410 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF HAWAII 3 4 SUSAN K. FORSYTH, ) Civil No. 95-00185ACK Individually and as ) 5 Personal Representative ) of the Estates of June M. ) 6 Forsyth and William D. ) PAGES 410 - 433 Forsyth, and WILLIAM F. ) 7 FORSYTH, JR., ) ) 8 Plaintiffs, ) ) 9 vs. ) ) 10 ELI LILLY AND COMPANY, ) an Indiana corporation, ) 11 et al., ) ) 12 Defendants. ) __________________________) 13 14 TRANSCRIPT OF PROCEEDINGS 15 The above-entitled matter came on for trial on Monday, 16 March, 8, 1999 at 9:15 a.m. at Honolulu, Hawaii. 17 BEFORE: THE HONORABLE ALAN C. KAY 18 United States District Judge District of Hawaii 19 20 REPORTED BY: TINA M. STUHR, RPR, CSR #360 Notary Public, State of Hawaii 21 PACIFIC REPORTING SERVICES UNLIMITED, INC. 22 733 Bishop Street Suite 2090, Makai Tower 23 Honolulu, Hawaii 96813 (808) 524-PRSU 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 411 1 APPEARANCES: 2 For Plaintiffs: ANTHONY ANDERSON VICKERY, ESQ. Archer, Waldner & Vickery 3 2929 Allen Parkway Suite 2410 4 Houston, Texas 77019 5 KAREN BARTH, ESQ. Baum, Hedlund, Aristei, Guilford 6 & Downey 12100 Wilshire Boulevard 7 Suite 950 Los Angeles, California 90025 8 For Defendant: MICHELLE R. MANGRUM, ESQ. 9 Shook, Hardy & Bacon L.L.P. One Kansas City Place 10 1200 Main Street Kansas City, Missouri 64105 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 412 1 THE CLERK: Civil No. 95-00185 ACK, Susan K. 2 Forsyth, et al. versus Eli Lilly and Company, et al. 3 MR. VICKERY: Good afternoon, Your Honor. 4 Karen Barth on behalf of the plaintiffs. 5 THE COURT: Good afternoon. 6 MS. MANGRUM: Michelle Mangrum on behalf of 7 Defendant Eli Lilly and Company. 8 THE COURT: We've got some no shows. 9 MS. MANGRUM: Yes. We gave them the day off. 10 THE COURT: I trust they're putting it to good 11 use. We have several things to take up and I thought 12 that lead counsel would be here also. 13 First, on the video -- well, let's go on the 14 photos, I guess, first. What exhibit was that? 15 MS. BARTH: The photos are Exhibit 165. 16 MS. MANGRUM: I think it's 167. 17 MS. BARTH: The video is 167. 18 THE COURT: Pardon me? Yeah, the video is 167. 19 What are the photos? 20 MS. BARTH: Excuse me, Your Honor, it's 168. 21 THE COURT: So where are you at in your 22 resolution of this? 23 MS. BARTH: We talked over the weekend, Your 24 Honor, and as far as I understand it, there is no 25 compromise on the video. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 413 1 THE COURT: Pardon me? 2 MS. BARTH: There's no compromise on the video. 3 As far as the pictures are concerned, plaintiffs have 4 agreed to take out about 14 of them and we still have 5 a dispute as to about six -- seven that are left. 6 Your Honor, just to point out -- 7 THE COURT: Tooth and nail all the way. 8 MS. BARTH: Well, unfortunately, I'm sorry we 9 have to be here today. The objections that have been 10 raised right now have nothing to do with pictures with 11 the grandchildren included. We have compromised on 12 those completely, but now as I understand, the 13 defendants are objecting to some of the older 14 photographs that do not include the grandchildren, 15 which is, to our understanding, it's a new objection. 16 THE COURT: All right. What's in contention? 17 MS. MANGRUM: The first one, Your Honor, is a 18 photo with Mr. Forsyth and his granddaughter. It is 19 taken on the same day, obviously on the same -- 20 THE COURT: Well, what number is it? 21 MS. MANGRUM: It doesn't -- excuse me, Your 22 Honor. It is P 16A. 23 THE COURT: These don't seem to be in any 24 logical order whatsoever. 25 MS. BARTH: There were attempts at being in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 414 1 chronological order from most recent back. 2 THE COURT: You go from 24 to 16 to 10 to 13 to 3 25 to 36. 4 MS. BARTH: Those numbers were originally to 5 aid us, I believe, in entering them in and giving them 6 to defendant and we just have all exhibit -- one 7 exhibit for all of it. 8 THE COURT: So the first one is P 16A? 9 MS. BARTH: Yes. 10 MS. MANGRUM: My objection to that, Your Honor, 11 is about three pages in you'll see P 29A with the 12 children on the same couch in the same clothing with 13 Mr. Forsyth in the same clothes. They were obviously 14 taken at the same time and they are duplicative and 15 prejudicial for that reason. 16 THE COURT: Well, I wish all issues were so 17 serious. 29A, going to the right or the left? 18 MS. BARTH: 29A is about three pages in from 19 the stack that you have. 20 THE COURT: I see one that doesn't even -- that 21 looks similar that doesn't even have a number in mine. 22 Why were some of these numbered and not others? 23 MS. BARTH: They were done originally when we 24 were submitting a bunch of them to the defendants and 25 they were assigned numbers at that time, but that was PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 415 1 just the leftover from a previous production to the 2 defendants. They weren't meant to be numbered for the 3 Court's purposes. It was just one exhibit. 4 THE COURT: Well, that's exactly why they 5 should have been numbered so that we wouldn't have to 6 waste even more time going through here trying to find 7 which ones you're even squabbling over. 8 Well, I'm going to take a break and have you 9 number the photographs one, two, three, four from the 10 beginning of Exhibit 168 so we'll all know what we're 11 talking about without wasting a lot of time. 12 Why don't we go ahead with the video first 13 then? 14 MS. BARTH: Your Honor, I have marked on the 15 original exhibit the pictures that are in dispute if 16 that helps. 17 THE COURT: Maybe that will help. Let me see 18 them. Tabs on the top? 19 MS. BARTH: Yes. 20 THE COURT: Whatever their color may be or -- 21 MS. BARTH: Yeah, there's one pink and, I 22 think, three yellow tabs. 23 THE COURT: And so we should tell the court 24 reporter that the pink one is in or out or -- 25 MS. BARTH: Sure. I think the one with the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 416 1 pink is easily identified. It's just Mr. Forsyth with 2 one granddaughter sitting on the couch. The other 3 tabs are very old pictures. 4 THE COURT: You better go ahead and number 5 them. You're developing an impossible record here. I 6 can't understand why you're not ready to go on this. 7 And while you're doing that -- and this is one reason 8 why I thought lead counsel would be here, but how is 9 it contemplated that Dr. Healy is going to overcome 10 the latest Jick declaration? 11 MS. BARTH: Plaintiffs' counsel right now is 12 working with Dr. Healy for a response and we'll have 13 that filed, as I understand, within the next two 14 hours. 15 THE COURT: It appears that this may require a 16 Daubert hearing outside of the presence of the jury. 17 MS. BARTH: I understand that, Your Honor. 18 THE COURT: And also, I would just reiterate 19 that it appears to the Court that it would be in the 20 best interest of both parties to resolve this case by 21 settlement sooner rather than later. When is it 22 contemplated Dr. Healy will testify? 23 MS. BARTH: Tomorrow. And also the plaintiffs 24 are prepared to take this up, if the Court wishes, 25 tomorrow morning first thing. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 417 1 THE COURT: Well, it's probably going to have 2 to be taken up before he testifies. 3 MS. BARTH: We have Billy Forsyth first, and 4 then we were planning on two other short -- very short 5 witnesses and then expected to have Dr. Healy, if we 6 finished those others, depending on Mr. See's cross, 7 we would think he would get started right before lunch 8 or right after lunch. 9 THE COURT: We shall see. Well, they'll have 10 to -- here's my exhibit list to mark up so we can take 11 a recess. I guess better come back at 3:00 because I 12 have a 2:15 sentencing. 13 MS. BARTH: Thank you, Your Honor. 14 (Whereupon, the proceedings were adjourned at 15 1:50 p.m. and were reconvened at 3:10 p.m.) 16 THE CLERK: Civil No. 95-00185 ACK, Susan K. 17 Forsyth, et al. versus Eli Lilly and Company, et al. 18 MR. VICKERY: Good afternoon, Your Honor. Andy 19 Vickery for the plaintiffs along with Karen Barth. 20 THE COURT: Good afternoon. 21 MS. MANGRUM: Michelle Mangrum for Defendant 22 Eli Lilly and Company, Your Honor. 23 THE COURT: All right. We now have the 24 photographs numbered. Which are the ones that are in 25 contention? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 418 1 MS. MANGRUM: The first one, Your Honor, is 2 No. 3 for the reason it is cumulative and unnecessary. 3 It's taken on the same day at the same time as No. 4. 4 MS. BARTH: Your Honor, this is one of the 5 three that I had indicated to the Court last Friday we 6 wanted to keep in when we took six of the others with 7 the grandchildren out. The Court had said that this 8 one was okay at that time. Defendants have renewed 9 their objection. Our position is that this is not 10 cumulative. 11 He's in a different position, a different 12 facial expression, and while that may sound like a 13 small distinction in looking at the case law regarding 14 this issue, of course it's mostly in defense cases, 15 when they have pictures of a crime scene, even if they 16 look almost exactly the same, if it's from a different 17 angle, it's not considered cumulative and it's 18 certainly not so prejudicial as to being unfair to the 19 defendants. 20 THE COURT: Does he have something on his left 21 wrist? 22 MS. BARTH: I think it's a watch, Your Honor. 23 THE COURT: Oh. What else is in contention? 24 MS. MANGRUM: The next one in contention is 44 25 simply because of the obvious length of time between PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 419 1 the time this picture was taken and the other -- the 2 acts in dispute in this case. 3 THE COURT: The obvious time? 4 MS. MANGRUM: Well, the great length of time 5 between the time this picture was taken and the time 6 the Forsyths died. I think -- 7 THE COURT: What is so obvious? I don't see 8 any date here. 9 MS. MANGRUM: Well, I think the clothing and 10 the dates on the other photos. I don't know who that 11 picture is and the man is -- 12 THE COURT: What's the date? You're objecting 13 to it on the basis of the date and you don't know what 14 the date is? 15 MS. MANGRUM: That's one of the bases, and I'm 16 objecting because of, to me at least, it appears clear 17 that it was taken a long time ago. I don't know who 18 this man is in the photo with Mr. Forsyth and the 19 plaintiffs can't tell me. 20 THE COURT: Which one is Mr. Forsyth? 21 MS. BARTH: He's in the white. 22 THE COURT: Apparently, he seems to have lost a 23 lot of weight. 24 MS. BARTH: That's correct. 25 THE COURT: When was the photo taken? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 420 1 MS. BARTH: It is an old photograph, Your 2 Honor, and our position is -- the first point is -- 3 THE COURT: But when was it taken? 4 MS. BARTH: It looks to be taken sometime maybe 5 in the late sixties or early seventies. The reason we 6 believe it's relevant to this case, Your Honor, is 7 because as the defendants pointed out, the character 8 and personality of Mr. Forsyth is at issue in this 9 case, it's relevant and goes to that. Defendants have 10 not objected to any of the other or many of the other 11 photographs that were also taken at this earlier time 12 period. Again -- 13 THE COURT: How is the jury going to be able to 14 judge this when you don't know the date? 15 MS. BARTH: We can give an estimate on the 16 date. We can ask the Forsyths, if that's a concern of 17 the Court. Our position is not that the date is so 18 critical. It's just a good indication or reflection 19 of this man's personality. That is very key to this 20 case. 21 THE COURT: Okay. Next one. 22 MS. MANGRUM: The page that has 47, 48, and 49 23 for the same reasons, the length of time. These are 24 dated July '61 and March of '59, and these photos just 25 don't go at all to make any fact at issue in this case PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 421 1 any more or less probable. We have by now 40 pictures 2 of this family in the case and none of them show -- 3 none of them at all offered show Mr. Forsyth when he 4 was depressed and not taking Prozac. 5 THE COURT: These must have been taken 30 years 6 ago? 7 MS. BARTH: That's correct, Your Honor. Just 8 the point on this one is the personality again of June 9 Forsyth, and of course, the Court is aware that if a 10 photograph is relevant to any of the issues, which is 11 relevant to her character, as Mr. See has brought up 12 in his cross-examination of Billy Forsyth, that the 13 personality that Mrs. Forsyth has, it goes to that. 14 And again, as I said before, the defendants have not 15 objected to some of the later photographs that are 16 also during the same time frame. I think it's the 17 defendants' efforts to just try to take out good 18 pictures. The pictures as far as June is concerned, 19 we don't have 40 pictures of her. We only have 20 probably less than five. 21 THE COURT: Well, 49 is in dispute, too? 22 MS. BARTH: Yes. 23 THE COURT: When was that taken? 24 MS. BARTH: I would guess that's a little 25 later, probably late seventies, early eighties. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 422 1 Again, I'm guessing and I can get the approximate 2 dates from the Forsyths. 3 MS. MANGRUM: There's five pictures of 4 Mrs. Forsyth in the first ten. So I think that's an 5 understatement of what we have representing 6 Mrs. Forsyth. 7 THE COURT: I can't hear you. 8 MS. MANGRUM: Ms. Barth just represented that 9 they only have a total of five probably in the set, 10 and my comment was, in the first ten pictures, there 11 are five pictures of Mrs. Forsyth. So her 12 representation was a bit of an underestimate. 13 THE COURT: Okay. The next one is 50; is that 14 right? 15 MS. MANGRUM: Yes. 16 MS. BARTH: That's correct. 17 MS. MANGRUM: 50, 52, and 53, all the same 18 objections go to, and that is, they're undated, we 19 don't know how far removed in time they are, and no 20 one in this case is going to dispute that, in fact, at 21 some point in time Mr. and Mrs. Forsyth cared deeply 22 about each other or they wouldn't have gotten married. 23 And these are those pictures from long, long ago, and 24 just because they were happy 30 years ago, does not 25 mean that's reflective of the state of their PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 423 1 relationship at the time of the events in issue in 2 this case. 3 MS. BARTH: Again, Your Honor, I make the same 4 point, that the defendants have not objected to any of 5 the other older photographs. They are trying to 6 selectively take out pictures that are basically good 7 pictures that show a good personality of these 8 individuals and that's what we're trying to present. 9 They certainly are not so prejudicial to create 10 the jury to make a decision based on emotion. These 11 pictures will not do that, and unless the defendants 12 can show that, they are not unfairly prejudicial. 13 THE COURT: Does that cover all of them? 14 MS. MANGRUM: Yes, Your Honor. 15 THE COURT: Okay. In ruling under 403, going 16 through that exercise, the Court finds that some of 17 these are duplicative, cumulative, a waste of time, 18 and in fact, the dates are not even known. So the 19 Court is going to allow, 44, 48, and 49, and disallow 20 the others as being cumulative and some irrelevant and 21 a waste of time. And there are ample photographs here 22 otherwise to more than sufficiently show the 23 conditions of the Forsyths. 24 Now, I guess we better view the video. 25 MS. BARTH: That's correct, Your Honor. One PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 424 1 point I think I mentioned this to your clerk earlier, 2 that you had ruled on Friday that we would fast 3 forward through the parts where the grandchildren are 4 on and only the grandchildren. The reason that those 5 are in is because the person taking the video at the 6 time was Mr. Forsyth. He's narrating the video and 7 he's talking to his children or his grandchildren 8 during the time when they are the only ones on the 9 picture. 10 THE COURT: Well, in the final sequence when 11 they sail out into the sunset, what date was that 12 taken? 13 MS. BARTH: I have to find that out. I believe 14 it was in '91. That's my best estimate. I can ask 15 again the Forsyths. We have agreed with Mr. See that 16 we'll turn the music down. 17 THE COURT: That's what I was going to suggest, 18 that you can just turn down the sound so that they 19 won't hear that. 20 MS. BARTH: That's fine. 21 THE COURT: And my other suggestion was going 22 to be that the Court might instruct the jury that the 23 grandchildren are not entitled to recover anything 24 under the statute. 25 MS. BARTH: I've drafted up a proposed PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 425 1 instruction if the Court would like to take a look at 2 that. 3 THE COURT: Very well. Is this instruction 4 agreeable to defendants? 5 MS. MANGRUM: I haven't quite finished reading 6 it, Your Honor. 7 THE COURT: Oh, go ahead. 8 MS. MANGRUM: Your Honor, I would ask at the 9 end of the stipulation or the instruction, excuse me, 10 and at the end of the second sentence which ends on 11 line four that "they are presented to illustrate the 12 Forsyths relationship with their family before 13 Mr. Forsyth became severely depressed," because none 14 of them illustrate this man's personality during the 15 time of his depression. 16 THE COURT: Any objection to that? 17 MS. BARTH: Just to the word severely. 18 THE COURT: Is that acceptable? 19 MS. MANGRUM: Your Honor, the final objection 20 is -- 21 THE COURT: Well, wait a minute. Let's get 22 this first one resolved first. 23 MS. MANGRUM: That's fine. 24 THE COURT: What was that again? 25 MS. MANGRUM: To illustrate Mr. and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 426 1 Mrs. Forsyth's relationships with their family before 2 Mr. Forsyth became depressed. 3 THE COURT: Okay. And what was the last 4 objection? 5 MS. MANGRUM: Just to make sure that sentence 6 now reads, "The parts of the tapes and pictures that 7 depict Mr. and Mrs. Forsyth's grandchildren are 8 presented to illustrate Mr. and Mrs. Forsyth's 9 relationship with their family before Mr. Forsyth 10 became depressed." 11 THE COURT: And that's agreeable with you, 12 Ms. Barth? 13 MS. BARTH: That's fine, Your Honor. 14 THE COURT: Okay. 15 MS. MANGRUM: And then I would ask that the 16 last sentence be changed to the same wording we just 17 changed the second sentence to, because it contains 18 the same -- they were the same wording in those 19 sentences. So that the last one shall now read, "You 20 are instructed not to consider the videotape portions 21 or photographs that include the grandchildren for any 22 other purpose than Mr. and Mrs. Forsyth's relationship 23 with their family before Mr. Forsyth became 24 depressed." 25 THE COURT: Do you agree, Ms. Barth? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 427 1 MS. BARTH: That's fine, Your Honor. 2 THE COURT: Okay. Well, with that, I guess, we 3 don't have to view the video then; is that right? 4 MS. MANGRUM: I suppose, Your Honor. I think 5 it is absolutely duplicative of what we see in the 6 photos, and I think it's cumulative and a more waste 7 of time. You know, it's moving pictures instead of 8 still pictures, but it's just absolutely more of the 9 same. 10 THE COURT: Well, I'm going to allow it. So is 11 there anything else for us to take up at this point? 12 MS. MANGRUM: I have just two short things, 13 Your Honor. The first one is, tomorrow Mr. Vickery 14 plans to call two lay witnesses, and I would ask that 15 the Court ask Mr. Vickery to remind those witnesses 16 that they are not to give any opinion testimony 17 whether solicited or unsolicited, in accordance with 18 this Court's order on that subject of May 29, 1998. 19 THE COURT: Was that the Magistrate Judge's 20 order? 21 MS. MANGRUM: The dated order I just read to 22 you was your order adopting Magistrate Yamashita's 23 findings and recommendations. 24 THE COURT: I thought most of my orders were in 25 October. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 428 1 MS. MANGRUM: Excuse me? 2 THE COURT: I said I thought most of my orders 3 were in October. 4 MS. MANGRUM: Well, this was one -- 5 THE COURT: Do you have the order there? 6 MS. MANGRUM: It was one that was not disputed. 7 THE COURT: Oh. Well, if it wasn't disputed, 8 then it was probably a Magistrate Judge's order. 9 MS. MANGRUM: May I approach? 10 THE COURT: If it's signed by someone named 11 Yamashita, that's someone other than me. But it's 12 signed by me. That's just the adoption of his order. 13 MS. MANGRUM: Yes, Your Honor. Here's his 14 order if you would like to see that. 15 THE COURT: Okay. So those lay witnesses 16 should be so reminded. 17 MS. MANGRUM: Finally, Your Honor, we also 18 anticipate that Dr. Healy will testify tomorrow, and 19 based upon our hearing on the exhibits and 20 understanding that the exhibits which were letters 21 between Lilly and Dr. Healy, that would have been 22 Exhibits 128 and 129, are not admitted unless Lilly on 23 cross-examination attacks Dr. Healy's qualifications, 24 that that also would extend to Dr. Healy testifying 25 about that relationship until and unless Lilly attacks PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 429 1 his qualifications on cross-examination. 2 THE COURT: I don't know. What's the 3 plaintiffs' position on that? 4 MR. VICKERY: Your Honor, I think that what she 5 has just said is in the nature of a speaking motion in 6 limine. My position on it is quite simply this: The 7 Court made it very clear to us last Thursday that 8 those letters are out, and so of course, I have no 9 intention of inducing that kind of testimony from 10 Dr. Healy unless Lilly, in some way, makes it 11 relevant. 12 THE COURT: Okay. Anything else? 13 MS. MANGRUM: One final sort of procedural 14 irregularity. Since Mr. Vickery and I have both been 15 here in Hawaii, we took a telephone deposition which 16 went a bit array because the court reporter, though 17 she had been repeatedly reminded to bring a 18 conference -- a phone that we could use as a speaker 19 phone, forgot to bring that, and at the beginning of 20 the deposition, Mr. Vickery and I agreed, that my tape 21 recording of the deposition could be typed and used as 22 if it were taken by a court reporter. 23 I have given that transcript to Mr. Vickery and 24 have the one and only tape to give to him now to make 25 sure that he agrees that the transcript is what's on PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 430 1 this tape, but I just wanted to alert the Court that 2 we plan to use, me and Mr. Vickery, plan to use 3 Mr. Dornblazer's deposition transcript. 4 THE COURT: Whose deposition? 5 MS. MANGRUM: Bill Dornblazer, a friend of the 6 decedents, during our case. 7 THE COURT: Discovery hasn't been closed? 8 MS. MANGRUM: Discovery has been closed, Your 9 Honor, and Mr. Vickery raised that objection. It was 10 always kept open for the specific purpose of deposing 11 this witness who was on plaintiffs' witness list and 12 we could not find him and they could not tell us where 13 to find him either and we finally found him on about 14 the 17th or so of February and deposed him by phone. 15 THE COURT: So what is it that you want from 16 the Court at this time? 17 MS. MANGRUM: Well, I just wanted to alert the 18 Court to that and give Mr. Vickery this tape, because 19 there will be no transcript or anything to file other 20 than -- 21 THE COURT: The Court will note that you just 22 handed the transcript to Mr. Vickery. 23 MR. VICKERY: Thank you, Your Honor. I will be 24 glad to give you the history of all of that if you 25 want it. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 431 1 THE COURT: No, I don't want any more on that. 2 Are you going to be calling Dr. Shlensky? 3 MR. VICKERY: Yes, I am. 4 THE COURT: When will that be? 5 MR. VICKERY: That will probably be Wednesday, 6 Your Honor. Dr. Shlensky is in town. Dr. Healy is in 7 town. Actually, this is Dr. Healy in the courtroom 8 this morning, Your Honor. 9 And Ms. Barth suggested that you wanted to see 10 me at three, so I hustled by here. What we will be 11 filing, I can tell the Court, very shortly is a 12 response to the filing, I was somewhat surprised to 13 get last Friday, concerning Dr. Jick. That will be 14 filed this afternoon. If the Court desires a one 15 or -- a Daubert hearing, we will be prepared as well 16 for that tomorrow. Whatever the Court's pleasure is, 17 we're prepared to deal with. 18 THE COURT: What's very shortly? 19 MR. VICKERY: I'm surprised that Ms. Hawkins 20 isn't here yet, Your Honor. When I came in at five to 21 three she was over at Mr. Chang's making copies. We 22 had a printer -- 23 THE COURT: I'm glad you're using Mr. Chang's 24 copy machine rather than -- 25 MS. MANGRUM: Kinkos. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 432 1 THE COURT: -- Kinkos. 2 MR. VICKERY: Yes. Amen, Your Honor. I'm 3 surprised Mrs. Hawkins isn't here now, but I suspect 4 in the next 30 minutes she will be here, Your Honor. 5 THE COURT: All right. We'll see you all at 6 nine tomorrow. 7 (Whereupon, the proceedings were adjourned at 8 3:30 p.m. to be reconvened on Tuesday, March 9, 9 1999 at 9:00 a.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 433 1 C E R T I F I C A T E 2 --ooOOoo-- 3 I, TINA M. STUHR, Official Court Reporter, 4 United States District Court, District of Hawaii, 5 Honolulu, Hawaii, do hereby certify that the foregoing 6 is a correct partial transcript of proceedings in 7 Civil No. 95-00185ACK, Susan K. Forsyth, et al. vs. 8 Eli Lilly and Company, et al., at Honolulu, Hawaii, on 9 March 8, 1999, before the Honorable Alan C. Kay, 10 United States District Judge. 11 DATED: December 19, 1999. 12 13 ______________________________________ TINA M. STUHR, RPR, CSR #360 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU