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 TUESDAY, NOVEMBER 29, 1994 15 VOLUME XLI 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 I_N_D_E_X _ _ _ _ _ 2 Hearing in Chambers on Deposition Objections............. 4 3 WITNESS: DR._ROBERT_BEANBLOSSOM (By Deposition) _______ ___ ______ ___________ 4 By Mr. Stopher........................................... 21 5 WITNESS: DR._DANIEL_DURAN (By Deposition) _______ ___ ______ _____ 6 By Mr. Stopher........................................... 30 7 WITNESS: CAROLE_MAXIM _______ ______ _____ 8 By Mr. Stopher........................................... 47 By Mr. Smith............................................. 56 9 WITNESS: KRISA_COOPER _______ _____ ______ 10 By Mr. Stopher........................................... 60 11 By Mr. Smith............................................. 69 12 WITNESS: DR._VICDAN_SENLER (By Deposition) _______ ___ ______ ______ 13 By Mr. Stopher........................................... 76 14 WITNESS: BARBARA_SHEEHAN _______ _______ _______ 15 By Mr. Stopher...........................................117 By Ms. Zettler...........................................139 16 WITNESS: DEE_EWEN _______ ___ ____ 17 By Mr. Stopher...........................................146 18 By Ms. Zettler...........................................170 19 WITNESS: DR._DAVID_P._MOORE (By Deposition) _______ ___ _____ __ _____ 20 By Mr. Stopher...........................................176 21 WITNESS: DR._THEODORE_SCHRAMM (By Deposition) _______ ___ ________ _______ 22 By Mr. Stopher...........................................209 23 Hearing in Chambers......................................246 Reporter's Certificate...................................250 24 * * * 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 FOR THE PLAINTIFFS: 4 PAUL L. SMITH 5 Suite 745 Campbell Center II 6 8150 North Central Expressway Dallas, Texas 75206 7 NANCY ZETTLER 8 1405 West Norwell Lane Schaumburg, Illinois 60193 9 IRVIN D. FOLEY 10 Rubin, Hays & Foley 300 North, First Trust Centre 11 Louisville, Kentucky 40202 12 FOR THE DEFENDANT: 13 EDWARD H. STOPHER Boehl, Stopher & Graves 14 2300 Providian Center Louisville, Kentucky 40202 15 JOE C. FREEMAN, JR. 16 LAWRENCE J. MYERS Freeman & Hawkins 17 4000 One Peachtree Center 303 Peachtree Street, N.E. 18 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 Tuesday, November 29, 1994, at approximately 7:20 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 JUDGE POTTER: We're in the deposition of -- 11 MR. MYERS: Mr. Lattray. 12 JUDGE POTTER: And he is who? 13 MR. MYERS: A Fawcett pressman who worked with 14 Wesbecker in the old days. 15 JUDGE POTTER: Okay. 16 MS. ZETTLER: He's kind of like Mr. Conn. 17 JUDGE POTTER: Okay. Without heart problems. 18 MS. ZETTLER: No. Mr. Conn is the guy who did 19 time. 20 MR. MYERS: Mr. Croft was -- 21 JUDGE POTTER: Okay. 22 MS. ZETTLER: We have an objection at Page 53, 23 Judge, starting at Line 17, the question that's from 17 24 through 19. 25 JUDGE POTTER: And then the answer's on the next 5 1 page, I guess. 2 MS. ZETTLER: The answer, yeah. 3 JUDGE POTTER: All right. Let me see. 4 MS. ZETTLER: Our objection to this, Judge, is 5 that it calls for a medical conclusion or opinion that this 6 guy is not qualified to render. I mean, if he said if he ever 7 looked depressed or things like that, that might be a 8 different story, but he's asking him if he had a problem with 9 depression. 10 MR. MYERS: He said the way he looked, the way 11 he acted. 12 JUDGE POTTER: Yeah. I think it's a layman's 13 type of a thing and it's just a lead-in for the next part, so 14 53 and 54 is overruled. 15 MS. ZETTLER: Okay. And the other one is at 16 Page 71 and 72, Judge, starting at Line 7 through 14. 17 JUDGE POTTER: Sustained. 18 MS. ZETTLER: Thank you. And then, Larry, I'm 19 going to not read the last part. 20 MR. MYERS: Right. 21 MS. ZETTLER: Who do you want to do next? 22 JUDGE POTTER: Whichever order you think they're 23 likely to come up in. 24 MR. MYERS: Schramm and Moore, I think 25 they're... 6 1 MS. ZETTLER: Moore actually came first, so we 2 might as well do him. 3 JUDGE POTTER: The machine is warmed up so let 4 me go copy these. 5 (JUDGE POTTER LEAVES AND REENTERS CHAMBERS) 6 JUDGE POTTER: Mr. Moore is first. 7 MS. ZETTLER: Doctor Moore. He's another doctor 8 in the long line of psychiatric care providers. 9 MS. ZETTLER: Judge, I think a lot of these 10 we'll probably be able to cruise through pretty quick because 11 a lot of them are things where people are just introducing 12 themselves and stuff, but Larry and I have already talked 13 about it, and I don't think there's going to be a problem with 14 it. 15 JUDGE POTTER: All right. Let me look. Okay. 16 No. 8, I mean, that's his going-in history; overruled. 17 16, 6 and 7. 18 MS. ZETTLER: Yeah, that's this, "Doctor Moore, 19 my name is Carl Bensinger, I represent..." 20 MR. MYERS: Yeah. That's not a problem. 21 JUDGE POTTER: Okay. 22 MS. ZETTLER: Also, at the bottom of the page, 23 now this one gets a little bit weird starting at Line 23, I 24 believe, on Page 16, it says -- it's really kind of a colloquy 25 between the lawyers. It says, "Do you have a copy of the 7 1 letter you sent to the nurse at Standard Gravure." 2 JUDGE POTTER: Let me read it. 3 MR. MYERS: You just want 23 through 25 out and 4 Line 1, or do you want through all the -- 5 MS. ZETTLER: No. No. Just 23 through 25 and 6 Line 1 on the next page. 7 MR. MYERS: That's fine. 8 JUDGE POTTER: I take it he did not designate 9 all of the colloquy? 10 MS. ZETTLER: Not all of it; right. 11 JUDGE POTTER: Okay. 20. 12 MS. ZETTLER: And I agree Stuart Alexander kind 13 of jumps in, but it's -- 20 is another "I'm Stuart Alexander." 14 MR. MYERS: Yeah. That's fine. 15 JUDGE POTTER: 22, let me take a look at it. 16 Where does the designation start? 17 MS. ZETTLER: Let me show you what I did here. 18 My problem with this is that he talked about Mark Gaston, an 19 attorney, regarding this case and he also talks about contact 20 with the coroner's office which -- 21 JUDGE POTTER: All this was designated; right? 22 MS. ZETTLER: Right. All this is designated. 23 JUDGE POTTER: Let me read it through then. 24 MS. ZETTER: Okay. What I really want out is 25 Gaston and the coroner's inquest. 8 1 MR. MYERS: If it will help, I'll take out the 2 reference to the coroner's inquest, but I think Gaston has to 3 do with the Human Relations complaint. 4 MS. ZETTLER: But that's never established -- 5 JUDGE POTTER: Well, wait just a second. Mr. 6 Lampton is? 7 MR. MYERS: He was the employee assistance 8 program counselor. 9 JUDGE POTTER: Yeah. Okay. As to 22 -- let me 10 ask you this, Mr. Myers. What is the relevance of, "Did you 11 have any contact with any persons" -- I mean, this whole line 12 of questions? 13 MR. MYERS: Well, except as relates to the 14 coroner's inquest, just the fact that his health care 15 providers were involved intimately in the claim he had against 16 Standard Gravure with the Human Relations Commission, but I 17 agree that the reference to the coroner's inquest ought to 18 come out. 19 JUDGE POTTER: All right. So take that out, you 20 take out contact with the coroner's office subsequent to, yes, 21 his death, yes, so you take out Lines 6 -- second half of Line 22 6 through Line 11. 23 MR. MYERS: Oh, through 11? 24 MS. ZETTLER: Because it says, "subsequent to 25 the coroner." 9 1 MR. MYERS: All right. 2 JUDGE POTTER: And the rest of it they explain 3 who Mark Gaston is. 4 MS. ZETTLER: Actually, they don't, Judge. 5 That's the problem. I mean, I have no problem if you want to 6 keep in "I had contact with a Mark H. Gaston" and take out "an 7 attorney regarding this case." 8 MR. MYERS: Let me see if I can get at it this 9 way. There are already records in evidence that show the 10 Human Relations Commission complaint and that have these 11 people's names all over letters and things. 12 JUDGE POTTER: But he explains down here. All 13 right. 23. 14 MR. MYERS: 7 to 9, we'll take out. 15 JUDGE POTTER: Okay. 23 and 24, it probably has 16 been asked and answered but these people -- these jurors are 17 not at all familiar with that. It won't hurt to have it told 18 to them again. 19 MR. MYERS: We'll take out the offensive parts 20 on 35 and 37. 21 JUDGE POTTER: Okay. 40. Did he give kind of 22 his CV up front? 23 MS. ZETTLER: Yeah. 24 JUDGE POTTER: All right. I'm going to sustain 25 40 and 41. 10 1 MR. MYERS: Judge, why don't I give you back 2 your notes on Mr. Lattray so you can have those. 3 JUDGE POTTER: Okay. 4 MS. ZETTLER: This is it, folks, the final 5 deposition. 6 MR. MYERS: Mr. Stopher's not here so don't -- 7 MS. ZETTLER: Yeah. Really get too excited. 8 Maybe if we collectively gang up on him if he designates some 9 more. 10 JUDGE POTTER: Doctor Schramm. 11 MR. MYERS: Psychiatrist. 12 JUDGE POTTER: When was he treating? 13 MS. ZETTLER: '87. 14 MR. MYERS: Yeah. March of '87. 15 JUDGE POTTER: So he was right before Coleman? 16 MS. ZETTLER: Right. 17 JUDGE POTTER: He was the guy he became 18 suspicious of or something? 19 MS. ZETTLER: He's the guy that treated him at 20 Our Lady of Peace and wanted him to go into group therapy and 21 he didn't want to go. 22 JUDGE POTTER: That's right. Group therapy. 23 MS. ZETTLER: Yeah. 24 JUDGE POTTER: 13 is sustained. 25 MR. MYERS: We'll take that out, those things 11 1 out on 34 and 35. 2 JUDGE POTTER: Okay. 43. I suspect that's a 3 legitimate objection. 4 MS. ZETTLER: Oh, guys, on 35, if we can go back 5 real quick, you're going to take that out, too, this, "I 6 represent"? 7 MR. MYERS: Yeah. 8 MS. ZETTLER: Oh, okay. And you're also 9 agreeing to take out the question with the stuff about Berman 10 or whatever? 11 MR. MYERS: Yeah. Whatever's on this page here. 12 MS. ZETTLER: Okay. The problem is I don't have 13 numbers on my copy here. 14 MR. MYERS: I don't follow 43. 15 MS. ZETTLER: It's Question 190. 16 JUDGE POTTER: Let me read it. I think 43 is 17 him finishing a quote. He says, "Discuss job procedures 18 magnified by alcoholics who don't admit to problem but there 19 is some ways he can get back at them, such as speeding up the 20 line." Then he asks his question: "Doctor, the question is: 21 Did Mr. Wesbecker ever discuss..." 22 MR. MYERS: That's another question. 23 JUDGE POTTER: I think he's reading back some 24 notes to her preparatory to the question. 25 MR. MYERS: That's right. That's right. 12 1 JUDGE POTTER: I assume that's what he's doing. 2 45 and 46. Okay. 45 and 46 are overruled. 3 MS. ZETTLER: Somebody made an objection on the 4 record and everything, Judge. 5 JUDGE POTTER: I almost gave it to him because 6 it had a basis and was spelled out, but then it was harmless. 7 MR. MYERS: We'll take out 21 through 24 on 46. 8 JUDGE POTTER: Okay. 48. 9 MR. MYERS: You want me to take out Mr. Segal, 10 that you were asked about? 11 MS. ZETTLER: Yes. Just the thing, "The nursing 12 assessment that you were asked about, do you recall ever 13 seeing that?" 14 MR. MYERS: Okay. 15 MS. ZETTLER: And 49 is another preparatory 16 comment. 17 MR. MYERS: We'll take that out. 18 MS. ZETTLER: 50 is the same thing. 19 MR. MYERS: We'll take that out. 20 JUDGE POTTER: All right. I'm going to sustain 21 58. 22 MR. MYERS: Judge, just for the record, our 23 position on that is that even though these conversations were 24 after the fact, the expert testimony on both sides has been 25 that treatment efforts for Mr. Wesbecker were unsuccessful and 13 1 this simply confirms it from his treating physicians. 2 MS. ZETTLER: It's a commiseration. 3 MR. MYERS: I'll take out 59 and 60. 4 JUDGE POTTER: Okay. 5 MS. ZETTLER: All of 60? 6 MR. MYERS: I'm sorry. 59 is the first one. 7 And let me go to the next one. And we'll take out 12 through 8 20, as well. 9 MS. ZETTLER: Okay. 10 JUDGE POTTER: 63. Wait, let me read this. 11 MS. ZETTLER: Okay. 12 MR. MYERS: If the objection is just to take out 13 Line 8 and Line 10, I'll do that. 14 MS. ZETTLER: That's fine. That's all I want. 15 Now, I noticed one thing, guys, if we could go back to 38, I 16 missed one that I didn't write down. And it starts at line -- 17 hold on a second. It starts at Question 168, I don't know if 18 that helps. I don't have lines on my copy. 19 MR. MYERS: Page 38, Line 11 through where, 20 Nancy? 21 MS. ZETTLER: Through the end. Is that 25 or 24 22 lines on this page? 23 JUDGE POTTER: 25. 24 MS. ZETTLER: This is just colloquy between the 25 counsel -- oh, wait a second. You're right. I'm sorry. I 14 1 take that back. The reason I thought -- I was doing this late 2 last night. 3 JUDGE POTTER: So 38 is okay? 4 MS. ZETTLER: 38 is withdrawn. Yeah. 5 JUDGE POTTER: All right. Now, you-all have an 6 hour and fifteen minutes to do nothing. 7 (RECESS; BENCH DISCUSSION) 8 MR. STOPHER: Judge, I have three rebuttal 9 exhibits that I would like to introduce tomorrow through 10 Doctor Buchholz. These relate to the MMPI that the Plaintiffs 11 questioned Doctor Greist about concerning inaccuracies. And 12 at my request, Doctor Buchholz reviewed this and there are 13 actually two documents here that explain the fact that that 14 MMPI is entirely accurate. What occurred in a nutshell, 15 Judge, and the documents themselves, particularly the second 16 document that I'm going to hand you, explains what occurred. 17 The test that Mr. Wesbecker took, they took the questions of 18 the MMPI and renumbered them on this particular edition of the 19 test. In other words, Question No. 28 became another number, 20 and then when they reported it on the critical item listing, 21 then they reported it in the standard way. 22 For example, the letter that I've handed you on 23 Exhibit 472, Dear Customer, it says, "Enclosed you will find 24 the MMPIs you recently returned to us believing them to have 25 been scored incorrectly; in fact, the scoring was accurate. 15 1 The critical item listing appears to be incorrect because the 2 Roche Psychiatric Service Institute chose not to use the 3 standard group form MMPI item order. I've enclosed a table 4 that shows the relationship between the unique item employed 5 in the Roche textbook and the standard item employed in the 6 Minnesota report. The table will permit you to verify that 7 the Roche answer sheets that you submitted are in fact 8 properly scored." 9 So to eliminate any doubt at all, Doctor 10 Buchholz had Mr. Wesbecker's raw data scores rescored and 11 reanalyzed, and the critical item listing is identical to the 12 one that was produced earlier. So we would like to introduce 13 that tomorrow. These are not exhibits that they have seen 14 before; I'm producing them now. I got one of them yesterday 15 and the other one on Friday, and we want to introduce them for 16 the purpose of clearing up that discrepancy. 17 JUDGE POTTER: Well, with Doctor Buchholz? 18 MR. STOPHER: With Doctor Buchholz here. 19 JUDGE POTTER: Ms. Zettler, is there anything 20 you want to say at this time? 21 MS. ZETTLER: We have an undated letter from 22 somebody called Kevin without any sort of indication of where 23 this person is from. I don't see a copy of this alleged Roche 24 book. I mean, we'd like to see that, if that's in fact the 25 case. There are a bunch of inadequacies with this. 16 1 JUDGE POTTER: Let me just say this. I'll call 2 it a preliminary ruling. I think this is legitimate. I guess 3 you'd call it rebuttal exhibits that they had no way of 4 knowing about, so the fact that they weren't produced on time 5 or weren't produced ahead is not really a valid objection. If 6 after you look them over you want to talk to Mr. Myers -- I 7 mean, Mr. Stopher or Doctor Buchholz to get a quick handle on 8 what's going on, you can, and then I'll take up any objections 9 probably tomorrow morning after you've had time to look at 10 them. Doctor Buchholz is in Louisville today? 11 MR. STOPHER: Yes, sir. 12 JUDGE POTTER: Okay. And if you-all want to 13 call him or have some contact with him so he can explain what 14 his testimony is going to be or straighten this thing out. 15 MR. SMITH: Could we maybe have the opportunity 16 to question him on voir dire prior to his beginning his 17 testimony? 18 JUDGE POTTER: Well, maybe if Mr. Stopher could 19 schedule him at 1:30 or 2:00 when we come back from lunch and 20 he could come in a half hour early and you could come in maybe 21 prior to his -- during the lunch break. And actually if we 22 did this it would probably save -- the half hour we spend in 23 the lunch break would probably save us an hour in front of the 24 jury, or ten minutes we use in the lunch break will save us 25 twenty minutes in front of the jury if anybody understands 17 1 what the exhibits are. 2 Mr. Smith, it strikes me we're kind of in the 3 same situation with Doctor Buchholz that you found yourself 4 with whatever the drug test report from SmithKline. I mean, 5 somebody comes in and the documents look one way, but when 6 they really look at them and explain them, they come up 7 another way. 8 MS. ZETTLER: The difference here being we're 9 going to have depositions and affidavits, Judge. 10 JUDGE POTTER: Right. Right. But they're going 11 to go you one better, they're going to have Doctor Buchholz 12 here live. 13 MS. ZETTLER: Right, except the difference is 14 the only reference to Doctor Buchholz is in the fact cover 15 sheet. 16 JUDGE POTTER: Well, I don't know what he's 17 going to say, but apparently he's going to be able to explain 18 how the numbers don't match up with the questions. And, as I 19 understand it, they were changing forms, and the tests he gave 20 them numbered them one, two, three, and that was the answer 21 sheet matching the tests he gave them but then they changed 22 forms and when they print out the answers, they print them out 23 with a new form, which says Question No. 7 is no longer 7; 24 it's really 12. 25 MR. SMITH: That may be more fun than what we 18 1 had. 2 JUDGE POTTER: One other thing. My sheriff has 3 told me that the jury has asked that I update my estimate 4 and -- of when this thing might be over, and someone told me 5 they heard on the radio coming in this morning from Ms. Myatt 6 that it could go to the jury as early as next week. If I tell 7 them the week beginning Monday, the 12th, it will go to them 8 that week and could be earlier, does anybody see any reason 9 that that wouldn't be true? 10 MR. STOPHER: No. 11 MS. ZETTLER: No. 12 MR. SMITH: The jurors are listening to Ms. 13 Myatt? 14 JUDGE POTTER: No. I'm sorry. No juror was 15 listening to Ms. Myatt on the radio. A juror asked my sheriff 16 if I would give them an estimate. I said that somebody had 17 told me that Ms. Myatt had said that, and I assume she did 18 that after talking to you-all and whatnot and probably has as 19 good a handle on what's the correct date as anybody. And so 20 what I want to do is kind of confirm that with you-all that 21 the week beginning the 12th it will be submitted to them and 22 it could conceivably be earlier. 23 MR. STOPHER: I think that's reasonable. 24 MS. ZETTLER: Yeah. 25 JUDGE POTTER: Okay. 19 1 (BENCH DISCUSSION CONCLUDED) 2 SHERIFF CECIL: All rise. The Honorable Judge 3 John Potter is now presiding. All jurors are present. Court 4 is now in session. 5 JUDGE POTTER: Please be seated. Ladies and 6 gentlemen of the jury, my sheriff informs me that at least 7 some of you would like me to take another estimate or give you 8 another estimate of when you can expect this to -- the 9 evidence to be completed and the case submitted to you. I've 10 talked to the lawyers and it's fairly -- and the reason I'm 11 hesitant on this is because if it's wrong I don't want 12 somebody there in the jury taking it out on one side or the 13 other, all right, that's the view. It's fairly certain -- 14 there is a Monday, December 12th. All right. This Monday -- 15 next Monday is the 5th, the Monday after that is December 16 12th. It is very certain that it will be submitted to you 17 during that week that begins with December 12th, possibly it 18 could be submitted to you next week. All right? Do you 19 understand what I'm saying? It won't be this week, possibly 20 next week, almost certainly the week after it will be 21 submitted to you-all for your deliberations. And your 22 deliberations, of course, I have no control. That's within 23 your-all's -- how long your deliberations take, that's 24 your-all's decision. 25 Has anybody had any difficulty observing the 20 1 admonition about not getting information from anybody other 2 than the witness stand? How about you, Mr. Miller? 3 JUROR MILLER: No, sir. 4 JUDGE POTTER: Okay. Mr. Stopher, do you want 5 to call your next witness? 6 MR. STOPHER: Yes, Judge. We'll read the 7 deposition of Doctor Robert Beanblossom. 8 JUDGE POTTER: Ladies and gentlemen, again, I'll 9 remind you that this will be treated just as if Doctor 10 Beanblossom were testifying live. He's put under oath when he 11 gives his testimony. Each side has the opportunity to examine 12 and cross-examine the witness. Treat it as if the doctor were 13 testifying live. 14 Mr. Stopher. 15 16 (THE FOLLOWING PORTIONS OF THE DEPOSITION OF 17 DOCTOR ROBERT BEANBLOSSOM WERE READ WITH MR. 18 STOPHER READING THE QUESTIONS AND MR. STEPHEN 19 LORE READING THE ANSWERS) 20 21 MR. STOPHER: This is the deposition of Doctor 22 Robert Beanblossom, which was taken on November 19, 1991. He 23 was first duly sworn and was examined and deposed as follows: 24 25 21 1 EXAMINATION ___________ 2 3 BY_MR._STOPHER: __ ___ _______ 4 Q. Would you state your name, please. 5 A. Robert L. Beanblossom. 6 Q. Your residence address? 7 A. 2500 Newburg Road, Louisville, Kentucky 40205. 8 Q. Your place of employment? 9 A. Valley Medical Associates, 9822 Third Street, 10 Louisville, 40272. 11 Q. You have handed to me an exhibit that we have 12 marked Exhibit No. 1. Would you tell us what it is, please, 13 sir? 14 A. It's my CV. 15 Q. All right, sir. Tell us what you do for a 16 living. 17 A. I'm in family practice in medicine. 18 Q. And Exhibit No. 1 shows your educational 19 background and so forth that -- 20 A. Yes. 21 Q. -- qualifies you to do family medicine? 22 A. Yes. 23 Q. In connection with your practice of family 24 medicine, have you had an occasion to see a Joseph Wesbecker 25 as a patient? 22 1 A. Yes. 2 Q. Tell us please, sir, when you first saw Mr. 3 Wesbecker. 4 A. Monday, January 13th, 1986. 5 Q. And for what did you see him? 6 A. He presented with complaints that he felt were 7 possibly secondary to toluene exposure. 8 Q. And where did you learn that he claimed he had 9 been exposed to toluene? 10 A. From him. 11 Q. At what location did you -- 12 A. Oh, at my office. 13 Q. No, I'm sorry. Did he -- 14 A. At his work. I'm sorry. 15 Q. Was it a work-exposure kind of thing? 16 A. Yes. 17 Q. All right. What did you do in connection with 18 the complaints that he presented you with? 19 A. Well, I took a history and an examination, 20 obtained some blood studies, including a toluene blood level. 21 Q. From your examination and from the study that 22 you did, the toluene blood level, could you tell us what you 23 found? 24 A. I did not feel that he had a condition secondary 25 to the toluene exposure. His blood level was negative or 23 1 nonexistent. And the other studies, which included a serum 2 analysis, were all within normal limits, including such 3 studies as liver function, kidney function, proteins, various 4 enzymes, calcium, blood sugar, and a routine CBC, and a 5 urinalysis. 6 Q. What did he say was wrong with him? How did he 7 relate that the toluene was doing anything to him or against 8 his health or in any way affecting him? 9 A. He said he had been treated for a psychiatric 10 ailment and had shown the literature regarding the toluene and 11 possible toluene exposure to the psychiatrist and said that he 12 was told to see a -- his family physician for this, or to a 13 medical doctor, rather, not a family physician. He felt that 14 he had an impaired ability to think, reason and remember. He 15 also had a lesion on his scalp for which he had seen a 16 dermatologist. And -- 17 Q. Doctor Gillespie? 18 A. Yes. And said that Doctor Gillespie wanted to 19 biopsy and remove it, but Mr. Wesbecker was reluctant to allow 20 him to do this. And Mr. Wesbecker felt that the toluene may 21 have caused the lesion on his scalp. 22 Q. Did you attempt to make any evaluation of him 23 from a psychiatric point of view one way or the other? 24 A. No. I simply evaluated him for the complaints 25 of the toluene exposure. 24 1 Q. And from a physical point of view in connection 2 with any toluene exposure, did you find him to be basically 3 normal? 4 A. Yes. 5 Q. You indicated that he had some articles or 6 something that he was carrying around with him. Do you have 7 any way of remembering what those articles were? 8 A. I really don't. As a matter of fact, I have a 9 copy of the Occupational Health Guide for toluene in my chart. 10 I really do not remember where it came from. I don't remember 11 if he gave it to me or if I obtained it -- 12 Q. To evaluate it? 13 A. -- to evaluate it. I just don't remember. 14 Q. Doctor, at any time during your conversations 15 with Mr. Wesbecker, did he ever make any threats against any 16 person or group of persons? 17 A. No. 18 Q. Did he ever express to you any homicidal 19 intentions? 20 A. No. 21 Q. Doctor, was this the only time you saw Joseph 22 Wesbecker? 23 A. Yes. 24 Q. Okay. You have a family practice here; is that 25 correct? 25 1 A. Yes. 2 Q. And do you have occasion to see patients that 3 have psychiatric problems? 4 A. Yes. 5 Q. Do you treat those patients? 6 A. Within the -- what I consider my limits as a 7 family physician. 8 Q. And then you refer them on -- 9 A. Refer them to specialists. 10 Q. But you are aware of the symptoms of depression? 11 A. Yes. 12 Q. And paranoia, schizophrenia and a number of 13 other things; is that correct? 14 A. That's correct. 15 Q. Did you see any signs or symptoms of any 16 psychiatric disease in Mr. Wesbecker? 17 A. I did not make any reference in my record. I do 18 not recall. 19 Q. Approximately how much time did you spend with 20 him? 21 A. From the appearance of my dictation, it was 22 probably about 30 minutes. 23 Q. On your chart of January 13th of '86, in the 24 history, it reads, "He has impaired ability to think, reason 25 and remember." Now, how did you arrive at that conclusion? 26 1 A. That was his statement. 2 Q. All right. It doesn't read that way. But 3 you're telling us today that it's your understanding that 4 that's what he told you? 5 A. Yes. 6 JUROR FELKER: Mr. Stopher, we've lost his mike 7 and we can't really hear you, too, well, either. 8 JUDGE POTTER: We'll just wait a minute. Well, 9 apparently, if I understand it correctly, the switch gets dust 10 in it or something like that, and they can set it right and it 11 doesn't work. Have I gotten it right? 12 MR. SMITH: I was going to say, Your Honor, that 13 Mr. Lore is probably the best reader we've had so far, and all 14 of a sudden his microphone goes off. 15 MR. LORE: Thank you, Mr. Smith. 16 JUDGE POTTER: Is that what they do, readjust it 17 and it cleans out the pot? Is that... 18 Mr. Stopher, why don't you back up two or three 19 questions. 20 MR. STOPHER: All right. Is that feedback? 21 JUDGE POTTER: A little too much. 22 MR. STOPHER: Steve, let's go to Page 10, Line 23 18. 24 MR. LORE: Okay. 25 MR. STOPHER: I don't know if this is where it 27 1 went out, but it's back a couple of questions. 2 MR. LORE: All right. 3 Q. On your chart of January 13th of 1986, in the 4 history, it reads, "He has impaired ability to think, reason 5 and remember." How did you arrive at that conclusion? 6 A. That was his statement. 7 Q. All right. It doesn't read that way. But 8 you're telling us today that it's your understanding that 9 that's what he told you? 10 A. Yes. 11 Q. Did you see anything to indicate that his 12 ability to think was impaired on the day you spoke with him? 13 A. No. I think my statement says that, "He has had 14 the impaired ability." I didn't say that he had the impaired 15 ability. I think I was implying there that that was a 16 statement that he had made with regard to the toluene. 17 Q. And you really didn't test him for those kinds 18 of things; is that correct? 19 A. No. 20 Q. You didn't ask him if he had suicidal thoughts? 21 A. No. 22 Q. Or homicidal thoughts? 23 A. No. 24 Q. Or feelings of isolation, depression, et cetera? 25 A. No. 28 1 Q. You were focusing on the history he gave you and 2 trying to determine if he in fact had an exposure to the 3 toluene? 4 A. That's correct. 5 Q. Did you have any further contact with Mr. 6 Wesbecker? 7 A. No. 8 Q. Did you ever talk to Doctor Coleman about your 9 treatment of Mr. Wesbecker? 10 A. No. I really didn't even have Doctor Coleman's 11 name. He just mentioned a psychiatrist. 12 Q. It also mentions that he was upset with Doctor 13 Gillespie. Can you describe exactly how you arrived at that 14 opinion? 15 A. I really don't. I just don't recall that. The 16 way I dictated it, I thought it probably was because he just 17 didn't respond to the Halog, and then he wanted to biopsy it. 18 Q. I guess my question is: Tell me exactly what 19 you remember about his being upset with Doctor Gillespie, if 20 you remember anything at all. 21 A. I don't. 22 Q. Do you know what medications he was on when you 23 saw him? 24 A. No. Well, I'm sorry. This is where I made a 25 note and said, "His medication has been an antidepressant." 29 1 And the record says from a Doctor Shindler. Now, I just don't 2 recall that. I don't remember. My girl put a question by the 3 spelling of that. And so whether he was seeing someone else 4 at that time... 5 Q. And then how did your patient/doctor 6 relationship conclude? Did you prescribe some medication for 7 him or further treatment? 8 A. No. I obtained the toluene level and I had 9 suggested to him that if -- and I did not feel that his 10 condition was -- his symptoms were related to the toluene and 11 informed him that if he felt that this was still an ongoing 12 problem, that he should contact someone at work or OSHA or an 13 occupational physician, should consult them. 14 Q. Okay. And that's how it ended? 15 A. That's it. 16 MR. STOPHER: Judge, the exhibit that was 17 produced was marked as one exhibit and includes his resume and 18 medical records and the test results. We'd like to tender 19 that in its entirety as Defendant's Exhibit No. 473, and ask 20 that it be distributed to the jury. 21 JUDGE POTTER: Be admitted. 22 SHERIFF CECIL: (Hands document to jurors). 23 MR. STOPHER: I misspoke, Your Honor. It does 24 not include the resume, it's just the medical records. 25 JUDGE POTTER: All right. Mr. Stopher, you want 30 1 to call your next witness? 2 3 (THE FOLLOWING PORTIONS OF THE DEPOSITON OF 4 DOCTOR DANIEL DURAN WERE READ WITH MR. EDWARD 5 STOPHER READING THE QUESTIONS AND MR. STEPHEN 6 LORE READING THE ANSWERS) 7 8 MR. STOPHER: This is the deposition of Doctor 9 Daniel A. Duran. The deposition of Doctor Daniel A. Duran, 10 D-U-R-A-N, was taken on Thursday, November 7, 1991, at the 11 offices of Doctor Duran, 9822 Old Third Street Road, Suite 12 310, Louisville, Kentucky, Jefferson County. Doctor Duran was 13 first duly sworn, was examined and deposed as follows: 14 15 EXAMINATION ___________ 16 17 BY_MR._STOPHER: __ ___ _______ 18 Q. Would you state your name, please, Doctor. 19 A. Daniel A. Duran, M.D. 20 Q. Doctor Duran, what is your office address? 21 A. 9822 Old Third Street Road, Suite 310, 22 Louisville, Kentucky 40272. 23 Q. Doctor, are you a licensed and practicing 24 physician in the state of Kentucky? 25 A. Yes, I am. 31 1 Q. When were you so licensed, sir? 2 A. I believe I was licensed in February of 1980. 3 Let me find it. February of 1980. 4 Q. Doctor, do you practice within a particular 5 specialty, sir? 6 A. Yes. I practice orthopedic surgery. 7 Q. For the benefit of the court and jury, what is 8 the practice of orthopedic surgery, sir? 9 A. Orthopedic surgery is that area of medicine 10 which deals with the musculoskeletal system of the human body. 11 Q. And, Doctor, would you briefly outline your 12 background and qualifications, including your educational 13 background, your medical school training, your professional 14 practice background, and any professional societies or 15 organizations with which you have an affiliation? 16 A. I graduated with a Bachelor of mechanical 17 engineering in 1964 from City University of New York, School 18 of Engineering and Architecture, New York, New York. 19 In 1967, I received a Master of mechanical 20 engineering, applied mechanics, from the same university. In 21 1974, I received my M.D. degree from Rush University College 22 of Medicine in Chicago, Illinois. 23 I served a general surgery residency from July 24 1974 to June 1975 at the Long Island Jewish-Hillside Medical 25 Center in New Hyde Park, New York; an orthopedic surgery 32 1 residency from July 1975 to June 1978 at the same medical 2 center. During 1978, I was the chief resident of orthopedic 3 surgery. 4 I had a private practice is Hallandale, Florida 5 from July 1978 to January 1980. In February 1980, I began my 6 private practice in Louisville and am currently engaged in 7 private practice here. 8 I am on the staffs of Humana Hospital Southwest, 9 currently the chairman of the division of surgery; Saints Mary 10 & Elizabeth Hospital and Humana Hospital Audubon. 11 I am a member of the American Medical 12 Association, Jefferson County Medical Society, Louisville 13 Orthopedic Society, and the Kentucky Orthopedic Society. 14 I am a Diplomate of the National Board of 15 Medical Examiners. I hold a professional engineer license in 16 the states of New York and New Jersey. 17 I am licensed to practice medicine in the states 18 of New York, Florida and Kentucky. 19 Q. Doctor Duran, in the course of your practice, 20 have you had an occasion to see and treat Joseph Wesbecker? 21 A. Yes, I have. 22 Q. And when was the first such occasion? 23 A. He was seen in my office the first time on May 24 9th, 1980. 25 Q. And how is it that he came to see you, sir? 33 1 A. He had a one-month history of worsening pain in 2 his neck with radiation to his right arm up to the level of 3 the elbow. 4 Q. Was he referred to you, sir? 5 A. Yes. Doctor Bowles. 6 Q. And when you first saw Mr. Wesbecker, you 7 obtained a past medical history? 8 A. Yes. 9 Q. And what was that past medical history, sir? 10 A. He denied any significant history of medical 11 problems. He has had surgery for a fat pad pressing on a 12 nerve in his lower back five years ago. He also had a tumor 13 removed from his chest approximately 12 years prior. He 14 denied any allergies to medications. 15 Q. With regard to that past medical history, 16 Doctor, I would be correct that that's what Mr. Wesbecker 17 would have told you when asked about his past medical 18 condition? 19 A. Correct. 20 Q. And as his treating physician, you are required 21 to rely upon the accuracy and truthfulness of that past 22 medical history? 23 A. Yes. 24 Q. I note in your records, sir, that there is a 25 questionnaire dated 5-9-80, and another information sheet 34 1 dated 5-9-80, signed by Mr. Wesbecker. Would those also have 2 been completed as part of the medical history obtained by your 3 office on that date? 4 A. Yes. 5 Q. Now, you indicated, Doctor, that you did obtain 6 a history of his present problems at that time and the 7 complaints he was making. Again, sir, what were his 8 complaints and what was his present history? 9 A. Okay. His present history was a one-month 10 history of worsening pain in his neck with radiation to the 11 right arm to the level of the elbow. He had been recently 12 treated by Doctor Bowles with Motrin, which is an 13 anti-inflammatory medication; Parafon Forte, which is a muscle 14 relaxant. He also had cortisone injections and he did not 15 have any relief of pain. 16 Q. On that date, Doctor, did you do a physical 17 examination? 18 A. Yes. 19 Q. What were the results of that examination? 20 A. On physical examination his neck was rigid, 21 meaning that there was no free motion when I attempted to turn 22 his neck. Range of motion was extremely limited. There was 23 tenderness in the paravertebral muscles in his cervical spine. 24 These are the muscles that are in the back of the neck and go 25 down both sides of the neck. X-rays of his cervical spine 35 1 were negative, meaning that there was no pathology seen. And 2 the patient was admitted with a diagnosis of torticollis, 3 which basically means a rigid neck. He was admitted to Humana 4 Hospital Southwest. 5 Q. You say, Doctor, that the X-rays that were 6 negative -- those would have been taken of his neck on 5-9 of 7 '80? 8 A. I believe I took X-rays of his neck, and 9 probably also X-rays were taken in the office -- I mean, in 10 the hospital on the date of admission, which was 5-12. 11 Q. Doctor, did those X-rays demonstrate a reversal 12 of the cervical lordosis? 13 A. Yes. 14 Q. What does that mean, sir? 15 A. Straightening of the lordosis can mean spasm in 16 the muscles of the neck. There are people that have 17 straightening or even reversal of the cervical -- of the 18 lordosis just as a normal appearance for them individually. 19 Lordosis is that bowing of the neck that you have. Think of 20 the spine as an S-shaped curve, and there's a certain bowing 21 that is normal at the neck level. Sometimes it's straight, 22 sometimes it's reversed. It can represent muscle spasm, but 23 not necessarily. 24 Q. Doctor, your diagnosis of torticollis or rigid 25 neck, did Mr. Wesbecker relate to you any specific injury or 36 1 cause for that condition? 2 A. I don't believe so. 3 Q. You have said, sir, that you hospitalized Mr. 4 Wesbecker for that condition. Was that on the 9th or at a 5 later time? 6 A. No. That was on the 12th. 7 Q. And where on May the 12th of 1980, did you 8 hospitalize Mr. Wesbecker? 9 A. Humana Hospital Southwest. 10 Q. And what was the purpose of that 11 hospitalization, Doctor? 12 A. Basically to give him in-hospital phsyiotherapy, 13 to treat him with various medications in an attempt to get his 14 neck to relax. 15 Q. Doctor, as I understand it, there would also 16 have been a history taken at that time on his hospitalization 17 as contained in the medical records of Humana Southwest? 18 A. There should be. 19 Q. Doctor, referring you to the medical records, 20 sir, is there an indication on the history that was taken of 21 Mr. Wesbecker that at that time under the category, 22 "Expression of fear or anxiety," an indication that, "Seems 23 nervous"? 24 A. It is written; correct. 25 Q. During the course of your hospitalization of Mr. 37 1 Wesbecker, what type of specific treatment was offered? 2 A. Let's see. The patient had physiotherapy. He 3 was given anti-inflammatories, pain medication, muscle 4 relaxants. By 5-16-80, he no longer had any pain or 5 tenderness in his neck and had full range of motion. He was 6 discharged on 5-17-80. He was to continue anti-inflammatories 7 and was given a prescription for Indocin. It says here 15 8 milligrams per day, but that would have been 50 milligrams per 9 day -- I mean, not per day. 50 milligrams p.o., 3 times a day 10 with meals and 30 ccs of Mylanta. This is because Indocin can 11 cause stomach upset. He was also given a prescription for 12 Percodan, one tablet, q. 4 hours; and a prescription for 13 Valium, 5 milligrams t.i.d., 15 tablets. That's 5 milligrams, 14 3 times a day, 15 tablets. And he was to be seen in my office 15 on Wednesday for follow-up. He was not yet to return to work. 16 Q. Doctor, the Mylanta that was prescribed you said 17 was for stomach upset? 18 A. Yes. Indocin is an anti-inflammatory and it 19 frequently causes stomach upsets, so in an attempt to avoid 20 stomach upset, I usually prescribe it with Mylanta. 21 Q. What was the reason for the prescription of 22 Valium, sir? 23 A. Valium was given in this case as a muscle 24 relaxant. 25 Q. Following Mr. Wesbecker's discharge, did you 38 1 have an occasion to see him again? 2 A. I saw him again on two occasions. One occasion 3 was on May 21st, 1980, and that was follow-up after discharge. 4 He continued to have full range of motion of his neck, denied 5 any pain. And at this point, he was discharged to return to 6 work. The next time the patient was seen was in the emergency 7 room at Humana Hospital Southwest, and that was on 5-28-80. 8 Q. On that date, Doctor, what was his primary 9 complaint? 10 A. His chief complaint is listed as anxiety and 11 nervousness. And I have listed down, when I saw him, that "He 12 is agitated and depressed." My diagnosis was an anxiety 13 reaction, and we made arrangements for him to see a 14 psychiatrist. 15 Q. On that date, Doctor, was there an additional 16 history taken of Mr. Wesbecker as to his agitation and 17 depression? 18 A. No. I don't have anything written down here as 19 to that. 20 Q. I note on the emergency room record concerning 21 the physical examination there is some note on that record 22 concerning that. Was there a physical examination of Mr. 23 Wesbecker done on that date? 24 A. There was a physical examination attempted; 25 however, we have written down here that the patient was just 39 1 pacing. And it's difficult to recall, but I seem to remember 2 that the patient was walking back and forth -- 3 Q. Does the record -- 4 A. -- in sort of a continuous fashion. 5 Q. And does the record state as to the physical 6 examination that, "Unable to take due to patient's constant 7 pacing"? 8 A. Yes, it does. 9 Q. Did you prescribe any additional treatment for 10 Mr. Wesbecker following that emergency room visit on May 28, 11 1980? 12 A. No. At this point he was turned over to the 13 psychiatrist. 14 Q. And to whom did you refer Mr. Wesbecker? 15 A. Doctor Ray Hayes, Fifth floor, Wing C, Highland 16 Baptist Hospital. 17 Q. Is that the last occasion that you have had to 18 see or treat Joseph Wesbecker? 19 A. Yes. 20 Q. Doctor, if I might finally, sir, briefly, 21 discuss your diagnosis of torticollis or rigid neck, is there 22 an incidence or a condition of a hysterical torticollis? 23 A. Sure. 24 Q. Did you, Doctor, at that time, in May of 1980, 25 come to some sort of an impression or prognosis as to the 40 1 cause of Mr. Wesbecker's condition of torticollis? 2 A. As of the time I originally saw him, no. In 3 other words, at the time I originally saw him, I had nothing 4 to base a hysterical reaction on. 5 Q. Following your visit with him, your last visit 6 with him on May the 28th of 1980, in the emergency room, 7 following that visit, did you form an impression as to the 8 cause of his torticollis? 9 A. It certainly could have been a hysterical 10 reaction. 11 Q. And when we say a hysterical reaction, Doctor, 12 for the benefit of the Court and jury, what is that as it 13 would relate to hysterical torticollis? 14 A. Okay. Hysterical reaction is a somatic 15 manifestation of a mental state; in other words, somebody has 16 a mental problem, we can use the word hysteria meaning they 17 can be chronically depressed or overreactive and the 18 manifestation of it, instead of being necessarily overtly 19 mental in nature becomes a bodily function. They can become 20 rigid. There are some people that develop severe stomach 21 cramps; there are some people that tend to develop rashes; 22 there are people that develop diarrhea. I guess the two most 23 common hysterical manifestations that I am, I guess, familiar 24 with, would be musculoskeletal in the form of nuchal rigidity 25 or rigidity of the neck. The second most common would be 41 1 gastrointestinal problems. 2 Q. Doctor, as I understand it, by way of history, 3 Mr. Wesbecker gave you no other physical explanation for this 4 condition of rigid neck that you diagnosed? 5 A. No. 6 Q. Following your visit of May the 28th of 1980, 7 would it be your opinion, Doctor, within a reasonable degree 8 of medical probability that the cause of his torticollis or 9 rigid neck would have been hysterical based upon the 10 information you have or the history that you have as opposed 11 to some other cause? 12 A. Okay. Let's say it would be probable. I mean, 13 it could have been other causes. People can sleep wrong and 14 develop neck pain and a rigid neck which is temporary in 15 nature. You can get muscle pain from a viral infection which 16 can cause it. You know, obviously also you can also sustain 17 an injury to the neck, such as a whiplash injury which can 18 cause it. Just based on the lack of any other history and the 19 fact that this patient did have a rather marked anxiety 20 reaction when last seen, it is probable that it was a 21 hysterical reaction. 22 Q. And as I understand it, Doctor, when you last 23 saw Mr. Wesbecker on May the 28th of 1990, and referred him to 24 Doctor Hayes, at that time he was agitated and depressed, and 25 in fact the personnel in the emergency room were unable to do 42 1 a physical examination on him because of his constant pacing? 2 A. Correct. 3 Q. Doctor, you've been testifying today from your 4 notes concerning your care and treatment of Mr. Wesbecker; 5 correct, sir? 6 A. Yes. 7 Q. And those notes would have been made at or near 8 the time of the treatment we've been discussing? 9 A. Correct. 10 Q. And those notes would have been maintained under 11 your direction and control in the ordinary course of your 12 medical practice? 13 A. Yes. 14 MR. STOPHER: Your Honor, this is the exhibit 15 that was introduced at the deposition of Doctor Duran, 16 including his records. We've marked it as Defendant's Exhibit 17 464, and move its admission and distribution. 18 JUDGE POTTER: Be admitted. 19 SHERIFF CECIL: (Hands document to jurors). 20 Q. Doctor, let me show you what's been marked as 21 Exhibit 1 to your deposition. Is that a true and accurate 22 copy of the medical records contained within your file 23 concerning your care and treatment of Mr. Wesbecker? 24 A. Yes. 25 Q. And, Doctor, let me show you what's been marked 43 1 as Exhibit 2 to your deposition, which consists of medical 2 records obtained from Humana Hospital Southwest. Do those 3 appear, Doctor, to depict and to accurately reflect the 4 records concerning Mr. Wesbecker's care at Humana Hospital 5 Southwest under your direction and control that you've been 6 discussing today? 7 A. Yes. 8 MR. STOPHER: This, both Exhibit 1 and Exhibit 9 2, Your Honor, are included as a composite exhibit here. They 10 are the documents that are captioned up at the top Southwest 11 Jefferson Community Hospital. 12 Q. Doctor, in Mr. Wesbecker's apparent agitated and 13 depressed condition, did he indicate to you or do you remember 14 him indicating any particular animosity towards any person or 15 group of persons or organization or entity? 16 A. I don't recall. He may have or may not have, I 17 just don't recall. And I don't have it noted down. 18 Q. If I remember your testimony correctly, you said 19 you don't have any memory one way or the other about whether 20 Mr. Wesbecker ever expressed any animosity to himself or any 21 other person? 22 A. No. I don't recall. 23 Q. Do you recall whether at any time when you were 24 in Mr. Wesbecker's presence that he ever threatened anyone or 25 any group of persons? 44 1 A. No. I don't recall that. 2 Q. Would that be something that you would note in 3 your medical records if it occurred? 4 A. I most likely would have noted it and I probably 5 would have remembered it, something that dramatic. 6 Q. Is there any notation of a threat in your 7 records anywhere? 8 A. No. 9 Q. You've indicated the diagnosis was torticollis. 10 Is hysterical torticollis a different diagnosis or is that 11 just one of the causes? 12 A. Manifestation of a cause, etiology. 13 Q. Okay. So is it fair -- 14 A. A bleeding ulcer is a bleeding ulcer whether 15 it's caused by chronic anxiety or by what-have-you. 16 Q. So the diagnosis you've made of torticollis, you 17 wouldn't change that today knowing what you do now? 18 A. Based on what we saw originally, no, it's still 19 torticollis. The etiology -- as I say, his visit of 5-28 may 20 have shed a little bit more light on the etiology of it. 21 Q. Just briefly, on May 28, did you treat him or 22 just refer him? 23 A. Just referred him. 24 Q. Okay. I note it says, "Condition calm, 25 discharged home with instructions per Doctor Duran." Does 45 1 that mean he went home that day? 2 A. He went home that day. He was evidently calm at 3 the time of discharge and he went home agreeing to see Doctor 4 Hayes. I think we had a scheduled time for him to see him, 5 5:30, was it? No. 9:30 A.M. on that Saturday. Now, I don't 6 know what 5-28 was, whether that was a -- you know, what day 7 of the week that was. 8 Q. I understand from your previous testimony that 9 when he was discharged from the hospital on May the 21st, 10 1980, he was considerably improved? 11 A. Yes. 12 Q. Would that have any bearing, the fact that he 13 made such rapid improvement in a short period of time, would 14 that have any bearing on your opinion as to causation? 15 A. If it was an anxiety reaction and for whatever 16 reason the patient calmed down while in the surroundings of 17 the hospital, sure. You're taking away the underlying cause 18 of it and that can manifest itself in an extremely rapid 19 response. 20 Q. When people have a strain from whatever trauma 21 that they may have exposed their neck to and they have the 22 symptoms that he exhibited on May the 12th, 1980, when you 23 admitted him to the hospital, if the causation was traumatic, 24 would you have expected him to make such rapid improvement in 25 nine days? 46 1 A. No. 2 Q. Thank you. That's all. Nothing further. 3 JUDGE POTTER: Is your next witness a 4 deposition? 5 I tell you, ladies and gentlemen, even though 6 the next witness is -- the next witness is live? 7 MR. STOPHER: Yes, sir. 8 JUDGE POTTER: Why doesn't everybody stand up. 9 Okay. 10 Mr. Stopher, do you want to call your next 11 witness? 12 MR. STOPHER: Yes, Your Honor, they've gone to 13 get her. She's the medical records custodian for Humana 14 Hospital Southwest. 15 JUDGE POTTER: Ma'am, could I get you to step up 16 here and raise your right hand, please. 17 18 CAROLE MAXIM, after first being duly sworn, was 19 examined and testified as follows: 20 21 JUDGE POTTER: Okay. Would you have a step 22 around into the witness box. Would you say your name loudly 23 for the jury, please, and then spell it. 24 MS. MAXIM: Carol J. Maxim. C-A-R-O-L-E, middle 25 initial J, Maxim is M-A-X-I-M. 47 1 JUDGE POTTER: Okay. Have a seat. Keep your 2 voice up and answer Mr. Stopher's questions. 3 4 EXAMINATION ___________ 5 6 BY_MR._STOPHER: __ ___ ________ 7 Q. Ms. Maxim, by whom are you employed? 8 A. By Southwest Hospital. 9 Q. And where is that located? 10 A. 9820 Third Street Road, and that is in 11 Louisville. 12 Q. And is that sometimes known as Humana Hospital 13 Southwest? 14 A. It was previously, sir. 15 Q. All right. It's the same place, slightly 16 different name? 17 A. Columbia HCA now, sir. 18 Q. That's right. I had forgotten. Ms. Maxim, what 19 is your present job title at Southwest Hospital? 20 A. I am the director of medical records. 21 Q. And as the director of medical records, what 22 generally do you do? 23 A. Maintain the records for all patients who have 24 been hospitalized or had any type of treatment at the 25 facility. 48 1 Q. Ms. Maxim, we have had previously produced 2 medical records concerning Joseph T. Wesbecker from the Humana 3 Southwest Hospital. They were certified. They've been 4 produced to all parties in this case. And let me hand you and 5 everyone else a copy of those, which has been marked as a 6 Defendant's Exhibit No. 462. It should be the same as the one 7 you have there. 8 Your Honor, we'd move the admission of 9 Defendant's Exhibit 462, which is certified copies of those 10 medical records. 11 MS. ZETTLER: Your Honor, if we could just have 12 a quick second to take a look at those. 13 JUDGE POTTER: Okay. 14 MR. STOPHER: Sure. 15 MR. SMITH: No objection, Your Honor. 16 JUDGE POTTER: Be admitted. 17 SHERIFF CECIL: (Hands document to jurors). 18 Q. Ms. Maxim, let me direct your attention to these 19 pages, and I'm going to try to do this in chronological order. 20 The documents themselves are not in chronological order. And 21 if you'll notice in the lower right-hand corner, there appears 22 the little stamp Humana SW Hospital, and then there's a number 23 underneath that. Do you see that, Ms. Maxim? 24 A. Yes, sir. 25 Q. Let me ask you to turn to Page 750807. Do you 49 1 have that page available there in front of you? 2 A. Yes, I do, sir. Yes, sir. 3 Q. Can you tell us the date of that document? 4 A. 5-12-80. 5 Q. May 12, 1980? 6 A. Yes, sir. 7 Q. And the patient's name? 8 A. Joseph Wesbecker. 9 Q. And on that page, ma'am, the diagnosis? 10 A. Torticollis. 11 Q. On Page 750809, do you have that? 12 A. Yes, sir. 13 Q. Do you see a line there about in the middle of 14 the page, a couple of lines up from the drawings that says, 15 "Expression of fear or anxiety"? 16 A. Yes, sir. 17 Q. Do you see that? Could you read the handwritten 18 notation there? 19 A. "Seems nervous." 20 Q. Would you turn to the next page, which is 21 750810. Do you have that? 22 A. Yes, sir. 23 Q. And would you give us the date of that document? 24 A. The dictated and transcribed date is 7-19-82. 25 Q. And the date of admission? 50 1 A. The admission date is 5-12-80. 2 Q. All right. Would you read the present illness 3 and the past history notations on that page? 4 A. Yes, sir. "Present Illness: This is a 5 38-year-old white male who presented at my office on 5-9-80, 6 with a diagnosis of torticollis. He had a one-month history 7 of worsening pain in his neck with radiation to the right arm 8 to the elbow. He has been treated by Doctor Bowles with 9 Motrin t.i.d. and Parafon Forte. He has also had cortisone 10 injections, none of which has done any significant relief of 11 pain. 12 On physical examination, his neck is rigid. 13 Range of motion is extremely limited, and there is tenderness 14 in the paravertebral muscles of the cervical spine. X-rays of 15 the cervical spine are negative. The patient is being 16 admitted with the diagnosis of torticollis for conservative 17 therapy. 18 Past History: He denies any significant history 19 of medical problems. He has had surgery for a fat pad 20 pressing on a nerve in his lower back five years ago. He has 21 also had a tumor removed from his chest approximately 12 years 22 ago. He denies any allergies to any medications." 23 Q. Let me refer you, if I may, to Page No. 750816. 24 Do you have that page, Ms. Maxim? 25 A. Yes, sir. 51 1 Q. This is a document entitled Physical Therapy 2 Department up at the top? 3 A. Yes. 4 Q. And do you see the caption there that says 5 Progress Notes? 6 A. Yes, sir. 7 Q. Would you read the last line on that page? 8 A. "Patient is unable to sit still during PT." 9 Q. What does PT stand for? 10 A. Physical therapy. 11 Q. Would you read the first line on the very next 12 page, which is 750817? 13 A. It says -- this is not a very good copy. I'll 14 read it as best I can. I believe it says, "Constantly 15 shifting, changing position." 16 Q. Now, Ms. Maxim, let me go back and deal with the 17 next documents in chronological order. Would you look at the 18 document numbered in the lower right-hand corner 750805. 19 A. Yes, sir. I have it. 20 Q. And up in the top left-hand corner, I'm not sure 21 if the staple has gone through it on your copy, it has on 22 mine, but if you could kind of peek underneath that staple, 23 and would you tell us in the top left-hand corner what this 24 is? 25 A. Emergency admission record. 52 1 Q. And what is the date of this document? 2 A. 5-28-80. 3 Q. And is it signed up there on the -- well, at the 4 very top of the page or near the top of the page by the 5 patient? 6 A. Yes, sir. 7 Q. And the patient's signature there is what? 8 A. Joseph J. Wesbecker. 9 Q. The date underneath that is, again, what? 10 A. 5-28-80. 11 Q. And the time of admission? 12 A. 8:07 P.M. 13 Q. In that document it looks like to me in the -- 14 approximately the bottom of the -- or near the -- one-third of 15 the way down, it looks like it may say "complaint" imprinted. 16 Do you see that in print type? 17 A. I think. Again, it's very light. I believe, is 18 it opposite a name? 19 Q. It says underneath it, anxiety and nervousness, 20 do you see that? 21 A. Yes. I see anxiety and nervousness. I can't 22 read complaint, though. 23 Q. All right. Would you come down below anxiety 24 and nervousness and there is a series of initials in the 25 left-hand column. Do you see those? 53 1 A. Yes, sir. 2 Q. The first one looks to me like a T? 3 A. Yes, sir. 4 Q. What does that stand for? 5 A. It would be temperature. 6 Q. BP? 7 A. Blood pressure. 8 Q. P? 9 A. Pulse. 10 Q. R? 11 A. Respirations. 12 Q. LMP? 13 A. Last menstrual period. 14 Q. Someone has apparently written a bracket on 15 those records; correct? 16 A. Yes, sir. 17 Q. And would you read to the jury what it says 18 outside those brackets? 19 A. "Unable to take due to patient's constant 20 pacing." 21 Q. Over to the right of that, what does it say in 22 handwriting? 23 A. "Patient agitated and depressed." 24 Q. In the lower left-hand corner of the document, 25 there's another handwritten notation that's two words. Do you 54 1 see that? 2 A. Yes, sir. 3 Q. Can you read that for us? 4 A. "Anxiety reaction." 5 Q. And then if you would, please, turn to the next 6 page, which is 750806. This is a document that is 7 apparently -- and I can't quite read it. It looks like a 8 hole's been punched, but is it triage? 9 A. Triage. 10 Q. Triage nursing assessment sheet? 11 A. Nursing assessment sheet; yes, sir. 12 Q. All right. Down there at -- near the bottom of 13 that form, Ms. Maxim, do you see a block under Emotional in 14 the lower left-hand corner? 15 A. Yes, sir. 16 Q. And how is it checked? 17 A. "Anxious" is checked. 18 Q. And then there are some handwritten information 19 under that. Can you read that for us, please? 20 A. "Unable to take due to patient constantly 21 pacing." 22 Q. And that's written over it looks like -- what -- 23 can you read underneath that writing? 24 A. Temperature, pulse, respirations. Basically 25 that's what it's covering, sir. 55 1 Q. All right. Now, let me go back to the document 2 that we were just talking about, 750805, one document back, 3 please. And do you see in the lower right-hand corner of that 4 document a vertical block that has Treatment written in it? 5 A. Yes, sir. 6 Q. Would you read what is written out to the side 7 of that? 8 A. "To see Doctor Ray Hayes, M.D., Saturday, 9:30 9 A.M., Fifth Floor, Wing C, Highland Baptist, office number, 10 456-4420." 11 Q. All right. And lastly, Ms. Maxim, let me refer 12 you to the very first page of this document, which is 750801. 13 Do you see that? 14 A. Yes, sir. 15 Q. Would you read the date of that document? 16 A. 1-13-86. 17 Q. And the doctor? 18 A. Doctor R. Beanblossom. 19 Q. And in the left-hand side, it's partially cut 20 off, can you read what it says there under Condition or Nature 21 of Complaint? 22 A. The diagnosis? 23 Q. Diagnosis. 24 A. Chemical exposure. 25 Q. All right. And then on the Page 750802, is a 56 1 document. Can you tell us what that is? 2 A. It is a lab reference to a test for a toluene 3 level for chemical exposure. 4 Q. All right. Thank you, Ms. Maxim, that's all I 5 have. 6 JUDGE POTTER: Mr. Smith? 7 8 EXAMINATION ___________ 9 10 BY_MR._SMITH: __ ___ ______ 11 Q. Ma'am, concerning the May 28th, 1980 admission 12 that's reflected on Page 750805, do you see that? 13 A. Yes, sir. 14 Q. Was the patient admitted to the hospital on that 15 occasion overnight, can you tell? 16 A. This is an emergency record only, and it appears 17 the patient was admitted at 8:07, and discharged at 9:10, both 18 P.M. 19 Q. 8:07 P.M.? 20 A. Admission, and down at the very bottom on the 21 right-hand corner 9:10 P.M., was the discharge date, I 22 believe. 23 Q. Okay. So Mr. Wesbecker was at the hospital for 24 one hour and three minutes on that occasion; is that correct? 25 A. It would appear so. It appears so, sir. 57 1 Q. And when he came in there was the notation that 2 the patient was agitated and depressed; is that right? 3 A. Anxious and -- yes, agitated and depressed; yes, 4 sir. 5 Q. Then if you'll look at the condition on 6 discharge there at about the bottom one fourth of the page, it 7 says, "Calm, discharged home with instructions per Doctor 8 Duran." Is that right? 9 A. That is correct, sir. 10 Q. So within an hour and three minutes, the patient 11 had gone from being anxious and nervous to calm, according to 12 these notes, at least? 13 A. According to the documentation, sir. 14 Q. Does it indicate whether or not any medication 15 was administered on this occasion, by virtue of looking at 16 these records? 17 A. It does not appear so, sir. 18 Q. Turn with me to Page 750809. I'm sorry. Yeah. 19 That's right. And this would be concerning the admission of 20 5-12-1980; is that right? 21 A. Yes, sir. 22 Q. And on Page 750809 under the Apparent Overall 23 State of Health section, do you see that? 24 A. Yes, sir. 25 Q. Under Emotional Status, which are the last three 58 1 notations there, do you see that? 2 A. Excuse me, under Emotional Status? 3 Q. Under the Apparent Overall State of Health 4 there, a heading appears Emotional Status; is that correct? 5 A. Yes. 6 Q. And under Emotional Status, there's a notation 7 Mental Status; is there not? 8 A. Yes, sir. 9 Q. And what's the notation concerning Mr. 10 Wesbecker's mental status on that occasion? 11 A. Good. 12 Q. What does it say concerning expression of fear 13 or anxiety? 14 A. "Seems nervous." 15 Q. It says, "Seems nervous" there? 16 A. Yes, sir. 17 Q. Not anxious? 18 A. No, sir. 19 Q. Not agitated? 20 A. No, sir. 21 Q. Not homicidal? 22 A. No, sir. 23 Q. Not suicidal? 24 A. No, sir. 25 Q. Not pacing? 59 1 A. No, sir. 2 Q. Just seems nervous? 3 A. Seems nervous is all that is notated, sir. 4 Q. In your experience in reviewing medical records, 5 do you see many occasions where patients are nervous -- 6 there's a notation that patients are nervous in connection 7 with hospital admissions? 8 A. I don't know how to answer that. 9 Q. In what you've seen, it's not unusual to see a 10 physician mark or a health care provider mark under Emotional 11 Status, mental status good; Expression of Fear and Anxiety as 12 seems nervous; right? 13 A. I have seen that before, sir. 14 Q. And that's not unusual in connection with 15 hospital admissions? 16 A. I've seen it, therefore, I guess one would say 17 it isn't. 18 Q. That's all I have. Thank you, ma'am. 19 MR. STOPHER: Nothing further, Your Honor. 20 JUDGE POTTER: Thank you very much, ma'am, you 21 may step down. Ladies and gentlemen, we'll go ahead and take 22 the morning recess at this time. As I've mentioned to 23 you-all, do not permit anybody to talk to you about this case. 24 Don't discuss it among yourselves. We'll take a 15-minute 25 recess. 60 1 (RECESS) 2 SHERIFF CECIL: All rise. The jury is entering. 3 All jurors are present. Court is back in session. 4 JUDGE POTTER: Okay. Please be seated. 5 Mr. Stopher, do you want to call your next 6 witness. 7 MR. STOPHER: Krisa Cooper. 8 JUDGE POTTER: Would you step up here and raise 9 your right hand, please. 10 11 KRISA COOPER, after first being duly sworn, was 12 examined and testified as follows: 13 14 JUDGE POTTER: Okay. Would you walk around and 15 have a seat in the jury -- witness box there -- well, my other 16 courtroom it's a witness stand and that's more of a box, so I 17 can't say box without putting jury in front of it. 18 Ma'am, would you keep your voice up loud. Would 19 you say your full name and then spell it for us, please. 20 MS. COOPER: Krisa Cooper. K-R-I-S-A, 21 C-O-O-P-E-R. 22 EXAMINATION ___________ 23 24 BY_MR._STOPHER: __ ___ _______ 25 Q. Ms. Cooper, I'm having a little difficulty 61 1 hearing you. I don't know if anybody else is, but it is 2 important to be heard, obviously. Could you state your full 3 name again and let's see how it comes across. 4 A. Krisa Cooper. 5 Q. That's better. If you could give us a little 6 more volume, it wouldn't hurt. It may save you having to 7 repeat something a little later on. Ms. Cooper, by whom are 8 you employed? 9 A. Baptist Hospital East. 10 Q. And where do you go to work, what is the 11 address? 12 A. 4000 Kresge Way. 13 Q. Ms. Cooper, what is your present title with 14 Baptist Hospital East? 15 A. Director of medical records. 16 Q. And as director of medical records what 17 generally do you do? 18 A. Responsible for keeping track of all the medical 19 records for patients that are treated at the hospital. 20 Q. Let me produce a copy of the certified records 21 of Joseph Wesbecker at Baptist Hospital. I think you have a 22 copy of these with you? 23 A. Yes, sir. 24 MR. STOPHER: And, Your Honor, we have marked 25 these as Defendant's Exhibit 467, and move the admission and 62 1 distribution of these documents, Your Honor. 2 JUDGE POTTER: Be admitted. 3 SHERIFF CECIL: (Hands document to jurors). 4 Q. Ms. Cooper, let me refer you to the first page 5 of these documents, and I've marked them in the lower 6 right-hand corner, Baptist Hospital, and there's a number 7 underneath that, and the first page I'm referring to is 8 750401. Do you see that? 9 A. Yes, sir. 10 Q. Let me ask you to read the first line of that 11 document for us, please. 12 A. It's patient's last name, Wesbecker, Joseph T. 13 Admitting physician, Hayes, Ray H. Registered 5-31-80, 14 Room No. 510, Bed 2, Patient No. 719666601. 15 Q. And there on the first -- well, on the line that 16 says Final Diagnosis, can you read that for us, please? 17 A. "Depressive neurosis secondary to adult 18 adjustment reaction." 19 Q. And then down below there's a signature? 20 A. Yes. 21 Q. Do you recognize that or can you read it? 22 A. Well, I believe it's R. Hayes, M.D. 23 Q. All right. And then underneath that, would you 24 read the next line? 25 A. It says registered 5-31-80 at 1556. Date of 63 1 discharge, 6-5-80. Number of days' stay is five. 2 Q. All right. That's enough. Let me refer you to 3 the very next page, which is 750402, and would you read this 4 document for us, please? I believe it's one page. 5 A. "Wesbecker, Joseph. Mr. Wesbecker is a 6 38-year-old Caucasian gentleman hospitalized for five 7 inpatient hospital days at Highlands Baptist Hospital from May 8 31st to June 5th, 1980, treated for depressive neurosis 9 secondary to situational adjustment reaction to adult life. 10 He was referred by Doctor Duran of the Jefferson Hospital. He 11 had a chief complaint of 'I'm having pain in the right 12 shoulder.' Patient had been admitted shortly after his 13 divorce in January of l980, and he was complaining bitterly of 14 his divorce, working 16 hours a day, slept only two to three 15 hours, drove himself mercilessly. He became depressed, 16 despondent, agitated. Seen by Doctor Duran, who was quite 17 concerned about him. Referred him for treatment in the 18 Southwest Jefferson Hospital emergency room. He was seen and 19 found to have a mental status of depressed, no evidence of 20 delusions, hallucinations. His sensorium was clear. The 21 physical exam was essentially not remarkable. There was a 22 history of allergy to penicillin and an S4 sound at the apex." 23 Q. Let me ask you to skip the next paragraph and 24 read the next paragraph that begins "Course in the hospital." 25 A. "Course in the hospital: Patient was treated 64 1 with Elavil, 25 milligrams at bedtime; Navane, 2 milligrams at 2 bedtime and, after a couple of nights' sleep, began to feel 3 better and rapidly reconstituted and asked for discharge since 4 he was asymptomatic, and he was released on the 5th, inpatient 5 to outpatient psychotherapy, and the crisis seemed to be 6 passed." 7 Q. Would you go to the next page, which is 750403, 8 and let me ask you to read that page. And it actually spills 9 over a little bit onto the next page, but would you read that, 10 also? 11 A. "Mr. Wesbecker is a 38-year-old divorced 12 Caucasian, Catholic male, who lives at 8600 Devonshire Drive, 13 Louisville, Kentucky 40258. Hospitalized at Highlands Baptist 14 Hospital on May 31st, 1980. 15 "He was referred by Doctor Duran from Southwest 16 Jefferson Hospital. His telephone number is 935-0665. He 17 works as a pressman for The Courier-Journal. His birth date 18 is April 27th, 1942. 19 "Chief complaint: 'I'd been having pain with my 20 right shoulder.' Patient has been having, shortly after his 21 divorce in January of 1980, developed painful bursitis in the 22 right shoulder. He was complaining of being bitter over his 23 divorce. He worked 16 hours a day, barhopped at night, slept 24 only two to three hours and drove himself mercilessly. He 25 became depressed, despondent and agitated and was seen by 65 1 Doctor Duran, who was quite concerned about him and referred 2 him for treatment from Southwest Jefferson Hospital emergency 3 room. He was seen at Highlands Baptist Hospital on the 4 morning of May 31st, 1980, found to be depressed and in need 5 of help as described by Doctor Duran. Patient complained that 6 the right shoulder pain was the straw that broke the camel's 7 back. Stated that he complained, he stayed by himself. At 8 work he could not be still. He was anxious. He started 9 crying for nothing. Feeling sorry for people and for himself 10 and had severe trouble sleeping. He complained that the 11 Valium green pills, he had taken three times a day; however, 12 this did not seem to help. He states that he felt like that 13 they made him high but did not help his depression, and he 14 felt he was getting worse. He stated that he did not remember 15 the whole weekend of the past week; however, the shoulder has 16 quit hurting and has not hurt for the past six days prior to 17 admission. He admits drinking occasionally. He has been 18 depressed and stated that he was shaking so bad when he was at 19 Southwest Jefferson that he could not be still. 20 "Past medical history: He had the usual 21 childhood diseases. He had a sebacious cyst removed from his 22 left chest and his back. He fractured his right foot and has 23 had left hernia repaired, but the rest of the review of 24 systems has been negative. 25 "Family history: The father died when the 66 1 patient was nine months old. He fell from a roof. He was a 2 roofer and a construction employee. His mother is living and 3 in fair health, always having some complaints. He is an only 4 child. Family is positive for cancer and negative for 5 diabetes, tuberculosis and heart disease. 6 "Mental status: The patient is depressed. No 7 evidence of delusions or hallucination but his affect is 8 depressed. The sensorium is clear. 9 "Impression: Depressive neurosis secondary to 10 adjustment reaction to adult life. 11 "Treatment plan: Early recompensation, return 12 to work. 13 "Estimated length of stay, two to four weeks." 14 Q. And underneath that, does that indicate when 15 that report was dictated or transcribed? 16 A. Yes. Both. 17 Q. And would you tell us when it was dictated? 18 A. It was dictated on 5-31-80, transcribed 6-3-80. 19 Q. And who dictated it? 20 A. Ray Hayes. 21 Q. Let me refer you, Ms. Cooper, to Page 750407. 22 Do you have that page? 23 A. Yes, sir. 24 Q. And do you see the right-hand side of that page? 25 A. Yes. 67 1 Q. And it looks like it says up at the top, the 2 patient's name Wesbecker, Mr. Joseph T., and then under that, 3 progress notes? 4 A. Yes, sir. 5 Q. Can you tell us what progress notes are? 6 A. It's a summary of the patient's care that was 7 given and their status, usually done each day they're in the 8 hospital. 9 Q. And is this by doctors or nurses or by both? 10 A. This is by doctors. 11 Q. All right. Would you look under where it says 12 Progress Notes there's a date written there? 13 A. 6-1-80. 14 Q. All right. And would you read beginning under 15 that column that starts with 6-1-80, one, two, three, the 16 fourth line down where it says -- it looks like to me the 17 first word on that line is was, W-A-S. Do you see that line? 18 A. Okay. Yes, sir. 19 Q. Can you read that handwritten note there for the 20 several lines under that? 21 A. "Was bitter over divorce. Worked 16 hours a 22 day. Barhopped at nights and slept only two to three hours. 23 Became depressed and respondent and agitated. Was referred by 24 Doctor Duran from Southwest Jefferson Hospital. Was seen 25 5-31, depressed and in need of help and admitted." And I 68 1 think this is "Impression: Depression. Adjustment reaction 2 of adult life. Treatment plan: Early reconstitution and 3 return to work." And it's signed by R. Hayes. 4 Q. Let me ask you to go next to a page numbered 5 750420. 6 A. Okay. 7 Q. And let me direct you to the line that is 8 captioned Symptoms and Complaint. Do you see that line? It's 9 about the one, two, three, fourth line down from the top. 10 A. Yes, sir. 11 Q. Could you read that notation there for us? 12 A. "Depressed and nervous from pain in shoulder. 13 Periods of crying." 14 Q. And then on that same page, the caption Nurse 15 Observation, and I can't read what it says. It looks like 16 maybe "During Interview"? 17 A. Yes, sir. 18 Q. Could you read that notation for us? 19 A. "Appears nervous. I thought I had something 20 seriously wrong with me and it got to me down -- oh, got me 21 down mentally and physically from worrying." 22 Q. Ms. Cooper, I saw that the treatment plan, I 23 think you read, was to be hospitalized for two to four weeks? 24 A. Yes, sir. 25 Q. And I think you said on the very first page that 69 1 in fact the number of days' stay was only five days? 2 A. Right. 3 Q. Do you see any indication on the hospital record 4 why the difference between the treatment plan and the actual 5 stay? 6 A. No, sir. 7 Q. All right. If I understand correctly, though, 8 the hospital stay instead of being two to four weeks was in 9 fact five days? 10 A. Yes. That's correct. 11 Q. Thank you. That's all I have, Ms. Cooper. 12 JUDGE POTTER: Mr. Smith. 13 14 15 EXAMINATION ___________ 16 17 BY_MR._SMITH: __ ___ ______ 18 Q. Ms. Cooper, would you turn with me, please, to 19 Page 750422. 20 A. All right. 21 Q. Are we there? 22 A. Yes. 23 Q. And these next few pages are the nurses' 24 records, are they not? 25 A. Yes, sir; they are. 70 1 Q. And these are the observations that the nurses 2 have made concerning any patient at the hospital on a regular 3 basis, are they not? 4 A. Yes, sir. 5 Q. And they are recording their observations of the 6 patient; is that correct? 7 A. Yes. 8 Q. And I assume they record medications 9 administered and any vital signs, if appropriate? 10 A. Yes. 11 Q. All right. Turn with me on that first page, 12 750422. It looks like there is a time for each of these 13 notations; is there not? 14 A. Yes, sir; there is. 15 Q. If you look at the left-hand side of the page 16 under May 31st, 1980, under the 5:15 notation, do you see 17 that? 18 A. Yes, sir. 19 Q. The nurse observed that Mr. Wesbecker was 20 pleasant, does she not? 21 A. Yes. 22 Q. On the -- continuing down the line, under 5-31, 23 there is a 12-6 notation; is there not? 24 A. Yes. 25 Q. I assume that's the 12-to-6 shift; is that 71 1 right? 2 A. Yes, sir. 3 Q. And the notation there is "slept well;" is it 4 not? 5 A. Yes, it is. 6 Q. Then if you continue down that line on the 10:11 7 notation, do you see where it says 10:11? 8 A. Yes, sir. 9 Q. "In room watching TV, quiet. Does not offer 10 much conversation but is pleasant upon approach;" right? 11 A. Yes, sir. 12 Q. Then the notation right under there is at 12, 13 "Ate well with group;" correct? 14 A. Yes. 15 Q. That C with a little line over it means with, 16 does it not? 17 A. Right. 18 Q. Then if you move down to the four P.M. notation 19 on that same day, it indicates that Mr. Wesbecker had 20 visitors, does it not? 21 A. Yes. 22 Q. Then if you look at the 6:00 record on that same 23 day, there is a notation there that the mood is pleasant, is 24 there not? 25 A. Yes, sir. 72 1 Q. Go on down that day you will see of the 12-to-6 2 shift, I guess this is the next 12-to-6 shift, it says Mr. 3 Wesbecker slept well, does it not? 4 A. Yes, sir. 5 Q. If we go to the right-hand side of that page, 6 under the 7-8 notation, the last two lines of that particular 7 notation are "pleasant and sociable upon approach," are they 8 not? 9 A. Yes. 10 Q. Then if you skip down to about the middle of 11 that right-hand side of the page under the 6:00 notation, do 12 you see there? 13 A. Yes, sir. 14 Q. It says, "Socializing with peers. Appears 15 adjusting well to unit"? 16 A. Yes. 17 Q. Correct? 18 A. Correct. 19 Q. Then 7 to 8:30 it says he rode exercycle, out 20 with group. Pleasant." Correct? 21 A. Correct. 22 Q. Then the next 12-to-6 notation on that same page 23 is "slept well;" correct? 24 A. Correct. 25 Q. Then there is an -- it looks like maybe 7 to 73 1 3:30? 2 A. Seven to three-thirty notation. 3 Q. It says, "pleasant on rounds;" correct? 4 A. Correct. 5 Q. That's M. Vineyard that made that notation? 6 A. Yes, sir. 7 Q. Is that a physician or a nurse? 8 A. It's a nurse. 9 Q. Would Mr. Wesbecker -- would these be 10 observations of Mr. Wesbecker during the doctor's rounds or do 11 the nurses make rounds, also? 12 A. I would say these are the nurses' notes during 13 their rounds. 14 Q. And her notation at that time was "pleasant on 15 rounds;" correct? 16 A. Yes. 17 Q. If you turn to the next page, Page 750423, if 18 you go down to the 11:00 notation, it says -- the last two 19 sentences there says, "Enthusiastic about returning to job. 20 Stated he liked working as a pressman," does it not? That's 21 under 11:00, have you got it? 22 A. Yes, sir. I found it. Thank you. 23 Q. "Enthusiastic about returning to job. Stated he 24 liked working as a pressman"? 25 A. Correct. 74 1 Q. Then immediately under that at 11:30, it says he 2 was playing several games of ping-pong; right? 3 A. Correct. 4 Q. Correct? 5 A. Correct. 6 Q. On that same page on the right-hand side of the 7 page at the 7-to-8:30 notation, right in the middle of the 8 page on the right-hand side, it says, "In room watching TV, 9 out for snacks in sun room, socializing with group;" correct? 10 A. Correct. 11 Q. Then if you look at the 12:30-to-6 notation 12 there, it's "slept well"? 13 A. Correct. 14 Q. Then if you turn to the next page, Page 750424, 15 the very final notation there, 11:30, says, "Doctor Hayes in 16 room;" correct? 17 A. Correct. 18 Q. Then the 12:00 notation is "Doctor Hayes 19 discharged patient. Happy to be going home." Right? 20 A. Correct. Correct. 21 Q. Then if you look at Page 750426, the nurse's 22 dismissal record? 23 A. Yes, sir. 24 Q. Right at the middle of the page, the nurse has 25 recorded Mr. Wesbecker's reaction to discharge, has she not? 75 1 A. Yes, she has. 2 Q. It says, "Happy and delighted to be going home," 3 doesn't it? 4 A. Correct. 5 Q. Thank you, ma'am. 6 MR. STOPHER: Nothing further, Your Honor. 7 JUDGE POTTER: Thank you very much, ma'am. You 8 may step down; you're excused. 9 Mr. Stopher, do you want to call your next 10 witness? 11 MR. STOPHER: Yes, Your Honor. The deposition 12 of Dr. Vicdan Senler. 13 JUDGE POTTER: Okay. Ladies and gentlemen of 14 the jury, I again remind you that a deposition is sworn 15 testimony taken outside the courtroom prior to trial. Each 16 witness is placed under oath and each side has an opportunity 17 to be present and examine and cross-examine that witness. 18 Under certain circumstances the transcript of that question 19 and answers can be read to you at trial. When that happens, 20 you will give the testimony the same weight and effect you 21 would if the person were here testifying live. 22 Mr. Stopher. 23 24 (THE FOLLOWING PORTIONS OF THE DEPOSITION OF 25 DOCTOR VICDAN SENLER WERE READ WITH MR. EDWARD 76 1 STOPHER READING THE QUESTIONS AND MS. SERENA 2 HIRN READING THE ANSWERS) 3 4 MR. STOPHER: This is the deposition of Dr. 5 Vicdan Senler, V-I-C-D-A-N, Senler, S-E-N-L-E-R. And the 6 deposition was taken on February 27, 1992, at the Psychiatry 7 Department, Veterans Administration Hospital, Louisville, 8 Kentucky. 9 10 EXAMINATION ___________ 11 12 BY_MR._STOPHER: __ ___ _______ 13 Q. Doctor Senler, as you know, I represent Eli 14 Lilly and Company in connection with some lawsuits that have 15 been filed against us arising out of a former patient's acts 16 that you treated back in '84. I'm going to be asking you a 17 number of questions surrounding your treatment of Mr. 18 Wesbecker and, in that connection in an effort to help your 19 recollection, I have had marked here today Senler Deposition 20 Exhibit No. 1, which is a certified copy of your office 21 records, which also includes some articles and some hospital 22 records. I'll ask you, please, to take a moment and look at 23 these records and see if on the first several pages there are 24 notes relative to your visits relative to the visits Mr. 25 Wesbecker had in your offices. 77 1 A. Yes. As you ask me, maybe I can come up and 2 remember. I cannot remember everything. 3 Q. Those records, if you notice, have a certificate 4 on the first page that certifies that they're true and 5 correct? 6 A. True. 7 MR. STOPHER: I'd like to at this time, Your 8 Honor, distribute and file those -- file first and distribute 9 those records which we have marked as Defendant's Exhibit 469. 10 JUDGE POTTER: Be admitted. 11 SHERIFF CECIL: (Hands document to jurors). 12 Q. What I would like to ask you is, as I understand 13 your background, you are a medical doctor with a specialty in 14 psychiatry; is that correct? 15 A. Yes, sir. 16 Q. And you were in private practice at the time you 17 saw Mr. Wesbecker? 18 A. Yes. 19 Q. And when you changed your practice and moved to 20 the Veterans Hospital, did some other firm or group of doctors 21 keep and maintain your records? 22 A. Yes. 23 Q. And that's why we got those records from your 24 former location as opposed to from here? 25 A. Sure. That's right. 78 1 Q. You never treated, of course, Mr. Wesbecker at 2 the Veterans Hospital? 3 A. No. No. Between '84 and -- '90 when this 4 happened, the incident happened? 5 Q. '89. 6 A. '89. There were several other doctors that 7 treated him, I think, after me. 8 Q. And look here at the Deposition Exhibit No. 2, 9 which purports to be a certificate on the top page that 10 certifies those as being the true and correct records of the 11 hospitalization of Mr. Wesbecker at Our Lady of Peace. 12 A. These are from Doctor Schramm and others, '87. 13 Q. Those are not the right records then? 14 A. These are long after me. 15 Q. While she's getting the right set of records 16 from the hospital, which we'll now have marked Exhibit 2, and 17 we'll withdraw that one since that's not the right one, look 18 at what has now been correctly marked as Exhibit 2 and see if 19 those are the hospital records from the hospitalization where 20 you were the treating physician of Mr. Wesbecker for Our Lady 21 of Peace. 22 A. '84, yes. 23 Q. All right. Now, in connection with your 24 practice, Doctor Senler, tell me, please, first by looking at 25 Exhibit No. 1, when you first saw -- Exhibit No. 1, when you 79 1 first saw Mr. Wesbecker as a patient. 2 A. Here it says March 26, '84. 3 Q. So on March the 26th of 1984, Mr. Wesbecker came 4 to you as a patient? 5 A. Yeah. 6 Q. Was he referred to you by a member of your group 7 or by some other physician or psychiatrist? 8 A. I don't remember, but I have a feeling that it 9 could be Doctor Hayes, who treated him long before. He was my 10 senior associate. He was trying to, you know, retire and he 11 was dividing the patients. It could be from him because I 12 have lots of his patients I took care of. 13 Q. Doctor Hayes retired about that time? 14 A. Probably '85. He was trying, I think. 15 Q. Trying to retire? 16 A. '84. '84, probably. I don't remember the date, 17 actually. 18 Q. And about the time that you saw him, would it be 19 a fair statement that Doctor Hayes was slowing down and that 20 you saw Mr. Wesbecker as a patient on March the 26th? 21 A. Probably, yeah. 22 Q. Would you read into the record, please, the note 23 that you made from the first visit that you saw him as a 24 patient? 25 A. Depressed. 80 1 Q. Would you read the note into the record, please, 2 ma'am? 3 A. My note, you mean? 4 Q. Yes, please. 5 A. "Patient feels depressed. No zest in his life." 6 Q. No what? 7 A. Zest, you know, life in his life. 8 "He's been through a lot with his wife, his son, 9 his new wife's ex-husband. Did fairly well last year with 10 medication, antidepressant medication. Has been out of them 11 past two weeks. No sexual drive. Wants to be well again. 12 Somewhat talkative but underneath some hostility towards 13 ex-wife." 14 Q. Hostility over his ex-wife? 15 A. Husband and the children, probably. It was all 16 what his talk. I'm sure it was mainly his dealing with them. 17 Q. That is the dealings with his ex-wife's husband? 18 A. Ex-husband. The present wife's ex-husband. 19 Q. I've got you. 20 A. And they had children living with them, and they 21 had quite a bit of problem. 22 Q. So the problem that he presented to you was a 23 person that was hostile because he was having difficulty 24 dealing with his present wife's ex-husband and the two 25 children that were living in their household; is that correct? 81 1 A. Uh-huh. That's what I understood. 2 Q. Do you remember Mr. Wesbecker as a patient? 3 A. Yes. I remember his face. Looking back after 4 we heard what happened, you know, yes. 5 Q. Certainly. Now, at that time, how long was it 6 your practice to visit with a patient? 7 A. Visit me? 8 Q. Yes. How long did you see Mr. Wesbecker on 9 3-26? 10 A. Maybe half an hour. 11 Q. Half an hour? 12 A. Yeah. 13 Q. And after you saw him and determined that he was 14 depressed and he had this feeling of no zest and no sexual 15 drive and this hostility, did you undertake to treat him with 16 any type of medication? 17 A. Yeah. He was on antidepressant medication. 18 Q. What antidepressant medication did you prescribe 19 for him? 20 A. I believe he was on Norpramin at that time. He 21 overdosed with that later on. Came to the hospital I believe 22 in April. Was it in April? Yeah. I believe it was in April. 23 April 16th, yeah. 24 Q. Now, did you give him -- how do you pronounce 25 that? 82 1 A. Norpramin. 2 Q. Norpramin? 3 A. One other name is desipramine. 4 Q. Did you prescribe it twice a day? 5 A. I don't remember the record. Probably. 6 Q. Is it in your note? 7 A. It said twice a day. In the hospital that was 8 changed, you know, when he was admitted. 9 Q. Look over here at the outpatient medication 10 list. 11 A. Yeah. See, in the hospital we changed it. When 12 he overdosed with the Norpramin, that's a stuporate, and we 13 switched to Triavil, Etrafon, here. 14 Q. Looking here at your record of what you had 15 given him before he was hospitalized -- 16 A. You mean the Norpramin. 17 Q. 3-26-84, is that what we're talking about here? 18 A. I guess we are, yes. 19 Q. 3-26-84, you've got Norpramin there, haven't 20 you, or somebody wrote down what you were giving him? 21 A. Norpramin. 22 Q. Twenty-five milligrams? 23 A. Twice daily, yes. 24 Q. Twice daily? 25 A. That's right. That's right. 83 1 Q. Is that classified as a tricyclic medication for 2 depression? 3 A. Yes. Sure. 4 Q. Now, looking at your office note again, when did 5 you next hear from the patient or from someone about the 6 patient? 7 A. The admission date. 8 Q. And that date is what, please? 9 A. That was the 16th of April, 1984. He overdosed. 10 We put him in the hospital. 11 Q. And did someone telephone your office about him? 12 A. I don't know who did really right this minute. 13 It was a long time ago. Someone must. 14 Q. Do you have any recollection of seeing him on or 15 about that date in the hospital? 16 A. Let me see the note. I don't know. If he came 17 late in the afternoon or late in the evening I may not have 18 seen that day. I don't remember right now. 19 Q. Does the hospital record indicate when you first 20 saw him in the hospital? 21 A. It could indicate, I'm sure. Let me see. My 22 admission note would say when I saw him or when I write note. 23 Apparently he came at night. He came at night and I saw 24 following morning, 17th. 25 Q. Would you read to us the note that you made in 84 1 the record about Mr. Wesbecker when you saw him the day after 2 he was admitted to the hospital? 3 A. "Forty-one-year-old white male admitted 4 voluntarily. Stated he tried to commit suicide, even two days 5 ago, he said, taking all these medications, Norpramin. 6 Q. Norpramin. He tried to commit suicide with a 7 tricyclic? 8 A. He said, yeah, and some sleeping pills, he said. 9 But I don't give sleeping pills. I don't know. He might have 10 something. Over the counter, I put here, he said over the 11 counter. Later he felt rather confused apparently with the 12 sleeping pills and all. He tried to close the exhaust pipe in 13 his car, tried to poison himself with the carbon monoxide. 14 Quote, unquote, he had enough, aggravation with his family 15 life, with his job and children. He felt unable to cope. Had 16 depressive episode before. He had many episodes before, 17 apparently. Hospitalized once before, but left AMA in three 18 days at Baptist Hospital. 19 Q. What was this where you came down there and you 20 said had depressive episode before, hospitalized, and what's 21 that next word, something, but left AMA in three days? 22 A. Hospitalized once. 23 Q. I see. 24 A. But left AMA. He did the same thing this time, 25 he didn't stay. 85 1 Q. What does AMA stand for? 2 A. Against medical advice. 3 Q. All right. And then continue to read that for 4 us, please, ma'am. "He was" -- 5 A. "Kind of talkative with pressure in his speech." 6 Talking, you know. 7 Q. He was what now? 8 A. Very talkative with pressure in his speech. 9 That means he was talking with lots of pressure. Felt 10 depressed, unable to cope. This comes in every place. He was 11 unable to cope. No delusions or hallucinations. No overt 12 psychotic symptoms. No overt suicidal thoughts today, I say 13 that morning. Depressive illness. Major affective illness, 14 depressed, recurrent type. 15 Q. When he reported to you as his physician that he 16 had had enough and started blaming the family life and his job 17 and his stepchildren, et cetera, what did that tell you as a 18 physician, if anything? 19 A. He was unable to cope. This was in his history. 20 He was unable to cope with the present state that he was in 21 with the ex-husband of wife, children, stepchildren. 22 Q. What line of treatment did you outline for him? 23 A. Well, I wanted to study his case. He was kind 24 of new to me. He had major mental illness in the past, 25 depression, this and that in the past, what I heard, but I 86 1 wanted to study his case. I got the psychological testing 2 done within three days. 3 Q. That was Doctor Leventhal? 4 A. Yeah. Yeah. And I got the brain wave done to 5 see what's going on there. 6 Q. Tell us, first of all, what the purpose was for 7 having Doctor Leventhal do any testing on him. 8 A. To see the personality profile, to see is there 9 any organic involvement, any learning difficulties, any 10 differences between the performance or the verbal I.Q. Some 11 people will have that if they had learning difficulties in 12 early childhood, perceptual difficulties, and they have a 13 difficulty later in life in coping. I just wanted to have 14 some base for me if I'm going to treat this guy. 15 Q. Was Doctor Leventhal's work of assistance to you 16 in seeing what kind of person you were dealing with? 17 A. Some idea that he wasn't the strongest man. He 18 had some borderline qualities and I treated him accordingly. 19 Q. What was the purpose of doing the brain wave 20 test? 21 A. To see is there any damage or any seizure 22 activity, if he's epileptic or is there anything else going 23 on. There were some very mild fast activities, but because he 24 took drugs, 20 Norpramin and then over-the-counter sleeping 25 pills, that was really -- there was no specific organic 87 1 difficulties. 2 Q. You would then expect him to have some rapid 3 brain waves having had a history of him overdosing on 4 Norpramin? 5 A. Sure. Sure. Sure. We expect that. 6 Q. What else did you do by way of evaluating him? 7 A. Well, after we watched him and put him in a 8 suicidal precaution maybe, and it was fourth day, he wanted to 9 go. He was a regular good worker. That's the way I remember. 10 He didn't want to lose his job. He said, "I don't want to 11 stay." Apparently, he did the same thing in the first 12 hospitalization at Baptist. He left AMA. I told him he 13 wasn't to go. 14 Q. And that AMA is "against your advice"? 15 A. Against my advice. 16 Q. All right. Now, were you able to get him clear 17 of the medicine, both the over-the-counter sleeping pills and 18 the Norpramin while he was in the hospital? 19 A. Yeah, he was -- yeah, he was. Because he took 20 it two days before he did this carbon monoxide. I think he 21 took it two days before he came to the hospital. 22 Q. When he left the hospital against your advice, 23 did you ask him to take any kind of medication on a daily 24 basis? 25 A. I think we -- yes. I think we give something 88 1 else, very small, for a combination of the drugs, a small dose 2 of antidepressant with a nerve medication. It's a 3 combination. We call it Triavil or Etrafon, different names. 4 Q. Etrafon? 5 A. Yeah. Small, to help people who are nervous, 6 unable to cope. The other part is for depression. It was a 7 combination of drugs, yes. 8 Q. And was that at a 10-milligram dose? I think 9 that sheet -- 10 A. It was 2-10. Two milligrams from one drug and 11 ten milligram from other drug. 12 Q. I understand. A two of what, so I'll get it 13 straight in my mind? 14 A. Two milligram from Trilafon and ten milligram 15 from Elavil, combination. 16 Q. And what were each of these drugs designed to 17 help? 18 A. Well, one of them -- the combination would help 19 if people, like, are irritable, unable to cope, feel nervous, 20 the first part will do that. If they are a little suspicious, 21 you know, Trilafon is treated more or less -- more disturbed 22 people, more nervousness, unable to cope. Elavil is to 23 elevate his mood. Both in combination helps lots of people 24 like him or irritable people with a depressive mood. 25 Q. Now, getting back to the hospital note for just 89 1 a moment, in looking at your records, I see that you noted 2 that he was angry, frustrated, had pressured speech, and was 3 tired of all medications. Did I get that right? 4 A. No. He was tired of life, like. I don't 5 remember if he was tired of all the medications. 6 Q. Tired of it all? 7 A. Tired of what was going on in his life at that 8 time. 9 Q. While he was in the hospital, with what 10 medications did you treat him? 11 A. Mostly it was -- we started -- we didn't have 12 enough time. The Etrafon 2-10 was started I think in the 13 hospital, but he didn't stay long enough probably at the 14 prescription to go. He came and got it, I don't know how. 15 Small dose of the same drugs that I talked to you, 2-10. 16 Q. Was he on Ativan while he was in the hospital, 17 the two milligrams? 18 A. Sometimes they do it p.r.n. basis for agitation, 19 yeah. 20 Q. Did he have any Restoril for sleep? 21 A. Yes. We do that in the hospital only. 22 Q. Look at the nurses' notes on 4-16, please, 23 ma'am, while he was there in the hospital. 24 A. Yes. 25 Q. Do you see the nurses' notes of 4-16? 90 1 A. Yeah. 2 Q. Would you read that into the record, please? 3 A. This is agitated, tense. The first one? 4 Q. Yes, ma'am. 5 A. That is the same day. Conversation 6 circumstantial. 7 Q. Seems what? 8 A. You know, he's talking just all loose talk. 9 He's talking, you know, many other things. Ventilates anger 10 toward wife's ex-husband. Again, same man, whom he blames for 11 all of his problem. "This marriage will destroy me if I stay 12 in it," he told nurses. "I love my wife but I can't take any 13 more." Worries about losing job. Can't compete 14 financially -- I don't know -- with wife's family. Oh, I 15 think wife's family was much richer or something, from the 16 husband, she got more money, you know, child support, and he 17 felt he cannot compete with them. Denies suicide. Attempt 18 twice, they say. Denies thoughts now; that means he denies at 19 that time. Also admits homicidal thoughts towards wife's 20 ex-husband. Thought of blowing his brain out -- he did not 21 share that with me -- but he always has a witness with him. 22 Q. Talking about the ex-husband? 23 A. He was talking angry, he wanted to get -- 24 Q. But he was referring to the ex-husband? 25 A. Ex-husband of the second wife, yeah. He was 91 1 upset enough. 2 Q. Now, when he left the hospital against your 3 advice, did he deny having suicidal thoughts? 4 A. He denied. 5 Q. And did he also deny having homicidal thoughts 6 toward blowing this ex-husband's brains out? 7 A. Yeah. He denied that, too. He denies to the 8 doctor, but still I wanted him to stay longer. 9 Q. Sure. 10 A. I wasn't sure that he was with his personality 11 and all. 12 Q. Now, would you go back to your office records, 13 please. When did you next see Mr. Wesbecker as a patient in 14 your offices? 15 A. After his hospitalization? May 8, it says. 16 Q. '84? 17 A. '84. 18 Q. And what was his condition at the time you saw 19 him then? 20 A. Since his discharge from Our Lady of Peace, went 21 to work. He went to work, it says, has been doing fairly 22 well, but he is angry towards wife's ex-husband. I think it 23 was there all the time. Less depressive. No suicidal 24 ideations. Taking Etrafon 2-10 twice daily. Wife leaving end 25 of this month. They probably had some -- 92 1 Q. What was that? 2 A. Wife was leaving, you know. 3 Q. Leaving? 4 A. Leaving, yeah, the end of that month. When I 5 saw him in June apparently they were separated. 6 Q. All right. Then you next saw him on June the 7 4th, 1984? 8 A. Sure. 9 Q. Before we get to that, did you leave him on the 10 medication that you had put him on when he left the hospital? 11 A. Yes. Same medicine. 12 Q. All right. And he was then on the Etrafon? 13 A. Yeah. Etrafon, same thing, 2-10. 14 Q. 2-10. All right. And that was to be given 15 twice a day? 16 A. Twice a day. If I remember right, he did not 17 want to take much because he was working with the things. Oh, 18 you know, he cannot take too much of the medication. He 19 didn't want too much. 20 Q. Then you saw him next on 6-4-84? 21 A. Yes. 22 Q. What was his condition at that time? 23 A. He felt relief. Wife separated from him. He 24 was relieved from stress. 25 Q. Why was he relieved? 93 1 A. Because of the wife and the children, you know, 2 the stepchildren. They were just irritating him, I guess. 3 Ex-husband calling every day, something in that respect. He 4 felt relieved she left. Still had a degree of anger toward 5 the husband, ex-husband. 6 Q. Did you leave him on the medication? 7 A. I left him on the medication, if they follow it, 8 but he felt relieved and taking less medication. Sometimes 9 they do it on their own, you know, they go on less. 10 Q. When did you next see him? 11 A. October 8. 12 Q. October the 8th? 13 A. '84. 14 Q. October what? 15 A. October 8. 16 Q. 8th. All right. 17 A. Yeah. '84. 18 Q. Well, I had a note it looked like here that you 19 saw him on August the 6th? 20 A. There is here another one. I thought this was 21 the continuation. August 6, yes. 22 Q. Uh-huh. How was he he doing then? 23 A. Bitter, angry. Was hostile to social worker of 24 his son. 25 Q. Who is the social worker? 94 1 A. One of his sons was having problem. I think he 2 was placed in the state hospital for some sexual misconduct. 3 I don't remember the detail right now, and they were trying to 4 take the son away or do this, do that, or some sort of 5 treatment, and he was just venting his anger toward the social 6 workers. 7 Q. Was it for exhibitionism? 8 A. I think something in that respect. 9 Q. Doesn't your note say that? 10 A. He has been in detention center for 11 exhibitionism. He was under state custody, expected to be 12 placed in state treatment center. They were going to put him 13 to treatment center at state. 14 Q. And did you leave him on the same medication? 15 A. Same medication. 16 Q. And then you saw him on 10-8-84? 17 A. October 8th, '84. 18 Q. What shape was he in then? 19 A. Seems to be doing fairly well still, but had 20 quite a bit of anger toward social system. His son was in the 21 children's treatment center, Central State. He was visiting 22 him weekly, he told me. 23 Q. When he was -- 24 A. He was visiting his son about every week, 25 weekly. He had fair relationship with his wife, whom he was 95 1 separated month ago. Talkative, some pressure in his speech. 2 Had no other complaints. 3 Q. What does the talkative with some pressure in 4 his speech indicate to you? 5 A. You know, when people are angry and has some 6 pressure, it can be many things, you know, if it is worse, 7 crying, and they can go toward more manic type of a behavior 8 with the flight ideas, but it wasn't that. It's the anger. 9 Q. Was he in any sort of hypomanic state at that 10 time? 11 A. No. No. I didn't think it was anyway. 12 Q. When did you next see him? 13 A. December. Failed to show one time. 14 Q. And that was 12-4-84? 15 A. Yeah. He was coming every couple months just to 16 get his medication, vent his problems. 14 December. 17 Q. 14 December '84? 18 A. Yeah. Talk about his son, his son's sexual 19 deviation, exhibitionism. Was in Central State children's 20 unit, going to be living with his mother. And he told me that 21 he was divorced already from the wife, but he was still seeing 22 the wife. They were still trying to make the relationship. 23 Q. Was his mood better, worse, or the same? 24 A. It was fairly well. It was more stabilized. 25 Q. Was he still on the medicine that you had 96 1 prescribed? 2 A. Yeah. Yeah. Always during that period. He 3 liked this medication to keep him less depressive. 4 Q. Now, he had an appointment on 4-18-85 that he 5 didn't keep; is that correct? 6 A. Yeah. Failed to slow. 7 Q. And you next saw him on 12-26-85? 8 A. He was feeling a little bit nervous. He's been 9 off the drug for some time. See, they go off on their own. 10 Q. Did you find out how long he had been off? 11 A. I am assuming that since he didn't show up to 12 one of the visits it could be a couple of weeks. We restart 13 his medication. 14 Q. Was he talkative on that occasion? 15 A. A little talkative, a little anger, little 16 bitter. 17 Q. And then did he fail to show for an appointment 18 on 6-18-85? 19 A. Yeah. 20 Q. When did you next see him? 21 A. '85 -- 26. What month is that? 22 Q. June the 18th, '85, he failed to show? 23 A. Yeah. 24 Q. And then you saw him on June 26, '85? 25 A. Is it June? Okay. It's off there. 97 1 Q. How was he that day? 2 A. Patient was complaining of not feeling very 3 sharp. He thought he was slow, you know. Since I know that, 4 I put that he had perceptual difficulties, learning 5 difficulties as a child, psychologist indicated, if stress 6 less able to handle it, if stress gets much he has 7 difficulties to handle it. But his affect was good. He 8 ventilated himself and left. 9 Q. When did you next see him? 10 A. December 3rd, '85. 11 Q. So that's nearly a half a year later, six months 12 later or so? 13 A. Yeah. See, he didn't come regularly, he just 14 came when he felt under more stress or he knows that he cannot 15 cope, he's unable to cope. 16 Q. Did you find the patient easy to communicate 17 with or difficult to communicate with? Doctor Leventhal had 18 mentioned something about that. 19 A. Not very easy to communicate. He talks a lot, 20 but at the same time you have to ask questions, pinpoint the 21 difficulties. Yeah. 22 Q. When you saw him 12-3-85, tell us about what he 23 was concerned with on that visit. 24 A. He was concerned. He brought a research paper 25 that he found toluene or benzone -- or benzene. 98 1 Q. That was toluene? 2 A. Yeah. Toluene, inhalants that may probably hurt 3 people or not. He was just getting a little suspicious on 4 himself, if he was going to be hurt by this, asked several 5 questions if he was damaged. We had his EEG done. He wasn't 6 damaged, I didn't think so. Most of his tests were okay. I 7 said -- just to work his mind clear, I told him he can have a 8 good physical by his family physician. He was referred back 9 to him to get good checkup. He was having some difficulty 10 falling asleep. We increased his Elavil and I told him to 11 reduce caffeine. 12 Q. Did you make any note about his thoughts running 13 fast or mind working fast? 14 A. Since I had always a little bit pressured speech 15 and going fast -- when did that come up -- I was thinking in 16 my mind that I may try lithium. I put that in my note here, I 17 may try lithium because, you know, irritation there. 18 Q. What did you make of his thoughts about the 19 toluene and his suspicion about these chemicals that he was 20 working with? 21 A. I don't know what he was doing, the inks or 22 something, but inhalant can hurt people. He was just 23 questioning, a little suspiciously probably, maybe 24 righteously. I don't know. 25 Q. But you had him then go to his -- 99 1 A. Because I did order two years ago with the EEG, 2 this and that, we did physical, everything was all right. But 3 since two years, I don't know, anything can happen. To calm 4 his mind and suspicions, I said it's good to go to your 5 physical doctor, we send you, get a good checkup again. And 6 he did. 7 Q. He brought you a copy of articles that are there 8 in the record about toluene and benzene, did he not? 9 A. Yeah. I put it someplace. 10 Q. And you sent him to Doctor Beanblossom? 11 A. Beanblossom. 12 Q. To do a study? 13 A. Lab work I think he did. 14 Q. Wait a minute. She's got to get it down, so we 15 both can't talk. 16 A. They were negative. 17 Q. We can't both talk at the same time because she 18 can't get it down. She gets mad at me and kicks me. So you 19 sent him to Doctor Beanblossom to determine if these chemicals 20 were in any way adversely affecting his health? 21 A. Health. That's right. 22 Q. And Doctor Beanblossom did some tests; right? 23 A. Yeah. And some lab work done, which were 24 negative. 25 Q. That means nothing? 100 1 A. Right. 2 Q. And that was on 1-21-86, he had that done? 3 A. '86, yes. 4 Q. When did you next see him? 5 A. Let me see when. This is punched. I don't know 6 the month, but 18. 7 Q. That's May? 8 A. '86, May. 9 Q. May 18 of '86, is what I see. 10 A. Okay. 11 Q. What was this business about poison? 12 A. Toluene or whatever, those inhalants that he was 13 thinking maybe it hurt him, you know. He was reading and 14 connecting that to that ink that he was working on, and we 15 sent to the physical doctor to check some labs, is there 16 anything in his blood or not, and it was all right. 17 Q. Uh-huh. 18 A. Next time -- I don't know what month this is. 19 It's punched out. 20 Q. June the 24th, '86. 21 A. Before that there was 18th, here, I see in April 22 maybe. 23 Q. That's May the 18th, '86. 24 A. He was feeling better about himself, was not 25 complaining of anything about the poisons or his welfare. He 101 1 said he was exercising more, eating fine. 2 Q. Now, Ms. Collier pointed out to me that the 3 photostating, we can't tell what that is, whether it's March 4 or whether it is May. 5 A. I can't read it. 6 Q. My copy clearly shows an M-A-R, period. So 7 that's March, then? 8 A. March. I write March. 9 Q. Okay. 10 A. '86. 11 Q. Thank you. And then when did you see him, is 12 the next date May or June? 13 A. June. See, he comes every three months. Okay. 14 Q. Now, what shape was he in on the 24th of June 15 '86? 16 A. I thought he was much sicker. 17 Q. You did? 18 A. Yes. 19 Q. Why? 20 A. His thoughts were racing, he said. I know that 21 he always a little talk fast. His thoughts were racing 22 especially at night, I think. Can't shut them off, he said. 23 He couldn't shut off his mind. He talked constantly. Had 24 poor concentration. He says he gets interrupted easily. 25 Forgets in the middle of a sentence, he couldn't complete. I 102 1 put here that he had some organic difficulties as a child, 2 perceptual difficulties in his learning, LD, disabled, put in 3 the parentheses, probably dyslexia. Will try lithium for 4 trial and see. Lots of hyperactive kids with learning 5 difficulties, you know. The last time I saw him. When I said 6 the lithium or something else, last time I saw him. 7 Q. Do you know why, Doctor Senler, he did not 8 return to you? 9 A. It could be that my mentioning to him that I may 10 start the lithium on him. I don't know. You know, his 11 relationship with woman, it wasn't very healthy. 12 Q. Say that again. 13 A. It wasn't very healthy, his relationship with 14 woman in general, starting with his mother. It could be that 15 it was one of his distrusts again. You never know sometimes. 16 They go from one to another. 17 Q. The only other thing that I see in your file is 18 that you wrote to Doctor Coleman on August the 10th, '87. 19 A. A year later? 20 Q. Yes. 21 A. Yeah. 22 Q. Giving him some information. 23 A. I got a call from Doctor Coleman and I wrote a 24 little note to him. What did I write? Where is the letter? 25 I told him in the letter, I think -- I don't have the letter 103 1 with me. 2 Q. We have it right here. 3 A. What I feel about him. 4 Q. Look at that. If you can lift that book, you're 5 a strong person. 6 A. Oh, yeah. I said, "Dear Doctor Coleman: Mr. 7 Wesbecker was transferred to my care after Doctor Ray Hayes 8 retired. He was seen mostly as an outpatient. He was taking 9 Etrafon 2-10 milligram twice daily in January 1986. He 10 received Elavil 25 p.i.d. for increasing his depressive mood. 11 In June '86, he experienced thought racing and inability to 12 follow through with things. At that time patient was given 13 lithium on trial basis to see how he would respond to this 14 treatment. And I haven't heard from the patient, apparently, 15 he didn't want to take it. I have not seen patient since 16 then. Mr. Wesbecker is basically suffering from the 17 diagnosis, in my estimation, probably borderline personality 18 with quite a bit of paranoid ideation. I hope this will help 19 you in treating Mr. Wesbecker." 20 Q. During the time that you saw Mr. Wesbecker as a 21 patient, if I understand what you have told me, he initially 22 blamed his problems on his second wife's ex-husband and the 23 stepchildren that were living in the house with him; right? 24 A. Yes. 25 Q. Then you saw him during a period of time that he 104 1 was blaming the chemicals that he was working with at his 2 place of work for his condition? 3 A. He didn't blame; he just had a question. He 4 read it someplace. He was just asking me, you know, if this 5 can happen. I said I don't know, you can check. Everything 6 normal with you two years ago, but we send you to your medical 7 doctor. Let's check the lab work, blood work, is there 8 anything in your blood or not, and inhalants or any toxic 9 material. That was all negative. 10 Q. Did he persist with -- 11 A. No. 12 Q. After you told him it was negative he left it 13 alone? 14 A. Yeah. Actually, he never really discussed his 15 problem. If he had any major problem with his work, he never 16 discussed that in detail with me. 17 Q. Would you say or could you tell from the short 18 period of time that you treated him as to whether or not he 19 was trustful of you and was he a trustful person or could you 20 tell? 21 A. I don't think so. Looking at his background, 22 the way his relationship with woman in general, you know, he 23 was a little bit distant. 24 Q. Did he have any schizoid qualities that came and 25 went or always or what? 105 1 A. I never thought he was schizophrenic, but with 2 that kind of personality he can come close to schizoid 3 personality maybe. Some borderlines are. 4 Q. What does that mean, Doctor? 5 A. They are withdrawn. They cannot relate too 6 well, they cannot take the pressure too well, but I never 7 thought he was really delusional or psychotic. I never 8 thought that during the time. This is years ago. 9 Q. The fact of the last few questions about the 10 chemicals at work that were bothering him, that went on over a 11 period of time? 12 A. One session. 13 Q. One session? 14 A. No. If he complained to me every session for 15 three years, you know, I mean. No. It was one session. He 16 brought one article because he read it in someplace because 17 he's a little bit suspicious. I wanted to comfort him, you 18 know, have a good checkup. That's all, if I remember right. 19 Q. And in doing that do you know if he did any 20 investigation of that at his place of work? 21 A. If he did? I don't remember right now. He 22 might. I don't know. 23 Q. Do you know if you did -- do you remember if you 24 did any kind of investigation yourself of whether at work 25 there were chemicals like this? 106 1 A. No. No. Maybe his family physician probably 2 did, I don't know. I haven't had any contact from them for 3 any reason. 4 Q. What other statements did he make to you about 5 his job? 6 A. Not much. I don't remember much about him 7 talking about the job, other than that, in how many times I 8 seen him, six, seven times. Mostly it was a family type of a 9 thing. This guy was just unable to cope. This guy had 10 learning difficulties in early childhood. He had so much 11 perceptual in his brain, discordance, that he couldn't cope 12 like normal people will cope. 13 Q. Did he discuss anything about any pressures at 14 work? 15 A. On admission when he was talking about job 16 pressures came at that time, yeah, and then towards the end 17 when I saw him he was -- you know, he was unable to cope, but 18 that was part of his personality. He wasn't able to cope with 19 the normal life stresses. Maybe his was more than others. 20 Q. Were there some things, if you remember, that he 21 liked about his job and other duties that he didn't like that 22 were causing this pressure? 23 A. No. He never mentioned to me anything, but I 24 know that he was a regular job, good worker. He always liked 25 regular, his good job. I mean, he always talked he loved his 107 1 job and 18 years or 17 years, you know, one of those regular 2 workers. He didn't say anything that they were after him or 3 this and that. I didn't hear any of those. 4 Q. Now, I had a note of something here back in the 5 very beginning in '84. It said something I don't want to stay 6 at job. That was way back there at April 16th, '84, when you 7 first began to treat him? 8 A. You mean when he was admitted? He was stressed, 9 stressed with everything. That's when he overdosed. The job 10 and ex-husband's wife -- or wife's husband, everything, he 11 couldn't cope. He wanted to get out, he said. 12 Q. In Exhibit 1, which Mr. Freeman gave you, your 13 office records, do you have a report from Morton Leventhal? 14 A. I think I have it. Yeah. 15 Q. Dated April 28, '84? 16 A. Yeah. 17 Q. Could you look on the second page of Doctor 18 Leventhal's report? 19 A. Yeah. 20 Q. And the very first sentence, could you please 21 read that to me? 22 A. Yes. 23 Q. Could you read that into the record? 24 A. The first paragraph? 25 Q. The very first sentence. 108 1 A. "Basically, the picture is of a 2 passive-dependent, rather paranoid, somewhat schizoid man who 3 perceives the world as threatening and harbors a great deal of 4 anger at what 'they' have done to him." 5 Q. Okay. Doctor Senler, do you have an opinion as 6 to who the "they" are in this sentence? 7 A. It could be anybody. 8 Q. Okay. 9 A. It was his unconscious mind, what he checked it 10 could be anybody. It could be ex-husband of the wife. He 11 harbored anger toward him continuously to me. It means world 12 around, all the people. 13 Q. Okay. Doctor, I believe we have talked about 14 the letter that you sent to Doctor Coleman? 15 A. Yes. 16 Q. Did you ever have any conversations with Doctor 17 Coleman? 18 A. I don't remember if I talked to him. Maybe I 19 seen him in the hospital one day. I mention to him. He maybe 20 had seen the record, too. 21 Q. You don't recall any specific conversations? 22 A. I don't recall right now. If he did call me, 23 I'm sure I talked to him. But I don't recall right now. He 24 may have seen all these records. I wrote a letter to him. 25 See, he can look at the hospital record on any patient he 109 1 gets. I'm sure he has seen them. 2 Q. Did you send him your office records, as well, 3 Doctor Coleman? 4 A. No. I didn't send them. 5 Q. But he has access to your records at the 6 hospital? 7 A. Sure. Sure. Sure. He got everything, I'm 8 sure. 9 Q. I believe you testified earlier in regard to a 10 nurse's note written on April 16th, 1984. Do you have that in 11 front of you? 12 A. It was someplace I just passed. 13 Q. Would you kindly point that out to me, please? 14 A. Here, this one. Yeah. This one. 15 Q. Would you read for the record, ma'am, the 16 sentence that refers to blowing of someone's brains out? 17 A. Yeah. Ex-husband of wife. 18 Q. Would you read that, please? 19 A. Sure. I read it before already. He denies the 20 thought now. The nurse says, "I just want out. Also admits 21 to homicidal thoughts towards wife's ex-husband. Thought of 22 blowing his brain out." 23 Q. And then what does it say? 24 A. "But he always has a witness with him." 25 Q. Do you know what that referred to, always had a 110 1 witness with him? 2 A. I don't know what he means. 3 Q. He didn't make that statement to you, rather, he 4 made it to a nurse? 5 A. No. No. No. 6 Q. Did you have access to that nursing note during 7 the course of your care of Mr. Wesbecker; in other words, you 8 read that note? 9 A. I'm sure I read it. I know the angers and the 10 things. 11 Q. So even though he didn't make that statement to 12 you, you knew that he had expressed that to a nurse? 13 A. Oh, sure. Sure. And I asked. That was one of 14 the reasons that I didn't want to discharge him. 15 Q. Okay. But you did not take that to be a direct 16 threat against his wife's ex-husband, did you? 17 A. No. Knowing him with lots of anger all long, 18 expressing throughout how many times I see him always towards 19 the ex-husband, that was the very first time. Since he 20 overdosed, he was under lots of pressure. With many things it 21 came out because he never verbally told you. 22 Q. Had you perceived that expression to be a direct 23 threat against his wife's ex-husband, you would have either 24 taken steps to warn that gentleman or taken steps to have him 25 kept in the hospital involuntarily; is that correct? 111 1 A. Well, it could be done probably, but, you know, 2 he denied it when I talked to him. 3 Q. And you would have done that had you interpreted 4 that to be an actual threat against that gentleman; correct? 5 A. Sure. Sure. 6 Q. Did Mr. Wesbecker ever specifically threaten 7 anybody in your presence? 8 A. No. 9 Q. Did he ever express any homicidal thoughts or 10 tendencies again in your presence? 11 A. No. This is the only time, in the hospital. 12 Q. Did you ever have any communications with 13 Standard Gravure regarding Mr. Wesbecker's condition? 14 A. No. 15 Q. Is that your normal policy? 16 A. Yes. It's my normal policy, unless they try to 17 contact me for one reason or another, complain about the 18 worker, or, you know. I never had any call from them. 19 Q. And you didn't feel the need to contact them? 20 A. No. No. He never complained that he was having 21 a major problem at the job. During my seeing him, he had lots 22 of problems with his son and this and wife's ex-husband and 23 home life was stressing him more, I guess. That's the only 24 way I could say. I did not see any major problem at work 25 place. It could be that it was distressing to him, but he did 112 1 not share with me. Let's put it that way, maybe. Everybody's 2 job stress people one time or another. 3 Q. We've been talking about this one nursing note. 4 Do you know what nurse took that note down? 5 A. I don't remember. Do they have their initials? 6 Q. Please? 7 A. Do they have their initials? We had so many 8 nurses. No, I cannot read that initial. I don't know who she 9 is. 10 Q. Doctor, I'm not sure, earlier when you read this 11 in the record on Line 5, does that say, "Admits to suicide 12 attempts times two"? This word here, admits? 13 A. It means previously, I guess, suicidal attempt 14 twice. 15 Q. "Admits to suicide attempts times two -- 16 A. Yeah. 17 Q. -- on 4-12 but denies thoughts now"? 18 A. Yeah. 19 Q. I guess it's customary, Doctor, to read these 20 nurses' notes when you come on duty every day? 21 A. Sure. Sure, we do. We discuss the cases, too. 22 We have meetings sometimes, everybody puts their feeling about 23 the patient. 24 Q. Do you recall if you talked to this particular 25 nurse about this statement about him wanting to blow his 113 1 wife's ex-husband's brains out? 2 A. No. We probably discussed it in a meeting if we 3 discussed the patient. I don't remember it particularly. 4 Q. It didn't stand out as something very 5 significant at the time? 6 A. It was, but this was angry man always. He had 7 some angry expressions towards this husband and that day or 8 since a few days he was really more upset. And when people 9 are upset, they say something, they do something, you know, 10 they don't really mean. 11 Q. Did you confront the patient about that 12 statement at any time? 13 A. I don't recall right now. But in my mind I 14 didn't want him to go for a while. You know, he should get 15 more treatment. I did not want him to go, leave the hospital. 16 Q. But you don't recall if you confronted him about 17 that issue? 18 A. I don't recall. Probably I did and he denied 19 maybe. I don't remember right now what was the discussion 20 during the rounds. Mostly they do. 21 Q. And you have indicated you have seen this 22 patient numerous times over a couple of years? 23 A. '84 and '86. Three times a year, four times a 24 year. 25 Q. At any time in any of those meetings, did he 114 1 express to you an intent to kill anybody? 2 A. No. 3 Q. Did he at any of those meetings and any of those 4 consultations talk about killing himself? 5 A. No. No. No. Except his admission, you know, 6 his admission on 4-16. 7 Q. Right. But in the next two years? 8 A. I don't recall. 9 Q. The last time you saw him I believe your 10 testimony was that he was much sicker; is that correct? 11 A. You mean in June? 12 Q. June 24th of '86. 13 A. Yeah. Because he complained his thoughts racing 14 more at night, he couldn't shut off his thoughts, and his 15 concentration was a little poor, you know, he was having more 16 agitation. 17 Q. Was that the sickest that you ever saw Joe 18 Wesbecker? 19 A. I think so. Except for the first 4-16, when he 20 was admitted. 21 Q. Except when he was admitted. And exactly what 22 factors did you base that opinion on that he was much sicker 23 the last time that you saw him on 6-24-86, what precise 24 things? 25 A. Mostly his thoughts racing, inability to shut 115 1 off his thoughts, his concentration poor, he was forgetting 2 between the sentences, he was interrupting, he wasn't able to 3 follow through. Knowing his history being perceptually 4 handicapped, learning difficulties, you expect in some adult 5 patients like this, coping difficulties, concentration poor, 6 inability to follow through. 7 Q. Was he in your opinion manic? 8 A. Well, he wasn't manic, but he was getting there 9 probably that day I saw him. That's why I was thinking 10 probably give some lithium and see what can happen, and then 11 he didn't come back. 12 Q. Did you consider him on that date a danger to 13 himself? 14 A. No, I didn't think so. 15 Q. Did you consider him a danger to others? 16 A. No. If I would, I would put him in the hospital 17 or do something. 18 Q. Doctor, why specifically did you decide to try 19 lithium for him on that June 24th date? 20 A. Because I felt he was having a little 21 hyperactive brain, running faster than usual time. He said 22 so, his thoughts were racing, he couldn't shut his thoughts 23 off. 24 Q. Did you tell him why you thought he should take 25 lithium? 116 1 A. Yes. Sure. I tried to explain to him that we 2 try lithium. 3 Q. Do you recall whether you gave him samples or 4 gave him a prescription? 5 A. It could be I gave him a prescription. I don't 6 hand out many samples. 7 Q. Do you have any record there that you ever heard 8 from any pharmacy as to whether he had ever had that filled or 9 wanted it refilled? 10 A. No. I really don't know. 11 Q. Was the next time you heard anything about 12 Joseph Wesbecker after June the 24th, 1986, when you received 13 a communication from Doctor Coleman's office? 14 A. Yeah. That was in '87. 15 Q. I mean in 1987, yes. 16 A. Yes. 17 Q. I believe it was in the summer, maybe July of 18 1987? 19 A. Probably. 20 MR. STOPHER: And that's the end. Thank you, 21 Serena. 22 Your Honor, we next call Barbara Sheehan. 23 JUDGE POTTER: Please be seated. Ma'am, would 24 you step around here in the middle and raise your right hand, 25 please. 117 1 BARBARA SHEEHAN, after first being duly sworn, 2 was examined and testified as follows: 3 4 JUDGE POTTER: Okay. Would you walk around, 5 have a seat in the witness box there, say your name loudly and 6 then spell your name for us. Wait till you get seated next to 7 the microphone. 8 MS. SHEEHAN: My name is Barbara Sheehan. 9 That's B-A-R-B-A-R-A, S-H-E-E-H-A-N. 10 JUDGE POTTER: Ms. Sheehan, if you'll keep your 11 voice up and answer Mr. Stopher's questions. 12 13 EXAMINATION ___________ 14 15 BY_MR._STOPHER: __ ___ ________ 16 Q. Ms. Sheehan, I understand that you have a 17 doctor's appointment in the early afternoon, I think you told 18 me at 1:00? 19 A. Right. 20 Q. So let me get quickly to the business at hand 21 and let me also ask you, Judge Potter just mentioned that it 22 will save all of us a little bit of time if you'll speak loud 23 and directly into that microphone. Everybody wants to hear 24 what you have to say and it will keep you from having to say 25 it twice. 118 1 A. Thank you. 2 Q. All right. So give us as much volume as you 3 can. Ms. Sheehan, by whom are you employed? 4 A. I'm now retired. 5 Q. And where were you employed prior to your 6 retirement? 7 A. At Our Lady of Peace Hospital. 8 Q. And what sort of work did you do at Our Lady of 9 Peace Hospital? 10 A. I was a staff nurse working directly with 11 patients. 12 Q. And as a staff nurse does that mean that you're 13 an RN or LPN, or what was the status? 14 A. I was an RN. 15 Q. Ms. Sheehan, as an RN and a staff nurse at Our 16 Lady of Peace Hospital, generally what did you do? 17 A. I worked directly with the patient giving 18 patient care. I admitted patients; I counseled patients; I 19 gave medications. 20 Q. And approximately how long did you work in that 21 capacity at Our Lady of Peace Hospital? 22 A. I was employed there for approximately 17 years. 23 Q. And approximately when did you retire? 24 A. In November of '91. 25 Q. Ms. Sheehan, let me show you some notes from the 119 1 Our Lady of Peace Hospital records. And let me ask you if you 2 would look at that, and can you tell us, do you recognize the 3 handwriting or some of the handwriting on these pages? 4 A. Yes, I do. 5 Q. And whose handwriting do you recognize? 6 A. It's my handwriting. 7 MR. STOPHER: All right. Let me move the 8 admission of Defendant's Exhibit 468A, Your Honor. We will 9 introduce after lunch the entire records as 468, but these are 10 the portions that relate to this witness only. 11 JUDGE POTTER: Okay. Be admitted. 12 MS. ZETTLER: Your Honor, as long as we have the 13 opportunity to question this witness with our set of the other 14 notes. 15 JUDGE POTTER: Okay. 16 SHERIFF CECIL: (Hands document to jurors). 17 Q. All right. Ms. Sheehan, do you have the 18 document there that is numbered in the lower right-hand corner 19 750026? 20 A. Yes. 21 Q. And the initials OLOP on top? 22 A. Yes, sir. 23 Q. On this page is this all your handwriting? 24 A. Most of it is. There are a couple of additions, 25 it looks like. At the bottom of the page that has the 120 1 initials PW, and that is not my handwriting, but the rest of 2 the page is. 3 Q. All right. Down in the lower left-hand corner 4 under 4-7-87, it says PW added and that's not in your 5 handwriting? 6 A. Correct. 7 Q. The rest of this page is in your handwriting? 8 A. Right above -- under D and in the left hand 9 column it has add 4-7. 10 Q. All right. 11 A. That is not my handwriting. 12 Q. All right. Other than those two exceptions, is 13 this your handwriting? 14 A. Yes, it is. 15 Q. Ms. Sheehan, would you tell us briefly what this 16 document is? And I think it's actually a two-page document, 17 if I read this correctly. 18 A. This is essentially an initial care plan for a 19 patient who is admitted to the hospital. 20 Q. And do you know and understand from the complete 21 records that the patient is Joseph T. Wesbecker? 22 A. Yes, sir. 23 Q. What is an initial care plan, just very briefly? 24 A. Primarily it is a list of the problems that the 25 patient identifies when he comes into the hospital and some 121 1 goals that he agrees to work towards to problem solve, and 2 then some of the interventions that he agrees to work on to 3 attain these goals. 4 Q. Now, let me direct your attention, then, back to 5 this document and ask you if you would go to the -- it appears 6 to be divided into columns; correct? 7 A. Yes, sir. 8 Q. Let me ask you to go to the column under Nursing 9 Diagnosis, do you see that? 10 A. Yes, sir. 11 Q. And then it looks to me that the initials out to 12 the left of that are BS? 13 A. Correct. 14 Q. Is that Barbara Sheehan? 15 A. Correct. 16 Q. And that's you? 17 A. Yes, sir. 18 Q. The date is partially there and partially 19 missing. Is there any way you can figure out what date that 20 is? 21 A. It would be the 31st, and I'm assuming it's 22 March 31st, since the rest of these dates are the early part 23 of April. 24 Q. And what year? 25 A. 1987. 122 1 Q. On the first nursing diagnosis it looks like you 2 wrote in the Roman Numeral I? 3 A. Right. 4 Q. Can you read what's written there? 5 A. "Potential for self harm related to past history 6 of suicidal attempts." 7 Q. And the goal out to the right of that? 8 A. "Patient will not harm self while in hospital." 9 Q. And is that a goal that the patient agreed to? 10 A. Correct. 11 Q. Did you discuss this goal with the patient? 12 A. Right. 13 Q. And there would be one-on-one discussions 14 between yourself and Mr. Wesbecker, the patient? 15 A. Yes, sir. 16 Q. And then out to the side of that it says 17 Intervention. What is intervention? 18 A. That is the steps that's taken to -- that the 19 patient agrees to work with the staff in trying to attain 20 these goals. 21 Q. And what does that say under Intervention? 22 A. "Provide safe environment, check frequently at 23 irregular intervals, make verbal contract to notify staff of 24 increase in thoughts of self harm. 25 Q. What does that mean, make verbal contract with 123 1 staff? 2 A. That means the patient and the staff will have a 3 verbal contract. He will agree verbally with the staff to 4 notify us if he has any increased thoughts of self harm. 5 Q. Let's go down to the next lines, Number Two. 6 Can you read what you wrote in there under Nursing Diagnosis? 7 A. "Inability to cope related to, A, hyperactivity; 8 B, sleep deficiency; C, agitation with job stressors; and, D, 9 was added on on 4-7, difficulty expressing feelings." 10 Q. All right. Let's go back up now to the goals. 11 Under the inability to cope related to hyperactivity, what was 12 the goal? 13 A. "Will demonstrate decrease in hyperactivity by 14 the end of one week." 15 Q. And the intervention? 16 A. "To reduce environmental stimuli, limit 17 activities to meet the tolerance level. 18 Q. Number B, sleep deficiency. What was the goal 19 there? 20 A. "Patient will be able to sleep four to five 21 hours a night, three nights in a row, by the end of two 22 weeks." 23 Q. And the intervention? 24 A. "Provide quiet time half hour before HS, which 25 is hour of sleep. Allow to talk ten minutes before HS." 124 1 Q. Now, Number C, agitation with job stressors, 2 what was the goal there? 3 A. "Patient will state he is less agitated by the 4 end of one week." 5 Q. That's what he agreed to do? 6 A. Correct. 7 Q. And the intervention? 8 A. "Allow to express feelings ten minutes each 9 shift. Identify and discuss alternate avenues of dealing with 10 stress. Offer relaxation exercise tape p.r.n., which is as 11 needed. Encourage ventilation of feelings." 12 Q. And Number D, difficulty with expressing 13 feelings, what was the goal? 14 A. "Patient will express feelings, including anger 15 and love by 4-14." 16 Q. And then the nursing diagnosis, Number Three, 17 what does that say? 18 A. "Alteration in nutrition." 19 Q. And the goal? 20 A. "Patient will eat three balanced meals a day by 21 the end of two weeks." 22 Q. And the intervention? 23 A. "Discuss food choices and importance of balanced 24 diet to control hyperactivity. Weigh every Wednesday before 25 breakfast." 125 1 Q. Ms. Sheehan, these nursing diagnoses on Mr. 2 Wesbecker in April of 1987, are these your diagnoses? 3 A. I wrote those, yes. 4 Q. Can you tell us how they were arrived at? 5 A. Primarily by listening to the history that Mr. 6 Wesbecker would have given and his complaints and observation 7 as he was giving us his history. 8 Q. And is this your diagnosis alone? 9 A. It was when I first wrote this. 10 Q. And did it become something else later on? 11 A. As the patient is taken care of by a primary 12 nurse and a team of therapists, they meet with him 13 periodically and determine whether these diagnoses need to 14 continue or if he has attained some of the goals, they can be 15 discontinued. 16 Q. Now, let me direct your attention to the next 17 page, which is numbered 750027. Do you see that? No. I'm 18 sorry. I misspoke. The next page is No. 750038; correct? 19 A. Yes, sir. 20 Q. All right. Do you recognize any of the 21 handwriting on this document? 22 A. Yes, sir. That's mine. 23 Q. And generally what is it again? 24 A. This is the admission form that is filled out 25 for patients being admitted to Our Lady of Peace Hospital. 126 1 Q. And what is the date of this document? 2 A. March 31st, 1987. 3 Q. And I see nurse signature and that apparently is 4 you, Barbara Sheehan, RN; correct? 5 A. Yes, sir. 6 Q. Let me direct your attention down to the bottom 7 of that page to No. 11. Do you see that in the lower 8 left-hand corner? 9 A. Yes, sir. 10 Q. Would you read those questions and the materials 11 that you wrote or someone wrote, I presume it was you, in 12 response to those questions? 13 A. Yes. No. 11 is, "How do up sleep," and it gives 14 you a choice of well, fair or poor, and I checked off poor. 15 And the writing in the -- in my handwriting is he had sporadic 16 sleep pattern, had had none for the past 36 hours. 17 Q. Where did you get that information? 18 A. From the patient. 19 Q. Let me refer you to the next page, which is 20 750039. Do you see that? 21 A. Yes, sir. 22 Q. Do you recognize the handwriting on this 23 document? 24 A. Yes, sir. That's mine. 25 Q. And can you tell us briefly what this document 127 1 is? 2 A. This is a continuation of the admission 3 document. 4 Q. And where does the information on this document 5 come from? 6 A. From the patient. 7 Q. Now, let me go, if you would, please, to No. 11, 8 General, and Subquestion Number Two. Would you read that 9 question and then your notes? 10 A. It says, "How do you feel," and in parentheses 11 it's his chief complaint. And I wrote in there, "I have 12 manic-depressive illness, job pressures, blaming the company 13 for own problems." And in parentheses beside that, he was 14 complaining of blackouts, headaches and blurred vision. And 15 he worked around toluene. I'm not sure of the spelling on 16 that. 17 Q. It looks like it says X 27 years? 18 A. Times 27 years; yes, sir. 19 Q. Where did you get the information that you wrote 20 down there? 21 A. From the patient. 22 Q. And that would be Mr. Wesbecker? 23 A. Correct. 24 Q. What about Question Number Three? 25 A. "Why do you think you are here?" And I wrote in 128 1 there, "Get away from pressures and proper medication." 2 Q. Let me direct you down next to Roman Numeral 3 III, Socioeconomic. Do you see that? 4 A. Yes, sir. 5 Q. Let me direct you to Question Number Three. 6 Would you read that and the answer that you got from Mr. 7 Wesbecker? 8 A. "How do you get along with people in general?" 9 I wrote, "I'm moody. I've pushed away from my friends due to 10 excess overtime hours." 11 Q. Number Four? 12 A. "How do you feel about yourself?" And I wrote, 13 "I don't like feeling weak. I feel I've been screwed. I'm 14 angry." 15 Q. Number Five? 16 A. "How do others feel about you?" And I wrote, 17 "Sometimes they hate me. They like me when they want 18 something." 19 Q. Number Seven? 20 A. "What do you do in your leisure time?" And I 21 wrote, "I don't have any. My nerves are preventing my 22 coping." 23 Q. Would you go to the next page, which is 750040, 24 and would you go to the caption Roman Numeral IV, Thought 25 Assessment. Would you read Question Number One and the 129 1 responses from Mr. Wesbecker? 2 A. "Have you ever felt like harming or killing 3 yourself," and I checked yes. And I wrote, "Carbon monoxide, 4 alcohol, overdosed on pills in 1982. Prior to that, made 12 5 to 15 attempts to above methods and hanging." 6 Q. Going back to the questions again, you read the 7 question, I guess it's A or part of A. Would you continue 8 reading the questions and the answers? 9 A. If yes on the first part, A, have you ever 10 attempted and the answer was yes, and the question is, how, 11 and I answered carbon monoxide, and when, in 1982. 12 Q. Is it '72 or '82? 13 A. That one is '72. 14 Q. All right. Ms. Sheehan, you keep saying "I 15 answered," or you said it at least once. Are these your 16 answers? 17 A. Those are his answers but my writing. 18 Q. And is it part of your job and was it part of 19 your job to obtain this information from the patient and to 20 record it accurately? 21 Q. Yes, sir. 22 A. And did you do that on this occasion? 23 A. Yes, sir. 24 Q. Would you read Question Number Two under Thought 25 Assessment? 130 1 A. "Do you have these thoughts now?" And the 2 answer was no. 3 Q. And subpart A or B? 4 A. It says, "Do you have a plan, if so, what is 5 it?" And no. 6 Q. Let me direct your attention down to Question 7 Number Four. Would you read that? 8 A. "Have you ever felt like harming someone else?" 9 And the answer was yes. "If yes, who?" The answer was, "My 10 foreman. How? Any way. At work." 11 Q. It says, "How, any way," and then it looks like 12 it says when. 13 A. When. When. I'm sorry. And the answer was "At 14 work." 15 Q. Take a look at Number Seven. Would you read 16 those questions and the materials that you wrote down? 17 A. "Do you feel like someone or something is 18 controlling your thoughts?" The answer was no, and the A was 19 who and B is why and that was left blank. In the side he 20 answered, "Sometimes I feel like I'm two people; One, happy, 21 Two, mad." 22 Q. And the next page, which is 750041, is this 23 still part of the same question form -- admission form? 24 A. Yes, sir. 25 Q. Would you look at General Questions, Roman 131 1 Numeral V, Question Number One. Would you read the question 2 and his answer? 3 A. "Is there anything we can help you with while 4 you are here?" The answer is no. 5 Q. Question Number Two? 6 A. "How will you know you are ready to leave the 7 hospital?" And his answer, "To feel normal." 8 Q. Number Three? 9 A. "What do you plan to do when you get out of the 10 hospital?" His answer, "To go back to Brenda and return to 11 work." 12 Q. Under Roman Numeral VI, would you read the 13 question or the caption and then what you wrote in? 14 A. "Objective assessment of patient strengths," and 15 I wrote in "hard worker and a good historian." 16 Q. What does good historian mean? 17 A. That he was able to answer the questions that 18 were asked of him and give a reasonable answer. 19 Q. You're referring to the questions that we just 20 read and the answers that we just read? 21 A. Yes, sir. 22 Q. Take a look under the caption Objective 23 Assessment. Can you tell us briefly what an objective 24 assessment is, at least at this stage of the hospitalization 25 as referred to on this form? 132 1 A. Primarily it would be my observations of the 2 patient's behavior and responses. 3 Q. Would you take a look at Number Three, and would 4 you read the question and then what the answer was or your 5 objective assessment of Mr. Wesbecker was on that date? 6 A. Question Number Three is mood or affect and I 7 checked off anxious. 8 Q. Number Four? 9 A. Verbal communication, and I checked off rapid 10 and loose associations. 11 Q. Question Number Six? 12 A. Psychotic symptoms, and it has hallucinations, I 13 put no. Delusions, I checked off. 14 Q. What do you mean you checked it off? 15 A. I checked it as having been present. 16 Q. Did you get that information from Mr. Wesbecker 17 again? 18 A. From my observations of his answers and 19 responses. 20 Q. Now, let me direct you to the next page, which 21 is 750042. This is an audiogram? 22 A. Yes. 23 Q. Test. Just briefly, what does it show, Ms. 24 Sheehan? 25 A. It shows a scale here for the results of the 133 1 audiogram. It gives three levels of responses, the first one 2 is 25 decibels, which is at a normal level, and it shows his 3 level and right ear to have checked off at 25 decibels in the 4 1,000 and 2,000 frequency. Then the next level is a mild loss 5 for 40 decibels, and it showed his right and left ear to be in 6 the 500 frequency. His right ear also in the 4,000 frequency 7 at 40 decibels. 8 Q. How would you describe the -- just in general 9 broad terms the hearing situation on this audiogram, if you 10 know? 11 MS. ZETTLER: I'm going to object. She's not 12 qualified to render an opinion in this area. 13 JUDGE POTTER: Overruled. 14 Q. Would you just briefly describe his hearing 15 situation as revealed on this audiogram? 16 A. I would say in the 4,000 frequency, he had a 17 definite hearing deficiency in the left ear at worse, in the 18 right ear at a mild loss. 19 Q. Ms. Sheehan, let me refer you to the next 20 document, which is 750043. Do you see that? 21 A. Yes, sir. 22 Q. Do you recognize the handwriting on that 23 document? 24 A. Yes, sir. That's mine. 25 Q. And where -- what is this document and where 134 1 does it fit with regard to the other documents we've just been 2 talking about? 3 A. This is also a part of the admission assessment 4 form. It's a summary sheet to list the problems that were 5 identified on his admission. 6 Q. And are these your identification of problems? 7 A. Yes, sir. 8 Q. Would you read what you wrote as Needs Summary, 9 where it says under "All problems should be listed here in 10 order of priority, refer to treatment plan for a description 11 of the treatment team's intervention. Nursing intervention 12 will be further detailed on the nursing care plan." And would 13 you read what you wrote underneath that caption? 14 A. "Potential for self harm related to past history 15 of suicidal attempts. Inability to cope related to 16 hyperactivity, poor sleep, and in parentheses, none in past 36 17 hours. Agitation with job stressors. Nutrition deficit 18 exhibited by increased weight, unknown amount, and 19 noncompliant with balanced diet, in parentheses, drinks 12 to 20 16 soft drinks and equal amount of coffee with caffeine 21 daily." 22 Q. When you wrote down noncompliant with balanced 23 diet, what does that mean? 24 A. That he had not followed a balanced diet and 25 then, to explain that, I added that he drinks this excess 135 1 amount of fluids, soft drinks and caffeine and coffee a day. 2 Q. Where did you get the information that he drinks 3 12 to 16 soft drinks and equal amount of coffee with caffeine 4 daily? 5 A. From him. He said that. 6 Q. Let me refer you to the next page, which is 7 numbered 750044. 8 A. Yes, sir. 9 Q. Do you recognize the handwriting on that 10 document, Ms. Sheehan? 11 A. Yes, sir; it's mine. 12 Q. Would you read the first note? And I have a 13 little difficulty. Can you read the date and the time of that 14 first note? 15 A. It looks like 8, and I'm not sure if that's a 16 P.M. or an A.M. 17 Q. All right. 18 A. And the date is 3-31, and the code is N for 19 nurse. 20 Q. Code N means what? 21 A. It's N for nurse. 22 Q. All right. And would you read for us what you 23 wrote in on that notation on March 31, 1987? 24 A. "Admission evaluation: This 44-year-old white 25 male was admitted ambulatory to Three East accompanied by 136 1 ex-wife and admitting clerk. Neatly dressed, friendly, 2 restless appearance. Cooperative with routine body check. 3 Scars noted on lower left back and left lower nipple area from 4 removal of cysts. Says has problems with being 5 manic-depressive. On Lithobid and antidepressant medicine and 6 working with toluene for 27 years. Says it causes him to have 7 blurred vision, headaches, blackouts and nervousness to the 8 extent that he can not function at work or at home. Rapid 9 speech, flight of ideas. Wanders off subject frequently. 10 Brought in medication of Lithobid, 300 milligrams, and 11 Tofranil, 50 milligrams, which were sent home by wife. 12 Oriented to unit and rules. Hearing test completed. Goal 13 sheet explained, but chose to wait till morning to complete. 14 Doctor's orders were received by nurse in admitting and 15 brought to unit with patient. Drank juice, met with roommate, 16 friendly and retired at 10 P.M. Will observe behavior, 17 medicate as ordered and collect further data. B. Sheehan, 18 RN." 19 Q. The goal sheet that's referred to, what does 20 that relate to? 21 A. It's a sheet that's given to the patient that he 22 will fill out on his own and give back to the staff at his 23 convenience. 24 Q. Ms. Sheehan, are these notes, the documents that 25 we've just gone over that are in your handwriting, they 137 1 contain many references to answers by Mr. Wesbecker in late 2 March and early April of 1987; correct? 3 A. Yes, sir. 4 Q. Did you record his answers as accurately and as 5 completely as you could, consistent with your training as a 6 nurse? 7 A. Yes, sir. 8 Q. Are these questions that are standard form 9 questions that are used by the hospital in the treatment of 10 psychiatric patients? 11 A. Yes, sir. 12 Q. Thank you, Ms. Sheehan. 13 JUDGE POTTER: Let me see you-all up here for 14 just a second. 15 (BENCH DISCUSSION) 16 JUDGE POTTER: Do you know what kind of doctor's 17 appointment she's got? 18 MR. STOPHER: I don't know, Judge. But it seems 19 to be some matter of great urgency to her. 20 MS. ZETTLER: I could be as long as a half hour. 21 I don't know. I want to go through some of this stuff. 22 JUDGE POTTER: You have the option of going now 23 or coming back at 2:00. If you want to go now she can be late 24 for it. 25 MS. ZETTLER: Would you like to take a quick 138 1 break and ask her? 2 JUDGE POTTER: No. 3 MS. ZETTLER: It's okay with me if you give her 4 the option. 5 (BENCH DISCUSSION CONCLUDED) 6 JUDGE POTTER: Ms. Sheehan, Mr. Stopher 7 mentioned that you had a doctor's appointment. Your 8 testimony, cross-examination may take a half an hour or 9 longer. Would you prefer to do the half hour longer now or 10 would you like to take a break and be back at 2:00? I don't 11 know the nature of your appointment and don't intend to pry. 12 MS. SHEEHAN: Probably would be better off doing 13 it now, if that's all right. No. That's fine. Is there -- 14 JUDGE POTTER: Would you want my sheriff to call 15 anybody and tell them you're running late? 16 MS. ZETTLER: I'm going to try to -- 17 JUDGE POTTER: I don't want you to rush. Is 18 your appointment downtown? 19 MS. SHEEHAN: It's out on Poplar Level Road. It 20 won't take that long. 21 JUDGE POTTER: Why don't you write your doctor's 22 name down there and I'll have my sheriff call and tell them 23 you're probably running a little late. 24 Okay. Ms. Zettler. 25 139 1 EXAMINATION ___________ 2 3 BY_MS._ZETTLER: __ ___ ________ 4 Q. Thank you, Your Honor. Ms. Sheehan, I will try 5 to make it short so we can all get to lunch and to your 6 appointment and everything else. It's my understanding from 7 reading your deposition and looking over your notes in Mr. 8 Wesbecker's chart from Our Lady of Peace, that he was 9 cooperative with you when you took this nursing assessment; 10 isn't that true? 11 A. Yes. Yes, ma'am. 12 Q. And I believe that you marked down that he was 13 friendly in dealing with you? 14 A. Yes, ma'am. 15 Q. And he was cooperative with the personal 16 interview that you gave him, also? 17 A. Yes, ma'am. 18 Q. Did he ever make any threats towards you while 19 you dealt with him in the hospital there? 20 A. This is the only connection I had with him and 21 there was no threats made during admission. 22 Q. Do you recall whether or not any of the other 23 health care providers or mental health care providers that 24 dealt with Mr. Wesbecker at Our Lady of Peace ever told you 25 that he made threats towards them? 140 1 A. I don't remember. 2 Q. Do you have any recollection or are there 3 anything in your notes that would show that Mr. Wesbecker made 4 a threat towards another patient on the ward? 5 Q. Not on these notes; no, ma'am. 6 Q. In fact, when you filled out this assessment 7 sheet with Mr. Wesbecker and you marked down in response I 8 guess to his answers on Question Four under Thought 9 Assessment, about whether or not he wanted to harm anybody -- 10 A. Uh-huh. 11 Q. -- you didn't check that you felt it needed 12 follow-up, did you? 13 A. What page are you on? 14 Q. On Page 750040. 15 A. And what question are you on? I'm sorry. 16 Q. I'm sorry. Number Four. "Have you ever felt 17 like harming someone else?" 18 A. And I checked yes. 19 Q. Okay. But you didn't check that you felt it 20 needed some sort of follow-up; correct? 21 A. Correct. 22 Q. In fact, in your plan, on Page 750043, you don't 23 list homicidal potential as a problem; correct? 24 A. Correct. Because his direction was towards his 25 foreman at work. 141 1 Q. And you felt that because he was in the hospital 2 that wasn't a problem? 3 A. Correct. 4 Q. He was there voluntarily, wasn't he? 5 A. As far as I know he was. 6 Q. He could have left any time he wanted to, 7 couldn't he have? 8 A. Right. 9 Q. I'm not sure I understood your testimony a 10 little earlier on the first page of Exhibit 468A. Was it your 11 testimony that your findings were discussed with Mr. Wesbecker 12 and he agreed with them? 13 A. I'm sorry. I don't know which page you're on. 14 Q. The very first page. 15 A. Okay. And what's the question? 16 Q. That the findings were discussed with Mr. 17 Wesbecker at the time? 18 A. Yes, ma'am. 19 Q. And he agreed with them? 20 A. Yes, ma'am. 21 Q. And agreed with the goals that you set out for 22 him? 23 A. Correct. 24 Q. And he agreed to cooperate with the intervention 25 that you proposed? 142 1 A. Correct. 2 Q. Do you recall ever having any problems with Mr. 3 Wesbecker or anybody say that you worked with there having any 4 problems with Mr. Wesbecker in cooperating with goals that you 5 set out for him? 6 A. I didn't have any other dealings with him, and I 7 don't remember if anyone else had any problems or not. I'm 8 sorry, but that's just too long ago. 9 Q. You really don't have any independent 10 recollection of Mr. Wesbecker, do you? 11 A. No, I don't. 12 Q. If you could turn to Page 750039. Under No. 5, 13 Mr. Wesbecker indicated to you that he was living with his 14 ex-wife, his second ex-wife; correct? 15 A. Correct. 16 Q. He also indicated to you in No. 6, under 17 Socioeconomic when you asked him what his strengths were that 18 he liked to look for bargains and study antiques; correct? 19 A. Correct. 20 Q. On the following page, 750040, you made some 21 objective findings regarding suicidality, did you not? 22 A. Yes, I did. 23 Q. And those are listed in No. 3 under Thought 24 Assessment? 25 A. Correct. 143 1 Q. And at that time you found that he had not 2 expressed any feelings of guilt or despair; correct? 3 A. On admission; correct. 4 Q. And that has there been a recent or impending 5 loss, you put no; correct? 6 A. Correct. 7 Q. And he made no indirect statements about death? 8 A. Correct. 9 Q. Absence or finality; correct? 10 A. Correct. 11 Q. And he did not refuse food? 12 A. No. 13 Q. And he did not talk about giving away any 14 possessions or any self abuse; correct? 15 A. No. That was just on admission he didn't. 16 Q. But these were observations that you made? 17 A. Correct. 18 Q. Under No. 5, you asked him if he had ever heard 19 any voices, and he said no; correct? 20 A. Correct. 21 Q. And you asked him if he ever saw things that 22 others don't see, and he said no; correct? 23 A. Correct. 24 Q. On the next page under General Questions, Mr. 25 Wesbecker didn't tell you to restrict anybody from visiting 144 1 him, did he? 2 A. That's correct. 3 Q. He didn't say, "Don't let my son Kevin come to 4 visit me;" correct? 5 A. No, he did not. 6 Q. He didn't say, "Don't let my mother come visit 7 me," did he? 8 A. He did not. 9 Q. He didn't say, "Don't let any of my friends from 10 work come visit me;" correct? 11 A. He didn't restrict any visitors. 12 Q. In fact, did you ask him? 13 A. We have to ask them. 14 Q. And he said no? 15 A. And he said no. 16 Q. And under the Objective Assessment -- and that's 17 your observations; correct? 18 A. Correct. 19 Q. You found that he was alert? 20 A. Yes. 21 Q. That he was oriented to time, place and person; 22 correct? 23 A. Correct. 24 Q. That meant he knew where he was, he knew the 25 date and the time; correct? 145 1 A. Correct. 2 Q. And he knew at least what your function was? 3 A. Correct. 4 Q. It doesn't necessarily mean that he recognized 5 you personally; correct? 6 A. No. 7 Q. Under Socialization, you said that he was 8 friendly; correct? 9 A. Correct. 10 Q. And that his general appearance was neat and 11 clean? 12 A. That's right. 13 Q. And on your admission note you talk about Mr. 14 Wesbecker meeting his roommate and interacting friendly with 15 him; correct? 16 A. Correct. 17 Q. That's all I have. Thank you. 18 JUDGE POTTER: Thank you very much, ma'am. You 19 may step down; you're excused. 20 Ladies and gentlemen of the jury, we're going to 21 take the lunch recess at this time. As I mentioned to you-all 22 before, don't communicate with each other about the case and 23 do not form or express opinions about it. We'll stand in 24 recess until 2:00. 25 (LUNCH RECESS) 146 1 SHERIFF CECIL: The jury is now entering. All 2 jurors are present. Court is back in session. 3 JUDGE POTTER: Please be seated. 4 Mr. Stopher, do you want to call your next 5 witness. 6 MR. STOPHER: Dee Ewen. 7 JUDGE POTTER: Would you step up here and raise 8 your right hand, please, ma'am. 9 10 DEE EWEN, after first being duly sworn, was 11 examined and testified as follows: 12 13 JUDGE POTTER: Okay. Would you walk around and 14 have a seat in the witness box over here. Would you keep your 15 voice up, say your name loud and clearly and then spell it for 16 me, please. 17 MS. EWEN: My name is Dee Ewen. D-E-E, capital 18 E-W-E-N. 19 JUDGE POTTER: And answer Mr. Stopher's 20 questions. 21 22 EXAMINATION ___________ 23 24 BY_MR._STOPHER: __ ___ _______ 25 Q. Ms. Ewen, if you'll get as close as you can to 147 1 these two microphones, particularly when you're reading, it's 2 difficult to put your voice into those two microphones. And 3 if you don't, we're going to have to ask you to repeat stuff, 4 so if you'll try to talk up and speak in that direction. 5 By whom are you employed? 6 A. I'm employed by Our Lady of Peace Hospital. 7 Q. And, Ms. Ewen, what is your present title at Our 8 Lady of Peace Hospital? 9 A. I'm the medical record manager. 10 Q. And as the medical records manager, what does 11 that generally consist of? 12 A. I'm the custodian of the hospital's medical 13 records. 14 Q. And about how long have you been the custodian 15 of the medical records at Our Lady of Peace? 16 A. For a little over five years. 17 Q. Ms. Ewen, pursuant to our request, have you 18 obtained copies of the medical records of Joseph T. Wesbecker 19 at Our Lady of Peace Hospital? 20 A. Yes, I have. 21 MR. STOPHER: All right. Your Honor, we have a 22 certified copy of these records that we would like to file as 23 an exhibit, which has been marked as Defendant's Exhibit 468. 24 MS. ZETTLER: No objection, Judge. 25 JUDGE POTTER: Okay. Be admitted. You want to 148 1 hand them to Ms. McBride, Mr. Stopher. 2 COURT REPORTER: (Hands document to jurors). 3 Q. Ms. Ewen, according to the top page of this set 4 of documents it consists of 97 pages. Do you see that? 5 A. Yes. 6 Q. The good news is I'm not going to have you read 7 all of it; the bad news is I'm going to have to ask you to 8 read some of it. I've numbered the pages down in the lower 9 right-hand corner, OLOP, and then there's a six-digit number 10 that follows underneath that. Do you see that? 11 A. Yes. 12 Q. Let me direct your attention -- the oldest 13 records in point of time are near the back, and there is a 14 set -- separate set at the back that begins with the number 15 750073. Do you see that, Ms. Ewen? 16 A. Yes. 17 Q. Let me ask you, if you would, to turn to that 18 particular page, which is 750073, and ask you, if you would, 19 first of all, to read the date of admission up in the top 20 right-hand corner. 21 A. The admission date was April 16th of 1984. 22 Q. And under that, where it says D-I-S-C? 23 A. The discharge date. 24 Q. Discharge date. And what was that? 25 A. April 23rd of 1984. 149 1 Q. And then underneath that I see what looks like 2 L-O-S? 3 A. Uh-huh. 4 Q. And what's written up beside that? 5 A. Seven AMA. 6 Q. And do you know what that means? 7 A. It means that the patient stayed for seven days 8 and left against medical advice. 9 Q. The patient's name is who? 10 A. Joseph T. Wesbecker. 11 Q. And the admitting physician? Over to the left. 12 A. Vicdan Senler. 13 Q. Ms. Ewen, down on that page about in the middle 14 where it says Final Diagnosis, would you read that for us, 15 please. 16 A. Major depressive illness, depressed type, 17 recurrent. 18 Q. Recurrent? 19 A. Uh-huh. 20 Q. All right. Would you go to the next page, which 21 is 750074, and would you begin reading where it states 22 Identification. 23 A. "This was a 41-year-old, white, married male 24 admitted voluntarily to this hospital April 16th, 1984. 25 According to his wife, he tried to commit suicide two days 150 1 prior to this hospitalization, taking all of his Norpramin 2 tablets, 25 of them. The following day he was somewhat 3 confused, continued to do the suicidal intention and he tried 4 carbon monoxide, clogging up his car exhaust pipe. He also, 5 with the Norpramin, he had a handful of over-the-counter drugs 6 which he took. Patient cleared himself, but when he told his 7 wife what had been done they brought him here immediately. 8 "Patient said that he 'had enough.' He has been 9 under pressure with his wife and her children and her 10 ex-husband's problems. They have been married for two and a 11 half years. She has two children from previous marriage. He 12 felt that he couldn't cope anymore with the demands. They 13 have no respect for him and he does not feel he is in charge 14 of his own home. He also felt unable to cope with his job. 15 There was a threat of losing his job. 16 "Patient was rather withdrawn, depressed, very 17 angry at himself and had lots of projection toward the 18 ex-husband of the present wife and others. He did not have 19 any delusions or hallucinations; however, he expressed the 20 feeling of being depressed for several years off and on. Had 21 one episode just before he divorced his wife after 18 years of 22 marriage but did not stay in the hospital long enough to get 23 treatment. He has been receiving some medication by his 24 psychiatrist for a long time for his depression. 25 "Patient had EEG and psychologicals done and we 151 1 started chemotherapy, Etrafon (2-10), couple times a day. He 2 became much calmer, a little more collected, and after a 3 couple of days of feeling better and sleeping right, he 4 indicated that he didn't want to stay here. He was going to 5 lose his job, he wanted to leave the hospital, and he left 6 AMA. 7 "Diagnoses: One, major affective illness, 8 depressed, recurrent type." 9 Q. And that's signed by who? 10 A. Doctor Senler. 11 Q. On Pages 750076 and -77, there's a two-page 12 report by Doctor Leventhal which was read yesterday so I'll 13 not ask you to read it again, but it is part of this record 14 dated April 28th, 1984; correct? 15 A. Yes. Uh-huh. 16 Q. All right. Let me direct your attention, 17 Ms. Ewen, to a document numbered 750086. Do you have that 18 page? 19 A. Yes. 20 Q. And up at the top how is that captioned? What's 21 the heading up there? 22 A. Number Two, Patient Strengths and Assets. 23 Q. On -- underneath that, there are various blocks 24 and columns, correct, on Page 750086; right? 25 A. Yes. 152 1 Q. And would you read the one in the upper left, 2 the date, and then I think it says Physician's Treatment Plan, 3 and then there are some notes under that. Could you read that 4 to the jury, please? 5 A. Uh-huh. "Suicidal attempt by overdosing with 6 Norpramin times 20 and sleeping pills times question mark. 7 Feels unable to cope with family and job." 8 Q. And can you read the date up there in the top 9 left corner beside that note? 10 A. I'm not sure. 11 Q. All right. Underneath that note there's a box 12 captioned Nursing Care Plan. Do you see that? 13 A. Yes. 14 Q. Can you read that note for us? 15 A. "Ineffective coping exhibited by suicide attempt 16 and homicidal thoughts." 17 Q. And the date of that, please? 18 A. 4-16. 19 Q. And that would be 4-16-1984? 20 A. Yes. 21 Q. Let me direct your attention over to Page 22 750088. Do you have that page? 23 A. I think so. 24 Q. All right. It's a page that appears with 25 handwriting and dates along the left-hand side? 153 1 A. Uh-huh. 2 Q. Are we on the right page? And it's numbered 3 down in the bottom right-hand corner 750088; right? 4 A. Well, mine's cut off. 5 Q. Yours is cut off? 6 A. Uh-huh. 7 Q. Let me see if you've got the same page that I 8 do. Yes. It starts with the word up in the top left-hand 9 corner, "very agitated." 10 A. Uh-huh. 11 Q. All right. Would you read that note that begins 12 there on the top of that page? 13 A. "Very agitated and tense. Conversation 14 circumstantial. Ventilates much anger toward wife's 15 ex-husband, whom he blames for, quote, all of my problems, 16 unquote. Quote, this marriage will destroy me if I stay in 17 it... I love my wife, but I can't take any more, unquote. 18 Worries about losing job. Says, quote, can't compete 19 financially, unquote, with wife's family. Admits to suicide 20 attempt times two on 4-12, but denies thoughts now. Quote, I 21 just want out, unquote. Also admits to homicidal thoughts 22 toward wife's ex-husband. Quote, thought of blowing his 23 brains out but he always has a witness with him, unquote. 24 Doctor Senler notified of admission orders received at 25 5:15 P.M." 154 1 Q. All right. On that same page, under the date of 2 April 18, 1984, do you see that date stamped on that page? 3 A. Yes. 4 Q. Down near the bottom of that note -- let's see. 5 It's one, two, three lines up from the date of April 19th. 6 Can you see that? 7 A. Uh-huh. 8 Q. And it appears to me that it starts with the 9 word "has." And the first letter of "has" is a capital H. Do 10 you see that? 11 A. Yes. 12 Q. Ms. Ewen, would you read that line? 13 A. "Has not been able to state one alternative to 14 suicide at this time." Do I continue? 15 Q. Certainly. 16 A. "Not voicing any homicidal thoughts. Was 17 checked at frequent and irregular intervals." 18 Q. And then it's signed by a nurse? 19 A. Uh-huh. 20 Q. All right. If you would, please, then, go to 21 the next page, 750089. And let me direct you to the line that 22 has the date April 20, 1984, 11 to 12:45. Do you see that? 23 A. Yes. 24 Q. Would you read that notation? 25 A. "In and out of bed. Complains of feeling 155 1 restless and unable to sleep. Ativan, 2 milligrams, given at 2 12 -- I'm not sure what time after 12 that is -- for 3 restlessness." 4 Q. All right. Let me ask you to move down that 5 same note on April 20, 1984. Go down one, two, three, four, 6 five lines to the line that begins in the far left-hand edge 7 with "has," again with a capital H. Do you see that? 8 A. Yes. 9 Q. Would you read that? 10 A. Has paced up and down hallway at intervals. Has 11 not made any mention about wanting to leave hospital. 12 Interacts with few select other patients on unit. Has not 13 discussed reasons for admission. Has not verbalized any 14 alternative to suicide at this time. 15 Q. All right. Look down at the entry on April 22, 16 1984, and would you read the first phrase of that first line 17 there where it begins with 11-7. Do you see that? 18 A. Yes. 19 Q. Would you read that phrase? 20 A. "Ativan, 2 milligrams, p.o. at 11:30 for 21 restlessness." 22 Q. Let me direct you again to the entry of 23 April 23, 1984, and it would be the one, two, three -- third 24 line down under that date, and it begins with the word 25 "exerted" with a capital E. Do you see that? 156 1 A. Yes. 2 Q. Would you read that line, please? 3 A. "Exerted his rights and signed AMA papers and 4 left." 5 Q. Would you take a look, Ms. Ewen, at the last 6 page, it's 750097, and it has a caption up at the top where it 7 says Our Lady of Peace Hospital, Louisville, Kentucky, AMA 8 release. Would you read this document for us, please? 9 A. "Our Lady of Peace Hospital, Case No. 1265373, 10 date 4-23-84. This will certify that Joseph Wesbecker, a 11 patient in this hospital, is leaving against the advice of 12 Doctor Senler, the attending physician. Now, therefore, 13 having full knowledge and realizing the danger that may result 14 by reason of removal of said patient, I hereby promise and 15 agree to hold Our Lady of Peace Hospital, all of its officers 16 and employees and the attending physician free from liability 17 for any injury that may result directly or indirectly by 18 reason of said removal." Signature, Joseph J. Wesbecker, 19 Witness, A. Parsons, R.N. 20 Q. All right. Now, let me refer you back to the 21 first section of this exhibit, which is a group of pages that 22 are numbered 750001. That's the first page in that group. Do 23 you have that group, Ms. Ewen? 24 A. Yes. 25 Q. And, again, let's begin with that first page and 157 1 would you read up in the -- first of all, the patient's name 2 again? 3 A. Joseph T. Wesbecker. 4 Q. And the physician? 5 A. Well, it's Doctor Schramm. 6 Q. All right. And the date of admission, which I 7 think is over in the right corner? 8 A. March 31st of 1987. 9 Q. And the date of discharge? 10 A. April 24th of 1987. 11 Q. And then LOS? 12 A. Twenty-four. 13 Q. And what does that mean? 14 A. It means he stayed 24 days. 15 Q. All right. Again, in the column that's 16 captioned Final Diagnosis on that date, would you read the 17 handwritten portions? 18 A. Axis I, dysthymic disorder; Axis II, paranoid 19 personality. 20 Q. And then where it says Consultants? 21 A. Doctor Buccholz, 4-2-87. 22 Q. Let's go to the next page, which is numbered 23 -02, and is apparently dictated on May 31, 1987, by 24 Theodore A. Schramm; correct? 25 A. Yes. 158 1 Q. Would you read the body of this document, 2 please, Ms. Ewen? 3 A. "Mr. Wesbecker is a 44-year-old married man 4 admitted to Our Lady of Peace Hospital on 3-31-87, for a 5 24-day stay, which was terminated on 4-24-87, with the 6 diagnoses of, one, dysthymic disorder, two, paranoid 7 personality. In hospital he was seen for psychiatric 8 evaluation by Doctor Buccholz. 9 "He had an uneventful hospital course, being 10 enrolled in various facets of patient education, including art 11 therapy, assertiveness training and stress management. He 12 attended guided group with direction and was continued in 13 group psychotherapy in the office upon discharge. 14 "He was treated in the hospital with a 15 combination of lithium and Tofranil and at the time of 16 dismissal was sent home with prescriptions of lithium, 600 17 milligrams b.i.d.; Tofranil, 50 milligrams, 4 h.s. and was to 18 have lithium level on Wednesdays for the first six weeks and 19 then four weeks thereafter for the next six months. 20 "At the time of discharge the note read that he 21 was to leave after that day's guided group interaction. He 22 had begun group psychotherapy in the office on Wednesday from 23 four to five P.M. and is much calmer, less prone to be 24 precipitous reflex, like in his reaction to noxious stimuli. 25 It was felt at the time that the patient needs at least one 159 1 week closed hospitalization convalescence to cement personal 2 relationships before reentering the workplace. 3 "Final diagnoses: One, dysthymic disorder; two, 4 paranoid personality. 5 "Condition on discharge: Improved." 6 Q. And that's signed by Theodore A. Schramm, M.D.? 7 A. Yes. 8 Q. Let me direct your attention to the next two 9 pages, which are -03 and -04, and I'd like for you to read, if 10 you would, the first page and down to the caption Physical 11 Examination on the second page. 12 A. Okay. "Mr. Joseph Wesbecker is a 44-year-old, 13 twice-married, twice-divorced, employee of Standard Gravure 14 organization who was previously under the care of Doctor 15 Hayes, Highland Baptist Hospital, several years ago. He was 16 treated here by Doctor Senler and is now a patient by Doctor 17 David Moore. He allegedly was a manic depressive on Tofranil 18 and lithium. He was concerned that he might be overmedicated 19 but mental status revealed a pressure of speech, flat affect 20 with a great deal of anger and possible a paranoid outlook. 21 He needed admission for evaluation of toxicity to medications 22 and his low tolerance to noise in the workplace. 23 "Initial impression: To rule out 24 manic-depressive disease as well as the existence of a 25 paranoid state. Lithium levels were to be investigated, and 160 1 he was to get neuropsychologicals in psychotherapy. While we 2 talked about him being married and divorced, he now actually 3 lives with his ex-wife from whom he was divorced three years 4 ago and after which they lived apart for nine months before 5 joining forces again. 6 "His previous admissions here and at Baptist are 7 noted, as well as his history of depression and suicidal 8 attempts with carbon monoxide poisoning, medications and 9 hanging. Although he has never significantly hurt himself, at 10 one time his most serious attempt was when he took 40 sleeping 11 pills, 60 antidepressants while at home. He slept for three 12 days but was not hospitalized medically. He was admitted once 13 to Our Lady of Peace. Lately he felt that his medications 14 were sedating him and causing side effects which were 15 dangerous for him on his job. 16 "He complained of toluene exposure at work and 17 said he had been working with toluene for 17 years without a 18 respirator and attributed many symptoms to this. He has also 19 complained of headache of a tension variety. He feels that 20 demands are made unreasonably of him at work and he finds that 21 the level of effort that they expect of him is too stressful. 22 He does not think that the promotion to head pressman is worth 23 the price that he would receive. 24 "The neuropsychologicals themselves revealed no 25 deficits. And personality evaluation indicated he had a great 161 1 number of psychological dysfunctions at the present time. He 2 scored in the low average range in his intellectual 3 functioning, and there is no indication that he has functioned 4 at a substantially higher level in the past. He has limited 5 intellectual functioning, which contributed to his 6 concreteness. Personality evaluation shows an exaggerated 7 profile with prominent depression, anxiety and feelings of 8 alienation and isolation." 9 Q. All right. And it's signed by who again? 10 A. Doctor Schramm. 11 Q. The next several pages are a report by Doctor 12 Dennis A. Buccholz; correct? 13 A. Dennis J. 14 Q. Dennis J. I apologize. And I'm going to bypass 15 those at the moment. All right? 16 A. Okay. 17 Q. Let me direct your attention next to the page 18 numbered 750011, do you see that page? 19 A. Yes. 20 Q. Okay. Do you see the right-hand side of that 21 page with the date of 3-31-87? 22 A. Yes. 23 Q. And handwritten notes to the side of that? 24 A. Yes. 25 Q. All right. Can you take a shot at reading those 162 1 for us down as far as where there's a break down there? 2 A. I'll try. 3 Q. All right. 4 A. Forty-four-year-old, two times divorced, 5 employee of Standard Gravure. 6 Q. Previously? 7 A. It could be. 8 Q. All right. Go on down to the next line. 9 A. Care of R. Hayes, HBH. 10 Q. Years ago? 11 MS. ZETTLER: Your Honor, can we be heard? 12 JUDGE POTTER: Mr. Stopher, if she can read it; 13 if she can't, she can't. 14 MR. STOPHER: All right. Can you go to the next 15 line there, it looks like it starts with ago? 16 A. Ago. V. Senler here and something by D. P. 17 Moore. Allegedly is M.D. on Tofranil, I think, and lithium. 18 Is concerned he may be overmedicated but MS reveals pressured 19 speech, flat affect (angry), and possibly paranoid ideation. 20 Needs admission for evaluation of clinical status. Possible 21 toxicity to toluene and low tolerance for noise in the work 22 place. 23 Q. All right. Let me direct your attention over to 24 a document that's 750026, and -27. And I believe we've had 25 these two pages read this morning so I will bypass those and 163 1 go to the next one, which is -028. Can you see that? 2 A. Yes. 3 Q. It's the one that goes sideways. Okay? 4 A. Uh-huh. 5 Q. Up in the top left-hand corner it says Patient's 6 Reason for Admission. Do you see that printed? 7 A. Yes. 8 Q. Could you read the entry under that? 9 A. "Saw doctor in office. Upset over problems at 10 work with suicidal/homicidal thoughts." 11 Q. Let me move to a page that is numbered 750036. 12 Do you see that page? It has up at the top Our Lady of Peace 13 Hospital Social Services Master Treatment Plan Assessment. Do 14 you see that? 15 A. Yes. 16 Q. And the patient's name is Joseph Wesbecker? 17 A. Yes. 18 Q. And the date, please? 19 A. 4-2-87. 20 Q. And then under the date is written in, Brenda 21 Wesbecker, second wife? 22 A. Yes. 23 Q. And then would you read what's written under 24 that? 25 A. Right under that, that one entry? 164 1 Q. Yes, ma'am. 2 A. "Second and present mate. Personal interview." 3 Q. All right. Would you read the first one, two, 4 three, four, five, six, seven lines of that handwritten note 5 there? 6 Q. "'Joe' is a 44-year-old Caucasian employed at 7 Standard Gravure. Although divorced, he and second wife 8 continue to live together in a committed relationship. He is 9 a practicing Catholic. 10 "Chief complaint: Patient was having tremors, 11 blurred vision, severe sleep problems. Complained of, quote, 12 mind racing all the time, unquote. Eyes blinking, pacing. 13 Patient was confused, forgetful, even forgot his own address. 14 Ate cookies, ice cream compulsively (gallon at time), 15 constantly drinking Pepsi. Was treated as OP, changed doctors 16 and told spouse he was checking in OLOP." 17 Q. Would you read the next line, please? 18 A. Family of O, which I think stands for origin, 19 mother living. Patient hasn't spoken to her for two years. I 20 think that word is maybe resents her nonmothering. 21 Q. All right. Let me ask you to go down one, two, 22 three, four, five, six, seven, eight lines to the line that 23 begins with the word on the left-hand column, Married. Can 24 you see that line? 25 A. Yes. 165 1 Q. And let me ask you to move over from there to 2 after the period where it says two sons. Do you see that 3 reference? 4 A. Yes. 5 Q. Would you begin reading there for a couple of 6 lines, please? 7 A. "Two sons were born of this union: Kevin, age 8 25, to whom patient has not spoken for four years; and Jimmy, 9 about 19, whom patient is close to. Patient married Brenda in 10 1981 and many problems ensued because of blended families, 11 which didn't blend. 12 Q. All right. Let me direct your attention down to 13 the line that begins one, two, three, four lines up from the 14 bottom. It begins with patient or P-T. 15 A. "Patient gets along okay with 11-year-old boy 16 who visits on weekends and his son, J-A-S, who is in college 17 and visits in home off and on. Patient worries a lot about 18 this son who has been at OLOP, LaGrange and Boys Haven in 19 therapy for exhibitionism." 20 Q. All right. Let's go to the next page. 21 MS. ZETTLER: Do you think she could read the 22 rest of that line, Judge, after exhibitionism? 23 MR. STOPHER: You want her to read the rest of 24 that line? 25 MS. ZETTLER: After the word "exhibitionism." 166 1 A. "He is said to be doing okay now." 2 MR. STOPHER: Do you want anything else read? 3 MS. ZETTLER: No. That's fine. 4 Q. Could you go to the next page, Ms. Ewen, 37, and 5 let me direct your attention to the -- you see where it says 6 Environment/Home, over there to the left, Environment/Home, 7 and there's a -- it's printed in there? 8 A. Oh, yes. 9 Q. Okay. Go down one, two, three, four, five lines 10 from that where it starts patient, P-T, do you see that? 11 A. Yes. 12 Q. Would you read that, please? 13 A. "Patient has a lot of stress from job. Blames 14 toluene chemical in glue at work affects him. He is a 15 workaholic, works 16 and more hours a day often. He worries 16 about health, convinced he will never be totally well. 17 Uncertainty at work because of new owners. Patient has been 18 on large number of meds in the past. Spouse claims doesn't 19 abuse. Drinks beer but not when taking meds. Current 20 Tofranil and lithium. Communication a problem: Patient 21 becomes very withdrawn -- something -- talk, period. Resents 22 past, hangs on to resentments. Wants, quote, done, unquote 23 with someone. No recourse. Patient -- something -- it, 24 quote, total indifference, unquote. 25 Q. All right. Now, the pages numbered -38, -39, 167 1 -40, -41, -42 and -43 were read to us this morning by Ms. 2 Sheehan, so let me direct your attention to, as well as the 3 portion of -44. Let me move, please, to Page 750045. Do you 4 have that one, Ms. Ewen? 5 A. Yes. 6 Q. Are your eyes holding up here? 7 A. Yes. 8 Q. All right. Let me direct your attention down to 9 the entry that is on the date of 4-1-84, the time over in the 10 left-hand margin looks to me like it says 10 something A, and 11 it looks like to me it says 4/2, so it's April 2, ten 12 something in the morning. And that entry begins with 13 "expresses." Do you see that? 14 A. Yes. 15 Q. Would you go down from that four lines, where 16 the first word is follow, period. And then it begins with the 17 word "stated." Do you see that entry? 18 A. Yes. 19 Q. Could you read that for us, please? 20 A. "Stated one selected person at work causes 21 problems and he doesn't feel inclined to write the person up 22 because, quote, he may be -- something -- to supervise and 23 make it hard on me, unquote. 24 Q. All right. Let's go to the next page, which is 25 46. And the entry on 12N looks like 4/3. Do you see that 168 1 one? 2 A. Yes. 3 Q. All right. Do you see where it says "job 4 pressures"? 5 A. Yes. 6 Q. Can you begin and read about seven or eight 7 lines of that entry, if you would? 8 A. Okay. "Patient in lengthy discussion discussed 9 his ideas on many subjects. Patient is not comfortable in 10 beginning discussion with nurse but is able to discuss problem 11 areas after general discussion. Fairly opinionated in these 12 areas. Discussed job pressures as magnified by alcoholics who 13 don't admit to problem, but there are some ways he can 'get 14 back' at them, such as speeding up the line." 15 Q. All right. Let's go to the next page, which is 16 number -47. Time 4:30, it looks like P, 4/4. Do you see that 17 entry? 18 A. Yes. 19 Q. Could you read about the first five lines of 20 that entry? 21 A. "Talked at length in regard to job pressures and 22 stresses of the job and its difficulty. Also angry in regard 23 to one of the people at work that he feels deals in harsh 24 manner with him. Says he can 'handle' him by dealing in same 25 manner." 169 1 MS. ZETTLER: Your Honor, I'd ask if he's going 2 to have her read the entry that she read the entire entry and 3 not just portions of it. 4 JUDGE POTTER: If there's something that you 5 think needs to be read to make sense of a particular thing 6 that he's reading, Ms. Zettler, let him know. But I'm not 7 going to make him read the whole entry. It takes long enough 8 to read what's relevant. You can come back and have her read 9 what parts you want. 10 Q. Ms. Ewen, take a look at Page 49 and the entry 11 down at the bottom where it says 3-11 on April 8. Do you see 12 that one? 13 A. Yes. 14 Q. Do you see the word that says hyperactivity? 15 A. Yes. 16 Q. Can you go down two lines below that to the word 17 "agitation." Do you see that? 18 A. Yes. 19 Q. Would you read those three lines that begin with 20 the word "agitation"? 21 A. "Agitation with job stressors, dash, speech 22 pressured, rapid, dash, face reddened when discussing job 23 stressors." 24 Q. All right. Page 50. And if you would on that 25 page up at the very top, the second line, if you'd read where 170 1 it starts with the word "states." 2 A. "States he became so agitated with co-worker or 3 co-workers at times he would speed up equipment to get back at 4 them, 'which made me feel good.'" 5 Q. All right. Page 51, the last line. It begins 6 with the word agitation. Would you read the line on that page 7 and the line at the top of the next page? 8 A. "Agitation with job. Expresses much anger, 9 agitation with job." 10 Q. All right. Ms. Ewen, those are all the 11 questions I have. I hope you can focus off at a distance in 12 the future. Thank you. 13 JUDGE POTTER: Ms. Zettler. 14 MS. ZETTLER: Just a couple, Judge. 15 16 EXAMINATION ___________ 17 18 BY_MS._ZETTLER: __ ___ _______ 19 Q. Hi. Just a couple. If we could go back to the 20 first admission that we looked at starting with 750073. Okay? 21 If you look at the second page of that exhibit, the discharge 22 summary by Doctor Senler, it states that Mr. Wesbecker was 23 admitted voluntarily on that occasion; correct? At the first 24 line of the text. 25 A. Yes. 171 1 Q. And at the bottom above Diagnoses it says he was 2 going to lose his job, he wanted to leave the hospital and he 3 left AMA; correct? 4 A. Yes. 5 Q. If you'd look at Page 750080 on the right-hand 6 side of the page. These are doctors' notes, correct, the 7 doctors' progress notes? 8 A. Yes. 9 Q. Okay. The first note under April 18th, 1984, do 10 you see that? 11 A. Yes. 12 Q. At the bottom of that note it says, "Denies 13 homicidal thoughts;" correct? 14 A. Yes. 15 Q. And at the bottom of the page under April 20th, 16 1984, it says -- the last two lines, "Not suicidal nor 17 homicidal;" correct? 18 A. Yes. 19 Q. And that's signed by V. Senler; correct? 20 A. Yes. 21 Q. That's Doctor Senler, is it not? 22 A. Yes. 23 Q. That's three days before Mr. Wesbecker was 24 discharged AMA; correct? 25 A. Yes. 172 1 Q. If you go to page -- and I'm sorry my copy is 2 cut off, but I think it's Page 750088. Under the note for 3 April 18th, 1984, second-to-the-last line, the nurse puts 4 there, "Not voicing any homicidal thoughts," correct? 5 A. Yes. 6 Q. In terms of the next page, you were asked to 7 read under the April 20th, 1984 note about Ativan, 8 2 milligrams, and encouraged to return to bed. Do you see 9 that? What you weren't asked to read is that it says at the 10 12:45-to-7 shift Mr. Wesbecker was sleeping quietly when 11 checked during rounds; correct? 12 A. Yes. 13 Q. Okay. If we could go back to the second 14 admission, if you could go to Page 750028. 15 A. Okay. 16 Q. That's the initial treatment plan that Mr. 17 Stopher had you read from; correct? 18 A. Right. 19 Q. If you go to the last page of -- oh, I'm sorry. 20 It's the second-to-the-last page, it's 750031. 21 A. Yes. 22 Q. It says at the bottom there under Discharge 23 Criteria, "No longer suicidal or homicidal;" correct? 24 A. Yes. 25 Q. "Stabilized on medication;" correct? 173 1 A. Yes. 2 Q. "Voiced feeling better, able to cope with his 3 life situation;" correct? 4 A. Yes. 5 Q. And voiced feeling better physically and 6 psychologically; correct? 7 A. Yes. 8 Q. And Mr. Wesbecker this time stayed for the 9 entire course of treatment, did he not, he didn't leave AMA? 10 A. Correct. 11 Q. And he was discharged by Doctor Schramm; 12 correct? 13 A. Yes. 14 Q. If you could turn to Page 750049, you were asked 15 to read part of the note under 4-8. Do you see that, where it 16 started with agitation with job stressors? 17 A. Yes. 18 Q. What you weren't asked to read was "relieved 19 that he would be going to a less stressful job upon 20 discharge;" correct? 21 A. Yes. 22 Q. Up at the top, could you read that note that you 23 weren't asked to read starting on 4-7, at 2:30 P.M.? 24 A. At the very top? 25 Q. Right. 174 1 A. "Treatment planning conference held. Patient 2 attended. Patient's history reviewed briefly and reason for 3 admission, problem list developed. One potential for self 4 harm, inactive. Denies suicidal and homicidal ideation. Two, 5 inability to cope to include difficulty expressing feelings." 6 NP, I don't know what that means. "Need to begin discharge 7 planning. Identify as problem number four, disciplines will 8 intervene per history -- her treatment plan. Patient agrees 9 with treatment plan." 10 Q. Okay. So that was a planning session that was 11 held with Mr. Wesbecker and some of his care givers; correct? 12 A. Yes. 13 Q. And it says here that the nurse puts down here 14 that Mr. Wesbecker agreed with the plan that was set out by 15 the group; correct? 16 A. Yes. 17 Q. If you could turn to Page 750057, at the bottom 18 of the page at 6:30 P.M. on April 24th is the discharge 19 summary; correct? 20 A. The discharge note. 21 Q. Okay. It says Discharge Summary and After-Care 22 Planning; correct? 23 A. Yes. 24 Q. Admitted 3-31-87, due to thoughts of self harm 25 and problems at work. Patient denies thoughts of self harm at 175 1 present time. Patient has attended classes for assertiveness, 2 stress management and art therapy. Has attended daily 3 community meetings and participated. Also attended GGI. Has 4 met with dietitian. Has had daily conferences with nurse for 5 ventilation of issues and feelings. Is much calmer and sleep 6 pattern has improved. States has arranged to work a different 7 shift and feels working with new foremen, there will be less 8 stress at work. Plans to read Angry Book upon discharge. Has 9 found relaxation tech very effective. Was seen by dietitian. 10 Will attend group at Doctor Schramm's office. Will have 11 lithium level drawn Wednesday. Plans to return to work after 12 one week. Has been given instructions by Doctor Schramm on 13 time and dosage. Discharged as per doctor's order accompanied 14 by wife." Correct? 15 A. Yes. 16 Q. That's all. Thank you. 17 MR. STOPHER: That's all. Thank you, Ms. Ewen. 18 JUDGE POTTER: Thank you very much. You may 19 step down; you're excused. 20 Mr. Stopher, do you want to call your next 21 witness? 22 MR. STOPHER: Yes, Your Honor. The deposition 23 of Doctor David P. Moore. 24 JUDGE POTTER: Again, I remind you, ladies and 25 gentlemen, that a deposition is sworn testimony. Each side 176 1 has an opportunity to be present and each side has an 2 opportunity to examine and cross-examine a witness if they 3 wish. You will treat this just as if the witness were here 4 live. 5 Mr. Stopher. 6 7 (PORTIONS OF THE DEPOSITION OF DAVID P. MOORE, 8 M.D., WERE READ INTO THE RECORD WITH MR. EDWARD 9 STOPHER RECITING THE QUESTIONS AND MR. LAWRENCE 10 MYERS RECITING THE ANSWERS, AS FOLLOWS:) 11 12 MR. STOPHER: This is the deposition of Doctor 13 David P. Moore, M-O-O-R-E. It was taken on Wednesday, 14 November 20, 1991. Doctor David P. Moore, being first duly 15 sworn was examined and deposed as follows: 16 17 EXAMINATION ___________ 18 19 BY_MR._STOPHER: __ ___ _______ 20 Q. Would you state your full name, please. 21 A. David P. Moore, M.D. 22 Q. Your residence address? 23 A. 404 Meridian Avenue in Louisville. 24 Q. Your work address? 25 A. 101 West Muhammad Ali Boulevard, Louisville. 177 1 Q. Could you tell the Court and jury what you do 2 for a living. 3 A. I'm a psychiatrist. 4 Q. What training did you undertake to become a 5 psychiatrist? 6 A. I went to medical school at the University of 7 Rochester in Rochester, New York, and did a psychiatric 8 residency at the University of Wisconsin in Madison, 9 Wisconsin. 10 Q. In what year did you do your residency? 11 A. From 1973 to 1977. 12 Q. And so everyone will understand, psychiatry is a 13 medical -- a psychiatrist has a medical degree? 14 A. Yes. 15 Q. And you undertake to treat patients as a 16 specialty, that is, the specialty of psychiatry? 17 A. Yes. 18 Q. In connection with your professional career, 19 have you had occasion to see a Mr. Joseph Wesbecker? 20 A. Yes. 21 Q. Would you take a look at what I'm going to ask 22 the Reporter to mark Exhibit 1, and see if that is a copy of 23 your records, medical records, with respect to seeing him, 24 along with some letters requesting reports, et cetera. 25 A. Yes. this is an accurate copy. 178 1 MR. STOPHER: Your Honor, this is the certified 2 copy of the records of Doctor David Moore concerning Joseph T. 3 Wesbecker. We've marked them as Defendant's Exhibit 470 and 4 ask that they be admitted and distributed to the jury. 5 MS. ZETTLER: One second, Judge. No objection. 6 JUDGE POTTER: Be admitted. 7 SHERIFF CECIL: (Hands document to jurors). 8 Q. Do you have your records with you? 9 A. Yes, I do. 10 Q. Would you refer to them, please, sir, and tell 11 us when you first saw Joseph Wesbecker as a patient. 12 A. According to my records, I first saw Mr. 13 Wesbecker on November 18th, 1986. 14 Q. And how was he referred to you or how did he 15 find you as a psychiatrist? 16 A. He received my name from his social worker, 17 Mr. Patrick Lampton. 18 Q. Do you know or does your record indicate what 19 Mr. Lampton was doing for him by way of social work? 20 A. The record doesn't indicate precisely. My 21 recollection is that Mr. Lampton was seeing Mr. Wesbecker on 22 an ongoing basis. If recollection serves, Mr. Lampton was 23 associated with the employee assistance program at Standard 24 Gravure, and I believe he was seeing him in that capacity. 25 Q. Tell us what you did when you saw Mr. Wesbecker 179 1 by way of history, examination, and then later treatment. 2 A. That's a long question. Would you care to -- 3 Q. First of all, did you obtain any sort of history 4 from him? 5 A. Yes, I did. 6 Q. What history did you obtain? 7 A. Well, I could read from the chart or summarize 8 what I might say, whichever you would prefer. 9 Q. You can summarize, if you would. 10 A. My understanding, after interviewing Mr. 11 Wesbecker, was that, for perhaps eight years or more, he had 12 been suffering from what in retrospect was probably a mixed 13 bipolar disorder. These people tend to have mixtures of 14 symptoms of both depressive and manic symptoms. He certainly 15 had depression, but he also had agitation and pressured speech 16 and racing thoughts, the sorts of symptoms that are seen in 17 mania, and sometimes these do occur together in the same 18 person. And as best I could make out from my interview with 19 him, had been occurring that way with him in various 20 combinations for perhaps eight years. 21 Q. So the telltales or the symptoms that one would 22 look for in the mania was the racing thoughts, and he had 23 that? 24 Q. He had racing thoughts, yes. 25 Q. And he had the pressured speech? 180 1 A. Yes. 2 Q. And he was agitated, or upset; is that about the 3 same? 4 A. Yes. 5 Q. All right. What aspects, if you can tell me, or 6 what symptoms did he have of depression at the time you saw 7 him? 8 A. At the time that I saw him? 9 Q. Or did he tell you anything about his 10 depression? 11 A. Well, his history included certainly a depressed 12 mood and crying spells, fatigue, insomnia, poor memory and 13 poor concentration, which are symptoms characteristic of 14 depression. 15 Q. All right, sir. How long on that first occasion 16 would you judge that he was in your office? 17 A. I don't recall exactly. It was at least an 18 hour. 19 Q. Do you set up your patients in that kind of way 20 on the first visit, to see them for about an hour? 21 A. For at least an hour, yes. 22 Q. All right, sir. Tell us what next you did by 23 way of examination and/or treatment of Mr. Wesbecker. 24 A. When I first saw Mr. Wesbecker on November 18th, 25 he was already taking or had already been taking lithium but 181 1 in a relatively low dose. It seemed to me that lithium was an 2 appropriate first-choice medicine for him and, consequently, I 3 elected to restart him on that but at a higher dose to get a 4 therapeutic blood level, and I did, and had him return to the 5 office after checking the blood level to make sure that indeed 6 he was on the proper dose of lithium. As it turned out, the 7 dose that I selected was the proper dose; he did have a 8 therapeutic level. And when next seen by me on December 9 16th -- 10 Q. Before we get to that, he came to back to have 11 his blood levels checked on November the 25th; have I got that 12 right? 13 A. Not to my office; he went to a lab to get that 14 done. 15 Q. And then the lab reported what these blood 16 levels were to your office? 17 A. Yes. 18 Q. And that confirmed that you were giving him the 19 right amount of lithium? 20 A. Right. 21 Q. All right, sir. Go ahead. 22 A. Then I actually next saw him face to face on 23 December 16th, and at that point it seemed to me that he was 24 -- he said he felt calmer, and he sure looked calmer in the 25 office and he was sleeping better; however, he still had 182 1 significant symptoms. There certainly was improvement with 2 the lithium, but he still had significant symptoms. Primarily 3 now we were seeing the depressive symptoms as most prominent, 4 and that's fairly common in somebody with a mixed manic 5 episode, that lithium is pretty effective in reducing the 6 manic symptoms: the pressured speech, the agitation and the 7 like, but it is not as effective in reducing depressive 8 symptoms. And what I did at that point was to add a standard 9 antidepressant, Tofranil, in order to help relieve some of the 10 depressive symptoms. 11 He went ahead and started the Tofranil, and when 12 I next saw him on January 26, 1987, he was improving. His 13 depressive symptoms were less, and they were continuing to 14 improve up to that date when I saw him. And at that time I 15 elected to continue him on the current regimen of lithium and 16 Tofranil because he was improving and steadily improving. 17 When I next saw him on March 17th, 1987, he 18 reported that his symptoms had not improved that much more, 19 and at that time there was some confusion as to whether or not 20 the pharmacy had dispensed him the correct tablet size for 21 Tofranil. Mr. Wesbecker at the time reported to me he was 22 taking four, 25-milligram tablets of Tofranil, whereas, in 23 fact I had prescribed four, 50-milligram tablets of Tofranil. 24 And I was unable at that point to find out exactly what he was 25 taking. 183 1 So he went home and called back to me and read 2 me the actual description of the generic tablet, and I 3 ascertained that he was actually taking the 50-milligram size 4 and had him stay at that. And the next I heard from him -- 5 well, I didn't hear from him after that. His wife called my 6 office on April 2nd, 1987, and canceled Mr. Wesbecker's 7 appointment with me, his follow-up appointment. She said that 8 he had found another psychiatrist and, in fact, he had been 9 admitted to Our Lady of Peace Hospital at that time, and that 10 was my last contact with. 11 Q. Do you know for what reason? 12 A. No, I don't. 13 Q. Now, this incident where he felt like the 14 drugstore or someone had given him the wrong Tofranil dosage, 15 did you see any elements of him distrusting people in your 16 conferences with him? 17 A. That had been evident since our first meeting 18 with him. 19 Q. He was distrustful? 20 A. Yes. 21 Q. Of whoever was trying to help him? 22 A. Well, he was distrustful of most people. 23 Q. All right. Now, what other evidence of that did 24 you see crop up? What other things, or was it just the person 25 in general, his demeanor, the way he looked or what? 184 1 A. Well, during the initial interview and during 2 the interviews after that, he was distrustful. Distrustful 3 may not be the right word. He was angry at his employers. He 4 felt indeed that his condition, as he marked on the initial 5 registration form that he filled out, he felt that his 6 condition was work related in the sense of being causally 7 related to his work, and he was quite angry at the people at 8 work. In fact, as the letters indicate, the typewritten 9 letters later on, Mr. Wesbecker asked me to send a letter to 10 the nurse at Standard Gravure suggesting that he be taken off 11 one of the machines that he was working on because he felt 12 that this was aggravating his condition. I went ahead and did 13 send a letter back to the nurse asking that that be done, 14 primarily because I wanted to do whatever I could to relieve 15 some of the stress that he was experiencing. He was an 16 agitated man. 17 Q. Now, you indicated that he was angry with his 18 employer. Did he say anything to you that would make you 19 believe that he was trying to find the psychiatrist that would 20 support him in that position, or was he looking for somebody 21 to give him any support along that line? What was he looking 22 for from you, other than this letter to the nurse to take him 23 off of the folder? 24 A. My impression at the time was that was all he 25 was looking for from me. 185 1 Q. Did you determine that he had been to other 2 psychiatrists before you for short periods of time? 3 A. Well, my understanding was that he had seen a 4 Doctor Ray Hayes prior to being seen by me, who was a 5 psychiatrist. And he had also seen a nonpsychiatrist, a 6 Doctor Sandler. And by his history, those are the only two 7 physicians he had seen about this. 8 Q. If I read your note correctly on December the 9 6th, you indicate that he was calmer and used less profanity. 10 Had he used a lot of curse words and so forth in the first 11 visit that you had seen him when he was in this agitated 12 state? 13 A. Yes, he had. 14 Q. Was the first visit more or less agitated and 15 angry than the subsequent visits? 16 A. Yes. 17 Q. The subsequent visits were less angry than the 18 first one? 19 A. The subsequent visits were less angry than the 20 first one. 21 Q. Did you have any plan for how you would have 22 treated him if he would have come back to see you and allowed 23 you to help him? 24 A. I can't recollect exactly what my thoughts were 25 five years ago. My approach at the time generally was to 186 1 proceed as I had proceeded in this sort of case, using 2 lithium, adding an antidepressant like Tofranil. If people 3 don't respond to that, back then, five years ago, there wasn't 4 any clear-cut approach outlined. These days, we would 5 certainly use a medicine called Tegretol to help stabilize 6 these patients. Back then, Tegretol was just being started 7 being used in this area, but I imagine that my thinking 8 probably would have drifted toward adding Tegretol to this 9 man's regimen. 10 Q. Had you ever seen him before socially in any 11 context or since socially in any context? 12 A. Never. 13 Q. Let me get back and, if you can, give us as much 14 detail as you can, what Mr. Wesbecker said to you about his 15 work conditions, his complaints. 16 A. Could you be more specific? 17 Q. When he told you he was unhappy and angry at his 18 employer, how did he phrase it? What did he say? 19 A. I don't recall his exact words. I can give you 20 a recollection of my sense. 21 Q. That's what I want. 22 A. My sense was that he blamed his condition on his 23 work conditions. I really don't have any more specific 24 recollections than that. 25 Q. Do you have a copy of the letter you sent to the 187 1 nurse at Standard Gravure? 2 A. Yes, I do. 3 Q. I don't have a copy of that, so I request you 4 read it. It's a short letter. 5 A. I will read it into the record. This is a 6 letter to Mrs. Leona Meagher, M-E-A-G-H-E-R, registered nurse, 7 who's the supervisor of the medical department at The 8 Courier-Journal & Louisville Times dated January 26, 1987, 9 regarding Joseph T. Wesbecker. 10 The letter reads, "This is written at the 11 request of and with the permission of Mr. Joseph Wesbecker. 12 Mr. Wesbecker was first seen by me on November 18th, 1986, and 13 continues in my care for an affective disorder. Although 14 there has been some improvement with treatment, Mr. Wesbecker 15 notes that working on the 'folder' definitely exacerbates two 16 of the symptoms of his affective disorder, namely, 17 irritability and agitation. Consequently, until such time as 18 he has experienced a substantial recovery, I request that, if 19 possible, he be allowed to work at places other than the 20 folder. Should you require further information, please feel 21 free to contact me. Sincerely, David P. Moore, M.D." 22 Q. Doctor Moore, did you have any response from Ms. 23 Meagher there at Standard Gravure? 24 A. No. 25 Q. Did you have any additional discussion with 188 1 Mr. Wesbecker regarding your having sent the letter or 2 anything about the folder? 3 A. He asked whether or not I had sent the letter, 4 and I told him I had. I do not know what the outcome of that 5 was. 6 Q. When you put the letter together and you went 7 into some description about the folder, did Mr. Wesbecker 8 explain to you anything about the press and the folder? 9 A. He gave me a description of what the folder was 10 and felt that it was a dangerous machine and that he might get 11 himself hurt. 12 Q. Did he tell you that he had told his employers 13 that he didn't want to work that machine? 14 A. I don't recall. 15 Q. Did you send any other letters or have any other 16 communication with anybody else at the Standard Gravure 17 company? 18 A. Let me see. I don't believe so, no written 19 communications. Now, in all likelihood, I was in contact 20 with -- well, I was in contact with Mr. Lampton by telephone 21 talking about the case, but there are no written 22 communications. 23 Q. Since you were in contact with Mr. Lampton about 24 the case, you would have also told him about this letter and 25 the displeasure of Wesbecker with the folder? 189 1 A. I don't know whether I did or not. 2 Q. Did you keep him up pretty well on the details, 3 keep Lampton up pretty well on the details of what was 4 happening with Wesbecker? 5 A. I can't say. Mr. Lampton referred a number of 6 patients to me, and I would be in telephone contact with him, 7 not only about this patient but many others. And in terms of 8 what details were passed back and forth, I don't recall. 9 Q. How many telephone conversations do you feel you 10 had with Lampton regarding Wesbecker? 11 A. I don't recall. I really don't have a sense of 12 that. 13 Q. Is there anything there that will tell you, 14 anything in your folder? 15 A. No. 16 Q. In your conversations with Mr. Lampton on this 17 and other cases, did he indicate or appear to you to 18 understand the nature of psychiatric diagnoses? 19 A. I don't have a sense of that. 20 Q. Do you think that he would understand if you 21 told him that Mr. Wesbecker had a mixed bipolar disorder? 22 A. I don't know. 23 Q. He was a licensed registered psychologist; is 24 that correct? 25 A. Social worker. 190 1 Q. Social worker. Generally, is that a part of 2 their curriculum, do you know? 3 A. I don't know. 4 Q. Now, in your treatment of Mr. Wesbecker, did you 5 ever notice any tendencies of paranoia or any symptoms of 6 paranoia? 7 A. It depends on what you mean by paranoia. 8 Q. Well, I'm talking about within the definitions 9 of your particular medical specialty. 10 A. Within the definitions, according to the 11 DSM-III, he did not have paranoia. 12 Q. Did he have any symptoms that could be described 13 as a pre-paranoid state? 14 A. That's a nondefined condition. 15 Q. You say that you wrote this letter to Leona 16 Meagher; was she addressed as an RN? 17 A. Yes. 18 Q. And an RN in their training does have training 19 in the various general understandings of psychiatric 20 diagnoses, don't they? 21 A. Some do, some don't. 22 Q. Now, you say that you wrote this letter to her 23 and you discussed with Mr. Lampton Mr. Wesbecker's condition. 24 Did you have any contact with any other persons, be they 25 attorneys, representatives of the Human Relations Commission 191 1 or any other person or persons, groups of persons, respecting 2 your treatment and diagnosis of Mr. Wesbecker? 3 A. Yes, I did. 4 Q. With whom did you have that contact? 5 A. This is reflected in the chart that's already 6 been introduced. I had contact with Doctor Lee Coleman, who 7 subsequently cared for Mr. Wesbecker. I had contact with a 8 Mr. Mark H. Gaston, an attorney regarding this case; a contact 9 with Ms. Laura H. Harris, who, at the time was the assistant 10 director of law for the City of Louisville. 11 Q. Mark Gaston, Laura Harris and Doctor Coleman 12 were prior to the September shootings? 13 A. Yes. 14 Q. Do your records reflect whether or not you told 15 Mr. Gaston or Ms. Harris your diagnosis of Mr. Wesbecker? 16 A. Mr. Gaston was -- both Mr. Gaston and Ms. Harris 17 were sent copies of my initial evaluation, so they would have 18 been aware of my initial diagnosis. 19 Q. What would an affective disorder, quote, end 20 quote, mean to anyone who had some training in the medical 21 field and the field of psychology? 22 A. According to the DSM-III, it would indicate to 23 that person that this person either had a major depression or 24 a bipolar disorder or a dysthymia or cyclothymia. 25 Q. Your answer there opened up other questions. If 192 1 you can briefly describe, you believe he had a bipolar 2 affective disorder, and I'd like for you to just expound upon 3 exactly what that is and what you thought he had. 4 A. Bipolar affective disorder in the past has 5 commonly been known as manic-depressive disorder. Mr. 6 Wesbecker, I believe, had an atypical form of that. 7 Typically, people with bipolar affective disorder will have 8 two kinds of episodes. In one kind, known as a manic episode, 9 they'll have greatly increased energy, pressured speech, 10 racing thoughts, hyperactivity, greatly reduced need for 11 sleep. They may stay up for nights in a row and not get 12 tired. At other times in their lives, they will have another 13 kind of episode, a depressive episode, which is almost the 14 exact opposite of a manic episode. They'll be -- feel 15 depressed and tired and not want to do things. Their thoughts 16 will be slowed down. Their actions will be slowed down. Even 17 though they're very tired, they usually cannot sleep, although 18 they desperately want to. Occasionally, patients with bipolar 19 affective disorder will have an episode that is a mixture of 20 both of those, and that is what's known as a mixed episode or 21 a mixed manic episode. And here one sees varying combinations 22 of those two sets of symptoms, which is what Mr. Wesbecker 23 presented with. 24 Q. You also indicated in your history that, 25 apparently, he was experiencing these symptoms for 193 1 approximately eight years? 2 A. Yes. 3 Q. And how did you arrive at that conclusion? 4 A. He told me. 5 Q. In other words, he told you he was having those 6 type of symptoms as you've described in your history for an 7 eight-year period? 8 A. About eight years, yes. 9 MR. STOPHER: Your Honor, this might be a good 10 place to stop. It's 3:30. 11 JUDGE POTTER: Okay. Ladies and gentlemen, 12 we'll take the afternoon recess. As I've mentioned to you-all 13 before, do not let anybody communicate with you about this 14 case; don't communicate with each other and don't form or 15 express opinions. We'll stand in recess till quarter of four. 16 (RECESS) 17 SHERIFF CECIL: The jury is now entering. All 18 jurors are present. Court is back in session. 19 JUDGE POTTER: Ladies and gentlemen of the jury, 20 I checked, and the building manager's left for the day, so 21 I'll save you the request that we deal with the heat. All 22 right? 23 Mr. Stopher, do you want to call your next 24 witness? 25 MR. STOPHER: Your Honor, this is the 194 1 continuation of the testimony of Doctor Moore. 2 JUDGE POTTER: That's right. You-all caught me 3 on that one, didn't you? 4 MR. STOPHER: I wish I could call another one, 5 Judge; it's too hot and too late in the day, but we do need to 6 get this finished. 7 Doctor, in your mental status exam you indicated 8 that he admitted to occasionally experiencing suicidal 9 ideation. Did he talk to you about prior suicide attempts? 10 A. I don't recall. 11 Q. Is there anything in your record which would 12 indicate that you knew he had attempted suicide in the past? 13 A. There's nothing in my record to indicate that. 14 Q. Did you know that he had attempted suicide in 15 the past when you treated him? 16 A. I don't recall. It's not reflected in the 17 record. He may not have told me. 18 Q. But apparently you questioned him about whether 19 he had any present intentions of committing suicide? 20 A. Yes. 21 Q. And he answered in the negative -- 22 A. That's correct. 23 Q. -- according to your records. Did you also 24 delve into the area of whether he had any homicidal ideation 25 at that time? 195 1 A. Yes. 2 Q. Did you ask him about that? 3 A. Yes. That's a standard part of my mental status 4 examination, to ask after both suicidal and homicidal 5 ideations. 6 Q. Okay. It's not included in your exam, though? 7 A. No. 8 Q. What was his response to that inquiry? 9 A. That he had none. 10 Q. Is there any reason why that's not in the mental 11 status exam? 12 A. I don't always put down negative findings in a 13 mental status examination. The mental status examination is 14 actually much more extensive than is reflected in the written 15 record, and negative findings are often not included. 16 Q. You testified earlier that he was, quote, angry 17 at his employers; that his condition was work related -- 18 MS. ZETTLER: Thought. 19 Q. -- thought his condition was work related, and 20 quite angry at the people at work, a very agitated man. Is 21 that a pretty good summary of your testimony? 22 A. I wouldn't say that's a good summary of my 23 testimony, but those are some -- 24 Q. That's part of it? 25 A -- of the things I said, yes. 196 1 Q. When he discussed this with you about being 2 angry at his employers, did you inquire as to if he was angry 3 at any specific people at Standard Gravure? 4 A. I don't recall. 5 Q. Do you recall if he made any threats, veiled 6 threats to any of his employers or people at Standard Gravure? 7 A. He did not. 8 Q. Do you remember if he mentioned any people by 9 name? 10 A. Excepting for his wife and children, no. 11 Q. What were his thoughts with regards to his wife 12 and children? 13 A. I don't recall exactly. He was angry at his 14 wife, and regarding his children he had no -- he offered 15 nothing spontaneously. It was a standard part of my 16 examination to ask after family history, and he responded to 17 direct questioning about his children. 18 Q. Doctor, just to clarify the record, I would like 19 for you to read your two-page handwritten report of your 20 office visits because I can't read them and it might be 21 important for the record. 22 A. Okay. "November 25th, 1986, lithium, 1.0 (.5 23 through 1.5) TSH 1.5 (.5 to 6)." 24 Q. And that's the end of the notation for November 25 25th. Can you briefly tell us what all that means? 197 1 A. Lithium is the lithium level, which was 1.0 2 milliequivalents per liter. The therapeutic range is .5 to 3 1.5; consequently, his lithium level was in the middle of the 4 therapeutic range. 5 Q. And you previously testified to that? 6 A. Yes. TSH is thyroid simulating hormone. His 7 value was 1.5 international units per liter; the normal range 8 is .5 up to 6. TSH is a measure of thyroid function. Some 9 people on lithium will have disturbed thyroid function. The 10 fact that his TSH was normal indicated that the lithium was 11 not disturbing his thyroid function. 12 Q. Your next entry was December the 16th? 13 A. Yes. "December the 16th, 1986. Patient seen. 14 Reports and looks calmer. Much less profanity. Sleeping some 15 better; however, he notes that over the past two weeks, his 16 symptoms, which had been steadily getting less, had begun to 17 worsen again. No side effects. Will add Tofranil. RTC -- or 18 return to clinic -- one and a half months." 19 Q. Doctor, with regard to that notation, this 20 profanity, was this profanity directed at anyone? 21 A. No. 22 Q. Was it directed at Standard Gravure or his 23 employer? 24 A. He used a lot of profanity no matter what he was 25 talking about. 198 1 Q. He was just a dirty-mouthed individual? 2 A. He used a lot of profanity.. 3 Q. You said the symptoms had much improved earlier, 4 but they were getting worse again, had begun to worsen again? 5 A. Yes. 6 Q. Which symptoms? 7 A. Primarily, it was the depressive symptoms. 8 Q. Were there any manic symptoms present? 9 A. Yes. There were some. 10 Q. Any racing thoughts? 11 A. I don't have a direct description of that, but 12 my recollection is that the greatest improvement had been in 13 the manic symptoms but had not been complete. 14 Q. Would you continue on to the next notation. 15 A. "December 30th, 1986, refill called in to 16 937-3747. 17 Q. What number is that? 18 A. That's the number of the pharmacy Mr. Wesbecker 19 was using. 20 Q. So you just called in a refill for him? 21 A. Yes. 22 Q. Did they call you and ask for a refill or how 23 did that come about? 24 A. I don't recall. I imagine that the pharmacy had 25 called and asked if he could have a refill. 199 1 Q. Next notation, please? 2 A. "January 26th, 1987. Patient seen. Continues 3 with gradual improvement. Continuing, no plateau yet. Has 4 mild dry mouth as only side effect. Will observe for full 5 improvement another four to six weeks, then return to clinic." 6 Q. Does this mild dry mouth have anything to do 7 with his psychiatric disease or does that have something to do 8 with the medication? 9 A. No. That's a side effect of the Tofranil. 10 Q. Do you recall if there were any manic symptoms 11 on the 26th? 12 A. My recollection is that throughout my meetings 13 with Mr. Wesbecker he still had manic symptoms. 14 Q. Can you continue on, then? 15 A. Next notation is March. I believe that's 16 March 7th, 1987. "Call from pharmacy. They lost the 17 prescription. Refill called in." 18 Q. Was this also when he had trouble about the pill 19 size or was that -- 20 A. I'm not sure what happened there, and that, I 21 don't know. 22 Q. But you called it in -- 23 A. Yes. 24 Q. -- and straightened that out. The next one, 25 please. 200 1 A. March 17th, 1987, patient seen. About the same 2 as January 26th. He reports taking four Tofranil h.s., or at 3 bedtime, but it's unclear if they were 25- or 50-milligram 4 tablets. He is to call back proper information. Return to 5 clinic two months, consider dose increase. 6 Q. What's the significance of taking four Tofranil? 7 Was that more than his prescription? 8 A. No. The difference is that whenever a patient 9 comes in, I always ask them exactly what they're taking, 10 because sometimes pharmacies make mistakes; sometimes I make 11 mistakes, things happen, so I always double check. Mr. 12 Wesbecker was unsure whether or not the tablet was a 25- or a 13 50-milligram size. That's a big difference. That's the 14 difference between 100 milligrams total and 200. And that's 15 why I asked him to -- actually, he didn't have any tablets 16 with him, so I asked him when he went home to get the tablets. 17 And most tablets have some sort of inscription on them, and by 18 that inscription I can decipher exactly how many milligrams it 19 is. 20 Q. What were his symptoms that day? 21 A. My recollection is that he was still having 22 manic symptoms but that the depressive symptoms were the most 23 prominent. 24 Q. You may continue on, please. 25 A. Next notation is March 19th, 1987. Patient 201 1 called. Tablet is No. 136, which is a 50-milligram tablet. 2 Next notation is also on March 27th, 1987, 3 refill called in. Will stay at 200 milligrams, as he has no 4 adverse effects. 5 Next notation is April 2nd, 1987. Patient's 6 wife called and canceled May 19th appointment. Patient has 7 selected another psychiatrist and has been admitted to Our 8 Lady of Peace. 9 Q. Did you speak with his wife that day or was that 10 an office personnel? 11 A. I don't recall. 12 Q. Would that be something you would try to find 13 out, well, why did you change or why did you leave me or 14 anything like that? 15 A. I don't recall whether or not I spoke with her. 16 If I had spoken with her or if he had called, I would have 17 asked. 18 Q. And you had no further contact with Mr. 19 Wesbecker? 20 A. No further contact. 21 Q. With regard to your letter to Leona Meagher, I 22 believe you testified that -- or did you, did you speak to her 23 in person? 24 A. No. 25 Q. Did you get any feedback from her after you 202 1 mailed the letter? 2 A. No. 3 Q. In your July 20th letter to Doctor Coleman, you 4 mentioned that you were responding to his request. Had he 5 called you on the phone or requested certain things? 6 A. I believe he had sent me a written request for 7 information. Let me see. 8 Q. Is that a letter from Coleman? 9 A. Is it there? Okay. Okay. He had sent me then 10 a written request for information regarding Mr. Wesbecker. 11 Yes. Here it is. It's dated July 6, 1987, and it's signed by 12 Mr. Wesbecker. 13 Q. You indicated you sent him a copy of your 14 initial evaluation, I believe. 15 A. Yes. 16 Q. Is that two pages? 17 A. No. That's the one-page evaluation of 18 November 18th, 1986. 19 Q. It starts off with identifying information? 20 A. Yes. 21 Q. Chief complaints and so on? 22 A. Yes. 23 Q. Did you also send him your office notes? 24 A. No. 25 Q. Did you speak with Doctor Coleman over the 203 1 telephone? 2 A. No. 3 Q. Did you have any further follow-up with Doctor 4 Coleman after this date? 5 A. No. 6 Q. Have you talked with Doctor Coleman about Joseph 7 Wesbecker at any time? 8 A. No. 9 Q. Have you talked with any of the other treating 10 psychiatrists, neuropsychiatrists, psychologists or anybody 11 that treated Joseph Wesbecker to this date? 12 A. I remember speaking with Doctor Senler and 13 Doctor Schramm. 14 Q. What was the substance of those conversations? 15 A. I don't recall. 16 Q. You stated earlier that during your conferences 17 with Mr. Wesbecker he never threatened anyone at Standard 18 Gravure. Did he ever threaten any person or groups of persons 19 in your presence? 20 A. Not that I recall. 21 Q. You testified a few moments ago that Mr. 22 Wesbecker did not have any homicidal ideation. Can you 23 explain to the Court exactly what that means? 24 A. In practice, what I would do is ask somebody at 25 some point during the interview whether or not they felt like 204 1 hurting anybody else, and I would pursue that; also, whether 2 they ever felt like killing anybody else. And the response 3 was negative on his part. 4 Q. And is it your testimony that, indeed, you posed 5 that question to Mr. Wesbecker, even though it's not reflected 6 in your medical record? 7 A. That's correct. 8 Q. Doctor, is the question that we're talking 9 about, whether you hurt someone or whether you have any 10 intentions of hurting someone, is that a standard question 11 that you as a practicing psychiatrist would ask this type of 12 patient? 13 A. Yes. 14 Q. And you would expect that to be done by any 15 treating psychiatrist; is that correct? Is that a standard 16 one, Doctor, that you'd expect any psychiatrist to ask? 17 A. I can't speak to that. 18 Q. Were you taught that in school to ask that type 19 of question, or is that something that you just picked up on 20 your own? 21 A. I was taught that in school, in the school that 22 I went to. 23 Q. My understanding, looking at your records, is 24 that you found a bipolar condition and undertook to treat that 25 condition; is that correct? 205 1 A. That's correct. 2 Q. The notes also indicate that you did not really 3 undertake an investigation to determine the truth of anything 4 that Mr. Wesbecker was telling you; is that correct? 5 A. That's correct. 6 Q. You did not do an investigation at this point to 7 determine what the cause of his depression or his manic- 8 depressive state was; is that correct? 9 A. That's a research question to be answered at the 10 National Institute of Mental Health. 11 Q. You did not undertake to do that? 12 A. Again, sir, that question is something that has 13 to be answered with sophisticated biomedical research. That's 14 not a question that a practicing physician would be able to 15 answer. 16 Q. So I ask you again, you didn't take that 17 investigation, did you? 18 MS. ZETTLER: Your Honor, could we be heard? 19 (BENCH DISCUSSION) 20 MS. ZETTLER: He puts this stuff in and now he's 21 going to start editing it because he didn't care for it. 22 MR. STOPHER: I didn't put this in. It's a 23 statement in the question, Judge. I just wanted to get to the 24 question. 25 MS. ZETTLER: This line indicates that they put 206 1 something in. Okay. If they don't want this in, they 2 shouldn't have put it in. 3 MR. STOPHER: It doesn't add anything to the 4 record. The only thing that's pertinent is the question, not 5 Mr. Segal's argument. 6 JUDGE POTTER: Well, read the whole thing. 7 (BENCH DISCUSSION CONCLUDED) 8 Q. I'm not challenging you. I just don't want it 9 to appear on the record that in fact your investigation 10 indicated that his employment caused it, so, again I ask you, 11 you didn't do that type of investigation, did you, because it 12 would take the type of sophisticated research that you 13 described; is that correct? 14 A. No. I did not investigate the etiology of 15 manic-depressive illness. 16 Q. Now, the family history, it states here that the 17 patient is an only child and his father died when he was an 18 infant; his mother is alive, and he knows little of her. In 19 your opinion, did this contribute to cause any of Mr. 20 Wesbecker's problems? 21 A. In my opinion, it probably didn't. 22 Q. His divorce, do you think that caused any of his 23 problems? 24 A. I don't think it did. 25 Q. It says here he reports that the boy has an 207 1 exposure problem. That, I guess, is his son. Could you tell 2 me what that is? 3 A. Well, Mr. Wesbecker did not go into detail 4 there, except to say further -- and I didn't include this in 5 the record because it wasn't pertinent -- except to say 6 further that his boy had been exposing himself, exposing his 7 genitals. 8 Q. Did he tell you how old that boy was? 9 A. No, he didn't. 10 Q. When you undertook from Pat Lampton to treat Mr. 11 Wesbecker, did Mr. Lampton give you, orally, any background 12 about Wesbecker? 13 A. I don't believe he did. 14 Q. Did you receive any records from Pat Lampton or 15 go yourself to get records of any kind about Wesbecker? 16 A. I have no records from Mr. Lampton. 17 Q. Or from any hospital or prior treating physician 18 or prior treating psychiatrist? 19 A. No. That's correct, that I had no records from 20 any prior treating physicians. 21 Q. Did you ever go to Our Lady of Peace and read 22 what those records said about Wesbecker? 23 A. No. 24 Q. Have you taught any courses or seminars? 25 A. Yes. I was on the faculty at the University of 208 1 Louisville School of Medicine in the Department of Psychiatry 2 and rose to the rank of associate professor. 3 Q. Are you presently on that faculty? 4 A. No. 5 Q. Are you on any other faculty? 6 A. No. 7 Q. Have you ever published? 8 A. Yes. 9 Q. And what are some of your publications? 10 A. I published in the American Journal of 11 Psychiatry and in the Southern Medical Journal. Articles have 12 been concerned with delirium, with rapid treatment of 13 psychosis, with petit mal epilepsy. 14 Q. Have you published anything with regard to manic 15 depressives? 16 A. No. 17 Q. Or anything dealing with bipolar affective 18 disorders? 19 A. No. 20 Q. Do you consider yourself an expert in any 21 subfield of psychiatry? 22 A. Primarily in psychopharmacology. 23 Q. Which is what? 24 A. The use of drugs in the treatment of psychiatric 25 illness. 209 1 Q. Was Prozac a drug in use at the time you treated 2 Joseph Wesbecker? 3 A. No. 4 JUDGE POTTER: Mr. Stopher, do you want to call 5 your next witness. 6 7 (PORTIONS OF THE DEPOSITION OF THEODORE SCHRAMM, 8 M.D., WERE READ INTO THE RECORD WITH MR. EDWARD 9 STOPHER RECITING THE QUESTIONS AND MR. STEPHEN 10 LORE RECITING THE ANSWERS, AS FOLLOWS:) 11 12 MR. STOPHER: Your Honor, this is the deposition 13 of Doctor Theodore Schramm, taken on October 23, 1991. Doctor 14 Theodore Schramm, being first duly sworn, deposed and states, 15 as follows: 16 17 EXAMINATION ___________ 18 19 BY_MR._STOPHER: __ ___ _______ 20 Q. For the purposes of the record, would you state 21 your name, please. 22 A. Theodore Schramm. 23 Q. And are you a practicing physician in the state 24 of Kentucky? 25 A. I am. 210 1 Q. City of Louisville? 2 A. I am. 3 Q. And you handed to the Reporter and to me a copy 4 of your curriculum vitae which has been marked Exhibit 4. 5 A. That's correct. 6 Q. Do you specialize in any particular area of 7 medicine, sir? 8 A. Yes. I'm a Diplomate of the American Board of 9 Psychiatry and Neurology. 10 Q. In connection with your practice of psychiatry 11 in the city of Louisville, have you had an opportunity to see 12 as a patient Joseph Wesbecker? 13 A. I have. 14 Q. I'll ask you please, sir, to look over Exhibit 15 No. 1, which I believe to be a true and correct copy of your 16 office record. 17 A. Yes. 18 Q. Exhibit 2, which I believe to be a true and 19 correct copy of the hospitalization, where you had Mr. 20 Wesbecker hospitalized. 21 A. Yes. 22 Q. And Exhibit 3, which is a copy from a 23 psychologist respecting certain tests that you asked the 24 psychologist to perform on this patient. 25 A. Right. 211 1 Q. Do those appear to be complete and accurate 2 records? 3 A. I can compare them with my own, if you want me 4 to, but superficially they appear to be complete. 5 MR. STOPHER: This is Defendant's Exhibit 463, 6 Your Honor. 7 MS. ZETTLER: No objection. 8 JUDGE POTTER: Be admitted. 9 SHERIFF CECIL: (Hands document to jurors). 10 Q. First, would you turn, please, sir, to your 11 office record, the first note, and tell me if that was made at 12 or about the time that Wesbecker was admitted to the hospital? 13 A. This was dictated the date shown, 3-31-87. His 14 admonition date, I have to check the records, was 3-31. It 15 was the same date, yes. 16 Q. All right, sir. Tell me how you came to see 17 Mr. Wesbecker as a patient. 18 A. His attorney referred him to me. 19 Q. And his attorney at that time was who? 20 A. I believe it was Sanford Berman of Frockt and 21 Klingman. 22 Q. And for what purpose did this attorney refer 23 Mr. Wesbecker to you? 24 A. Because he appeared to be upset and depressed. 25 Q. Did you see him first at the hospital, in your 212 1 office, or where? 2 A. Saw him first here in the office. 3 Q. And that is where you took down the notes that 4 appear in your office record? 5 A. That is the note dated 3-31-87. 6 Q. All right, sir. And did you make those notes at 7 the time you first saw him in your office before you 8 hospitalized him? 9 A. Yes. I dictated these immediately he left my 10 office, which is my habit. 11 Q. Now, in that connection tell us what kind of 12 history you obtained from the patient. 13 A. Well, the history, as indicated here, that he 14 was a 44-year-old, divorced, twice-married man who felt that 15 he needed to get off from work because he felt possibly 16 overmedicated on Tofranil and lithium, but also suspected that 17 organic solvents used in the printing plant, such as toluene, 18 might have had an effect upon him. 19 Q. First of all, tell me if there is any 20 significance in the man's age insofar as the medical condition 21 that you later diagnosed him as having. 22 A. I don't think there's any particular 23 significance. Depression can occur at any age. 24 Q. You have mentioned first that he was twice 25 married. What does that have to do with diagnosis? 213 1 A. Nothing on so-called Axis I. On another axis of 2 diagnosis it might indicate some interpersonal instability or 3 difficulties in marriages. 4 Q. Now, you mentioned that he was worried about 5 overmedicating himself, and he was taking, according to your 6 notes, two drugs. Tell us, first of all, what Tofranil is. 7 A. Tofranil, the generic name is imipramine, it's 8 put out by Ciba-Geigy, and it is one of the original 9 antidepressant drugs. The fact is, I think it became 10 available shortly after I got into practice 30 years ago. 11 Q. All right, sir. 12 A. Lithium is a natural occurring salt, and the 13 history of it is it was discovered by an Australian 14 psychiatrist and seems to be effective in stabilizing people 15 with mood disorders. 16 Q. Does it have any effect on persons that may be 17 manic depressive in either state? 18 A. Yes. It stabilizes manics in terms of bringing 19 the level of their activity down to a normal range, and it 20 helps support a bottom level for depressives so they don't get 21 any more depressed. 22 Q. Did the attorney that sent him to you ask you to 23 do anything with respect to evaluating this claim that he made 24 with respect to toluene having some effect on him physically 25 or mentally? 214 1 A. I don't recall that he did. He just recognized 2 a man who needed help and referred him on. 3 Q. Now, you indicate in your record, in the third 4 paragraph, that a Doctor Moore, who is a psychologist that 5 Standard Gravure referred him? 6 A. No. 7 Q. I wanted to get that cleared up. 8 A. No, his last referral -- 9 Q. Oh, I see. 10 A. -- professionally was by someone to a Doctor 11 Moore, whom I don't know. 12 Q. Oh, I see. So he had seen a Doctor Moore who 13 was a psychologist; is that what you understood? 14 A. That's what I understood from him. I didn't 15 research it further. 16 Q. How did he present himself in terms of how he 17 looked, how he was dressed, how he reacted to you as a person? 18 A. He was neatly dressed, talked under a great deal 19 of pressure. 20 Q. What does that mean? 21 A. He gave the impression that there was a lot he 22 wanted to tell but was very guarded in telling it. There was 23 no ease in flow of the information. 24 Q. So that the jury might understand this, you had 25 to pull what you got out of him, or was he selective in what 215 1 he told you? 2 A. Sometimes -- I recall not too clearly, sometimes 3 I had to pull information from him; sometimes he was selective 4 and he volunteered information. 5 Q. All right, sir. Now, you indicate that he gave 6 some history about his workplace. What part did that play in 7 him coming to you? 8 A. That was a recurrent theme of his, being unhappy 9 and feeling that he had a grievance. And he -- 10 Q. You mentioned that he was harassed and picked 11 on, or he says he was. 12 A. He says he was harassed and picked on, and this 13 indicated that he might also have had possibly some paranoid 14 approach, but this did not loom highly in the initial 15 evaluation. 16 Q. When you say paranoid approach what does that 17 mean? 18 A. He felt that he was being plotted against, 19 selected out, being harassed. 20 Q. By whom? 21 A. Particularly, at that point, his employers at 22 Standard Gravure. 23 Q. You have the quote in here, "The office does 24 it," in I think the fourth or fifth paragraph. 25 A. He was referring to the office at Standard 216 1 Gravure. 2 Q. Now, so we can understand that psychologically 3 and from a psychiatrist's point of view, tell us what, when 4 the patient starts talking about the office or the group or -- 5 A. Well, that's where he sees the power as residing 6 or he sees the -- whatever he's complaining of emanating from. 7 Q. Now, did he ask you to hospitalize him? 8 A. I don't have any indication on that. I don't 9 remember. I asked him if he wanted to go to the hospital and 10 he agreed to do so. 11 Q. All right, sir. Now, in that last full big 12 paragraph before you get to the last two little sentences, 13 tell me embroidering a little bit on his history, he had two 14 children, looking at your office record? 15 A. Yes. 16 Q. Twenty-four and twenty? 17 A. Yes. 18 Q. Boys? 19 A. That's what I understood. 20 Q. Now, you indicate that his father died in 1944, 21 after falling off the roof of a church? 22 A. Yes. 23 Q. Would that or not be important in the 24 evaluation? 25 A. Apparently, I didn't consider it important at 217 1 the time so I didn't follow it. 2 Q. Did you get any more information out of him 3 during his hospitalization or otherwise, about quitting school 4 when he was 16? 5 A. I'll have to check. I don't recall that it was 6 an issue for me. 7 Q. I don't believe there's a further reference to 8 it in the record. 9 A. No, there is not. 10 Q. Would you look, please, sir, at your note that 11 was transcribed or dictated on May 31, 1987, which is a part 12 of the hospital record? 13 A. I have it. 14 Q. I'd like for you to please tell us what history 15 you were able to obtain from the patient, both from him and 16 other sources, respecting the patient attempting suicide or 17 things of that kind. 18 A. Well, the entire history is here, that I was 19 able to get, and the only -- as I say in here, "At one time 20 his most serious attempt was when he took 40 sleeping pills, 21 60 antidepressants, while at home. He slept for three days 22 but was not hospitalized medically." 23 Q. You also obtained a history of him trying to 24 hang himself or trying to kill himself with carbon monoxide 25 poisoning? 218 1 A. Yes. 2 Q. What did you make of that history in terms of 3 what you saw in him as a patient when you hospitalized him? 4 A. A chronically dysphoric individual who felt 5 periodically that life was not worth going on with. 6 Q. What does dysphoric mean? 7 A. It means uncomfortable feelings, depressed. 8 Q. And when you say that life was not worth going 9 on with... 10 A. That's usually what happens when one 11 contemplates suicide. 12 Q. That suicide or death is a better alternative 13 than life, something of that kind? 14 A. That's correct. 15 Q. All right, sir. On the next page of that same 16 report, you indicate that he showed an exaggerated profile. 17 Tell us what that means in terms of when you say exaggerated 18 profile. 19 A. Deviation from the normal. And it refers to 20 tests that Doctor -- trying to recall his name -- Dennis 21 Buchholz did. 22 Q. Did you ask the psychologist to perform those 23 tests? 24 A. Definitely. 25 Q. Did you use those tests in the evaluation of the 219 1 patient during your care and treatment of him? 2 A. Yes, sir; I did. 3 Q. Did you find the psychologist to be a competent 4 physician to perform the tests in an adequate and complete 5 way? 6 A. Yes. 7 Q. All right, sir. Tell me what you found from the 8 report that you used in formulating your opinion and how you 9 used that in evaluating and treating the patient. 10 A. Well, I use a psychological examination the way 11 an internist uses an X-ray. I listen to the lung and I hear 12 something and I get a picture to verify it. Sometimes it 13 shows me what I haven't detected with my examination; 14 sometimes it confirms my examination. That's the purpose of 15 getting a psychological or any other laboratory type report. 16 He had a great number of psychological 17 dysfunctions at the time of the test. He scored low average 18 in his intellectual functioning, and there was no indication 19 that he could function any higher. And that's a statement 20 there, because often a depression lowers the level of 21 functioning in terms of available I.Q. 22 Q. When you saw him then, he was in a depressed 23 state rather than in a manic state? 24 A. Correct. 25 Q. All right, sir. Go ahead. Anything else in the 220 1 report that you used in evaluating him? 2 A. I have to go back to the original report. 3 Doctor Buccholz refers to a split speech, which was -- 4 Q. What does that indicate? 5 A. I would think it means he bit off words. He 6 spoke sharply, clearly, concisely. 7 Q. Does it have any psychiatric overtone? 8 A. I guess tight lipped would describe it. He was 9 not going to say any more than he had to. 10 Q. I see. 11 A. The Minnesota Multiphasic, the MMPI that Doctor 12 Buchholz administered, showed that he was crying for help; 13 that he was in a great deal of emotional pain and was seeking 14 help. And, indeed, his whole history -- he had been to many 15 other therapists before -- shows that he was looking for help 16 and was not able to find the kind of help he wanted, but he 17 wasn't specific in saying what it was that he wanted. 18 Q. Was the condition that you described, this 19 tight-lipped attitude or condition, did this make it less 20 difficult or more difficult for a psychiatrist or other 21 treating physician to help him in this cry for help? 22 A. Well, it indicated a very cautious approach to 23 whether he would trust or not trust, so it had a prognostic 24 value for treatment. That treatment would be difficult, at 25 best. 221 1 Q. Now, in your summary dictated on May 31, 1987, 2 on the second page, after you talk about the exaggerated 3 profile, you mention prominent depression, anxiety, feelings 4 of alienation and isolation. Tell us what each of those mean 5 in terms of this patient. 6 A. Depression means a low emotional level, not one 7 to interact, not feeling worthwhile. 8 Anxiety is the feeling of apprehensive 9 anticipation that something dire could happen. 10 Alienation means -- well, it's a legal term, 11 too. We just are not in contact with anyone. We protect 12 ourselves. We feel displaced from people. 13 And isolation is a concordant of that. If I'm 14 alienated, I protect myself by isolating myself. 15 Q. When you say something dire is going to happen, 16 does that mean the same as something bad is going to happen? 17 A. Yes. 18 Q. And if you would turn over, please, to the next 19 page in the hospital record, I'd like to ask you what portion 20 of that record appears in your handwriting. 21 A. All of that first page is my handwriting except 22 where the nurse indicated -- signed it off. 23 Q. All right. Would you mind reading into the 24 record the note dated 3-30-87? I had some difficulty with 25 some of the words. 222 1 A. I have some difficulty reading my handwriting 2 back. Quote, 44-year, two-times divorced, employee of 3 Standard Gravure now under care recently, end quote, perhaps 4 I -- can't make that word out -- quote, under the care of Ray 5 Hayes, end quote. 6 Q. Who is that? 7 A. He's a retired psychiatrist. Quote, at Highland 8 Baptist Hospital, end quote. Can't read the next one. Quote, 9 Doctor Vicdan Senler at Our Lady of Peace and by Doctor 10 David P. Moore. Quote, allegedly is a manic depressive on 11 Tofranil and lithium. Is concerned he may be overmedicated, 12 but mental status reveals pressure of speech, flat affect, 13 anger, and possibly paranoid ideation. Quote, needs admission 14 for evaluation of clinical status, possible toxicity to 15 toluene and low tolerance for noise in workplace. Quote, 16 impression, rule out manic-depressive, manic. Rule out 17 paranoid state. Rule out -- 18 Q. Lithium low levels? 19 A. Lithium -- I don't know what -- low levels. 20 Quote, plan, blood levels of lithium and maybe Tofranil, 21 neuropsychologicals and psychotherapy and chemotherapy. 22 Q. All right, sir. Now, on the opposite side of 23 the page there are the physicians' orders. Tell us in summary 24 what orders you gave for the treatment and care of Joseph 25 Wesbecker. 223 1 A. Admit to Three East. Regular diet, complete 2 blood count, urinalysis, master chemistry profile, RPR, -- 3 which is a serological test for syphilis, which we do 4 routinely -- lithium level, toluene level. I didn't know if 5 it was available as a urine or blood. I had a question mark 6 there. I ordered lithium carbonate, 600 milligrams twice a 7 day; Tofranil, 50 milligrams, four tablets at bedtime; group 8 privileges, phone privileges, regular visitors. 9 Q. Why was the Tofranil given four times at 10 bedtime? 11 A. The blood level stays fairly constant once 12 you've been on it, so a single daily dose makes for better 13 compliance of patients. 14 Q. Then on your note of 4-1-87, if you would tell 15 us what the physicians' orders were, please. 16 A. Quote, asked Doctor Buchholz to see for 17 psychodiagnostics; social service to see second ex-wife, 18 Brenda Wesbecker, and gives their phone numbers. 19 Q. All right. Then go to the next page, please, 20 sir. 21 A. All right. 22 Q. And then I believe your note of 4-1-87 is -- 23 A. That's Doctor Buchholz's notes, 24 neuropsychological evaluation begun. 25 Q. All right. 224 1 A. And I wrote on 4-2, quote, settling in, end 2 quote. I had to leave for a few days, and so I asked Doctor 3 Harvey St. Clair to look after him during my absence. 4 Q. Now, is he a business associate of yours in 5 terms of having a practice together, or someone that looks 6 after your patients? 7 A. No. At that time Doctor St. Clair was a fellow 8 staff person at the hospital, and we often looked after 9 patients for each other. We do that routinely. 10 Q. Yes, sir. 11 A. And actually, I was in a call group with Doctor 12 Timothy Burke, and apparently there was some scheduling 13 problem and Doctor Burke did not follow him completely. So I 14 asked Doctor St. Clair to fill in at that point. I also gave 15 him some ad-lib privileges and transferred him to an open 16 unit. I think it was open at that time, One East. 17 Q. And what is that for? What are each of the 18 medications and what are they for? 19 A. I'm sorry? 20 Q. I didn't understand exactly what you said. 21 A. I said I have gave him ad-lib privileges. 22 Q. Oh, ad-lib privileges. Okay. 23 A. All right? And transferred him to One East, 24 which at that time, I believe, was not a locked facility; it 25 was an open unit. We put him in a diet class, put him in a 225 1 target heart rate exercise class with his target heart rate to 2 be 130, 135 per minute -- if you work out at all, you know 3 about target heart rates -- and put him on Tylenol for 4 headaches. 5 Q. And all of this was done at Our Lady of Peace? 6 A. Yes. 7 Q. That is a psychiatric hospital facility? 8 A. Yes. 9 Q. All right. Go to the next page, please, sir. 10 A. All right. The next page, we just had the 11 weekly review of orders, and the pharmacy tech writes the 12 orders out; I check them or correct them. And the orders 13 there are for lithium and Tofranil and APAP, which is Tylenol. 14 Q. What was the Tylenol given for? 15 A. Headache, and was given on a request basis. 16 Q. Anything else of consequence on that page by way 17 of note or otherwise? 18 A. Doctor St. Clair reports, quote, lithium level 19 is 0.8, which was satisfactory, and that other than headaches 20 Mr. Wesbecker said he was feeling better, end quote. I can't 21 read the next word. Quote, he looked depressed and says he 22 is, but he has pressured speech, end quote. My note on my 23 return on 4-6, quote, some relief of depressive symptoms. 24 Still has headache, described as bifrontal and occasionally 25 vertex, quote, top of the head, quote, throbbing, no light 226 1 sensitivity, end quote. 2 Q. What is the significance of that? 3 A. Quote, no nausea or vomiting, end quote. I was 4 considering migraine. With migraine you've got light 5 sensitivity and you've got nausea and vomiting. Quote, the 6 headache is relieved by APAP, end quote, which is Tylenol, 7 quote, and by rest. Also complains of blackout and describes 8 this as not remembering previously committed activity, end 9 quote. I crossed something out there. I don't remember what 10 that was. Again, it's hard to read the photocopy. With the 11 original, I might make it out better. 12 Q. What did you make of this business of blackout? 13 Is this sort of like having amnesia, not being able to 14 remember or passing out? 15 A. An amnesiac episode is the way most people use 16 it. If I drink too much, I might black out and not remember 17 being the fool at the office party. Okay? That's what most 18 people refer to as blackouts. It refers to a period in which 19 you are interacting but have no memory for it, and he was 20 using it as periods of activity for which he had no memory 21 and, therefore, could eschew any responsibility. 22 Q. If you go to the next page, the note of 4-6, if 23 you would read that into the record for me, please. 24 A. Quote, with his not accepting the limits set on 25 him by his only average intellectual endowment, his 227 1 expectation, demands on himself, produce a freezingly 2 impotent, end quote -- I guess that's impotent -- quote, 3 performance as an outcome of his anxiety over the so-called, 4 end quote -- I wish I had the original record -- quote, 5 negative aspects of himself, which he then projects 6 ego-alienwise on objects in the environment, end quote. 7 Q. What does that mean? 8 A. This is the basic mechanism of rejection. 9 Something about myself that I don't like and deny myself, I 10 attribute to others. 11 Q. Now, let me see if I understand that. If a 12 person has some fault within themselves, they can't accept it 13 being their fault and must blame it on something else -- 14 someone else or something else? 15 A. Right. 16 Q. Finish the note, then, please? 17 A. Quote, this projection, which quite 18 realistically he is unable to control, increasing his anger, 19 his depression and his impotence and fostering a shift between 20 the paranoid and depressed positions, end quote. 21 Q. Now, when you use the word "anger," who was he 22 angry with? 23 A. His anger at times was diffuse and global and 24 other times was focused quite specifically on people at 25 Standard Gravure. 228 1 Q. His employer? 2 A. His employer. 3 Q. All right, sir. Go to the next page, please. 4 And I'd like you to do the same thing, read the note on 4-7. 5 A. All right. 4-7 was a treatment planning 6 conference which includes the patient, his nurse, his social 7 worker, myself and any other personnel involved in his 8 treatment. Quote, stress management today. Discussion of 9 ward observation and improved sleep. Making alliances but 10 keeping his feelings close to his chest. Active in target 11 heart rate but -- 12 Q. Active in what? 13 A. Target heart rate. That's the stationary 14 bicycle. 15 Q. All right, sir. 16 A. Aerobic exercises. Quote, but needs rate 17 increase. Potential for self harm has diminished, end quote. 18 Q. When you say potential for self harm has 19 diminished, when you first saw him, was there -- 20 A. Well, there was talk about suicide and his 21 focusing on that. 22 Q. All right, sir. 23 a. Quote, restlessness diminished. All initial 24 nursing goals, end quote -- I guess I left something out -- 25 quote, were met. Nursing, social work and psychodiagnostics 229 1 reviewed. Placed for plan for outpatient group psychotherapy 2 in my office on Wednesday beginning 4-22. 4-8, quote, he used 3 his ad libs well. Depression was lifting, end quote. I can't 4 make out the next word. 5 Q. Transfer or awaiting? 6 A. Yes. Quote, awaiting transfer off grounds and 7 toluene, end quote. No. 8 Q. Toluene level? 9 A. Yes. Toluene level. 10 Q. So you were waiting? 11 A. Yes. I don't think we ever got that, but I'm 12 not sure. 13 Q. All right, sir. Let's go to the next page, 4-9, 14 please, sir, and read that. 15 A. All right. Quote, hyperactivity reduced. Still 16 waiting for transfer. Will try weekend off grounds, end 17 quote. 18 Q. When you're waiting for a transfer what do you 19 do? 20 A. He have was moving to One East, to the open 21 unit; there was no bed available. 22 Q. Oh, I see. 23 A. All right? 4-10, quote, looks fantastic. Still 24 feels as if mind races occasionally. Feels difficulty is 25 inability to concentrate. Off grounds this weekend as a test 230 1 of function, end quote. 2 Q. What does this big stamp, Interim Diagnosis? 3 A. That is required by the people who do case 4 management. They want to know if the diagnosis is consistent 5 and what the status is. 6 Q. And you've got the interim diagnosis of 7 depression; is that what that means? 8 A. Right. 9 Q. And then onset of symptoms? 10 A. Date unknown. 11 Q. Date unknown. Now, you had continued him 12 basically on the same drug therapy -- 13 A. Yes. 14 Q. -- that he had when he came to you? 15 A. That's correct. 16 Q. Did you have a notation or were you able to 17 determine, I should ask, how long he had been on these two 18 medications, lithium and Tofranil? 19 A. No. I was unable to. 20 Q. If you'd go to the next note, please, sir, of 21 4-13. 22 A. Quote, good weekend off grounds. Will try 23 overnight next time. He saw the Armand Hammer exhibition at 24 the Speed Museum. Adjusting well to his transfer, endquote. 25 Harvey St. Clair saw him the next two days. 231 1 Q. Did his visit to that museum tell you anything? 2 A. That he's got a cultural interest. That was the 3 famous Armand Hammer traveling exhibit. Harvey just made some 4 notes while he was watching the patient over the weekend, and 5 then second treatment planning conference on the 16th, I 6 believe. Quote, less agitated about his work situation. Some 7 company concessions, end quote. Now, I don't know what that 8 refers to. 9 Q. Does that mean concessions or... 10 A. Concessions. Quote, summary, many paranoid-like 11 problems to finish guideed group, which is inpatient group 12 psychotherapy program before discharge, end quote. Something 13 about group therapy in office. 14 On the 17th, quote, a test of function, end 15 quote. I guess he was off grounds. Quote, a test of 16 function, probable discharge next week with assignment to 17 office group, end quote. 18 4-21, quote, has attended guided group 19 interaction, end quote. That's GGI, quote, times, end quote. 20 I don't know what that number is now. Quote, missed because 21 of twisted muscle in back. He's feeling all right now. We 22 are planning discharge for 5-3, end quote. 23 Q. How did he hurt his back? 24 A. I don't recall. 25 Q. Next note, please? 232 1 A. Quote, maximum hospital benefit. Follow as 2 outpatient. Prognosis, good; diagnosis, dysthymica disorder 3 and paranoid personality, end quote. 4 Q. What does that mean, those two diagnoses? 5 A. Dysthymic disorder means a depression. Thymia 6 is Greek for feelings; dys is bad, bad feeling. 7 Q. All right, sir. And this paranoid personality, 8 what does that mean? 9 A. That he was overly sensitive and suspicious of 10 things and actions and environment. 11 Q. And that diagnosis was made on 4-23? 12 A. Right. 13 Q. All right, sir. 14 A. 4-24, quote, discharged today after guided 15 group. Has begun group therapy in office every Wednesday from 16 4:00 to 5:30. Is much calmer. Less prone to preoccupations. 17 Reflex-like reactions to personally noxious stimuli, end 18 quote. 19 Q. What does noxious mean? 20 A. Stinky. 21 Q. Unpleasant? 22 A. Unpleasant. 23 Q. Hateful? 24 A. Hateful. Things I don't like. Quote, feel 25 patients needs one week posthospitalization convalescence 233 1 to -- something personal relationships -- to cement personal 2 relationships before reentering workplace. And then -- 3 Q. He wanted another week then to -- 4 A. Yes. 5 Q. -- get himself sort of together before going 6 back to work? 7 A. Yes. 8 Q. All right. Now, that makes a total of what 9 number of days, 26, right, that he was in the hospital? 10 A. Twenty-four days' stay in the hospital. The 11 next page is a discharge diagnosis. 12 Q. Wasn't he admitted on the 31st? 13 A. Right. And he left on the 24th, and that was a 14 24-day stay. 15 Q. All right. And then he was seen once by you in 16 a group therapy session, I believe, if you'll refer to your 17 office record. 18 A. All right. He came to the session on 4-22. He 19 was late on 4-29. The blanks there are the names of other 20 patients in the group. 21 Q. In other words, when the other lawyers and the 22 jury and the Judge look at these records, where you've got a 23 blank, you're protecting the psychiatric confidentiality -- 24 A. That's right. 25 Q. -- of the other people? 234 1 A. Right. It's impossible that everyone sign a 2 release. 3 Q. And so you've taken those names out? 4 A. Right. 5 Q. If you would go through these, please. The only 6 one I believe you saw Mr. Wesbecker was the one on 4-29-87. 7 A. No. I'm always present. CS is my co-therapist 8 who dictates notes, too. 9 Q. Oh, I see. That's what I was going to ask you, 10 who that was. 11 A. All right. 5-6, everyone was present. He was 12 present on the 13th, on the 20th. And the comment there -- I 13 think there's a specific comment there that, quote, Joe was 14 appropriate at the end and commented on the subgrouping of the 15 Jewish people in the group. Quote, his perception is that 16 Ted -- that's me -- quote, gives more attention to the Jewish 17 people, and he felt that he and the other non-Jewish people 18 were foster kids, end quote. 19 Q. What does that say to you? 20 A. That he's very sensitive to perceived factions 21 and subgroups which exclude him, which goes along with 22 paranoid personality. 23 Q. And he felt like the Jewish patients were 24 getting some preferred treatment or something? 25 A. Yes, more preferential treatment. Okay? Now, 235 1 the next week he was on vacation and -- 2 Q. He didn't come back at all, did he? 3 A. On the 3rd, apparently did not come back at all, 4 and we dismissed him. And I think this goes along with his 5 history of being a poorly compliant patient. 6 Q. What does that mean? 7 A. He doesn't make an alliance, a therapeutic 8 alliance with his therapist to follow through and to deal with 9 the reluctances, resistances, misperceptions and to talk them 10 out and to investigate them. All right? A noncompliant 11 patient will take medication as he sees fit, rather than as 12 prescribed. One could call him highly idiosyncratic. 13 Q. From an overall point of view, if you had a 14 patient that presented to you that from a psychological 15 evaluation report had attempted suicide, I believe, on 12 16 occasions. 17 A. I only have three recorded. 18 Q. I think if you'll look at the -- 19 A. Doctor Buchholz may have gotten that in his 20 history, yes. 21 Q. I think I read that or I may have gotten it 22 otherwise. Look and see. 23 A. It was probably Doctor Buchholz. 24 Q. Yes. Doctor Buchholz. 25 A. All right. Yes, he said 12 or 15 times; he only 236 1 told me about 3. 2 Q. And the three were the ones that both you and 3 Doctor Buchholz found to be serious attempts or -- 4 A. That's correct. 5 Q. You had a patient that was, I think you said, 44 6 years of age? 7 A. Forty-four. 8 Q. Twice divorced? 9 A. Correct. 10 Q. Two children. Did you determine anything about 11 mental illness in his background, either on his mother or 12 father's side? 13 A. Did not come up in the history. His father was 14 not available and we were unable to get any history on him, 15 and there was no apparent illness on the mother's side. 16 Q. All right, sir. When he presented himself to 17 you, I believe you indicated to me that you thought he was 18 depressed and slightly paranoid? 19 A. Yes. 20 Q. Can you give us any general diagnosis of the 21 patient, as you last saw him, what would that be, if you 22 could -- 23 A. His depression was in partial remission. He was 24 still hypersensitive as demonstration of his paranoid 25 thinking. 237 1 Q. When you say that this gentleman was 2 hypersensitive, does that mean that he reacted or only reacted 3 to things that he encountered in the real world? 4 A. It means that he put very idiosyncratic personal 5 interpretation on events that other people might not concur 6 with that interpretation. 7 Q. I see. And, in fact, he complained, did he not, 8 about being promoted or rewarded with the job as head operator 9 on the folder where he would be making more money, did he not? 10 A. But he disliked that job tremendously and asked 11 to be taken off it. And when he wasn't, he felt that was 12 further indication of his being harassed. 13 Q. Now, did you yourself have any communication 14 with Standard Gravure about Mr. Wesbecker's condition? 15 A. I don't recall. It's not in my notes. 16 Q. Normally if you do that, you would have made 17 some note of it, would you not? 18 A. And I would have had a signed release of 19 information from the patient. The code of ethics and my 20 personal ethic is not to communicate without the patient's 21 given permission. 22 Q. And you do not have such a release? 23 A. No, I do not. 24 Q. So from your records and the best of your 25 recollection, you did not communicate to anyone in the office 238 1 at Standard Gravure those things that Mr. Wesbecker was 2 feeling or your interpretation of them; is that correct? 3 A. That's correct. 4 Q. Had Standard Gravure asked you about those 5 things, without a release or permission from Mr. Wesbecker, 6 you would not have been in a position to give out information, 7 would you? 8 A. Certainly not. 9 Q. Doctor, in the hospital record, I believe in the 10 case history outline, you do make mention on the first page, 11 which is Page 750003, the paragraph next to the last, that he 12 felt that demands were made unreasonably of him at work; is 13 that correct? 14 A. That's correct. 15 Q. And he found it stressful, did he not, that he 16 was promoted to head pressman, even though he would receive a 17 raise; is that correct? 18 A. He found it very stressful; yes, sir. 19 Q. Doctor, I'd like you to like at Page -005, 20 next-to-the-last paragraph. There's a remark in the 21 next-to-last sentence, quote, he appeared to have inadequate 22 understanding of events around him, close quotes. Can you 23 tell me what that means? 24 A. I don't have the page referencing. Is that the 25 handwritten page? 239 1 Q. No. It's the neuropsychological evaluation. I 2 was going to talk to you about that. It's Page -005. 3 A. Oh, I'm sorry. Okay. 4 Q. And I'm referring to the next-to-last paragraph, 5 and the next-to-last line of that paragraph, observations. 6 And down there it says, quote, he appeared to have inadequate 7 understanding of events around him. 8 A. I still don't have it. 9 Q. Can I show you mine? 10 A. Please. 11 Q. It's Buccholz's report. 12 A. Oh, Buccholz's report. I'm sorry. All right. 13 That's not mine; that's Doctor Buccholz's report. Yes. But 14 this is actually Doctor Buccholz's report. 15 Q. I understand. I'm going to ask you about that, 16 Doctor. Well, okay. But, you see, I'm going to ask you this. 17 If you'll note in that next-to-last line it says he period to 18 have inadequate understanding of events around him, and my 19 question is do you agree with that assessment. 20 A. I was not present in the examination room, so I 21 don't know. 22 Q. Do you agree with that assessment of this 23 gentleman when you examined him? 24 A. Well, he appeared to know what was going on, but 25 the psychological test is a very confusing issue and many 240 1 people have difficulty grasping what it's about. And a 2 neuropsychological, in particular, is complex and a lot of 3 people are confused by it. 4 Q. I think we might be confused about what we're 5 talking about here, Doctor. This observation says, quote, he 6 had a very clipped manner of speech and tended to ramble and 7 digress in giving a history; however, he appeared to have 8 inadequate understanding of events around him, close quotes. 9 I take it that since it refers to his giving a history, he's 10 talking about that and not tests. 11 A. No. He's talking about the observations in the 12 the examination room, the interaction between Doctor Buchholz 13 and Mr. Wesbecker and the impressions he got from the 14 interaction. 15 Q. Doctor, in your examination of this gentleman, 16 did you find that in giving his history he had an inadequate 17 understanding of events around him? 18 A. I think that refers to test material. You'll 19 have to ask Doctor Buchholz what that means. 20 Q. Yes. But I'm asking you if you found in your 21 taking the history whether or not this man had an inadequate 22 understanding of the events around him. 23 A. I was not present in the neuropsychological 24 examination, and this refers to the neuropsychological 25 examination. 241 1 Q. I don't want to refer to this anymore? 2 A. But that's -- that phrase refers to an 3 observation by the psychologist in the examination room. I 4 was not present. 5 Q. Okay. Doctor, when you talked to him at any 6 other time in your examination and treatment, did you feel at 7 any time that he did not have an understanding of the events 8 around him? 9 A. He knew why he was in the hospital; he knew what 10 our relationship was; he knew what I expected of him. He may 11 have disagreed with it at times. All right? 12 Q. Okay. 13 A. So this refers only to the complexity of the 14 examination. 15 Q. Let me ask you this, Doctor. On Page 39 of -- 16 A. I'm sorry. I don't have the same pagination you 17 do, Counsel. 18 Q. Let me show you, if I could. Our Lady of Peace 19 when they gave us this certified record -- 20 A. I don't have that at all. 21 Q. Could you look at this and the page preceding it 22 and tell me what document that is? 23 A. Yes. This is a nursing document, the nursing 24 intake evaluation by Barbara Sheehan, who is an excellent 25 psychiatric nurse. Nurses make their own assessment and 242 1 formulation, functional diagnosis of the patient and plan 2 their treatment and approach, which is coordinated with the 3 doctors in the treatment planning conference. That's what 4 this is all about. 5 Q. In the course of a nurse preparing this item 6 where it says responses and things are written in, how do they 7 do that? Do they ask a question, get a response and try to 8 write down what Mr. Wesbecker, for instance, said? 9 A. Yes. That's correct. Either a quote or a 10 paraphrasing. 11 Q. In here it says, "Job pressures, blaming company 12 for his own problems." Did you find in your examination and 13 discussions with Mr. Wesbecker that he did that? 14 A. Yes. That's what I referred to in terms of some 15 probably paranoid ideation. 16 Q. And there's a question here, "How do others feel 17 about you," and it says, quote, sometimes they hate me. They 18 like me when they want something, close quotes. Did he 19 express that opinion to you also in your examination? 20 A. Probably. I don't remember reporting it, but 21 probably. 22 Q. Did he mention anything to you about people who 23 he had troubling with on the job, co-employees? 24 A. Yes. Again, I did not record specifics. 25 Q. Did he say anything to you about nicknames they 243 1 had for him that he resented? 2 A. That sounds - does sound familiar, but, again, I 3 did not record that. 4 A. Let me show you a page from the hospital record 5 along with the whole record, and I'm going to be referring, 6 for the attorneys, to Page 46, and ask you to look at it and 7 see if you can tell me what this is and who prepared this. 8 A. This is a narrative nursing note prepared not 9 only by the nurse but by anyone who comes into clinical 10 contact: the recreation therapist, the activities therapist, 11 the social workers, the chaplain. They all record running 12 commentary here; it's a team communication. 13 Q. Is it possible to determine by initial or 14 anything else, title, who made the notes on this particular 15 page? 16 A. This particular page was Ruth Neff. 17 Q. Do you recall in your experience whether Ruth 18 Neff is a therapist or a nurse? 19 A. She is a certified psychiatric nurse. RNC is 20 what it says here. 21 Q. Now, Doctor, on these notes she has recorded in 22 the middle of the page the following: Quote, Discussed job 23 procedures as magnified by alcoholics who don't admit to 24 problems. But there are some ways he can get back, close 25 quotes. And there is an A with a circle around it, which I 244 1 assume means "at." 2 A. At. 3 Q. "...them, such as speeding up the line, close 4 quotes. Doctor, the question is, did Mr. Wesbecker ever 5 discuss this problem and this referring to co-employees as 6 alcoholics with you? 7 A. I don't recall specifically, but he was not -- 8 did not view his co-workers in a good light. 9 Q. Did you find that this man had a dependent 10 personality? 11 A. Will you define that, because that is a standard 12 diagnostic term. I have to know in what capacity you're using 13 it. 14 Q. Okay. He needed support from other people to 15 feel good about himself. 16 A. He craved support; he didn't find it. 17 Q. Were there any support figures in his life who 18 gratified his needs for support? 19 A. The history would indicate he was divorced 20 twice. He had no ongoing interpersonal relationship which was 21 satisfying, that I know about. 22 Q. Was he angry about this situation? 23 A. Probably. I don't recall specifics. 24 Q. Someone who has a need for support figures, does 25 that person typically divert his anger to other people who are 245 1 not in a position to give him support, like people who are 2 co-employees, his job, his employer; does that happen? 3 A. Yes. 4 COURT REPORTER: Mr. Stopher, may I have a 5 moment? 6 MR. STOPHER: Sure. 7 COURT REPORTER: Just one moment. 8 MR. STOPHER: Let's see. Judge, this might be a 9 good place to stop, because I see that there are other pages 10 here. It won't take long in the morning and it might be a 11 good place to stop, anyway. 12 JUDGE POTTER: It probably will take less time 13 in the morning. 14 MR. STOPHER: It seems like it, anyway. 15 JUDGE POTTER: Ladies and gentlemen, we're going 16 to take the evening recess. I know you're tired of hearing me 17 say this every night, but I say it because it's important that 18 you be reminded and be reminded that it's serious. Do not 19 permit anybody to talk to or communicate with you on any topic 20 connected with this trial. Again, I emphasize that includes 21 just somebody in your family or somebody that's just talking 22 to you generally, and also it includes, you know, somebody 23 that's on television or in the newspaper or whatever, 24 commenting about this topic or even this case. Do not discuss 25 it among yourselves and do not form or express opinions about 246 1 it. We'll stand in recess till 9:00 tomorrow morning. 2 (JURORS EXCUSED; HEARING IN CHAMBERS) 3 JUDGE POTTER: Mr. Smith, you indicated there 4 was something that you needed to -- 5 MR. SMITH: Yeah. I'm just trying to get -- it 6 appears to me that -- 7 JUDGE POTTER: We're ahead of schedule. 8 MR. SMITH: -- we're ahead of schedule, and, 9 obviously, I know the Court doesn't want to waste any time and 10 defense counsel doesn't either. And if we're going to move 11 some stuff up, you know, let's go ahead and get -- if we could 12 rearrange this so we'll know how to -- 13 JUDGE POTTER: I think he's just going down his 14 list and he's ahead of himself. 15 MR. STOPHER: Uh-huh. Except on Doctor Schramm, 16 and it's taking me longer than... There ought to be some 17 special reward for people having to read into the record 18 somebody else's questions. 19 JUDGE POTTER: Yeah. Double pay. 20 MR. SMITH: You're doing a good job even though 21 Nancy had to correct you and calm you down. What can I say, 22 Ed. 23 MR. STOPHER: My eyes were getting crossed after 24 reading those hospital records; I'll tell you that. I had 25 difficulty getting back to my seat after that. 247 1 MR. SMITH: Schramm will probably take 30 2 minutes, 15 minutes. 3 MR. STOPHER: Yeah, I would think. 4 MR. SMITH: We'll have Buccholz live. He's 5 coming at 8:30? 6 MS. ZETTLER: There's one more dep. Are you 7 still going to read Lattray? 8 JUDGE POTTER: It's way -- a guy left from way 9 back somewhere. 10 MR. STOPHER: Yeah, Lattray. Well, I'm not -- 11 I'm going to try to stick to the scale tomorrow, and if I have 12 a hitch on timing, I may plug in Lattray, but you can stick to 13 this. 14 MR. SMITH: Okay. So Buchholz, Brubrink and 15 Jackman, the two police officers? 16 MR. STOPHER: Yeah. And if that doesn't finish 17 the day, then I'll read the Lattray deposition. 18 MR. SMITH: But you're not going to have Mercer 19 for -- 20 MR. STOPHER: He has had angioplasty either 21 yesterday or today, and I don't know if he's going to be able 22 to appear. He is going to keep me advised; it depends on how 23 quickly he can recover. For some reason, I didn't put him -- 24 or did I? Yeah. He's on your list. But he may have a health 25 problem that might move him to Monday, so that would be the 248 1 only hitch. He told me that last week, that he was going to 2 have this done and I haven't been able to talk to him since 3 then. So I assume he's had it done, but I don't know what 4 kind of shape he's in. 5 JUDGE POTTER: So if Mr. Schwab and Mr. Fox come 6 in on Thursday, you can't complain. 7 MR. SMITH: That's what I want to know, is will 8 we be pulling up from Monday into this week, potentially. 9 JUDGE POTTER: Oh, yeah. You're definitely 10 going to be pulling up from Monday into this week; you might 11 even be pulling up into Thursday. 12 MR. STOPHER: Yeah. 13 JUDGE POTTER: Because if Mercer has his heart 14 problem -- angioplasty is heart? 15 MR. STOPHER: Yeah. 16 MR. FREEMAN: That's probably likely. 17 MR. SMITH: So we'll have Schwab or Fox. 18 MR. STOPHER: Or Granacher. 19 MR. SMITH: Or even Granacher this week? 20 MR. STOPHER: For maybe this Friday, yeah. 21 MR. SMITH: Can I get at least a Thursday versus 22 Friday breakdown, so I don't have to read all of them again? 23 JUDGE POTTER: Yeah. You stuck in that "again." 24 MR. SMITH: Well, make my final notes. 25 JUDGE POTTER: Okay. Can you tell him that 249 1 you'll do Schwab before Fox and Fox before Granacher? 2 MR. STOPHER: I'll do Granacher before Fox or 3 Schwab, in all probability. 4 MR. SMITH: Okay. 5 MR. STOPHER: If that changes, I'll let you 6 know. 7 JUDGE POTTER: Okay. All right. Is that it? 8 (PROCEEDINGS TERMINATED THIS DATE AT 5:05 P.M.) 9 * * * 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 250 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 251 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