 21 privilege, that he's being denied the effective assistance of 22 counsel. And the Court is requiring him to recognize in the 23 questions when his privileges are at risk, and Doctor Coleman 24 is a layperson who may not know when to request the assistance 25 of counsel when he is at jeopardy of violating the privilege. 24 1 I know he has no intention nor desire to waive the privilege. 2 JUDGE POTTER: Wait. Wait. Wait. Doctor 3 Coleman could never violate the privilege. 4 MS. PREWITT: No. But he could waive the 5 privilege by answering, and if he doesn't recognize that the 6 question has the potential to cause him to waive the privilege 7 by his answer and I'm not allowed to object to the question, 8 we believe he's being denied the assistance of counsel and 9 that's improper, particularly since he's still a party to this 10 action and the waiver of the privilege could be used in 11 another matter. 12 JUDGE POTTER: Have you got any case authority 13 or anything else you want me to read that a witness's attorney 14 has the right to interject themselves into the witness's 15 testimony? 16 MS. PREWITT: Not at this time, Your Honor. 17 JUDGE POTTER: My ruling will be the same. If 18 he wants to not answer a question, he can assert it himself, 19 as he did yesterday, or if he wants to take a recess, he can 20 ask me if he wants to take a recess to talk to his lawyer in 21 the case, and I may or may not grant the recess. 22 The other bit of sort of bookkeeping, the people 23 from media, Court TV asked me where the transcripts were and I 24 said that the Court Reporter would file them at the end of the 25 proceedings. They asked if the copies you-all had they could 25 1 see them, I said it was totally up to you-all; that they are, 2 in my opinion, public record and they are the official 3 transcripts, and it will just be up to you-all whether you 4 want to make them available to them during this proceeding or 5 not. 6 My recommendation to you would be that you-all 7 chat briefly among yourselves and see if you can come to some 8 kind of consensus about what ought to happen. My only concern 9 is that you-all not get into some kind of "I'm giving them 10 this, therefore I'm giving them that," you know, some sort of 11 side battle over what Court TV gets from the transcript. But 12 I did tell them that if anybody has any objection -- I mean, I 13 will change my ruling if you can show me I'm wrong, but I do 14 think it's the official transcript, and if you have a copy of 15 it it's public record and you can do what you want with it. 16 Ms. Prewitt, we're going to go over some things 17 that won't affect you. 18 MS. PREWITT: All right. Thank you. And I 19 appreciate you allowing me to put that on the record, Your 20 Honor. 21 JUDGE POTTER: Oh, I don't mind you putting it 22 on the record. 23 (MS. PREWITT LEAVES CHAMBERS) 24 JUDGE POTTER: As I understand it, Mr. Stopher, 25 consistent with yesterday's ruling you intend to say, "Doctor, 26 1 I want you to assume that the following facts are true." And 2 you're going to go through these 20 things and say, "Based on 3 those facts, if we establish them, do you have an opinion as 4 to what caused Mr. Wesbecker to shoot these people." Is that 5 where we are? 6 MR. STOPHER: Right. 7 JUDGE POTTER: Mr. Smith. 8 MR. SMITH: Well, these quotes are, in our 9 judgment, taken out of context. The quotes -- of course, I 10 haven't looked at them all or had time to look at them all 11 yet, but I would assume that the quotes are accurately quoted 12 and that there's obviously omissions here where there's three 13 dots that -- we checked the first one out. It's an omission 14 of extraneous material that wouldn't change the intent of the 15 quote, but these are, you know, selected quotes from 16 depositions that ran 60 to 100 pages, and I think it's unfair 17 for them to just quote out selected quotes as being 18 conclusively established by that deposition. 19 JUDGE POTTER: I think what you can do is, you 20 know, say whatever you want in this, that you want to add some 21 facts to it or say, Doctor, if it turns out that he didn't say 22 this or it was said in this kind of context, or if you found 23 out that whatever you want to have him add or subtract to it 24 would that change your opinion, you're free to do that. But 25 I'm going to -- I'm not happy with this result, but I do think 27 1 because of the way the information was presented to Doctor 2 Coleman, I'm going to stick by my ruling of not letting him 3 just recite everything that was given to him and make it -- 4 the Plaintiff -- the Defendant put it to him in a hypothetical 5 question and limit on the kind of 20 basic facts. 6 MR. SMITH: All right. On the second page there 7 is some -- well, the notation, 2-7-88 and 2-8-89, Wesbecker 8 has water shut off. Wesbecker has telephone service 9 disconnected. I don't know that it's been conclusively or 10 will be conclusively established that Mr. Wesbecker himself 11 had that done or what the circumstances of that were. 12 JUDGE POTTER: I don't think Mr. Stopher has to 13 have every one of these conclusively established; I think at 14 this stage what he has to be able to represent to the Court, 15 and apparently there's no problem with it, that he will have 16 evidence, which if reasonably believed by a jury they could 17 come to these conclusions. 18 MR. SMITH: All right. 19 JUDGE POTTER: That's the kind of thing you 20 could do. I don't know. Ask it, would it make a difference, 21 what if it shows that... 22 MR. SMITH: Under the 2-88 notation on Page 2 23 there are no cites to those quotes. 24 MR. STOPHER: I think that's a typographical 25 error, Judge. Those are out of their depositions. I can 28 1 provide that if necessary, but I represent that those are... 2 MR. SMITH: I'm not going to ask that you go 3 through each page at this time. 4 MR. STOPHER: I just omitted them by mistake. 5 MR. SMITH: I assume they're accurate as far as 6 what was said, the quotes. The 2-6-89 quote about the Time 7 Magazine article, it said Wesbecker had opened the magazine to 8 this article and placed it on the top of the dishwasher. 9 There is absolutely no evidence that Wesbecker himself opened 10 that article and placed it on top of the magazine (sic). 11 JUDGE POTTER: That's the kind of thing, Mr. 12 Smith, if I understand it, it was in his house. It was open 13 to that page. The jury can infer or not infer that he's the 14 one that left it there. I'm assuming that this is -- when the 15 police went through his house later they found it in his 16 house? 17 MR. STOPHER: It was photographed in that 18 position, Judge, and I've got the photograph. They do, too, 19 I'm sure. And so that's the basis for that. 20 MR. SMITH: Could the question read something -- 21 I think it would be more accurate for the question to say, 22 "After this shooting the police found a Time Magazine opened 23 to this page on the dishwasher," rather than the inference 24 that it was Wesbecker himself that put it there. 25 JUDGE POTTER: I think that's the kind of 29 1 thing -- do we know whether the policemen opened it to 2 photograph it or whether it was found that way? 3 MR. STOPHER: No. It was found that way, Judge. 4 JUDGE POTTER: I think that's something that you 5 have to do on your cross-examination. I think it's a logical 6 inference if it's found in your house in a certain position 7 you did it. 8 Does anybody have anything they want to say 9 about my telling the media that you-all can make the 10 transcripts available? 11 MR. STOPHER: Well, I guess off the record. I 12 would agree with your comments that -- can we go off the 13 record? 14 (OFF THE RECORD; THE FOLLOWING 15 PROCEEDINGS OCCURRED IN OPEN COURT) 16 SHERIFF PATTERSON: All rise as the jury enters, 17 please. Jefferson Circuit Division One is now in session. 18 Silence is commanded while the Honorable John Wood Potter is 19 presiding. Please be seated and remain quiet. 20 JUDGE POTTER: Thank you-all. Please be seated. 21 Mr. Sheriff, would you call Doctor Coleman? Let 22 me scoot over here. Did anybody have any problems observing 23 the admonition about letting other people talk to you about 24 this case or getting any information? How about you, Mr. 25 Hollifield? Did you have any problems? 30 1 JUROR HOLLIFIELD: Not at all. 2 JUDGE POTTER: Thank you very much. 3 Doctor Coleman, would you retake the seat in the 4 witness stand and I'll remind you you're still under oath. 5 DOCTOR COLEMAN: Okay, sir. 6 JUDGE POTTER: Mr. Stopher. 7 MR. STOPHER: Thank you, Judge. 8 9 EXAMINATION ___________ 10 11 BY_MR._STOPHER: (Continued) __ ___ _______ 12 Q. Good morning, sir. 13 A. Good morning. 14 Q. Doctor Coleman, let me go back to some matters 15 that late yesterday afternoon I did not have time to ask you 16 about. And let me begin, if I might, sir, with some 17 information concerning some information about your particular 18 background. I recall yesterday that you told us that you 19 graduated from the University of Kentucky Medical School. Do 20 I recall correctly? 21 A. Yes, sir. That's correct. 22 Q. And if I understand correctly, sir, you spent 23 some time as a resident in radiology; am I correct about that? 24 A. Yes, sir. From 1974 to 1977, I completed a 25 radiology residency. 31 1 Q. And then, if I recall correctly, sir, after some 2 service in the navy, which I assume was medically related, you 3 did a residency in psychiatry; am I correct about that, sir? 4 A. Yes, sir. That's correct. 5 Q. So if I understand correctly, then, you've done 6 a residency on two occasions, one with regard to radiology and 7 the other with regard to psychiatry? 8 A. Yes, sir; that's correct. 9 Q. Doctor Coleman, how long have you been 10 practicing in private practice or as a clinical psychiatrist? 11 A. For ten years. 12 Q. That would be about 1984, then, sir? 13 A. Yes, sir. I finished my residency in May of 14 1984. 15 Q. And all of that time, sir, has it been here in 16 Louisville? 17 A. Yes, sir; it has. 18 Q. And as a private practitioner with a practice in 19 clinical psychiatry, would you tell the jury generally what 20 you do in this community, sir? 21 A. Well, my practice consists of both inpatient and 22 outpatient services. Right now I admit to two hospitals, Our 23 Lady of Peace and Baptist East Hospital. I consider myself a 24 general psychiatrist. I will treat adolescents, adults and 25 older people, as well. I make hospital rounds of my 32 1 inpatients in the morning, and in the afternoons I see my 2 outpatients, and that's generally -- consists of my general 3 practice. 4 Q. Doctor Coleman, you mentioned two hospitals, Our 5 Lady of Peace, and did you say Baptist Hospital East? 6 A. Yes, sir; that's correct. 7 Q. And are you on the staffs of both of those 8 hospitals? 9 A. Yes, sir; I am. 10 Q. Doctor Coleman, in 1989, what was your 11 relationship with Our Lady of Peace Hospital? 12 A. Well, I was on the active medical staff. At the 13 time I was president of the medical staff at that time. 14 Q. President of the medical staff at Our Lady of 15 Peace? 16 A. Yes, sir. That's correct. 17 Q. And as president of that medical staff, was that 18 an honorary position or is that a working position or some of 19 both? 20 A. I'm not sure it's too honorary; it's mostly 21 working. It's a nominated position and it is somewhat of a 22 working position mainly in dealing with medical staff issues, 23 directing particularly medical staff and hospital committees. 24 Q. Doctor Coleman, we've heard mention from time to 25 time in this case about board certification. Is there such a 33 1 thing in psychiatry? 2 A. Yes, sir; there is. Psychiatrists are certified 3 by the American Board of Psychiatry and Neurology. 4 Q. And who's eligible to be certified? 5 A. Well, you have to be -- you have to complete a 6 residency. The earliest that you can be board certified in 7 psychiatry is two years after a residency. There's first a 8 written board within a year after, then if you pass that, then 9 you have an oral examination. The earliest that you can take 10 it is a year after the written. 11 Q. And have you done that, sir? 12 A. Yes, sir. I'm board certified in psychiatry. 13 Q. About when were you board certified? 14 A. I was board certified the earliest I could be 15 was in 1986. 16 Q. Doctor Coleman, are all psychiatrists board 17 certified? 18 A. No, sir; they're not. 19 Q. Can you give us some approximation, in this 20 community at least, as to is it half and half or ninety/ten or 21 what would be the split? 22 A. Well, I really wouldn't have an accurate guess. 23 It's more popular now to be board certified than it used to 24 be. I would probably say from my experience at least 60 25 percent are probably board certified. 34 1 Q. Doctor Coleman, with regard to your practice, 2 sir, do you use medications in the treatment of your patients? 3 A. For those patients it's appropriate for, yes, 4 sir, I do use medication. 5 Q. And in connection with your practice do you from 6 time to time treat people who suffer from depression? 7 A. Yes, sir. That's probably the most common 8 disorder that I would see in my practice. 9 Q. And in connection with the treatment of 10 depression do you use medications, sir? 11 A. Yes, sir; I do. 12 Q. And in connection with that treatment do you 13 from time to time use Prozac or prescribe Prozac for patients 14 under your care? 15 A. Yes, sir; I do. And I would say probably that's 16 the most common medication I prescribe. 17 Q. In your experience, sir, as a practicing 18 psychiatrist in this community, can you give us some idea of 19 approximately how many patients or how many prescriptions for 20 Prozac you yourself have written? 21 MR. SMITH: May we approach the bench, Your 22 Honor? 23 JUDGE POTTER: Uh-huh. 24 (BENCH DISCUSSION) 25 MR. SMITH: Now they're trying to make him an 35 1 expert as to the widespread use of Prozac. It's my 2 understanding that the Court was going to allow him to render 3 an expert opinion and it goes beyond even the new designation 4 of him as an expert. We object to it on that basis. 5 JUDGE POTTER: Mr. Stopher. 6 MR. STOPHER: Judge, all I'm interested in is 7 his experience. Mr. Smith has challenged the safety and the 8 efficacy of Prozac. This man is a practitioner, he uses the 9 drug, and I would like his background and experience in what 10 his usage has been. 11 MR. SMITH: My problem is they've already 12 designated three experts for this. 13 JUDGE POTTER: Mr. Smith, I'm going to overrule 14 the objection provided this thing doesn't get too detailed. 15 You got him to admit in September 1989 he thought Prozac 16 caused some of this man's problems and I think he's come to a 17 different conclusion now. And I think it's probably why he's 18 come to a different conclusion, whether or not he kept using 19 it in the interim. So I'm going to overrule the objection. I 20 mean, I assume you're going to light brush it. 21 MR. STOPHER: Sure. Right. Absolutely. 22 (BENCH DISCUSSION CONCLUDED) 23 MR. STOPHER: Julie, can you read back the 24 question. 25 (REPORTER READS THE RECORD) 36 1 A. Well, as far as individual patients that I've 2 given Prozac at one time, I would say probably 100 to 150 at 3 least. 4 Q. At any one time, sir? 5 A. Pardon? 6 Q. At any one time? 7 A. No. I would say at least as far as new 8 patients. Now, of course, obviously some of those patients I 9 will write prescriptions on over a period of -- more than one 10 prescription over a period of time, but as far as overall 11 patients, I would say at least 100, 150, if not more. 12 Q. Doctor Coleman, since September of 1989, have 13 you written prescriptions for Prozac for patients that are 14 under your care? 15 A. Yes, sir. I continue to prescribe it. 16 Q. Doctor Coleman, let me direct your attention 17 sir, back to Plaintiffs' Exhibit 160, which is your office 18 notes, sir, that are typed. 19 A. Okay. 20 Q. Doctor Coleman, let me direct your attention 21 first of all to the entry on July 8, 1987, the very first 22 visit, sir. 23 A. Okay, sir. 24 Q. If I understand correctly, from this note, sir, 25 without reading all of it, Mr. Wesbecker presented himself to 37 1 you on this date and told you that he was bipolar and needed a 2 psychiatrist to follow his medications. Generally correct, 3 sir? 4 A. Yes, sir. 5 Q. He identified the primary stress as job and 6 employers, quote, jerking him around, close quotes; correct, 7 sir? 8 A. Yes, sir. 9 Q. If I understand this correctly, sir, you took a 10 social history from him, which is recorded here? 11 A. Yes, sir. 12 Q. Did he give you at any time, sir, any more 13 detailed social history about himself than what I see written 14 and recorded here? 15 A. There may have been over the two-year period of 16 time occasional other facts that come out, but actually very 17 little about his own personal social history. So I would 18 probably say that pretty much sums up what social history that 19 he had given me. 20 Q. I will confess, sir, that I sometimes miss 21 things with my eye, sometimes misrecall them with my 22 recollection, but in looking through these documents, sir, I 23 don't see any detailed information that he related to you 24 about his relationships with members of his family. Do you 25 recall anything specific on that topic, sir? 38 1 A. Well, there were a few occasions, and I think I 2 made a couple of references to maybe an argument with his son. 3 He would talk a little bit about some of the problems with his 4 younger son; other than that, I don't really recall too much 5 else social historywise that he ever really talked much about. 6 Q. He didn't go into any detail as to what his 7 relationship was with his mother, with his youngest son, with 8 his oldest son, with his ex-wives or wives to your 9 recollection, sir? 10 A. The only thing that I recall is with his 11 youngest son he was angry because his son was in trouble for 12 exposing himself, and I know a couple times he had talked 13 about that his son was under the care of a psychiatrist, 14 Doctor Patrick Martin. But he never talked about his other 15 son, he never talked about either one of his wives, 16 particularly, never once said anything about his mother or his 17 grandmother. 18 Q. Doctor Coleman, at the very bottom of this 19 record on July 8, 1987, it says, "Obtain records, Doctor 20 Schramm, Moore, Senler and OLOP," which I understand to mean 21 Our Lady of Peace; correct, sir? 22 A. Yes, sir. 23 Q. It is my understanding that you did obtain some 24 records from those doctors and from Our Lady of Peace; 25 correct, sir? 39 1 A. Well, I would -- I think for Doctor Moore I had 2 gotten a summary letter. I think Doctor Senler had sent me a 3 summary letter plus a copy of a psychological that had been 4 performed at her request by Doctor Leventhal. Doctor Schramm, 5 I think had sent me a copy of his recent discharge summary 6 plus a copy of his psychological evaluation done by Doctor 7 Buchholz during a hospitalization in 1987, and sent me a copy 8 of the most recent discharge summary, and that was all the 9 records that I obtained. 10 Q. Let me show you, if I may, what I have marked as 11 Defendant's Exhibit 195-1. Do you recognize that document, 12 sir? 13 A. Yes, sir. This is a copy of a psychological 14 examination done by Mort Leventhal in April of 1984, and I 15 think Doctor Senler had sent me a copy of this. 16 Q. Doctor, can you briefly explain to us what this 17 document represents? 18 A. Well, at that time -- it's a common practice for 19 psychiatrists to ask for a psychological testing. What that 20 means is we ask a clinical psychologist to perform a certain 21 specific test to try to give us a psychological picture of a 22 patient that maybe we're not getting verbally. A psychologist 23 will administer certain tests that they feel like that are 24 appropriate, and that's really up to the psychologists 25 themselves which test to present. There can be anything from 40 1 intelligence tests to a personality inventory or depression 2 inventories. Usually they list -- and I think Doctor 3 Leventhal has here listed which tests were administered: the 4 WAIS, which is an intelligence scale; Rorschach, which is 5 basically the old inkblot test; and a Bender-Gestalt, which 6 I'm not real clear but I think that's some measure of 7 orientation and figure tracing, but I'm not real clear exactly 8 what that is. But it will depend on the psychologist what 9 specific tests they will administer, and then they will 10 dictate a summary evaluation based on their face-to-face time 11 and the testing results of that patient. 12 Q. It's dated apparently April 28, 1984? 13 A. Yes, sir; that's correct. 14 Q. About three years and a few months before Mr. 15 Wesbecker first came to you? 16 A. Yes, sir; that's correct. 17 Q. And did you obtain a copy of this document from 18 Doctor Leventhal as part of your records, sir? 19 A. No, I obtained this -- Doctor Senler sent a copy 20 of that along with her letter. 21 Q. In other words, you got a copy of this document 22 from Doctor Senler and it became part of your records? 23 A. Yes, sir. That's correct. 24 MR. STOPHER: Your Honor, we would move the 25 introduction and the distribution of Defendant's 41 1 Exhibit 195-1. 2 JUDGE POTTER: Be admitted. 3 Ivan, will you pass that to the jury, please? 4 SHERIFF PATTERSON: (Hands document to jurors). 5 JUDGE POTTER: Ms. Jones, did we overlook 6 something? 7 JUROR HIGGS: He has the Defendant's copy. 8 JUDGE POTTER: Ivan, you want to switch Mr. 9 Fitch out. 10 Q. Doctor, let me refer you to Page 2 of that 11 document at the top, and it states, "Basically, the picture is 12 of a passive-dependent, rather paranoid, somewhat schizoid man 13 who perceives the world as threatening and harbors a great 14 deal of anger at what, quote, they, close quotes have done to 15 him. While he is not frankly psychotic, his perceptions of 16 the world can best be described as borderline and he is 17 probably best characterized as a borderline personality with 18 paranoid features." Did I read those two sentences correctly, 19 sir? 20 A. Yes, sir. 21 Q. Can you explain to us what that language means, 22 particularly with regard to the words like schizoid and 23 psychotic and passive-dependent? 24 A. I don't know exactly how Doctor Leventhal may 25 have interpreted it, but I can give you my interpretation of 42 1 those meanings. Probably the first one would be 2 passive-dependent as opposed to I guess active dependence. In 3 other words, he would be dependent on others but in a passive 4 means, but without really possibly taking an action in that 5 himself. 6 Rather paranoid, of course, paranoid is a degree 7 of suspiciousness and distrust. 8 Somewhat schizoid. Now, that's a term that 9 probably identifies more someone who's isolated, that does not 10 like to or is not comfortable in social settings and tends to 11 be more withdrawn and isolated. Let me read on here. 12 And then he goes on to state that -- he 13 describes him as borderline and it might be best described as 14 a borderline personality disorder. Now, what I interpret that 15 to mean is borderline being borderline between an old term 16 called neurotic and psychotic. Psychotic being out of touch 17 with reality; neurotic is basically being in touch but not 18 dealing with them on an appropriate level. As far as a 19 borderline personality disorder, I'm not sure exactly what 20 Doctor Leventhal -- whether he was using DSM-II criteria or 21 DSM-III. DSM is what's called the Diagnostic and Statistical 22 Manual of Mental Disorders that basically encompasses our 23 diagnoses. These gradually change the more we understand 24 about mental disorders, but there is a specific personality 25 disorder called the borderline personality. I think I've 43 1 testified before that I did not feel like that he had a 2 borderline personality disorder, but it may be that Doctor 3 Leventhal was using older criteria to encompass that. But 4 what I interpret he means by borderline is that he kind of 5 borders between neurotic and psychotic functioning. 6 Q. Doctor, let me ask you to direct your attention 7 to the next paragraph, beginning with the word currently. Do 8 you see that, sir? 9 A. Yes, sir. 10 Q. It states, "Currently he is attempting to 11 contain his anger so that it doesn't jeopardize the 12 gratification of his dependency needs by alienating support 13 figures. To do this, he tends to turn his anger against 14 himself, and so a potential for self-destructive behavior 15 remains, although the danger of acting out is not imminent. I 16 think he will be a difficult person to treat in that he really 17 doesn't trust anyone enough to engage in a psychotherapeutic 18 relationship, the only possible vehicle for getting at the 19 personality disorder." Did I read that correctly, sir? 20 A. Yes, sir. 21 Q. Can you explain that paragraph and some of the 22 language in there about jeopardizing the gratification of 23 dependency needs, alienating support figures, and various 24 other terms that are not part of our usual language? 25 A. Well, all people have some dependency needs. We 44 1 depend on our spouse, we depend on other people in our 2 environment, and we usually give them some level of trust to 3 be able to depend on them. Because Mr. Wesbecker, as 4 described by Doctor Leventhal, was very distrustful of people, 5 then he would tend to be angry. But so he could still obtain 6 the dependency needs as in a marital relationship or a family 7 relationship, he would have to not give free rein to his anger 8 or else he might basically alienate himself from the people 9 that he needed to have close to him. 10 So it would be kind of a mix. He would get 11 angry because he would be distrustful, but then he would try 12 to contain it because the downside of that is that he would 13 then lose the people that he needed to have some dependency 14 with. Now, that's how I would interpret at least that first 15 part of that. And then because that anger would be directed 16 inward at himself, in one of the old descriptions of 17 depression is anger turned inwards; that still has some degree 18 of accuracy. But he might then take that anger out on himself 19 in a self-destructive manner and, therefore, according to 20 Doctor Leventhal, was at some danger of risk of self harm, 21 although at the time I guess of this particular testing, he 22 did not feel that it was imminent. 23 He also felt because -- that last part there is 24 that to develop any relationship with a physician whether in 25 psychotherapy or even as a treating psychiatrist has a 45 1 trusting basis to it and so, therefore, there's what we call a 2 therapeutic alliance or a therapeutic relationship. Because 3 he's so distrustful of others, Doctor Leventhal is saying it 4 would be very difficult for him to develop any therapeutic 5 alliance and, therefore, would not be amenable to any type of 6 therapy that might even help him with any of these issues. 7 Q. Doctor, let me hand you another exhibit marked 8 as Defendants Exhibit 195-2, and ask you if you can identify 9 that for us, please, sir. 10 A. Yes, sir. This is a copy of a discharge summary 11 from Our Lady of Peace dictated by Doctor Senler from Mr. 12 Wesbecker's admission in April of 1984. 13 Q. And did you obtain a copy of this document as 14 part of your initial contacts with Mr. Wesbecker in 1987? 15 A. As I recall, Doctor Senler had also included 16 this with the information that she had sent me. 17 Q. This document is dated April of 1984, admitted 18 April 16, discharged April 23, 1984; correct, sir? 19 A. Yes, sir. 20 MR. STOPHER: Your Honor, we move the admission 21 of Defendant's Exhibit 195-2, and ask that it be published to 22 the jury. 23 JUDGE POTTER: Admitted. 24 SHERIFF PATTERSON: (Hands document to jurors). 25 Q. Is this what's sometimes called the discharge 46 1 summary, sir? 2 A. Yes, sir. This is a discharge summary from that 3 hospitalization. 4 Q. All right. Looking at the second sentence under 5 the caption Identification, it states, "According to his wife, 6 he tried to commit suicide two days prior to this 7 hospitalization, taking all of his Norpramin tablets, 25 of 8 them. The following day he was somewhat confused, continued 9 to do the suicidal intention and he tried carbon monoxide, 10 clogging up his car exhaust pipe. He also with the Norpramin 11 he had a handful of over-the-counter drugs which he took. 12 Patient cleared himself, but when he told his wife what had 13 been done they brought him here immediately. Patient said 14 that he had enough. He has been under pressure with his wife 15 and her children and her ex-husband's problems." 16 It goes on to state, "He felt that he couldn't 17 dope anymore with the demands. They have no respect for him 18 and he does not feel he is in charge of his own home. He also 19 felt unable to cope with his job. There was a threat of 20 losing his job. Patient was rather withdrawn, depressed, very 21 angry at himself and had lots of projection toward the 22 ex-husband of the present wife and others." Did I read that 23 -- those sections accurately so far, sir? 24 A. Yes, sir. 25 Q. This sentence here that says, "Patient was 47 1 rather withdrawn, depressed, very angry at himself and had 2 lots of projection toward the ex-husband of the present wife 3 and others," would you explain to us what that means, sir? 4 A. Projection is a term for what we call a defense 5 mechanism. It's where someone will project their feelings 6 onto somebody else when, in actuality, he may have been part 7 of the cause of the problem, he would project that onto the 8 ex-husband and say, "Well, he's the problem. If only he would 9 change, then things would improve." So it's a way of not -- 10 of a person kind of containing inner anxiety; rather than 11 acknowledging it in themselves, they just project it onto 12 somebody else and that way they don't have to deal with it. 13 Q. And, according to this report, he was projecting 14 that toward the ex-husband of the present wife and others? 15 A. That's correct. 16 Q. Doctor, in the last line of that document, just 17 above Diagnoses, the last sentence says, "He was going to lose 18 his job. He wanted to leave the hospital and he left AMA." 19 A. Yes, sir. 20 Q. What does that mean, sir? 21 A. AMA is a term we use for against medical advice. 22 In other words, Doctor Senler had felt medically it was 23 necessary for him to remain in the hospital and, since he 24 wanted to leave, she made what we call an AMA or against- 25 medical-advice discharge. 48 1 MR. SMITH: May I approach the bench, Your 2 Honor? 3 (BENCH DISCUSSION) 4 MR. SMITH: We're getting into the same problem 5 that we got into the other day about what the doctor felt, 6 what another doctor felt, what another doctor believed, and we 7 object to this Witness drawing a conclusion about what another 8 doctor felt or believed. 9 JUDGE POTTER: So far, the only thing I've seen 10 him do is read medical records and interpret terms. If he 11 really does get -- try to get beyond the most obvious thing, I 12 will sustain the objection. I don't think saying AMA means 13 against medical advice, therefore, the Doctor thought he ought 14 to stay longer. I don't think that's doing more than really 15 defining AMA. 16 MR. SMITH: He said the other doctor felt that 17 further hospitalization would have been of benefit. 18 JUDGE POTTER: Well, that's what AMA means. 19 MR. STOPHER: Thank you, Judge. 20 (BENCH DISCUSSION CONCLUDED) 21 Q. Let me next hand you, sir, a document marked 22 Defendant's Exhibit 195-3, and ask you if you can identify it 23 for us, if you would, please, sir. 24 A. This is a -- this was in my chart. It looks 25 like it's a medical workup done on Mr. Wesbecker. That's my 49 1 writing down at the bottom that I had written because there 2 wasn't any physician's name on here that I could see. And I 3 had written the doctor's name, although I can't read my own 4 writing at this point, but that he had -- Mr. Wesbecker had 5 given me this document, as I recall. 6 Q. This document was given to you by Mr. Wesbecker 7 at one of your sessions with him, sir? 8 A. That's my recollection; yes, sir. 9 Q. And then down at the very bottom, then, you 10 wrote in a name which appears to me to be Doctor Beanblossom? 11 A. I think that's who it was from. Now that you've 12 refreshed my memory about the name, that looks like that's 13 what it is; yes, sir. 14 MR. STOPHER: Your Honor, we would move the 15 admission of Defendant's 195-3 and ask that it be published to 16 the jury. 17 JUDGE POTTER: Be admitted. 18 SHERIFF PATTERSON: (Hands document to jurors). 19 Q. Doctor, the date on this document appears to be, 20 up at the top, January 13, 1986; correct, sir? 21 A. Yes, sir; that's correct. 22 Q. Did Mr. Wesbecker give you any explanation or 23 any information about this document and what it related to? 24 A. Well, as I recall, he had some concern that 25 toluene, one of the chemicals used in the workplace, might 50 1 have been causing his mental problems and, as I recall, he had 2 gone to Doctor Beanblossom requesting a physical workup to see 3 whether there were any effects of toluene on his physical 4 condition. 5 Q. Let me next show you, sir, a document marked 6 Defendant's Exhibit 195-4, and ask you if you can identify 7 this for us, please, sir. 8 A. This is a copy of an outpatient diagnostic 9 evaluation done by Doctor David Moore. This is one of the 10 pages of information that Doctor Moore had sent me when I had 11 requested information from him. 12 Q. Early on in the treatment of Mr. Wesbecker? 13 A. Right. I had had him sign a release for Doctor 14 Moore at the very first session. I don't recall exactly when 15 I got this, but it wouldn't be too long after that July 1987. 16 MR. STOPHER: Your Honor, we move the admission 17 of Defendant's Exhibit 195-4 and ask that it be published to 18 the jury. 19 JUDGE POTTER: Be admitted. 20 SHERIFF PATTERSON: (Hands document to jurors). 21 Q. Doctor, this document is dated November 18, 22 1986, in the top right-hand corner; correct, sir? 23 A. Yes, sir. 24 Q. And it is apparently captioned Outpatient 25 Diagnostic Evaluation? 51 1 A. Yes, sir; that's correct. 2 Q. Under the caption there, Chief Complaint, it 3 lists agitation; correct, sir? 4 A. Yes, sir. That's correct. 5 Q. Under History of the Present Illness, let me 6 skip to the second sentence, sir. It says, "He described the 7 following: depressed mood, irritability, crying spells, 8 agitation, pacing, racing thoughts, fatigue, insomnia, poor 9 memory and poor concentration. He also notes attacks, which 10 is in quotes, characterized by greatly increased agitation and 11 tearfulness lasting several hours." Did I read that 12 correctly, sir? 13 A. Yes, sir. That's correct. 14 Q. Down in the section under Family History, the 15 second sentence states, "His mother is alive and he knows 16 little of her." Did I read that correctly, sir? 17 A. Yes, sir. That's correct. 18 Q. And then under the caption, Mental Status 19 Exam -- first of all, sir, would you just very briefly tell us 20 what a mental status exam is, or examination? 21 A. A mental status exam is a summary of 22 observations as well as direct questions of a patient. It's 23 not necessarily a particular different segment of a 24 psychiatric evaluation, a mental status exam also encompasses 25 the whole aspect, but under a mental status exam is basically 52 1 a description of the patient's current and also possibly past 2 mental state with reference to their mood, their level of 3 orientation, in other words, how "with it" they are at the 4 particular time. It's an estimation of their memory. 5 Also at times encompassed under that are whether 6 there are any psychotic symptoms or any unrealistic things 7 that the person might be having, such as hallucinations. We 8 can also encompass under that whether there's any suicidal or 9 homicidal ideation. So it's kind of a compilation of the 10 patient's current mental state and significant aspects of 11 their behavior and mood and personality that are important. 12 Q. The last sentence in that paragraph, sir, 13 states, "He admitted to occasionally experiencing suicidal 14 ideation but denied having any intent or plans." Correct? 15 A. Yes, sir. That's correct. 16 Q. What is suicidal ideation without any intent or 17 plans? 18 A. Well, it would be someone expressing yes, 19 they've occasionally had thoughts about suicide, ranging from 20 either just fleeting thoughts, "Gee, it would be nice to be 21 dead," to actually thinking, "Well, maybe I ought to kill 22 myself." Now, usually we may ask more specific questions such 23 as, "Do you have a plan to kill yourself?" At times some 24 patients will say, "No, it's just something I thought about." 25 At times they may say, "Well, yes, I plan to do this," or, you 53 1 know, "I have a particular method in mind." Now, intent is 2 someone saying, "Yes, I really intend to do that at some 3 point." So that's what intent means is at the time do they 4 seem to have any intent to follow through with a particular 5 plan that they might have in mind. 6 Q. In the Diagnostic Assessment, sir, it says, 7 "This patient is probably characterized best at the present 8 time as having atypical bipolar affective disorder," and then 9 there's a series of letters and numbers there, sir? 10 A. That's correct. 11 Q. What is atypical bipolar affective disorder? 12 A. Well, bipolar disorder is a diagnostic term that 13 we use now for what used to be called manic depressive 14 illness. It's basically a mood disorder. The bipolar stands 15 for two different poles of mood. It can encompass depression, 16 which is an abnormal low mood, and manic, which is an abnormal 17 high mood. Patients who have this disorder can sometimes 18 cycle between these two moods, sometimes they can have more 19 prominent problems with one mood or the other. Atypical means 20 that it doesn't meet the classic descriptions of a bipolar 21 disorder would be what I guess Doctor Moore was intending to 22 put there. Of course, the affect of -- affect means mood so 23 it's -- as I said, bipolar is a mood disorder. 24 Q. All right, sir. Let me next show you a document 25 which we've previously marked, sir, as Defendant's Exhibit 54 1 195-5, and ask you if you can identify that for us, please, 2 sir. 3 A. Yes, sir. This is a copy of a 4 neuropsychological examination performed by Doctor Dennis 5 Buchholz on Mr. Wesbecker when he was hospitalized in April of 6 1987. As I recall, I was supplied this document I think by 7 Doctor Schramm. 8 Q. You were supplied a copy of this early on in 9 your treatment of Mr. Wesbecker? 10 A. Yes, sir; that's correct. 11 MR. STOPHER: Your Honor, we would move the 12 admission and the publication of Defendant's Exhibit 195-5. 13 JUDGE POTTER: Be admitted. 14 SHERIFF PATTERSON: (Hands document to jurors). 15 A. Mr. Stopher, is there a page missing? 16 Q. Let me see. Maybe I gave you a bad copy. 17 A. I've got three pages. Was there a fourth page? 18 MR. STOPHER: I have three pages. And I 19 apologize to all. There is a fourth page and it seems to be 20 missing. Do we have it, Joe? 21 JUDGE POTTER: Is there a fourth page? 22 MR. FREEMAN: Yes, sir. 23 MR. STOPHER: There is, Your Honor, and I 24 apologize. 25 JUDGE POTTER: I tell you what, Mr. Stopher, why 55 1 don't you hand it to my sheriff and, Ivan, take it to mental 2 inquest and run off 20 copies, sir. 3 MR. STOPHER: Your Honor, can we proceed with 4 some work on the first three pages before we get to the fourth 5 page? And I do apologize. 6 JUDGE POTTER: Yeah. 7 Q. Let me direct your attention, sir, first of all, 8 can you tell us what this document is? I notice the caption 9 Our Lady of Peace Hospital. It's apparently from Doctor 10 Dennis J. Buchholz to Doctor Theodore A. Schramm. Apparently 11 is dated in April of 1987; correct, sir? 12 A. Yes, sir. That's correct. 13 Q. It's captioned Neuropsychological Evaluation; 14 correct, sir? 15 A. Yes, sir. That's correct. 16 Q. And generally and very briefly stated, what does 17 this represent, sir? 18 A. Well, a neuropsychological evaluation is a more 19 specialized type of psychological testing. As we mentioned 20 with Doctor Leventhal, he had done a psychological evaluation. 21 A neuropsychological evaluation is actually a more in-depth 22 evaluation to test more the intellectual or cognitive or 23 thinking process, as well as the intellectual process of a 24 particular person. It has to be done by someone who is more 25 specialized in psychological training to be able to administer 56 1 a neuropsychological testing. It encompasses more tests that 2 basically test different areas of the brain as far as how the 3 brain functions. 4 Q. I notice here, sir, on the very first page under 5 the caption History, in the second paragraph, the second 6 sentence, "Mr. Wesbecker has a history of depression and 7 suicidal attempts and he states that he has attempted suicide 8 12 or 15 times. He has attempted suicide with carbon monoxide 9 poisoning, medications and hanging. He states that he has 10 never significantly hurt himself. He said that his worst 11 attempt was taking 40 sleeping pills and 60 antidepressant 12 pills at home. He states that he slept for 3 days after this 13 but was not hospitalized medically. He did go in for 14 psychiatric hospitalization at OLOP after this." Did I read 15 that accurately? 16 A. Yes, sir; that's correct. 17 Q. Let me ask you to take a look under the caption, 18 Observations, and go to the second page, and actually the 19 second full paragraph on that page that begins with, "Mr. 20 Wesbecker complained considerably." Do you see that 21 paragraph, sir? 22 A. Yes, sir. 23 Q. "Mr. Wesbecker complained considerably about the 24 demands made on him at work. He states that his supervisor 25 wants him to be the head operator of a folding machine and 57 1 Mr. Wesbecker finds this too stressful and demanding. He says 2 that he doesn't think it is worth the $4 per hour extra that 3 he would be paid to do this. He complains about having to do 4 too many things and not being able to get any rest while on 5 this job. Mr. Wesbecker filed a grievance against the foremen 6 at the plant over this issue in October and some resolution 7 was achieved by December, although Mr. Wesbecker is not happy 8 with the outcome. He still periodically has to operate this 9 machine, which he tries to avoid as much as possible. Mr. 10 Wesbecker complained of being depressed and reported both 11 vegetative and psychological aspects of depression, including 12 some suicidal ideation." Correct, sir? 13 A. Yes, sir; that's correct. 14 Q. What is meant here by the terms vegetative and 15 psychological aspects of depression? 16 A. Vegetative would be symptoms that have a 17 physical character to it. It's very common for people with 18 depression to have difficulty sleeping, either not sleeping 19 well or wanting to sleep too much. Appetite can drop off as 20 another physical symptom, change in energy level, lack of 21 energy. So vegetative refers to the physical aspects of 22 depression. Psychological is more the mental aspects of 23 depression, which could encompass feeling hopeless, not much 24 motivation and interest to do things, things along that line. 25 MR. STOPHER: Your Honor, I think we now have 58 1 the fourth page, am I right? May I publish that to the jury? 2 JUDGE POTTER: Ivan, will you pass out the 3 fourth page? 4 SHERIFF PATTERSON: (Hands document to jurors). 5 MR. STOPHER: This is the missing fourth page, 6 sir. Doctor, up at the top of this document that is still 7 under the heading Tests Administered, and I guess I actually 8 need to go back to the bottom of Page 3, where it says, 9 "Personality evaluation of a self-report questionnaire, MMPI, 10 indicated that Mr. Wesbecker has a large number of complaints 11 about psychological functioning at the present time. This may 12 be interpreted either as a cry for help or as a deliberate 13 attempt to exaggerate symptomatology." Skipping down a few 14 words, "Mr. Wesbecker showed a prominent elevation on Scale 2 15 depression. Also of clinical significance are elevations on 16 Scales 7 and 8, which indicate a high degree of anxiety with 17 strong feelings of alienation and isolation from others. Mr. 18 Wesbecker appears to be chronically anxious and depressed." 19 Correct? 20 A. Yes, sir. 21 Q. And then under the caption Summary, the third 22 little paragraph, it's only one sentence, "A personality 23 evaluation shows a slightly exaggerated profile with prominent 24 depression, anxiety and feelings of alienation and isolation." 25 Correct, sir? 59 1 A. Yes, sir; that's correct. 2 Q. Doctor, let me next show you a document marked 3 as Defendant's Exhibit 195-6, and ask you if you can identify 4 this for us, please, sir. 5 A. This is a copy of a discharge summary on Mr. 6 Wesbecker from his admission to Our Lady of Peace Hospital and 7 his admission date was 3-31-87. This was dictated by Doctor 8 Theodore Schramm. 9 Q. And is this a document that you requested and 10 obtained early on in the treatment of Mr. Wesbecker in 1987? 11 A. Doctor Schramm had supplied this to me when I 12 had requested information and, also, actually I think I got a 13 second copy of this from Our Lady of Peace when I had sent a 14 release of information to Our Lady of Peace. 15 Q. Is it a document that you relied on? 16 A. It's a document I certainly reviewed; that's 17 correct, sir. 18 MR. STOPHER: Your Honor, we move the admission 19 of Defendant's 195-6, and ask that it be admitted and 20 published to the jury. 21 JUDGE POTTER: It's admitted and, Sheriff, 22 publish it to the jury. 23 SHERIFF PATTERSON: (Hands document to jurors). 24 Q. Doctor, let me direct your attention to the 25 paragraph under Initial Impression. Well, first of all, sir, 60 1 what is this document? 2 A. This is a discharge summary from Our Lady of 3 Peace that Doctor Schramm dictated concerning the pertinent 4 aspect of admission at that time. 5 Q. And it is apparently dictated on May (sic) 31, 6 1987? 7 A. Yes, sir; that's correct. 8 Q. And if I recall correctly, the first time you 9 saw Mr. Wesbecker was on July 8, 1987, about two months later? 10 A. Yes, sir; that's correct. 11 Q. All right. Look under the -- on the first page, 12 sir, under the caption Initial Impression. In the second 13 paragraph, the second sentence that begins with the words "His 14 previous admissions here and at the Baptist are noted, as well 15 as his history of depression and suicidal attempts with carbon 16 monoxide poisoning, medications and hanging, although he has 17 never significantly hurt himself. At one time his most 18 serious attempt was when he took 40 sleeping pills, 60 19 antidepressants while at home. He slept for three days but 20 was not hospitalized medically." Correct, sir? 21 A. Yes, sir. That's correct. 22 Q. Then let me direct your attention to Page 2, and 23 the last sentence in that paragraph up there at the top, sir. 24 It says, "Personality evaluation." Do you see that sentence, 25 sir? 61 1 A. Where are you, sir? 2 Q. Top paragraph, sir, last sentence. "Personality 3 evaluation shows." Do you see that, sir? 4 A. Yes, sir. 5 Q. "Personality evaluation shows an exaggerated 6 profile with prominent depression, anxiety and feelings of 7 alienation and isolation." Correct, sir? 8 A. Yes, sir. That's correct. 9 Q. And lastly, I think, sir, let me show you a copy 10 of a document marked as Defendant's Exhibit 195-7. Before I 11 get to that, sir, let me back up and ask you a couple of 12 background questions first. On July 8, 1987, when you first 13 had this initial office visit with Mr. Wesbecker, shortly 14 thereafter you obtained the documents that we have now marked 15 and filed as Defendant's Exhibits 195-1 through 6; correct, 16 sir? 17 A. Yes, sir. 18 Q. All of those documents relate to treatment and 19 evaluations of Mr. Wesbecker for a period of time from 1984 20 through the spring of 1987, about three years; correct, sir? 21 A. Yes, sir; that's correct. 22 Q. By different psychologists and different 23 psychiatrists and even different hospitals; correct, sir? 24 A. Well, I think all the hospitals were Our Lady of 25 Peace. 62 1 Q. I stand corrected; you're right, sir. Mention 2 of Baptist Hospital, but actually the record's from Our Lady 3 of Peace? 4 A. That's correct. 5 Q. Now, sir, if I understand correctly, on July 8, 6 1987, when you first met with Mr. Wesbecker, you asked him if 7 he had suicidal ideation; am I correct, sir? 8 A. Yes, sir; I did. 9 Q. How do you do that, sir? 10 A. Well, it can vary a little bit, depending on the 11 question I ask. Generally, I will ask a question and it can 12 either encompass two different questions or one: "Have you 13 ever had any thoughts about harming yourself," or I may ask, 14 "Have you ever felt so bad you thought about suicide." That 15 will tend to be the general question that I would ask, one of 16 those two or something similar. 17 Q. In other words, the question was, "Are you 18 thinking about it now"? 19 A. Well, it depends on how acute the patient will 20 look. Now, on an initial evaluation usually I try to 21 encompass both of those, either with one question or two 22 questions. 23 Q. In other words, the question would relate to the 24 present time and it would also ask for a history of suicidal 25 ideas or attempts, that sort of thing, sir? 63 1 A. Yes, sir. I usually like both of those pieces 2 of information. 3 Q. Did Mr. Wesbecker tell you that he had had a 4 history of suicide? 5 A. As I recall, he did mention to me that he had 6 had a history of suicide, but that he had no current suicidal 7 thoughts at all. 8 Q. Now, sir, in your notes you also recorded on 9 July 8, 1987, no homicidal ideation; correct, sir? 10 A. That's correct. 11 Q. How did you determine that, sir? 12 A. Well, that will typically be -- a similar type 13 of question would be, "Have you ever had any thoughts about 14 harming anybody else." Occasionally you get someone to say, 15 "Oh, sure, when somebody cuts me off on the freeway or 16 something," and then I try to say, "Well, have you had 17 something that maybe is serious you thought about acting out 18 on," you know, if they will acknowledge anything along that 19 line. In Mr. Wesbecker's case, he really had no thoughts 20 along that line. 21 Q. In other words, sir, if I understand you 22 correctly, you asked Mr. Wesbecker on July 8, 1987, if he had 23 ever thought about killing or harming someone other than 24 himself, and what was his answer? 25 A. I don't remember my exact words, but in sum and 64 1 substance, I had asked him whether he had any thoughts about 2 harming anybody else and his answer was no. 3 Q. (Writing on paper) Doctor Coleman, if I 4 understand correctly, on that occasion you asked the question 5 not only about the present time but about the past; am I 6 right? 7 A. As I said, I don't recall my exact question. I 8 feel like my question, "Have you ever had any thoughts about 9 harming anybody else," encompasses both present and past. 10 Q. And if I understand correctly, he denied both 11 present and past; correct, sir? 12 A. Well, his answer to my question was no or 13 something along that line; no, I've never had any thoughts. 14 Q. During the time, sir, that you then treated him 15 for the following two years and two months, did he ever make 16 any statements to you, sir, that he was thinking about harming 17 someone else? 18 A. No, sir. Never. 19 Q. Did he ever mention to you that he had discussed 20 or mentioned to other people that he wanted to harm people or 21 kill them? 22 A. No, sir. Never mentioned that at all. 23 Q. Doctor Coleman, during that two years and two 24 months, if I understand correctly from your records, his 25 situation deteriorated at least during the first year; am I 65 1 correct? 2 A. Well, I think as I said yesterday, over that two 3 years and two months, you know, it had been more of a gradual 4 deterioration, so I would say yes, that first year he had also 5 gradually deteriorated; yes, sir. 6 Q. And during that first year, various medications 7 were tried, including Tofranil, Lithobid, Pamelor, Prozac, 8 Halcion, Desyrel; correct? 9 A. Yes, sir; that's correct. 10 Q. Now, sir, if I understand correctly, on 11 September 11, 1989, Mr. Wesbecker presented himself for 12 another half-hour office visit, and on that date, sir, did he 13 volunteer information about the sexual-abuse incident at work? 14 A. Yes, sir. He volunteered it. 15 Q. And on that occasion, sir, when he volunteered 16 that information, how did he present it to you? 17 A. Well, as I recall, I had started the session 18 basically asking how he was doing, how he felt like the Prozac 19 was doing for him. And I think, as I said yesterday, when he 20 first came in the session, even without even asking him any 21 questions, he certainly looked very nervous and different than 22 he had on any other session. And that's kind of when he took 23 off on a tangent and started talking about, "Well, it's helped 24 me." 25 And, "Well, how has it helped you? 66 1 "Well, it's helped me remember this incident of 2 sexual abuse at work." 3 And that's when he described that he had been 4 forced to have oral sex by a foreman to get off the folder and 5 that his co-workers in observation. Those weren't his exact 6 words, but in sum and substance, that's what he said. 7 Q. Did he tell you where this incident occurred? 8 A. No, sir; he didn't. 9 Q. Did he tell you when it occurred? 10 A. No, sir; he didn't. 11 Q. Did he tell you that his co-workers watched? 12 A. I don't know the specific words. That was my 13 impression of what he said. He said there were other 14 co-workers observing or watching. That's the meaning that I 15 got from what he said; yes, sir. 16 Q. Doctor Coleman, when he related this to you, did 17 you ask him what he was going to do about it? 18 A. Yes, sir; I did. 19 Q. And what was his response, as you best recall? 20 A. Well, one thing he mentioned, he said he had 21 called what he called the sex crimes division of the police; 22 that he had called them and reported it, and then he said that 23 he was thinking about filing another lawsuit over it. 24 Q. Thinking about filing another lawsuit over it? 25 A. Well, thinking about filing a lawsuit over this. 67 1 He had had other lawsuits in the past, but he was thinking 2 about filing a lawsuit over this. 3 Q. Now, sir, if I understand correctly, after 4 relating that incident to you, did you notice any change in 5 his condition and in his demeanor? 6 A. Well, when he first told me that, that was the 7 time during the session that he openly sobbed for 15 seconds 8 right after he first told me that, and that was a change. 9 Q. And did he -- I think you at least once used the 10 word recompensate? 11 A. Yes, sir. He recompensated fairly quickly after 12 that. 13 Q. What does recompensate mean? 14 A. Basically it means he gained his composure 15 again. He was talkative. He was still a bit -- appeared a 16 bit shaken but was able to talk about reporting it to the 17 police and about wanting to file a lawsuit, so he was able to 18 recompose himself from the sobbing episode. 19 Q. Now, if I understand correctly, you then 20 encouraged him to go into the hospital? 21 A. Yes, sir. I told him that I wanted to put him 22 in the hospital. I don't know if those were my exact words, 23 but that's basically what I told him I wanted to do. I said I 24 wasn't really sure what was going on with him. I think I 25 explained, to me -- it seemed like to me he was worse, that he 68 1 had deteriorated, and I wanted to put him in the hospital to 2 try and figure out what was going on and to stabilize him. 3 Q. And what was his response to that, sir? 4 A. He said he didn't want to go in the hospital. 5 He started making a case for why it would be better for him to 6 go home rather than be in the hospital. He said he didn't 7 like being around people and he said that, you know, "I can go 8 home, I've got a peaceful house; there's no one around there. 9 I've got a big yard and I don't have to be around people." So 10 he basically said, "I'm not going to go in, but I think it 11 would be better for me to be at home." 12 Q. And were his statements and responses to that 13 seemingly coherent? Did they make sense? 14 A. Yes, sir. I thought he explained a fairly good 15 case about why that might be beneficial. He was certainly 16 coherent and I think I've testified before that, you know, 17 particularly toward the end of the session, you know, he 18 gathered himself together and looked a lot better when he left 19 than even when he came in. 20 Q. Did he have a fear of going to the hospital, 21 sir? 22 A. Oh, I don't know. There may have been some fear 23 involved. I remember one comment he said, "Will I have to see 24 Doctor Moore," because he had felt that Doctor Moore had 25 conspired with the company against him. And I said, "No, I 69 1 would be your doctor, you won't have to see Doctor Moore." So 2 I think mostly he did not want to go to the hospital, but 3 there may have been some fear, as well. 4 Q. On that occasion, sir, if I understand 5 correctly, you asked him if he had any thoughts about hurting 6 or killing himself? 7 A. That's correct. When he said he didn't want to 8 go in the hospital, I asked him, "Are you having any thoughts 9 about hurting yourself," and basically -- I don't remember his 10 exact words but he said, no, he wasn't having any thoughts 11 along that line. 12 Q. And then apparently he was scheduled to come 13 back in in two weeks; correct? 14 A. Well, I had wanted to see him back in a week, 15 but I wanted his ex-wife to come with him. And that's the 16 first time I had asked that, but I kind of wanted somebody 17 else to give me a little bit of information, particularly how 18 he had done during that week period of time. But for some 19 reason he said his wife couldn't come in in one week but she 20 could in two weeks, so we scheduled it for two weeks with the 21 understanding that if there was any problem he would call me 22 or he would have his ex-wife call me. 23 Q. Doctor, let me direct your attention back to 24 Defendant's Exhibit 195-7, which is a letter that you authored 25 and signed on September 29, 1988. Do you still have that in 70 1 front of you, sir? 2 A. Yes, sir, I do. 3 JUDGE POTTER: Mr. Stopher, the jury doesn't 4 know this but we're going to take our lunch break at about 5 quarter of twelve, a little early. The Sheriff's Department 6 has a function they all want to attend and I'm going to 7 accommodate that, so I'm going to go ahead and take our 8 morning break at this time. Here's a stapler, Ivan. Will you 9 put Page 4 on everything for them when you take them out? Do 10 not permit anybody to talk to you about this case. Do not 11 discuss it among yourselves and do not form or express any 12 opinions about it. We'll take a 15-minute recess. 13 SHERIFF PATTERSON: Please rise as the jury 14 exits. 15 (RECESS) 16 JUDGE POTTER: Mr. Stopher, I gave this to Mr. 17 Smith. I haven't even read it, to be frank with you. I've 18 given you-all a copy of a question that I received -- my 19 sheriff got from the juror. It's just like the rest. For 20 your information, I have made one change. The juror put his 21 or her number on it. When I Xeroxed it I just unXeroxed that, 22 covered up the number part. It doesn't make any difference 23 who gave it. You-all can either cover that or not cover it in 24 the rest of Doctor Coleman's examination. 25 MR. STOPHER: Okay. Thanks, Judge. 71 1 JUDGE POTTER: Mr. Smith, also there is an 2 envelope the other sheriff tells me that was delivered by that 3 person that came here before and wanted to talk to you-all; 4 now they have something they want to say to you. 5 MR. SMITH: She told me that and I said you 6 better give that to the Judge before you give it to me. 7 Ivan, you want to go get the jury? 8 (BENCH DISCUSSION CONCLUDED) 9 SHERIFF PATTERSON: All rise as the jury enters. 10 Jurors present. Court is back in session. Please be seated. 11 JUDGE POTTER: Please be seated. 12 Doctor Coleman, I'll remind you you're still 13 under oath. Mr. Stopher. 14 MR. STOPHER: Thank you, Judge. Doctor Coleman, 15 let me go back to Defendant's Exhibit 195-7, sir. Do you 16 still have that there available? 17 A. Yes, sir. 18 Q. And is that a document that you authored on 19 September 29, 1988? 20 A. Yes, sir. This was a summary that I dictated as 21 part of his application for Social Security disability. 22 MR. STOPHER: Doctor -- Your Honor, may we 23 introduce and have published Defendant's Exhibit 195-7? 24 JUDGE POTTER: Be admitted. Mr. Sheriff, would 25 you publish that? 72 1 Q. Doctor Coleman, this document is dated 2 September 29, 1988, about in the middle of the course of time 3 that you treated Joseph Wesbecker, approximately, sir; is that 4 about right? 5 A. Yes, sir. That's correct. 6 Q. And in this document, sir, it states that in the 7 second sentence, "He presented with a complicated past history 8 with several previous psychiatric hospitalizations and several 9 different psychiatrists. My present diagnosis is 10 schizoaffective disorder. In the past he has been diagnosed 11 as bipolar disorder. However, he displays some features more 12 suggestive of schizoaffective disorder with suspiciousness, 13 irritability and distrust. He has had several occasions of 14 experiencing illusions, seeing the floor or ceiling move. His 15 major predominant problem is depression of a chronic nature. 16 He has been continuously depressed since being under my care 17 and has deteriorated in the last four months in spite of 18 appropriate medications. His mental condition has caused him 19 to be unable to handle any gainful employment and I placed him 20 on a medical leave of absence on 8-7-88." 21 Then skipping down, sir, to the paragraph that 22 begins "I feel." 23 A. Yes, sir. 24 Q. It says, "I feel prognosis for significant 25 improvement is poor and he will probably be unable in the 73 1 future to be gainfully employed." Did I read that correctly, 2 sir? 3 A. Yes, sir. 4 Q. In other words, as of September 1988, if I 5 understand correctly, it was your prognosis that Joseph 6 Wesbecker was unemployable because of his mental condition; is 7 that true, sir? 8 A. Yes, sir. That would be true. 9 Q. If I understand correctly, sir, at that time he 10 would have been approximately 46 years of age; am I right? 11 A. As I recall, yes, sir, that's correct. 12 Q. You made the statement, sir, "I feel prognosis 13 for significant improvement is poor." What is prognosis, sir? 14 A. Prognosis is how the person's going to do in the 15 future, you know, what the outlook is. And I didn't -- I felt 16 that was poor. In other words, I didn't feel like there was 17 going to be much chance for any significant improvement in the 18 future. 19 Q. Doctor Coleman, over the next year did he ever 20 go back to work? 21 A. Not to my knowledge; no, sir. 22 Q. Did he ever talk to you at any time about any 23 plans as to what he was going to do with the rest of his life? 24 A. No, sir. 25 Q. Any ideas about how he was going to occupy his 74 1 time? 2 A. Well, I would ask him that on occasion. He 3 would say basically that he mowed the yard is all that I 4 remember him really talking about. It seems like he was still 5 involved in the lawsuits and that seemed to occupy a lot of 6 his thinking and time. 7 Q. And do you know in 1989, in the summer of '89, 8 what the status of those lawsuits were? 9 A. I really never was clear at that time what the 10 status of the suits were. 11 Q. Doctor Coleman, let me ask you a few questions 12 that have been submitted to the Judge by a juror. First of 13 all, sir, a matter of the half-hour sessions. We talked 14 yesterday, if I understand correctly, that the first visit was 15 about an hour in July of '87? 16 A. That's correct. 17 Q. And the approximately 20 or 21 visits since then 18 were about a half an hour? 19 A. Yes, sir. 20 Q. Okay. During that period of time, sir, can you 21 give us some idea as to how much time would be spent on 22 discussing medications and how much time would be spent on 23 discussing things like what he was doing, what his family 24 situation was, stressors in his life, issues of concern on his 25 part, in other words, psychotherapy and social history sorts 75 1 of communication? 2 A. Well, some of it would depend on the session 3 itself. If we were discussing changing medication or had some 4 significant problems where I would be going over a particular 5 new medication or new particular side effects, then I would 6 probably say at least half the session might be concerned with 7 medication. If we were just making an adjustment in the same 8 medication, a little bit up or down, I would probably say 10 9 minutes, so probably anywhere from 10 to 20 minutes would be 10 spent discussing other things in most sessions. 11 Q. Doctor, in that 10 to 20 minutes when you would 12 be discussing other things, would you leave it up to him to 13 initiate the conversation and pick the topics or would you 14 direct the conversation? 15 A. Well, some of both. Sometimes he would have -- 16 he would just start talking. If I'd ask him, you know, how he 17 had felt in a period of time, he may go ahead and volunteer 18 about work or some problem like that that would lead me in a 19 particular direction. There were other times that I might ask 20 him "How are things going at work," or something along that 21 line. If he didn't have much to say or didn't bring up 22 anything himself, then I would ask a lot of times. 23 Particularly that first year before he went on medical leave, 24 most of the sessions other than talking about medication 25 tended to center on work problems. 76 1 Q. During the last year, sir, do you have any 2 recollections of any topics that he would volunteer about? 3 A. Well, he would occasionally still talk about the 4 lawsuits particularly. I know there were an occasion or two 5 that he brought up about problems with the union and didn't 6 help him with these lawsuits. I know there were at least a 7 couple occasions he talked about the problems with his son and 8 his exposing himself problem. I know there was one session I 9 think I had a note there on some in-law problems. I don't 10 recall exactly what that was. It was usually some complaint 11 about either, you know, his family or about the lawsuits or 12 still some complaints about the union. I remember one session 13 he had mentioned that he felt like they were going to take his 14 benefits away, and I reassured him I certainly won't -- I 15 don't think -- I don't feel like you can go back to work, so 16 certainly medically I'm not going to release you. So he at 17 one point I know talked about some concerns about that. 18 Q. During that last year, sir, was the fact that he 19 was no longer actively working, did that eliminate all of his 20 concerns about work and disability and his payments? 21 A. No, sir. He certainly still continued to have 22 concerns about particularly, you know, the disability. I 23 mean, he wasn't specifically talking about work issues like 24 having to be on the folder, but he was continuing to talk some 25 about, as I mentioned, you know, he would complain about the 77 1 union not helping him or he was worried about his benefits 2 being cut off. 3 Q. Did he ever mention during that last year, sir, 4 what he was going to do when the lawsuits were all gone, 5 dismissed, or resolved in some way, what he was going to do 6 then? 7 A. No, sir. I don't recall him ever saying what he 8 was going to do. 9 Q. Did he ever discuss with you what he was going 10 to do if his disability payments were cut or eliminated? 11 A. Well, he never mentioned to me that his 12 disability payments may be cut. He said he was worried about 13 losing his disability and it was my impression that he was 14 worried that they would say he was, you know, able to return 15 to work. And I basically reassured him that, from my opinion, 16 he was not going to be able to return to work. But he never 17 once mentioned to me that, you know, they're going to cut off 18 my payments or decrease my disability, so he never actually 19 ever mentioned that. 20 Q. Doctor Coleman, in 1987 through 1989, we have a 21 question here as to what your charges were for a half-hour 22 visit with Mr. Wesbecker. Do you recollect that or do you 23 have any records that would answer that for us, please, sir? 24 A. Part of my record is his billing card. In 1987, 25 when he first came, the initial evaluation was $85, and 78 1 subsequent visits to that were $55. 2 Q. And that would be for half-hour sessions? 3 A. That's correct. 4 Q. Now, sir, one other question has been submitted. 5 Going back to your experience with Prozac and prescribing it 6 for your patients, sir, what has been your experience with the 7 100 to 150 patients as far as the efficacy or effectiveness of 8 that drug in treating those patients? 9 A. Well, in my opinion, Prozac is equally as 10 effective as the older-line antidepressants, particularly the 11 tricyclic antidepressants, in alleviating depression. It 12 tends in my experience to have fewer side effects. It tends 13 to be tolerated better. Its dosing profile of once a day 14 tends to be easier than the tricyclic antidepressants. It's 15 not -- it doesn't work for everybody. I would say 16 approximately 70 percent of people it does seem to help. 17 People it works for, it works real well for. There's some 18 people, as with any medication who, you know, it has some side 19 effects or doesn't seem to work that we would have to try 20 something different. Usually my starting dose is still 20 21 milligrams a day, which is the recommended starting dose, and 22 that seems to be effective for most people. I have had 23 patients on more than that, up to as much as 80 milligrams a 24 day. It's very unusual to have to do that. But in one or two 25 cases I've increased it up to that level. Some people seem to 79 1 need a little bit less at 10 milligrams a day, but I find that 2 that's a small percentage in my experience, as well. 3 Q. Doctor Coleman, and finally a question again 4 that's been submitted to the Court. What has been your 5 experience with regard to the safety of the drug in connection 6 with the 100 to 150 patients that you've had prescriptions for 7 on Prozac? 8 A. Well, in my experience I feel like Prozac is a 9 very safe medication. I've not had a single patient, even 10 including Mr. Wesbecker, which that's my opinion, that I felt 11 Prozac had caused any significant problems with. Usually the 12 reason that I've ever had to stop Prozac in a particular 13 patient, other than it not working, is that a small percent of 14 people it makes them very anxious. Some people get a very 15 mild degree of anxiety that usually goes away in a week or so. 16 But I've had some patients that get very anxious like they've 17 had 10 or 12 cups of coffee. They call me up very quickly and 18 we go ahead and stop it and that diminishes. But I've never 19 had a single patient that I felt like it had caused any 20 significant problems that would be unsafe. I certainly would 21 have no problems prescribing it if one of my family members 22 was taking it or taking it myself if I needed it. 23 Q. Doctor Coleman, let me switch now to another 24 topic. If I understand correctly, sir, during the two years 25 and two months that you dealt with Joseph Wesbecker, never at 80 1 any time did he give you any information that indicated to you 2 that he might be homicidal? 3 A. Never, sir. 4 Q. No hint of any sort of plan to commit homicide? 5 A. No, sir. 6 Q. No hint of any idea that he would like to harm 7 or to kill other people? 8 A. Never. 9 MR. SMITH: Objection, leading. 10 JUDGE POTTER: Sustained. 11 Q. Doctor Coleman, during that two years and two 12 months, did he ever give you any statements at all that would 13 indicate any concern on your part about homicidal activity or 14 ideas? 15 MR. SMITH: Objection, leading, Your Honor. 16 JUDGE POTTER: Sustained. 17 Q. Let me go back, then, Doctor Coleman and ask you 18 this: During -- let me ask you to do the following with me, 19 if you would, please, sir. I'm going to ask you a long 20 question in which I'll try to break it down into parts, but if 21 you'll allow me to get through the question, I'm going to ask 22 you to assume some facts or evidence or testimony about events 23 and statements. First of all, sir, are we generally clear as 24 to the nature of the question, sir? 25 A. Yes, sir. 81 1 Q. In other words, I'm going to ask you to assume 2 certain things and then I have a question for you at the end 3 of these assumptions. All right, sir? 4 A. Yes, sir. 5 Q. Let me begin, sir, with the period of time 6 between August of 1987, and August or thereabouts, early 7 August of 1988, in other words, approximately the first half 8 of your treatment of Mr. Wesbecker, sir. 9 A. Okay. 10 Q. Let me ask you to assume, sir, that he spoke to 11 one of his co-workers at Standard Gravure and that that 12 co-worker has testified in deposition, quote, he always wanted 13 to talk about killing people. No matter what you wanted to 14 talk to him about, he just wanted to talk about killing 15 people. He talked about killing Mike Shea, Don McCall, Paula 16 Warman, Don Cox and Bill McKeown. I'll ask you to assume that 17 evidence, sir. 18 Let me next ask you to assume that in the summer 19 of 1988, again about in the middle of the treatment, that Mr. 20 Wesbecker talked about getting a remote-controlled model 21 airplane, putting explosives or explosive devices on that 22 model airplane, and flying it into the Standard Gravure 23 building and detonating it or blowing it up. 24 Let me thirdly ask you to assume, sir, that in 25 the summer of 1988, that Joseph Wesbecker talked to a fellow 82 1 pressman about putting a bomb inside the fifth-floor solvent 2 recovery tank and then said that he didn't like the idea 3 because it was too expensive. That's Assumption Number Three, 4 sir. 5 Let me ask you to assume Item Number Four; that 6 in the summer of 1988, another fellow pressman -- 7 MR. SMITH: Your Honor, I hate to interrupt Mr. 8 Stopher, but we're going to have to have the names of these 9 pressmen identified so that we'll be able to contradict his 10 testimony, if appropriate. 11 Q. Let me answer his objection, Doctor Coleman, by 12 stating that Mr. George McMillan has testified under oath in 13 deposition that he was with a group in the summer of 1988, 14 including Joseph Wesbecker, at Hall's restaurant and he talked 15 about his model airplane plan. And when the men said that it 16 wouldn't work, Mr. Wesbecker said, quote, maybe I've got to 17 plan something else. 18 Assumption Number Five, sir, let me ask you to 19 assume that on August 26, 1988 -- this would be 20 days after 20 he stopped working at Standard Gravure -- that he went to a 21 gun shop and purchased the nine-millimeter Sig Sauer pistol 22 that he used on September 14, 1989, to commit suicide. 23 Let me ask you to assume Item Number Six, sir, 24 that on September 10, 1988, that Joseph Wesbecker went into 25 the Owen Funeral Home and arranged for his own cremation and 83 1 paid $685 in cash and requested that there be total 2 consumption with no ashes to be returned at all. 3 Let me ask you to assume, sir, Item Number 4 Seven; that on September 27, 1988, about six weeks after he 5 stopped working at Standard Gravure, that he deeded his house 6 at 7300 Nottoway Circle to his ex-wife and stated, according 7 to the testimony of then Brenda Wesbecker, quote, I do not 8 want you to leave again. You've been very good to me. If I 9 ever become very ill and I am in a mental hospital, I'll have 10 no need for this home. I really don't think I'll have a need 11 for this house if I don't beat mental illness. Well, I guess 12 if I'm in the mental hospital or I kill myself or I don't make 13 it, I guess that's the least I can do for you is give you a 14 roof over your head. If I leave it to three or four people, I 15 know there will be arguments, closed quotes. 16 Let me ask you to assume, sir, Item Number 17 Eight; that in late -- approximately late 1988, after he had 18 been out of the work force at Standard Gravure and on 19 disability, that Mr. Bryan has testified in his deposition 20 that Mr. Wesbecker would go back down to Standard Gravure, 21 stand on the sidewalk and talk to people, and he would say he 22 would be back and, quote, one of these days I'm going to get 23 even for all of this stuff. 24 Let me ask you to assume, sir, Item Number 25 Ten -- excuse me, Number Nine; that on January 19, 1989, Mr. 84 1 Wesbecker went to the Tilford Gun Shop and purchased a Norinco 2 AK-47. 3 Assumption Number Ten; that on February 7, 1988, 4 he had his water shut off at his house on Nottoway Circle for 5 11 weeks, almost 3 months. 6 Assumption Number Eleven; that on February 8, 7 1989, that Joseph Wesbecker had his telephone service at his 8 house disconnected and never reconnected. 9 Assumption Number Twelve, sir; that on February 10 10, 1989, Mr. Wesbecker purchased two Mac-11 pistols from 11 Tilford Gun Sales. 12 Assumption Number Thirteen, sir; that his then 13 ex-wife, Brenda Wesbecker, testified about this period in 14 February of 1988: Quote, he wouldn't answer my phone calls. 15 He wouldn't talk to me. He wouldn't eat. He wouldn't take a 16 bath, close quotes. And when she went to check on him, she 17 found that, quote, he cut off the water in that house, he cut 18 off telephone service, would pee in a can in the bedroom; it 19 would be all over the carpet of the floor. 20 Assumption Number Fourteen; that Jim Lucas saw 21 him at this time in early 1989 and has testified, quote, he 22 had it in his mind someone was out to get him. It got to the 23 point where he was talking and I was scared, you know, just 24 something is wrong here, close quotes. He testified that 25 Wesbecker kept the curtains drawn shut because he, quote, had 85 1 a fixation people were watching him, you know, he couldn't 2 make a move that nobody would know. Everybody knew what he 3 was doing, you know, and that's what his conversation usually 4 centered on, everyone was watching him, close quotes. 5 Assumption Number Fifteen, sir; that on 6 February 15, 1989, a handyman making repairs on his home at 7 7300 Nottoway, says and has testified that Wesbecker told him 8 that he had worked at Standard Gravure and that they had done 9 him wrong and that Wesbecker said, quote, that's all right 10 because they are going to pay for it, close quotes. 11 Assumption Number Sixteen, sir; that on May 1, 12 1989, Mr. Wesbecker traded the Norinco AK-47 for the Polytech 13 AK-47S. 14 Assumption Number Seventeen, sir; that at the 15 end of July in 1989, Wesbecker visited Mr. Lucas. Mr. Lucas 16 has testified that Wesbecker told him in July of 1989, that 17 he, Wesbecker, cannot see the light at the end of the tunnel. 18 Suicide seems the only answer. He suggested that he and Mr. 19 Lucas shoot each other at the same time. He spoke of his 20 son's -- Jimmy's -- exposure problems. Mr. Lucas testified 21 that Wesbecker could not sit still; that he would stare out 22 the window and that he said that Standard Gravure foremen 23 named Popham, Cheatham and McKeown should be eliminated. 24 Let me ask you to assume, sir, that on August 9, 25 1989, that he attended the funeral of his grandmother, Nancy 86 1 Montgomery, who had died a few days earlier. 2 Let me also ask you to make Assumption Number 3 Nineteen, sir; that on February 27, 1989, that a letter was 4 sent to Mr. Wesbecker advising that his long-term disability 5 benefits would start on March 22, 1989; that the first check 6 would be in the amount of $1,420.94; on May 1 and each month 7 continuing through the month of August, the check would be in 8 the amount of $1,069.34; that the September check would be in 9 the amount of $854.10; and that, quote, beginning October 1, 10 that would be in the year 1989, and continuing each month 11 thereafter for the duration of your disablement until age 65, 12 your monthly payment will be $391.21. 13 Assumption Number Twenty, sir, let me ask you to 14 assume that on September 12, 1989, the day after Mr. Wesbecker 15 visited in your office, that he wrote a check on the Liberty 16 bank account, Check No. 205, made payable to cash in the 17 amount of $70,000 and deposited it in the account of his son 18 James at the L&N Credit Union account. 19 Let me also ask you to assume, sir, that on 20 September 14, 1989, during these shootings, that Mr. Wesbecker 21 confronted another pressman and friend named John Tingle and 22 that in the process of talking, Mr. Wesbecker told him to get 23 out of the way and that Mr. Wesbecker said to Mr. Tingle, 24 quote, I told them, now I'm going to show them, close quotes. 25 Let me also ask you finally, sir, to assume Item 87 1 Number Twenty-Two; that after the shootings, there was a Time 2 Magazine article found in the home of Joseph Wesbecker at 7300 3 Nottoway Circle dated February 6, 1989, some seven months 4 before the shootings, and that the article that the magazine 5 was found open to a page entitled, quote, Calendar of 6 Senseless Shootings. The article recounts various shootings, 7 including a shooting at Stockton, California, in a school yard 8 with an AK-47 on January 17, 1989, just before he purchased 9 the AK-47. 10 Now, sir, I know that list of assumptions is 11 long and I have a copy here for you, sir, if it would be of 12 any benefit to you to review this in answering the questions 13 that I have. Would you want a copy of this, sir? 14 A. If I could, that maybe I could refer to. 15 Q. (Hands document to Witness). 16 A. Thank you. Okay. Go ahead. 17 Q. First of all, Doctor Coleman, were any of those 18 matters brought to your attention during the time that you 19 treated Joseph Wesbecker? 20 A. No, sir. None of them. 21 Q. Is this information -- and, again, sir, at this 22 point it is just an assumption, but is this list of 23 information important or significant to you with regard to his 24 actions on September 14, 1989? 25 A. Well, certainly my opinion is probably most of 88 1 them are certainly significant and seem very clear as to some 2 explanation, in my mind, of the events of September 14th, 3 1989. 4 Q. Would you explain that, sir? 5 A. Well, it certainly sounds like that at least 6 from the time you've dated this in August 1988, that he had 7 been making threats about hurting someone or with a model 8 airplane to take some action against Standard Gravure or 9 whomever he felt was wronging him down there. This seemed to 10 take more form, certainly, as time went on. Also, in 11 conjunction with that, it certainly sounds like his mental 12 condition was continuing to deteriorate with basically 13 isolating himself, almost becoming a hermit, turning off his 14 utilities, and that in my opinion, he was planning to take 15 some revenge or act against Standard Gravure. This seemed to 16 take more form, it sounds like from what you just went 17 through, as time went on. It certainly sounds like to me, 18 particularly with the Stockton, California, shootings in 19 January 17th of 1989, and him purchasing his first AK-47 on 20 January 19th, '89, that this was a method that he thought at 21 that time was going to probably be a very viable method. 22 As I said, it sounds like that as time went on 23 his plan seemed to take more form, at least it sounds like his 24 threats became a bit more specific. It sounds to me, at least 25 from this, that he was getting hopeless about his own 89 1 condition. You said he told Mr. Lucas that there doesn't seem 2 to be any light at the end of the tunnel. Now, obviously, the 3 time frame of September 14th seems to fit with the letter he 4 had gotten on his disability, and when he's told that, you 5 know, on October 1st of 1989, your benefits are going to be 6 reduced I guess approximately $1,050 down to $300, you know, 7 to me suggests certainly a time frame that he may have had in 8 mind about when this act was going to take place. 9 So my summation would be that, from what you've 10 just proposed to me, that it sounds to me like it was planned, 11 that there were specific things that happened that predicted 12 or at least caused the time frame of this to happen and for 13 the event to take place, and that it was a preplanned thing 14 that took some time to formulate specifically, but I 15 definitely think that over a long period of time it had been 16 something he had been planning. 17 Q. Doctor Coleman, did Prozac make him adopt this 18 plan? 19 A. Well, going by your list and your dates, of 20 course the second time I prescribed the Prozac, as I recall, 21 was on August the 10th. Most of this obviously predates 22 August the 10th, so it's my opinion that certainly his plan 23 was there long before he was ever put on Prozac the second 24 time. Of course, he was put on Prozac one time, as I recall, 25 in June of 1988, but for approximately two weeks or so. But 90 1 definitely most of this precedes the start of Prozac. 2 Q. Doctor Coleman, yesterday you rendered an 3 opinion that Prozac had nothing to do with the actions on 4 September 14, 1989; correct, sir? 5 A. That's correct. 6 Q. Do these assumptions that I have asked you to 7 make, do they in any way change that opinion or do they 8 support it or do they have any effect on it, sir? 9 A. They certainly seem to -- they don't change my 10 opinion. They seem to support even more strongly that Prozac 11 had nothing to do with this action. 12 Q. Doctor Coleman, let me switch to another topic, 13 if I may, sir, for just a few minutes. We've spent some time, 14 you and I, in this courtroom in front of this jury and this 15 Judge discussing suicide and suicidal ideation and sometime 16 discussing homicidal ideation and homicide. First of all, 17 sir, to you as a clinical psychiatrist, are they the same 18 things? 19 A. No, sir. They're entirely different things. 20 Q. Would you explain how suicide and suicidal 21 ideation differs, if it does, from homicidal ideation and 22 homicide? 23 A. Well, suicidal ideation is someone's thoughts or 24 ideas about killing themself; homicidal ideation is thoughts 25 that a person has about killing another. Certainly in my 91 1 experience, it's very unusual for a patient with suicidal 2 ideation to also have homicidal ideation. I would say that's 3 very unusual in my experience. 4 Q. Are people who are suicidal necessarily 5 homicidal? 6 A. No. As I said, I think that's very unusual. Of 7 course, you know, as I said, the most common thing I treat is 8 depression and it's certainly common for a lot of people with 9 depression to have suicidal thoughts. It's very rare for any 10 of those people to also have homicidal thoughts. 11 Q. Doctor, we've also spent some time in this 12 courtroom discussing agitation. In your clinical experience, 13 does agitation result in homicide, sir? 14 MR. SMITH: Objection, leading, Your Honor. 15 JUDGE POTTER: Sustained. 16 Q. Doctor Coleman, let me restate the question. In 17 your clinical experience is there any causal relationship 18 between agitation and homicide? 19 A. No, sir. None whatsoever. 20 Q. Would you explain to the jury why not? 21 A. Well, agitation is a state of increased motor 22 restlessness. It's not always just a state of a psychiatric 23 condition. It certainly can be. People can be agitated about 24 day-to-day things, family problems, marital problems. There 25 would be an awful lot of homicide if people once they became 92 1 agitated also became homicidal. So it certainly -- I think 2 there's very little connection between agitation and homicide. 3 Q. Doctor Coleman, just a few final questions, sir. 4 On September 14, 1989, sir, some toxicology studies were done 5 on Mr. Wesbecker. They've been identified as Plaintiffs' 6 Exhibit No. 161. It is my -- well, let me ask you this, sir. 7 Without necessarily referring to the document -- you can if 8 you would feel more comfortable, sir -- do you recall whether 9 or not there was any finding of Restoril in Mr. Wesbecker's 10 blood on that report, sir? 11 A. Yes, sir. As I recall this, there is Restoril 12 in his blood. 13 Q. And do you know whether or not that level was in 14 a therapeutic range or in some other range? 15 A. Well, as I recall from the toxicology report, it 16 was in a therapeutic range. 17 Q. Doctor Coleman, in your clinical experience what 18 does that mean, sir? 19 A. Well, it means that he was taking -- he was 20 certainly taking the Restoril as prescribed on a -- probably 21 on a regular basis. 22 Q. And at that level, what sort of effect would it 23 have on the human body? 24 A. Well, Restoril is commonly prescribed for sleep; 25 however, it's in the same class, what are called 93 1 benzodiazepines, as the anti-anxiety agents such as Valium, 2 Xanax, so certainly it does have a tranquilizing or sedative 3 effect, as well. It's primarily prescribed to help us sleep. 4 Q. At that level in his bloodstream, would it have 5 a tranquilizing or sedative effect? 6 A. In my opinion it would; yes, sir. 7 Q. Doctor Coleman, let me ask you to assume that if 8 the package insert on Prozac had stated the following -- 9 MR. SMITH: May we approach the bench, Your 10 Honor? 11 (BENCH DISCUSSION) 12 MR. SMITH: This is another hypothetical that 13 wasn't provided to us that it was my idea that -- impression 14 that any hypothetical was going to have to be provided to us. 15 JUDGE POTTER: No. That was how they handled 16 his expert testimony as to causation. I assume this is 17 probably getting close to the end, and his idea -- this is a 18 factual question, "If they had the proper warning, according 19 to you-all would it have made any difference to you." 20 MR. STOPHER: Okay. 21 JUDGE POTTER: Is this it? 22 MR. STOPHER: This is it. Thanks, Judge. 23 (BENCH DISCUSSION CONCLUDED) 24 Q. Doctor Coleman, let me ask you to assume that 25 the following language was contained in the package insert for 94 1 Prozac at the time you prescribed it on August 10, 1989, and 2 at the time that you had the office visit again with Mr. 3 Wesbecker on September 11, 1989, that the following language 4 was in the package insert: Quote, risk of suicide. Prozac 5 does not have a general sedative effect on the central nervous 6 system; therefore, for his/her own safety, the patient must be 7 sufficiently observed until the antidepressive effect of 8 Prozac sets in. Taking an additional sedative may be 9 necessary. This also applies in cases of extreme sleep 10 disburbances or excitability. 11 Assuming, sir, that that was the language in the 12 package insert on Prozac, would you have treated Mr. Wesbecker 13 any differently on August 10, 1989, or September 11th, 1989? 14 A. No, sir. I don't think it would have made any 15 difference. 16 MR. STOPHER: Your Honor, I think this is a good 17 time for the lunch break. I believe that may be all that I 18 have. 19 JUDGE POTTER: Okay. Ladies and gentlemen, as I 20 told you, we'd be going to lunch a little early today. Let me 21 remind you again, do not let anybody communicate with you on 22 any topic connected with this trial; any attempt to do so 23 should be reported to me. Do not discuss it among yourselves 24 and do not form or express opinions about it. 25 Just for your curiosity, there is going to be at 95 1 noon -- there was a sheriff's department employee that was 2 killed in the line of duty a year ago today, and there's a 3 memorial across the street for police officers or law 4 enforcement officers who have died. And if you see -- there's 5 a memorial service, a short memorial service today, and so 6 that's why the people will be across the street and that's why 7 we're quitting early. How about 1:15. 8 Yes, Mr. Higgs? 9 JUROR HIGGS: Will Doctor Coleman be back after 10 lunch? 11 JUDGE POTTER: Yes. I assume you have some 12 redirect, Mr. Smith? 13 MR. SMITH: Yes. I'll have some questions for 14 him, Your Honor. 15 JUDGE POTTER: We'll stand in recess till 1:15. 16 SHERIFF PATTERSON: Please rise as the jury 17 exits. 18 (LUNCH RECESS) 19 SHERIFF CECIL: The jury is now entering. All 20 jurors are present. Court is back in session. 21 JUDGE POTTER: Please be seated. Ladies and 22 gentlemen of the jury, before we go on, let me just say 23 something to you. You know, from time to time various jurors 24 have given questions to my sheriff and I pass those along to 25 the attorneys. I want to emphasize that sometimes those 96 1 questions cannot be answered with the particular witness that 2 is on the stand. Sometimes those questions cannot be answered 3 because the information is not available or not known. 4 Sometimes those questions cannot be answered because I've 5 ruled it's something that shouldn't be part of this case. So 6 I want to emphasize that if you do submit a question to my 7 sheriff and then don't hear anything from that right away or 8 if you don't hear anything ever about that, it doesn't mean 9 that what you gave to my sheriff hasn't been given attention. 10 Okay? 11 And I'll just answer one right now, that 12 somebody wanted to know if they could have the typed list -- 13 one of the big questions that was put to -- or long questions 14 that was put to Doctor Coleman involved him making a bunch of 15 assumptions, and somebody wanted to know if they could have a 16 list of those assumptions. Testimony comes in in sort of two 17 forms, one is a document that in itself has some evidentiary 18 value; it's a letter somebody wrote or it's a report of 19 something. But as far as just testimony goes, I really can't 20 get it listed or noted or given to you that way. If something 21 is just a question and an answer that's made orally, you-all 22 will just have to rely on your memories. And, you know, I 23 noticed a good many of you are taking notes, and I can assure 24 you that -- I'm reluctant to say this because it implies some 25 parts of the case are not important, but I will tell you that 97 1 the parts that the attorneys think are important, you-all will 2 hear several times. And I think you've already maybe figured 3 that one out. Have you? 4 Doctor Coleman, I'll remind you you're still 5 under oath. 6 Mr. Smith. 7 8 FURTHER_EXAMINATION _______ ___________ 9 10 BY_MR._SMITH: __ ___ _____ 11 Q. Doctor Coleman, let me first ask you if you've 12 talked with Mr. Stopher or Mr. Freeman or anybody from Lilly 13 from the time that you stopped your sworn testimony last night 14 until the time that you began your sworn testimony this 15 morning? 16 A. No, sir; I did not. 17 Q. Do you know if any of your lawyers have talked 18 with Mr. Stopher or Mr. Freeman since you last testified? 19 A. No, I do not. 20 Q. You don't know? 21 A. To my knowledge they have not, sir. 22 Q. Do I understand it, Doctor Coleman, that you 23 have expressed criticism of starting somebody out on 24 tranquilizers and antidepressants or other psychoactive 25 medications in the past? 98 1 A. I'm not sure what you mean by criticism, sir. 2 Q. Did you think it's not a good practice for a 3 physician to do? 4 A. I wouldn't make that statement. In my general 5 practice I don't like to start two medications at once; if you 6 run into problems with something, you don't know what's caused 7 it. So my general practice is not to start two new 8 medications at any one particular time. 9 Q. Okay. So, if you had somebody -- if you had 10 somebody that was agitated and depressed, you wouldn't start 11 them off on an antidepressant plus a benzodiazepine; correct? 12 A. Not generally; I have. And particularly 13 outpatients I don't tend to do that as much. Now, in patients 14 who are more closely monitored, sometimes I will do that. I 15 have had occasion to do that if the agitation is very 16 significant, but as a general rule I do not start two 17 medications at once; that's correct. 18 Q. The reason you don't want to combine the 19 benzodiazepine and the antidepressant is because you feel like 20 you can't tell which medication is having an action or, 21 equally important, is causing a reaction; right? 22 A. Correct. If a patient calls three days later 23 and says I'm feeling sleepy, I wouldn't know which one was 24 doing it. 25 Q. So you don't think it's a good idea to combine 99 1 psychoactive medications in an initial office visit setting? 2 A. Well, I don't necessarily have any problem with 3 the combination. The problem I usually have is -- and this is 4 just me personally, I can't speak for other psychiatrists -- 5 that I don't usually like to start two new medications at one 6 time. 7 Q. The reason for that is you can't tell what one 8 medication is doing because you've got two medications on 9 board? 10 A. Correct. If there's some problem, I won't know 11 which one might be causing the problem. 12 Q. Did you know that the research physicians and 13 the protocols at Eli Lilly and Company call for the 14 co-administration of benzodiazepines and Prozac at the same 15 time in the same patients? 16 A. Well, I think you said something to me about 17 that yesterday. I did not know it before then; no, sir. 18 Q. And I believe your answer was that Mr. Stopher 19 or Mr. Freeman or nobody from Lilly ever told you that that 20 was what in fact occurred during the Lilly clinical trials? 21 A. That's correct, sir. 22 Q. I'm a little confused. Is it your testimony, 23 Doctor Coleman, that this notation is wrong: "Patient seems 24 to have deteriorated. Tangential thought. Weeping in 25 session. Increased level of agitation and anger. Question 100 1 from Prozac." Is that wrong? 2 A. Sir, I wrote that. At the time when I made that 3 notation I certainly felt like that was correct. 4 Q. You felt like the deterioration was from the 5 Prozac? 6 A. I felt like that was the most probable cause, as 7 I testified yesterday. I considered other couple of 8 possibilities, but I felt like that my sense was more than 9 likely at that time that his deterioration could have been 10 from the Prozac. 11 Q. Now, are you changing -- since you've talked to 12 the Lilly lawyers are you changing that opinion now, what you 13 wrote down in black and white? 14 A. Talking to the Lilly lawyers has not changed my 15 opinion; reviewing the information that Mr. Stopher wanted me 16 to review gave me a whole lot of information that has changed 17 my opinions about that. 18 Q. So this is no longer correct? 19 A. It was correct at the time. 20 Q. This is no longer accurate? 21 A. At this time I don't believe that's as accurate 22 as it was when I wrote it, sir. 23 Q. Any other parts of your medical record that 24 aren't accurate? 25 A. I'm not saying that's inaccurate. When I wrote 101 1 it I felt like that was accurate, sir. 2 Q. Do you want to change any other parts of your 3 medical records? 4 A. I wouldn't want to change that, sir. I'm just 5 changing my opinion about what might have been the cause of 6 his deterioration based on further information that I have. 7 Q. Now, you say that you think that it could 8 either -- of course, you could be still correct in the 9 assumption that you made at the time before anybody had 10 anything to gain or lose, that the Prozac was the cause of the 11 deterioration; correct? 12 A. Well, I don't know what you mean by anybody to 13 gain or lose. I think, as I said yesterday, I still 14 considered that one of the possibilities still could be that 15 Prozac caused the deterioration; yes, sir. 16 Q. Could we characterize that as a probability 17 still? 18 A. I don't know if I would characterize it as a 19 probability; no, sir. 20 Q. Can we characterize it as an equal possibility 21 with these other two factors that you've now mentioned? 22 A. I think I mentioned more than two other factors. 23 Q. Well, I think you mentioned that it could be a 24 combination of some other medications that were on board at 25 the time you saw him on September 11th? 102 1 A. That was one consideration; yes, sir. 2 Q. Or that he could be faking it? 3 A. Or that he was planning the shooting on 4 September 14th and that was also making him anxious. 5 Q. Well, of course, you see, you don't make any 6 notation of anxiety on August 10th, 1989, do you? 7 A. Without looking at the note, I don't know, sir, 8 but agitation certainly could be a symptom of anxiety. 9 Q. Well, have you got your notes in front of you 10 there, Doctor? Look at Exhibit 160. 11 A. 160, I assume, is the typewritten version of my 12 notes. 13 Q. Yes, sir. Got it? 14 A. I have that, sir. 15 Q. Look at the 8-10-89 notation. You say, "Patient 16 relates change of meds no specific benefit. Still has morning 17 lethargy, trouble initiating sleep and trouble with memory." 18 A. Yes, sir. 19 Q. There are no notes of nervousness, irritability, 20 agitation or anger there, is there, Doctor Coleman? 21 A. Now, you're referring to the August 10th visit? 22 Q. August 10th, 1989. Do you have it in front of 23 you, sir? 24 A. No. Let me find it. Hold on a second. 25 (Reviews document) That's correct, sir. 103 1 Q. Nothing about anxiety, nervousness, irritation, 2 irritability or anger, is there? 3 A. Not on that written note; no, sir. 4 Q. So, if he had been planning this for a long time 5 prior to August 10th, 1989, he ought to be anxious about it 6 then, shouldn't he? 7 A. Not necessarily. On September the 11th, that 8 was three days before. 9 Q. All right. But if this had been a long-standing 10 plan and he was anxious about this long-standing plan, it 11 ought to appear, shouldn't it? 12 A. I don't agree with that, sir. 13 Q. You don't agree with that? Okay. There's no 14 mention of nervousness, agitation, anxiety or anger in your 15 June 26, 1989, is there? 16 A. No, sir. 17 Q. That says, "Patient's mood seems to have 18 improved but feeling drugged and lethargic, doesn't it? 19 A. That's correct, sir. But as I said on that 20 notation of September 11th, that one of the possibilities was 21 that he knew he was going to do this three days later and was 22 anxious at that time and, as you recall, the only comment I 23 made on my contemporaneous notes at that time was "nervous," 24 which is anxiety. 25 Q. But you make a lot more details in your 104 1 full-blown typewritten notes, don't you? 2 A. Correct. But that was in there, as you asked me 3 about yesterday, that he definitely was more nervous when he 4 came in on September 11th. 5 Q. He had a lot of increased anxiety, didn't he? 6 Didn't he? 7 A. Yes, sir. 8 Q. He had anger? 9 A. He had increased anger; that's correct, sir. 10 Q. He was weeping about this hallucination or 11 delusion, wasn't he? 12 A. Sir, I don't know if it's a hallucination or 13 delusion. 14 Q. You know what we're talking about, don't you, 15 Doctor Coleman? 16 MR. STOPHER: Can he finish his answer, Your 17 Honor? 18 JUDGE POTTER: Let him finish. 19 A. Sir, but you're mischaracterizing what it is. I 20 know what you're talking about. 21 Q. What was it, a hallucination or a delusion? 22 A. I don't know, sir. 23 Q. In the summary of the facts that Mr. Stopher, 24 Mr. Freeman and Eli Lilly have provided you, was there ever 25 anything in that summary to indicate that this, quote, blow 105 1 job, end quote, incident ever occurred? 2 A. Not anything I read, sir. 3 Q. You've never seen any evidence that it in fact 4 did happen, have you? 5 A. No, sir. 6 Q. Most probably it did not happen; isn't that 7 correct, Doctor Coleman? 8 A. Sir, I don't know that. I'm not sure anybody 9 would -- 10 Q. I'm asking you for your opinion. 11 A. I'm not sure anyone would necessarily confess to 12 that, so I still don't know whether it was factual or not 13 factual. 14 Q. Do you understand that Mr. Stopher and Mr. 15 Freeman and Eli Lilly and Company have taken the depositions 16 of over 300 people in this case that had contact with Mr. 17 Wesbecker? 18 A. I don't know exactly what the number would be, 19 sir. 20 Q. Do you understand they've taken a lot of 21 depositions, Doctor Coleman? 22 A. Yes, sir. 23 Q. And do you understand that not one word has ever 24 been said about any sexual incident at that plant? 25 A. I don't know that, sir. 106 1 Q. There was never any evidence of that. Did Mr. 2 Freeman or Mr. Stopher tell you that in your meetings with 3 them? 4 A. No, sir. I think I had asked Mr. Stopher 5 whether anybody had commented on that. 6 Q. What did he say? 7 A. He said there was one person who had said that 8 they had heard something about it, but he didn't mention a 9 particular name. 10 Q. Did he give you a name or fact? 11 A. Pardon? 12 Q. Did he give you any name? 13 A. No, sir; not that I recall. 14 Q. Did he say they commented that it had occurred 15 or had not occurred? 16 A. As I recall, he said one person had commented 17 that they had heard something about it but not that it had 18 actually happened, sir. 19 Q. This person didn't see it? 20 A. I don't know. I'm just telling you what Mr. 21 Stopher told me. 22 Q. So what's your judgment, Doctor Coleman, about 23 whether or not this alleged sexual incident actually did 24 occur? 25 A. Sir, my judgment is I still don't know whether 107 1 it occurred. 2 Q. Well, you've given this opinion on whether or 3 not Prozac caused Mr. Wesbecker to do what he did on September 4 14th, 1989, and you're changing your opinion about the effects 5 of Prozac on September 11th, 1989. Why don't you give us what 6 your opinion is concerning whether or not this sexual incident 7 actually occurred? 8 A. Because I -- if you want to pin me down, I would 9 say the same thing I said then; that I would probably lean a 10 little bit more toward something to that effect may have 11 happened. Now, whether it was actually exactly as he had 12 described it, I don't know. 13 Q. Are you saying now that you believe Joseph 14 Wesbecker when he told you this occurred? 15 A. Sir, I think as I testified before, I was about 16 50-50; I wasn't sure. And if I had to lean one way a little 17 bit, at the time I leaned that possibly something had 18 happened. I haven't had anything that would change that 19 opinion at this time. 20 Q. Now you're saying that it may be that he was 21 faking this whole thing, all of these symptoms that you saw on 22 September 11th, 1989. 23 A. I consider that one of the possibilities; 24 yes, sir. 25 Q. Now, in considering that he might have been 108 1 faking this incident on September 11th, 1989, do you think he 2 was lying to you about the sexual incident that he said Prozac 3 caused him to remember or do you think that did occur? 4 A. Well, I think that's one of the possibilities, 5 he could have been lying to me, but as I said, sir, I don't 6 really know. 7 Q. It's very unlikely that he was lying to you on 8 September 11th, 1989, isn't it, about his feelings? 9 A. I would say of the possibilities I mentioned, 10 that would be the slimmest possibility, that he was lying. 11 Q. That he was lying to you? That he was faking 12 it? 13 A. Yes, sir. 14 Q. That's really not much of an opinion, is it, 15 that he was faking it? 16 A. I just mentioned it as a possibility, sir; I 17 didn't say that was my opinion. 18 Q. Can we say that that's the most remote 19 possibility that could have occurred, that he was faking this 20 whole thing? 21 A. I think that would, in my opinion, be the 22 slimmest possibility; yes, sir. 23 Q. All right. Let's talk about this other 24 possibility to explain his conduct on September 11th, 1989. 25 It's my understanding that you say that you think that by 109 1 looking at the toxicology report and seeing other medications, 2 that what you might have seen that he might have had other 3 antidepressants that he had been taking on September 11th, 4 that by mixing these antidepressants would cause some 5 constellation of symptoms that you were observing? 6 A. Yes, sir. 7 Q. Do you have the toxicology report in front of 8 you, Doctor Coleman? 9 A. I think I have a copy of it here in my folder. 10 Q. For the jury's benefit it's Plaintiffs' 11 Exhibit 161. 12 A. Yes, sir. I have a copy of it. 13 Q. Turn with me to the third page of the exhibit. 14 It's headed up SmithKline Bioscience Laboratory. Do you have 15 that in front of you, Doctor Coleman? 16 A. The only thing that I have a copy of, sir, is 17 probably that one, the one with the levels on them, this one. 18 MR. SMITH: May I approach the Witness? 19 JUDGE POTTER: Uh-huh. 20 Q. Why don't we both look here to see if we are 21 looking at the same document. 22 A. Yes, sir. That's the same. 23 Q. Specifically, the medications that you think 24 that he might have been taking against your advice in 25 combination with Prozac that would cause some adverse reaction 110 1 that would explain this constellation of symptoms that you 2 observed on September 11th, 1989, would be those medications 3 listed in the second half of that page on SmithKline, 4 specifically, Trazodone, imipramine, desipramine and 5 nortriptyline? 6 A. Yes, sir. Except, as I mentioned, it's possible 7 -- as you recall on that visit of August I told him to taper 8 the Trazodone, so it's still possible he had completed, so 9 that would not necessarily be one that he was taking when he 10 was not supposed to. The ones that should not have been there 11 is the imipramine, desipramine. And desipramine is a 12 metabolite of imipramine, so that's really from one 13 medication, and then the nortriptyline. 14 Q. All right. What makes you think that any of 15 these medications were found in his blood at all? 16 A. Well, they're on this sheet, sir. 17 Q. So, what? 18 A. Well, I don't think the lab would make an error 19 and detect something that may not be there. 20 Q. What makes you think the lab detected something? 21 A. That's what it says. 22 Q. What does it say? Explain to the jury what 23 these notations are by Trazodone, imipramine, desipramine and 24 nortriptyline, Doctor Coleman. 25 A. What this means to me is these were present in 111 1 his bloodstream and then they measure a level less than 25 2 micrograms per liter. Those are ones that are measured in his 3 system but at lower than a 25-microgram level. 4 Q. Okay. So is it your testimony that he could 5 have had Trazodone, which has a therapeutic effect of 400 to 6 1,000 micrograms, was less than 25 micrograms; right? 7 A. That's what it says on the sheet, sir. 8 Q. Okay. Less than 25, is that what UG/L means, 9 micrograms, or do you know, Doctor Coleman, what UG/L means? 10 A. I'm pretty positive UG stands for micrograms. 11 Q. How small is a microgram? 12 A. Well, the therapeutic range is also measured in 13 micrograms. 14 Q. How small is a microgram? 15 A. I'm going back to my high school math. It's 16 less than a -- I think it's -- well, a milligram is 17 one-thousandth of a gram, so a microgram I think is 18 one-ten-thousandth, as I recall, but I may be mistaken. 19 Q. How many micrograms would we have in our blood, 20 Doctor Coleman? 21 A. Of what? 22 Q. Of our total volume. How many micrograms of 23 blood do we have? 24 A. Sir, I don't have any idea. This is measured in 25 micrograms per liter. 112 1 Q. Okay. How many liters of blood do we have in 2 our body? 3 A. I don't recall. 4 Q. You don't know how many liters of blood we have 5 in our body and you're board certified in radiology and 6 psychiatry? Approximately how many liters of blood do we have 7 in our body? 8 A. Sir, I don't know if I can give an actual guess. 9 Two liters, maybe, three. 10 Q. Isn't it nine and a half? 11 A. If you've read about it, sir, you probably know 12 more than me. It's been a long time since I've looked that 13 up. 14 Q. How many pints of blood do we have in our body? 15 A. Sir, I don't know. 16 Q. Can you give me a rough estimate? 17 A. Sir, you seem to know the answer. I don't know 18 a rough estimate. 19 Q. Okay. We're to this test that you say gives you 20 some conclusion that he had these chemicals, these 21 antidepressants in his blood. It said -- that line that goes 22 like this in front of a number, let's say the number is 71. 23 The line that goes like this means less than, doesn't it? 24 A. Yes, sir. 25 Q. So, if you took the literal reading of less than 113 1 for, say, Trazodone, it would have to be 24 or nothing? 2 A. Yes, sir. 3 Q. Any in between 24 and including nothing; 4 correct? 5 A. No, sir; that's not correct. I look at blood 6 levels many times, and when a medication is on there, that 7 means it is there at some detectable level, so it would be 8 1 to 25, in my understanding. That would not be on there if 9 that was not detected in the bloodstream. 10 Q. Oh, you think so? Do you know that? 11 A. I know that from other blood levels and lab 12 reports similar to this that I do. 13 Q. Did you know, Doctor Coleman, that what happened 14 was, was that after this tragedy, the police went to Mr. 15 Wesbecker's house? 16 MR. STOPHER: Your Honor, may we approach the 17 bench on this? 18 (BENCH DISCUSSION) 19 MR. STOPHER: I object to this on the ground 20 that no foundation has been laid. There's no evidence in this 21 record as to what the police did and how this was collected 22 and where it was sent and so forth. 23 MR. SMITH: He's based that opinion on this 24 report. 25 MR. STOPHER: He's given you his opinion. 114 1 JUDGE POTTER: His objection is do you know how 2 this report came to be generated, and I guess maybe you ought 3 to give me an example of your question so I understand where 4 you're going. 5 MR. SMITH: Did any of the information that Mr. 6 Stopher supplied you indicate that the police went out to the 7 house of Mr. Wesbecker and saw and picked up some bottles of 8 pills? 9 MR. STOPHER: None of the information I gave him 10 shows that and he knows that and he's making up this scenario 11 without any foundation, and I object to putting this in in 12 this fashion. 13 MR. SMITH: See, what actually happened was, is 14 the police went out there, got some pills that were at his 15 house and wrote those down and they asked the lab to check for 16 them. 17 JUDGE POTTER: The Witness is saying he doesn't 18 know. He's given you what he thinks the report means. 19 MR. SMITH: I'm entitled to cross-examine him to 20 show that he's wrong, that there's another explanation for why 21 these -- 22 JUDGE POTTER: But you can't show it through the 23 questions. Objection sustained. 24 (BENCH DISCUSSION CONCLUDED) 25 Q. Do you know why these particular medications are 115 1 listed on this report, Doctor Coleman? 2 A. Do I know why? 3 Q. Yeah. 4 A. I would assume because they were detected in his 5 bloodstream. 6 Q. What if that assumption is wrong? 7 A. Then you would have to prove to me that it's 8 wrong. 9 Q. Well, let me give you an explanation, then, for 10 why it's wrong. 11 MR. STOPHER: Same objection, Your Honor. 12 JUDGE POTTER: We're hung up on how you ask the 13 question. Why don't you ask it "would it change your opinion 14 if." 15 Q. Would it change your opinion if there was none 16 of these blood levels present? 17 A. If there was -- if there had not been any other 18 medication detected in the system other than -- 19 Q. Yes, sir. 20 A. I think I would probably not consider mixing 21 medication necessarily a reasonable possibility. 22 Q. You would not what? 23 A. Well, as I mentioned, one of the possibilities 24 that might have explained his agitation at the time I saw him 25 on September 11th, based on this report, was that he had 116 1 possibly mixed medication or had at some point. Now, if I was 2 told definitely there was no other medication other than what 3 he had been prescribed at the time, I would tend to rule that 4 out as a possibility. 5 Q. What if I told you that the night before last I 6 called Julie at this laboratory, -- 7 MR. STOPHER: Objection, Your Honor. 8 Q. -- Medtech Laboratories -- 9 JUDGE POTTER: Okay. Mr. Smith. 10 (BENCH DISCUSSION) 11 MR. STOPHER: Your Honor, I object and I ask 12 that they be admonished to disregard that. He knew that that 13 is not in evidence; he knows not to put this in through a 14 question. And if he's going to call a witness later on, 15 that's permissible, but he just violated what the Court told 16 him to do, and I would request that the jury be admonished to 17 disregard that. 18 MR. SMITH: He has given an opinion that I 19 learned about yesterday. 20 JUDGE POTTER: You ask him would it change your 21 opinion if these were zeros and then you can call your witness 22 later. 23 (BENCH DISCUSSION CONCLUDED) 24 Q. Do you know what the sensitivity of the machine 25 was that tested this in 1989? 117 1 A. No, sir; I do not. 2 Q. Did you know that the machine that was used to 3 test for these drugs couldn't detect this medication? 4 A. No, sir; I do not. 5 Q. If you did know that, if that was a fact, that 6 these medications were not found in his bloodstream, would 7 that change your opinion concerning whether or not Mr. 8 Wesbecker's behavior on September 11th, 1989, was a result of 9 some mixing of medications? 10 A. Well, if I would know for a fact that no other 11 medications other than his prescription medications were -- 12 was in his blood at the time of his death, I would tend to 13 rule or to say then that was probably not one of the reasons 14 that he might be agitated. 15 Q. This test is the only evidence you have? 16 A. Well, at the coroner's inquest Greathouse had 17 said, you know, there was other medication in his system or 18 something to that effect, but I assume he's going by the same 19 information I have. 20 Q. If this is incorrect, you're incorrect; correct? 21 A. No, sir, not necessarily. That means they're 22 incorrect, but I had based one of the opinions on their 23 information. I said one of my opinions would be different if 24 this was incorrect. That's correct, sir. 25 Q. Of course, actually, imipramine is a tricyclic 118 1 antidepressant, is it not? 2 A. Yes, sir; that's correct. 3 Q. With a generally sedating property? 4 A. In some people. In some people it's got an 5 activating property. 6 Q. In most people it's got a sedating property, if 7 any property? 8 A. Well, I would not necessarily say most. 9 Probably 60 percent of people, if you consider that most. 10 Q. Well, would you agree more people, if they have 11 an activating or sedating side effect from imipramine it's 12 going to be sedating? 13 A. Well, sir, my personal opinion, I don't use 14 imipramine a lot because I think it makes people fairly 15 anxious. 16 Q. Then where did Mr. Wesbecker get the imipramine? 17 A. I had prescribed it to him sometime in the past, 18 but that's because he was on it when he first came to me and 19 it seemed to be working so I continued with it. 20 Q. Had it made him anxious at that time? It 21 hadn't, had it? 22 A. No. As I recall his first session, he was 23 anxious and agitated. 24 Q. But you say you continued him on imipramine, 25 didn't you? 119 1 A. Yes, sir. 2 Q. And it didn't increase his anxiety, did it? 3 A. I don't know that, sir. As you recall, when he 4 first came in, he did definitely have symptoms of anger and 5 agitation. 6 Q. Look at the next note. 7 A. Sir? 8 Q. Look at the next note. 9 A. In what? What are you referring to? 10 Q. In your office notes. 11 A. You mean following the initial visit? 12 Q. Yes. The note of 7-29-87. 13 A. Let me find it here. (Reviews documents) Okay. 14 Q. It says, "Patient states mood more even since 15 back on meds. Things a lot better at work. No side effects 16 of meds." Correct, sir? 17 A. That's correct, sir. 18 Q. All right. So the imipramine didn't make Joseph 19 Wesbecker angry or agitated, did it? 20 A. Not by itself, but if you would combine it with 21 something else it certainly could. 22 Q. Especially something like Prozac? 23 A. Or something like nortriptyline. 24 Q. Is nortriptyline an activating antidepressant? 25 A. It can be in some people. By and large, it 120 1 tends to have some sedating effect. 2 Q. By and large, nortriptyline is a sedating 3 antidepressant, isn't it, Doctor Coleman? 4 A. Well, you know, you can get in a particular 5 patient sedation and anxiety together so, you know, you're 6 trying to separate those as two different things. You can 7 have the same symptoms in the same person. By and large, most 8 people don't get a whole lot of sedation on nortriptyline. 9 Some people are very sensitive to that and can certainly be 10 sedated on it. 11 Q. How did Mr. Wesbecker get the nortriptyline? 12 A. I prescribed it to him. 13 Q. Did it cause him to be agitated or anxious? 14 A. Not in my opinion; no, sir. 15 Q. Did you note any agitation or anger? 16 A. There may have been times when he was on the 17 Pamelor I may have noted anger. I would have to look at the 18 records. 19 Q. Let's do. 20 A. I wouldn't necessarily have thought it was 21 related to the Pamelor, or nortriptyline, or the brand name, 22 which is Pamelor. 23 Q. So the fact is -- and we can cut through all of 24 this, can't we, Doctor Coleman, that you had prescribed all 25 these medications that are listed here; correct? 121 1 A. That's correct, sir. 2 Q. And none of them had had an agitating, 3 activating effect on him in the past, had they? 4 A. Not by themselves, no. 5 Q. All right. Isn't it still a fact, Doctor 6 Coleman, that the most probable reason for the deterioration 7 of Mr. Wesbecker, the anger, the agitation, the tangential 8 thoughts, is the Prozac still? 9 A. Not in my opinion, sir. 10 Q. Okay. What's more likely? 11 A. Well, if you want me to prioritize what I would 12 think the likelihood would be, my first would be that the 13 combination of medications that he was taking, including the 14 Prozac, if he had combined those medications together, they 15 certainly I think could have a very agitating effect. 16 Q. But you don't know he did, do you? 17 A. Well, I know if this toxicology report is 18 accurate that certainly at some point he did. 19 Q. Of course, if this toxicology report even were 20 accurate, all of the levels are way below any therapeutic 21 range, aren't they? 22 A. But he could have taken them four days before, 23 right before he saw me and then had stopped taking them and 24 they would have been in a low range. 25 Q. All these have a half-life of less than 12 122 1 hours, don't they? 2 A. Not Prozac, sir. 3 Q. Okay. Prozac is the only one that doesn't have 4 a half-life of less than 12 hours; correct? 5 MR. STOPHER: Your Honor, may we approach the 6 bench? 7 JUDGE POTTER: Mr. Smith. 8 (BENCH DISCUSSION) 9 JUDGE POTTER: I assume Mr. Stopher is going to 10 say something about your clients. 11 MR. STOPHER: He's right. 12 JUDGE POTTER: You need to have Ms. Zettler 13 speak to them. They have been kind of laughing, and maybe 14 laughing is too strong a word, but you've played to them very 15 well, so just have Ms. Zettler ask them to -- 16 MR. SMITH: I recognize that, and we had 17 cautioned them on other occasions about making a reaction. 18 I'm just wondering how to do it without it appearing obvious 19 to the jury. 20 JUDGE POTTER: You want to take a brief recess? 21 MR. SMITH: Maybe that would be best. 22 (BENCH DISCUSSION CONCLUDED) 23 JUDGE POTTER: Ladies and gentlemen of the jury, 24 we're going to take a 10-minute recess. As I've mentioned to 25 you-all before, do not permit anybody to speak to you or 123 1 communicate with you on any topic connected with this trial or 2 do not discuss it among yourselves or do not form or express 3 opinions about it. I tell you what; make it 15 because that's 4 what we do standard. All right? 5 (RECESS) 6 SHERIFF CECIL: The jury is entering. All 7 jurors are present. Court is back in session. 8 JUDGE POTTER: Please be seated. 9 Doctor, I'll remind you you're still under oath. 10 Mr. Smith. 11 Q. Doctor Coleman, if even there were 24 12 microliters of these sedating antidepressants, if you look 13 over in the right-hand corner of that page, each one of these 14 would be way, way below the therapeutic range, would they not? 15 A. You mean micrograms? 16 Q. Yes. 17 A. Yes, sir. That would be correct. 18 Q. Now, is the 400 to 1,100 there for Trazodone, is 19 that in micrograms or is that in milliliters? 20 A. Well, sir, it would be in the same units, which 21 is micrograms per liter. 22 Q. All right. But would you agree with me, sir, 23 that the -- even if it were 24 on each one of these 24 antidepressants, it would be far, far below therapeutic range 25 on each of the antidepressants? 124 1 A. Certainly would be well below the therapeutic 2 range. 3 Q. All right. Now, did I understand you to say in 4 answer to Mr. Stopher's question, Doctor Coleman, that you 5 felt that Mr. Wesbecker was having a gradual deterioration 6 throughout the time that you were seeing him? 7 A. As I said, from the first day to the last day I 8 would say overall his deterioration was certainly gradual. I 9 think as I also said, there were times that it seemed to be a 10 little bit better, but if you take the whole period of time 11 certainly it was a gradual deterioration. 12 Q. Well, you never note patient gradually 13 deteriorating, do you? 14 A. No, sir. 15 Q. In fact, you've testified that the change 16 between August 10th, when you put Mr. Wesbecker on Prozac, and 17 September 11th, 1989, when he last appeared in your office, 18 was a substantial change; correct? 19 A. It certainly was a significant deterioration; 20 yes, sir. 21 Q. We read the deposition testimony yesterday that 22 reflected a substantial change, didn't we, Doctor Coleman? 23 A. I would agree with that. It certainly was a 24 significant change from his previous visit. 25 Q. All right. Now, let's just look at each one of 125 1 these visits to see if it is indeed a gradual deterioration. 2 We've got his initial -- if you look at the 7-8-87 note, do 3 you have that there in front of you, Doctor Coleman? 4 A. Yes, sir. 5 Q. You say that the mental status exam shows him 6 irritable, anxious and pacing; correct, sir? 7 A. That's correct, sir. 8 Q. That was his condition when you first saw him, 9 wasn't it, sir? 10 A. Yes, sir; that's correct. 11 Q. All right. Then if you turn to the next time 12 you saw him, on July the 29th, 1987, do you see that, sir? 13 A. I think I have mine out of order. Wait a 14 minute. (Reviews document) Okay. Yes, sir. 15 Q. 7-29-87: "Patient states mood even more -- more 16 even since back on meds. Things a lot better at work. No 17 side effects of meds." Correct, sir? 18 A. Yes, sir; that's correct. 19 Q. Hadn't deteriorated in that period of time, had 20 he? 21 A. No, sir. 22 Q. Let's look at 11-11-87, four months later; 23 correct? 24 A. Yes. Well, three and a half months; yes, sir. 25 Q. All right. First sentence: "Mood has been 126 1 stable." Correct, sir? 2 A. Yes, sir; that's correct. 3 Q. Doesn't indicate to me that he's deteriorated 4 over that period of time, does it? 5 A. No, sir. 6 Q. 1-6-88 appears to be the next time you saw him; 7 correct? 8 A. 1-6-88. Yes, sir; that's correct. 9 Q. "Complained of continued level of depression." 10 Correct? 11 A. Yes, sir. 12 Q. I don't see deterioration there, either. 13 A. Well, I considered that deterioration because he 14 had been -- his mood had been stable before and now he's 15 complaining of depression again. 16 Q. Well, you say he complained of continued level 17 of depression. 18 A. Correct. 19 Q. That would indicate to me that his level of 20 depression had not grown worse. 21 A. Well, that's not the way that I intended and 22 that's not the way I read it, sir. 23 Q. All right. Would 4-6-88 be the next visit? 24 A. Yes, sir. 25 Q. "Patient continues to feel somewhat depressed." 127 1 A. Yes, sir; that's correct. 2 Q. Is there a deterioration between those last two 3 visits, Doctor Coleman? 4 A. Well, there could have been. I also reference 5 trouble with energy, trouble with sleep and lack of interest. 6 That could have been the same level of depression; it could 7 have been a little bit worse. 8 Q. All right. But no real deterioration, was 9 there? 10 A. No significant deterioration. 11 Q. Actually, the only significant deterioration 12 that you ever saw was between the time you put him on Prozac 13 and the time you next saw him; correct? 14 A. The only significant. But if you will recall 15 from the letter that I had written the disability, I said that 16 he had deteriorated over the four months prior to that letter. 17 Q. And I also recall that you testified earlier 18 yesterday that after he was on disability he seemed to 19 continue as being less depressed and that stressor was gone. 20 A. Sir, I don't think I testified that he was less 21 depressed; I said that his focus on work certainly was much 22 less. 23 Q. And seemed to be more stable? 24 A. I don't recall saying that he was more stable. 25 I recall saying that his anger at work certainly was 128 1 diminished. 2 Q. Which would make him feel better, didn't it? 3 A. It wasn't necessarily feeling better; that's why 4 we were still changing medications. 5 Q. Look at 7-21-88. 6 A. 7-21? 7 Q. Phone call. "Meds helping somewhat but wants to 8 increase." 9 A. Wait a minute. Let me find it, first. (Reviews 10 document) Was that on the same page? 11 Q. Yes, sir. Down at the bottom of the page. 12 A. Okay. 13 Q. Doesn't it say there, "Meds helping somewhat"? 14 A. Right. But that's what I'm referring to is we 15 had just started him on the Pamelor and nortriptyline the 16 month prior to that, and they seemed to be helping somewhat at 17 that time; that's correct. 18 Q. That tells me the meds were making him better. 19 A. Were making him a little bit better over his 20 prior visit; that's correct. 21 Q. So the person is not deteriorating if they're 22 getting better since their last visit, are they, Doctor 23 Coleman? 24 A. Right. And that's what I said. There were 25 times that he would get better for a period of time. 129 1 Q. Okay. In August of '88, he was having problems 2 at work and his condition was not good then, was it? 3 A. No, sir. 4 Q. In October of '88, he felt worse; correct? 5 A. Yes, sir. That's correct. And that was after 6 he was off of work. 7 Q. But then in November of '88, he reported to you 8 that the Trazodone was helping him feel less depressed prior 9 to this without side effects; correct? 10 A. Which date are you referring to, sir? 11 Q. November 3rd, 1988. 12 A. Right. He had called the day before with, he 13 felt, some reaction but he had thought that was an ampicillin 14 that he had taken, but I did say overall he thought -- of 15 course, the Trazodone had just been started not too long 16 before that, as well. 17 Q. And you say there in your note, "Felt Trazodone 18 was helping him feel less depressed prior to this without side 19 effects." Correct? 20 A. Correct. Usually when we would try a different 21 medication it seems like he initially would feel a little bit 22 better. 23 Q. So he was not deteriorating then, was he, 24 Doctor Coleman? 25 A. Not from the prior visit; no, sir. 130 1 Q. All right. Look at 12-12-88: "Patient feels 2 mood slightly better." Correct? 3 A. That's correct. 4 Q. Wasn't deteriorating then, was he, Doctor 5 Coleman? 6 A. No, sir. He was on more of an even keel at that 7 time. 8 Q. Look at 1-9-89: "States mood better." Correct? 9 A. Right. But still had trouble sleeping, and he 10 was complaining about visual illusions at that time. 11 Q. But he wasn't deteriorating at that time, was 12 he, Doctor Coleman? 13 A. Well, I think he had started complaining about 14 the visual illusions back in August, when he hadn't before; I 15 would consider that a deterioration. Plus, he got to the 16 point he wasn't able to work; that's certainly a 17 deterioration. But when you're comparing from visit to visit, 18 you're right, from the visit before he still felt like the 19 Trazodone was helping him at that time. 20 Q. In February he was having some problems with 21 visual illusions, correct, February 6th, February 20th? 22 A. Correct. 23 Q. By March 27th, '89, it says, "Patient feels 24 discontinue of Halcion has helped a lot. Feeling much better 25 with improved mood. More active, less upset by things." 131 1 Correct? 2 A. Yes, sir; that's correct. 3 Q. You even felt it appropriate at that time to 4 taper his lithium somewhat, didn't you? 5 A. He wanted to try that and I certainly was in 6 agreement because we felt like that might have been part of 7 his concentration problem. 8 Q. And he was getting better, wasn't he? 9 A. He felt like at that time that going off the 10 Halcion or changing the Halcion to the Restoril had helped 11 him. 12 Q. Well, wouldn't he be getting better if he 13 reported to you that he was feeling much better with improved 14 mood and that he was more active and less upset by things? 15 Wouldn't you say his mental status was improving? 16 A. At that visit he was certainly improving, but 17 that would be typical of, as you see, it seems like every time 18 he reports his mood improving is when we made a change of 19 medication. He would initially seem to get a little bit 20 better but then he would backslide again. 21 Q. He certainly didn't have any improvement when 22 you put him on Prozac in August of '89, did he? 23 A. You're jumping around now. You're going to 24 August of '89? 25 Q. Here they are, these last two notes. 132 1 A. Well, as you notice from my May of '89 note, 2 "Patient feels more depressed again." So, again -- there was 3 again he was not feeling as well. August of '89, he wasn't 4 feeling as well as he would look, and that's when I discussed 5 with him whether to accept his present level of functioning, 6 which he was not very pleased with, or to try something that 7 might even continue to improve, and that's when we decided to 8 start him on Prozac again. 9 Q. And that's when the bottom fell out, wasn't it? 10 A. I wouldn't use that term, sir. 11 Q. That's when you decided to hospitalize him? 12 A. At between then and the next visit is when -- at 13 least on the next visit is when that significant deterioration 14 had occurred; that's correct. 15 Q. Doctor Coleman, do you remember when your 16 deposition was taken on April 15th, 1993? 17 A. That was one of several. 18 Q. Do you remember you were asked the question -- 19 MR. STOPHER: Where are we, Paul? 20 MR. SMITH: Page 66, Line 18. "Did he ever get 21 better from, say, the end of '88 to the end of 1989? 22 "Answer: Yes. 23 "Question: He got better? 24 "Answer: He tended to have less anger, less 25 hostility. At times, he would say his mood was doing better." 133 1 Did I read that correct, sir? 2 A. That's correct. And that's exactly what we went 3 through there. 4 Q. In fact, he didn't deteriorate until you put him 5 on Prozac, did he, in all honesty, Mr. Coleman -- Doctor 6 Coleman? 7 A. I don't know when you're -- what period of time 8 are you referring to, sir? 9 Q. Right here in August of 1989 is when he 10 deteriorated, because that's the first time you ever note it, 11 isn't it? 12 A. No, sir. As I told you, I also had put that in 13 my letter to the disability in a year before in September of 14 1988. 15 Q. Okay. Let's talk about these letters that 16 were -- and this material that Mr. Stopher had that was in 17 your file. You said that you had no information and that 18 Mr. Wesbecker didn't tell you anything about his family or 19 things of that nature; correct? 20 A. No, sir. I didn't say that. 21 Q. Was that the implication, that he really didn't 22 tell you anything? 23 A. I said that he talked some about it but really 24 very little. 25 Q. In fact, you had all of these records that have 134 1 been marked 195-6, 195-5, 195-4, 195-3, 195-1. All of these 2 records -- 195-2 -- give you a detailed history on this man's 3 mental problems and his family situation, don't they? 4 A. They give a little bit more detail; certainly 5 there's not very much to them, either, compared to the past 6 life this man had had. 7 Q. Then why didn't you get more if all that you had 8 is a little detail on him? You're supposed to be treating 9 him, sir. 10 A. But I can't guess whether there's more material; 11 I can only ask him the questions and he can give me what he 12 wants to give me. But if he doesn't tell me something, I 13 don't know that there's more back there to ask. I'm not the 14 FBI to investigate this man. 15 Q. Did you ask him about more details? Did you 16 say, "Mr. Wesbecker, I don't think that all of these previous 17 discharge summaries and reports from psychologists and 18 psychiatrists that reflect your past mental history and 19 reflect your life situation are adequate and I just, in order 20 to treat you correctly, have got to have more information from 21 you." Did you ever ask him that? 22 A. No, sir. I never asked him that question 23 because there wasn't any reason to ask him that question. 24 Q. Because it wasn't necessary, in your opinion, to 25 treat his medical condition; correct? 135 1 A. Well, it may have been helpful to treat his 2 medical condition, but I can only go by the history that a 3 patient gives me; I can't force them to tell me something. 4 And I trust that what they tell me is what's true. 5 Q. The point is, you felt this was an adequate, 6 comprehensive-enough history for your purposes; isn't that 7 correct, Doctor Coleman? 8 A. At the time I felt it was adequate enough and he 9 certainly didn't tell me any more than that. 10 Q. And you've already testified you never got the 11 impression that Mr. Wesbecker was hiding something from you, 12 did you? 13 A. No, sir. I never felt in any of the sessions 14 that he was ever hiding anything. 15 Q. Are you of the opinion that Prozac cannot in 16 individuals cause violent-aggressive homicidal behavior? 17 A. I don't think that's been determined as a side 18 effect of Prozac. In my opinion, I cannot definitely say that 19 that's a side effect or that Prozac causes violent-aggressive 20 behavior; no, sir. 21 Q. Is there some question in your mind that it 22 maybe can? 23 A. Nothing that I've seen certainly goes along with 24 that that seems of any substantial scientific proof. 25 Q. When Mr. Stopher and Mr. Freeman met with you, 136 1 did they tell you that Doctor Beasley, Doctor Heiligenstein 2 and Doctor Masica and Doctor Wheadon had reported to the chief 3 scientific officer of Eli Lilly and Company that postmarketing 4 reports are increasingly fuzzy and we have assigned "yes, 5 reasonably -- 6 MR. STOPHER: Objection. May we approach, Your 7 Honor? 8 JUDGE POTTER: Mr. Smith. 9 (BENCH DISCUSSION) 10 MR. STOPHER: I didn't know about this 11 microphone thing. 12 MR. SMITH: The jury made me do it. 13 MR. STOPHER: Judge, I object to this on the 14 ground it's an internal memorandum that he's asking the 15 Witness about. This is some internal E-mail thing inside 16 Eli Lilly. 17 JUDGE POTTER: Mr. Smith, I think you can ask 18 him did they tell him a lot of things that might have some 19 effect on his opinion, but when we're getting down to really 20 microscopic details like this, I'm going to sustain the 21 objection. 22 MR. SMITH: Our position is this is not a 23 microscopic detail when they say we feel that caution should 24 be exercised. 25 JUDGE POTTER: This is one person's opinion 137 1 somewhere in the world. He's told you what he's got, so I'm 2 going to sustain the objection. 3 MR. SMITH: Can I ask him did they show him that 4 exhibit? 5 JUDGE POTTER: I think you can ask him that. 6 (BENCH DISCUSSION CONCLUDED) 7 Q. Doctor Coleman, did Mr. Stopher or Mr. Freeman 8 show you Plaintiffs' Exhibit 87 in connection with what Lilly 9 psychiatrists had said about the association in postmarketing 10 reports of Prozac and violent-aggressive behavior? 11 A. No, sir. I've never seen this before. 12 Q. All right. Did you testify this morning that 13 you felt like Prozac was a safe antidepressant and that your 14 patients hadn't had any real problems with the drug? 15 A. In my opinion and in my experience, Prozac is as 16 safe as any other antidepressant, and I've not had any other 17 patients that it seemed to cause any significant problems 18 with. 19 Q. All right. This is when your deposition was 20 taken on September 9th, 1993, Doctor Coleman, you were asked 21 the question, have you ever had a situation -- 22 MR. STOPHER: Where are we, Paul? 23 MR. SMITH: I'm sorry. Page 109, Line 12. 24 "Question: Have you ever had a situation where 25 you had somebody on Prozac, took them off because of 138 1 nervousness, put them back on Prozac and had to take them off 2 again? 3 "Answer: Most of them won't go back on it if 4 I've had to take them off because of nervousness. 5 "Question: Why not? 6 "Because they were so uncomfortable on it, they 7 don't want to try it again. 8 "Question: Have you ever had a situation where 9 somebody would go back on it and became nervous again? 10 "Answer: I can't recall a single person that, 11 One, I would even recommend it, or, Two, was willing to 12 consider going back on Prozac after they got nervous enough to 13 be taken off of it." Correct, sir? 14 A. Yes, sir. 15 Q. Do you remember that? 16 A. Certainly. 17 Q. On Page 96, Line 15, you were asked: "And in 18 some of these other" -- well, let's back up to Line 11, 19 Page 96. "You've testified earlier that you have prescribed 20 Prozac to other patients; correct? 21 "Answer: Correct. 22 "Question: And in some of those other patients, 23 you have observed side effects or adverse reactions similar to 24 those suffered by Mr. Wesbecker on September 11th, 1989; 25 correct? 139 1 "Answer: Well, I think I testified that I had 2 seen other people with sleep problems and with nervousness, 3 which Mr. Wesbecker was complaining about. I would not say I 4 saw exactly the same constellation of symptoms that he had, 5 but those particular side effects, nervousness and sleep 6 troubles, I certainly had seen. 7 "Question: Have you ever taken any of your 8 other patients off Prozac because of their reaction to the 9 drug? 10 "Answer: Yes. 11 "Question: On how many occasions? 12 "Answer: It would just be a guess. Numberwise? 13 "Question: Yes, If you can give me an idea. 14 "Answer: Eight or ten." 15 A. Correct. 16 Q. "Question: Can you tell me generally, without 17 being specific to a patient, what it was about the reactions 18 that you felt that made you feel it was necessary to take them 19 off the drug? 20 "Answer: The most common reason I have had to 21 discontinue Prozac seems to be the nervousness. Some people 22 it seems to make them extremely nervous and they usually call 23 me and say, 'I can't stand this medication. It's making me 24 very nervous.' That's probably 90 percent of the people who I 25 end up having to switch to something else. I have a very few 140 1 other occasions, one patient I recall felt very tired on it, 2 although we continued it for a period of time. That was the 3 reason we stopped on that one. I can't think of any other at 4 this time." 5 Then skipping down to Line 11: "Just give me 6 your best estimate, 50, 100, somewhere in that range? 7 "Question: Somewhere between 50 and 100." 8 Correct, sir? 9 A. Yes, sir. 10 Q. So at that time, you had had 50 patients to 100 11 patients on Prozac; you had had to take 8 of them or 10 of 12 them, maybe 20 percent, maybe 10 percent, off of Prozac 13 because they became so extremely nervous they couldn't stand 14 it; correct, sir? 15 A. That was my best guess of the numbers at that 16 time; that's correct. 17 Q. And they wouldn't go back on it? 18 A. Well, we have other antidepressants. I wouldn't 19 -- if someone has a problem with a particular antidepressant 20 and we have other choices I wouldn't choose one they had had 21 problems with unless they were unable to take over 22 antidepressants. So I would not suggest, hey, let's go back 23 on this one again; you've had problems with it, when we have 24 other choices. 25 Q. Well, let's talk about that. Page 109 of that 141 1 same deposition, Line 12, "Question: Have you ever had a 2 situation where you had somebody on Prozac, took them off 3 because of nervousness, put them back on Prozac and had to 4 take them off again? 5 "Answer: Most of them won't go back on it if 6 I've had to take them off because of nervousness." 7 MR. STOPHER: This is the exact same question 8 that was just read. 9 JUDGE POTTER: Asked and answered, Mr. Smith. 10 Q. Doctor Coleman, don't you make inquiry of your 11 patients generally what's going on in their life situation? 12 A. Are you talking about at every session or -- 13 you'll have to be more specific with your question, sir. 14 Q. Well, do you have a set of questions that you 15 ask your depressed people in connection with trying to help 16 them with their depression? 17 A. Usually I try to get a sense of what's going on 18 in their life because that helps me understand how their 19 depression or mood is doing; yes, sir. 20 Q. And isn't it important to know what kind of 21 stressors are present in their life? 22 A. Yes, sir; that's important to know. 23 Q. And don't you feel -- didn't you feel that you 24 were asking Joseph Wesbecker the right questions about wanting 25 to know what was important to his life? 142 1 A. Yes, sir. I felt I was asking the right 2 questions. As I've testified before, he tended to be a very 3 closed-type person, wouldn't always offer a lot about himself, 4 but I would ask the questions. 5 Q. Isn't that your purpose, to draw people like 6 this out so you can know what's going on with them so you can 7 help them? 8 A. But I can only do what they're willing to give 9 me. I can't force somebody to tell me what they're not going 10 to tell me. 11 Q. Well, you told us earlier that you never felt 12 like Mr. Wesbecker was hiding something from you. 13 A. I never felt like he was hiding something; 14 no, sir. 15 Q. Any other discussions or attempts that you might 16 have made to get Joseph Wesbecker to open up to you? 17 A. I'm not sure what kind of discussions you might 18 be referring to. You mean other than in the office? 19 A. Yes. Did you call him at home? 20 A. I would respond to his phone calls. He had 21 occasion to call me a time or two. 22 Q. But you never initiated a call to him? 23 A. Other than once he had -- he had called me, I 24 think there was one occasion when I had gotten a lithium level 25 back that was fairly high and I initiated a call to him to 143 1 talk about that problem. 2 Q. And, in fact, that's when you had Mr. Wesbecker 3 on Prozac in June of '88, and he was at an abnormal or a toxic 4 level of lithium at the time? 5 A. Well, I'll have to refer to my notes, sir. 6 Q. Do you see it? 7 A. I had started him on Prozac on 6-8-88, and 8 this -- let's see. The lithium level was reported actually on 9 6-14, and I had called him on 6-20 with the lithium level of 10 1.5, but he wasn't sure whether he had taken his lithium right 11 before he went in and had that blood test, which would make it 12 look higher than it really would be. 13 Q. So it may very well be that the problem of 14 6-20-88, was by virtue of his lithium level being too high? 15 A. His problem of -- which problem are you 16 referring to, sir? 17 Q. Lethargy, fatigue. 18 A. Well, I didn't consider that to be the problem 19 at the time, sir. I felt that he had probably taken his 20 lithium before he went in and had the test so, therefore, the 21 test, I felt, was not accurate. 22 Q. That was your impression? 23 A. That was my impression; yes, sir. 24 Q. Why did you think the test was not accurate? 25 A. Because he wasn't sure whether he had -- he 144 1 said, "Yes, I may have taken my lithium before I went in," and 2 you're not supposed to do that. It has to be -- the lithium 3 is normally taken -- it has to be 8 to 12 hours after the last 4 dose. If he had taken it right before he went in, it would 5 look high. What I did at that time was reduce his medication 6 and do another blood level, which actually was lower than it 7 had been, so my best judgment was he had taken the lithium 8 right before he went in and had the blood test. 9 Q. Couldn't the increased lithium account for the 10 fatigue that Mr. Wesbecker reported on June 29th, 1988? 11 A. Making the assumption that the 1.5 level was 12 accurate? 13 Q. Yeah. 14 A. Because I don't assume that to be accurate. But 15 if we assume that the 1.5 level was accurate, that's possible 16 that could be side effects of increased lithium; yes, sir. 17 Q. Between the first time and the last time you saw 18 Joseph Wesbecker, did you ever ask him if he wanted to hurt 19 somebody? 20 A. Between the first time and the last time? 21 Q. Yes. 22 A. No, sir; I did not. 23 Q. Did you ask him on the first time or the last 24 time if he ever wanted to hurt somebody? 25 A. I asked him on the first visit. 145 1 Q. Did you testify this morning that there was no 2 association, in your opinion, between suicide and violent- 3 aggressive behavior? 4 A. You'll have to read me my testimony but, as I 5 recall, I said that it was very unusual for them to be 6 associated together. It does happen, but it's in my 7 experience certainly unusual. 8 Q. Did Mr. Stopher or Mr. Freeman ever show you -- 9 MR. STOPHER: Can we approach the bench? 10 (BENCH DISCUSSION) 11 MR. STOPHER: I don't know that this is in 12 evidence, Judge, first of all; secondly, this appears to be a 13 letter or an E-mail thing from Charles Beasley to this list of 14 people at Lilly. I mean, he's already identified what I've 15 shown him; he's gone over it page by page and this is clearly 16 not in there, and it's just to get a question in front of the 17 jury on something that's not otherwise -- I mean, he can prove 18 it otherwise, I suppose, if he can get it in. 19 MR. SMITH: I ought to be entitled to 20 cross-examine him on his opinion that there's no association 21 between suicide and violent-aggressive behavior, and I ought 22 to be able to do that with Lilly's own documents. 23 JUDGE POTTER: Okay. Mr. Smith, I'm back to I 24 guess where I was before. I think it's well established what 25 Lilly gave him. I think you're entitled on sort of major-type 146 1 things to ask him if that would change his opinion, but when 2 we get down to individual documents it's clear that, you know, 3 Lilly didn't give him this. 4 MR. SMITH: Can I say would it change your 5 opinion to know that Lilly scientists have said -- 6 JUDGE POTTER: No. Because I don't think at 7 this stage it's reasonable to expect that one letter from one 8 person to another person somewhere in the world is going to 9 change the person's opinion, and I think the prejudicial value 10 and the confusion that's going to come from it is far 11 outweighed by any chance of success or probative value it's 12 likely to have. So I'm going to sustain the objection to 13 asking him about -- so the record is clear, it's the document 14 marked PZ 1015-263. 15 (BENCH DISCUSSION CONCLUDED) 16 Q. Doctor Coleman, are you aware of a wealth of 17 well-established scientific literature that associates the 18 same common neurobiological marker with inward-directed and 19 outward-directed violence? 20 A. Well, I'm not really exactly sure what you're 21 referring to, the same biological marker. 22 Q. Serotonin. 23 A. Do you have some reference to -- I realize there 24 have been some reports that serotonin certainly has some basis 25 to do with suicide and aggression and there actually have been 147 1 some reports that Prozac has even improved on those things. 2 Q. So there is an association, isn't there? 3 A. I don't know if I would call it an association, 4 sir. 5 Q. You just don't know about that? 6 A. I know there have been some reports. I don't 7 know if I would call it an association. 8 Q. Between suicide and violent behavior having the 9 same biological markers, be that inward-directed violence, 10 suicide, or outward-directed violence, homicide? 11 A. Well, I know there have been some reports that 12 have referred to serotonin, but you're taking a very complex 13 set of behavior and trying to simplify it to one biological 14 marker. I don't think you can do that. 15 Q. Isn't that what the Lilly scientists were doing 16 in that document? 17 A. I don't know what they were doing in this 18 document, sir. 19 Q. Mr. Stopher and Mr. Freeman never discussed that 20 with you in your meeting either in your lawyer's office or in 21 Mr. Stopher's office? 22 A. That being this form here, sir? 23 Q. That form there or this concept or this 24 scientific principle that inward-directed violence and 25 outward-directed violence have the same biological markers? 148 1 A. No, sir. They never mentioned anything about 2 that. 3 Q. Do you have a statement in your documents that 4 would reflect your total charges for Mr. Wesbecker? 5 A. Total charges? 6 Q. Yes, sir. 7 A. I have his billing card. I don't know if that 8 would necessarily reflect the total charges, but that's what 9 we would have billed him on, sir. Do you want to see the card 10 itself? 11 Q. Please. 12 A. Actually there's two of them here. 13 Q. Did you know that Mr. Wesbecker was being 14 reimbursed by the health-care provider for Standard Gravure 15 for your charges in connection with this, Doctor Coleman? 16 A. I don't know whether he was or not, sir. 17 Q. Let's see now. Let me see if I can understand 18 your testimony correctly. You saw Mr. Wesbecker on twenty-one 19 occasions over a two-year-two-month period of time; is that 20 right? 21 A. Yes, sir. 22 Q. You spent a total of 11 hours with him; correct? 23 A. Yes, sir. 24 Q. You were charging him $55 per one half-hour 25 visit; is that right? 149 1 A. His initial visit, as I recall, was 85 and 2 subsequent visits were 55. 3 Q. So we would have 20 visits at $55 a visit, 4 approximately? 5 A. Yes, sir. 6 Q. So that would be $1185; right. Is that right? 7 A. That's the best of my math just off the top of 8 my head. 9 Q. You charged Mr. Wesbecker $1185 for 11 hours of 10 work; correct? 11 A. Yes, sir. 12 Q. But you intend to charge Mr. Stopher or 13 Mr. Freeman or Eli Lilly and Company $4,000 to $6,000 for your 14 20 to 30 hours of work that you did for them in forming your 15 opinion, sir; is that correct? 16 A. And I hope to get compensated for that; yes, 17 sir. 18 Q. Do you hope to get compensated for your time 19 here yesterday and today? 20 A. As I said yesterday, I had not assumed that I 21 would bill them for that. 22 Q. Have you thought about that between yesterday 23 and today? 24 A. Not really, sir. 25 Q. So you think you'll probably bill them for 30 150 1 hours of work? 2 A. Well, I don't know the exact number. As I said, 3 it was 30 or possibly even more. 4 Q. Could it have been 40? 5 A. Could be. 6 Q. So if it was 40 hours, you would be charging 7 them $8,000; is that right? 8 A. If it was 40; yes, sir. 9 Q. So you spent, frankly, four times as much time 10 forming this opinion for Eli Lilly and Company as you did in 11 treating Joseph Wesbecker; isn't that right? 12 A. Probably spent much more time in depositions, 13 too, as well. 14 Q. And you're probably going to charge Eli Lilly 15 and Company eight times as much as you did Joseph Wesbecker, 16 correct -- 17 A. Something along that line; yes, sir. 18 Q. -- if you charge them $8,000? 19 A. But I like working with patients; I don't like 20 doing court work or working with attorneys. 21 Q. Your charge to do work for Eli Lilly and Company 22 was twice as much as you were charging Joseph Wesbecker; 23 correct? 24 A. But I wouldn't charge them any more than any 25 deposition in the office on any patient at all. That's my 151 1 charge for legal work. 2 Q. And you consider this legal work in working for 3 Mr. Stopher and Mr. Freeman? 4 A. I wasn't working for Mr. Stopher. I was 5 reviewing materials at their request. 6 Q. And you intend to bill them; correct? 7 A. As I would bill you if I received materials from 8 you to review. 9 Q. I tell you what, why don't you take your opinion 10 and send that to them with your bill. 11 That's all I have, Your Honor. 12 JUDGE POTTER: Mr. Stopher, anything further? 13 MR. STOPHER: Nothing further, Your Honor. 14 JUDGE POTTER: Thank you very much. You may 15 step down. You're excused. 16 Ladies and gentlemen, we'll take the afternoon 17 recess. As I mentioned to you-all before, do not permit 18 anybody to communicate with you on any topic connected with 19 this trial; do not discuss it among yourselves and do not form 20 or express opinions about it. We'll take a 15-minute recess. 21 (RECESS) 22 SHERIFF CECIL: The jurors are entering. All 23 jurors are present. Court is back in session. 24 JUDGE POTTER: Please be seated. 25 Mr. Smith, do you want to call your next 152 1 witness? 2 MR. SMITH: Your Honor, at this time, subject to 3 Eli Lilly and Company's representations to make certain 4 witnesses available to the Plaintiffs for cross-examination 5 during their case, the Plaintiffs rest. 6 JUDGE POTTER: Okay. Thank you, sir. 7 Ladies and gentlemen, what just happened or what 8 Mr. Smith said was that he's not going to call any more 9 witnesses at this point. Okay? And also what he said was 10 that Eli Lilly has told him that they're going to have certain 11 people here as part of Eli Lilly's case and, so, rather than 12 read depositions to you, he'll just put his evidence in by 13 cross-examining those people when they come later. 14 But I want to emphasize, though, what will 15 happen now is Eli Lilly will start calling witnesses, and just 16 because it's an hour and a half left in this day I'm going to 17 go ahead and take the evening recess. I want to reemphasize 18 something, and I think you'll remember I said this at the very 19 beginning; that no party owns a particular witness' testimony. 20 That testimony can come in and it helps who it helps and it 21 hurts who it hurts and it does what it does. Okay? And the 22 same thing is true of the Plaintiffs' case and the Defendant's 23 case. Just because some evidence came in in the Plaintiffs' 24 case does not necessarily mean that that can only be used to 25 help the Plaintiffs, and the evidence can come during the 153 1 Plaintiffs' case that helps the Defendant. I mean, you don't 2 have any trouble with that concept, do you? 3 I want to emphasize the back half of that is 4 during the Defendant's case the evidence doesn't necessarily 5 always have to help the Defendant; the evidence can come in 6 and help the Plaintiffs. All right? The evidence comes in 7 and the people bring it forward, and who it helps and who it 8 doesn't help really has very little to do with who calls the 9 witness or what part of the case it comes in; it has all to do 10 with what the evidence is. So I'm going to ask you-all to 11 keep that in mind. 12 There's kind of a tendency and a point in a case 13 like this when the Plaintiffs rest to say, "Well, I've heard 14 everything the Plaintiff has to say, now let's see what the 15 other side has to say." All the evidence comes in and you'll 16 consider it all. And I think that's particularly true perhaps 17 in a longer trial, where there's a tendency to -- in a two-day 18 trial it all happens so quick it's all right in your mind, 19 when you hear it you don't try to sort it out. So the reason 20 I reemphasize that is in one respect Eli Lilly started putting 21 on their case with the first witness and they'll finish with 22 the last, and Mr. Smith started putting on his case with the 23 first witness and he won't be finished till the last witness. 24 I'm going to give you-all the same admonition 25 I've given you before. I'll remind you tomorrow will be a 154 1 half day. Do not permit anybody to talk to or communicate 2 with you on any topic connected with this trial, and any 3 attempt to do so should be reported to me. Do not discuss the 4 case among yourselves or form or express opinions about it 5 until it is finally submitted to you for your determination. 6 We'll stand in recess till 9:00 tomorrow morning. 7 (JURORS EXCUSED AT 3:22 P.M.; 8 HEARING IN CHAMBERS) 9 JUDGE POTTER: There are at least two things. 10 Mr. Stopher, I take it you've given them a witness list, have 11 you? 12 MR. STOPHER: I've given them a witness list and 13 several depo designations. 14 JUDGE POTTER: But you're going to be live 15 tomorrow? 16 MR. STOPHER: Right, sir. 17 JUDGE POTTER: I take it all these people are? 18 MS. ZETTLER: Some of them are live, some of 19 them aren't. 20 JUDGE POTTER: I don't see Ms. Wesbecker on 21 here. 22 MS. ZETTLER: Here she is. 23 JUDGE POTTER: Brenda King. All right. 24 MS. ZETTLER: She's on her third. 25 MR. SMITH: We need to know some order. 155 1 MR. STOPHER: She'll be here tomorrow. 2 MS. ZETTLER: So it's going to be all morning? 3 MR. SMITH: Give us Monday, too, so we can work 4 on the weekend. 5 MR. STOPHER: Let me fax it to you because I 6 can't honestly remember. Let me take a look (Reviews 7 document). 8 MR. SMITH: We don't want to be bored this 9 weekend; we want to have something to do. 10 MR. STOPHER: I honestly cannot remember, and if 11 I guess I'll get them wrong, so let me fax them to you. I've 12 got them listed. 13 JUDGE POTTER: The other thing that was brought 14 up is Lilly wants to use an attorney -- another attorney, who 15 is apparently already admitted in this case to practice, to do 16 the direct and cross-examination of some Lilly experts or 17 scientists; is that what it is, Mr. Freeman? 18 MR. FREEMAN: Yes. 19 JUDGE POTTER: What is his name? 20 MR. FREEMAN: John McGoldrick. 21 JUDGE POTTER: And he's from Indianapolis; is 22 that right? 23 MR. FREEMAN: No, sir. He's from Newark, 24 New Jersey. 25 JUDGE POTTER: Mr. Smith, do you have any 156 1 problem with that person doing the examination, 2 cross-examination of -- examination and redirect? They'll 3 tell you ahead of time which witness it is. 4 MR. SMITH: Yes, I do, Your Honor. 5 JUDGE POTTER: What basis? 6 MR. SMITH: That Mr. Freeman has been here and 7 introduced to the jury in voir dire and has been told by Lilly 8 that he was going to be conducting the case, along with Mr. 9 Stopher and Mr. Myers for Lilly. To bring in somebody else at 10 this time is inappropriate. We haven't been able to know 11 whether or not the jury will associate with Mr. McGoldrick or 12 whether they know him, know his firm. You know, he's coming 13 in here cold. 14 There have been a lot of rulings and motions in 15 limine that have been altered, changed, you know. It's just 16 inappropriate. Mr. Freeman is co-national counsel for Eli 17 Lilly and Company. Mr. Freeman or Mr. Myers have both either 18 together or separately presented these witnesses. Mr. Freeman 19 presented the former chairman of the board, the last two 20 former chairmen of the board. I just object to Mr. McGoldrick 21 coming in at this time. Mr. Freeman is a nationally 22 recognized attorney of competence, and I like him better than 23 Mr. McGoldrick. I mean, it would be almost like I brought 24 in -- 25 MR. FREEMAN: That's because I'm easier, Judge. 157 1 MR. SMITH: No. Seriously, there is no reason 2 whatsoever to allow them to change from one thoroughbred to 3 another thoroughbred in the middle of this trial. 4 MR. FREEMAN: The one main reason I think that I 5 would like to have at least the option to doing that, I hate 6 to get up and leave a trial while it's going on because I feel 7 like that the jury thinks that I'm not interested in the 8 witnesses that are being presented or they don't understand 9 that I'm off doing other preparatory work for presentation of 10 witnesses. This is not going to be anything terribly 11 extensive except that he will present some of the technical 12 witnesses from Lilly, including Doctor Tollefson and perhaps 13 Doctor Wernicke and maybe Ray Fuller. But I will still be in 14 the case for purposes of the closing argument, for purposes of 15 doing all those things that are done in court except for just 16 those examinations. 17 JUDGE POTTER: And I take it Mr. McGoldrick has 18 never lived in Louisville or anything like that; is that 19 right? 20 MR. STOPHER: Yes, sir. 21 JUDGE POTTER: My reason for introducing the 22 attorneys in the beginning is that if they become closely 23 associated with the case somebody might say, gee, that's my 24 mother's lawyer and, you know, have some bias. The chances of 25 someone knowing Mr. McGoldrick are infinitesimal, although I'm 158 1 sure they're connected with him by -- what do they say, 2 everybody's connected by the fifth degree. 3 So over the Defendant's (sic) objection, 4 provided that the Plaintiffs are given a couple days' notice 5 or you tell them what witnesses it is -- and I'm only doing 6 that just so it won't be confused and surprising -- I'm going 7 to allow Mr. McGoldrick to examine witnesses for Eli Lilly. 8 Is there anything else we need to take up today? 9 MR. MYERS: Judge, I have a housekeeping matter. 10 We tendered the medical records of Mr. Wesbecker the other day 11 subject to inspection by the Plaintiffs, and I understand that 12 Ms. Zettler had some concerns. And I guess we ought to go 13 ahead and get that resolved since that exhibit is 14 conditionally in evidence. 15 MS. ZETTLER: Why don't you let me get through 16 the entire thing. I've noticed some problems like 17 correspondence naming other defendants and things like that I 18 don't think are appropriate to be in there, but I'd like to 19 take a look at it. 20 JUDGE POTTER: Let her get through the whole 21 thing. 22 MR. MYERS: All right, sir. 23 JUDGE POTTER: And I'm assuming 195-1 through -7 24 were excerpts from what's in the big file; is that correct? 25 MR. STOPHER: Yes. That's the reason I numbered 159 1 them that way. 2 JUDGE POTTER: I'm going to ask that we wait to 3 bring it up until she's gone through it and you-all have had a 4 chance to talk about it. 5 MR. MYERS: Yes, sir. Be glad to. I'll be glad 6 to come here and be here at 7:30 in the morning. 7 MR. SMITH: I object to Mr. Myers' abusing 8 Ms. Zettler, Your Honor. 9 MS. ZETTLER: That's right. It's 10 unprofessional, and I think I deserve an apology. 11 JUDGE POTTER: Any other matters we need to 12 discuss? 13 MR. SMITH: The lady from Court TV has again 14 requested that we provide her with a copy of what happened 15 yesterday morning, and I'm -- unless the Court instructs me 16 not to -- going to give it to her. 17 MR. STOPHER: What happened yesterday morning? 18 MR. SMITH: Doctor Coleman's questioning in here 19 yesterday morning. 20 JUDGE POTTER: I said yesterday that it's a 21 public record. Each of you is free to do what you want. I 22 just ask you to kind of coordinate it. If, Mr. Smith, you 23 maybe -- you-all work it out, but maybe you can tell them 24 that's the only thing you plan to give her. You-all try to 25 work it out because I don't want that to become a side issue. 160 1 (PROCEEDINGS TERMINATED THIS DATE AT 3:35 P.M.) 2 * * * 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 161 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 prior to giving testimony the witnesses 8 were first duly sworn; that said testimony was taken down by 9 me in stenographic notes and thereafter reduced under my 10 supervision to the foregoing typewritten pages and that said 11 typewritten transcript is a true, accurate and complete record 12 of my stenographic notes so taken. 13 I further certify that I am not related by blood 14 or marriage to any of the parties hereto and that I have no 15 interest in the outcome of captioned case. 16 My commission as Notary Public expires 17 December 21, 1996. 18 Given under my hand this the__________day of 19 ______________________, 1994, at Louisville, Kentucky. 20 21 22 23 24 _____________________________ 25 NOTARY PUBLIC 162 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