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, NOVEMBER 17, 1994 15 VOLUME XXXVIII 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 Hearing In Chambers on Deposition Objections............. 4 4 WITNESS: DANIEL_HUGH_MATTINGLY _______ ______ ____ _________ 5 By Mr. Stopher........................................... 25 6 By Mr. Smith............................................. 49 By Mr. Stopher........................................... 60 7 By Mr. Smith............................................. 62 8 WITNESS: ANN_DETLEFS_MINCH,_L.C.S.W. _______ ___ _______ ______ ________ 9 By Mr. Stopher........................................... 66 By Mr. Smith............................................. 83 10 WITNESS: MICHAEL_DOUGLAS_SHEA (By Video Deposition) _______ _______ _______ ____ 11 By Mr. Stopher........................................... 93 12 WITNESS: REBECCA_WADE _______ _______ ____ 13 By Mr. Stopher........................................... 98 14 By Ms. Zettler...........................................100 15 WITNESS: JOHN_HENRY _______ ____ _____ 16 By Mr. Stopher...........................................102 By Mr. Smith.............................................108 17 By Mr. Stopher...........................................114 By Mr. Smith.............................................115 18 * * * 19 Reporter's Certificate...................................117 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 North, First Trust Centre Louisville, Kentucky 40202 12 FOR THE DEFENDANT: 13 EDWARD H. STOPHER 14 Boehl, Stopher & Graves 2300 Providian Center 15 Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. LAWRENCE J. MYERS 17 Freeman & Hawkins 4000 One Peachtree Center 18 303 Peachtree Street, N.E. Atlanta, Georgia 30308 19 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, November 17, 1994, at approximately 7:38 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 MS. ZETTLER: Let me say I don't know how much 11 this will cut through this, but this man has not been 12 designated as an expert in this case. He renders all kinds of 13 opinions that are done in retrospect, and second of all, I 14 don't think he can be qualified to render the opinions that he 15 has in several of these instances. 16 JUDGE POTTER: All right. He is one of the 17 people that treated Mr. Wesbecker or he just tested Mr. 18 Wesbecker? 19 MS. ZETTLER: He just tested him, Judge. 20 MR. MYERS: He administered certain 21 psychological tests to him, which is what he does. 22 MS. ZETTLER: And he spent a total of two hours 23 with him. Most of it was the testing, ten minutes of 24 interview. 25 JUDGE POTTER: All right. Where's the first 5 1 objection? 2 MS. ZETTLER: Page 7. It starts at Page 7 on 3 Line 17, and goes through Page 8 at Line 4. 4 MR. MYERS: Four? 5 MS. ZETTLER: Yeah. Well, I guess it would be 6 Line 7. I'm sorry. 7 JUDGE POTTER: Okay. 8 MS. ZETTLER: Well, actually it does go through 9 Line 4 because really basically what I was saying here is just 10 that, you know, why are you in town on this particular 11 occasion and the lawyers all appreciate you being there and... 12 JUDGE POTTER: I'll leave it in if he wants to 13 brag about being a past president and stuff. Next page. 14 MS. ZETTLER: Okay. The next one is Page 17, 15 starting at Line 18, going through Line 7 on Page 18. Our 16 objection there is it's nonresponsive and it's speculative. 17 This man is not qualified to render the opinion that he's 18 giving here. He has not been disclosed as an expert in this 19 case. 20 JUDGE POTTER: This guy's a Ph.D. clinical 21 psychologist; right? 22 MR. MYERS: Yes, sir. 23 MS. ZETTLER: He's a doctor of philosophy and 24 psychology, Judge. And I'll find you a cite where he says 25 that he talked to the guy for ten minutes. 6 1 JUDGE POTTER: Well, okay. But this -- go 2 ahead. 3 MR. MYERS: In answer to the question, "I have a 4 doctorate in clinical psychology," that's the answer to the 5 Court's question. 6 MS. ZETTLER: And then later on in the 7 deposition he says -- 8 JUDGE POTTER: All right. But that goes to his 9 weight. If he wants to define dependent and paranoid people, 10 he can. 11 MS. ZETTLER: That's not the problem here, 12 Judge. The problem is he's talking about Mr. Wesbecker as if 13 these are diagnoses that he made of Mr. Wesbecker. 14 JUDGE POTTER: All right. Let me see. 15 Paranoid, very dependent man who's extremely angry, that's 16 his... 17 MR. MYERS: That's what he says up at Line 6. 18 JUDGE POTTER: Right. 19 MR. MYERS: And he says, "What does it mean?" 20 JUDGE POTTER: I assume this note is something 21 that doctor -- the consultation note that you filed in 22 hospital records and placed -- all right. He's explaining his 23 own note. Overruled. 24 MS. ZETTLER: Starting on Page 20 -- I'm sorry, 25 Page 20, Line 14, going through 21, Line 12. Again, this man 7 1 is not qualified. He's speculating. 2 JUDGE POTTER: Wait just a second. Okay. This 3 is the same thing. He's explaining a note that he read, this 4 long-standing perceptual handicap. He reads it on 19, 5 explains it, so that's overruled, too. 6 MS. ZETTLER: But, Judge, on 21 he says they're 7 easily distractible, they're not effective in certain areas, 8 and I could speculate that this could have been a factor in 9 his developing his mistrust of other people because kids laugh 10 at other kids who can't do things skillfully, and he's just 11 going on and on, and it's speculation and admitting it. 12 MR. MYERS: That goes to the weight of it. 13 JUDGE POTTER: Well, he's explaining what his 14 evaluation is. The next one. 15 MS. ZETTLER: Page 22, Line 9 through 22. 16 MR. MYERS: I'm sorry? 17 MS. ZETTLER: Page 22, Line 9 through 22. 18 Again, he's speculating. 19 JUDGE POTTER: Wait. Wait. I have to read. 20 This is schizoid. Okay. I'm tempted to sustain that one 21 simply that on the grounds that when it's read it won't make 22 any sense, but if he's trying to explain something, he can, by 23 example. 24 MS. ZETTLER: Page 24, Line 11 through 15. 25 Again, that's in the middle of an answer, but he's speculating 8 1 and he's nonresponsive. 2 JUDGE POTTER: Okay. Overruled. 3 MS. ZETTLER: Page 25, Line 7 through 18. It's 4 nonresponsive. He's starting to talk about organic deficits 5 now. He admits he's not a medical doctor. Also, this is 20 6 points, not 30 points, if you look at his errata sheet. It 7 had better be changed in the reading. 8 JUDGE POTTER: Yeah. She's right. The math is 9 off. Is there an errata sheet? 10 MS. ZETTLER: Yeah. He changes it in his errata 11 sheet, Judge. 12 JUDGE POTTER: Okay. So be sure and mark the 13 copy because I'm going to allow him to read that. So it's a 14 20-point differential? 15 MR. MYERS: Yes, sir. 16 MS. ZETTLER: Actually, the objection extends 17 from Line 19 through 25. 18 JUDGE POTTER: Well, he's just giving examples 19 and explaining what he said. I don't think he's gone outside 20 of what he said. 21 MS. ZETTLER: Judge, I know you haven't had the 22 opportunity to read this deposition completely, but to put it 23 into context, this man is speculating retrospectively. These 24 are not things that he was talking about when he originally 25 did this. Now he's coming up with reasons why this stuff 9 1 could happen, and it is speculating like crazy. He admits 2 throughout this thing that he's speculating. He admits that 3 he saw the guy for ten minutes. He admits he wasn't treating 4 him. His sole purpose was to administer these tests. And 5 instead of reading into the record and authenticating and 6 establishing what the tests were, what the scores were, 7 they've got this guy speculating all over the place. He never 8 once says that any of these opinions are connected up to this 9 event as a substantial factor. It's just highly prejudicial 10 and highly improper. 11 JUDGE POTTER: Well, he may be ad-libbing or 12 something that he really can't remember him, but he's taking 13 his report, he's fleshing it out. Everything he says is an 14 example of what schizoid means, an example of what paranoid 15 is. He clearly says that's an example, it's not this man. 16 The other times he's saying, "In this particular man I found 17 that I couldn't establish rapport. His was a very significant 18 20-point differential, which makes you wonder because he was 19 in a field where he was working with his hands, and I can see 20 where that would be very stressful to him." That is a 21 perfectly legitimate explanation of what he found. 22 Obviously when he wrote this report, he was not 23 trying to explain his findings in relation to some other 24 things he knew. He was just giving them and other people were 25 supposed to be able to interpret them, whoever his -- what was 10 1 he, a treating psychiatrist, would have been able to say a 2 20-point deficit for a person that works with their hands, et 3 cetera, is stressful. But he is qualified to say it, and if 4 he wants to explain it, he can. 5 MS. ZETTLER: This man is being treated like an 6 expert; he was not disclosed as an expert. 7 JUDGE POTTER: Well, he's a treating physician 8 and he is telling what his observations were. 9 MS. ZETTLER: Then on Page 27, Line 23 through 10 25, going on to 28, Lines 1 and 2. 11 MR. MYERS: 23 or 22? 12 MS. ZETTLER: In the middle of 23, "This is my 13 view." 14 MR. MYERS: To where? 15 MS. ZETTLER: To Line 2 on Page 28. 16 JUDGE POTTER: Wait. I don't know where we are. 17 MR. MYERS: One more page, Judge. 18 JUDGE POTTER: Oh, we start at 27? 19 MS. ZETTLER: 27, yeah. 20 MR. MYERS: Yes, sir. 21 MS. ZETTLER: Down at the bottom where it says 22 this is -- 23 MR. MYERS: This is my... 24 MS. ZETTLER: Larry. 25 JUDGE POTTER: All right. I got it. I got it. 11 1 I got it: What do you mean by total immobilization. Okay. 2 He's still explaining his reports. 3 MS. ZETTLER: Well, he's gone beyond his report. 4 He's saying, "I think occasionally he would reach this point 5 and say 'I can't do anything.'" This is not part of his 6 testing; he didn't even take a history on this man. He's 7 completely speculating at this point. 8 JUDGE POTTER: All right. 9 MS. ZETTLER: Page 29, Line 12, through Page 30, 10 Line 9. 11 JUDGE POTTER: I mean, it's the same thing. 12 They ask him, "You said he had a borderline personality with 13 paranoid features. What is a borderline personality as it 14 relates to Mr. Wesbecker?" You know, he explains exactly what 15 he means. He even says, "I don't know what the books mean, 16 but the way I was seeing it..." Overruled. 17 MS. ZETTLER: Page 30, Line 24, starting with 18 "I'm talking about" -- 23, I guess: "I'm talking now about 19 psychotherapy," going through Page 31, Line 20. 20 JUDGE POTTER: It's still the same. Overruled. 21 MS. ZETTLER: Our objection to that is it's 22 irrelevant and he's not qualified to render an opinion. He's 23 speculating completely. Page 34, Lines 13 through 17. 24 JUDGE POTTER: Okay. I'll sustain 34. It's 25 sort of a gratuitous aside. 12 1 MS. ZETTLER: Page 35, Lines 1 through 11. 2 JUDGE POTTER: Wait. 34, that leaves us without 3 a question. 4 MS. ZETTLER: I'll withdraw that one, Judge. 5 JUDGE POTTER: You have one winner and you 6 withdraw it? 7 MS. ZETTLER: Well, hopefully there will be 8 others later on. It gets a lot worse, Judge. 9 JUDGE POTTER: All right. 10 MS. ZETTLER: Page 35, Lines 1 through 11. It's 11 irrelevant. 12 JUDGE POTTER: Okay. I'm sustaining it for the 13 same reason I sustained the one before. 14 MS. ZETTLER: Okay. Page 39, starting at 15 Line 11, where it says, "Now his memory was very bad," going 16 through Line 18. He's not qualified to render an opinion. 17 MR. MYERS: I think this goes back to the direct 18 exam. The question was, "What is it," and he explained what 19 it was and how it applied. 20 JUDGE POTTER: Yeah. That's what that test 21 tests is your... So that's overruled. 22 MS. ZETTLER: All right. On Page 40 at Line 18, 23 on his errata sheet he changed "no" to "not." 24 MR. MYERS: I'm sorry? 25 MS. ZETTLER: It said "no psychotic" on 13 1 Page 40; he changed that to "not psychotic." 2 JUDGE POTTER: He was not schizophrenic, 3 schizoid -- 4 MS. ZETTLER: And then he says, "Schizoid, not 5 psychotic," that's right, instead of "no psychotic." 6 MR. MYERS: Do you have his errata with you? 7 MS. ZETTLER: It's attached to his deposition. 8 MR. MYERS: Okay. 9 MS. ZETTLER: 43, Line 6 through 20. 10 MR. MYERS: What is the objection, just so I 11 understand? 12 MS. ZETTLER: It's irrelevant what other doctors 13 would or wouldn't do with his method. 14 JUDGE POTTER: That's overruled. 15 MS. ZETTLER: Okay. Page 45, Line 10, through 16 47, Line 15. 17 MR. MYERS: What is the objection? 18 MS. ZETTLER: That he's gone beyond his report 19 now. Now he's saying, "I should have done this, I should have 20 done that." He's speculating. What he now thinks is 21 irrelevant. 22 JUDGE POTTER: Take me to the end with your 23 objections, Ms. Zettler, because I may want to look at it all 24 as kind of a continuum. 25 MS. ZETTLER: Okay. I mean, generally, this 14 1 whole thing. I'm getting picky about lines and stuff, but... 2 JUDGE POTTER: Give me your lines and stuff. 3 MS. ZETTLER: Oh, okay. 47 starting at the 4 bottom where it says "law" in the corner, going through all of 5 Page 48, all of Page 49, all of Page 50 -- let's see -- all of 6 Page 51, all of Page 52 to the top of Page 53. 7 MR. MYERS: Which line? 8 MS. ZETTLER: Line 6. 9 MR. MYERS: So I can just read it, what is the 10 objection? 11 MS. ZETTLER: He's gone way beyond the scope of 12 his notes. He admits in here repeatedly he's speculating. 13 JUDGE POTTER: He does start a lot of his 14 sentences. Let me read it and see what we've got. 15 Okay. I'm going to sustain Page 45, Line 10, 16 through Page 47, Line 15. That's her first objection in its 17 entirety. 18 The second objection, I'm going to sustain the 19 part at Page 52 -- let me see where I have to break it to make 20 sense. Start at Page 51, Line 25, through Page 53, the end of 21 Mr. Stein's examination. I haven't had a lot of judge 22 training, but when a person starts off his answer with, 23 "That's pure speculation on my part," it gives me a clue. So 24 what I've tried to do is cut out his philosophizing or 25 speculating that, you know, because he didn't get picked on 15 1 the baseball team that carried through his whole life and led 2 to homicidal acts. 3 MS. ZETTLER: There'd be a lot of mass murderers 4 out there. 5 JUDGE POTTER: Well, you know, I'm dealing with 6 what he said now. I mean, if he came in live, you know, he 7 might be able to dress it up and say I see it, and he might 8 have been permitted to testify, but the way it's presented 9 there, he says twice that it's... 10 MR. MYERS: Is that all on this one? 11 JUDGE POTTER: Yeah. 12 MS. ZETTLER: I think so, but let me 13 double-check. 14 JUDGE POTTER: He might have even gotten away 15 with it when he said, "I probably should have put it in my 16 report," but then he comes back later and says "pure 17 speculation." 18 MS. ZETTLER: Let's see. Page 57, Line 10, 19 through 58, Line 14, again, he's speculating. 20 JUDGE POTTER: All right. 21 MR. MYERS: Does he say that? 22 MS. ZETTLER: Uh-huh. 23 MR. MYERS: Where? 24 MS. ZETTLER: "Just so I understand, you did not 25 speculate at the time." 16 1 JUDGE POTTER: Okay. That one has to come back, 2 that objection has to come back and start with the question on 3 Page 56. 4 MS. ZETTLER: Okay. 5 JUDGE POTTER: Because that's the lead-in to it. 6 So I'm going to sustain Page 56, Line 25, through Page 58, 7 Line 14. 8 MS. ZETTLER: One last one on this guy. This 9 thing at the end, Page 59, starting at Line 5 through 14. 10 JUDGE POTTER: I tell you what. I'm going to 11 take out all of Mr. King's examination because it's just too 12 wound up with what he testified to before. So 56, Line 25, 13 through Page 59 -- 14 MR. MYERS: Through the end? 15 JUDGE POTTER: Through the end; right. Who is 16 Mr. King. 17 MR. MYERS: Mr. Bubalo's partner. 18 MS. ZETTLER: The other two outstanding besides 19 the doctor depositions that I got the day before yesterday are 20 Mr. Rothenburger, who we need to establish is really 21 unavailable because he's here in Louisville, and Mr. Rakow 22 because we need to get some sort of a ruling. 23 JUDGE POTTER: We've got everything done through 24 Friday, is that right, that we went over yesterday? 25 MS. ZETTLER: Yeah. 17 1 MR. MYERS: That's right. 2 JUDGE POTTER: All right. Let's knock out a 3 quick one. 4 MR. MYERS: Mr. Jackson is short. 5 JUDGE POTTER: All right. Let's do Mr. Jackson. 6 Who is Mr. Jackson? 7 MR. MYERS: He's a gentleman who used to work at 8 Fawcett. 9 MS. ZETTLER: Yet another pressman ex-friend, 10 Judge. 11 JUDGE POTTER: But this is someone that knew him 12 way back? 13 MR. MYERS: Way back; yes, sir. 14 MS. ZETTLER: Right. Just like the two guys 15 that were with him on yesterday. 16 JUDGE POTTER: Page 5. 17 MR. MYERS: That's fine. We'll take that out. 18 JUDGE POTTER: Page 16, 23 and 24. 19 MS. ZETTLER: Yes. 20 MR. MYERS: Judge, the next series of objections 21 has to do with leading questions, and our position is that 22 they should have been cured at the time. 23 JUDGE POTTER: Okay. How can you object to a 24 leading question when the answer is opposite to the way you 25 were leading him? 16 and 17 are overruled. 19. Let's see 18 1 what we've got on 19, 11 through 16. Overruled on 19. 2 20, 1 through 5. Okay. I'll sustain that simply because -- 3 is there going to be any other evidence that he was ever 4 called Pinky? 5 MR. MYERS: I think there's enough pressmen left 6 that I wouldn't rule that out, Judge. 7 JUDGE POTTER: Well, we'll let them talk about 8 it. 9 MR. MYERS: We'll read the designations on 20, 10 21 and 22. 11 JUDGE POTTER: Okay. 23. Overruled 23. 12 25. 25 is overruled. 13 MS. ZETTLER: Can we make a record of this? 14 JUDGE POTTER: Uh-huh. 15 MS. ZETTLER: 23, Line 6 through 8, our 16 objection was leading. 25, Lines 8 through 17, our objection 17 is calls for speculation and leading. 18 JUDGE POTTER: 28. Mr. Myers, what do you say 19 about the gratuitous thing? 20 MR. MYERS: Judge, I don't know how gratuitous 21 or not it is. This guy knew him way back and they were 22 friends, and I don't really know that it is a gratuitous 23 comment. 24 JUDGE POTTER: I think that's more of a layman's 25 way of explaining something, rather than a... 19 1 MS. ZETTLER: Okay. Our objection to that one 2 is it was nonresponsive. I mean, gratuitous isn't the thing. 3 JUDGE POTTER: Well, okay. We come up at the 4 end of 28. 5 MS. ZETTLER: And it spills over to 29. It 6 should spill over to 29. I'm sorry. It should go from 28, 7 Line 23, through 29, Line 1. 8 JUDGE POTTER: I'm overruling that. 9 MS. ZETTLER: Okay. And our objection was it 10 was leading. 11 JUDGE POTTER: 31. 12 MS. ZETTLER: It's 31, Lines 4 through 8. 13 MR. MYERS: Okay. Where it starts, "But when I 14 saw him"? 15 MS. ZETTLER: Yeah. 16 MR. MYERS: This all goes to his observation of 17 Mr. Wesbecker. 18 MS. ZETTLER: Well, our objection is it's 19 nonresponsive. The question is, "Sometime after 1976, I take 20 it," and then he goes on to this diatribe. 21 JUDGE POTTER: Well, I kind of have the same 22 problem with nonresponsive that I do with leading. I mean, 23 it's the kind of thing that if you brought it up at the time, 24 whoever is examining this fellow, I guess it's Mr. Stopher or 25 Mr. Foley, would say, "Did you see him after that?" 20 1 "Yes, I saw him in 1976," or whatever and would 2 get it out another way. 3 MS. ZETTLER: But he's asking him here about 4 stocks and investing, Judge, and all of a sudden he launches 5 into this thing about "was he on Prozac; I don't know." And, 6 you know, I mean, it's just completely off the subject. 7 JUDGE POTTER: But then he picks up on the 8 thing. So will you read the in-between stuff for 9 completeness? Overrule 31 and you're giving them the rest of 10 31? 11 MR. MYERS: Yes, sir. And we'll read the other 12 designation on 31. So we're going to read 31. 13 JUDGE POTTER: And how about 32, 3 through 19? 14 MR. MYERS: We'll read that. 15 JUDGE POTTER: All right. 38, 23 and 24. 16 MR. MYERS: Yeah. That's just an answer. 17 MS. ZETTLER: Wait a second. There's something 18 wrong here. 19 MR. MYERS: Yeah. Because you can't spill over 20 into 39 here. 21 MS. ZETTLER: Yeah. Something's wrong. 22 JUDGE POTTER: Well, I tell you what. I think 23 what she means is she wants to take out, "I think after he got 24 down to Standard he just worked all the time." So if he 25 didn't -- 21 1 MR. MYERS: So you're sustaining the second 2 sentence? 3 JUDGE POTTER: Sentence, yeah. 39. 39 is 4 overruled. 48. 5 MR. MYERS: I'll read that. 6 JUDGE POTTER: Okay. 54, 9 through 23. 7 MR. MYERS: Judge, 54 is kind of a historical 8 thing, getting him from Fawcett over to Standard. 9 JUDGE POTTER: Well, let me read the lead-in to 10 it. Okay. I'm going to overrule 54, the first 54, and will 11 you read the rest of it? 12 MR. MYERS: Yes, sir. 13 JUDGE POTTER: 54 and 55 will be read? 14 MR. MYERS: Yes, sir. 15 JUDGE POTTER: 57. When do you stop reading, 16 Mr. Myers? 17 MR. MYERS: At Page 59, Line 1. 18 JUDGE POTTER: Okay. Let's see what we've got, 19 57, 14 through 21. 20 MR. MYERS: We'll read 57, 14 to 21. That's in 21 the middle of an answer. 22 JUDGE POTTER: Okay. How about 58? 23 MR. MYERS: We'll read that. The rest, though, 24 are after we quit. 25 JUDGE POTTER: Okay. Ms. Zettler, after he 22 1 quits, If you want to stand up and -- 2 MS. ZETTLER: Well, Judge, the problem is, is 3 this stuff all tied in to what they've already -- 4 JUDGE POTTER: That's right. So when he sits 5 down at Page 59, you can stand up and read the rest of it and 6 the same witness will be on the stand and answer. 7 MS. ZETTLER: All right. Can you have your 8 witness prepared to read that? 9 MR. MYERS: Uh-huh. 10 JUDGE POTTER: Uh-huh. And what I need you to 11 do, Mr. Myers, look and see if there's anything you want to 12 add. 13 MR. MYERS: Beyond that? 14 JUDGE POTTER: Uh-huh. 15 MR. MYERS: There's not. 16 JUDGE POTTER: Okay. I mean, to make hers 17 complete. 18 MR. MYERS: No. That's fine. 19 JUDGE POTTER: Okay. Well, is the other one 20 real short or not? 21 MR. MYERS: It's longer. 22 JUDGE POTTER: Well, it isn't really how long 23 the deposition is, the issue is how long this page is. 24 MR. MYERS: There's quite a list on those. 25 JUDGE POTTER: Why don't we do that one tomorrow 23 1 morning? 2 MS. ZETTLER: Tomorrow morning? Oh. Can we do 3 some of these later in the day to accommodate my sleeping 4 schedule for a change? Because, you know, I've got to stay up 5 until 2:00 reading this stuff. 6 JUDGE POTTER: No. As they say in the shop, 7 I've got the pencil. 8 MS. ZETTLER: Power of the pencil. Okay, Judge. 9 (HEARING IN CHAMBERS CONCLUDED; THE FOLLOWING 10 PROCEEDINGS OCCURRED IN OPEN COURT) 11 SHERIFF CECIL: All rise. The Honorable Judge 12 John Potter is now presiding. All jurors are present. Court 13 is now in session. 14 JUDGE POTTER: Please be seated. 15 Good morning, ladies and gentlemen of the jury. 16 Did anybody have any problems with my admonition? Is there 17 anybody I haven't called on? Is there anybody that feels 18 neglected? 19 How about you, Ms. Jones? 20 JUROR JONES: No. No problems. 21 JUDGE POTTER: Let me suggest -- offer one thing 22 to you. First of all, the documents that you give my sheriff 23 at the end of the day and she puts on that cart are locked 24 away where nobody has any access to them. And as far as the 25 box you have, no one sees that. And I don't want to suggest 24 1 that any documents you have anyone will look at them, but what 2 I will like to offer you is that on the Thanksgiving break, if 3 you would like, the documents that are in your cardboard box, 4 I would have my secretary come over and organize them for you. 5 And the simple thing that you -- maybe you put the Plaintiffs 6 in one folder or the Defendants in another folder and put them 7 in order. I would let her look at it, you know, to decide how 8 she'd do it. And she'd do it the same for everybody. I'll 9 give you that to think about. And I don't know, some of you 10 may have taken a lot of notes on your exhibits. You know what 11 I mean. You just have to decide how you feel. If you want 12 your box looked at and pull some things out and put them on 13 the cart that Sheriff Cecil has, then she will organize what's 14 left in the box. 15 I'll offer that to you and don't let me forget 16 tomorrow to bring it up again so if anybody wants to take 17 advantage of that offer you can. Okay? I know with pieces of 18 paper, 10 pieces of paper is one problem, 20 isn't necessarily 19 twice, it's about four times as bad, and 40 is four times as 20 bad. It seems to go up very quickly as you get more pieces of 21 paper, trying to keep track of them. 22 Mr. Stopher, do you want to call your next 23 witness? 24 MR. STOPHER: Yes, Your Honor. Dan Mattingly. 25 JUDGE POTTER: Mr. Mattingly, if you want to 25 1 hand your coat to my sheriff she can set it there on the 2 chair. Do you want to raise your right hand, please, sir. 3 4 DANIEL MATTINGLY, after first being duly sworn, 5 was examined and testified as follows: 6 7 JUDGE POTTER: Okay. Would you walk around, 8 have a seat in the witness box, state your name loudly and 9 then spell it for me, please. 10 MR. MATTINGLY: My name is Daniel Hugh 11 Mattingly. D-A-N-I-E-L, H-U-G-H, M-A-T-T-I-N-G-L-Y. 12 JUDGE POTTER: Okay. And if you'll keep your 13 voice up like you've been doing and answer Mr. Stopher's 14 questions. 15 16 EXAMINATION ___________ 17 18 BY_MR._STOPHER: __ ___ ________ 19 Q. Mr. Mattingly, where do you live, sir? 20 A. I live at 2138 Trevilian Way, here in 21 Louisville. 22 Q. And how old are you, sir? 23 A. Fifty-two. 24 Q. And by whom are you presently employed? 25 A. I work for the Louisville and Jefferson County 26 1 Human Relations Commission. 2 Q. And what is your title with the Louisville and 3 Jefferson County Human Relations Commission? 4 A. I am a compliance officer; that's also referred 5 to as an investigator. 6 Q. Briefly, what is a compliance officer with the 7 Louisville and Jefferson County Human Relations Commission? 8 A. It is our job to investigate charges of 9 discrimination in the workplace, in housing and in public 10 accommodations. In my case, mostly it's in employment. 11 Q. Mostly in the workplace then? 12 A. Yes, sir. 13 Q. Mr. Mattingly, would you tell us about your 14 background, beginning first of all, sir, with your education, 15 college and from that point forward, if you would, please. 16 A. I have a Bachelor's Degree in philosophy and a 17 Bachelor's Degree in theology, both of those are from St. 18 Mary's Seminary in Baltimore. The philosophy degree was in 19 1964, theology in 1966. 20 Q. And after you got your degree in theology in 21 1966, how generally were you employed or occupied, sir? 22 A. Well, there was two more years of formal 23 education after that, working toward a Master's Degree which I 24 did not complete, but then in 1968, I was ordained a Catholic 25 priest and served in the active ministry for about five years. 27 1 Have not been in the active ministry for a long time. 2 Q. Mr. Mattingly, since that time, have you been 3 employed in the private sector, that is, not related to the 4 church? 5 A. Yes, sir; I have. I've had several jobs. I've 6 run businesses. I've owned -- my wife and I have owned a 7 business. I have worked as a milkman and I have run a dairy. 8 Q. Mr. Mattingly, about when did you become 9 employed by the Louisville and Jefferson County Human 10 Relations Commission? 11 A. I started there in March of 1987. 12 Q. And did you start there as a compliance officer? 13 A. Yes, sir. 14 Q. And that's the capacity in which you're still 15 employed? 16 A. Yes, sir. 17 Q. Mr. Mattingly, let me ask you if you would very 18 briefly describe for us the general procedure that's involved 19 when a person makes a complaint to the Jefferson County -- 20 Louisville and Jefferson County Human Relations Commission and 21 generally how it progresses from the time it first starts 22 until the time of completion or resolution, sir. 23 A. An individual will call our office or walk into 24 our office alleging a complaint that they have been 25 discriminated against. And we take -- at that first contact 28 1 we take a lot of information. We get statistical data. We 2 also take information on the company. We try to find out why 3 they think they've been discriminated against. 4 In most cases, we turn them away. We say, in 5 effect, "Well, perhaps what happened to you was unfair, but it 6 was not illegal." But assuming that a person does have or at 7 least is alleging an illegal act by a company, we will then 8 send them on their way, we will -- the complaint will be 9 assigned to an investigator who will write up the complaint, 10 call that person, make sure everything is true and correct, 11 have them come in, sign it. 12 We then send a copy of that complaint to the 13 respondent, the company. They have time in which to respond, 14 normally two weeks, and we begin investigating. It is our job 15 to be as objective, as neutral as possible. It is not our 16 job, at least before there is any kind of finding, to be on 17 anybody's side, but just to try to determine whether or not an 18 illegal discrimination has occurred in a particular case. 19 Q. Now, Mr. Mattingly, if the complaint is found to 20 justify -- or if the allegations are found to justify a 21 complaint, the complaint is signed and filed, then there's a 22 response. What generally are the procedural steps from that 23 point on? 24 A. We will get usually a written response from the 25 company. Then normally -- let's assume it's my case. I would 29 1 send a thing we call a data request letter looking for such 2 things as workforce breakdown and looking for comparable 3 employees. Then at some point after I get a response from the 4 company answering those questions I might go on site, go to 5 the job and interview people. I might interview management 6 people or co-workers or call people at home to interview them. 7 Then when we think we have gathered enough evidence to decide 8 whether or not there is probable cause to believe that 9 discrimination occurred, we write up a recommendation, send it 10 to a panel of commissioners. The commissioners are laypeople 11 appointed by the mayor and the Judge. There is a panel -- a 12 monthly panel who sits down to decide each case, to decide 13 whether or not there is probable cause to believe that 14 discrimination has occurred. 15 Q. And then if there is a finding of probable cause 16 by that commission, what -- what happens next? 17 A. If they find probable cause, then it comes back 18 to my desk and it becomes my job to write a thing we call a 19 probable cause letter in which we spell out to the company the 20 finding and why we found probable cause. It is then my job -- 21 the reason it comes back to my desk is not just to write this 22 letter, but it then becomes my job to try to conciliate some 23 sort of agreement between the two parties to try to get them 24 together. Many times, this would be a financial settlement, 25 but not necessarily financial. If I cannot get the two 30 1 parties together in some kind of agreement, then, and only 2 then, would one of our cases go to public hearing. The last 3 figure I saw on that was that only about five percent of our 4 cases ever go to public hearing. 5 Q. Now, sir, with regard to Joseph Wesbecker, was 6 he ever a complainant with the Louisville and Jefferson County 7 Human Relations Commission? 8 A. Yes, sir. 9 Q. And were you involved with him, sir? 10 A. Yes, sir. 11 Q. Let me show you a document that you produced for 12 me and I have marked as Defendant's Exhibit 369, sir. Do you 13 recognize this document, sir? 14 A. Yes, sir. This is a log, my log, on the Joseph 15 Wesbecker case. 16 MR. STOPHER: Your Honor, we move the admission 17 of Defendant's Exhibit 369 and ask that it be published to the 18 jury. 19 JUDGE POTTER: Be admitted. 20 SHERIFF CECIL: (Hands document to jurors). 21 Q. Mr. Mattingly, this is headed up at the top, Log 22 of Investigative Settlement Actions; Respondent, Standard 23 Gravure; Charging Party, Joseph T. Wesbecker. Correct? 24 A. Yes, sir. 25 Q. It begins, sir, with incident date and sworn 31 1 date and then I see out to the right "entered by J. Paten" on 2 both dates. 3 A. Yes, sir. 4 Q. What does that refer to, sir? 5 A. Mr. Wesbecker came into our office on the 14th 6 of May to lodge a complaint. So once we lodge that complaint, 7 we settle on the day before that as the date of incident. He 8 was alleging that there was an ongoing -- that there was 9 ongoing discrimination being employed against him at work, so 10 we took the date prior to the day he walked in as the date of 11 the incident. 12 He came back a week later to read that 13 complaint, to be sworn in and to sign it, and so that's why 14 you see the reference to May the 21st. J. Paten is one of our 15 secretaries, and in all our cases these first two incidents, 16 the incident date and the sworn date are logged in by the 17 secretary. 18 Q. Now, sir, when, then, did you first meet with 19 Joe Wesbecker? 20 A. On May the 14th, 1987. 21 Q. And can you tell us, sir, what you recall about 22 that meeting with him on May 14th, 1987? 23 A. Well, he came in complaining that he was being 24 discriminated against on the job by the company that he worked 25 for. His complaint revolved around his assertion that his 32 1 supervisors were forcing him to work on a machine at work 2 called the folder, and that when they did not force him to 3 work on that machine they were threatening to make him work on 4 that machine and that he was a person with an emotional 5 illness. He told me he had been diagnosed as being manic 6 depressive, three, three and a half years before this, and 7 that he had a statement from the company psychologist saying 8 that he should not be made to work on this folder, which was a 9 stressful machine, unless absolutely necessary. But that even 10 though he had this statement from the psychologist, the 11 company officials were making him work the folder and, more 12 than that, threatening to make him work the folder. And he 13 saw that as discrimination because he was being treated 14 differently from employees who had physical ailments. 15 He was maintaining that the company would make 16 exceptions for people with physical ailments and not make them 17 work the folder, but they would not make an exception for him, 18 who had an emotional problem, and therefore discrimination. 19 And that was his basic argument. 20 Q. With regard to his statements on that date, sir, 21 did he give you any names of people at work or discuss any 22 specifics of foremen or supervisors? 23 A. Yes. He mentioned that Donald Cox was his 24 general foreman and there were two immediate supervisors, 25 Popham and McKeown. He gave examples. I think he said that 33 1 Mr. Popham kept insisting that there was really nothing wrong 2 with him and that, "If we need to put you on the folder, we 3 will." And that Mr. McKeown said things like, "All you need 4 to do is just tough it out and do your job." 5 You see, he maintained that they were using his 6 handicap against him, because if they threatened him he would 7 go home and worry about that and stew and fret over it. And 8 so it became a problem even when he was away from the job 9 because he was afraid when he went back in they were going to 10 make him do that. 11 Q. Did he discuss the work environment at Standard 12 Gravure with you, sir? 13 A. Well, he had a theory about what caused his -- 14 his problem, and that was related to the work environment at 15 Standard Gravure. 16 Q. How so? 17 A. He told me that for the last 15, 17 years, 18 whatever it is he had worked there, that he had been exposed 19 to a chemical called toluene, and he brought with him copies 20 of pages from a magazine that discussed the effects of being 21 exposed to toluene, and they indicated that extended exposure 22 can destroy the central nervous system, and his theory was 23 this is why I am the way I am and he handed me this article 24 for me to read. Toluene, as I understand, is a solvent. I'm 25 not sure what they used it for and I don't think that it had 34 1 anything to do with the folder, it was just if you worked at 2 Standard Gravure you were exposed to this. 3 Q. What was it, sir, that he wanted when he came to 4 your office, sir? 5 A. He wanted not to have to work on the folder. He 6 wanted, as he saw it, to be treated like several of his 7 co-workers who were exempt from working on the folder. He 8 said, "This man doesn't have to work on the folder because 9 he's color blind; this one doesn't have to work because he's 10 had brain surgery; this one doesn't have to work because he's 11 had heart surgery; and I don't want to have to work on that 12 folder because I am" -- he described himself as a safety 13 hazard in a stressful situation because he was on a lot of 14 heavy medication. He told me that day that he was taking four 15 doses of lithium and four antidepressants a day, and he said, 16 "If I have to work that folder, I'm a safety hazard. And 17 these other people are exempt from the folder because of 18 physical reasons; I should be exempt because of emotional 19 reasons." 20 Q. Did he want a temporary exemption or -- 21 A. No. He wanted it for life. He wanted the 22 company to say in writing we will never ask you again to work 23 on the folder. 24 Q. Mr. Mattingly, do you recall him in that first 25 meeting on May 14, 1987, as far as his appearance and the way 35 1 he acted or behaved, sir? 2 A. Yes. He was -- he was nervous. I might 3 describe him as high strung. Seemed intelligent and 4 articulate and believable. Seemed credible enough. 5 Q. About how long, sir, do you think that meeting 6 with him lasted on that date? 7 A. We do not keep a log. We do not clock people in 8 or out, so it's a guess, but I would guess close to an hour. 9 Q. Did he make any statements to you or did you 10 make any observations about him as to what his attitude 11 generally was towards his employer in that first meeting? 12 A. He had a lot of hostility toward his supervisors 13 and toward the company. Because of what I described earlier, 14 he thought the supervisors were using his handicap against 15 him, and he saw the company as they are -- these supervisors 16 are representatives of the company. The company is doing 17 nothing to stop them from harassing me and, therefore, the 18 company, too, is at fault. That was his attitude. 19 Q. Mr. Mattingly, let me show you next a copy of 20 Plaintiffs' Exhibit No. 1. The jury already has a copy of 21 this, sir. Let me ask you to take a look at it and tell us 22 what it is, sir. 23 A. Well, the first page is basically a form where 24 we just filled in the blanks. You know, we put Joseph 25 Wesbecker's name and his address, Standard Gravure's address 36 1 and phone number. But the second page is the complaint that I 2 wrote that I would call -- that I'm sure I called Mr. 3 Wesbecker and read it to him over the phone and said, "Now, is 4 everything in this true and correct, because when we have you 5 sign it it has to be that way." And so he would verify, yes, 6 this is true and correct and then I would say, "Okay. At your 7 earliest convenience come on in, look it over, sign it and 8 then we'll start the process." But this is the complaint that 9 we had him sign on May the 21st and is the basis for our case. 10 Q. This is, if I understand you correctly, sir, a 11 complaint that you wrote and then he signed it at the bottom 12 stating, "I swear or affirm that I have read the above charge 13 of alleged discrimination and that it is true to the best of 14 my knowledge, information and belief"? 15 A. Yes, sir. We swear them in and then we notarize 16 the complaint afterwards. 17 Q. Now, sir, let me next show you a copy of a 18 document that has been marked as Plaintiffs' Exhibit No. 4. 19 And after you've had a chance to look at it, sir, would you 20 tell us what it is? 21 A. (Reviews document) I mentioned earlier that we 22 send the complaint to the company and then they have -- we 23 give them two weeks in which to respond. A lot of times 24 they'll ask for an extension. But what we have here is this 25 is the initial response from the company. We sent them this 37 1 complaint that Mr. Wesbecker signed. This is their response, 2 and they're basically arguing that he's a journeyman and that 3 as a journeyman this is part of his job. They give the job 4 description and prerequisites for the job. 5 Q. Now, sir, did you -- I believe this is addressed 6 to you, so this became then the response of the company to the 7 complaint of discrimination? 8 A. That is correct. 9 Q. Mr. Mattingly, let me refer you now back to the 10 log which has been marked as Defendant's Exhibit 369. And 11 would you look at the entry dated June 16, 1987? 12 A. Yes, sir. 13 Q. Would you read that for us, please, sir? 14 A. It says, "Meeting with Warman. She is to get 15 back to me with company answer." This response on June the 16 9th is from Paula Warman, and so after I received this, I got 17 on the phone and called her and we set up a meeting between 18 the two of us for June the 16th at her place of business at 19 Standard Gravure. 20 Q. And this meeting on June the 16th was attended 21 by who, sir? 22 A. Just she and I. 23 Q. Do you recall that meeting, sir? 24 A. Yes, I do. 25 Q. Can you tell us to the best of your recollection 38 1 what occurred at that meeting and particularly what was said? 2 A. Well, the clearest memory that I have of that 3 meeting is something I said and then something that she 4 responded. In the course of the meeting I told her that, "I'm 5 sure you're not going to want to hear what I'm about to say 6 and I know the company is not going to want to hear it, but in 7 my opinion, before you put Mr. Wesbecker on the folder you 8 ought to shut it down, because putting him on the folder is 9 endangering -- could be endangering his life and the lives of 10 the people around him." Her response was she agreed with the 11 first part. She said, you know, "The company is not going to 12 want to hear that, and we cannot make an exception for Mr. 13 Wesbecker because his job -- because we have a union contract, 14 and the union contract says this is his job description, and 15 we cannot make an exception. Not only -- even if we wanted 16 to, the union would not let us make an exception for this 17 man." 18 Q. When you said, "I'm sure you're not going to 19 want to hear this or the company is not going to want to hear 20 this," and then said, "Before you put Mr. Wesbecker on the 21 folder you ought to shut it down," did I state that correctly 22 as you just did, sir? 23 A. Yes, sir. 24 Q. Shut what down, sir? 25 A. Well, the folder, and if the folder meant 39 1 shutting the plant down, shut the plant down, too. But in my 2 opinion, it would have been -- it was -- it would be creating 3 a dangerous situation to put him in that stress, in that 4 stressful condition. 5 Q. Why so, sir? 6 A. Well, two things. Physically, he had told me, 7 "I am a safety hazard in a stressful situation because I'm on 8 all this medication." You know, he had told me he was on four 9 doses of lithium and four antidepressants a day. And just 10 from a physical point of view, if -- I should tell you I've 11 never seen the folder, okay, but his description was of a 12 machine that apparently things happened pretty quickly and 13 that's why there was so much stress involved. It took a lot 14 of concentration, and I thought that physically it would 15 create a safety hazard. And also emotionally, he had told me 16 he was manic depressive. The company psychologist had said he 17 shouldn't be on this job unless absolutely necessary. I 18 agreed with the psychologist, that in these circumstances, he 19 could -- he could snap. Anything could happen. 20 Q. Mr. Mattingly, did Ms. Warman disagree with your 21 statements or the accuracy of your statements to her? 22 A. I do not remember her disagreeing with the 23 accuracy of the statement. She -- from her point of view, she 24 saw it as an impossibility -- the request as an impossibility, 25 that the company, first of all, didn't want to make this 40 1 exception and, secondly, because of the union contract wasn't 2 able to make this exception. We did not get into a 3 discussion -- she did not specifically address whether or not 4 it would be a danger to put him in that situation. All she 5 addressed was this is the boundaries I've got to work within, 6 and with the union contract and with company policy I cannot 7 make -- we cannot make this exception. 8 Q. Now, sir, going back to the log which is 9 Defendant's Exhibit 369, I see on the next date, 6-29-87. 10 What is that about, sir? 11 A. Well, C means complainant, and complainant, 12 that's Joe Wesbecker. "Complainant called asking about 13 status," the status of his case. So on that day Mr. Wesbecker 14 called me and said, "What's happening on my case," and I'm 15 sure at that point because this was two weeks after my meeting 16 with Ms. Warman, I said, "Well, I had a meeting with Paula 17 Warman a couple weeks ago and this is what we talked about. 18 And she's supposed to send me some data and I'm waiting for 19 that data now, and when I get it I'll get back to you." 20 Q. Then if I understand correctly, in a document 21 that is Plaintiffs' Exhibit No. 5, let me show you a copy of 22 that, sir. This is apparently a letter dated July 23, 1987, 23 from you to Paula Warman. Can you briefly describe what this 24 is, sir? 25 A. This is what is referred to in the log as data 41 1 request. This is what we call a data request letter. She had 2 not gotten back to me with the information that we had 3 discussed in June, and so the end of July I sat down and wrote 4 her this letter. The important points here are light duty. 5 She and I had discussed -- I had told her that Mr. Wesbecker 6 was alleging that there were other employees who were granted 7 light duties, other employees who were exempted from the 8 folder, and had asked her to look into that and to get back to 9 me with a list. And since I had not received it, I sent this 10 letter. And if you'll notice, Number Two is asking for all 11 employees given light duty for any reason and then a copy -- 12 Number Three is a copy of the company's personnel policy 13 governing assignment of light duty. 14 Q. Let me next show you a copy of Plaintiffs' 15 Exhibit No. 6. And this is a letter to you from Paula Warman 16 on August 7, 1987, sir? 17 A. That is correct. 18 Q. Take a look at the second paragraph, sir, and 19 would you read it out loud for us, please, sir? 20 A. "It is the company's contention that manic 21 depression is a condition rather than a handicap; therefore, 22 your request for a workforce breakdown indicating those who 23 are handicapped is irrelevant." 24 Q. Take a look, sir, at the second page and the 25 next-to-the-last sentence. Would you read it out loud for us, 42 1 please, sir? 2 A. The beginning of that paragraph? 3 Q. The last sentence in that -- 4 A. "But we cannot"? 5 Q. Yes, sir. 6 A. "But we cannot in good conscience exempt him 7 from this duty permanently." 8 Q. Was this in response to your request for data 9 that was just discussed as Plaintiffs' Exhibit 5, sir? 10 A. Yes, it was. 11 Q. Let me show you Plaintiffs' Exhibit No. 7, sir. 12 This is a letter from you to Standard Gravure, attention Paula 13 Warman, dated August 24, 1987; correct, sir? 14 A. That is correct. 15 Q. Would you read the first two paragraphs of that 16 letter, sir? 17 A. "Pursuant to your letter of August the 7th, 18 1987, I think I should point out that Mr. Wesbecker's, quote, 19 condition, unquote, as you call it, is not the issue here. 20 The local ordinance forbidding discrimination in the workplace 21 clearly applies to handicaps, both physical and mental." 22 Mental is underlined. "The only question at issue is to what 23 extent, if any, does Standard Gravure make accommodations for 24 its handicapped employees. The commission is not in the habit 25 of letting complainants or respondents decide what information 43 1 in an investigation is relevant or irrelevant. The respondent 2 who refuses to cooperate in an investigation leaves us only 3 two resources to draw an adverse inference as directed by EEOC 4 and to require needed documentation through court-ordered 5 subpoena. In an effort to avoid both these extreme actions, 6 we once again request the following information and items." 7 Q. And then let me next show you, sir, Plaintiffs' 8 Exhibit No. 9, which is a letter to you dated October 16, 9 1987, from Paula Warman; correct, sir? 10 A. That is correct. 11 Q. Would you please read the last paragraph, sir? 12 A. "We have never exempted employees from working a 13 particular function on a permanent basis. We will continue to 14 accommodate Doctor David Moore's request to, quote, if 15 possible, unquote, allow Mr. Wesbecker to work at places other 16 than the folder, but we cannot totally exempt him from this 17 duty permanently." 18 Q. Let me next show you, sir, Plaintiffs' Exhibit 19 No. 10. This is a letter dated December 8, 1987? 20 A. That is correct. 21 Q. From you to Standard Gravure, care of Paula 22 Warman; correct? 23 A. That is correct. 24 Q. Take a look, sir, and if you would, please, read 25 the fourth paragraph. 44 1 A. The one that begins, "The commission"? 2 Q. Yes, sir. 3 A. "The commission considers disparity of treatment 4 toward someone with an emotional handicap to be discriminatory 5 and illegal. My supervisor has therefore directed me to 6 recommend a finding of probable cause to the January 7 antidiscrimination panel." 8 Q. Now, Mr. Mattingly, is there some background 9 behind this letter and that recommendation or that direction 10 with regard to probable cause? 11 A. Yes, there is. 12 Q. Would you explain that to us, please, sir? 13 A. Well, this letter is dated December the 8th. 14 Three days prior to that on December the 5th, I had had what 15 turned out to be a very important telephone call, telephone 16 conversation with Don Frazier, who was the union president at 17 the time. And in the course of that conversation, I had been 18 able to confirm two very important things. One, first of all, 19 Mr. Frazier verified Joseph Wesbecker's credibility. And, 20 secondly, Mr. Frazier was -- in the course of the conversation 21 verified at least three employees who had been given permanent 22 accommodation by the company, employees that Mr. Wesbecker -- 23 I had received at an earlier date a list of employees from Mr. 24 Wesbecker whom he said were never asked to work on the folder, 25 and in the course of my conversation with Mr. Frazier he 45 1 mentioned at least three of them, or I asked him about at 2 least three of them, and he confirmed that, yes, those three 3 employees are never asked to work on the folder. And so in 4 this letter, that's why it says, "Our investigation has 5 already produced three employees who for physical reasons are 6 never asked to work the folder," at the beginning there of 7 Paragraph 2. 8 Q. Now, sir, let me next show you a document that's 9 been marked as Plaintiffs' Exhibit No. 14. Can you tell us 10 what this is, sir? 11 A. Yes. This is what we call a probable cause 12 letter. If you remember earlier, I said that if the panel 13 finds probable cause, then it comes back to my desk, and it 14 becomes my job to write a probable cause letter. In the last 15 exhibit, I had told Ms. Warman we're going to recommend 16 probable cause for the January panel. The January panel found 17 probable cause, they sent it back to my desk. I am now 18 writing this -- I have now written this probable cause letter 19 and sent it to her. And what it does is it spells out what we 20 found in our investigation and why we have concluded that 21 discrimination occurred. 22 Q. And what was the conclusion with regard to 23 discrimination? 24 A. That it in fact had occurred. 25 Q. Now, sir, let me show you a copy of Plaintiffs' 46 1 Exhibit No. 16. And this is apparently dated, sir, July 20, 2 1988; correct? 3 A. That is correct. 4 Q. And written to Ms. Warman by Elizabeth M. 5 Shipley? 6 A. That is correct. 7 Q. Now, in looking back at the log, sir, this is a 8 year and three months after the time that he first walked into 9 your office; am I right? 10 A. He first walked into our office in May. A year 11 and two months. 12 Q. A year and two months, sir. And it refers here 13 to apparently in the very first line where it says, "Re: 14 Hearing on Wesbecker case"? 15 A. Yes. 16 Q. Can you tell us what the status of this was at 17 that time, sir? 18 A. Well, I was unable to negotiate or to conciliate 19 any kind of agreement between the two parties. And so when 20 negotiations break down I take that case to my supervisor, Ms. 21 Shipley, who wrote this letter, and she -- Ms. Shipley, by the 22 way, is an attorney, and she schedules hearings -- cases for 23 hearing and that's what she had done. She had begun making 24 contacts with attorneys for Standard Gravure and was working 25 toward a hearing. 47 1 Q. At this stage, sir, are you as the compliance 2 officer directly involved after you couldn't get it settled? 3 A. No, I am not. 4 Q. I noticed on the log, again referring to 5 Defendant's Exhibit 369, there's an entry 4-26-88, which is 6 about three months before this letter. And can you read that, 7 sir? 8 A. It says, "I called attorney and explained to him 9 our position. He's going to get back to me." That's not what 10 it says; I'm reading what it means. There are some words left 11 out there. Okay. 12 Q. And according to this log, sir, that's the last 13 date that you had any direct contact with this matter? 14 A. According to this log, yes. 15 Q. All right. Do you have any recollection of 16 having any involvement after April 26, 1988, with Joseph 17 Wesbecker or with this complaint, sir? 18 A. No official contact. I mean, there were 19 times -- there were some occasions, and I cannot tell you 20 when, but there were some occasions when Joe might stop in the 21 office or he might call me, but officially my duty was over, 22 and for the most part from here on, Ms. Shipley worked -- as 23 they moved toward a hearing, she saw the possibility of 24 perhaps conciliating an agreement after all, and so she began 25 to work on that and did so. But I did not have any official 48 1 contact after that date, no. 2 Q. Mr. Mattingly, did you negotiate or participate 3 in any discussions with regard to Joe Wesbecker and long-term 4 disability or LTD at Standard Gravure? 5 A. No. 6 Q. Did you negotiate the conciliation agreement 7 between Mr. Wesbecker and Standard Gravure concerning this 8 complaint of discrimination? 9 A. No, I did not. 10 Q. Did you talk directly with him about that 11 conciliation agreement or about his LTD or long-term 12 disability situation at Standard Gravure? 13 A. No. I remember one day meeting him in the hall. 14 I think he was in the office to see Ms. Shipley who was 15 working toward this agreement, and I met him in the hall, and 16 I had heard that he was disabled and I just stopped for a 17 moment just to say, you know, "I'm sorry to hear you're not 18 able to work anymore," and we just chatted for a minute or 19 two, but, no, nothing official. 20 Q. Mr. Mattingly, after the conciliation agreement 21 was signed, and just to be clear on that, that's Plaintiffs' 22 Exhibit No. 21, and I'll show you a copy of that so that we do 23 have the date. Do you see this document, sir, that's 24 Plaintiffs' Exhibit No. 21? 25 A. Yes, sir. 49 1 Q. And apparently you signed it on the second page 2 as the compliance officer on January 27, 1989? 3 A. That is correct. 4 Q. And then you apparently notarized Mr. 5 Wesbecker's signature on the same date on the -- what I guess 6 is the fourth page of this exhibit, sir. Do you see that? 7 A. Yes, sir. Yes. 8 Q. Did you specifically discuss with Mr. Wesbecker 9 the terms and the specifics of this agreement before he signed 10 it? 11 A. No, I did not. 12 Q. That was someone else that dealt with it? 13 A. Ms. Shipley would have done that. 14 Q. Ms. Shipley? All right, sir. I believe those 15 are all the questions I have, sir. Thank you. 16 JUDGE POTTER: Mr. Smith. 17 18 EXAMINATION ___________ 19 20 BY_MR._SMITH: __ ___ ______ 21 Q. Mr. Mattingly, I'm Paul Smith, and I represent 22 the Plaintiffs in this case. Okay, sir? 23 A. (Nods head affirmatively). 24 Q. I have just a few questions for you. As I 25 understand it, you had how many separate meetings with Mr. 50 1 Wesbecker? Have you got your log there? Here it is. I've 2 got it. 3 A. My log would not be complete. 4 Q. All right. Can you give us an approximation of 5 how many meetings you had with Mr. Wesbecker? 6 A. Well, I worked with Mr. Wesbecker over a period 7 of about 18 months, and are we talking about personal contact 8 or also by telephone? 9 Q. Either one. 10 A. I would probably talk to him on the phone on 11 average once or twice a month and probably met with him much 12 less than that, maybe once every other month. I may have had 13 six or eight meetings face to face with him. 14 Q. Maybe eight face-to-face meetings? 15 A. Something like that. 16 Q. And then you talked to him twice a month over a 17 year-and-a-half period? 18 A. I may have talked to him 25, 30 times over the 19 phone. 20 Q. Say 30 times you talked to him over the phone 21 and that's over a year-and-a-half period? 22 A. Approximately, yes, sir. 23 Q. At no times in those 38 occasions over that 24 year-and-a-half period of time did Mr. Wesbecker threaten to 25 do anything against Standard Gravure, did he? 51 1 A. No, he did not. 2 Q. At no time did he make any violent outbursts in 3 your presence, did he? 4 A. No, he did not. Mr. Wesbecker would call me 5 when he was agitated but not violent, no. 6 Q. And he was certainly concerned about the 7 situation and bothered by the -- to his perception of the 8 treatment he had received at Standard Gravure? 9 A. Yes, sir. 10 Q. And yet over that year-and-a-half period of time 11 during those 38 separate occasions when you talked with him, 12 he never threatened anybody, did he? 13 A. No, he did not. 14 Q. On those occasions that you talked with Mr. 15 Wesbecker, generally, as I understand it, you found him 16 intelligent and articulate? 17 A. Yes, sir. 18 Q. Forthcoming with you? 19 A. Yes, sir. 20 Q. To give you the information that you needed? 21 A. Yes, sir. 22 Q. And on those occasions, as I understand it, you 23 said he would be upset about his situation and yet he would 24 generally laugh and joke and sort of keep a cheerful attitude 25 about it? 52 1 A. Joe Wesbecker had a wonderful sense of humor, 2 and he would come into my office oftentimes agitated or even 3 angry, but invariably before he left he would be laughing or 4 he would have me laughing. 5 Q. It sounded like you actually liked Mr. 6 Wesbecker. 7 A. I did. 8 Q. Found him personable? 9 A. I did. 10 Q. Found him an individual who wasn't a threat to 11 you at all? 12 A. I didn't think so. 13 Q. And he treated you with courtesy? 14 A. Yes, he did. 15 Q. And I'm sure you did with him, sir. 16 A. Yes, sir. 17 Q. At no time did you see him kicking anybody or 18 kicking the walls or things of that nature? 19 A. No violent outbursts; no, sir. 20 Q. And no hostile statements, either? 21 A. Well, he had some pretty nasty things to say 22 about his supervisors. 23 Q. But he didn't say, "I'm going to go kick their 24 butt," or I'm going to go do anything that would harm them, 25 did he? 53 1 A. Not that I recall. If he did, it was not 2 anything I would have taken seriously -- that I took 3 seriously. If he did, it would have been in a joking manner. 4 I can't swear, you know, that he never made any kind of even 5 subtle threat, but nothing that I took seriously. 6 Q. Even if he did make a -- in hindsight -- looking 7 back on it with 20/20 hindsight have been a subtle threat, you 8 never took that as being a legitimate threat? 9 A. No. 10 Q. Joe Wesbecker just didn't seem like that type of 11 guy to hurt somebody, did he? 12 A. Joe Wesbecker was a very disturbed man and I 13 worried about him, but he did not seem to be someone -- 14 Q. Who would hurt somebody, frankly; right? 15 A. Except I wasn't surprised when it happened. 16 Q. I understand that. I understand it. In 17 hindsight. 18 A. So there are some reservations there. 19 Q. But you didn't ever when you were dealing with 20 him, talking with him over those 38 times over that period of 21 time, you didn't ever take anything that he said as being any 22 indicator that he was going to go out and hurt anybody, did 23 you, Mr. Mattingly? 24 A. No. 25 Q. In your dealings with the company, did it appear 54 1 to you that the company was out to get Joe Wesbecker as an 2 individual, really? 3 A. I think I have to answer that with more than a 4 yes or a no. 5 Q. Okay. 6 A. When I talked to Mr. Frazier, the union 7 representative, one of the things that he told me was the 8 reason that you're having trouble getting this accommodation 9 for Joe is because he's so good at his job. The company does 10 not want to make an exception for him, they make exceptions 11 for others, but they do not want to make an exception for him 12 because he's one of the best folder people they've got, and 13 they do not want to eliminate that possibility. 14 Q. Did he explain to you that the folder job was a 15 job that required some expertise? 16 A. I do not remember if he did or not. 17 Q. Or experience or did you take it that that -- 18 A. I got the impression experience was a plus. 19 Q. Did you get the impression that that was sort of 20 a critical job? 21 A. Yes. 22 Q. And so Mr. Frazier was expressing to you that 23 from a company position, the company felt that Mr. Wesbecker 24 was a valuable employee and to put him on the folder was 25 something that was possibly going to be necessary to get the 55 1 best people to do the best job; correct, sir? 2 A. Correct. 3 Q. Now, your investigation, did it conclude that in 4 fact Mr. Wesbecker hadn't actually been put on the folder as 5 the man in charge since September 1986? 6 A. That is approximately correct. The dates that 7 stick in my mind are something like October or November of 8 '86, that he had not actually been the leadman on the folder, 9 he had been called on to be the second man and the second 10 man -- being second man on the folder did not bother him; it 11 was the leadman on the folder that bothered him. But, you 12 see, it's more than what they did; it's what he saw them 13 threatening to do, and so that became a reality in his mind. 14 If they're threatening to do it, then it's the same as putting 15 him on it. 16 Q. I understand that. But as far as him actually 17 having to work the folder, you would confirm that the company 18 had pretty well been able to keep him off the folder; correct, 19 sir? 20 A. Right. That is correct. 21 Q. And that the company was saying we're going to 22 accommodate him as much as we can, but we can't give him a 23 permanent exemption; is that right, sir? 24 A. That's correct. That's correct. 25 Q. And the matter finally was resolved? 56 1 A. Yes, it was. 2 Q. And it was finally resolved in a manner that 3 apparently was satisfactory to all parties, or do you know? 4 A. I think it was really an agreement that was 5 dissatisfactory to all parties. 6 Q. Okay. Sometimes -- 7 A. The company had given in on something they 8 didn't want to give in on and Mr. Wesbecker, at this point, 9 was disabled, was unable to work. From our point of view, we 10 were not accomplishing what we had hoped to accomplish, and 11 that is to get him an accommodation and make him once again a 12 good employee, because that was no longer possible, he was 13 disabled for life. 14 Q. But in the conciliation agreement, Exhibit 21, 15 Paragraph 7 says, "Respondent agrees" -- you got it in front 16 of you? 17 A. I do. 18 Q. Paragraph 7, "Respondent agrees that in the 19 event Mr. Wesbecker is able to return to work, the company 20 will make reasonable accommodations for any mental handicap he 21 may continue to suffer in accordance with his prior practice 22 applicable to all employees. Specifically, Mr. Wesbecker 23 would be employed with neither more nor less security than his 24 fellow journeymen." That's what he wanted, wasn't it? 25 A. No, sir. No. He wanted them to say, "You will 57 1 never have to work on the folder," and they really don't say 2 that. 3 Q. Yeah. But didn't you say earlier that he said, 4 "I'm being treated differently than my fellow employees who 5 have physical handicaps"? 6 A. That is correct. 7 Q. And isn't that what this gives him, to be 8 treated equally with his fellow employees who have physical 9 handicaps? And he says specifically that he's not going to 10 have a problem by virtue of a mental handicap; isn't that what 11 that paragraph says, sir? 12 A. The company would never -- the company had not 13 turned to any of these people who had physical problems and 14 said, "You're never going to have to work the folder." And 15 this is what he's asking for. See, he's asking for something 16 they really don't have, but the reason he's asking for it is 17 his is an emotional problem, he worries. 18 Q. I understand that, Mr. Mattingly, but didn't he 19 in fact -- didn't the company say we agree that we're not 20 going to hold his mental status against him and we're not 21 going to treat him any differently? Isn't that what 22 Paragraph 7 says? 23 A. That's what Paragraph 7 says. They're not going 24 to treat him either -- that's what they said all along. 25 Q. That's what the discrimination laws are about, 58 1 aren't they? That we're not going to treat people differently 2 by virtue of their race, sex, color, or physical or mental 3 handicap; right, sir? 4 A. That is correct. 5 Q. That's what your job is, to ensure that this 6 practice is enforced in this city? 7 A. But except that in handicap cases -- 8 Q. Can I have my answer? Isn't that what your job 9 is, Mr. Mattingly? 10 A. Yes, it is. Yes, it is. 11 Q. Now, the last sentence there says that it will 12 not place him in a job which he cannot perform and then use 13 nonperformance as an excuse for dismissal; correct, sir? 14 A. That is correct. 15 Q. Just one other thing about this conversation 16 that you had with Ms. Warman about it would be dangerous to 17 put Mr. Wesbecker back on the folder? 18 A. Yes, sir. 19 Q. As I understand it, you were primarily concerned 20 about the danger to Mr. Wesbecker by virtue of physical injury 21 to Mr. Wesbecker because of the medications he was taking; 22 right, sir? 23 A. That was one of my concerns. 24 Q. And your other concern was what, sir? 25 A. My other concern was that this man who had deep 59 1 emotional problems might snap under the pressure and harm 2 himself or others. 3 Q. But you didn't express that to Ms. Warman, did 4 you, sir? 5 A. What I expressed to her was that it might well 6 endanger his life or the lives of people around him. 7 Q. But you didn't tell Ms. Warman that he could 8 snap by virtue of his emotional situation? 9 A. I did not use those words, no. In fact, the 10 words that I just used are almost -- I can't after five years 11 swear that that's a quote, but it's pretty close. But we did 12 not go into any detail and I didn't say, "He's got these great 13 emotional problems and he might snap and go do things to 14 people;" no, I did not. 15 Q. Because you never perceived Mr. Wesbecker as -- 16 Mr. Wesbecker on those 38 occasions had never threatened 17 anybody; right, sir? 18 A. Mr. Wesbecker had attempted suicide and -- 19 Q. Please, can you tell us whether he threatened 20 anybody, Mr. Mattingly? 21 A. He did not. 22 Q. And you never saw him commit a violent act? 23 A. No. 24 Q. But you did not -- this is very important, 25 Mr. Mattingly. You did not tell Paula Warman that Joe 60 1 Wesbecker had deep emotional problems and that he could snap 2 and do something to somebody, did you, sir? 3 A. I did not. 4 Q. That's all I have. Thank you, sir. 5 JUDGE POTTER: Anything else, Mr. Stopher? 6 MR. STOPHER: Just a couple of questions, Your 7 Honor. 8 9 FURTHER_EXAMINATION _______ ___________ 10 11 BY_MR._STOPHER: __ ___ _______ 12 Q. Mr. Mattingly, with regard to that conversation 13 with Ms. Warman, which I believe you testified earlier 14 occurred on a date in May of -- excuse me, June of 1987, sir? 15 A. June 16, 1987. 16 Q. And you worked with him over the next 18 months? 17 A. Approximately, yes. 18 Q. Approximately? Did your opinion about him that 19 you had stated in June of 1987 ever change, sir? 20 A. No. 21 Q. You mentioned two other items, sir, and I'd like 22 for you to explain these if you can and if you recall. You 23 mentioned that on some occasions he would come into your 24 office and would be agitated and angry. Did I understand your 25 testimony correctly, sir? 61 1 A. Yes, sir. 2 Q. Can you describe for us what you recall about 3 those instances? 4 A. It was common for him to work a shift from one 5 in the morning to nine in the morning, and then it would not 6 be uncommon when he left work at 9:00 to come to my office, 7 which is just a few blocks away, and he would be agitated over 8 what a supervisor had said or done. And he liked to refer to 9 them as the -- as the shop attorneys and the shop doctors who 10 were diagnosing him and telling him what his rights were and 11 weren't. You know, he might come in very agitated at what had 12 happened at work. There was an incident in which a -- someone 13 put something up on the bulletin board and it said, "If you 14 need help in this regard, call Joe Wesbecker at 585-NUTS." He 15 was not only upset, his feelings were hurt. And it wasn't 16 just that this was on the bulletin board, but that no one in 17 authority had taken it down. 18 So I said, "Can you get a picture of that?" He 19 said, "I'll bring a camera in tomorrow." And so he called me 20 the next day and he said, "I took a camera in but they had 21 taken it down." So I don't know if it ever appeared or not. 22 But it was things like that that got him agitated and got his 23 feelings hurt. 24 Q. You mentioned, sir, that you knew that he had 25 attempted suicide? 62 1 A. Yes. 2 Q. What was your source of that information and 3 what do you recall about it, sir? 4 A. He told me that. I do not remember when he told 5 me that. I don't think it was at that initial -- when a 6 person calls the first time or walks in the first day, we call 7 that the intake; that session at which I spent about an hour 8 with him at the very beginning. I don't think it was then, 9 but I think it was before I talked to Ms. Warman. Sometime in 10 that first month I talked to him and he told me that he had 11 attempted suicide more than once. 12 Q. Thank you, sir. That's all I have. 13 MR. SMITH: Your Honor, I just have one other 14 question. 15 16 17 FURTHER_EXAMINATION _______ ___________ 18 19 BY_MR._SMITH: __ ___ _____ 20 Q. In Exhibit 369, your log, Mr. Mattingly? 21 A. Yes, sir. 22 Q. The entry of 3-29-88, looks to me like it says, 23 "C came in with info. Will ask Bill Ganote to contact"? 24 A. You're very good at reading my handwriting. 25 Q. You write very legibly, sir. Is that correct? 63 1 A. That is correct. 2 Q. Can you give us some details on what that 3 conversation was? 4 A. I think this is the day in which Mr. Wesbecker 5 came in and he brought me a list of people -- of employees, 6 what shift they worked, what area they worked. And what he 7 was trying to show was that there were people who are never 8 asked to work the folder. And he said, you know, you will see 9 that this person always works Area One, this person always 10 works Area Two. This person -- and also in the course of the 11 conversation this was not the first time I had heard the name 12 Bill Ganote. Mr. Ganote had been involved in an accident at 13 work and had had to have reconstructive surgery on his hand or 14 his arm, and the company had exempted him from going back on 15 the folder until he thought he was ready. And Mr. Wesbecker 16 saw that as someone that he could compare himself to a 17 comparable. You know, "They did it for Bill Ganote, they can 18 do it for me." At some point I said, "Why don't you have Mr. 19 Ganote give me a call so that I can get from the horse's mouth 20 exactly what happened to him and what the company agreed to 21 do." So he agreed to ask Mr. Ganote to call me, but that 22 telephone call never occurred. 23 Q. Did you take it that Mr. Wesbecker and Mr. 24 Ganote were friends or on a friendly basis or that Mr. Ganote 25 was going to cooperate with him in that regard? 64 1 A. Yes. 2 Q. That they were friends? 3 A. Yes. 4 Q. Did you know that Bill Ganote was one of the 5 people that Joe Wesbecker shot and killed? 6 A. Yes. 7 Q. That's all I have. 8 JUDGE POTTER: Thank you very much, sir. You 9 may step down; you're excused. 10 I tell you what, ladies and gentlemen, we'll go 11 ahead and take the morning recess at this time. As I've 12 mentioned to you-all before, do not permit anybody to talk to 13 you about this case. Don't discuss it or form or express 14 opinions about it. We'll take a 15-minute recess. 15 (RECESS; BENCH DISCUSSION) 16 MR. SMITH: The next witness is Ms. Minch, who 17 was the caseworker for Jimmy Wesbecker's exposure condition. 18 She was assigned by the Court to do investigations in '82 and 19 '84, somewhere in that range. We would object to any of her 20 observations concerning Jimmy as being immaterial to any issue 21 in this trial. 22 JUDGE POTTER: What type of observations do you 23 object to, Mr. Smith? 24 I mean, what are you going to get out of Ms. 25 Minch, Mr. Stopher? 65 1 MR. STOPHER: Very, very little about Jimmy, 2 Your Honor. That's not the purpose of calling her. I'm not 3 interested in -- Jimmy was interviewed by her, her opinions 4 were particularly of Jimmy. I'm really interested in her 5 contacts with Joe Wesbecker. 6 JUDGE POTTER: Okay. I take it he went to some 7 of these conferences? 8 MR. STOPHER: He did. And it's in the context 9 of her treating Jimmy and just in terms of that kind of 10 background, but as far as going into the specifics of how many 11 times he exhibited himself and what conditions about beating 12 up a little girl or hurting a little girl or whatever, I'm not 13 going to go into that or whatever. 14 MR. SMITH: I think certainly it would be 15 appropriate for any -- one particular observation she made is 16 in 1984, he seemed a lot more calm and a lot more cooperative 17 and she attributed it to the medication he was taking. Now, 18 she has no nursing background, no medical background. That's 19 not an opinion that she's qualified to give. 20 JUDGE POTTER: I agree. 21 MR. STOPHER: I agree. And I'm not going to ask 22 her for it. 23 JUDGE POTTER: I mean, she can't express he's 24 more calm and the reasons for that. 25 MR. STOPHER: Right. I agree. 66 1 (BENCH DISCUSSION CONCLUDED) 2 SHERIFF CECIL: All rise. The jury is entering. 3 All jurors are present. Court is back in session. 4 JUDGE POTTER: Please be seated. 5 Mr. Stopher, do you want to call your next 6 witness? 7 MR. STOPHER: Ann Minch. 8 JUDGE POTTER: Ma'am, could I get you to step 9 around here and raise your right hand, please. 10 11 ANN MINCH, after first being duly sworn, was 12 examined and testified as follows: 13 14 JUDGE POTTER: Okay. Would you have a step 15 around into the witness box, state your name loudly and then 16 spell it for me, please. 17 MS. MINCH: Ann Detlefs Minch. The maiden name 18 is D-E-T-L-E-F-S. And the married is M-I-N-C-H. 19 JUDGE POTTER: If you'll keep your voice up good 20 and loud and answer Mr. Stopher's questions. 21 22 EXAMINATION ___________ 23 24 BY_MR._STOPHER: __ ___ _______ 25 Q. Ms. Minch, obviously the microphones there in 67 1 front of you are what pick up your voice, so if you would try 2 to direct volume in that direction and I think that will help 3 everybody. 4 Would you give us your address, please. 5 A. 209 South Madison Avenue, Middletown, Kentucky. 6 Q. And, Ms. Minch, I apologize, but would you give 7 us your age, please? 8 A. Thirty-seven years old. No problem. 9 Q. I can understand. There is no problem; that's 10 exactly right. Ms. Minch, are you presently employed? 11 A. Yes, I am. 12 Q. And where do you presently work? 13 A. Actually, since the time I gave deposition, I am 14 now self-employed in private practice as a mental health 15 therapist. 16 Q. And you mentioned that at the time you gave your 17 deposition you were employed someplace else. Would you tell 18 the jury where that was? 19 A. That's correct. At that time I was employed 20 with ClearSprings Health Partnership. 21 Q. And prior to that by whom were you employed? 22 A. Prior to that, I was doing some private practice 23 work and some contractual work at several agencies, Our Lady 24 of Peace Hospital and The Morton Center. 25 Q. All right. Ms. Minch, let me go back and ask 68 1 you, then, if you would, please, to give us a brief 2 description of your educational background and your training 3 and generally what you do. If you'd start at college and 4 progress forward chronologically, that will suffice. 5 A. Okay. I graduated in 1979 from Hanover College 6 with a B.A. in sociology. Then I attended the University of 7 Louisville Kent School of Social Work from approximately 1980 8 to '84, and graduated in December 1984 with a Master's Degree 9 in social work. 10 Q. And does that qualify you by training as a 11 social worker? 12 A. Yes. I am a licensed clinical social worker 13 licensed by the state of Kentucky for independent practice. 14 Q. And about when were you licensed, Ms. Minch? 15 A. I obtained my L.C.S.W. in -- let me think a 16 minute -- November 1988. 17 Q. And L.C.S.W. stands for licensed clinical social 18 worker? 19 A. That's correct. 20 Q. All right. And is that a state license that is 21 issued by the state? 22 A. Yes, it is. 23 Q. Ms. Minch, maybe this is obvious to everybody 24 except me, but would you tell us briefly what a social worker 25 is or what a licensed clinical social worker is in brief 69 1 terms, if you would? 2 A. We are mental health therapist practitioners, 3 can perform basically the same functions, provide 4 psychotherapy, evaluate, assess, treat psychological or 5 psychiatric type of problems similarly to a psychologist and 6 even similarly to an M.D. psychiatrist. The difference being 7 that social workers cannot prescribe medication. 8 Q. Now, Ms. Minch, in connection with your work as 9 a licensed clinical social worker, have you ever been 10 connected with the juvenile court and the Jefferson County 11 Department for Human Services? 12 A. Well, Mr. Stopher, I need to clarify, that, yes, 13 I was employed by the Department for Human Services; however, 14 at that time of my employment I was not licensed by the state 15 of Kentucky as a social worker. 16 Q. All right. Subject to that qualification the 17 answer is yes? 18 A. Yes. I was a social worker for Department for 19 Human Services. 20 Q. And as a social worker for that department, 21 generally what did you do, particularly with regard to matters 22 in juvenile court? 23 A. I was what's known as a predispositional 24 caseworker. Basically, we were involved with juveniles who 25 were arrested for delinquent offenses; not status dependent, 70 1 delinquent offenses. Once a case was assigned by virtue of 2 the juvenile having been arrested, we would contact the 3 parents, notify them the date of arraignment. Then we would 4 be present for each court hearing from arraignment forward, 5 and basically we served as a liaison between the juvenile 6 court and the family to explain the court process, what they 7 could expect, answer questions. 8 And the most important duty was that we made 9 predispositional recommendations to the juvenile court judge 10 involved with the case as to how these legal charges might be 11 disposed of, what treatment recommendations we thought were 12 appropriate for the juvenile, et cetera. 13 Q. Ms. Minch, approximately how long a period of 14 time did you do that work? 15 A. I was employed in that capacity from August '81 16 to end of August '84. 17 Q. Ms. Minch, during that period of time when you 18 were -- I think I've got the right term here, a 19 predispositional caseworker in connection with juvenile court, 20 did you ever have an occasion to serve as a liaison between 21 the Wesbecker family and juvenile court? 22 A. Yes, I did. 23 Q. Can you tell us generally how that came about 24 and why? 25 A. I'll do this not citing exact dates but just by 71 1 memory of what my contact was. The son, Jimmy Wesbecker, had 2 come before the juvenile court numerous times on charges 3 involving indecent exposure or exhibitionism, whichever term 4 you want to use. This was from about spring of '82 to August 5 of 1984, and I was assigned as a caseworker during that entire 6 period. Finally, his charges kept continuing despite the 7 courts' attempts to intervene, and eventually in August of 8 1984, there was an adjudication made and a disposition related 9 to these charges that Jimmy kept incurring. 10 Q. During the period of time then from 11 approximately I think you said in the spring of '82 until 12 August of 1984, is that the time period when you had contact 13 with that family? 14 A. Yes, it is. 15 Q. Ms. Minch, would you give us some idea, and I 16 know you probably didn't keep a running log, but can you give 17 us some idea of the number of contacts that you would have 18 with the family or how often it might occur, something that 19 would give us some background about frequency and amount of 20 contact? 21 A. To be honest, Mr. Stopher, without reviewing the 22 actual court record of how many times Jimmy was in court and 23 what the dates were, I would give a ballpark estimate that I 24 probably had at least a dozen contacts, most of them face to 25 face with Joe Wesbecker or the Wesbecker family, Jimmy, 72 1 however you want to say that. 2 Q. Now, Ms. Minch, let me direct your attention 3 specifically to one member of that family, and that is 4 particularly Joseph Wesbecker. Did you have contact with him 5 during that period of time? 6 A. Yes. I certainly did. 7 Q. And, first of all, would you tell the jury what 8 the purpose would be of the contacts with Joe Wesbecker as 9 opposed to Jimmy Wesbecker? 10 A. As part of gathering information for the report 11 that would be submitted to the Judge, we did what's known as a 12 home study where we would go into the child's home, interview 13 the parents, obtain a lot of background information about 14 psychosocial stressors, physical environment, school 15 functioning, marital history of the parents, I mean, you name 16 it; it was a very comprehensive home study and evaluation. So 17 I did visit with Joseph Wesbecker in his home on one occasion, 18 it was sometime in early August of '84, but I also had a lot 19 of telephone contact and a lot of personal face-to-face 20 contact in the waiting area of the juvenile courtroom. 21 Q. Ms. Minch, did you -- do you have a specific 22 recollection of each of these contacts with Joe Wesbecker or 23 do they tend to blur together? 24 A. I can't be specific as to dates or times, but I 25 certainly have a lot of recollections about Joseph Wesbecker. 73 1 Q. All right. Well, let me begin at that point, 2 then. Would you tell us what you do recall about Joe 3 Wesbecker and your contacts with him as you've described them 4 over that period of time? 5 A. Well, I call him Joe, only because when you've 6 worked with someone for two and a half years and you're trying 7 to make them comfortable, you get on a first-name basis. Joe 8 was a very difficult person to work with, communicate with, 9 reason with. He was very angry towards me and expressed that 10 quite openly. He was hostile. He was aggressive. His anger 11 was because I was pushing for Joseph Wesbecker and his ex-wife 12 Sue Chesser to engage themselves in some conjoint therapy, 13 counseling, for the benefit of their son. And the reason I 14 was recommending that so strongly, and others involved with 15 the case also recommended it, is because we all felt -- the 16 professionals involved -- that Jimmy's behavior was in large 17 part a result of the ongoing conflicts and antagonism between 18 these two adults, these two parents that were no longer 19 married. 20 And so I continuously brought this up over this 21 two or whatever year period that I worked with the family: 22 "Joe, I think you and Sue really need to get into some 23 counseling. I think Jimmy's problems are in large part 24 because of this stuff going on in the family, and if you care 25 about your son, for God's sake, get yourself into some 74 1 counseling." He was so hostile and angry towards me. I don't 2 know. Do you want me to just continue? I mean, I'm having 3 recollections. 4 Q. All right. If you would. 5 MR. SMITH: Your Honor, we would like this in 6 question-and-answer versus narrative form. 7 JUDGE POTTER: I think it is question and 8 answer. It may be a long answer, but as long as you stay on 9 the question, ma'am, you can go ahead and answer it. 10 And, Mr. Stopher, if you think that you need to 11 break it up, go ahead. 12 Go ahead and finish. 13 Q. If you would continue, Ms. Minch, I think you 14 were telling us your recollections of Joseph Wesbecker during 15 that period of time, and if you'd go ahead and continue. 16 A. Okay. That's correct. I recall on one occasion 17 Joseph Wesbecker calling me up in my office, threatening to 18 have me fired from my job. This was all because he was very 19 angry with me about recommending or expecting that he engage 20 in counseling with his ex-wife. He wanted to know the name of 21 my supervisor. He said he was going to have me fired. He 22 would curse -- on this occasion that he phoned me he was 23 cursing, he was angry. That is one example of many. I 24 remember other times being in the waiting area of juvenile 25 court and he would just point his finger in my face. He would 75 1 get red from the neck up, aggressive, yelling, loud, angry. 2 My experience with Joseph Wesbecker is that he 3 was a very hostile, aggressive person who was difficult to 4 deal with, did not listen, spoke on top of your sentences, you 5 could not get a word in edgewise with him. And as I mentioned 6 in my deposition, on one occasion by telephone, this man tried 7 my patience so much that I lost all professional composure and 8 started like yelling back at him, "Joe, would you just shut up 9 and listen for a minute," because he would just try your 10 patience so much. I mean, he just -- he was very difficult to 11 deal with. 12 Q. Ms. Minch, did you ever hear him discuss 13 Standard Gravure or his job and work there? 14 A. Yes. I knew that he was employed there as a 15 pressman. 16 Q. Did he ever discuss that job or any of the 17 people at Standard Gravure or counselors there? 18 A. Well, in my dispositional report, of course I 19 have to mention where the parents are employed, and I knew by 20 that time anyway that he worked at Standard Gravure as a 21 pressman. I also knew that Joseph Wesbecker had been seeing 22 the EAP counselor employed by the Bingham companies at that 23 time, Pat Lampton. My understanding is this was for job 24 stress -- job-related stress. Does that answer your question? 25 Q. And did you ever have any occasions to discuss 76 1 Joe Wesbecker with that counselor in connection with your work 2 with the family? 3 A. Yes. I did talk with Pat Lampton. 4 MR. SMITH: That would be hearsay, Your Honor. 5 We'd object to any discussions about that. 6 JUDGE POTTER: I'm going to sustain it if she's 7 going to go ahead and tell what Pat Lampton said. 8 MR. STOPHER: All right, Your Honor. 9 Ms. Minch, during the period of time that you 10 counseled this family, did -- I think you said on one occasion 11 in August of 1984, you visited in Joe Wesbecker's home; did I 12 recall that correctly? 13 A. Yes. That's correct. 14 Q. And where would the other meetings be? You 15 mentioned in the waiting room. Where else would they be? 16 A. Well, or in my office, which was across the hall 17 from the second-floor juvenile courtrooms. 18 Q. And would these meetings be with him alone or 19 would they sometimes include other people? 20 A. Well, you couldn't have a meeting with Joe 21 Wesbecker and Sue Chesser in the room at the same time, so I 22 would take Joe Wesbecker back in my office and sit down and 23 talk with him about Jimmy, and then separately I would take 24 Sue Chesser back in my office and sit down and talk with her. 25 Q. Ms. Minch, what was your function in trying to 77 1 deal with Joe Wesbecker? What were you trying to accomplish? 2 A. Well, I was simply the juvenile court caseworker 3 for his son, and I was trying to recommend what type of 4 treatment or rehabilitation might prevent Jimmy from 5 continuing to commit acts of indecent exposure. 6 Q. Had you done anything to justify or to deserve 7 the type of treatment that he gave you in these sessions where 8 you met with him? 9 A. I don't think so. I certainly was professional 10 with him other than the one time I got upset and lost my cool 11 and yelled back at him. But, no, I didn't do anything to 12 deserve the treatment that I received from him. 13 Q. Ms. Minch, in connection with the way he treated 14 you, did you observe the way that he reacted toward other 15 members or acted toward other members of the family, first of 16 all, beginning with Sue? 17 A. Yes. I observed how he acted towards his 18 ex-wife Sue. 19 Q. And how was that? 20 A. He was very antagonistic, hostile, angry, 21 accusing. That's what I remember. 22 Q. Was he ever amenable to or in agreement with 23 your suggestions and your plan of action in an attempt to 24 resolve these matters or to make them better? 25 A. You mean the matters pertaining to he and Sue 78 1 being antagonistic with each other or -- I'm not sure of your 2 question. I don't understand your question. 3 Q. Well, I don't think I made it clear, so let me 4 try again. You mentioned earlier and I wrote it down so I 5 would not forget it, that you wanted Joe Wesbecker and Sue to 6 engage in -- I think you said conjoint and I lost the next 7 word. Can you tell us what you mean by that and what it is? 8 A. Well, conjoint counseling just means two parties 9 engaged in therapy with each other to work out relationship 10 issues. 11 Q. Did Joe Wesbecker ever agree to do that? 12 A. Absolutely not. 13 Q. Ms. Minch, in connection with your contacts with 14 Joe Wesbecker, did he ever express to you any sense of blame 15 or finding of fault in connection with Jimmy's problem? 16 A. Could you explain further what you mean by that? 17 Q. Yes, ma'am. Did he ever express to you why he 18 thought his son had these problems of exhibitionism? 19 A. No. I don't recall that. 20 Q. Let me -- did you bring a copy with you today of 21 your report dated I believe it's August 14, 1984? Do you have 22 a copy of that with you? 23 A. Yes, I do. 24 Q. I'm not going to introduce this as an exhibit, 25 but let me ask you to take a look at the page that is entitled 79 1 Family Functioning. 2 A. Okay. 3 MR. SMITH: I'm not sure I have that, Ed. 4 MR. STOPHER: It's that. 5 MR. SMITH: Okay. It's this page; right? 6 MR. STOPHER: Uh-huh. 7 MR. SMITH: Excuse me. 8 Q. Do you see the page entitled Family Functioning? 9 A. Yes, I do. 10 Q. All right. Let me ask you to take a look, 11 Ms. Minch, at Paragraph 4 on that page that begins with the 12 word "according." 13 A. Okay. 14 Q. All right? And would you look at the last 15 sentence of that paragraph and would you read that out loud to 16 the jury, please? 17 A. It says, "Mr. Wesbecker, too, states that Jimmy 18 was the scapegoat for Sue and that she took all her anger 19 against him out on Jimmy because he looked like his father and 20 acted like him." 21 Q. And would you go on to read the next sentence? 22 A. The next paragraph? 23 Q. Yes, ma'am, the first sentence in that next 24 paragraph. 25 A. "Regarding his father, Jimmy appears to have a 80 1 lot of respect and admiration for his dad, which he is lacking 2 for his mother." 3 Q. And were those your findings or a record of 4 statements and issues that had come to your attention in this 5 capacity? 6 A. Some of it -- some of the things I've stated are 7 because of direct things that Jimmy had told me and some were 8 impressions from observations and a lot of contact over two 9 and a half years with this family. 10 Q. All right. Let me finally direct your attention 11 to the section of that report entitled Father, Joseph T. 12 Wesbecker. I believe it's back a page or two. 13 A. Okay. 14 Q. And would you read, beginning with the second 15 paragraph, where it states "the father"? Do you see that? 16 A. Yes, I do. 17 Q. Would you read that paragraph and the following 18 paragraph? 19 A. "The father reports he is in good health, 20 although he openly admits to having emotional difficulties in 21 the past. He shares he drinks socially on occasion and was 22 arrested several times as a juvenile for disorderly conduct 23 and fighting. Since then, Mr. Wesbecker's only arrests have 24 been the result of warrants taken by his ex-wife." 25 MR. SMITH: Excuse me. May we approach, Your 81 1 Honor? 2 (BENCH DISCUSSION) 3 MR. SMITH: You know, I approached the bench to 4 get a preliminary ruling. Mr. Stopher says he's not going to 5 do something, now read the second paragraph. 6 MR. STOPHER: I apologize. I didn't see that 7 reference in there and I'll stop it. I will stop it -- it's 8 the last two sentences; right? That's what you object to? 9 I'll stop her at "cooperative." 10 JUDGE POTTER: Has he got it right, Mr. Smith, 11 if he removes that? 12 MR. STOPHER: If it stops with "cooperative"? 13 MR. SMITH: Yeah. That's fine. Okay. 14 (BENCH DISCUSSION CONCLUDED) 15 Q. Ms. Minch, let me ask you to go on and read in 16 the next paragraph, but I want you to stop and not read the 17 last two sentences of that paragraph. All right? And when 18 you get to the word "cooperative," do you see that word? 19 A. Yes. I've marked it. 20 Q. All right. Will you proceed again and read from 21 your report to the jury? 22 A. "Of note, the father has in the past been 23 somewhat hostile towards this worker, using abusive language 24 and refusing to cooperate with the recommended treatment plan 25 for Jimmy. The part which Mr. Wesbecker showed opposition 82 1 towards was the suggestion by the therapist at Norton's and 2 this worker -- which means me -- that the two parents engage 3 in some family therapy conjointly for Jimmy's sake. It should 4 be pointed out that this conflict with the father occurred 5 primarily in 1982 and 1983, and that during Jimmy's present 6 court involvement the father has been far more cooperative." 7 Q. And if I understand correctly, you're reading 8 from a report dated August 14, 1984? 9 A. That's correct. 10 Q. Is that at or about the time that you had your 11 last contact with the Wesbecker family and this particular 12 case? 13 A. Yes, that is. 14 Q. Now, Ms. Minch, just a couple of final 15 questions. You mentioned that you were in Joe Wesbecker's 16 home in approximately August of 1984; am I correct? 17 A. That's correct. 18 Q. And I take it that all of the other meetings 19 that you have and conversations that you have described either 20 occurred in the waiting rooms of the court or in your office 21 or over the telephone; am I correct about that? 22 A. That's correct. 23 Q. Ms. Minch, with regard to his anger and his 24 hostility and his aggressiveness, as you've described it, can 25 you give us, based on your training and your experience and 83 1 your work as a licensed clinical social worker, the degree or 2 the level of anger and hostility and aggression that he 3 displayed and that you observed? 4 A. Well, what I recall is that as a 25- or -- 25- 5 to 27-year-old person not that long out of college, this man 6 was pretty intimidating to me. I always just did not look 7 forward to court appearances involving the James Wesbecker 8 case because I knew I'd have to deal with Joe Wesbecker. I 9 don't know. I can't -- who can predict behavior, but I 10 thought this man was seriously disturbed and the level of 11 anger and rage and hostility and aggressiveness that he 12 displayed and that I experienced from him. 13 Q. That's all. 14 15 EXAMINATION ___________ 16 17 BY_MR._SMITH: __ ___ ______ 18 Q. Ms. Minch, I'm Paul Smith, and I represent the 19 Plaintiffs in this case. I'll be brief with you. As I 20 understand it, you had been with the juvenile justice system 21 how long when you first came into contact with Mr. Joe 22 Wesbecker? 23 A. Approximately eight months. 24 Q. And would you agree with me, Ms. Minch, that 25 parents who are put in this situation when their children have 84 1 been arrested exhibit some pretty stressful and generally are 2 upset about the situation in general? 3 A. Yes. That's true. 4 Q. And obviously with conduct that the younger 5 Mr. Wesbecker was engaging in, you can understand that that 6 would even increase the stress on parents of these type of 7 children? 8 A. I suppose you could say that. 9 Q. The only in-home conversation you had with Mr. 10 Wesbecker was in August of '84; is that right? 11 A. That's correct. 12 Q. And that was the formal visit where you were 13 assigned to go out and make a formal assessment of the 14 situation? 15 A. That's correct. 16 Q. Do I understand it correctly that on those 17 occasions when you would see Mr. Joseph Wesbecker, that would 18 just be in or around the courtroom at the time of these 19 arraignments, other than the phone conversations that you had 20 with him? 21 A. No. That's not entirely correct. With each 22 court appearance, I would be there in the waiting room and 23 escort them into the courtroom when the case was called, but 24 quite often all of us that were juvenile court social workers 25 took time with these families and walked them over to our 85 1 offices after their court appearance, answered questions, sat 2 down with them, explained what would happen next. It wasn't 3 just a brief, "Oh, hi, Joe and Sue; we're going in in a 4 minute." No. I took them over in my office on several 5 different occasions and had lengthy conversations with him in 6 my office. 7 Q. Okay. So you had had visits where you sat down 8 with Joe, other than this August of '84 visit; is that right? 9 A. Yes. At the Hall of Justice in my office. 10 Q. But August '84 was the only time that you sat 11 down with Mr. Wesbecker in his home to make this formal -- 12 would it be an evaluation or something of that nature? 13 A. Home study, home visit. 14 Q. When in August of '84 you found Mr. Wesbecker 15 more calm than he had been on previous occasions? 16 A. Well, to answer your first question, yes, August 17 of '84 was the only time I went into the home and did a home 18 study. And, yes, in August of '84, to your second question, I 19 found him to be more calm and cooperative. 20 Q. Do I understand it that, as far as you could 21 see, Mr. Wesbecker's primary problem that he was having with 22 your recommendations was your recommendations that he and Sue 23 get counseling? 24 A. Yes. 25 Q. In other words, other than that recommendation, 86 1 Mr. Wesbecker had agreed with you that something needed to be 2 done as far as treatment for Jimmy; is that correct? 3 A. Well, let me put it this way: I think he agreed 4 something needed to be done; he didn't always agree with my 5 methods or ideas of how something would be done. 6 Q. Okay. Did you make any suggestions concerning 7 treatment of Jimmy that he resisted, that you recall? 8 A. I know he wasn't happy with my dispositional 9 recommendation, which was to commit Jimmy to the Cabinet for 10 Human Resources. This was upsetting, as you said, you know, 11 to any parents, to these parents that their son would be 12 committed. 13 Q. But they agreed that that was the only thing 14 that could be done, didn't they, to some extent? 15 A. Yeah. Pretty much to some extent, but yet they 16 weren't really happy about it. 17 Q. Of course not. Go ahead. I cut you off and I 18 apologize. 19 A. No. I'm finished. That's all right. 20 Q. All right. Did I understand in looking at your 21 report that when you originally talked to Mr. Wesbecker that 22 he had originally taken Jimmy to the doctor for treatment? 23 A. Golly, I'd have to look at my report. Can we 24 take time to do that? 25 Q. Sure. 87 1 A. Do you know where I refer to that? 2 Q. Let me see if I can... On the first page where 3 it says "Other agencies and persons which have worked with 4 child and family." Do you see that? 5 A. Yes. 6 Q. The first sentence there says, "Jimmy's first 7 contact with a professional agency was in approximately 19 -- 8 is that '81? 9 A. Yes, it is. 10 Q. -- "when his father took him for outpatient 11 therapy with Doctor Paul Schmidt," spelled S-C-H-M-I-D-T; 12 right? 13 A. Yes. That's correct. 14 Q. A Ph.D. psychologist; right? 15 A. Yes. It says that. 16 Q. It says, "Mr. Wesbecker states he took the 17 Defendant" -- meaning Jimmy; right? 18 A. Correct. 19 Q. -- "to Doctor Schmidt because, quote, he was 20 exposing himself and I knew he needed help," end quote. 21 Correct, ma'am? 22 A. That is correct. This report was written by me 23 ten years ago, and I apologize. 24 Q. Oh, that's fine. 25 A. You were right that he told me that he had taken 88 1 Jimmy for help. 2 Q. If you turn to the next page -- I think it's the 3 next page -- it's marked in the lower right-hand corner of the 4 page Child T Center, 790796. 5 A. Okay. 6 Q. Do you see that? It says in the third paragraph 7 there that starts "At this time"? 8 A. Yes. 9 Q. There at the -- I guess about the middle of the 10 paragraph, you express, "We have reached the point where 11 confinement in a long-term clinical setting until age 18 must 12 be the disposition of this case." Do you see that? 13 A. Yes. 14 Q. Is that what you were talking about earlier 15 where he was going to have to be confined until he got 18? 16 A. Yes. 17 Q. You go on to say there, "This is necessary for 18 Jimmy's best interests, as well as the protection of society." 19 Correct? 20 A. Yes. 21 Q. And you continue by saying, "Both of the 22 parents, as well as the grandparents, are in favor of this 23 action as they, too, agree it is the only resort left." 24 Right, ma'am? 25 A. Yes. That's correct. 89 1 Q. So both Joe and Sue agreed that this was the 2 only thing that could be done in connection with Jimmy? 3 A. Yes. Yes. 4 Q. But Joe I guess still continued -- well, at that 5 time was he still -- were you still recommending that he and 6 Sue, his ex-wife, have counseling? 7 A. Yes. Right up until the last day that I had 8 contact with this family I was recommending that. And I -- 9 Q. Was he still resisting it at the last? 10 A. Absolutely. 11 Q. And that was the primary source of conflict 12 between you and he, is your recommendation that he have this 13 joint counseling with his ex-wife? 14 A. Well, I would say that's the thing that angered 15 him the most, but I think there may have been some other less 16 upsetting things that he didn't like about me or about my 17 recommendations. 18 Q. Have you had an opportunity to visit with Mr. 19 Dan Mattingly with the -- also at the time apparently was a 20 Jefferson County employee working for the employment services, 21 helping in job discrimination complaints? 22 A. I have no idea who that is and, no, I've never 23 talked with him or met him. 24 Q. All right. You've never been advised that Mr. 25 Mattingly found Mr. Wesbecker a conscientious, articulate, 90 1 intelligent fellow who seemed to be likable? 2 A. I don't know this Dan Mattingly and, no, I've 3 never spoken to him. 4 Q. Would you agree with me, Ms. Minch, that this 5 was a situation where, I know for me it would be, if my child 6 were picked up by the criminal authorities and was exposing 7 himself as what Jimmy was charged, don't you agree that this 8 probably brings out the worst in folks? 9 A. I don't know if I can render an opinion about 10 that. I think it would be very upsetting, yes, to have a son 11 who was doing things like that. 12 Q. And Joe was upset? 13 A. Yes. 14 Q. But was continuing to do whatever he could, 15 other than the family counseling as you recommended? 16 A. Well, then he wasn't doing whatever he could 17 because that's what needed to be done, and he refused to do 18 something in his son's best interest. Many of us who were 19 professionals in the case were convinced that this behavior of 20 Jimmy's was because of the incredible dysfunction in this 21 family between these two parents, the years of antagonism, 22 cross warrants, arguing, hostility, bitterness. And if you 23 don't think that would upset a son who loves both of his 24 parents and cause him to act out and have behavioral problems, 25 believe me, it does. And, no, he did not do everything he 91 1 could have done to help his son with his problem. 2 Q. Ms. Minch, are you expressing the opinion here 3 that Joe Wesbecker caused Jimmy Wesbecker to engage in this 4 conduct? 5 A. I think that when parents have -- 6 Q. No. My question is: Are you expressing to this 7 jury your opinion that Joe Wesbecker was the cause of Jimmy's 8 exposure problem? 9 A. In part, yes, I think that he was. 10 Q. I noticed you had an envelope with you. Can I 11 see that? Oh, you have a letter. 12 A. My directions to Boehl, Stopher & Graves and 13 where to park. And this is my deposition and the report that 14 I had written. It's an old letter. I just grabbed it so I 15 would remember where the parking garage was. 16 Q. Okay. This is a letter from Mr. Stopher telling 17 you where to park next to his office when you gave your 18 deposition; is that right? 19 A. In the law offices of Boehl, Stopher & Graves, 20 yes. 21 Q. Right. And is that where you went this morning, 22 too? 23 A. I went there to wait to be told that it was time 24 to come down here and testify, yes. 25 Q. You waited in Mr. Stopher's office? 92 1 A. Well, in the front lobby of that law firm. 2 Q. All right. Thank you, Ms. Minch. 3 A. Okay. 4 JUDGE POTTER: Mr. Stopher? 5 MR. STOPER: Nothing further, Your Honor. 6 JUDGE POTTER: Thank you very much, ma'am. You 7 may step down; you're excused. 8 Mr. Stopher, do you want to call your next 9 witness? 10 MR. STOPHER: Yes, Your Honor. We will call Mr. 11 Michael Shea by videotape deposition. 12 JUDGE POTTER: Ladies and gentlemen, I know that 13 this deposition will take longer than lunchtime, so I'm going 14 to ask you, Mr. Stopher, if you'll follow along and find a 15 breaking point. And while they're setting that up, why 16 doesn't everybody kind of stand up and stretch yourself. 17 Okay. Please take your seat. Ladies and 18 gentlemen, I know you've heard me state this before. There's 19 a lot of things I say over and over. I do it because the 20 system thinks it's important and I think it's important. It's 21 a lot easier to do this when you have a video deposition, but 22 I'm still going to remind you that this is sworn testimony 23 that's taken outside the courtroom prior to trial. Each 24 person has an opportunity to be present, examine and 25 cross-examine the witness, and when that evidence is either 93 1 read for you or played for you, you would give it the same 2 weight and effect you would as if the person were here 3 testifying live. 4 JUROR DUNCAN: Mr. Stopher, can you push that 5 back some, please? 6 JUDGE POTTER: Is that all right with everybody? 7 VARIOUS JURORS: That's fine. 8 JUDGE POTTER: Okay. This is the deposition of 9 Michael Shea. 10 (THE VIDEO DEPOSITION OF MICHAEL SHEA BEGINS) 11 MR. STOPHER: Your Honor, the document that is 12 referred to there has already been identified and filed in 13 this case as Defendant's Exhibit 162. I do have extra copies 14 of this which I did not request to be pulled by the jury. 15 JUDGE POTTER: Ms. McBride. 16 COURT REPORTER: (Hands document to jurors). 17 (VIDEO DEPOSITION OF MICHAEL SHEA RESUMES) 18 MR. STOPHER: I think this is probably a good 19 place to break for lunch, Judge. 20 JUDGE POTTER: Ladies and gentlemen, we're going 21 to take the lunch recess at this time. As I've mentioned to 22 you-all before, do not permit anybody to communicate with you 23 about this case; do not discuss it among yourselves or form or 24 express opinions about it. We'll stand in recess till 2:00. 25 (LUNCH RECESS) 94 1 SHERIFF CECIL: All rise. The jury is entering. 2 All jurors are present. Court is back in session. 3 JUDGE POTTER: Please be seated. Mr. Stopher, 4 do you want to continue with the deposition? 5 MR. STOPHER: Yes, Your Honor. 6 (VIDEO DEPOSITION OF MICHAEL SHEA RESUMES) 7 MR. STOPHER: Your Honor, the exhibit that he's 8 referring to has been -- it is the personnel policy manual. 9 It's Defendant's Exhibit 160. There seems to be some 10 confusion as to whether only excerpts were distributed to the 11 jury or whether they have the full policy manual. 12 JUDGE POTTER: They have excerpts that were 13 distributed. 14 MR. STOPHER: We can distribute pursuant to the 15 request of the Plaintiffs a complete copy. 16 JUDGE POTTER: Ms. McBride. 17 COURT REPORTER: (Hands document to jurors). 18 (VIDEO DEPOSITION OF MICHAEL SHEA RESUMES) 19 MR. STOPHER: This is Defendant's 155, Your 20 Honor. It's already in evidence. 21 (VIDEO DEPOSITION OF MICHAEL SHEA RESUMES) 22 MR. STOPHER: This is Defendant's Exhibit 154. 23 (VIDEO DEPOSITION OF MICHAEL SHEA CONTINUES) 24 MR. STOPHER: This is Defendant's Exhibit 158, 25 Your Honor. It's been previously introduced. 95 1 (VIDEO DEPOSITION OF MICHAEL SHEA CONTINUES) 2 JUDGE POTTER: I'll tell you what, ladies and 3 gentlemen, while he's changing tapes why doesn't everybody 4 stand up. We won't take a break, but just kind of stretch. 5 Please be seated. 6 (VIDEO DEPOSITION OF MICHAEL SHEA RESUMES) 7 MR. STOPHER: I think this is probably a good 8 place to break. 9 Ladies and gentlemen of the jury, we're going to 10 take the afternoon recess. As I've mentioned to you-all 11 before, do not let anybody communicate with you about this 12 case; do not discuss it among yourselves and do not form or 13 express any opinions about it. We'll stand in recess for 15 14 minutes. 15 (RECESS) 16 SHERIFF CECIL: All rise. The jury is entering. 17 All jurors are present. Court is back in session. 18 JUDGE POTTER: Please be seated. 19 Mr. Stopher, do you want to continue the 20 deposition? 21 MR. STOPHER: Yes, Your Honor. 22 (VIDEO DEPOSITION OF MICHAEL SHEA RESUMES; 23 BENCH DISCUSSION) 24 MS. ZETTLER: These pages to -- my objections to 25 this were all sustained, 145, 23 through 25, through 148, 1 96 1 through 24. 2 JUDGE POTTER: Well, all I can say is at the 3 time when we went back and looked at depositions or looked at 4 my notes to decide whether this should stay in or out, quite 5 frankly, at this time I can't remember. 6 MS. ZETTLER: My notes at the time say they were 7 sustained. 8 MR. MYERS: My notes say, Judge, on 145 to 148 9 that they were overruled, except Lines 11 through 24 on 148 10 were to come out. 11 JUDGE POTTER: What was to come out? 12 MR. MYERS: 11 through 24 on 148: Let me ask 13 you to assume that many employees have testified. 14 JUDGE POTTER: Let me get my notes. 15 (JUDGE POTTER LEAVES AND REENTERS COURTROOM) 16 MS. ZETTLER: 145 through 148. 17 JUDGE POTTER: Mr. Myers' notes conform with 18 mine, so go ahead and read it. 19 MS. ZETTLER: Can you also tell me what you 20 ruled on 141 through 144 because I have it sustained except 21 for 143, Line 4 through 8, because 141 and 142 have been read 22 in. I'm in the position of having to make another objection 23 again, Judge. I'm just going to enter an objection. I think 24 there have been mistakes made in this cut. 25 (BENCH DISCUSSION CONCLUDED) 97 1 JUDGE POTTER: Go ahead, Mr. Stopher. 2 MR. STOPHER: Okay. 3 (VIDEO DEPOSITION OF MICHAEL SHEA RESUMES) 4 MR. STOPHER: This is Defendant's Exhibit 305, 5 Your Honor. 6 JUDGE POTTER: Be admitted. 7 SHERIFF CECIL: (Hands document to jurors). 8 (VIDEO DEPOSITION OF MICHAEL SHEA RESUMES) 9 MR. STOPHER: This one is just seven minutes, 10 Your Honor. 11 JUDGE POTTER: Okay. 12 (VIDEO DEPOSITION OF MICHAEL SHEA CONCLUDES) 13 MR. STOPHER: That concludes that deposition, 14 Your Honor. We would next call Rebecca Wade. 15 JUDGE POTTER: Ma'am, would you step down here 16 and raise your right hand, please. 17 18 REBECCA WADE, after first being duly sworn, was 19 examined and testified as follows: 20 21 JUDGE POTTER: Would you walk around, have a 22 seat in the witness box and say -- once you get there, say 23 your name loud and clearly for the jury and then spell it for 24 me, please. 25 MS. WADE: My name is Rebecca Wade. I work for 98 1 the Louisville Water Company. I'm a customer service manager. 2 JUDGE POTTER: Okay. And if you'll keep your 3 voice up and answer Mr. Stopher's questions. 4 5 EXAMINATION ___________ 6 7 BY_MR._STOPHER: __ ___ _______ 8 Q. Ms. Wade, just a very few questions. You're 9 employed by the Louisville Water Company as a customer service 10 manager? 11 A. That's correct. 12 Q. Ms. Wade, at my request have you searched the 13 records of the Louisville Water Company with regard to the 14 residence at 7300 Nottoway Circle, in Louisville, Kentucky? 15 A. Yes. 16 Q. And have you searched those records to determine 17 when service, that is, water service was on and when it was 18 off at that address? 19 A. I searched the records for a period of time and 20 I did locate an occasion where the service was turned off and 21 turned back on, yes. 22 Q. And can you tell us, first of all, when the 23 service was turned off? 24 A. I'm sorry. I don't have the records in front of 25 me. Could you... 99 1 Q. Certainly. I'll be glad to show it to you. 2 This is the package of documents. There's documents following 3 that. 4 A. (Reviews document) We received a service order 5 request for the service to be discontinued on February the 6 7th, 1989. 7 Q. Excuse me. What was the date on which the water 8 was cut off? 9 A. On February the 7th, 1989. 10 Q. February 7, 1989? 11 A. That's correct. 12 Q. And when was service resumed or reconnected at 13 7300 Nottoway? 14 A. It was reinstated on April the 28th, 1989. 15 Q. Was this voluntary or involuntary? 16 A. It was voluntary. 17 Q. The shutoff was? 18 A. Yes, sir. 19 Q. Do the records indicate, Ms. Wade, specifically 20 who had it shut off on February 7, 1989? 21 A. No, sir; they do not. 22 Q. Do they indicate who had the service restored on 23 April 28th, 1989? 24 A. It's indicated that the service request was 25 received by the husband. 100 1 Q. And, Ms. Wade, is it part of your job to keep 2 and maintain these records and to produce them pursuant to 3 subpoenas and court requests like today? 4 A. Yes. 5 Q. And are these dates accurate according to the 6 records of the Louisville Water Company? 7 A. Yes. 8 Q. That's all I have, ma'am. 9 MS. ZETTLER: Just a couple quick questions, 10 Judge. 11 JUDGE POTTER: Okay. 12 13 EXAMINATION ___________ 14 15 BY_MS._ZETTLER: __ ___ ________ 16 Q. Ms. Wade, when the water was disconnected in 17 February 1989, isn't it true that there was a request that it 18 be taken out of Brenda Wesbecker's name? 19 A. That's correct. 20 Q. And then Mr. Wesbecker is the person who called 21 to have the water turned back on; isn't that correct? 22 A. The only indication we have is that the husband 23 called the request in. We don't know for sure if it was 24 Mr. Wesbecker or not. 25 Q. Somebody calling representing that they were the 101 1 husband of Brenda Wesbecker called and asked to turn the water 2 back on in April of 1989? 3 A. That's correct. 4 Q. Thank you. That's all I have. 5 JUDGE POTTER: Thank you very much. You may 6 step down; you're excused. Is there an exhibit? 7 MR. STOPHER: Your Honor, I don't think it's 8 necessary. We've got enough papers. 9 JUDGE POTTER: You want to call your next 10 witness? 11 MR. STOPHER: Yes, sir. Also another short 12 witness, I hope. Mr. John Henry. 13 JUDGE POTTER: Sir, could I get you to step down 14 here and raise your right hand, please: 15 16 JOHN HENRY, after first being duly sworn, was 17 examined and testified as follows: 18 19 JUDGE POTTER: Okay. Would you have a walk 20 around, have a seat in the witness box and give your name for 21 us loud and clearly and then spell it. 22 MR. HENRY: John Joseph Henry, III. 23 JUDGE POTTER: I guess it's H-E-N-R-Y? 24 MR. HENRY: H-E-N-R-Y. Yes, sir. 25 JUDGE POTTER: Okay. Answer Mr. Stopher's 102 1 questions. 2 3 EXAMINATION ___________ 4 5 BY_MR._STOPHER: __ ___ ________ 6 Q. Mr. Henry, could I ask you to do us all a favor 7 and get just a little bit closer to that microphone. 8 A. Yes, sir. 9 Q. And let me ask you to speak up because everyone 10 wants to hear even the short testimony that you have, sir. 11 Mr. Henry, first of all, where do you live? 12 A. 2504 Wilkerson Avenue. 13 Q. And how old are you, sir? 14 A. Forty-three. 15 Q. And, Mr. Henry, by whom are you employed? 16 A. I'm disabled. 17 Q. And have you done work as a home fix-up or 18 repairman from time to time, sir? 19 A. Yes, sir. 20 Q. About how long have you been doing that kind of 21 work? 22 A. About 20 years or so. 23 Q. All right, sir. Mr. Henry, did you ever have an 24 occasion to be in the home of Joseph Wesbecker at 7300 25 Nottoway Circle in Louisville, sir? 103 1 A. Yes, sir. 2 Q. Would you tell us, first of all, how it came 3 about that you were in that home? 4 A. I started my own company called the Handyman 5 Company, was registered to do business in the City of 6 Louisville, and as part of my business or advertisement I made 7 fliers and business cards and gave them out door to door in 8 certain areas of the city. And one of the areas was in the 9 Iroquois Heights subdivision, which Nottoway is in that 10 subdivision. 11 Q. And how did it happen that you came in contact 12 with Mr. Wesbecker or he with you? 13 A. I put a flier on his door and I got a phone call 14 one afternoon from him to come and take a look at a project 15 that he wanted done. 16 Q. And did you do that? 17 A. Yes. 18 Q. What was the project, as best you recall, sir? 19 A. The tiles in his bathroom on the floor and the 20 walls, some of the tiles in the floor were loose and coming up 21 and the grout in between the tiles on the walls needed to be 22 redone. 23 Q. And did you give him an estimate or a bid to do 24 that work, sir? 25 A. Yes, I did. 104 1 Q. Did he accept that and did you go do the work, 2 sir? 3 A. Yes. 4 Q. When you went to do the work, did you go alone? 5 A. Yes. 6 Q. Just you in the home doing the regrouting work 7 or the tile work? 8 A. Yes, sir. 9 Q. And who else was there in the home besides 10 yourself? 11 A. Just Mr. Wesbecker. 12 Q. Was the water running in that house, sir? 13 A. No, sir. 14 Q. Did you need water to do the work? 15 A. Yes, sir. 16 Q. How did -- how did you get water? 17 A. The grout that I put in comes in a powder form 18 and you have to have water in order to mix it with to grout 19 and also to clean the tiles off after you do the job. I told 20 him that I needed water and he would take a bucket and go get 21 the water outside of the house. 22 Q. Would he bring in the bucket of water and then 23 give it to you? 24 A. Yes. 25 Q. Mr. Henry, while you were doing that, did he 105 1 make just one trip for water? 2 A. No. Several trips. 3 Q. Do you know where he went to get the water? 4 A. I don't have any idea. It wasn't in the house. 5 Q. All right, sir. Mr. Henry, while you were 6 there, can you tell us approximately how long you worked in 7 the home, sir? 8 A. Regrout a bathroom, a normal bathroom takes me 9 anywhere from six to eight hours. 10 Q. So it was a job that you did in either one or 11 two days, perhaps? 12 A. The first day I went basically just to look at 13 the job and give him an estimate, and the second day I went 14 back and did the work. 15 Q. During that period of time, sir, did the phone 16 ever ring? 17 A. No. 18 Q. Did anybody ever come see him? 19 A. No. 20 Q. Did he go any place? 21 A. Not to the best of my knowledge. 22 Q. What do you recall about him and his activities 23 while you were there, sir? 24 A. Basically, the first day I didn't -- just seemed 25 like a normal house other than, you know, there weren't very 106 1 many lights on in the house and then the second day when I 2 went, still there were not very many lights. The curtains 3 weren't opened. The TV in the den was on and the bathroom 4 light where I was working, and basically that was it. 5 Q. Did you have any conversation with Mr. Wesbecker 6 while you were there, sir? 7 A. Not very much, other than one time I went 8 looking for him because I needed more water. And then at the 9 end of the job we talked for just a little while. 10 Q. Did you -- you went -- you had a conversation 11 when you went looking for water. What do you recall about 12 that? 13 A. Basically there came a point in the job where I 14 needed some more water, and I took the bucket and he wasn't up 15 there, so I went down into the den or down into the house 16 looking for him and I didn't find him, and then I went down 17 into the den and the TV was on so I figured he might be down 18 there and just didn't hear me call. And I stepped down inside 19 the den and hollered his name several times and no answer. 20 And so I thought, well, maybe he stepped out and I didn't want 21 to seem like I was snooping through the house or something, so 22 I turned around and got to go back up the steps and I got 23 about three or four steps up and there he was behind me. 24 Q. You mentioned at the end of the job you had some 25 conversation with or talk with him, did I understand you? 107 1 A. Yes. Yes. 2 Q. What do you recall about that, sir? 3 A. After the job was over and I had him to go back 4 up with me and look at everything and make sure the bathroom 5 looked all right, and I explained to him about the next day he 6 would have to take a towel and wipe the dust off a little bit. 7 We just kind of got talking and he asked me if this was the 8 only kind of work I had ever done and I told him no, I had 9 been a printer for about 20 years, and that at one point 10 before I opened the Handyman Company I worked for Naval 11 Ordnance, and while I was on probation there as a new employee 12 I got injured and they terminated me, and I expressed to him I 13 got a raw deal. 14 He then expressed to me that he had a similar 15 experience, that he had worked at Standard Gravure and had 16 gotten a bad deal or a raw deal, and his comment was, "But 17 that's okay. They're going to pay for it." And then I asked 18 him when I understood that he worked at Standard Gravure at 19 sometime, I don't know whether it was then or before, I knew a 20 couple people who worked at Standard Gravure and asked him if 21 he knew of any of them, and one of them he did. Basically 22 that was the conversation. 23 Q. Did he tell you what they had done wrong to him? 24 A. No. He just said they had give him a raw deal. 25 Q. Did he say what he was going to do to make them 108 1 pay for it? 2 A. No. 3 Q. Did -- is that the only occasion that you were 4 there, sir, and the only conversations that you had with Mr. 5 Wesbecker? 6 A. Yes, sir. 7 Q. And during the entire time that you were there, 8 if I understand correctly, there was no water service in the 9 house? 10 A. No, sir. 11 Q. Thank you, sir. That's all I have. 12 JUDGE POTTER: Mr. Smith. 13 14 EXAMINATION ___________ 15 16 BY_MR._SMITH: __ ___ ______ 17 Q. Mr. Henry, I'm Paul Smith, I represent the 18 Plaintiffs in this case. I'll try to be brief with you. My 19 notes -- in looking at your deposition I'm a little unsure as 20 to when you were at Mr. Wesbecker's house in 1989 to do this 21 job. 22 A. Well, I wasn't sure either at first, and through 23 the time since my deposition and stuff, my wife and I 24 discussed basically when we thought it was, and the best we 25 could come up with was probably early spring, February or 109 1 March of that year. 2 Q. February or March 1989? 3 A. Yes, sir. 4 Q. Was it sunny and warm outside? 5 A. It was sunny outside. As far as whether it was 6 warm or cold, I basically couldn't tell you. I can't 7 remember. I do know it was a sunny day. 8 Q. You mentioned it was either February or March in 9 your deposition and then you mentioned also in another place 10 it might have been August or September. Obviously, if it 11 would have been August or September it would have been hot, 12 and you don't recall it being hot? 13 A. After discussing it with my wife and determining 14 where I lived at the time and things that had gone on at the 15 time that the job was done, we narrowed it down to it wasn't 16 in August. It was early spring. 17 Q. Early spring. All right. So in early spring 18 1989 you were in Mr. Joseph Wesbecker's home on two occasions; 19 is that right, sir? 20 A. Yes. 21 Q. And you were there just briefly the first day to 22 make an estimate? 23 A. About an hour. 24 Q. About an hour? 25 A. Yes, sir. 110 1 Q. And did Mr. Wesbecker show you what he wanted 2 done? 3 A. Yes, sir. 4 Q. And did he take you into the bathroom and show 5 you the bathroom so you could take a look at it? 6 A. Yes, sir. 7 Q. And did you and he discuss what would be 8 necessary to do this work in the bathroom? 9 A. Yes, sir. It was especially the loose tiles. 10 He was more concerned with the tiles that were coming up off 11 the floor. 12 Q. This was just a normal repair, in your mind, or 13 did he mention something about the fact that he was living on 14 Blevins Gap or in Blevins Gap and just staying at where you 15 were part time? 16 A. No, sir. He didn't mention that. 17 Q. Okay. Did he give you any reason specifically 18 as to why he was having this job done? 19 A. I think he basically said he was concerned 20 because of the loose tiles on the floor. Of course, when you 21 take a shower or a bath you get out, water gets in the floor, 22 and with those tiles loose I think he was basically afraid of 23 the rotting of the wood underneath that. 24 Q. All right. So this was maintenance that he was 25 doing on the bathroom? 111 1 A. Yes, sir. 2 Q. Did he, Mr. Wesbecker, seem pleasant to you on 3 that first occasion when you met him in February or March? 4 A. Pretty much so, other than he didn't talk a 5 whole lot. 6 Q. But he didn't seem -- didn't threaten you? 7 A. No, sir. 8 Q. Didn't do anything to make you fear him in 9 February or March 1989? 10 A. No, sir. No, sir. 11 Q. And then didn't in fact he give you some money 12 in advance for this job for the materials you were going to 13 have to buy? 14 A. Yes, sir. That was usually my procedure when I 15 did a bathroom. 16 Q. And he didn't argue with you about that? 17 A. Oh, no. Hunh-uh. 18 Q. He readily agreed to do that in a businesslike 19 manner; is that right, sir? 20 A. Yes, sir. 21 Q. Then after you did the work the next day he 22 readily paid you for this work? 23 A. Yes, sir. 24 Q. He didn't argue with you about the quality of 25 work you had done or the amount you were charging? 112 1 A. No, sir. He was well pleased. 2 Q. He was well pleased and well mannered, also, was 3 he not? 4 A. Yes. 5 Q. I believe you've expressed that he appeared to 6 be tidy and quiet? 7 A. Yes, sir. 8 Q. The house was very clean also in February or 9 March of 1989? 10 A. One of the cleanest I've ever been in. 11 Q. Beg your pardon? 12 A. One of the cleanest I've ever been in. 13 Q. Describe to the jury the condition of the house. 14 A. Everything was spotless, everything had a place 15 and everything was in its place. There were no dirty clothes. 16 There were no dirty dishes. There were no dirty towels or 17 washrags in the bathroom. Everything was perfect. 18 Q. Well, I take it by that, then, you didn't see 19 any evidence that Mr. Wesbecker had been urinating in cans 20 there in the house in February or March of 1989? 21 A. No, sir. No, sir. 22 Q. And you didn't smell any foul odor? 23 A. No, sir. 24 Q. Everything was, what did you say, in its place? 25 A. Everything was in its place. 113 1 Q. You had advised Mr. Wesbecker as you were 2 leaving that you were disabled; is that right? 3 A. No. I wasn't disabled at the time. 4 Q. Okay. You had had some on-the-job injury? 5 A. Yes. 6 Q. And that was the reason you were no longer a 7 pressman yourself? 8 A. Well, when I was working at Naval Ordnance I 9 wasn't working in the printing field. And I explained to him 10 what I was doing and that I had injured myself and they had 11 terminated me while I was off under doctor's care. 12 Q. All right. What was it Mr. Wesbecker said that 13 was derogatory toward Standard? 14 A. He said they had given him a raw deal, but that 15 was okay, they were going to pay for it. 16 Q. They were going to pay for it? 17 A. Yes, sir. 18 Q. And you didn't take it as a threat at the time, 19 did you? 20 A. Not any more than if you told me that now. You 21 don't think about it when two people are just talking. It 22 wasn't like a threat; it was just something said to you every 23 day. 24 Q. This was just ordinary conversation about 25 complaints about work in general, wasn't it? 114 1 A. Yes, sir. Yes, sir. 2 Q. And you didn't perceive Mr. Wesbecker as violent 3 or being homicidal in February or March of 1989, did you? 4 A. No, sir. 5 Q. And Mr. Wesbecker -- I assume when you say he 6 came up behind you earlier that day when you-all were -- when 7 you were looking for him? 8 A. Yes, sir. 9 Q. This was just something coincidental. He 10 obviously didn't hear you -- you didn't get the impression he 11 was trying to sneak up on you and scare you or anything? 12 A. No. He did scare me, but I didn't get the 13 impression he did it on purpose. 14 Q. All right. Thank you, Mr. Henry. I appreciate 15 it. 16 JUDGE POTTER: Anything else, Mr. Stopher? 17 18 FURTHER_EXAMINATION _______ ___________ 19 20 BY_MR._STOPHER:. __ ___ ________ 21 Q. Mr. Henry, just a couple of other questions, 22 sir. When he made those statements to you about Standard 23 Gravure, did he change? 24 A. When we were first talking he was pretty 25 pleasant, you know, just a normal person, and I always look at 115 1 someone when I'm talking to them. That's been a practice for 2 a long time. And his facial expression changed. You could 3 tell that his mood changed. He wasn't like he was just before 4 we talked about that. And then as quick as -- basically quick 5 as he said that and I mentioned the guy's name, he was ready 6 for me to go. 7 Q. When his mood changed when he was talking about 8 Standard Gravure, was it more jovial or how would you describe 9 it? 10 A. More serious. 11 Q. Did you describe it once under oath, sir, as 12 being very disturbed? 13 A. Yes, sir. 14 Q. Is that still accurate? 15 A. Yes, sir. 16 Q. Thank you, sir. 17 18 FURTHER_EXAMINATION _______ ___________ 19 20 BY_MR._SMITH: __ ___ _____ 21 Q. But, again, you didn't take that as a threat 22 when he said Standard would pay? 23 A. No, sir. No, sir. 24 JUDGE POTTER: Thank you very much, sir. You 25 may step down; you're excused. 116 1 Ladies and gentlemen of the jury, we're going to 2 take the recess for the evening. As I've mentioned to you-all 3 before, do not let anybody give you any information about this 4 case. Don't talk about the case with anybody, including each 5 other, and do not form or express opinions about it. Tomorrow 6 is a half day. Okay. We'll be in recess till 9:00. 7 (PROCEEDINGS TERMINATED THIS DATE AT 5:00 P.M.) 8 * * * 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 117 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 118 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